Calgary family lawyer Charles Fair discusses this hot parenting topic.
Charles Fair has been practicing law for nearly 30 years and founded Fair Legal because he is passionate about helping others, ensuring their rights are protected and that they are treated fairly. Fair Legal deals with Criminal, Family, and Civil Litigation matters.
Partnered with the Canadian Centre for Men and Families, Fair Legal provides monthly webinars on topics dealing with criminal or family matters.
WATCH: Parenting: What Is In The Best Interest Of Your Child?
Charles Fair: Yeah, this series is sponsored by the Canadian Center for Men and Families. It's an organization that is providing support for men who are going through the breakup of intimate relationships, and in tonight's session we're particularly dealing with the best interests of the children.
I am a lawyer at Fair Legal and we practice civil family and criminal defense work.
I'm gonna be making some comments of a general nature of the law this evening. Please note that this isn't legal advice. Everybody's circumstances is different and quite often the law changes, and we're doing this as a live webinar and, you know, maybe I might misstate something. So it's always important to get legal advice on your particular circumstances.
If you do have questions, again, just send a text to Melanie and then there'll be an opportunity afterwards, if we've got some time, for some questions, and she can ask the questions at that point.
So I thought that, tonight, I'd focus on what's in the best interest of the children. And I'm a lawyer. I'm not a child psychologist, or a social worker, or a parenting expert of any kind. I've had three boys of my own. That doesn't make me an expert. I've dealt with lots of families as a lawyer, but again, that doesn't make me an expert when it comes to parenting in this.
So what I am gonna do is focus on what the courts are looking for and talk about the process of what you're gonna be working with your lawyer when you are making an application to the court that affects children. And really what I'm gonna be saying applies equally to men and women, but some of the issues that I'll touch on tonight may resonate more with the Dads in the audience. Others may resonate more with the Moms. I do represent both Moms and Dads in family law matters.
That's why it's important to remember that this is not what's in the best interest of a particular child - or, sorry, a parent - but is always in the best interest of the children.
So, without further ado, we'll start off with this quote, courtesy of Melanie, she found this one: "It's not easy to raise a family. And it's challenging for single fathers." Not sure where it came from.
But anyways, let's start with the Family Law Act. Section 18 of the Family Law Act has a very general provision. It says: "In all proceedings under this Part - dealing with, basically, children's parenting orders - the court shall take into consideration only the best interests of the child."
So there it is. It's right in the Family Law Act. There's a similar provision in the Divorce Act. I'm not going to touch on all of the differences between the Family Law Act and the Divorce Act, but I am gonna touch on a couple of ones that I think are particularly important.
So tonight we're going to mainly focus on the Alberta Family Law Act and how it's set up. Again, most of the provisions are quite similar between the Alberta Act and the Divorce Act.
So: "In determining what is in the best interest of a child, the court shall (a) ensure the greatest possible protection of the child's physical, psychological, and emotional safety..."
So it's interesting because, traditionally, we would think of the notion of safety as being something that would relate primarily to physical safety. But in the Act, that's extended to both psychological and emotional safety.
Secondly, the court is to "consider all the child's needs and circumstances, including..." and then there's a long list of - and we're gonna go through as many of these as we can tonight.
So what are the needs and circumstances of the child that the court is to consider? Well, the first one is "the child's physical, psychological, and emotional needs, including the child's need for stability, taking into consideration the child's age and stage of development." I'm not an expert on the particular ages and stages issues, those do come out in particular cases, but this is the important part is you have to pay attention to where the children are at.
So, for example, the other day I was in court and the judge herself made mention of the fact that children up to the age of four shouldn't be away from either parent for more than two overnights. So younger children should have shorter times with each parent but as children get older the courts generally see that the children want a longer period of time with each parent. And, again, it's going to also depend on the child's individual needs.
The second consideration: "The history of care for the child."
So when you meet with your lawyer to prepare for a case, you need to have some idea, again, as to what your child's needs are, and you're going to have developed your idea of what those needs are because of how you have cared for the child in the past. And if you haven't had a significant involvement in the child's care, it's not an impossible task for you to move forward and get a parenting order because the courts recognize that it's in the best interest of the child, generally speaking, to have both parents involved, and sometimes additional adults in the child's life. And so, not having a fulsome history of care for the child is not the end of the picture. So if you're the Dad, and Mom has been a stay-at-home Mom and she's been doing primary care, doesn't mean that you don't have a shot at getting significant time with the child.
