Children who have healthy relationships with both of their parents tend to have better emotional, social, and cognitive development. Although parents may not always agree about how to parent their children, children who maintain strong bonds with both parents are more likely to develop healthy communication and problem-solving skills and tend to have greater self-esteem and resilience. Regular interaction with both parents provides children with a sense of security and stability that they need to thrive in their childhoods, and later on as adults. 

Making parenting arrangements is a priority after a separation or divorce, but it can be emotionally charged and challenging when both parents are feeling hurt, angry, or fearful of “losing” their children. In such situations, using family lawyers and/or a mediator to facilitate the process can be helpful. By focusing on their children’s needs and best interests (rather than their own needs and wishes), parents can work together to minimize the impact that their separation will have on their children. 

Creating a Parenting Plan

A shared parenting arrangement refers to a parenting schedule in which both parents care for the children at least 40% of the year after separating their households. In typical shared parenting arrangements, the children are with each parent 3-4 days out of the week, or they are shared on a week on, week off basis. The BC Family Law Act and Federal Divorce Act no longer use the term “custody,” however, shared parenting time was previously referred to by many people as “shared custody” or “joint custody.”

There is no legal presumption that a shared parenting arrangement is in a child’s best interests. Shared parenting is not always appropriate or feasible in all situations, particularly in situations involving domestic violence, substance abuse, emotional abuse, or mental health concerns. In these cases, the court may decide that one parent should have primary care and may require the other parent to attend courses or have supervised access.

In the absence of these concerns, most experts agree that children benefit from having relatively equal time with both parents, as long as both parents are willing and able to provide a loving, safe, and nurturing home for the children during their parenting time. 

When making an order or award regarding parenting arrangements, a judge or an arbitrator is only permitted to consider the children’s best interests. The factors that will be considered are listed under section 37 of the BC Family Law Act and section 16(3) of the Federal Divorce Act. 

In summary, a child’s best interests will be determined by assessing: the child’s needs; the child’s views, to the extent that it is appropriate to do so, given the child’s age, maturity, or influence of either parent; the nature and strength of the child’s relationship with each parent; the child’s ability to maintain relationships with siblings, grandparents, or any other person who plays an important role in the child’s life; each parent’s willingness and ability to support the child’s development and relationship with the other parent; the ability and willingness of the parent to communicate and cooperate with the other parent on matters affecting the child; the history of care of the child; the child’s need for stability; the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage; and family violence, if applicable, including its impact on the child’s safety, security or well-being. 

A parenting arrangement is not in the best interests of a child unless it protects, to the greatest extent possible, the child’s physical, psychological and emotional safety, security and well-being. If parents are in a high-conflict relationship but they are both excellent parents, they may be required to “parallel parent” their children in a shared parenting arrangement. This usually requires a very specific written agreement or court order to minimize the communication required between the parents. Transitions between parents are often minimized in a parallel parenting arrangement, or the children might be dropped off with a third party (such as a daycare or school) and then later picked up by the other parent to reduce interactions. 

Both the Divorce Act and the Family Law Act confirm that the previous conduct of either parent is irrelevant unless the conduct substantially affects a child’s best interests, and only to the extent that it affects the child’s best interests. For example, one parent might be furious with the other parent for having an affair, but a judge will not consider that to be relevant unless the affair has, or is significantly likely to, substantially affect the child’s well-being. 

Alienation and Estrangement

Sadly, it is not uncommon for separating spouses to unintentionally harm their children by speaking negatively about the other parent to the children, or by engaging in disputes in the children’s presence. No matter how much a parent despises his or her spouse, children should never be forced to choose a side. Someone once aptly said that, “you need to love your children more than you hate your spouse.” The anger one may feel with his or her spouse will subside over time, but the damage caused to children caught in the middle during a separation can last a lifetime. 

Alienation and estrangement are common issues that family lawyers have to grapple with. Family reunification therapy involves long-term and very expensive counseling and often requires legal interventions. The financial and emotional toll that results from alienation causes unnecessary pain, stress, and confusion for the parents and the children involved. Parents who are unable or unwilling to separate their own best interests from the best interests of their children are strongly encouraged to proactively seek counseling. In extreme cases, a parent who refuses to stop alienating the other parent may temporarily lose access to their children while the children rebuild their relationship with the alienated parent. 

