Understanding Parenting Time and Decision-Making Responsibility
Parenting time and decision-making responsibility are two different things in family law. This blog post will focus on parenting time, a term that has replaced the meaning of what was previously called “access” in the Divorce Act and most provincial statutes. It’s also important to note that decision-making responsibility is a new term that has replaced the meaning of what was previously called “custody.” We will delve into various issues specific to parenting time and provide insights on customizing parenting time orders, supervised parenting time, and increasing parenting time with a child’s age.
The amended Divorce Act and Children’s Law Reform Act (“CLRA”) consider each parent’s willingness to facilitate the child’s relationship with the other parent. Often, when analyzing what’s in the child’s “best interests,” if both parents request decision-making orders, the court may prioritize a parent who demonstrates a stronger commitment to maintaining the child’s relationship with the other parent. Counsel should discuss their clients’ parenting time plans and remind them that unjustly withholding parenting time may negatively affect their claims for decision-making responsibility.
Age-Appropriate Parenting Time Considerations
When determining suitable parenting time arrangements, courts refer to social science research, case law, and the child’s age. While general guidelines on visit frequency and duration exist, it’s crucial to prioritize the best interests of the child. Siblings may have different needs, so a one-size-fits-all approach is not appropriate. The balancing act for lawyers is to advocate for their clients while keeping the child’s best interests in mind (Rule 5.1-1 of the Rules of Professional Conduct, para. 4 of Commentary). This entails proposing parenting time arrangements that align with the child’s best interests rather than solely focusing on the client’s wishes. Recommendations for various age groups are discussed below.
Infants and Toddlers
For young children, courts generally support overnight parenting time, but they rarely order it for breastfed infants. Parenting schedules should enable frequent contact with both parents to foster security and trust. Parenting courses are often suggested for inexperienced parents, along with supervised visits overseen by trusted family members. Parenting proposals should prioritize the infant’s schedule and encourage both parents to support each other’s routines. Although infants cannot verbalize their preferences, research underscores the importance of regular contact with both parents for forming bonds.
Primary School-Age Children
As children enter school and engage in extracurricular activities, parenting time may decrease and require more flexibility. Courts favour child-focused parenting that minimizes disruptions. However, parents should not delegate parenting time decisions to their children, as doing so places excessive responsibility on the child and may lead to resentment.
Pre-Teens and Teenagers
During adolescence, children often prefer spending time with their peers and having flexible schedules for activities. Accommodating this in separated families can be challenging. Teenagers desire flexibility and reduced parental conflict. Allowing older children to decide when to see the non-custodial parent should be assessed on a case-by-case basis, as it may create undue pressure for some. In the case of Godard v Godard, it was ruled that a parent cannot leave the decision of visitation solely to the child; they must enforce the parenting time order using normal parental authority.
Denying Parenting Time: When is it Appropriate?
Neither the CLRA nor the Divorce Act explicitly addresses appropriate parenting time denial. Parents seeking sole decision-making should request a no-parenting time provision or discretionary parenting time, which is rarely granted and only considered when there is no benefit to the child.
Denial of Parenting Time Without a Court Order
In certain situations, a court order is not required to deny parenting time:
- Bail or probation conditions prohibit parent-child contact, usually in cases involving offences against the child or the other parent.
- Bail conditions stipulate parenting time must be “in accordance with a family court order,” often when one parent has committed an offence against the other.
- Verified child protection concerns exist, with the Children’s Aid Society confirming a risk of harm to the child.
- In cases of unverified risk or concerns regarding substance abuse or mental health parents can deny unsupervised access until the matter is resolved in court.
Amendments to the Divorce Act and Children’s Law Reform Act: Parenting and Contact
The Divorce Act and CLRA amendments, effective from March 1, 2021, have significantly changed the language of custody and access. Both Acts have replaced “custody” with “Parenting Orders” that address decision-making responsibility, and “parenting time” has now replaced “access.” Additionally, they have introduced “Contact Orders” for non-parents, such as grandparents, to maintain a relationship with the child.
Non-parents may apply for Parenting Orders if they have or plan to act as a parent towards the child. Under the Divorce Act, non-spouses require permission to apply for a Parenting Order but not for a Contact Order. Both Acts mandate the incorporation of “Parenting Plans” into Parenting or Contact Orders, unless doing so is against the child’s best interests. Parenting Plans are documents that outline agreed-upon elements of parenting time, decision-making responsibility, and contact.
As mentioned above, the definition of “best interests” now encompasses a spouse’s willingness to support the child’s relationships with the other spouse, siblings, grandparents, and other significant individuals. The Divorce Act and CLRA have identical best interest tests and direct courts to prioritize the child’s physical, emotional, and psychological safety, security, and well-being.
Both Acts also require courts to consider family violence, including physical abuse, harassment, threats, and other forms of mistreatment, as factors affecting the child’s best interests. The amended Divorce Act and CLRA contain identical definitions of family violence.
Navigating the Complexities of Parenting Time
Understanding the intricacies of parenting time, decision-making responsibility, and contact orders is essential for parents and lawyers alike. As the legal landscape has evolved, the best interests of the child remain the central focus. Professionals must be aware of the recent changes and strive to advocate for their clients while keeping the child’s needs in mind.
In conclusion, navigating parenting time and decision-making responsibility can be a complex process. The recent amendments to the Divorce Act and CLRA have introduced new concepts and requirements that both parents and legal professionals must consider. It is crucial to remember that the child’s best interests are always the priority and that professionals should strive to find a balance between advocating for their client’s wishes and meeting the child’s needs.
By staying informed and up-to-date on current legislation and best practices, parents and legal professionals can work together to develop fair and effective parenting time arrangements that prioritize the well-being of the children involved.
Example: Pelkey v. Henley
In this family law case centring around the issue of parenting time, the court is tasked with determining the appropriate parenting time for the child, Alasdair, as per the CLRA and relevant case law. The primary legal test applied is the “best interest of the child” as outlined in s. 24 of the CLRA, which takes into account several factors, including the child’s needs, relationships, parents’ willingness to support the child’s relationship with the other parent, history of care, child’s views and preferences, and any family violence.
The court refers to the Ferreira v. Ferreira case, which underscores the importance of the child having a loving relationship with both parents, and the responsibility of the primary caregiver to support and foster the child’s relationship with the other parent. The court also emphasizes the significance of maximizing involvement between parents and children, and requiring justification for any restrictions on parenting time.
While the applicant values breastfeeding and a regular routine for Alasdair, her strict breastfeeding schedule limits the child’s exposure to his father and the father’s family, culture, and heritage. The court cites the Holomey v. Hillis case to stress that breastfeeding cannot be the sole determining factor in limiting the respondent’s parenting time. Additionally, the Lygouriatis v. Gohm case highlights the importance of evening and overnight periods for the child’s relationship with the non-residential parent.
Taking into account the legal tests, the court concludes that it is in Alasdair’s best interest to expand the respondent’s parenting time, including overnights, to foster a stronger bond between father and son. The court also addresses the issue of breastfeeding, leaving the decision to the applicant on whether to provide breast milk or other food during Alasdair’s time with his father. Furthermore, the court finds no reason to withhold the name and address of Alasdair’s daycare from the respondent.
