To Share or Not to Share: When and Why Courts Order Shared Parenting

Balke v O’Conner 2017 ONSC 2491

This case involves the parents of a three-year old child and deals with the contested interim parenting arrangement. Specifically, Justice Newton of the Ontario Superior Court of Justice is tasked with determining what the status quo was in relation to the child before the parties’ separation.

BACKGROUND

The parties were married in April 2015, and prior to that were in a relationship since January 2011. The parties separated in 2016, and had one three-year-old daughter, who was born in July 2014.

Both parents worked full-time; the mother as a social worker, and the father was a Sergeant with the Canadian Army.

The mother testified that the father was abusive and had difficulties with alcohol. Contrastingly, the father’s friends and colleagues described him as an excellent father and deposed that he had no issue with abuse or alcohol. Surprisingly, even the mother’s own sister testified that the father was a “very loving and hands on father” and she further deposed that there was a definite and strong bond between the father and daughter.

Given their positions, the mother sought that the parenting “status quo” continue, and further sought monthly child support in accordance with the Child Support Guidelines; and the father sought joint custody or alternatively, a finding that the determination of custody was unnecessary at this time. The father further sought shared parenting, and argued that there should be no child support payable because the parties’ incomes are roughly equivalent.

ANALYSIS

Justice Newton analyzed the law and cited section 16(1) of the Divorce Act and section 24(2) of the Children’s Law Reform Act.

Justice Newton further considered the “best interests of the child” test from Young v Young, [1993] 4 SCR 3, and the Ontario Superior Court of Justice’s previous decisions of Madill v Madill, 2014 ONSC 7227 and Batisinda v Batsinda, 2013 ONSC 7869.

Justice Newton made specific mention of the fact that the phrase “status quo” does not refer to a situation unreasonably created by one party after the separation, such that it creates a tactical advantage in the litigation.

Given the facts of this particular case and the law, Justice Newton concluded that the “status quo” as asserted by the mother was not determinative in this matter. In considering the best interests of the child and the maximum contact principle, Justice Newton held that in this case, it was in the child’s best interests that her parenting be shared equally by both of her parents. Justice Newtown further specified a temporary shared parenting schedule.

We learn from this case that courts are likely to order shared parenting – even where the child is just three-years-old – in cases where both parents are working full time and have been previously heavily involved in the child’s care and upbringing.

Andrew Feldstein

The Feldstein Family Law Group (FFLG) is one the largest family law firms that practices Family Law exclusively in Greater Toronto, with ten lawyers and counting. The boutique law firm has won the Top Choice Award for Family Law™ in Toronto for the past eleven years (2007 to 2017 inclusive).

Managing Partner Andrew Feldstein has been practicing family law for more than 20 years and frequently comments on Family Law issues through the media. The Feldstein Family Law Group offers vast written, video, and media resources on its website to those who find that they need to end their relationship.

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