Ordinarily, the courts are somewhat reluctant to order shared parenting where the history of parenting is characterized by a demonstrated inability or unwillingness to communicate and cooperate in such a way that is conducive to effective co-parenting. In other words, where there is significant conflict between parents, shared parenting is often thought to be inappropriate and/or unworkable. In part, this is due to the increased potential that the children will be exposed to conflict, which is necessarily contrary to their best interests.
However, a 2015 decision by Madam Justice D.L. Pentelechuk of the Alberta Court of Queen’s Bench raises the consideration of whether or not it can be said that one parent is primarily responsible for the communication issues and conflict.
In AJU v. GSW, 2015 ABQB 6, both parents had a history of poor communication and exacerbating conflict. The Defendant opposed shared parenting in part on the basis of this lack of cooperation and communication. However, the court found on all of the evidence that the Defendant was primarily responsible for the most recent communication issues between the parties. After noting the Court’s traditional position of avoiding shared parenting where communication and cooperation between parties is inadequate, Justice Pentelechuk considered the implication of such a principle where the party seeking to successfully oppose a shared parenting regime is a significant source of the conflict.
In ordering shared parenting, following a Trial, Justice Pentelechuk had the following to say:
“It seems inherently unfair to relegate one parent to access-only parent status when the other parent refuses to take steps to improve their poor communication or because they insist on fueling the acrimony”.
And further cautioned that:
“communication issues and lack of cooperation for a couple caught in the turbulence of divorce should not be compared to an impossible standard that does not exist in most functional families”.
Clients seeking to challenge a shared parenting arrangement should know that they may be less likely to succeed in that regard if they are perceived to be a principal source of the conflict, even though conflict may otherwise have been a barrier to a shared parenting regime.