One key challenge for separating or separated couples who have children of the marriage, is
determining parenting schedules.
There is no one size fits all, or standard model to expect to be ordered for parenting. The
ground rules; so to say, are the main factors in every family law case that involves children: the
best interests of the child.
The best interests of the child concerns and guiding factors are laid out in Section 37 of the BC
Family Law Act:
Best Interests of The Child:
37 (1) In making an agreement or order under this Part respecting guardianship,
parenting arrangements or contact with a child, the parties and the court must
consider the best interests of the child only.
(2) To determine what is in the best interests of a child, all of the child’s needs
and circumstances must be considered, including the following:
(a) the child’s health and emotional well-being;
(b) the child’s views, unless it would be inappropriate to consider them;
(c) the nature and strength of the relationships between the child and
significant persons in the child’s life;
(d) the history of the child’s care;
(e) the child’s need for stability, given the child’s age and stage of
development;
(f) the ability of each person who is a guardian or seeks guardianship of the
child, or who has or seeks parental responsibilities, parenting time or
contact with the child, to exercise the person’s responsibilities;
(g) the impact of any family violence on the child’s safety, security or well-
being, whether the family violence is directed toward the child or
another family member;
(h) whether the actions of a person responsible for family violence indicate
that the person may be impaired in the person’s ability to care for the
child and meet the child’s needs;
(i) the appropriateness of an arrangement that would require the
child’s guardians to cooperate on issues affecting the child,
including whether requiring cooperation would increase any
risks to the safety, security or well-being of the child or
other family members;
(j) any civil or criminal proceeding relevant to the child’s safety, security or
well-being.
(3) An agreement or order is not in the best interests of a child unless it protects,
to the greatest extent possible, the child’s physical, psychological and emotional
safety, security and well-being.
(4) In making an order under this Part, a court may consider a person’s conduct
only if it substantially affects a factor set out in subsection (2), and only to the
extent that it affects that factor.
When thinking about parenting schedules, discussing parental responsibilities becomes
inevitable. Due to the fact that during the course of one party exercising parenting time,
the question remains as to who is going to be responsible for the child’s health for
example. These are typically also decided in orders concerning parenting time – you
may want to have the responsible parent take on parental responsibility and care for the
child entirely in terms of making child care decisions regardless of whether or not they
are the ones who the child is with, but want the other parent to be informed of the
decision which is made; or you may want that only one parent to be able to act on
questions associated with parental responsibility such as where the child goes to
school. These sorts of parental responsibility questions would be directly effecting the
child and not in the child’s best interests for example, if they are to be enrolled in two
different schools or extracurricular programs due to the impact directly on education, but
also psychology and health, generally – referring back to the noted Section 37 factors,
look again at 37(2)(a) and (e). While the stress associated with a breakdown in a marital
relationship is understandable, it is also paramount that if there are children involved,
the child is able to spend time in a happy manner with both parents, and kept away from
violence and discussions even relating to court proceedings (sections 37(2)(g) and
37(2)(i)). As violence is not to be limited to the idea of physical violence alone, one must
keep in mind the psychological and emotional impacts of their words even, on an often
times small child who is similarly attempting to adjust to a new normal, alongside you.
Thus, in making parenting schedules, this could be a simple paradigm there it is a
consent order between the two parties who are guided by the above noted principles in
the same way a court would be. The arrangement can be prepared as that consent
order and formally filed in court which states who sees the child when, and can even
specify where the exchange is to occur for the child, whether it is at a party’s home, or a
safe location within the community. This can also be shared between two parties over
text, and if things are not being adhered to, that is when you may choose to obtain a
lawyer and have the court look at the fundamental terms which were an agreement and
the concerns for the child now.
Now, you may have heard of 5-2-2-5 parenting schedules and been confused as to
what this means. This essentially amounts to 5 full days with Parent A, then 2 full days
with Parent B, 2 full days with Parent A and 5 full days with Parent B. What this sort of
schedule ends up doing is achieving a full 50/50 share of parenting time. This may be
something most parties seek to achieve due to the fact that if a party has parenting time
for at least 40% of the time, they are entitled to child support – which is why seeking a
complete 50/50 parenting routine ends up being preferable as neither party is going to
be in a position to owe child support.
As a quick reminder, there is no guarantee for the child support based on parenting time
as a percentage along. Child support is typically paid from the higher earning parent to
the lower earning parent in general. For example, if a child spends 40% or more of the
time with each parent, a “set-off” calculation under Section 9 of the Federal Child
Support Guidelines is often applied, but this does not automatically mean no child
support is paid – as a basic reminder, 40 + 40 would still leave 20% of parenting time to
be calculated for, as well as expenses for exercising the same. For more, please take a
look at Lekakis v. Lekakis, 2023 BCSC 376.
If a child has routinely spent more time with one parent, and the other parent was not
involved in the child’s upbringing for example, there may be more creative solutions for
parenting. A court will generally prefer to rule in the principle of maximum contact time
for each party with their child, however, these issues are typically where you will need a
lawyer to assist you, particularly if the discussions are no longer fruitful or occurring in a
cordial manner. This principle is most helpfully illustrated in Gordon v. Goertz, [1996] 2
S.C.R. 27.
A common model perhaps heard in court is the Joyce Model for parenting. This does
not mean that the parent is “winning” who is ruled as the primary guardian. The Joyce
Model is a commonly chosen approach preferred by the courts as it seeks for both
parties to communicate and attempt to reach an agreement for a significant concern
that is related the child or children involved. What this means is that there is typically
unequal parenting time, however, both parties are remaining guardians of the child(ren).
In the Joyce Model, consultation is not only required, it is mandatory. If there is no joint
decision made by both parties, the primary caregiver is given the right to make the final
decision – this does mean the parent who has more parenting time with the child(ren).
The other parent is able to seek to oppose a decision made and is always available to
receive information concerning the child from independent third parties, like educators
or doctors. If the decision is opposed or even if the information is not freely given by the
parent in possession of it, that is when you may seek to go to court in order to have a
review of the decision, and seek for the court to make a final determination. This does
not guarantee that the court will change the decision in relation to the child – that should
always be kept in mind that simply going to court, does not mean the decision will be
made null and void, and in your favour. The court is similarly guided by the best
interests of the child, and what you may believe is an incorrect decision, may still
fundamentally be in the child’s best interest.
Feel free to call our office and book an appointment with one of our many skilled
lawyers practicing in family law who will seek the best for you and your children.