Oftentimes, what we see in separation is the parent that hasn't been as involved with the care of the child steps up to the plate and does want to have a more active role in the child's care, and the courts will support that. And often will encourage it.
I'm not gonna touch on this a lot: "The child's cultural, linguistic, religious and spiritual upbringing and heritage." I will note that sometimes there is conflict on these issues, and so it's not clear that, while there is recognition for these factors, it's probably worth a full webinar just on that topic alone. So I'll leave that one for now.
Again, this is another one that can be a little complicated. This is "the child's views and preferences to the extent that it is appropriate to ascertain them." What we often hear is, it'll be thrown out that, once the child turns age 12, that their wishes or their views and preferences will be considered. There is nothing written in stone about that age. It is really a question of whether it's appropriate in the case, in any particular case, whether this child's views and preferences should be considered.
I've had a judge say that he wanted to hear the views and preferences of a five-year-old. Sometimes children that are even over the age of 12, it may not be appropriate to ask their views and preferences. Although, obviously, the older a child gets the more likely it is that the court is going to consider that it is appropriate to ascertain those views and preferences.
Again, that's probably a topic that can use a full hour to discuss the various ramifications on that and how the court goes about determining what the child's views and preferences are without relying on what the parents are saying. Because you can imagine the parents often don't agree on what the child's views and preferences are.
Now this is a big issue. This is "any family violence including its impact on... and there's a number of things here. "(A) the safety of the child and other family and household members." Remember, safety is defined in a broad manner to include physical, emotional, and psychological safety.
"(B) the child's general wellbeing."
"(C) the ability of the person who engaged in the family violence to care for and meet the needs of the child."
And "(D) the appropriateness of making an order that would require the guardians to cooperate on issues affecting the child."
These are - I'll just go back here a moment - the items you see here, " the ability of the person who engaged in the family violence to care for and meet the needs of the child." What's interesting to note is that they're not saying here that somebody who has engaged in family violence cannot have any role in the parenting of the children. So, again, the court has to do an analysis - a careful consideration of the case - to determine whether the family violence has an impact on the ability of the person to care for and meet the needs of the child. And sometimes, if there has been a problem in the past, it may be possible to overcome some of those problems.
So, (D) the appropriateness - again, we discovered that. This can be of particular concern if there is intimidation, or physical violence, or fear between the parents, it would be difficult for the court to try to encourage those parents to cooperate on issues affecting the child for obvious reasons. Doesn't mean it can't happen, but the court would have to be very careful about that.
Family violence is defined in the Alberta Family Law Act. And I'm gonna go over the definition here, and then we're gonna take a look at some of the differences between the Alberta legislation, the Family Law Act, and the Federal Divorce Act.
So, first off, "behavior that's causing or attempting to cause physical harm to the child or another family or household member", kind of obvious that that's a traditional sense of family violence. But it doesn't have to be actual physical harm it's causing or attempting to cause. So, kind of makes sense. If the target of the violence escapes, it's no less traumatic than if they don't manage to escape.
So family violence includes "forced confinement or sexual abuse." It includes causing - and this would be the child or family member - to reasonably fear for his or her safety or that of another person.
Now under the Divorce Act there's a longer list. It includes "harassment, including stalking." It includes "failure to provide the necessaries of life." I just wanna make the comment that the Divorce Act also includes essentially very similar provisions to what's in the Alberta Family Law Act, and they go on to provide these other issues.
It's not clear to me that some of these issues would be entirely different in the Alberta Family Law Act. So, for example, harassment, including stalking, could well fit under the definition of - I'll just go back there to see it - causing somebody to have reasonable fear for his or her safety or that of another person. It may well be that, in a particular situation, the behavior is the same and it gets caught under both the Family Law Act and under the Divorce Act.
"Failure to provide the necessaries of life." There's similar language in the Family Law Act but this is just worded a little differently.
