How Young is Too Young for Shared Parenting?
While “shared parenting” sounds like it refers to a 50/50 split in parenting time, it is actually any parenting arrangement where neither party has the child or children for less than 40% of the time (i.e., a 40/60 split is shared parenting).
Anyone with young children can sympathize with their need for stability and routine. This begs the question, how young is too young for a shared parenting arrangement according to Alberta courts?
In TJG v CLL, 2018 ABQB 265 at para 29, Justice Hollins contemplated the potential damage that separating a young child from their primary caregiver could do, saying that it may be emotionally and developmentally disruptive for the child. Despite this determination, Justice Hollins ordered that shared parenting, in this case a week on/week off parenting arrangement, was in the best interests of the two children who were ages 7 and 9 at the time.
Where a parent has played a significant role in the child’s life since birth, this will factor into the court’s determination of shared parenting for young children. This was the case in CAS v NPC, 2020 ABQB 421 where the children were 2 and 4-years-old. In CAS v NPC, Justice Lema found that Alberta courts have approved shared parenting for very young children and cited the following cases:
- In Parsons v Parsons, 2014 ABQB 586Justice Little ordered shared parenting for a 1-year-old.
- In Botticelli v Botticelli, 2009 ABQB 556Justice Veit ordered shared parenting for a 22-month-old.
- In Eberle v Pascoe, 2009 ABQB 137Justice Acton ordered shared parenting for a 2-year-old.
- In Lowes v Lowes, 2012 ABQB 147Justice Lee ordered shared parenting for a 2 and 4-year-old.
- In AH v KC, 2018 ABPC 196Judge Zalmanowitz ordered shared parenting of a 3-year-old.
There are, however, Alberta cases where courts have refused to order shared parenting for young children. For example, in Witherly v Witherly, 2017 ABCA 213 the Court of Appeal refused to overturn the decision of Justice Inglis where it was held that 50/50 shared parenting of a 4-year-old would not be in the child’s best interests due to his age and need for a routine.
In other cases, such as Richter v Richter, 2005 ABCA 165, where the child was 2-years-old, and Morison v Morison, 1999 ABQB 1079, where the children were 5, 4, and 1-years-old courts have refused to order shared parenting due to the high conflict nature of the parents’ relationship. Other cases in which shared parenting has been refused include where the parents reside in different cities or have a long commute (e.g. Unrau v Freake, 2011 ABQB 663 (2-years-old) and KEW v CRM, 2005 ABQB 426 (almost 4-years-old)).
In CAS v NPC, Justice Lema cited American psychologist Richard Warshak for the general rule that shared parenting is a viable option in most cases, and with most young children, where there is no negligence, abuse, or grossly deficient parenting.[1]
Recently, in Painchaud v Painchaud, 2020 ABQB 688 Justice Dunlop held that shared parenting was not in the best interests of the child, who was 4-years-old at the time, for three primary reasons:
- There was parental conflict, for which both parents were at least partially to blame;
- The father had not previously exercised his full parenting time, which was found to cast doubt on his willingness and ability to assume shared parenting; and
- Justice Dunlop found that a move to shared parenting would be a drastic and disruptive change for a child this young.
In summary, an award for shared parenting will be context dependant and will turn on the best interests of the child. The Family Law Lawyers at Vogel LLP are experienced in all areas of family litigation and can answer any questions about Alberta courts and their determination of the best interests of the child.
[1] Stemming the Tide of Misinformation: International Consensus on Shared Parenting and Overnighting, 30 Journal of the American Academy of Matrimonial Lawyers 177 (2017) at 203