In some situations involving litigation in family court, there may be questions raised about the fitness of one of the parents to act as a parent to the child or children of the parties involved in litigation. These questions can come up when the parents are working to determine what an appropriate arrangement for custody and access is. However, it’s also important to remember that unless one parent brings up the fitness of the other, or evidence suggesting one parent is unfit is put before the court, it may not be appropriate for a judge to comment on fitness or rule about it. This is demonstrated in a recent decision from the Alberta Court of Appeal.

Father looks to expand access

The matter originally arrived before a chambers judge after the father applied to vary the parenting arrangements for the parties’ two children. During these proceedings, the chambers judge stated that when approaching matters about parenting issues, an assumption is often made that “both parents are fit, capable, and loving.” However, the chambers judge then went on to state,

“my problem is I seriously question the premise that both parents are ‘fit, capable, and loving’. I have reviewed that premise as against the affidavit evidence, including (the father’s) own, which relates to his deeds and to his mental health. And in saying so, it is his own words and deeds I refer to.”

The concerns related to the parents’ religious beliefs, which she said were responsible for the father’s attitude towards women.

Father’s lawyer not sure how to respond

The father’s lawyer wasn’t prepared to speak to the question of the father’s fitness to parent as it relates to his mental health or religious beliefs. Neither of the professionals who had previously been brought into the case to work with the family in a therapeutic sense had made any comments about the father’s fitness as a parent. Nevertheless, the chambers judge decided that it would not be appropriate to make a decision about parenting time until a doctor could provide an opinion on the health of the children, but also that,

“In the course of my review of the file, I am of the view that the fitness of (the father) has never been raised either with professionals or the Court. And, in my view, for me to properly make a determination of whether shared parenting ought to be allowed, I wish that there’d be an answer to my query regarding his fitness to parent on the basis of any health concerns. I am of the view that I would be best assisted by a short psychiatric opinion, but I leave that up to (the) counsel for (the father).”

The trial was adjourned, and the father appealed on the basis that the chambers judge should not have raised issues about the parenting fitness and mental fitness of the father without anyone bringing it up and without any evidence speaking to that subject being presented to the court.

Judges need to stick to the issues raised by the parties

The Court of Appeal stated that with few exceptions, chambers judges should only address issues raised by the parties appearing before them. In this case, neither the parents nor the experts called as witnesses raised these issues. The court stated,

“The chambers judge gave no particulars of her concerns about the appellant’s mental health. While the chambers judge was critical of the appellant’s religious beliefs, there was no evidence that the appellant’s religious beliefs were a mental health issue. Further, different parents have different parenting styles, but a disagreement with a particular style does not necessarily make the parent mentally or otherwise unfit.”

As a result, the court ordered that the matter be returned to the courts to be heard again.

Our Family law team has a track record of successfully negotiating and mediating claims on behalf of our clients. Although we are capable advocates in the courtroom, we know that the best outcome is more often achieved through finding a solution that is mutually beneficial to you and your ex, and in coming to that solution amicably.  For advice about child custody and access matters, contact us online or call 1-800-480-3534.