Communication While Co-Parenting
One of the most challenging hurdles to overcome when going through a divorce is how to effectively co-parent with your ex-partner. An essential component of co-parenting is productive and non-confrontational communication with your ex.
As with any parenting case, the case will turn on the best interests of the child, which means a court will consider the factors in s.16 of the Divorce Act, Canada or section 18 of the Family Law Act, Alberta. Specifically related to the parties ability to communicate is s. 16(3)(c) of the Divorce Act,” each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse” (The Family Law Act, Alberta equivalent found in section 18(2)(b)(viii)(B)).
Although communication is just one of many section 16 factors a court will consider, it will be given weight where there is evidence of one parties’ inability to communicate without inciting conflict, or where there is a history of parental alienation.
Alberta courts have provided guidance on appropriate communication between co-parents in many instances, a few notable cases including the following:
MG v SH, 2022 ABQB 533
- In MG v SH the mother, who resided in Texas, brought an application for primary parenting of the 8-year-old child. One of the factors considered by the Honourable Justice Avril Inglis was section 16(3)(c) of the Divorce Act, Canada specifically the mother’s “careful, constant, and deliberate” communication.
- Justice Inglis did however note that high-level communication
- “…is both admirable and problematic. Admirable, given the amount of time and attention she devotes to her connection with her son when they are separated for extended periods. Problematic, as this conduct can show a lack of trust and a failure to respect the boundaries between herself and SH (the father)” (at para 61).
- This decision demonstrates that effective communication requires ongoing balancing between parties.
- In the end however, the mother’s application for primary parenting was granted.
What is “crystal clear” in the case law is that failure to communicate is detrimental to an application for shared parenting.
The case law related to same was concisely summarized in Gordon v Brown, 2018 ABPC 44:
- “The Court, in making a variation order, shall only consider the best interests of the child as required by s. 18 of the FLA. In the case at bar, what is crystal clear is that there has been virtually no communication whatsoever between these parents and, from the updated evidence, this child is beginning to experience difficulties with his emotions and his regulation, both at school and at sporting activities”.
- In assessing the parenting arrangement between parties who struggle to communicate, the Honourable Judge N.W. D’Souza cited Shaw v Shaw, 1997 NBJ No 211 for the following relevant factors a court will consider when determining the best interests of the child:
- Which parent appears most prepared to communicate in a mature and responsible manner with the other parent; and
- Does either parent appear more prone to litigate than communicate or negotiate?
- Judge D’Souza further held that “parenting with any premutation is not in the child’s best interests where the parents cannot communicate and cooperate. It is more likely that day-to-day parenting then will be given to the guardian who is able to communicate with the other guardian” (at para 183, citing TS v AVT, 2008 ABQB 185).
Where there are communication difficulties between parties it is common for a mediator/arbitrator to order that parties communicate using some sort of co-parenting software such as Our Family Wizard, which permits parties to schedule expenses and keep track of all communication on a secure platform.
If you and your ex-partner are having challenges co-parenting the Family Lawyers at Vogel LLP can direct you to the appropriate remedies and resources in order to ease some of the burdens of parenting.