Psychological abuse is within the definition of family violence in the Divorce Act.
Financial abuse. And also, in the Divorce Act, there's reference to what's known as coercive and controlling behavior. And, in my opinion, this can give rise to some difficulties when one parent happens to be doing all the financial management, handles all the money issues for the family, does that mean that they are engaging in financial abuse because they are controlling? And when I've asked the question of the Department of Justice representative when these provisions first came into force, they, kind of, fudged on the answer. And I think that it's really going to be a matter of degree, in terms of determining what is actually coercive and controlling behavior.
This one is not specifically involved in the Family Law Act, but "threats to kill or harm an animal or damage property" and "killing or harming of an animal or the damaging a property." And that does come up from time to time. And I think that it would likely cause problems even if the Family Law Act is what - the applicable law. I suspect that some of these issues are still going to come up there, but there is some technical differences between the two Acts.
Point number seven, back to the Alberta Family Law Act, is "the nature, strength, and stability of the relationship." Not between the parents, but "between the child and each person residing in the child's household and any other significant person in the child's life."
So that may be an aunt, or uncle, or grandparent, or grandparents, that have a significant role in the child's life. There could even be a non-related party that is in the child's household and there may be some considerations there, although I suspect that there would have to be a very, very strong relationship if it was a non-biological relationship. But it really depends on the circumstances of the case.
Again, nature, strength and stability of the relationship "between the child and each person in respect of whom an order under this part would apply." So that is the relationship between the child and the parties - each of the parents or the guardians - that are in consideration under the Family Law Act.
This is sometimes known as the "friendly parent provision" that if there is hostility between the parties, that can spill over into the relationship between the children or between the child and the parent, and that can have an effect on decision making under the Family Law Act. And, in fact, under the Divorce Act.
The ability and willingness of each person in respect of whom an order under this Part would apply. To care for and meet the needs of the child. And to communicate and cooperate on issues affecting the child.
So, again, going back to when you're preparing a case with your lawyer, obviously you wanna cover off the ability to care for and meet the needs of the child. If you're always out of town, up north working, it may be very difficult for you to care for and meet the needs of the child.
"(B) to communicate and cooperate on issues affecting the child." I gotta tell you, this is a source of a great deal of difficulty because the courts want the parties to communicate and cooperate on issues affecting the child. We've seen that there's cases where family violence may be a factor making it difficult to expect the parties to communicate and cooperate. But even when there isn't family violence, there is still a need to - or there still can be problems with communication and cooperation. And sometimes what happens is the parties are trying to prove to the lawyers of the court that it's not them that's the problem, it's the other parent that's the problem.
If you find yourself in this situation where there is very poor communication and cooperation between the parents, I'm gonna say that my personal approach to this is to say that there is always things that you can do to improve the communication and cooperation between you and the other parent, whether or not the other parent is in agreement with wanting to communicate and cooperate better. I think that it is too easy in many situations to simply focus on the misbehavior of the other parent and not look at things that you can positively do.
Just to give a little personal story on that, I went through my own high-conflict divorce and, you know, an 18-year marriage. And we had a lot of issues regarding communication. We went through, I think, five marriage counselors and I read umpteen self-help books on how to improve the relationship. This was during the relationship. And I'm not sure whether it was just simply my age or just the quality of the materials I was reading, but every time I would read something, I would end up coming up with a list of everything that my spouse was doing wrong. And I gotta say that that isn't particularly helpful. Whether or not it's true, it's not particularly helpful.
I eventually came across a book that I sometimes recommend to clients called 'Feeling Good Together: How to Make The Troubled Relationships In Your Life Work'. It's a book that is not about reconciling, although that I suppose would be a possibility, but it is about recognizing the things that you can do without requiring the other person's cooperation in that effort.
There's other areas, other books that are like that. 'Crucial Conversations' is another one that would be very helpful to people dealing with communication issues.
And another one that I sometimes recommend is a book called 'Never Split The Difference: How To Negotiate As If Your Life Depends On It'.
