On behalf of Osuji & Smith posted in Family Law on Tuesday, October 22, 2018.
Parenting arrangement is often difficult to negotiate. If the parties fail to negotiate the schedule, and litigate the parenting time, the court will consider the best interests of the child(ren). They want to “ensure the greatest possible protection of the child’s physical psychological and emotional safety” in light of the child’s needs and circumstances [s. 18 of the Family Law Act]. This is obvious because parenting time will affect the child mostly, not the parents.
A case, Babich v Babic, 2015 ABQB 497, shows how important it is for a moving party to show how his or her proposed parenting reflects the best interests of the children.
In this case, the parties enjoyed shared parenting regime for about two years. This harmonious relationship ended in 2013 when the Director of Child and Family Services became involved. The Director was of the view that the mother’s new partner placed the children at risk. According to the Director, the partner physically and emotionally abused both the mother and the children. However, in the face of the Director’s view, the mother attempted to protect and preserve the relationship with the partner, rather than choosing to protect her children.
In March 2015 and July 2015, the Court heard the mother’s application to reinstate the shared parenting arrangement. The court quickly dismissed this application because the mother’s evidence did not clearly indicate why the shared parenting arrangement was suitable and in the children’s best interest.
Rather than providing meaningful information to the court in relation to stable family environment, the mother only set out a “litany” of complaints about the father’s behaviour. This was not enough. Here are some passages that show how frustrated the court was and how badly the court wanted to see more meaningful evidence:
Para 7:
In the past, I have commented upon her tragic taste in men. Ms. Babich appears to have an abiding need to have a partner in her life. In the past, her choices have been poor. The lingering impression that I have about her is that she still cannot grasp the need to be selfless in relation to making decisions regarding her children. She still puts her interests, if not above those of the children, at least on an equal footing. She has to put the interests of her children above her wants and desires. Until I am convinced that this is the case, a return to a shared parenting arrangement would not be appropriate.
Para 16:
Ms. Babich’s past history with partners raises legitimate concerns with the court in relation to what is in the best interests of her two sons. The reassurance sought was that the welfare of these boys will not be compromised by this new relationship. Ms. Babich has been given ample opportunity to provide evidence that addresses the concerns that have been brought to her attention. She has failed to do so. She appears to be of the opinion that the mere passage of time will be enough to expunge any concerns the court may have about her ability to re-engage in a shared parenting regime. More is needed. The onus is upon her to convince me that shared parenting should be reintroduced. She has failed to do so.
In paragraphs 10 and 11 of this decision, the Court further illustrated its desire to see the cooperation of the parents:
Para 10:
This has been a most difficult file to case manage because the parties cannot recognize the obvious solutions that are available to them and they continue to ignore what is in the best interests of the their sons. Their sons want nothing more than to have harmony between their parents so that they can live as normal a life as possible. Instead, they have been exposed to continuous conflict between their parents and the constant intervention of outside agencies that create a most unhappy environment for these boys. This is most unfortunate as each parent loves the boys dearly. The boys want to spend time with both parents. It is in their best interests that they have fulsome meaningful relationships with their mother and father.
Para 11:
The parties have a great deal of difficulty in communicating with one another when it comes to their sons. They do not know the meaning of the word “co-operation.” They continue to underestimate the terrible affect that their behaviour has upon their sons’ wellbeing. They act in a fashion that is contrary to their children’s best interests.
