“The governing test for determining decision-making responsibility, primary residence and parenting time is the child’s best interests: Children’s Law Reform Act, R.S.O. 1990, c.C.12, s.24, as amended SO 2020, c.25, Sched 2, s.6 (“CLRA”).
Section 16(1) of the Divorce Act provides the court shall take into consideration only the best interests of a child when making a parenting order or a contact order. In assessing the best interests of the child, the Court must give primary consideration to the child’s physical, emotional, and psychological safety, security, and well-being: Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), s.16(2) (“Divorce Act”); Children’s Law Reform Act, R.S.O. 1990, c. C.12, s. 24(2) (“CLRA”).
Contact may be restricted if it conflicts with the children’s best interests. It is important to remember that parenting time is not the right of the parent but that of the child and when considering parenting time, it should be with a child-focused approach.
As set out by Pazaratz, J. in K.M. v. J.R., 2022 ONSC 111, at para 50, the court is required to look at and consider each child’s specific situation as follows:
a. The list of best interests factors in the Actis not exhaustive. White v. Kozun, 2021 ONSC 41 (SCJ); Pereira v. Ramos, 2021 ONSC 1736 (SCJ).
b. None of the listed factors are given priority, except the primary consideration in S.16(2) is overarching.
c. No single criterion is determinative.
d. The weight to be given to each factor depends on the circumstances of the particular child.
e. The listed factors are not a checklist to be tabulated with the highest score winning. Rather, the court must take a holistic look at the child, his or her needs and the people in the child’s life. Phillips v. Phillips, 2021 ONSC 2480. W.H.C. v. W.C.M.C., 2021 ONCJ 308 (OCJ); Harry v. Moore, 2021 ONCJ 341 (OCJ).
f. An assessment of the best interests of the child must take into account all of the relevant circumstances with respect to the needs of the child and the ability of each parent to meet those needs. Mokhov v. Ratayeva, 2021 ONSC 5454 (SCJ).
g. The focus is on the child’s perspective. Adult preferences or “rights” do not form part of the analysis except insofar as they are relevant to the determination of the best interests of the child. Young v. Young, 1993 CanLII 34 (SCC); E.M.B. v. M.F.B., 2021 ONSC 4264 (SCJ).
In addition, the court is required to consider whether there has been any family violence, and if so, the impact of the violence on the children, and on the ability and willingness of any parties to care for and meet the needs of the children, when assessing the best interests of the children. V.M.W. v. J. Mc.-M., 2021 ONCJ 441.
Section 16(4) sets out a further set of factors to consider when considering the impact of family violence. The definition of “family violence” in the Divorce Act is not limited to physical acts but also includes psychological and financial abuse. Denigrating your spouse in front of the children fits within the definition of family violence. See: Ammar v. Smith, 2021 ONSC 3204; McIntosh v Baker, 2022 ONSC 4235.
A starting point to assess a child’s best interests when making a parenting order is to ensure that the child will be physically and emotionally safe. It is also in a child’s best interests when making a parenting order that his or her caregiver be physically and emotionally safe. See: I.A. v. M.Z., 2016 ONCJ 615 (CanLII). This also applies to contact orders. See: F.S. v. N.J. and T.S., 2024 ONCJ 199; V.R. v. S.R., 2024 ONCJ 262.
Courts allocating parenting time are required to consider that “a child should have as much time with each spouse as is consistent with the best interests of the child”: Knapp v Knapp, 2021 ONCA 305. It is important to acknowledge the starting point after separation is not equal parenting time, but rather what is in the best interests of the child.”