And you think, well, how does that deal with cooperation? Well, in fact, I think that there is lots of good tips in that book on how to communicate effectively and without just simply caving in to what may be inappropriate or unreasonable demands of the other party. Cooperation doesn't mean giving in. Cooperation means working together to determine what is in the best interest of the child. And figuring out how to do that is sometimes a difficult exercise, but it's worth doing, and it's worth putting in that effort to to get that done.
Next is "the benefit to the child of developing and maintaining meaningful relationships with each guardian or proposed guardian." It's kind of similar to one of the other points.
I don't know whether there's any case law that makes a distinction between this point and the other point. Sometimes it's different ways of wording the same thing. And different judges may just prefer some kinds of words over the other. This seems, in my mind, very similar to some of the other points.
"The ability and willingness of each guardian to exercise the powers, responsibilities, and entitlements of guardianship." You know, this, I think, is important. Guardianship or parenting is not about - it's not a prize to be won. It's not a a game where you just wanna win for the sake of winning. No, this is about the children in your life. This is about whether you are able and willing to exercise what it means to be a parent. And I often tell my clients that the real guardian, the real custodial parent, is the one that steps up to the plate and acts like a parent when they need to, without whining about what the other parent is or isn't doing.
The other parent doesn't wanna take the kid to hockey. Well then take the kid to hockey. The other parent calls up and says, look, I can't, you know, can you take the kid. You say yes. You put the child's interests ahead. Ahead of your own interests. And that's what parenting is. Oftentimes, parenting has a certain amount of self-sacrifice there until you've got the children through their childhood and you've launched them into adulthood, there's always going to be an element of self-sacrifice on there. Doesn't necessarily mean that you don't look after your own interest because it's not good for the children to see you as a doormat and get yourself trampled on at every instance. But, anyways, I digress.
Okay. So last point is: "Any civil or criminal proceedings that are relevant to the safety or wellbeing of the child."
So civil proceedings that would be relevant would be, in particular, restraining order - civil restraining order - proceedings that would be proceedings for an Emergency Protection Order, or a King's Bench restraining order. Those are both regarded as civil proceedings. Criminal proceedings are, obviously, proceedings under the criminal code, but this is not any criminal proceedings. These are criminal proceedings that are relevant to the safety or wellbeing of the child. So clearly criminal charges relating or convictions relating to violence of any sort, or abuse, or failure to provide necessities of life, those are going to be relevant.
Just as an aside, the Divorce Act does make reference to - it just expands on these proceedings a little bit to include things like orders. And that would include release conditions. And so the idea that one is innocent until proven guilty is sort of put on hold on the Civil side or on the family law side because the court is concerned about the child's best interest and the child's safety, and the court is going to typically act out of an abundance of caution, as we say, and may restrict parenting rights if there are pending criminal proceedings.
Now that doesn't mean that that is the end of the story. I've had numerous cases where we have been able to normalize, quite significantly, the parenting relationship between a parent who's facing criminal charges, even with those relating to family violence. So even when they're facing those charges, then they end up having a normalized relationship with their parents. And that becomes important, especially if those charges later on are resolved with a withdrawal or stay of proceedings, that makes it easier to then carry on and parent, again, in the best interest of the children.
So, I wanted to talk about what is, sort of, not considered. And I just, I gotta say at the outset here, I don't want anybody to misinterpret this and say, oh, well, this is okay. You know? I saw this webinar, you know, by Charles Fair, and he's going on and was saying, well, these things are okay, so I guessed it's okay.
No, these are not okay. They're not considered. And I'm, kind of - this is a ragtag list. So let's begin and maybe this will become a little easier to understand.
"Infidelity." This is, oftentimes, a really sore point. The relationship between the parents is sort of relevant, but the infidelity is not. We have a no fault system that relates to the breakdown of marriages. So despite how hurt the feelings are of one spouse or one partner or the other, the infidelity is not a factor to be considered when determining - when making decisions about - what's in the best interest of the children.
However, if the infidelity is one parent putting their own interests well above that of the child's, then it does get considered or can be considered. If the infidelity means the parent has abandoned the family home and doesn't show any interest in caring for the children, well, obviously that has something to do with it.
