When parents separate, it is common for past mistakes to become a central issue in parenting disputes.

One parent may argue that the other should have limited or no parenting time because of past behaviour during the relationship. While those concerns may be legitimate, the courts have consistently held that past conduct alone does not determine parenting arrangements.

The court’s decision in JDL v HAL, 2022 ABQB 427 serves as an important reminder of this principle.

The Facts

The parents had separated after a lengthy relationship and were involved in a parenting dispute concerning their two young children.

The father sought joint decision-making responsibility and shared parenting on a week-on, week-off schedule. The mother opposed the application. Among other things, she relied on the existence of a Protection Order that had previously been granted against the father and argued that his past conduct should prevent him from obtaining shared parenting.

The Court's Approach

Rather than focusing solely on what had happened during the marriage, the Court carefully examined whether the father's past conduct remained relevant to his current ability to parent.

The Court considered several important factors, including:

the father's relationship with the children;
his parenting since separation;
his willingness to communicate with the mother;
his attendance at counselling to improve communication;
whether there was evidence that family violence continued to affect his parenting; and
whether the children's best interests supported increased parenting time.

One of the most significant aspects of the decision was the Court's treatment of the Protection Order. The Court acknowledged that family violence is an important consideration under section 16(3)(j) of the Divorce Act. However, the existence of a Protection Order did not automatically determine the parenting outcome.

Instead, the Court emphasized that parenting decisions require a separate analysis focused on the children's best interests. The Court noted that the purpose of a Protection Order is to provide protection from family violence; it is not, by itself, a determination of parenting rights.

Past Conduct Must Be Relevant to Parenting

The Court also referred to section 16(5) of the Divorce Act, which provides that a person's past conduct should not be considered unless it is relevant to the exercise of parenting time or decision-making responsibility.

Applying that principle, the Court found that although allegations had been made regarding the father's behaviour during the marriage, the evidence before the Court did not establish that his past conduct continued to affect his present ability to safely parent the children. The father had maintained a positive relationship with the children, had engaged in counselling, and demonstrated a willingness to improve his communication with the mother.

The Result

After considering all of the evidence, the Court concluded that it was in the children's best interests to spend substantially equal time with both parents.

The Court granted the father:

shared parenting;
joint decision-making responsibility; and
a final parenting order.

What Can Parents Learn From This Decision?

This decision offers several important lessons for separating parents:

First, parenting cases are not about punishing a parent for past mistakes.
Second, allegations of family violence are taken seriously, but they do not automatically determine the outcome of a parenting application. The Court must still assess whether those circumstances affect the parent's current ability to meet the child's needs.
Finally, Alberta courts take a forward-looking approach. Parents who acknowledge past shortcomings, engage in counselling or treatment where appropriate, improve their communication, and demonstrate a genuine commitment to their children may be well positioned to seek expanded parenting time.

Final Thoughts

Every parenting case is unique, and there is no formula that guarantees a particular outcome. However, one principle remains constant: the Court's focus is not on assigning blame for the past, it is on determining what arrangement will best promote the child's safety, stability, and long-term well-being.

If you are involved in a parenting dispute and have questions about how your past conduct or that of the other parent may affect your case, obtaining legal advice early can help you understand your rights and prepare the strongest possible case for your child.

At Stokes Law LLP, we are committed to providing compassionate, strategic, and effective legal representation in family law matters involving family violence, parenting disputes, support claims, and property division. If you have questions about how this decision my affect your situation, we encourage you to contact our office to schedule a consultation. Our team is here to help you understand your options and move forward with confidence.