While parents may often assume that after a separation, both parents will have an equal and shared right to parenting time, this is not automatically the case.
In Ontario family law, parenting time (which is different from decision-making responsibility a.k.a. custody) is determined by one paramount principle: the best interests of the child(ren).
Under the legislation, the Children’s Law Reform Act, and the Divorce Act, parenting time is determined based on the principle that a child should have as much time with each parent as is consistent with their best interests. This principle does not create a presumption of equal parenting time (50/50), but rather focuses on what arrangement will best serve the child’s needs.
According to the CLRA at section 24, in making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section.
In determining the best interests of the child, the court’s primary consideration is the child’s physical, emotional and psychological safety, security and well-being. Further factors that the court will consider are the following:
- (a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
- (b) 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;
- (c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;
- (d) the history of care of the child;
- (e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
- (f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
- (g) any plans for the child’s care;
- (h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
- (i) 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;
- (j) any family violence and its impact on, among other things,
(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and
- (k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.
Where there are family violence concerns, there are further considerations that become necessary.
After a separation, there is no automatic right to a shared and equal parenting schedule. Where the parties agree, or the court decides, a shared and equal schedule is in the children’s best interests than that schedule may be set. However, there is no presumption that simply by virtue of being a parent of the child, that parenting time is to be 50/50.
If you are seeking a 50/50 shared parenting schedule, you have to demonstrate that this is in the child(ren)’s best interest, in accordance with the factors listed above. This can also include the ability of both parents to cooperate, the child(ren)’s relationship with each parent, and the practical feasibility of the proposed shared schedule. You should be able to show that there is evidence of the parent’s ability to make joint decisions in the child’s best interest, the strength and quality of your relationship with the child(ren), including day to day participation in the child’s life and caregiving, and you should be able to demonstrate that the shared schedule would be practical and logistically feasible. This can include the physical proximity of the parents’ homes to each other, and of the children’s school/daycare/other activities.
The court may assign decision-making responsibility to one parent or share it between both, depending on what is in the child’s best interests. In cases where communication between parents is difficult, sole decision-making responsibility may be granted to one parent to ensure decisions are made efficiently and without conflict.
Even when one parent has sole authority, the other parent may still have the right to stay informed about the child’s well-being, including access to school and medical information.
If you are seeking more information on parenting time, child support matters, or require guidance from an experienced child support lawyer, or any other family law issue in Ontario, please feel free to contact us.
