After a separation or divorce, one of the most contentious issues is often parenting time with the children.

While in many separations, decision-making and parenting time arrangements are made between the parents with the help of family lawyers and/or mediators, if parents are unable to agree, the court can make these decisions.

In this article, we examine whether the courts apply a presumption of equal parenting between the parents.

The old legislation referred to the principle of maximum contact

The Canadian Divorce Act, prior to amendments that entered into force last year, required the courts to:

…give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

This maximum contact principle emphasized that children should have as much contact with each parent as is consistent with their best interests. It was accompanied by the “friendly parent rule”, which instructed courts to consider the willingness of a parent to facilitate the child’s contact with the other parent.

The principle of maximum contact had been interpreted as creating a presumption of equal parenting time

In some cases, courts had interpreted the maximum contact principle as creating a presumption in favour of shared parenting arrangements or equal parenting time.

For example, the Ontario Superior Court of Justice in Folahan v Folahan, explained that in resolving disputes over access (now referred to as parenting time), emphasis needed to be placed on the “critical importance of bonding, attachment, and stability in the lives of young children”.

The judge noted that contact with both parents was the child’s right and that where a parent argues for unequal contact between the child and each parent, the onus is on that parent to rebut the presumption. This meant the parent arguing for unequal contact was required to prove that equal contact with the other parent would conflict with the best interests of the child.

The new legislation affirms the child-centric nature of the inquiry

Amendments to the Divorce Act recast the maximum contact principle as “parenting time consistent with best interests of the child”. The new subsection states that:

In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

An amendment to the Ontario Children’s Law Reform Act replicates this provision.

Under both pieces of legislation, when a court makes a parenting order regarding decision-making responsibility or parenting time with respect to the child, the court must only take into account the best interests of the child.

In determining the child’s best interests, the court is required to consider all factors related to the circumstances of the child and shall give primary consideration to the child’s physical, emotional and psychological safety, security and wellbeing. The legislation contains a list of factors related to the circumstances of a child, which includes for example:

• the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
• each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent; and
• the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child.

The Supreme Court recently considered this issue in a relocation case

We have previously reported on the Supreme Court of Canada’s decision in Barendregt v Grebliunas. In that case, a mother sought to relocate her children from Kelowna to Telkwa, British Columbia, after separating from the father.

Justice Karakatsanis, writing for the majority, said that the crucial question was whether relocation was in the best interests of the children. Her Honour explained that concerns about parenting time with the child are inevitably engaged in relocation cases because the crux of the dispute is whether it is in the child’s best interests to move notwithstanding the impact on the child’s relationship with the other parent.

The father argued that the trial judge, in allowing the mother’s application to relocate with the children, neglected the maximum contact principle.

The Supreme Court confirmed that there is no presumption of equal parenting time

Justice Karakatsanis looked at previous court interpretations that had elevated the maximum contact principle to a presumption in favour of equal parenting time. Her Honour thought that such interpretations overreach, stating:

It is worth repeating that what is known as the maximum contact principle is only significant to the extent that it is in the child’s best interests; it must not be used to detract from this inquiry. It is notable that the amended Divorce Act recasts the “maximum contact principle” as “[p]arenting time consistent with best interests of child”: s. 16(6). This shift in language is more neutral and affirms the child-centric nature of the inquiry. Indeed, going forward, the “maximum contact principle” is better referred to as the “parenting time factor”.

The Court, in upholding the trial judge’s conclusion that relocation was in the best interests of the children, said that the question was how to promote the best interests of the children and that courts should only give effect to the parenting time factor to the extent that it is in the best interests of the child.

Contact NULaw in Toronto to Protect Your Parental Rights

If you are experiencing parenting time (formerly referred to as child access) disputes, contact the experienced family lawyers at NULaw in Toronto. NULaw and its predecessors have been helping clients in Toronto since 1953. We have extensive knowledge of Ontario and Canadian family law issues and regularly provide honest and practical legal advice on these matters including custody and access. Contact us online or at 416-481-5604 to book a consultation.