The “Parenting Time” Factor – a ”child-focussed” approach.

There are a few basic principles in family law: child support is the right of the child; financial disclosure is required; Court Orders are to be followed. But there are also a few principles the Courts and private Arbitrators apply in determining the Parenting Time (whether primary or shared) parents enjoy with their children. There are at least five (5) basic parenting principles Judges and Arbitrators may apply in determining Parenting Time of children, basically that:

● Maximum Contact with Each Parent – children (presumably in most cases) benefit from spending as much time as possible with each parent [as set out in Section 16(10) of the (old) Divorce Act and affirmed in the Supreme Court of Canada cases of Young v. Young (1993) and Gordon v. Goertz (1996)] in order to maintain the contact and relationship with both those parents (sometimes considered a “parent-centric” approach);

● Incremental Increases in Parenting Time – increases in Parenting Time should be staged over time (ie. not go “from 0 to 60” overnight);

● Short, Frequent Contact with Each Parent – children should see each parent frequently for relatively short periods of time (as they usually did when their parents still lived together);

● Voice of the Child – children (when they are old enough and mature enough) should be able to have some input (“a voice, but not a choice’) in the Parenting Time decisions that affect them, and;

● Best Interests of the Child – Parenting Time decisions should be “child focussed” and only consider what is best for the child (as determined by numerous specific factors set out by legislation or caselaw).

But it was often felt that these Parenting Time principles (particularly the “Maximum Contact” and “Best Interests of the Child” principles) were somewhat conflicting and even contradictory. With so may principles, which ones applied and, if contradictory, which ones took priority?

Divorce Act Updates

Amendments to the Divorce Act in early 2021 attempted to address this by clarifying [at para. 16(1)] that “[t]he Court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order”, and then going on [at para. 16(3)] to set out a non-exhaustive list of factors Courts must look at in determining the “best interests of the child”. Section 16(10) of the Divorce Act (the so-called “Maximum Contact Rule”) was also replaced with Section 16(6) to confirm that the child should have as much time with each parent “as is consistent with the best interest of the child”, removing the presumption that “Maximum Contact” with each parent is automatically in the child’s best interest.

Simple? Not so much.

Fortunately, subsequent Alberta and Supreme Court of Canada cases have attempted to clarify this. Even pending the above amendment of the Divorce Act, the “Maximum Contact Rule” was still being considered by the Alberta Courts. In 2020, the Alberta Court of Appeal stated [DAF v. SRG (2020 ABCA 25 at para. 20]:

“While the chambers judge does advert to the best interests of the child, he was obliged to consider all factors relevant to determining best interests, and to act on the evidence. One such consideration, stressed by the appellant, is the principle that children should have maximum contact with each parent.  The maximum contact principle, as established by Parliament in the Divorce Act is described by the Supreme Court of Canada in Gordon v. Goertz at para. 24:

The “maximum contact” principle, as it has been called, is mandatory, but not absolute. The Act only obliges the judge to respect it to the extent that such contact is consistent with the child’s best interests; if other factors show that it would not be in the child’s best interests, the court can and should restrict contact: Young v. Young..

However, by 2021, the Alberta Court of Appeal was saying (AR v. JU, 2021 ABCA 337, at para.’s 79 – 81):

“It is true that the many factors that inform what is in the best interests of a child, as in s.18 of the Family Law Act, often do not point in the same direction.  And while maximum contact with each parent is an important factor, it has always been informed by best interests considerations… Further, as of March 1, 2021, Parliament has shifted the maximum contact role to secondary status under the Divorce Act.  Both the Divorce Act and the Family Law Act place the best interests of the child as the primary focus.”

More recently (2022), even the Supreme Court of Canada has had an opportunity to re-address this issue, holding that the “Maximum Contact” principle is only significant to the extent that it is in the children’s best interests, stating: (Barendregt v. Grebliunas, 2022 SCC 22, at para.’s 133 – 136):

“What is known as the maximum contact principle has traditionally emphasized that children shall have as much contact with each parent as is consistent with their best interests. A corollary to this is sometimes referred to as the “friendly parent rule”, which instructs courts to consider the willingness of a parent to foster and support the child’s relationship with the other parent, where appropriate. Both of these considerations have long been recognized by the Divorce Act…

However, in the years since Gordon’s time, some courts have interpreted what is known as the “maximum contact principle” as effectively creating a presumption in favour of shared parenting arrangements, equal parenting time, or regular access. Indeed, the term “maximum contact principle” seems to imply that as much contact with both parents as possible will necessarily be in the best interests of the child.

These interpretations overreach.

It is worth repeating that what is known as the “maximum contact principle” is only significant to the extent that it is in the child’s best interests; it must not be used to detract from this inquiry.  It is notable that the amended Divorce Act recasts the “maximum contact principle” as parenting time consistent with the best interests of the child: s.16(6). This shift in language is more neutral and affirms the child-centric nature of the inquiry. Indeed, going forward, the “maximum contact principle” is better referred to as the “parenting time factor”.

So many principles: “Maximum Contact Rule”. “Friendly Parent Rule”. Now “Parenting Time Factor”. It is clear (and true) that family law principles, particularly regarding parenting, adapt and change over time. Fortunately, we are a long way away from the “tender years” principle that held that children (at least when they were very young) should primarily be with their mothers. But the principles Courts and family law Arbitrators apply when determining parenting (and other issues) regarding children adapt due to societal changes (norms, domestic abuse, economic realities, etc.).

But one thing remains clear. When it comes to allocating parenting time, there are no presumptions. As noted by Alberta Court of Justice Judge P.G. Pharo [LC v. KK (2021 ABPC 12) at para. 26]:

“It must be stated that there are no presumptive starting points in parenting. There is no presumption in favour of equal parenting. There is also no presumption in favour of the custodial parent. There is no presumption in favour of the status quo: … There is no presumption in favour of maximum contact: … The only determinant is what is in the best interests of the child.”

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