No Presumption Of Equal Parenting-Time In Family Law Cases

• Published date: 23 June 2022
• Subject Matter: Family and Matrimonial, Family Law, Divorce
• Law Firm: Blaney McMurtry LLP
• Author: Mr Ryan Kniznik

How parenting-time is determined in a family law case is important. It helps frame the approach and discussions between parents [and counsel] on the structure to put in place.

NO PRESUMPTION OF EQUAL PARENTING-TIME: SUPREME COURT OF CANADA

Recent amendments to legislation that addresses parenting (Divorce Act and Children's Law Reform Act), together with guidance from the Supreme Court of Canada and Ontario Court of Appeal, have shown that there is no presumption of equal parenting-time (Barendregt v. Grebliunas, 2022 SCC 22, paras. 134-135; Knapp v. Knapp, 2021 ONCA 305, paras. 30-34; Rigillo v. Rigillo, 2019 ONCA 647, para. 13).

The Supreme Court, in Barendregt, noted that Courts have been overreaching by interpreting that the "maximum contact principle" creates a presumption in favour of shared or equal parenting time or with the implication that "as much contact with both parents as possible will necessarily be in the best interests of the child" (paras. 134-135).

The Court referred to the amended Divorce Act, which eliminated the phrase "maximum contact" [known as the maximum contact principle], and replaced it with the title "Parenting time consistent with best interests of child" (Barendregt v. Grebliunas, 2022 SCC 22, paras. 134-135; Divorce Act, RSC 1985, c 3 (2nd Supp), section 16(6)).

The Court said that going forward "the "maximum contact principle" is better referred to as the "parenting time factor" (para. 135), and that the notion of the "maximum contact principle" must "not be used to detract" from the child's best interests inquiry (para. 135).

Lastly, the analysis before the Court is not "how to best promote the parenting time factor; it was how to best promote the best interests of the children," and that "[t]hese considerations are not synonymous. Nor are they necessarily mutually reinforcing. Courts should only give effect to the parenting time factor to the extent that it is in the best interests of the child"...