In some cases, there is a significant degree of conflict between the parties upon a divorce, which may influence the court’s decision concerning parenting. While having both parents involved in raising and making decisions for the children may be ideal, that may not always be possible in every case. The court makes decisions on joint guardianship and shared parenting based on the child’s best interests. If the parties cannot cooperate regarding the children’s well-being, then the court will need to factor this in, and it may be that the court will deny joint guardianship or shared parenting, or both.
In a recent Alberta case, S.T. v. K.T., 2021 ABPC 167, the court declined to order joint guardianship and shared parenting for both parents based on the history of significant acrimony between the parties, negatively affecting the children’s best interests. This post will discuss how the court made its decision, providing key takeaways for co-parenting parties.
The parties were married for 8 years. They had two children, aged 7 and 8, at the time of trial.
The mother sought sole decision-making and for the father to have parenting time with the children every second weekend. She also applied for child and spousal support, but the most contentious issue involved parenting time.
The father was seeking joint guardianship and his parenting time with the children to be on a one-week on/one-week off schedule.
Counsel, which the court-appointed also represented the children.
This was not the first time that the parties went to court. In 2019, the mother left the matrimonial home with the children and was placed in a women’s shelter after contacting the RCMP. She then applied for the day-to-day care of the children and sole decision-making authority, with supervised parenting time for the father. The mother also applied to relocate with the children to Ontario.
In his response, the father also sought day-to-day care of the children and sole decision-making over where they would reside and attend daycare.
The court dismissed the mother’s application to relocate to Ontario, and the parties entered an interim consent order for the children to reside primarily with the mother, with “reasonable and generous parenting time as the parties can arrange” for the father (at para 11). The parties were able to agree on parenting time, which was scheduled with the father’s work schedule in mind.
However, in the fall of 2019, there was an incident during an exchange at the matrimonial home. The mother claimed the father had “shoved a toy ‘Dr’s examination table’ at her, causing a bruise on her forehead.” (para 14). The mother reported this to the police. The father was charged, but this was later withdrawn in the spring of 2020. As part of his required terms based on the charge, he was prohibited from communicating with the mother unless it related to the children. He was not permitted to attend the mother’s residence except for picking up or dropping off the children.
From fall 2019 to spring 2020, the mother had yet to provide the father with parenting time due to the incident. Eventually, the parties entered an interim consent order for the father to have parenting time every second weekend.
Then the parties applied for different parenting time regimes in 2021, as set out above.
The court preferred the mother’s evidence, as the father had tried to dissuade some witnesses from testifying.
The court also found that while the parties were together, the mother primarily took care of the children. The father’s involvement in childcare was minimal compared to the mother’s responsibilities.
The father also admitted that the mother was a good parent. However, he took issue with her position, claiming she had denied him parenting time and would not involve him in decisions concerning the children.
The mother raised concerns about the father’s parenting, claiming that he would not provide a consistent routine for the children and that they would spend too much time on digital devices.
Both parties claimed that they were not able to communicate with each other effectively. In particular, the mother claimed that the father would say that she was lying or accusing him and that he would scream and yell at her. There were also incidents in which the father would leave the mother at the grocery store’s parking lot and return 5-10 minutes later. The father claimed that this was done as a joke.
The court found that the mother’s allegations of verbal abuse were supported by the evidence of other witnesses, who said that the father would call her “fat,” “lazy,” and “a bad housekeeper” and would refer to her in a degrading manner by calling her “woman” and demanding her assist him. The father considered this behaviour to be done jokingly as well.
With regards to the demeaning comments that the father made to the mother, the court noted in para 98:
 […] I do not believe the Father’s denials. Using humour to demean another person for your own amusement is the mark of a bully. Cloaking demeaning comments in the guise of humour does nothing to negate their harmful nature, and constant repetition of such comments can be destructive to the self-worth, personal integrity, and dignity of the person against whom the comments are directed. I find that the Father was emotionally abusive to the Mother in verbally and otherwise demeaning her, including in front of the Children and other people. I find that this would have a significant impact on the ability of the Parents to cooperate in making decisions together. Furthermore, such conduct modelled poor behaviour for the Children on how they should relate to others, particularly in a spousal relationship.
Also, the court found that the parking lot incidents were examples of the father exerting power and control, which did not allow the parties to make joint decisions concerning the children.
While the court found that the mother did deny parenting time, the judge found that this was justified to some degree, as she was trying to protect the children’s emotional safety. There was evidence from the children’s counsel that while they wanted to spend more time with both parents, they were aware of the negativity between the two parties, which caused stress for both children.
Regarding decision-making, the father demonstrated that he could not look out for the children’s best interests, as he had refused to consent to some free extracurricular programs for the children that the mother had raised. The court found that he was trying to exert power through decision-making and was unwilling to cooperate with the mother for the children’s extracurriculars.
The father also recorded some of the exchanges, which the court gave little weight to. The judge ordered the recordings to cease, as they contributed to the hostility between the parties and was an indicator of disrespect to the other party. Again, this was evidence that the parties could not cooperate.
Ultimately, the court denied shared parenting and joint decision-making based on the lack of cooperation between the parties. The children were to primarily reside with the mother, given her significant history as the primary caregiver for the children, unlike the father. The mother would also make decisions on behalf of the children. The father was to have parenting time with the children every second weekend.
When going through a divorce, each parent may have their own ideas of what is in the child’s best interests, especially regarding health, education, extracurriculars, and more. The parties may also have different ideas for what may be an appropriate parenting time schedule. There may also be some degree of family violence that prevents the parties from co-parenting collaboratively. Our family law lawyers at Mincher Koeman are experienced in representing parties in high-conflict cases involving parenting time and decision-making. Our Calgary family law lawyers are dedicated to finding the best resolution for you and your children.
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