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"Being a parent means all of this, and so much more." Child custody access common sense leads to shared parenting order.

R.B. v. A.H. is an interim child custody access decision from the Newfoundland and Labrador Supreme Court. It is remarkable for some startling yet what should be patently obvious observations with respect to the importance of maintaining children's bonds with both parents in a meaningful way.

The child was 2.5 years old. Mom made false allegations against dad and his family. Notwithstanding a very restrictive court order of access for only 12 hours per week spread over three days with only four hours each day, this December 2018 decision greatly expanded dad's residential time to a quickly phased in regime of 72 hours per week.

Each week contains 168 hours. Dad emerged from this child custody interim motion with 42.8% of the residential time that included three out of seven nights per week that were surrounded by continuous 24-hour periods. And dad achieved a "shared parenting" order as well.

What led to such an auspicious interim outcome for dad? There are lessons to be learned from the facts of this case:

1. Mom failed to attend the scheduled trial. So Dad successfully moved for greater time.

2. Mom made numerous unsubstantiated and unverified allegations against Dad and his family members - both in Court and to the child protection authorities.

3. Mom's affidavit evidence at the motion focused on Dad's alleged bad behaviour towards her. Mom all but ignored the needs of the child.

4. Dad's affidavit evidence focused on the needs of the child in accordance with the factors laid out in the Children's Law Act. He focused on the legislated factors that a court must consider in such cases.

5. Dad's affidavit evidence described his relationship with the child and how expanded time would enhance the child's life. As the motions judge summed it up: "He focuses on his son and not on the parent's relationship with each other."

The judge would have none of mom's status quo argument. Mom had created the status quo and sought to perpetuate it by failing to show up for the trial. The judge stated (paragraph 74):

There is no presumption in favour of the status quo. The current situation has gone on for two and half years based on largely unsubstantiated complaints. Her submission might have more weight if she had not deliberately failed to attend the trial. The trial should have been finished. The Court may have issued a decision. G.H. should not continue to suffer the loss of his father's affections because of his mother's actions to thwart resolution of the matter. [author's emphasis added]

But just as there is no status quo presumption, the judge would equally not buy into a presumption of joint custody and equal shared parenting (which readers of this blog will know is the author's position). At paragraph 32 the judge wrote:

Section 26 of the Children's Law Act, R.S.N.L 1990, c. C-13, provides that R.B. and A.H. are equally entitled to custody of G.H. However, there is no presumption for joint custody and equal sharing of parenting. The Court of Appeal rejected this proposition in Pumphrey in the divorce context and in MacDonald v. MacDonald (1998), 161 Nfld. & P.E.I.R. 39, 36 R.F.L. (4th) 257 (Nfld. C.A.), in the Children's Law Act context. Furthermore, even if both parents acknowledge the other is a "fit" parent this does not necessarily lead to equally shared parenting.

Nonetheless, I maintain that this case is still a wonderful addition to the law of shared parenting. Why? Please read the judge's observations at paragraphs 20 to 24:

20 For all of his short life, G.H. has never spent more than four hours in a row with his father. This calls into question, what is the impact on G.H.?

21 Being a parent means putting him to bed when he is tired, comforting him when he wakes and consoling him when he is sad. Being a parent means hugging him when he is lonely, feeding him when he is hungry and cleaning him when he is dirty. Being a parent means all of this, and so much more. [Author's emphasis added]

22 Being a son is to have all of this, not only from your mother but also from your father.

23 G.H. has had little access to his father because his mother alleges that R.B. is not a fit parent.

24 While I cannot turn back time and restore to G.H. what he has lost, I can stop this loss from continuing. I will do so, but only if I am satisfied that it is in G.H.'s best interest. Thus, a delay of four months, and possibly much longer, will likely cause G.H. irreparable harm. For a two and a half-year-old, four months is an eternity. [Author's emphasis added]

These poetic and heartfelt words from a Supreme Court Judge should be cited again and again in similar cases across Canada. They contain great wisdom and common sense.

The judge correctly approaches the issues from the child's perspective. Depriving children of one parent is not to be condoned. This judge most eloquently sets out just how important it is for children to enjoy relationships with both parents.

And that attitude, I maintain, is the essence of the movement that I have been involved in for so many years - that there should be a rebuttable presumption in favour of equal shared parenting. Simply put - generally speaking, ESP is best for most kids.

Newfoundland's Children's Law Act sections cited - namely 26 and 31 are practically identical to Ontario's Children's Law Reform Act sections 20 and 24. There are some minor differences but overall they are so similar that I maintain that this Newfoundland case could and indeed should be cited in Ontario and in other jurisdictions with similar legislation.

Do you wish to be a better parent? Do you wish to maximize your child's time with its parents in the family law context? Then learn the lessons from this case.

  • Focus on your child's needs.
  • Focus on the merits of your own parenting.
  • Don't make outlandish unprovable allegations.

And I'll add this lesson of my own just for good measure - Resist the temptation to respond in kind to a hostile/aggressive parent's venom.* Be child focused. Certainly deny the nasty allegations against you (if they are indeed untrue) but focus on parenting rather than on inter parental conflicts.

* This blog post, like all of my posts, does not constitute legal advice. Each case is different. You should obtain competent family law lawyer advice before relying on any of the views expressed in this blog post and in others.

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