In Hughes v. Hughes, 2023 ONSC 2359, a recent case from the Ontario Superior Court of Justice, the court confirmed that when deciding on parenting time, courts should prioritize the best interests of the child over the maximum contact principle.
Below, we’ll discuss this case in further detail and its implications for family law claimants.
What is Parenting Time?
Parenting time refers to a child’s time with each parent following a separation or divorce. Divorced or separated spouses will usually determine parenting time independently, through alternative dispute resolution, or – where the parties cannot agree – in the courts.
The Best Interests of the Child vs. Maximum Contact
In family law cases, the “best interests of the child” and “maximum contact” are principles applied when determining parenting time.
The child’s best interests refer to the principle that any decisions regarding their care and upbringing should be made in their best interests, considering the child’s physical and emotional needs, relationships with parents and family members, and other relevant factors.
The maximum contact principle refers to the position that children should have frequent and ongoing contact with both parents following a separation or divorce and promotes equal time with the child or children in parenting arrangements.
The Parties’ Relationship Broke Down
The parties entered a relationship in 2011 and got married in 2014. Their only child, K.H., was born in 2015. During their relationship, the mother was “practically [K.H.’s] sole caregiver” until she began working in 2020, and the child spent lots of time with his maternal grandparents.
Unfortunately, the parties’ relationship deteriorated, requiring the involvement of the police and children’s aid services. The parents could not afford to buy each other out of the matrimonial home, so they lived together in a high-conflict situation (including recording each other in the home).
The parties also noted that their child had been “exhibiting aggressive and problematic behaviours” at school.
The Mother Wanted a Nesting Order
At the court hearing, the parties did not have an agreement or order for parenting time. The mother brought an application seeking a “nesting arrangement” where she would primarily care for K.H. The child’s father would have parenting time every second weekend and every second Wednesday in the matrimonial home, which each party having exclusive possession of the home during their time with the child.
The Father Opposed the Motion
The father opposed the mother’s motion, seeking a different parenting arrangement. While he agreed that a nesting arrangement – where each party used the matrimonial home during their parenting time – would be best for the child, he believed the parents should split parenting by alternating weeks with the child.
The Court’s Analysis of Parenting Time
In coming to their conclusion, the court made the following observations regarding the parties’ case and parenting time, generally:
The Parties’ Evidence and Submissions
The court noted issues with each party’s evidence in relation to the legal issue at hand. Specifically, the mother filed three affidavits, the evidence within each focusing on unhelpful or irrelevant allegations regarding the father.
While expressing concern for his child’s behaviour in his affidavit, the father focused his evidence on refuting the mother’s unhelpful or irrelevant allegations rather than focusing on information relevant to parenting time.
Nevertheless, the court noted that both parties referenced the “maximum contact” principle in their submissions. The mother argued that this principle did not apply, while the father argued that the maximum contact principles for parenting time should be applied in certain circumstances.
Parenting Time and the Divorce Act
Under s. 16(6) of the Divorce Act, RSC 1985, c 3 (2nd Supp), courts must give effect to the principle that a child should have as much time with each spouse as is consistent with the child’s best interests when allocating parenting time.
The Best Interests of the Child
Having confirmed that they should look at the best interests of the child analysis when determining parenting time, the court considered the facts at play. They noted the tumultuous nature of the parents’ home life, solemnly noting, “This is what K.H. has been living with.”
However, in their analysis, the court noted that neither parent presented evidence that the other parent could not meet the child’s needs. Furthermore, the evidence indicated that the child’s father was committed and involved in his life, being hands-on and involved with the child’s schooling and recent behavioural issues.
The court also noted the need for peace in the child’s life and his mother’s assertion that the child may find it difficult to go without seeing one of his parents for seven days. As a result, the court decided that the parents would use a four-day parenting time rotation. In this situation, each parent would have four days of parenting time with the child in the matrimonial home and then rotate.
Costs of the Matrimonial Home
In her application, the mother had requested that the costs of maintaining the home be shared between the parties on a pro-rata basis until it was sold. Given the court’s decision that the parties would spend equal time in the home, they declined to make an order, instead stating that if one party requires support, they should request it later.
What This Case Means for Family Law Claimants
Interestingly, despite confirming that the maximum contact principle should not be used when determining parenting time in Ontario family law cases, the court made a decision that aligns with its principles. This is unsurprising, given that the child’s best interests may, in many cases, necessitate equal time spent between their parents.
Each family – and child – is unique, so parenting time analyses can become extremely complicated. However, the guiding question should always be: what is in the child’s best interests? Hiring a family law lawyer can help clients navigate this complex and emotional process while prioritizing the child’s best interests.
For Comprehensive and Compassionate Family Law Advice, Contact Tierney Stauffer LLP in Ottawa
The skilled family law and divorce lawyers at Tierney Stauffer LLP are passionate about helping clients navigate the complicated family law landscape after a separation or divorce. Educating clients about their rights, obligations, and options empowers them to make the best decision for themselves and their families. Our firm provides honest, practical legal advice that helps preserve our client’s rights and protect their interests while avoiding unnecessary and costly conflict.