Best Interests of the Child Trumps Maximum Contact and Any Presumption of Joint/Equal Parenting
Courts may refer to a maximum contact principle in determining parenting time and the contact between children and parents. Prior court decisions have advanced the idea that maximum contact should only be restricted to the extent that contact conflicts with a child’s best interests. Following legislative reforms, courts prioritize a focus on a child’s best interests, noting that there is no presumption in favour of any one parenting order. Children deserve meaningful relationships with both parents, but each family is different, and there is no presumption of equal parenting time or maximum contact with both parents.
Parenting Time is Determined by a Child’s Best Interests
In making parenting orders and deciding parenting time, courts must consider a child’s best interests and assess the child’s specific situation. Section 24(3) of the Children’s Law Reform Act sets out a range of relevant considerations. These factors are what courts are focused on in evaluating the child’s best interests to decide the parenting time that a child should spend in the care of a parent. In March 2021, reforms to the Divorce Act came into force, emphasizing individualized and child-focused decision-making. These changes made clear that decisions around parenting time are to be made with the child’s best interests in mind. As Justice Tobin put it, “the list of best interest factors is not a checklist to be tabulated with the highest score winning. Rather, it calls for the court to take a holistic look at the children, their needs and the people around them.”
The previous version of the Divorce Act incorporated a maximum contact principle. That version suggested that a child “should have as much contact with each spouse as is consistent with the best interests of the child.” As courts recognized, the principle meant that a child should have maximum contact with both parents if it was consistent with the child’s best interests. In Rigillo v. Rigillo, the Ontario Court of Appeal found that the trial judge had erred by failing to address the maximum contact principle. For the court, the goal of maximum contact should only be overtaken to the extent that contact with a parent conflicted with that child’s interests. In that case the trial judge had departed from maximum contact with both parents without providing any reason for departing from it.
No Presumption in Favour of Joint Parenting
Section 16(6) of the Divorce Act maintains similar wording, stating that “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.” Importantly, the “maximum contact” or ” parenting time” does not appear in the legislation. In Bressi v. Skinulis et al, the court stated that there is no presumption in favour of joint parenting time and that maximum parenting time does not equate to equal parenting time. Such a presumption would override the best interests analysis required by legislation. Instead, the goal of maximum parenting time is subject to children’s best interests, given their ages, temperaments, and stages of development. Courts have been clear that a maximum contact principle does not require equal parenting time. In Knapp v. Knapp the Ontario Court of Appeal reminded that every family is different and that the needs of children are different, which will guide the appropriate parenting time order. In some cases, parents may end up with equal parenting time, or they may not, as each family is different.
The notion of a presumption in favour of a certain parenting order is out of step with the legislation and the overriding focus on children’s needs. But there remains recognition that it is frequently in the best interests of a child to be involved with both parents. For Justice Mandhane writing in Brown v. Fagu, “all things being equal, the child deserves to have a meaningful and consistent relationship with both of their parents”. Courts have similarly remarked that shared parenting may be desirable, but it is not automatic even though children generally benefit from time spent with both of their parents. In Rogers v. Porga, Justice Pazaratz explained that the concept of shared parenting can promote mutual respect and parental involvement, and that children are better off when both parents are actively involved in all aspects of their lives. In this light, the comment in Knapp that it is preferable and in the best interests of children that parenting plans be developed by parents is appropriate, as court-imposed plans too often result in parents being dissatisfied.
Parenting Should Not be Viewed as an Entitlement
Analysis of children’s best interests is undertaken from “the lens of the child” and not from the parent’s perspective. Courts occasionally remind parties that this is not about parental preferences or rights and that parenting cannot be viewed as an award or entitlement. Moreover, in addressing the issue, all parties must be looking to secure the best interest into the future. These themes were present in Rogers v. Porga where the court simply reminded the parties that shared parenting is not a prize. It is about responsibilities rather than rights, and it is not an acknowledgement of past parenting but is instead a commitment about future parenting.
The importance of parents staying focused on the child’s best interests and not advancing proposals based on their own preferences were demonstrated in Anmar v. Smith. In this case, the father proposed an equal-time parenting schedule where the children resided with each parent seven nights out of 14, except that the father had no weekend time with the children. The judge noted that this would leave the children with no “downtime” with him. This did not amount to a child-focused parenting schedule. As the father did not appear to want to spend weekend time with the children, he did not appreciate that for children to spend meaningful time with both parents, that time should include time during the school week as well as downtime. The schedule the father proposed ended up placing his own needs ahead of the children’s needs. In the view of the judge, the proposed equal-time parenting schedule was advanced on the basis that the father saw it as his right to have maximum time with the children. As the judge noted, the proposal was not made on the basis of evidence that could demonstrate that it would be in the children’s interests to be in each parent’s care fifty percent of the time.
Children Deserve Meaningful Relationships with Parents
Courts accept that children generally benefit from time spent with both of their parents. However, shared parenting may be desirable, but it is not automatic. When deciding parenting time, the focus at all times remains on the children’s best interests and not on parents’ entitlement. A maximum contact principle that encourages contact to the extent it meets a child’s best interests does not raise any presumption or indicate that equal parenting time will be appropriate.
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