The infidelity can be complicated if the cheating spouse wants to introduce the other party into the children's lives. That can be a complication. And, generally speaking, the experts are gonna say, well, look, you gotta be real cautious here because of the potential impact on the children's emotional and psychological wellbeing. It can be a little confusing to them if - well, fill in the blank. And we won't say a whole lot more there.
But, again, that's what's important. Again, it's the impact on the children that's important, not the impact on the feelings of the parents.
So, "the parents' relationship with each other." The courts will routinely point out that the parents - will recognize that the parents don't like each other, that they may even hate each other, but the courts don't care. The courts really do want the parents to work these issues out because the children really are the focus when the court's making decisions.
"Your general good character." And the other one is: "The other parent's general bad character." And the reason why I put that in here - obviously good character and bad character can be relevant to one's ability or willingness to care for children. The character may be relevant to issues of family violence. There's all sorts of areas where character may be relevant to the decisions about what's in the best interest of the children.
What I mean by this, though, is, when you're working through the case with the lawyer, coming up with all of the reasons why the other parent is - proving that the other parent, say, is prone to lying, and can't be believed, it can be relevant, but, especially in the early stages, that's not the best way to to approach the problem. And by this I mean that, saying that somebody, you know, has lied about, I don't know, what they did last weekend, and they weren't truthful with you, is not relevant when the question is completely different that's before the court. So proving that somebody lied about something in the past is not an inquiry that the court will get into unless it is relevant to the particular issue that is before the court. The court can't make decisions about credibility. And this is where I think the focus is. The client comes in and they just say, look, the other party, the other parent, can't be believed. And so, because they're - they lie about everything. Well, it has to be relevant to what the proceedings are. Again, this is a big area. You need to get legal advice about the issue.
And just remember, this is not a - the other thing to remember is, if you are focused on attacking the other person's character, that may trigger a court's concern about whether you are the unfriendly parent, that your hatred for the other parent will color how you are interacting with your children, and that may be harmful for the children.
I think that that does raise some interesting questions in my mind about, well, what if the other parent's behavior is truly bad behavior? How do you teach your children what's good behavior and bad behavior without calling out the other party's bad behavior.
I'm just gonna leave that as an interesting question. I'm not gonna try to answer it to today. Because, generally speaking, the courts will say that denigrating or criticizing the other parent in front of the children is not in the children's best interest. So, I think that there's some room for - some wiggle room there, because I think that, if there's really bad behavior, I think you do have an obligation to figure out a way to communicate that to your children that the behavior is bad, but you need to do it in a way that isn't an attack on the person's character.
Anyways, that's my particular view. I don't know whether there's any law to support that view or not. But, as a practical matter, attacking the character is not a good approach when you're trying to present your case to the court as to why you should have more parenting time and the other parent should have less parenting time, for example.
It doesn't matter how good of a character you are, the inquiry is always what is in the best interest of the children. It's very child-focused. Are you willing and able to care for the children and all those other factors that we've talked about.
"Your feelings." Your feelings can be very much hurt. They may feel very justified. But they are not relevant.
This last one. Yes. I'm gonna say: "(Some) illegal behavior." Back in the day, before marijuana was legalized, I was in a case where a judge was very much against the use of marijuana and, long story short, I, basically, stared him down and had him articulate what the real issue is, is how it affects the ability to parent the child.
And so, this can happen sometimes when there's a history of substance abuse that, you know, using illegal drugs, harder stuff is - again, the fact that it's happened in the past doesn't mean that it's - again, the focus is on what's in the children's best interest.
So I've had cases where my client has had struggles with substance abuse issues. They're dealing with those issues. The fact that, in connection with those issues, there's illegal behavior is not an obstacle to the court giving parenting rights to that person, if - and, in particular - if there's effort being made to get over that stuff, to deal with it, the courts will bend over backwards to support a parent that is making some real changes to their behavior.
Obviously, illegal behavior that involves, you know, that ends up with being in jail for, you know, an extended period of time, obviously, that's going to have an effect. So it doesn't say that you can cause a lot of mayhem and and still get parenting rights. At some point, there's a limit. But I can even say that one client of mine who's in jail for murder - or manslaughter, I didn't act for him on the criminal side - but on the family law side, I was actually able to get a slight - ever so slight - improvement in his parenting rights with the intervention of a judge. Didn't get ordered parental visits, but at least there was no bar on them happening again, if the children were interested in that.
