Shared Parenting

In the case of Hammond v. Nelson, Justice Chipman created a non-exhaustive list of what the court should review and analyze when one parent is seeking an order for shared parenting.

In his analysis of the eight relevant considerations, Justice Chipman states:

Nova Scotia Courts have determined shared custody arrangements require an even greater level of cooperation and communication between the parents than joint custody arrangements. Parents must not only foster and encourage meaningful, regular, and frequent contact between the children and the other parent, but they must also cooperate in providing similar routines and value systems in each household for the children.

The eight considerations that a court should take into account when ruling on a shared parenting order are as follows:

1. In different circumstances would the Court consider each of the parents to be an appropriate "primary parent?" Equal joint and shared custody essentially places both parties in that position.

2. If a parent resides with a partner the Court must be satisfied that the partner is fully supportive of the parenting plan, that the child and the parent's partner have a good relationship, that the parent's partner is an appropriate secondary support to the parent and is a suitable role model to and influence on the child. Evidence of instability in the relationship between the parent and his/her partner may also be a consideration.

3. Does anyone else reside with the parent, such as other children, roommates, or boarders, and if so, what would be the effect of their presence in the same household on the child?

4. Do the parents live in close proximity of each other? A shared parenting arrangement should not be at the expense of the child's ability to maintain relationships with his/her peers. Ideally the residences of the parents should be sufficiently close to each other. The child, when old enough to be outside the home without the direct supervision of her or his parents, should be able to easily walk from one parent's home to the other, should be able to maintain friendships in his/her neighbourhood, and be able to go to and from school as easily from one parent's home as the other. If the parents' homes are not in close proximity it is more than likely the child's social network will suffer.

5. The age, maturity, and personality of the child and how those factors may impact the child's ability to cope with shared custody. If a child is very young such that they are napping and/or breastfeeding then shared parenting may not be workable. Further, the younger the child the more dependent the child is on the parents for transportation, social activities, and the like. Older children tend to be more resilient, independent, and more able to go from one parent's home to the other and to connect with their friends. Also, some children may adapt to a shared parenting arrangement more easily than others. Every child is different. While efforts should be made to minimize costs, the opinion of an expert in this area would almost always be helpful to the Court.

6. The wishes of the child if ascertainable. The child's preference is often relevant and the weight to be given to the child's opinion would, as always, depend on, among other things, the age and maturity level of the child.

7. The communication level between the parents and their ability to cooperate with each other and make decisions together. It is easy to say that parents should put aside their differences and do what is necessary to serve the best interests of their children but the Court must recognize human nature for what it is. Many couples are able to set aside their personal differences for the sake of their children and frequently are able to agree upon a shared parenting arrangement that works for them and their children. The Court sees it in agreements that accompany consent orders. However, frequently parents whose relationships have broken down are unable to achieve the necessary degree of cooperation in spite of their best efforts. A shared custody arrangement requires an unusual level of cooperation between the parents on a day in and day out basis. As Justice Coady said in Bryden (supra), it is "the rare case, the rare parents, and the rare children" who can make shared parenting work.

8. Ultimately the Court must consider what is in the best interests of the particular child who is the focus of the inquiry. It is difficult to argue against the fairness of shared parenting. If a parent truly loves his/her child and wants and is prepared to parent them, then it would seem completely unjust to them to have to accept anything less than an equal opportunity to do so. The Court's focus however is on the child. The wishes of the parents, although important and require serious consideration, come second to what the Court believes is best for the child (Hammond v. Nelson).

To learn more about shared parenting as well as the services provided by Krol & Krol, call 905.707.3370 today.