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by Daniel Gloade on June 8, 2015

Right now, judges assume that parents best satisfy their child’s best interests when a child spends a majority of time residing with one parent while the other parent cares for the child on specific weekends and some holidays.  Although not every judge will use this pattern in making a final order, judges assume it is the best pattern until, and unless, someone can list compelling reasons why it should not be followed.

Some parents (especially fathers) and critics suggest that the default assumption should be equal shared custody.  In essence, a judge should assume that the courts should assume that the child spending equal time residing with each parent is in their child’s best interests unless there is clear evidence that the judge should use another pattern

There is legislation supporting both viewpoints.  Children’s Law Reform Act  RSO 1990, c C.12.  Section 24 2(c) states that one factor to be considered is ”the length of time the child has lived in a stable home environment;”

After many separations, the child spends the majority of time with one parent and the other parent exercises access.  This becomes the status quo.  Judges, often citing this provision, believe that the court should continue the status quo unless there is a good reason to do otherwise.  In practical terms, the parent who has the child the majority of the time will likely keep that child in the final order.

The other viewpoint is seen in the Divorce Act.  It states as follows:

Divorce Act, RSC 1985, c 3 s. 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.”

Although one statute is from Ontario and the other is Federal, in reality the courts have used the wording of both statutes to evaluate a child’s best interests.

As stated before, parents asking for shared parenting have been largely unsuccessful.  One can see the court’s emphasis on maintaining the status quo reaffirmed in the recent case of Mills v. Hachey, 2015 ONCJ.   In that case, the Honourable Justice E.B. Murray considered the father’s re quest of having each parent have two fixed weekdays with the child and each parent would have alternating Friday, Saturday and Sunday with the child.  The Father cited the Divorce Act to support the merits of his plan.

Justice Murray considered the case law stated that there is nothing in either statute that required him to consider a shared parenting plan as the default framework because it such a framework may not be in the child’s best interests and quality of time is as important as quantity of time.

Justice Murray held that the child spent the majority of time with the mother when the parties were together.  Adopting a shared parenting plan would deviate from the status quo.  This change in lifestyle would add stress to the child’s life.  The mother’s case was accepted.

There was proposed legislation to force judges to use the shared parenting arrangement as the default solution to child custody questions.  You can read the text here.  This legislation was defeated, however.  I suspect that the controversy will be ongoing, however.

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