• by Samantha Rich
Originally published in the OFLM 2024-10 edition
Overview
Realistically, it is not always possible to co-parent in the same neighborhood, city or even the same country. Long-distance parenting is innately challenging, and parties have to be creative and flexible when drafting parenting plans to facilitate long-distance parenting. The main goal is that the parenting plan be child-focused to ensure that despite long-distance parenting, parents and children are able to have regular and meaningful parenting time together. Parties need to ensure that together with making an effort to ensure that there is sufficient in-person parenting time, parenting time should also be supplemented with remote parenting time, i.e. virtual. The parenting plan will have to be drafted considering the needs and circumstances of the specific child and family, as well as practical aspects such as affordability. Long-distance parenting is most successful when the parties are able to communicate effectively and work together in the best interests of the child.
AFCC-Ontario Parenting Plan Guide
The AFCC-Ontario Parenting Plan Guide (“AFCC-O Guide”) has been prepared by the Ontario Chapter of the Association of Family and Conciliation Courts to provide guidance and assist parents and their lawyers in developing child-focused, realistic parenting plans. The AFCC-O Guide provided the following guidance regarding drafting long-distance parenting plans:
Children benefit when parents reside within a reasonable distance of one another in order to ensure regular contact between the children and both parents. Long distance parenting is challenging and requires both parents to plan, be creative and be flexible to lessen the impact of the distance on the parent-child relationship.
When parents live a significant distance apart, children (at least those attending school) will inevitably have a primary residence where they attend school, but they should also generally have significant time in the care of the other parent.
The nature of the parenting schedule in these situations will depend on many factors, including the age of the children, the children’s temperament, the financial resources of the parents, and the distance between the parents’ homes. To the extent possible, parenting time at the other parent’s home should be at times that don’t significantly interfere with a child’s school and important activities. Despite the distance between homes, and to the extent it is financially feasible, visits and parenting time should occur in both locales so the parent who does not have the child’s primary residence can be involved with a child’s extracurricular activities and school life.
Opportunities for virtual parenting can help the parent without primary residence have regular meaningful contact with the child, assist in establishing routines, and enable relationship-building activities such as reading stories, singing songs and playing games. For older children, internet-based communication may allow a distant parent to assist with homework and discuss daily activities with the child. When one parent lives at a distance, it is important for the primary residential parent to not only facilitate this type of contact with the other parent, but also to send regular updates about the child’s school performance, activities and development. When these types of contacts occur, it would be beneficial for the child to have adequate privacy to meaningfully engage with the other parent (unless supervision is considered necessary due to safety concerns). (AFCC-Ontario Parenting Plan Guide, at pg. 25)
In following the AFFC-O Guide, Justice Shore held that, “While I do not feel bound by the Guide, I too find it contains helpful information in understanding a child’s developmental stage and schedules” (Czyzewski v. Fabro, 2022 ONSC 4883, at para. 15).
Justice McGee has held that, “the parenting plan guide produced by the Association of Family and Conciliation Courts — Ontario ("AFCC-O") is of great assistance in determining parenting schedules that are in a child's best interests, particularly when clinical evidence of a specific child’s age and stage of development is unavailable” (Bansal v. Kelly, 2022 ONSC 7049, at para. 34).
Lack of community roots
It appears that where parties are capable of residing within a reasonable distance of one another in order to ensure regular and consistent parenting time between the child and both parents, the court appears to be less willing to promote a long-distance parenting plan. Justice Robertson in T.K.W. v. S.R.W., held that:
Neither parent has a job, a partner or other reason that prevents them from moving. Their choice to prefer a city near their own parents and extended families does not override their child's need to develop a fluid and frequent relationship with her own two parents and to have friends in her community that she continues to see outside of school periods. They are both asking a lot from this child. Neither of their families gave any indication that their personal or financial support of their child and grandchild was conditional upon geography. While long distance parenting can work, it certainly has not worked well here. (T.K.W. v. S.R.W., 2024 ONSC 2800, at para. 121)
The court seems to suggest that if parents are able to move to live near the child’s primary residence to facilitate regular and consistent in-person parenting time, they should.