So it is possible, even when there's significant illegal behavior, to get parenting orders that are in the children's best interest.
"Substance use and abuse." I already, I mixed that in with the illegal behavior. Substance abuse is not, in itself, the illegal part, it's the possession of the behavior. I did have a case recently where - or some time ago - where my client had joint-parenting, or 50/50 parenting, with his young daughter, and he was facing the significant charges of dealing with drug dealing and... I didn't represent him on the family matter, but, again, I wasn't aware of any impact on the family relationship, on the parenting arrangements, that he had with the mother of his daughter, and on the criminal side, we got him some house arrest for a period of time and some significantly reduced charges. And so the impact on his ability to parent was not as impaired as it could have been.
So, again you know, just because there was illegal behavior in the past doesn't mean that there can't be parenting orders that are made in the best interests of the children that overlook or consider that behavior, but considers it in a - really, the test is, is it relevant to that core principle of being able to - being willing and able to - care for the child.
So here's some other points here. I'm noticing the time here. We've covered a lot of the legal stuff.
This is the stuff that I'm not really the expert on. This is - what we sometimes can do is get you hooked up with a counselor or somebody that can provide advice about how to improve your ability to parent. And here's some general comments. The reason why - I'm not saying that I can't do this, but you know what, yesterday I was in court and the judge was speaking to both of the parents and she pointed out, she said, look, you guys need to work this stuff out because I'm gonna be making decisions about your kids. And you don't know how I raised my kids, right? So these are difficult questions. And kids don't come with instruction manuals. And children are very different. I had three boys. Each of them, each of those boys were very different. And, you know, you've gotta figure it out. And if there's a need to get support and doing that, then that's a good idea. And, again, if the court sees that you are in fact making an effort to do this, the court gets it that parenting is not an exercise in perfection.
You wanna consider things that will support your child's wellbeing. Things like consistency and routine, depending on the age of the child, that's important. Emotional support. Quality time. Again, is it a matter of quantity or quality? You know, if you've got parenting time, spend the time with the child, don't spend it just sitting there watching TV for hours on end. Okay? Don't just stick the kid in front of the TV and go off and do something else.
Okay. Support system is also important. You know, not every family comes - not everybody has a supportive extended family. If you don't have an extended family, then friends and other support systems are available. And it's important to seek those out.
One of the issues, particularly when it comes to child protection proceedings, again, they're similar proceedings in that child protection proceedings are also governed by the best interest rule, and in those proceedings, the court and the children's services are going to be considering the support systems that parents have in place because parents who are isolated and don't have that support are typically more at - or the children are more at risk.
Self-care for the parent. I think that's important. And that can come up in, you know, oftentimes, the value of a structured parenting plan is that it recognizes that each parent has a life and that it's unreasonable to expect, for example, that one parent can call up the other parent on a few hours notice and demand that they have parenting time. That is is not respectful of the other parent.
That being said, the flip side, as I've noted before, is that there is an element of self-sacrifice in parenting and stepping up to the plate and just taking the child in the short term is important. On the longer term, putting some boundaries on that, asking the court for a more structured parenting plan, is something that the court would support, I think, under this heading of self-care for the parent.
I've already said this, seeks support networks if you don't have them.
"The benefits of co-parenting. Consistency and stability. Positive role-modeling." You know, I wanna say, on the positive role modeling, parents can have disagreements. And I think the children are paying attention. I think children pay attention to see how do the parents resolve conflict. And if they never, ever see conflict between the parents, then they are less equipped, in my personal view, to deal with conflict of their own in life. So it's not that you're trying to isolate the children from any exposure to conflict. In my mind, role-modeling and figuring out how to resolve conflict with the other parent is important because for no other reason that it's good positive role-modeling. And I think that you'll have more emotional wellbeing if the responsibilities are shared.
So that concludes my talk. I know we've covered a lot of materials. I'm not sure how much time we have for questions, but hopefully this has been informative.
So, Melanie, what do we have?
Melanie Seneviratne: Okay. We've got time for a couple of questions here. So the first one is - and these are all relatively detailed questions.
