In regards to parenting time, it is important to recognize the difference between a motion for a temporary order versus a decision made by a judge at trial. The have different focus during the motions as opposed to trials. This is simply because motions are limited in their nature and the amount of material lawyers or parties submit to the judge is also limited. Usually parties do not testify orally during motions. When facts are contradicted in the parties’ materials, judges are limited in terms of what they can rely on in the Affidavits filed by the parties.
Basics
This article talks about some basic applicable principles at a motion hearing for an interim order.
The best interest of the child is the sole legal test for decision-making and parenting time orders.
A court must make a determination based on the best interests of the child. The court will take into account the various factors set out in section 24 of the Children’s Law Reform Act (Anderson v Penny, 2022 ONSC 4770 (unreported) at para 13).
Decision of Anderson v Penny
As Charney J. stated in Anderson v Penny: “often in these cases, “best interest” is determined by maintaining the status quo”(Ibid at para 14.). The status quo is particularly important on an interim motion because the court is often not in a position to make factual findings inf there are conflicting affidavits (R.C v L.C. 2021 ONSC 1963 at para 62 as quoted in Anderson v Penny at para 15 and Pancel v Henri, 2012 ONSC 546 at paras 25-26.).
Charney J. stated in Anderson v Penny that:
a party cannot unilaterally alter the status quo by denying the other party parenting time without a court order of a formal agreement. The status quo does not refer to a situation unreasonably created by one party after separation to create a tactical advantage in the litigation. The status quo may be stablished by reference to the parents’ practice or the child’s routine prior to separation.
What Does the Decision in Anderson v Penny Mean?
The maximum contact principle provides that a child should have as much time with each parent as is consistent with the best interest of the child. (Children’s Law Reform Act, R.S.O. 1990 c. C12, s. 24(6).).
A young child with attachments to both parents needs sufficient contact with both parents. However it should be without prolonged separations to maintain a meaningful and close relationship with them. (Wilson v. Wilson, 2015 ONSC 479, at para. 63.)
The AFCC-O Parenting Guidelines suggest that a child of age 3-5 years old may be spending up to three overnights with each parent if that child has been cared for by the parents. (AFCC-O Parenting Plan Guidelines at page 21). The Guidelines suggest different arrangements for different age categories of the children. It is important to look into the Guidelines and see what they recommend. The guidelines are not binding on judges. It means the judges do not have to follow them. However, they often find the Guidelines a helpful tool. It is not uncommon for the judges to agree with the approach taken in the Guidelines.
At Progressive Legal Solutions (PLS) we can help you assess your case properly. We can advise you what options you have with respect to obtaining a court order regarding parenting time on an interim basis.
Parenting time is an important issue in many family law cases or during a divorce or separation. PLS is the right firm to help you navigate during these trying times. Book Your Consultation Today!