When a married couple with children decides to separate, one of the first questions that parents have is: how will the marriage breakdown impact their time with their children? Many parents assume that they are entitled to shared parenting or that shared parenting is the default starting point, but that is not the case. This article looks at how parenting time is determined, with a specific focus on recent clarification that there are no presumptions in law that parents are entitled to equal parenting time or even that “maximum contact” with both parents will be in a child’s best interests.

Divorce Act changes and recent court decisions reject presumption of equal parenting time

It is worth noting that parenting time (formerly known as “access”) is distinct from decision-making responsibility (formerly known as “custody”). When married spouses separate in Ontario, the federal Divorce Act provides the legal framework for issues related to children. Extensive changes to the Divorce Act came into force in March 2021, including changes to section 16, which details how a court determines parenting time. (Note that non-married couples with children fall within Ontario’s Children’s Law Reform Act; however, the two laws are substantially similar.)

Before the March 2021 changes to the Divorce Act, the “maximum contact” principle, which provided that a child should have as much time as possible with each parent was often applied by the courts. There has been some confusion in the case law regarding whether this created a presumption of equal parenting time. Any uncertainty has now been resolved, with Parliament’s rejection of this presumption in amendments to the Divorce Act and the courts’ subsequent application of the best interests principle provided in these amendments.

Parenting time orders must promote the best interests of the child

The amended Divorce Act replaced the “maximum contact” requirement with a new subsection 16(6). This subsection instructs the court to “give effect to the principle that a child should have as much time with each spouse as is consistent with the best interest of the child.” Decisions released in 2022 from the Supreme Court of Canada and the Ontario Superior Court provide definitive direction on interpreting this new subsection.

In Barendregt v. Grebliunas, the Supreme Court of Canada described the legislative changes as a “notable” shift to “more neutral” and “child-centric” language. The Court characterized this new subsection as a “parenting time factor” rather than a presumption in favour of equal time. Similarly, in the case of S.C. v. C.C., the Ontario Superior Court explained that subsection 16(6) “does not create a presumption of equal time or maximum time with each parent. Rather, the overriding test is the children’s best interests.”

How do courts determine the children’s best interests?

The Divorce Act clearly states that the child’s best interests are the only consideration in determining parenting time. So how does the court make that determination?

The Divorce Act provides that the “primary consideration” is the child’s “physical, emotional, and psychological safety, security, and well-being.” The Act goes on to list other factors to be considered, including:

• the child’s needs, age, and stage of development;
• the nature of the child’s relationship with each parent;
• each parent’s willingness to support the relationship with the other parent;
• the history of care for the child;
• the child’s views and preferences (the child’s age and maturity will play a significant role in how much weight this factor can be given and if it can be taken into account at all);
• any applicable cultural/linguistic/religious/heritage factors;
• plans for the child’s care;
• the ability and willingness of each parent to care for and meet the needs of the child;
• each parent’s willingness to cooperate and communicate with the other on matters impacting the child;
• any civil or criminal proceedings or orders related to the security of the child; and
• family violence.

Given the length and breadth of this list, it is possible – perhaps even likely – that not all factors will favour the same parent. For instance, the history of care may weigh in favour of a stay-at-home parent, but willingness and ability to communicate and nurture a relationship with the other parent might not. In such instances, the courts will turn to the primary consideration: promoting the child’s physical, emotional, and psychological safety, security, and well-being (for example, see cases such as S.C. v C.C. and McBennett v. Danis).

What if one parent disagrees with the parenting schedule ordered by the court?

When a decision about parenting time is put in the hands of a third party, such as a judge or arbitrator, at least one parent, if not both, will not get the exact schedule they want. For instance, one parent may be seeking an equal parenting time schedule, and the schedule ordered by the court may fall short of providing that parent with 50% of the parenting time. In this situation, there is the hope of changing the parenting schedule in the future.

Parenting orders are never considered “final” because the best interests of a child are not static. The analysis of a child’s best interests may change as the child gets older, as their relationship with each parent evolves, as they are better able to articulate their views and preferences, and so on. If a material change occurs after a parenting order is made by the court, one parent can seek to have that order reviewed and request the changes that the parent believes are in the child’s best interests at that time.

Contact Bortolussi Family Law for Help With Your Unique Family Law Matter

The skilled divorce lawyers at Bortolussi Family Law help clients navigate parental disputes and develop plans for their children’s future post-divorce. We seek to reduce conflict in parenting cases to promote a more functional family dynamic. From our office in Woodbridge, we proudly serve clients across the Greater Toronto Area, including Mississauga, Brampton, Caledon, Whitchurch-Stouffville, Maple, Kleinburg, Concord, Vaughan, Bolton, Nobleton, Markham, and Etobicoke. To schedule a confidential consultation, please call us at 416-987-3300 or reach out online.