Affordability
The nature of the parenting plan will depend on many factors, including practical factors such as the financial resources of the parents, and the distance between the parents’ homes. The court may assess whether the parties are able to realistically afford the travel proposed needed to facilitate the long-distance parenting time. That being said, the overarching objective is the best interests of the child. Justice Robertson in T.K.W. v. S.R.W., held that:
Currently, the parents' career paths and personal lives are portable. Neither owns property or at this stage, even has a job ... The uncontradicted evidence is that neither parent has the financial ability to facilitate the travel they propose to maintain frequent contact between the child and the other parent. In addition to financial cost, is the toll it will take on this young child and her parents to travel long distances. (T.K.W. v. S.R.W., 2024 ONSC 2800, at para. 210)
However, cost alone may not necessarily be a barrier to an award of long-distance parenting time by the court. Justice Minnema in Childs v. Kolodziej, held that:
I appreciate that the every weekend visits may be difficult for the father given the travel involved, but he needs to put in that time for his relationship with Atlas and it is only for a short duration.
Also, in my view the Saturday to Sunday overnights will be impractical for the father and uncomfortable for the child to have in Orangeville, and as such I have required them to be in Napanee or Kingston. This will mean that the father will have to pay for accommodation (Airbnb, hotel, motel, etc.) but that is a cost that cannot be avoided. (Childs v. Kolodziej, 2023 ONSC 7275, at paras. 106-107) (own emphasis added)
Ultimately, the best interests of the child prevail, and the main goal advanced will be that parents spend regular meaningful parenting time with the child.
Existing tensions & ability to communicate
The court appears to be hesitant to allow long-distance parenting where there is a concern that a proposed relocation resulting in long-distance parenting may exacerbate any existing tensions between the parties. Justice Nieckarz in B.S. v. K.S., did not allow a relocation as there was a concern that the necessity of navigating innate challenges relating to long-distance parenting would only fuel conflict between the parties:
There is also a concern that a relocation will exacerbate the existing tensions between the parties. The Father, perhaps justifiably, is concerned that if the children relocate, his parenting time will not be prioritized. I am concerned that the necessity of navigating parenting time travel, changes to the schedule for illness or weather conditions, and other incidents of long- distance parenting time will only fuel conflict between the parties to which the children are subjected. This is not in their best interests. I find that both parents being able to actively parent the children in the same community will offer the best hope for a harmonious relationship between the parents, which is what the children want and need more than anything else... (B.S. v. K.S., 2023 ONSC 3366, at para. 78)
Where a party has a track record of denying consistent in-person parenting time between a child and the other parent, the court may not likely limit parenting time to long-distance parenting time. Justice Stewart in Ruhil v. Ruhil, held that:
I find that it is in the best interests of Pia to return to Ontario. She has been denied any consistent in person parenting time with her father since February, 2022, over half of her short life. Ms. Ruhil has not established, on a balance of probabilities, that parenting should be limited to long distance parenting. Even if that conclusion is incorrect, Ms. Ruhil has failed to meet the evidentiary standard because her actions were extreme and violated Pia's right to a relationship with both of her parents… (Ruhil v. Ruhil, 2024 ONSC 2828, at para. 32).
Clearly, where there is a history of tension and conflict between the parties, the court may not find the parties to be good candidates for successful long-distance parenting.
Conversely, where parties are able to illustrate that they are able to communicate effectively in a child-focused manner, the court may likely find the parties to be good candidates for long-distance parenting. Justice Nieckarz in J.J. v. T.H., held that:
I was pleased to hear that despite their inability to reach terms of a parenting time order, the parties have significantly improved their communication with each other since the trial. This is an extremely positive step. Since the trial, the parties have adopted a more child focused approach to their communications with each other, and in scheduling and rescheduling parenting time. Such positive communication will be vital to navigating the inevitable challenges associated with long-distance parenting arrangements. (J.J. v. T.H., 2023 ONSC 4076, at para. 4) (own emphasis added)
In order for parties to successfully co-parent from a distance, they will need to ensure that they exercise flexibility and communicate with each other in a child-focused manner. The AFCC-O Guide recommends that it is important for the primary residential parent to send regular updates about the child’s school performance, activities and development to the long-distance parent. This will ensure that the long-distance parent is actively involved and can participate in the child’s life.
Virtual parenting time
Virtual parenting time is an ideal way for the parent without primary residence to have regular meaningful contact with the child to supplement in-person parenting time. The court will assess whether the long-distance parenting time has allowed the parent and child to, “establish and maintain a meaningful relationship”. The court encourages the use of virtual parenting time to “supplement” in-person parenting time (Childs v. Kolodziej, 2023 ONSC 7275, at paras. 99-100).
