The child has spent less time with his father after his parents separated
The Alberta Court of King’s Bench has granted a father’s request for parenting time with his child, upon finding that it is unlikely that the mother will encourage a more significant parenting role for the father.
In Potts v Marschlik, 2023 ABKB 362, Joshua Potts and Raven Marschlik have lived together since 2017. They have one child, who is now five years old. The child has been in the mother's care after the parties separated in 2021. The father applied for a court order to have unsupervised time with the child, alleging that the mother was refusing parenting time. In the meantime, the mother indicated she was planning to move with the child to Calgary. The father applied with the Alberta Court of King's Bench to prevent the mother from moving with the child.
The court explained that under the Family Law Act, the parents could each exercise guardians' powers, responsibilities and entitlements. They must provide information relating to these matters to the other guardian and use their best efforts to cooperate in exercising guardianship. The court further stressed that each guardian is entitled to be informed of, consulted about and to make all significant decisions affecting the child and to have sufficient contact with the child to carry out those powers and responsibilities.
Furthermore, the court explained that since the parties were not married, any parenting order must be made under the Family Law Act rather than the Divorce Act. The Family Law Act states that if the child has more than one guardian who cannot agree on how to exercise the powers, responsibilities and entitlements of guardianship and is living separate and apart, "the court may make an order relating to the exercise of the powers, responsibilities and entitlements of guardianship in respect of the child." Moreover, the court must consider only the best interests of the child.
The Alberta Court of King’s Bench ultimately found from the evidence that the mother has shown that it is unlikely she will encourage or facilitate a more significant parenting role for the father. In contrast, the father's parenting plan and testimony indicated a willingness to involve the mother in the child's life.
The court noted that following the parties' separation, the child has spent less time with his father, primarily due to the mother's refusal to allow him a more significant role. The court found that the father sees time with the mother as necessary and thinks shared parenting would be ideal if the parties could communicate better one day. The court said the father's parenting plan demonstrated foresight and flexibility.
In contrast, the court found that the mother has provided no information about her ongoing parenting plan focusing instead on her criticisms of the father. The court noted that descriptions of the neighbourhood, the home, the availability of a family doctor, what work she might pursue and what after-school care might be available are missing.
Furthermore, the court found that the mother's plans gave little attention to ensuring the father would remain meaningfully involved in the child's life. The court stressed that this is important because her planned move to Calgary with the child will make it more difficult for the child to spend quality time with the father.
The court also noted that the father readily acknowledged in his testimony that Marschlik was a good mother. However, Marschlik refused to recognize the same for Potts, saying she did not know. The evidence convinced the court that Potts was a good father to the child. The court also found that the mother has deliberately done what she can to limit the father's time with the child and involvement in his upbringing.
On the other hand, the court noted that the father consistently sought parenting time on whatever conditions were available. He took drug tests to address the accusations that he continued to be an addict, with the results always being negative. His parenting plan and testimony indicate that he is willing to communicate and cooperate with the mother as much as she permits.
The court held that the mother could not be relied upon to encourage a positive relationship between the child and his father. On the other hand, the father has indicated a willingness to work with the mother to whatever extent possible. The court noted that if the child moves to Calgary with his mother, it will be harder for him and his father to spend time together and strengthen their bond. On the other hand, the court noted that the child already has a strong bond with his mother because of her primary care for him, which can more easily be sustained through visits and other forms of contact.
The court was convinced by the evidence that the child would benefit from his father having more involvement in his care and upbringing. Based on the evidence, the mother has made it clear that she would not facilitate a significantly increased role by the father. Instead, the court stressed that it is likely, that the mother would limit the father's parenting time where possible.
The court concluded that it is in the child's best interests for his primary residence to be with the father. Accordingly, the court ordered that the father would primarily care for the child, with the mother having parenting time on alternating weekends.
