The parties agreed that a 'nesting arrangement' would be less disruptive for the child
The Ontario Superior Court of Justice has recently ruled that in determining parenting time, courts should give more weight to the child’s best interests, rather than the maximum contact principle.
In Hughes v. Hughes, 2023 ONSC 2359, Jaclyn and Shawn Hughes were married in 2014 and have a child who is now in second grade. Jaclyn brought a motion requesting an order for a "nesting" arrangement wherein she would have primary care of her son in the matrimonial home. The father, Shawn Hughes, would have parenting time every second weekend. She further requested that each party pay the carrying costs of the matrimonial home on a pro-rata basis following their respective incomes until it is sold.
Shawn agreed that a nesting arrangement would be less disruptive for the child but proposed that the arrangement should be structured such that the parents followed a shared parenting regime alternating on a week-about basis.
Jaclyn claimed she was the child's primary caregiver and was practically his sole caregiver until she started working. She explained that the child's maternal grandmother has also assisted in caring for him since he was born.
The Ontario Superior Court noted that most of Jaclyn's affidavits consisted of minimizing the father's alleged little to no involvement in the child's life and attempting to "assassinate" the father's character with unhelpful and irrelevant allegations. On the other hand, the court found that the father's affidavit expressed concern for his son's recent aggressive and problematic behaviour but focused on refuting Jaclyn's allegations against him, many of which are irrelevant to assessing the child's current needs in the best interest analysis.
The court further found that each party spent time discussing the maximum contact principle. The mother argued it is no longer needed, while the father cited case law suggesting it can still be applied in certain situations.
Parenting time must be consistent with the child's best interests
The Divorce Act mandates that in allocating parenting time, the court must consider that a child have as much time with each spouse as is consistent with the child's best interests. The court emphasized that the inquiry is "what is in the child's best interests," not "whether an order should be made based on the maximum contact principle."
The court noted that the parties were involved in high-level conflict. The evidence shows that the parties love their son, but their ongoing conflict is causing him to suffer. They cannot afford to buy each other out of the matrimonial home, so they continued living together, which worsened their conflict by their apparent need to build their family law case or "protect themselves" legally. They had been recording each other in the home and wearing body cameras, likely to use as evidence in their legal case. The court acknowledged that this was the environment the child was living in.
The court noted that neither parent provided evidence that the other cannot care for their child's physical, emotional, or psychological well-being, despite police and child and family services involvement. The court found that Shawn is not an uninvolved father, as he is hands-on, involved with the child's school, and has a good relationship with him. The court said there was no evidence to support the idea that the child's best interests would be better served by spending more time with his mother than with his father.
The court wrote in its decision, "What is important is the fact that both are good parents. Both are able to provide K.H. with what he needs, both were an important part of his life prior to separation, and both continue to be an important part of his life now."
Accordingly, the court ordered a four-day rotation in the shared parenting regime. The court permitted the parties to follow a "nesting arrangement" such that each would have exclusive possession of the matrimonial home when caring for their child.