No harm in gradual escalation of father's parenting time: Alberta Court of Appeal

Mother accused children's father of sexual abuse

No harm in gradual escalation of father's parenting time: Alberta Court of Appeal

The Alberta Court of Appeal upheld the trial court’s decision to escalate the father’s parenting time over his minor children, despite the mother’s opposition.

In CMB v AMB, 2022 ABCA 391, a mother of three children challenged a trial judge’s order to ramp-up the father’s parenting time by gradually increasing it towards an equal period for each parent. The mother asserted she should continue to have exclusive parental authority over the children, while the father could only have supervised access. The mother also asserted that the father should be denied overnight access, primarily alleging high risk of physical and sexual harm to the children.

The trial judge, however, held that a “ramp-up schedule” was designed to move from the current state of no parenting by the father, at an even rate, up to equal shared parenting. As for decision-making, the judge ordered the parties to consult each other in advance over major decisions. In the event of disagreement, the mother will have the deciding vote on all matters relating to the two younger children, while the father will have the deciding vote for the oldest child.

The matter was brought to the Alberta Court of Appeal, where the mother sought a stay order of the trial judge’s decision. The three criteria for stays are whether the issue is arguable, irreparable harm and balance of convenience. After a careful consideration of these factors, the appeal court refused to grant a stay of trial court’s judgment.”

No misapprehension of evidence

The mother argued that the trial judge did not properly characterize some evidence and disregarded other evidence. The appeal court pointed out that the Supreme Court of Canada directed appellate courts should give deference to fact finding absent palpable and overriding error, and deference as to discretion absent a material error, a serious misapprehension of the evidence, or an error of law. The appeal court found that the trial judge did not misunderstand the mother’s position, nor misapprehended any crucial elements of the mother’s arguments or the evidence related to it.

Best interests of the children

The appeal court noted that in determining the best interests of the child, the court must consider all factors related to the circumstances of the child. The mother strongly contended that the father was such a danger to the children that he should be cut off except for supervised access, and no overnight stays.

However, the appeal court pointed out that the effect of the trial judge’s decision was not a sudden conversion of supervised access to equal parenting time. Rather, there would be a gradual escalation of the amount of parenting time, within a carefully designed framework to regularize and make consistent and predictable contact between the children and their father.

Further, the trial judge found that the mother had not proved, on a balance of probabilities, that any of the alleged abuse occurred, or even that there was a material chance it occurred. The judge further found that the father posed no material risk of sexually abusing the children. The appeal court agreed that the mother failed to make a case that the level of increased parenting time for the father, by itself, generated a present danger to the children.

The appeal court concluded that it would be contrary to the best interests of the children to disrupt the carefully designed process of escalation to equal parenting time. The court found no basis for an alleged irreparable harm to the children in the trial decision. In addition, the court said that the “balance of convenience” did not involve the children being prejudiced by the trial judge’s decision. The appeal court was not persuaded that the escalation of parenting time would itself create a danger to the best interests of the children.

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