“Subsection 24(2) of the Children’s Law Reform Act (the Act) provides that the court must give primary consideration to the child’s physical, emotional and psychological safety, security and well-being in determining her best interests.
The list of best interests considerations in the Act is not exhaustive. See: White v. Kozun, 2021 ONSC 41; Pereira v. Ramos, 2021 ONSC 1736. It is also not a checklist to be tabulated with the highest score winning. Rather, it calls for the court to take a holistic look at the child, her needs and the people around her. See: Phillips v. Phillips, 2021 ONSC 2480.
Subsection 33.1(2) of the Act addresses the importance of the parties protecting children from conflict. It reads as follows:
33. 1 Protection of children from conflict
(2) A party to a proceeding under this Part shall, to the best of the party’s ability, protect any child from conflict arising from the proceeding.
Section 28 of the Act sets out the different types of parenting orders that a court can make. The court’s powers under the Act are broad and purposive. It can allocate parenting time and decision-making authority between the parents, impose a schedule, provide for the means of communication to be used by the parents, and make any other orders that it considers appropriate to secure the children’s best interests. See: S.S. v. R.S., 2021 ONSC 2137.
Subsection 24(6) of the Act states that in allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child. This was recently interpreted by the Ontario Court of Appeal in Knapp v. Knapp, 2021 ONCA 305 as follows:
(3) Maximum contact
[30] The appellant submits that the trial judge erred by placing an onus on her to establish that equal parenting was not in the children’s best interests. She relies on the trial judge’s reference to Folahan v. Folahan, 2013 ONSC 2966, [2013] W.D.F.L. 4357, where the trial judge said that the onus is on a parent to rebut the presumption of equal time. As this court said in Rigillo v. Rigillo, 2019 ONCA 647, 31 R.F.L. (8th) 361, at para. 13, the maximum contact principle does not necessarily require equal parenting time.
[31] The Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) in force at the time of the trial addressed the maximum contact principle:
16(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.
[32] The current provision of Divorce Act, is more direct:
16(6) 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.
[33] The Children’s Law Reform Act, R.S.O. 1990, c. C.12, provided:
20 (1) Except as otherwise provided in this Part, a child’s parents are equally entitled to custody of the child.
[34] The trial judge applied these principles and did not mistake maximum parenting time with equal time. Nor did she place an onus on the appellant to rebut equal parenting time. Her reasons, read as a whole, demonstrate that she was alive to the principle that a child-focused approach to achieving as much parenting time as possible with each parent is the objective of the maximum contact principle. It may end up being equal time. It may not. Each family is different, and the principle is a guide set out to benefit children.
An equal-parenting time plan requires a high level of communication and coordination between the parties, particularly when the child is very young. The parents will have to coordinate schooling, medical appointments and extra-curricular activities for the child. This should not be ordered where the evidence indicates that implementing such a plan, given the dynamics between the parties, would be an invitation to conflict and chaos, and would be destabilizing for the child. See: L.B. v. P.E., 2021 ONCJ 114; L.I.O. v. I.K.A., 2019 ONCJ 962.”