The Best Interests of the Child Is the Law. Equal Parenting Is Only One Possible Outcome.

The Best Interests of the Child Is the Law. Equal Parenting Is Only One Possible Outcome.

Many parents walk into family court believing the law starts with a 50/50 parenting schedule.

It doesn't.

The law starts somewhere entirely different.

It starts with one question:

What is in the best interests of this child?

One of the most common misunderstandings in Canadian family law is the belief that, after separation, children are automatically entitled to equal parenting time with both parents.

That is not the law.

The starting point in Canadian family law is not equal parenting.

The starting point is:

What is in the best interests of this child?

Equal parenting may be the right answer for many families. But it is an outcome that must be determined through the best interests analysis—it is not the legal test itself.

The Divorce Act: the best interests of the child is the governing test

When Canadian courts make parenting orders, the governing principle is found in section 16(1) of the Divorce Act:

The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.

This is the starting point.

Section 16(2) further directs that, in considering the best interests factors, the court must give primary consideration to the child's physical, emotional and psychological safety, security and well-being.

Together, sections 16(1), 16(2), and 16(3) of the Divorce Act establish that the child's best interests are the only legal test governing parenting decisions.

The Supreme Court of Canada has consistently affirmed that parenting decisions must remain focused on the child and that the best interests of the child are the overriding consideration.

The focus is not on what a parent wants.

The focus is on what the child needs.

The factors courts consider

Section 16(3) of the Divorce Act provides a list of factors courts must consider when determining a child's best interests.

These include:

• the child's needs, including the child's need for stability;
• the nature and strength of the child's relationship with each parent and important people in the child's life;
• the history of care of the child;
• each parent's ability and willingness to meet the child's needs;
• each parent's ability and willingness to communicate and cooperate regarding the child;
• family violence and its impact on the child;
• relevant criminal or civil proceedings that affect the child's safety, security, or well-being.

However, these factors are not a mathematical formula.

A court does not add up the factors and decide which parent has the higher score.

No single factor automatically determines the outcome.

The court must look at the whole picture of the individual child, including the child's circumstances, needs, relationships, and the ability of each parent to meet those needs.

The child's best interests are individualized

Every child is different.

Every family is different.

That means there is no "default" parenting schedule that automatically applies after separation.

Two families may have very similar circumstances and receive different parenting orders because the court is assessing the needs of a particular child—not applying a standard parenting schedule.

The answer depends on the evidence presented in each individual case.

Equal parenting is not the legal test

A common misconception is that Canadian family law creates a presumption of equal parenting time after separation.

It does not.

Much of the confusion comes from the idea that children generally benefit from having both parents involved in their lives. That principle is reflected in the Divorce Act. However, it is often misunderstood as creating a legal entitlement to equal parenting time.

It does not.

Canadian courts have repeatedly confirmed that there is no automatic presumption of equal parenting time.

In Barendregt v. Grebliunas, 2022 SCC 22, the Supreme Court of Canada confirmed that the maximum contact principle must always remain in relation to the child's best interests. It does not create a presumption of equal parenting time.

This is an important distinction.

The law recognizes that children often benefit from meaningful relationships with both parents.

But the legal question is not:

"How do we divide parenting time equally?"

The legal question is:

"What parenting arrangement best meets this child's needs?"

There is no presumption of equal parenting in Ontario

Ontario courts have repeatedly rejected the idea that equal parenting is the default outcome. Instead, they have emphasized that parenting schedules must be based on the evidence before the court and the individual child's circumstances.

This principle has been discussed in cases including:

• Bembenek v. Bembenek, 2019 ONSC 4050
• Bressi v. Skinulis et al., 2021 ONSC 4874
• B. v. W., 2022 ONSC 934
• K.M. v. J.R., 2022 ONSC 111

These decisions reinforce that there is no single parenting schedule that automatically works for every family.

The maximum contact principle does not create equal parenting- but may end up there

Section 16(6) of the Divorce Act provides that, when making a parenting order, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the child's best interests.

The important words are:

"as is consistent with the child's best interests."

This principle encourages children to have meaningful relationships with both parents where appropriate.

However, it does not create an automatic default to equal parenting time.

Meaningful involvement does not necessarily require equal parenting time. Depending on the child's circumstances, meaningful relationships can exist under a variety of parenting schedules.

The maximum contact principle must always give way when it conflicts with the child's best interests.

The child's needs remain the priority.