Spencer v Spencer:
Best Interests of the Child and Cooperation of Both Spouses
When making a parenting order, the Court must determine what is in the best interests of the child pursuant to the Divorce Act. To this end, one of the most important factors the Court must consider is each spouse’s willingness to support the development and their maintenance of the child’s relationship with the other spouse. In Spencer v Spencer, Martin J considered best interests on a final parenting order for a 14-year-old child who had not seen his father in over a year and maintained contact with him only through text messages, despite the father’s wish to reconcile. The case highlights how family dynamics factor into determining the best interests of a child, and how each spouse must be willing to support the development and maintenance of the child’s relationship with the other spouse.
Background:
The Plaintiff, Mr. Spencer (the “Father”) and the Defendant, Ms. Spencer (the “Mother”) were married on August 23, 2008 and had a son. The parties ceased cohabitating on June 6, 2020 and were granted a divorce. Following the separation, an incident occurred in which the Father forcibly entered the family home while attempting to retake possession of it from the Mother, scaring the son in the process.
The son’s counsel advised that while it is the son’s preference to remain living full-time with his Mother, he wants to continue having limited contact with his Father. The Mother has acknowledged that she is unwilling to force their son to see his father or attend reunification therapy. Prior to the separation, the Father testified that he would go quadding with his son, as well as taking him to soccer and the skate park. However, he stated that it is difficult for him to see his son as he now lives approximately 90 minutes apart from him.
Best Interests of the Child:
At trial, the Mother sought sole parenting and sole decision-making for their now 14-year-old son. The Court was not satisfied that the Mother was making sufficient efforts to support the relationship between her son and the Father. The Court noted that while her conduct in not forcing her son to see the Father or attend reunification therapy was not actively alienating, as “her hands-off approach (leaving the contact decision to [the child]) is not necessarily in his best interests. A sustained lack of meaningful contact with his father is almost certainly not in [the son’s] best interests.”
While the Father did not seek shared parenting of their son at trial, he expressed his wish to reconcile their relationship, but at minimum is willing to be kept informed of important events in his life. The Court found that the Father understood the paramountcy of his son’s stability and well-being, specifically by his decision to not pursue shared parenting and his willingness to start slowly. However, it also found that the Father did not appreciate the gravity of his actions and its effect on his son when he forcibly entered the family home.
Decision:
After considering the circumstances of the case, the Court ordered that the son should continue in the primary parenting of his Mother, who was also granted sole decision-making in light of the high level of conflict between the parties. However, included in the parenting order was also a requirement for the Mother to facilitate the child’s attendance at family therapy and to participate in the therapy herself if deemed appropriate by the therapist.
As the Court was not satisfied that texting would sufficiently aid in reconciling the relationship between the Father and his son, it also granted the father twice-weekly video parenting of up to 15 minutes per call, which was to increase to in-person parenting time in six months if the child refused to attend family therapy. Should therapy be refused by the child or determined by the therapist to not be in the child’s best interest, the matter was to be brought back before the court.
Conclusion:
In reaching this decision, the Court noted that “[i]n cases where there are parent-child contact problems, often the whole family dynamics need to be addressed, not just the dynamics between the child and the parent whom the child is refusing to see.” This case exemplifies the significance of the best interests of the child when making a parenting order, but also the importance of each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse. Should you find yourself in a similar situation needing advice on family litigation matters, specifically parenting time or determining the best interests of the child, the highly skilled and accomplished lawyers at the Calgary Legal Team can help you and discuss your options.