Family reunification is often complicated by the fact that one or both of the parents allege that the other has committed acts of family violence, while they each vehemently deny the accusations. Judges, lawyers, and mental health professionals must prioritize the safety and wellbeing of the children, but it can be difficult for unbiased outsiders to ascertain what really happened behind closed doors. Judges and arbitrators will rely on sworn Affidavits and oral testimony to assess the credibility of any unsubstantiated allegations of family violence. 

Family Violence

Family violence is defined in the Divorce Act as “any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person — and in the case of a child, the direct or indirect exposure to such conduct — and includes:

• physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person;
• sexual abuse;
• threats to kill or cause bodily harm to any person;
• harassment, including stalking;
• the failure to provide the necessaries of life;
• psychological abuse;
•  financial abuse;
• threats to kill or harm an animal or damage property; and
• the killing or harming of an animal or the damaging of property.”

In the BC Family Law Act, family violence is defined as:

• physical abuse of a family member, including forced confinement or deprivation of the necessities of life, but not including the use of reasonable force to protect oneself or others from harm;
• sexual abuse of a family member;
• attempts to physically or sexually abuse a family member;
• psychological or emotional abuse of a family member, including:
• intimidation, harassment, coercion or threats, including threats respecting other persons, pets or property,
• unreasonable restrictions on, or prevention of, a family member’s financial or personal autonomy,
• stalking or following of the family member,
• intentional damage to property, and
• in the case of a child, direct or indirect exposure to family violence;

​​In considering the impact of any family violence, the Divorce Act requires judges to take the following considerations into account:

• the nature, seriousness and frequency of the family violence and when it occurred;
• whether there is a pattern of coercive and controlling behaviour in relation to a family member;
• whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;
• the physical, emotional and psychological harm or risk of harm to the child;
• any compromise to the safety of the child or other family member;
• whether the family violence causes the child or other family member to fear for their own safety or for that of another person;
• any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and
• any other relevant factor

Parental Responsibilities and Decision-Making

Under the BC Family Law Act, “parental responsibilities” include:

1. making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child;
2. making decisions respecting where the child will reside;
3. making decisions respecting with whom the child will live and associate;
4. making decisions respecting the child’s education and participation in extracurricular activities, including the nature, extent and location;
5. making decisions respecting the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including, if the child is an Indigenous child, the child’s Indigenous identity;
6. subject to section 17 of the Infants Act, giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the child;
7. applying for a passport, licence, permit, benefit, privilege or other thing for the child;
8. giving, refusing or withdrawing consent for the child, if consent is required;
9. receiving and responding to any notice that a parent or guardian is entitled or required by law to receive;
10. requesting and receiving from third parties health, education or other information respecting the child;
11. subject to any applicable provincial legislation,
12. starting, defending, compromising or settling any proceeding relating to the child, and
13. identifying, advancing and protecting the child’s legal and financial interests;
14. exercising any other responsibilities reasonably necessary to nurture the child’s development.

Under the Federal Divorce Act, “decision-making responsibility” refers to a parent’s authority to make decisions with respect to the children’s health, education, culture, language, religion and spirituality, and significant extracurricular activities.

If both parents agree to share decision-making / parental responsibilities (or they are ordered to do so), the parties may be required to attend mediation or retain a Parenting Coordinator in the event of a dispute. Without a dispute resolution mechanism in place, the status quo will generally remain in effect unless either party files a court application. For example, if one parent wants to change a child’s school from School A to School B, and the other parent wants to change the child’s school from School A to School C, the child will remain in School A unless otherwise agreed between the parties, ordered by a court, or directed by a Parenting Coordinator or arbitrator. If the status quo is not possible because School A is no longer an option for whatever reason, the parents may need to resolve the issue quickly and neither parent is at liberty to unilaterally make a decision against the other’s wishes. If parents  repeatedly experience minor issues that cannot be resolved by consensus, retaining a Parenting Coordinator is often an efficient and cost-effective alternative to numerous court applications. 

In some cases, one parent may be awarded sole decision-making / parental responsibilities, subject to his or her obligation to consult with the other parent prior to making decisions. In the event of a dispute, the parent with sole decision-making / parental responsibilities would be at liberty to have the “final say” about the decision. In rare cases, consultation is not required and the parent with sole decision-making / parental responsibilities is only required or encouraged to inform the other parent of his or her decision(s). This is usually ordered if the child and/or parent with sole decision-making / parental responsibilities is the victim of the other parent’s abuse, whether psychological, physical, sexual, or financial.