CANADA Trends and Developments Contributed by: Heather Hansen, Shannon Beddoe, Maureen Edwards and Victoria Lunetta, McCarthy Hansen & Company LLP
authority for the presumption of equal parenting time. Paragraph 10 states: “Counsel for Ms Slade suggests that a deter - mination must be made as to which parent is the primary caregiver. The corollary relief order is silent in that respect and states that there has been a joint and shared custody since Novem - ber 1997. I do not find it helpful to go behind that order and review the evidence before the date of separation. What is clear to me is that there is a true shared custody arrangement where it would be difficult to say one parent or the other is the primary caregiver. Rhea has a good relationship with both her parents and the present arrange - ment achieves the desired goal of maximising contact between Rhea and both her parents. It is my view that the move of Ms Slade is not rel - evant to meeting the needs of Rhea, who will clearly be better off with both parents remaining in Whitehorse where she has friends, her school and is involved in a developmental gymnastics program for the past two years. The move to Prince George would be a disruption of her life at this time.” Folahan v Folahan, 2013 ONSC 2966 Similar to Slade, this 2013 case demonstrates how, in the years following Young v Young and Gordon v Goertz, courts made sense of Sec - tion 16(10) as an authority for the presumption of equal parenting time. Paragraph 14 states: “The principle of maximum contact is an impor - tant consideration under either legislative regi - men when determining the best interests of chil - dren. Contact with both parents is the children’s, not the parents’, right. Where, as in this case, a parent argues for unequal contact between the children and each of their parents, the onus is on that parent to rebut the presumption.”
Rigillo v Rigillo, 2019 ONCA 548 and Rigillo v Rigillo, 2019 ONCA 647 In the trial decision in this matter, the trial judge ordered that the child would primarily reside with the mother, and reside with the father one over- night each week and alternating weekends. The court of appeal found that the trial judge had not adequately considered the maximum con - tact principle and required submissions from both parties as to the appropriate schedule for the child. In ordering an expanded but unequal parenting schedule, the court of appeal at paragraph 23 stated that that the maximum contact principle does not necessarily require equal parenting time. Reconciling the jurisprudence The differentiating stances on the maximum contact principle between the above-mentioned decisions reflected the tension and uncertainty associated with the principle, being subject to unpredictable and often conflicting judicial inter - pretation and in fact ultimately only serving to create confusion as to whether the maximum contact principle constituted a sword or a shield for the court when battling parents embroiled in high-conflict parenting litigation and setting up equal-time orders. While many decisions pre-2021 seemed to accept that Section 16(10) instructs the pre - sumption of equal parenting time, there was inconsistency and confusion about where the “child’s best interests” inquiry fit within the defaulting presumption. Ultimately, in the inter - vening 36 years from 1986 to the 2021 Amend - ments, the notion of whether Section 16(10) of the Divorce Act meant a standalone presump - tion of equal parenting time remained the subject of fierce debate.
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