Past Conduct And Access Time

Often times clients come in to our office and give us, what they believe to be, a number of reasons why the parties should not have equal shared parenting of the children. Most of those reasons tend to be alleged vices or personal issues that the other party may have (i.e. anger management or substance abuse).

Section 16(9) and 16(10) of the Divorce Act are often sections that we point out to our clients when these issues come up.

Section 16(9) indicates that in making any order for custody the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent. This section has been adjudicated by courts in Alberta and it has been held that only where the prior conduct directly affected the children, or that person’s ability to act as a parent, will it become a factor for the court to consider. Where no specific harm is identified as having come to the children as a result of the alleged conduct that conduct may in fact not be determinative of whether or not the person is an appropriate candidate for equal parenting or becoming the custodial parent.