A right of child custody. Don’t overlook the duty.

 In Brian Warrington, Family Law

A recent Alberta decision confirms a family court will deal harshly with non – cooperative parents. Justice Labrenz in SJB v. RDBB, 2019 ABQB 624 pgs 6 – 10, noted the Father’s post separation behavior and, with the children’s best interest in mind, limited both the Father’s parenting time and decision making (child custody). The father was not attuned to the children’s special needs, was in arrears of child support, had regularly declined the Mother’s child travel requests, and had openly criticized the Mother’s religion. Accepting the Mother’s suggestion, the Judge agreed that decision making, the principal decisions of the children’s welfare, now rest with the Mother in the children’s best interest.

The court expressed the importance of maximum child contact to both parents, specified in the Divorce Act, however that principle must accord with the children’s best interests. Consequently, if a parent cannot work with another parent, disputes expose children to acrimony. To order otherwise, cited the court, a child’s interests are not served by imposing a parenting regime which invite continued court activity.

With such a long list of uncooperativeness, the decision is not a surprising one. No, the Father did not lose his right of joint custody per se. But this joint custody is now in title only. The Mother has no obligation to consult the father in matters of either the children’s health, or education or other principal matters. The court essentially reduced this parent to a mere spectator – with specified child access – implying that the father brought this on himself.

Divorcing Alberta parents should take heed. Although a hard lesson to learn, an unwillingness or inability to get along can have this consequence. It is the experienced Alberta family lawyer however who takes the time to summarize what custody entails and thoroughly educate their client.

Too often joint custody is a term bandied about without a proper understanding. But child custody has a very real and comprehensive meaning defined in a host of decisions Canada wide. Joint custody obliges a number of things, not the least of which is a duty to consult another parent. Need to change day care or school? You need permission. Want to vacation out of country with a child? Get permission. Need braces or a prescription or change a child’s dentist or doctor? Get permission. These decisions, regardless of who exercises primary care post separation, is no different to the relationship itself. Either parent must, by law, consult and obtain permission from the other and prior to taking a significant step in a child’s best interest. And a consult, means a parent has notice, and proper notice. So too with the children’s progress, whether academic or health or anything of significance. What one parent knows, or comes to know, must, by law, be passed on immediately to the other parent. Joint custody therefore is really best thought of not just a parental right, but also a very real comprehensive and proactive duty: Your right to raise a child yes, but your duty to work, work with, negotiate, compromise and notify the other parent.

Generally, a change in school, a need for braces, or an academic tutor is not cause for conflict. And most parents, exercising common sense, make their own arrangements, keep the other informed and need not consult a lawyer. The law, in respect of an exercise in joint custody of a child, the decisions in a child’s best interests therefore, rests, and continues to rest, with both parents.

In SJB v. RDBB the Judge noted that the Father had a history of uncompromising behavior, resulting in needless and endless litigation. Mediation was ineffective and the Father had even failed to contribute to the mediator’s costs. Not being just minor disputes, Justice Labrenz characterized this parent as incapable of working with the Mother. The privilege of joint custody therefore, a presumptive right, was breached by the Father’s inability to also observe a duty of joint custody.

Given that the conflict had occurred over a period of time, that it went to trial, it is a wonder why the father did not adopt a difference attitude and much earlier. If he ever knew that child custody means more than invoking a right, as in a right to parent, neglecting a duty had its’ consequences.

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