An experienced family lawyer shares his tips to help families navigate during a difficult time
Simply saying the words “child of divorce” invokes universal sympathy. The dissolution of the family unit can challenge the security, happiness and well-being of everyone involved, but it’s often hardest on the children caught in between two parents. Who doesn’t want to see their child as much as possible?
When navigating this difficult path, the best interests of the children is all that matters, says Doug Simpson, partner at CBM Lawyers and head of its family law department.
“The simple fact that parents disagree does not prove that one parent has the true perspective on what is in the child’s best interest and the other does not,” he says. This may just mean the issue is complex and multifaceted. Another important consideration is that the status quo shouldn’t necessarily dictate what is in the child’s best interest, post-separation. "Parental roles have been evolving on this front for decades, and they may need to evolve yet further as parents co-parent, post-separation," he adds.
Who makes the decisions?
Views of the children themselves are important, explains Simpson, and must be considered, but parents shouldn’t defer all decisions to the children. They’re often simply too young to make such heavy decisions. “The parent still has to be the parent and exercise parental responsibility, which means giving appropriate weight and all due consideration to the views of children; not letting them call the shots.” Which pea puree to have for the afternoon snack, sure! Which parent to live with for the rest of elementary school? An unfair burden for any child to be saddled with.
“In extreme cases of parental estrangement, the solution is not to be content with a child who decides they want no contact, ever, with the other parent,” says Simpson. “The court will usually want to know what is behind such an extreme reaction and look at ways to repair the relationship.” For the child’s sake, parents need to recognize the importance of children having a relationship with each parent.
Considering shared parenting
Another thing to note, is that if you were to get a divorce today, there is no automatic presumption in favour of one parent or the other, or in favour of 50/50 shared parenting time. However, as this plays out in the courts, unless there are some sort of major red flags or disqualifying considerations, most judges will be open to a gradual move towards shared parenting. The speed at which this happens will vary depending on how old the children are.
“There is no reason why even quite young children can’t have overnights with the other parent,” explains Simpson. “However, there should be some sensitivity to the age of the child and degree of attachment of a very young child to, in most cases, the mother.” Obviously, the younger the child, the time away from the other parent should be of shorter duration, and special considerations for infant children, who may still be breastfeeding, need to be kept in mind.”
Simpson, who has practised family law exclusively since 2003, previously had one case where the dad was seeking 50/50 time with a child who was only four months old. In this instance, the court was prepared to allow overnights, but under tightly controlled circumstances and made sure there were regular reviews to examine if increased parenting time was appropriate.
“I have had numerous cases with very young mothers where the father is also quite young and both are quite new to parenting,” says Simpson. “In these cases there is often a battle over the child with the mom being convinced the child is not going to be well cared for, and the dad arguing he was trusted before to do so and has adequate family support to ensure there are no problems. These cases usually have the court finding a happy medium of weaning the mom off of her overprotectiveness and getting the dad accustomed to the demands of parenting.”
Act like a parent
Another important consideration for parents post-separation, is that trying to block the other parent from parenting time without good reason will usually attract a stern rebuke from the court, and, in extreme cases, can actually lead to a loss of custody. “I was once in court and saw a judge scold a mother who was arguing that she felt unable to make her defiant child see the dad because of the child’s reaction, which was too much for her to deal with,” recalls Simpson. “The judge basically told her, you are the parent, act like it and make it happen.”
CREATED BY BCLIVING, IN PARTNERSHIP WITH CBM LAWYERS