Introduction:
What is the concept of the Friendly Parent in child-parenting disputes? In today’s Family Law Blog, senior family lawyer Peter Graburn explains this key principle as applied in Alberta.
Separation and divorce can be difficult. Not only do you need to deal with the emotional aspects of a family breakup, you also have to deal with many (sometimes seemingly strange) legal principles applied to resolve these disputes, particularly
when dealing with parenting. In previous discussions, we outlined some of the (often competing) principles considered when resolving disputes regarding the parenting of children, including maximum contact, incremental increases in parenting time, the child’s voice, and the overarching best-interests test.
Because many of these principles come from efforts to reduce conflict between parents, it may help to note that family law increasingly encourages non-adversarial options such as mediation. Mediation focuses on communication and cooperation — concepts that lie at the heart of the Friendly Parent principle.
Table of Contents
“Friendly Parent” Principle
Simply put, the “friendly parent” principle states that in making decisions regarding the parenting of children (primary care, parenting time, etc.), decision-makers (Judges and Arbitrators) should prefer the parent who is more likely to support and
encourage the child(ren)’s relationship with the other parent. But it is not always that simple.
Section 16 of the Divorce Act provides that in making a determination regarding the parenting of children:
16(1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.
Subsection 16(3) then sets out several factors that are to be considered in determining the best interests of the child, including:
(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse [previously, s. 16(10) referred to the parent’s willingness to facilitate contact with the other parent], and
(h) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child.
These provisions are what has given rise to what is commonly called the “friendly parent” rule.
Caselaw
One of the most descriptive references to the “friendly parent” rule appears in a decision of Alberta Court of Queen’s Bench Justice W. N. Renke in [AE v TE 2017 ABQB 449 at para. 29]:
“As set out in s.16(10) (of the old Divorce Act), ‘a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, [the court] shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.’ This is the ‘friendly parent’ rule.
According to Justice Sheila Martin, as she then was, in RVM v WFL [citation omitted]:
Maximum contact with both parents is to be encouraged, and … the courts are likely to favour the friendly parent, that is the parent who will help to encourage contact between the child and the other parent. The “friendly parent rule” … has served to favour parents who are best able to foster a relationship between the child and the non-custodial parent (citations omitted).
This ‘rule’ concerns the degree of cooperativeness in co-parenting of each of the parents (emphasis added).”
Do’s and Don’ts
Although the Courts have not produced a comprehensive list of behaviours, some guidance can be drawn from common patterns in Alberta decisions.
Don'ts
- criticize the other parent in the presence of the child
- alienate the child from the other parent
- breach Court Orders
- file false allegations (for example, of abuse)
Do's
- cooperate in scheduling parenting time, activities and exchanges
- communicate positively with the other parent (verbally and electronically)
- encourage involvement with the other parent (even if the child is initially reluctant)
- educate yourself on best parenting practices (including taking the Parenting After Separation and Focus on Communication courses)
- consult with your lawyer before taking drastic actions
Final Takeaway
The “friendly parent” principle. Is it as nebulous as the “best interests of the child” test? Maybe. But it should not be. Not everyone agrees with the “friendly parent” principle (see: “The Friendly Parent” Concept: a Flawed Factor for Child Custody – Margaret K. Dore [2004] Loyola Journal of Public Interest Law, Vol. 6), arguing that it may conceal family violence and other concerns; favour fathers over mothers; and increase litigation by introducing further uncertainty.
But aside from being yet another legal principle applied by the Courts when resolving parenting disputes, the “friendly parent” principle can also serve as a practical framework for co-parenting of children by separated parents, including trying to:
• look at parenting matters from the child’s perspective, and
• go overboard to be the friendly parent (even when it may be hard)
One more child-focused principle used to resolve parenting disputes. While it may be difficult to accept and apply in the short run, in the long run, it will benefit both you and your child.
