">
Courts can take a cautious approach to changing parenting arrangements established pending trial. This is particularly true if the parties have made an assessment and reached an agreement on a time-sharing arrangement that would be in their child’s best interest. But parties may adopt informal arrangements on a short-term basis, and the existing status quo may not reflect a commitment by both parties to have the arrangements persist for a longer term. If one party seeks to vary the parenting time, courts will weigh a range of factors and may consider the Association of Family and Conciliation Courts Parenting Plan (AFCC-O Guide), which provides suggestions for age-appropriate parenting schedules.
Mother Appealed Interim Order Granting Father Equal Parenting Time
In Houlden v. Ramdoo, the mother appealed an interim order granting the father equal parenting time with their two-year-old son pending trial. She alleged that during the marriage, she was primarily responsible for managing the child’s medical conditions, and that the husband did not take the conditions seriously enough. She also made allegations of family violence which the husband denied. Ultimately, the motion judge determined that it was in the child’s best interests for the father’s parenting time to increase gradually, so that the child would eventually spend half his time with the father.
The mother sought to have the order set aside in favour of one that maintained her primary care for the child. The basis of her appeal was that the motion judge ignored the existing “status quo” and erred in increasing the father’s parenting time when serious allegations were made against him. In particular, she claimed the judge should have been more cautious before changing the existing parenting arrangements.
Parties Had Only Agreed to Parenting Arrangements for the Short Term
Section 16.1(2) of the Divorce Act enables courts to make interim parenting orders. In doing so, the best interest of the children is the only relevant consideration. Section 16(3) includes a non-exhaustive list of factors that courts must consider, including the child’s age and stage of development, the history of care for the child, the child’s relationship with each spouse, each parent’s ability and willingness to meet the child’s needs, and any family violence. In addition, section 16(6) provides that courts should “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 mother pointed to Southern v. Ree in support of her argument. That case recognized that courts are hesitant to change long-term parenting arrangements before a trial, with the judge concluding that “where parties have agreed to a time sharing arrangement, that arrangement best reflects their initial assessment as to the best interests of the child”.
In this instance, the parties had settled on a parenting arrangement after separation at the time that the father left the house. Yet, the judge believed that the father had been clear that it would be a short-term arrangement and that his parenting time would expand as the child got older. In turn, the parties agreed to extend his time with the child a few months later. But the father continued to seek further parenting time so that both parties would have equal time with the child.
The mother did not agree to that change. On review, the Divisional Court felt this signified that the parties had not “agreed to a time sharing arrangement that was to persist for any length of time. In other words, the status quo in existence at the time of the motion was not one that [the father] had ever conceded was in the best interests of the child on anything but a very short-term basis”. In addition, at the time of the motion, both parties agreed that the existing status quo should change so that the father could have increased parenting time. This meant the circumstances did not fit the cases the mother cited, since there was no established status quo that both parties accepted or that a court had imposed and which a party now hoped to vary.
Motion Judge Increases Father’s Parenting Time
The motion judge made a new assessment of the amount of parenting time the father should have. In doing so, he also considered section 16(6) and the AFCC-O Guide, which indicates that children do better “when both parents have stable and meaningful involvement in their children’s lives”. The Divisional Court determined that the motion judge only considered the best interests of the child and that he weighed all of the relevant factors under section 16(3) when he increased the father’s parenting time.
Part of the mother’s complaint was that the motion judge did not explain why he ordered equal parenting time on an interim basis, and that this amounted to an error of law. For example, in Pletch v. Pletch Estate, the court stated that “the failure of a judge to give any or sufficient reasons is an error of law”. Other courts have held that a judge’s reasons must explain why they made their decision “in a manner that permits effective appellate review”. But here, the judge’s reasons were sufficient and permitted effective appellate review. The judge found that both parents were able to care for the child and would be able to cooperate in providing care. Although the mother made allegations of family violence, the motion judge noted no violence was directed at the child and concluded it would not recur since the parties were now separated.
The mother further suggested that the motion judge implicitly presumed that a 50-50 parenting arrangement would always be in a child’s best interests unless the opposing party could prove otherwise. The Divisional Court rejected this claim, concluding that the presumption did not appear anywhere in the motion judge’s reasons. Instead, he relied on the maximum contact principle set out in section 16(6) of the Divorce Act, which states that when 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”. He also looked to the AFCC-O Guide, which, together with the Act, provided guidance when determining arrangements for the child’s care pending the trial.
Judge Looks to AFCC-O Guide in Determining Parenting Time
Courts have found that the AFCC-O Guide is a helpful tool for developing child-focused parenting plans. In McBennett v. Davis, Justice Chappel looked at the AFCC-O Guide and explained that it summarizes social science knowledge “about the effects of parental separation on children, provides suggestions and guidance to help improve communications and cooperation between separated parents and offers valuable guidance about formulating parenting arrangements that meet the needs of children”. Courts have also found that although the Guide is not binding on courts, it helps in setting parenting schedules post-separation, depending on a child’s age. Although the mother suggested the motion judge made an order inconsistent with the AFCC-O Guide, the Divisional Court disagreed. Instead, the decision to gradually increase the father’s parenting time was consistent with the suggestions in the Guide for the child’s age. Overall, there were no concerns that would make an equal parenting order inappropriate.
Interim Parenting Order Must be in the Child’s Best Interest
The Divorce Act provides that a child should have as much contact with both parents as is consistent with their best interests pending trial. The AFCC-O Guide is also clear that children of separated parents often do better when both parents are meaningfully involved in their lives. While judges have a range of factors to consider, the best interests of the child are the only considerations when making an interim parenting order.
Johnson Miller Family Lawyers: Windsor-Essex Family Lawyers Representing Clients in Parenting Disputes
Interim parenting arrangements can have a significant impact on how courts assess a child’s best interests, sometimes in unexpected ways. If you are navigating a separation or dispute over parenting time, the skilled family lawyers at Johnson Miller Family Lawyers can help you understand how temporary arrangements may affect your position at trial. Contact us online or call 519-973-1500 to discuss your parenting concerns and protect your child’s best interests.