Charles Fair: Okay.
Melanie Seneviratne: So the first one is: "My ex and my teenage stepdaughter share a house with my toddler. Both of the ex and stepdaughter had suicide attempts last year. These attempts are documented by text messages. What impact should this have to the best interest of the child?"
Charles Fair: It may have an impact. Obviously, if somebody in the child's household commits suicide, that is a potentially devastating effect on the child. The trauma, I can just imagine, would be horrible. But, remember that it may not be enough because, if the individuals in concern are getting proper treatment, and acknowledge the issues and are working on it, the court is going to bend over backwards to really support that effort. Again, it really does depend on the circumstances. If the child was exposed to an attempted suicide then I think that would give rise to a greater concern than if there was no exposure whatsoever.
And that may be a situation where an assessment by a psychologist or psychiatrist would be an important component to giving the court some guidance as to how to proceed.
Melanie Seneviratne: Okay. The next question is: "My ex-partner was arrested for assault against me, and our six month old son was given to her. We have negotiated back and forth with their lawyer and it isn't getting anywhere. I've asked for urgent motions, but they said costs can be set against me if I do this, which is discouraging.
I haven't seen my son for over a month after her arrest. Any thoughts on that?"
Charles Fair: Yeah, get legal advice. The reason I say that is because something seems to be possibly going awry there that shouldn't be going awry, and it might be that the individual's approach is - you might be saying the wrong thing at the wrong time in the wrong way. Again, it may be a case of you've gotta focus on the right issues. Yeah.
Yeah, it sounds like there's way more moving parts on that one than I think I can answer.
Melanie Seneviratne: Okay.
Charles Fair: Sorry.
Melanie Seneviratne: So the next four that I'm gonna say to you, I believe, are all related, and you'd probably give the same answer for all of them.
Charles Fair: Ok.
Melanie Seneviratne: So the first one is: "How can you work through it if the other party refuses to communicate with the other person?"
"How can you work through it together when the courts give all the power to one parent?"
'How does the court/judge look at parental alienation, that is when a parent doesn't allow the other parent to talk or see the other parent?"
And the last one is: "How do you scale up from supervised visits and return to a 50/50 order?"
Charles Fair: Well, I'll try to address them in the - well, I recently had a case where we did exactly that. My client was facing criminal charges alleging assault on the mother of his children. And there was criminal release conditions that was prohibiting contact, except through court of competent jurisdiction. He had supervised visits. He now has three nights out of seven, which is 42%. So it's, strictly speaking, deemed to be 50/50 shared custody. And the orders are for shared guardianship. And we did that over - it takes some time. There's no question, it takes some time. And the case isn't over there. There's more to it. So it's not impossible. It does take some care. And, again, there has to be really clear focus on what's in the best interest of the children.
What was the second last question?
Melanie Seneviratne: Sorry. Just a second. I misplaced the question here. The second last one was: "How do you scale up from supervised visits and return to a 50/50 order?"
Charles Fair: Oh, sorry. So that was the one I addressed. Sorry, the issue about the-
Melanie Seneviratne: Okay. Sorry. It was how can you work through it together when the courts give all the power to one parent?
Charles Fair: Oh, okay.
I know it seems really difficult, but the focus is not on the - and this may need some detailed coaching on how to deal with this. You gotta be paying attention. Again, the focus has gotta be on the best interest of the children. I've said that multiple times. Depending on what the issues are, anticipating and saying that something bad is going to happen is, oftentimes, not appropriate. What may be necessary is you have to be paying attention and allow something bad to happen.
And, again, remember that parenting is not a perfect thing. So I'm using bad in a very generic sense. I'm not saying bad as in, you know, the child is, you know, seriously injured. You know, clearly I'm not talking about that. If there's that kind of risk there, there needs to be a different kind of intervention.
But sometimes we just, we say, oh, well, she's not going to comply with this requirement, you know, some term of the order, and so we need to put in place - sorry, she's not gonna do something that's a reasonable thing so we need to have an order that she - or he, as the case may be - will do that reasonable thing. Well, sometimes you have to wait until that thing has actually happened. So I often give a kind of a very pictorial example. We have traffic lights at intersections, and the rule is you can only go through the intersection when the light's green and you can't go through the intersection when the light is red. But we don't stop people before they get to the intersection and do something to make them obey that traffic light. But if they do go through the red light, then they can be charged, you know, with going through the red light. So our system would bog down where we try to prevent people from doing the things that they're not supposed to do.
