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The Parenting Time Factor
How do courts determine children's schedules

The Parenting Time Factor-How Do Courts Determine Children’s Schedules

When a couple with children decides to separate, time with the children is often inevitably the most contentious factor. Some parents will often wrongly assume that the law will favour them over their former partner for a variety of reasons, and most of those are entirely incorrect.

So long as it is in the best interests of the child, the law generally favours a child having parenting time with both parents. This can be difficult for both parents to accept especially if the parents’ relationship is acrimonious. The parents may want to get so far away from each other that one feels it necessary to move to a new city and start anew. 

How, then, does a court assess how much time each parent should receive with their child? For several years now the understood principle was based around “the desirability of maximizing contact between the child and both parents,” but a new case from the Supreme Court of Canada offers some guidance on how they now view that very principle.

The Case

In Barendregt v. Grebliunas, 2022 SCC 22, the parents settled in Kelowna, BC in 2012 where they got married and had two boys. They had purchased a house, which was in need of significant repair before it became liveable. After the couple split up in 2018, the father had assaulted the mother, and the mother returned to her parents’ home 10 hours away. 

The original presumption was that the children would travel the 10-hour distance between their parents but then were assigned to live full time with their father in Kelowna. The plan was then to alternate weeks when the mother returned to Kelowna, except she never did. She then sought the Court’s permission to have them full-time with her, and the Trial Judge agreed, finding that the children living with their mother was in their best interests.

The father appealed and tried to introduce new evidence, both about his finances and about the further repairs that he had made to the home.  While there are well-established rules for allowing new evidence to be introduced into an appeal, the Court of Appeal allowed the father’s appeal because his new evidence changed the presumption that he could not parent the children at his Kelowna home due to the renovations. The Court of Appeal had ordered the mother and children to move back to Kelowna. The mother appealed this decision to the Supreme Court, and ultimately was successful on her appeal.

The majority of the case is premised around the introduction of that new evidence. The Court of Appeal had brushed aside the standard test for introducing new evidence, and the Supreme Court ruled that they were wrong to do so. The evidence was not new – it could have been presented had the father done due diligence during the initial trial. 

While much of the decision revolves around these rules of evidence, there’s another key principle that the Court re-shaped in this decision – one previously known as the ‘maximum contact principle.’

The Parenting Time Factor

In a 1996 Supreme Court decision called Gordon v. Goertz, [1996] 2 SCR 27, the Supreme Court established a presumption that maximum contact with both parents is in the best interests of the child. In Gordon this was phrased as “the desirability of maximizing contact between the child and both parents,” and it became known as the maximum contact principle, or the friendly parent principle.

Eventually, this was accompanied by what became known as the ‘friendly parent rule.’ Both the courts and even the previous versions of the Divorce Act took the presumption that the maximum amount of time with both parents was, by default, in the child’s best interests. Yet as Courts kept applying this concept as broadly as possible, they effectively created a presumption in favour of shared parenting arrangements, equal parenting time or regular access. The Supreme Court of Canada characterized this as overreach because the only test to apply when deciding a parenting case is the best interests of the child test. 

The Supreme Court in this case ruled that the maximum contact principle should now be known as the more-appropriate “parenting time factor.” 

This is consistent with the recent amendments to the Divorce Act at section 16.6 state 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.” 

The Divorce Act also now recognizes that findings of family violence are a critical consideration in the best interests of the child analysis. The Supreme Court of Canada directed that courts must consider family violence and its impact on the ability and willingness of any person who engaged in family violence to care for and meet the needs of the child. 

The Court further noted that family violence is an important factor in determining if a relocation is in the best interests of the children since family violence has grave implications for the development of children and family violence could be a reason for the relocation. 

In upholding the Trial Judge’s decision on relocation, the Supreme Court of Canada noted the Trial Judge’s findings of family violence against the father supported the Trial Judge’s decision that the mother’s relocation with the children was in the children’s best interests.

The Bottom Line

This case reaffirms the most logical solutions when it comes to parenting time. Yes, time with both parents will be beneficial for their development in most cases, except it obviously should not be the case if not in the child’s best interests. If the child is at risk of harm, or if extended time with one parent will be problematic, then the courts may order supervised parenting time or adjust parenting time arrangements accordingly. 
We know that these are hard waters to navigate. Separation and divorce are stressful under any circumstances, especially when your primary goal is protecting your child(ren)’s well-being. Thankfully we’re here to help. We take a practical approach to find workable solutions in family law disputes, and we advocate for the best interests of you and your family. We’ve helped countless families in the Cambridge, Kitchener, and Waterloo region, and our lawyers are only a phone call or email today. Contact us today to learn more about our services.