Justice Minnema in Childs v. Kolodziej, held that, “… if the child is sick, if there is a weather event or the father has car troubles etc., the order still requires that a virtual visit take place. If it is a three day weekend visit, there would be three virtual visits.” (Childs v. Kolodziej, 2023 ONSC 7275, at para. 108).
Justice Tranquilli in LaBonte v. Godin, recognized that virtual parenting time was not a replacement for in-person parenting time, however, it did serve to enhance the quality of remote parenting time:
…The question is how to best fashion a parenting plan in the circumstances of the parties' lives that addresses the best interests of the child. The court recognizes that virtual parenting time is not a replacement; however, it does serve to enhance the quality of remote parenting time. The parties and their child are clearly accustomed to making the online environment part of their regular lives. (LaBonte v. Godin, 2023 ONSC 2767, at para. 132) (own emphasis added)
In order for long-distance parenting to be successful, parties need to make an effort to ensure that there is sufficient in-person parenting time, which is supplemented by meaningful remote, i.e. virtual parenting time. The AFCC-O Guide suggests that for younger children, parents should do relationship-building activities with the child such as reading stories, singing songs and playing games. For older children, parents can assist the child virtually with homework and maintain consistent communication regarding their daily activities.
Supervised virtual parenting time
Where there is a concern that one parent will use the virtual parenting time with the child to harass the other parent, the court may award supervised virtual parenting time to mitigate any risk of harassment. Justice Sherr in Al-Hadad v. Al-Harash, held that:
The mother proposed that the father arrange virtual parenting time two times each week and contact the child directly on his I-pad. She wants no contact with the father. The court does not view this as a good parenting time plan for the child. The child is too young to be placed in this position with the father.
The court is also very concerned that the father would use virtual parenting time with the child as an opportunity to harass the mother or demean the mother to the child. The court accepts that the mother stopped the virtual parenting time between the father and the child because the father was acting inappropriately on his virtual calls. Based on the father's attitude towards the mother at trial nothing has changed since the virtual calls ended in April 2022. The father remains very angry at the mother.
At this time, it is in the child's best interests to have the virtual parenting time with his father supervised by a professional parenting time agency to ensure that it is a positive experience for the child. APCO offers this service. The court will make an order that both parents register with APCO in order that it may supervise virtual parenting time.
The court will require the father to pay the costs of any professional parenting time service. (Al-Hadad v. Al-Harash, 2023 ONCJ 463, at paras. 94-97) (own emphasis added)
Supervised virtual parenting time ensures that the child is able to maintain a relationship with a long-distance parent while protecting the other parent from potential instances of harassment.
Cooperation to facilitate virtual parenting time
Justice Somji in Kim v. McIntosh emphasized that it is incumbent upon parents to facilitate virtual parenting time. She did not find the mother’s explanations regarding internet or other technological challenges preventing her from facilitating virtual parenting time convincing:
While the father could organize his calls with the eldest child, he clearly needed the mother's cooperation to facilitate the virtual calls with the other children. The children live with the mother and she is best aware of their school and other commitments. If the mother was having internet or other technological problems, it was incumbent upon her to communicate those concerns with the father and to make alternative arrangements to access the internet in public spaces or the homes of friends and family. In fact, it is clear from the correspondence filed by the father that when the mother raised technological challenges, the father offered effective solutions. Given the father resides in Australia and the importance of him being able to have regular communication with his children, I do not find the mother's personal challenges as a reasonable explanation for her failure to facilitate the father's weekly virtual parenting time for such an extensive period following the issuance of the Parenting Order. (Kim v. McIntosh, 2023 ONSC 5121, at para. 66) (own emphasis added)
The AFCC-O Guide recommends that when one parent lives at a distance, it is important for the primary residential parent to facilitate contact with the child.
Conclusion
It is important that the over-arching goal of the long-distance parenting plan is to ensure that a child has sufficient and consistent in-person parenting time with both parents, as well as meaningful remote parenting time to supplement the in-person parenting time.
Both parents need to be willing to make long-distance parenting work. The parent who has primary residence of the child will need to actively assist to facilitate meaningful parenting time with the long-distance parent.
It is clear that parties who wish to successfully co-parent and navigate the innate challenges relating to long-distance parenting, will need to work together to exercise creativity, flexibility and have open lines of child-focused communication.