And that's sometimes what can happen is, if you're focusing on all of the things that can go wrong or all of the mistakes that the other parent can make or is likely to make, based on your experience and your view of them as a bad character, you may be losing perspective on what kinds of mistakes are critical to the best interest test.
So that's a very generic way of saying it. And I've gotta say that one of the difficulties in this area is, if you are representing yourself, it's really hard to get perspective. The kind of a perspective that allows you to see what - to see these issues in perspective.
So, for example, I represented myself for at least some part of my own divorce proceedings in a high-conflict situation. It was a very, very dumb idea. And I'm a lawyer that knows what the system is. I know what the issues are. I know what's in the children's best interest. But I was - at that time, I was a lot younger. I was so wound up about everything that was going wrong, that I would go into court asking the court to make so many rules and stipulations that, although you could take every single one of them and justify it as being appropriate in the circumstances, it didn't come across right. And it had an adverse effect. And so, as tough as it is, you need to have a support system where you can say, okay, what does this case look like? What is it likely to look like from a judge's perspective? And that might take some humility, it might take some willingness to, you know, take a deep breath and take a look at the things that you can do to change the dynamic, and sometimes that means getting some counseling from a, you know, professional counselor, or sometimes just any counselor may be better than nothing, to say, okay, you know, how much is your view of the situation colored by your own emotional reaction to what's going on?
So, I'm not saying, you know, go get legal advice because I'm a lawyer and I, you know, it's great for me to have more clients. I have lots of clients. It's not that. It's that that is one of the values that a lawyer brings to the table. That you can get good value from the lawyer because the lawyer can say, this is what this case looks like. Now, some lawyers - and this happened to me when I was going to, you know, the lawyer saw a bit of crazy and was rather dismissive and so that lawyer didn't last long on the file - but the point is that there's, even if there's a bit of crazy - by the way, just for the record, I gotta say there was crazy on both sides, so I don't want to give any details on a recorded public seminar - but there's always things that you can do and that was the thing that was a real game changer for me when I came across that book, 'Feeling Good Together: How to Make Those Troubled Relationships Work', because I realized there's all sorts of moving parts on this stuff, and there's lots of things that you can do, regardless of what the constraints are that have been imposed, whether fairly or unfairly, by the other party or even by the court.
I think that there's things to do. And, you know, obviously this, you know, public seminar is too much - you know, we can't get into the nitty gritty of it, but getting some perspective, whether that's a legal perspective or the perspective of a professional child psychologist or social worker, can be invaluable. But you gotta be willing to listen to it and really work through the issues. And sometimes it's really difficult. I recognize that.
Melanie Seneviratne: Okay.
Charles Fair: Did that cover, I don't know, did that cover all four of those issues adequately, do you think? I can't remember the four, all four questions now.
Melanie Seneviratne: I think-
Charles Fair: You were right to group them together.
Melanie Seneviratne: I think it did as best as you could. Because there's always a lot of moving parts to those questions, right?
Charles Fair: Yeah, that's true.
Melanie Seneviratne: So based on that, I think we're over time now, so we will just wrap up. So Charles, if you wanna just go ahead and close up.
Charles Fair: Okay. Thank you all for coming. And, again, my comments have been on the - you know, don't take any of this stuff as legal advice. Go get your legal advice when you need. I can't stress that enough. I don't know your circumstances in detail. And every case is different. And the laws do change. So that's an important thing to remember.
And, you know, I like working with CCMF. They're a great organization and reach out to them, they provide supports as well.
So thank you all for attending.
Melanie Seneviratne: Great, thank you.
Calgary lawyer Charles Fair brings over 30 years of experience to Fair Legal in criminal, family and civil litigation. Charles draws on his personal experiences related to each field of law which helps him to understand and relate with each of his clients. He is compassionate, caring, and will always be your champion for justice when life gets messy.