• by Ainsley Doell
Originally published in the OFLM 2024-05 edition
Overview
It can be challenging to figure out how to craft a parenting plan that is in a child’s best interests. The Association of Family and Conciliation Courts of Ontario’s “AFCC-Ontario Parenting Plan Guide” is a useful tool for this purpose. This article briefly outlines what is found in this guide, as well as reviewing recent decisions from the Ontario Superior Court where judges used this resource to support the parenting orders that they made.
Introduction
As a family law lawyer, it is one thing to tell your clients to consider their child’s best interests when crafting a parenting plan, and it is quite another to assist them in understand what exactly that means.
The Association of Family and Conciliation Courts of Ontario “AFCC-Ontario Parenting Plan Guide” (“the Guide”), published in January 2020, is a welcome but perhaps underutilized tool for this task.
For many parents who feel that they are better suited than their co-parents to meet their child’s needs, the answer to this question may feel fairly simple: they should be their child’s primary caregiver. But the fact of the matter is that responding to a child’s best interests is often more nuanced.
Starting at the client level, the Guide is a useful tool for explaining how ideal parenting plans may shift with a child’s developmental stage. Before a court, when used correctly, the Guide can provide helpful and persuasive support to convince a judge that your client’s parenting plan is in their children’s best interests.
Additionally, the task force who created the Guide is an impressive who’s who in family law: Some notable individuals include Professor Nicholas Bala, Dr. Rachel Birnbaum, Dr. Shely Polak, Brian Burke and Jennifer Wilson.
This article will touch briefly on the different parenting plans that are recommended in the Guide for different developmental stages, but readers are best suited consulting it themselves.
The article will then move to a consideration of recent case law, observing five very recent cases where the Guide has been cited to support a parenting plan that was ordered, whether the litigants cited the Guide themselves or not. Interestingly enough, at least this year, there appears to be no reported cases in Ontario where judges have referred to the AFCC Guide but declined to follow its recommendations.
AFCC-O Parenting Guidelines
Justice Chappel has recognized the AFCC-O Parenting Guide as an “extremely helpful” tool, providing “valuable information and guidance to those involved in developing child-focussed parenting plans”. She has also noted that the Guide was created “with extensive input from legal, mental health and social services professionals” (McBennett v. Danis, 2021 ONSC 3610 at para. 92).
The Guide was assembled as a response to a noted lack of parenting plan resources in Ontario, as well as an under appreciation of the importance of tailoring parenting plans to the differing needs of children at various developmental stages (see Nicholas Bala & Justice Andrea Himel, “Using the AFCC-O Parenting Plan Guide and Template: Resources for Ontario Family Lawyers and Their Clients”, 2020 CanLIIDocs 3849).
The Guide is also accompanied by templates of possible parenting plans and verbiage that may be used.
- Different parenting plans for different developmental stages
At each stage, the Guide provides schedule suggestions as well as general considerations that may inform the establishment of a parenting schedule. It is important that the below suggestions are not read in isolation from these considerations.
The appropriate parenting plan for a child also strongly depends on the child’s history of care and the involvement of each parent.
As a child gets older, their input should also become more significant in crafting a parenting plan, in recognition of their growing maturity and also the importance of the routines and relationships that they are forming outside of the home.
- Infants: Birth to 9 months (pgs. 13-15)
- Should not be away from either parent for more than a few days, to develop a healthy attachment to each;
- Overnight parenting with a non-residential parent “may be appropriate, preferably in surroundings familiar to the infant, if that parent has become an active involved caregiver”; and
- A communication log should be kept by the parents, to maintain routine and habits.
- Babies: 9 to 18 months (pgs. 15-16)
- Relevant factors:
- Each parent’s prior involvement in caretaking routines;
- Each parent’s ability to identify and respond to the baby’s needs;
- The baby’s “emotional, social, physical, cognitive development”
- The baby’s temperament
- Suggested schedule is much the same as for infants, but it is recommended that the child sees each parent “every two to three days”;
- A communication log is “essential” regarding developmental changes, milestones, and routines;
- Toddlers: 18 to 36 months (1 ½ years to 3 years) (pgs. 17-18)
- Parenting time can be shared equally (provided that both parents have shared the caretaking responsibility, the child has “an easy temperament”, or the child has siblings on a shared parenting schedule;
- A primary residence may be more appropriate where there are communication issues between parents, the child has difficulty with transitions, etc.
- In this case, frequent contact with other parent including overnight visits and contact during the week may be appropriate, such as “one or two 4 to 6 hour blocks and one or two non-consecutive nights”
- Preschoolers: 3 to 5 years (pgs. 18-19)
- The child should reside with a parent that has been primarily responsible for their care, with a graduated schedule to increase the “involvement and skills of the other parent”;
- E.g., 4 hours at a time, 2-3 times a week; graduating to one longer period of parenting that may include an overnight. Once comfortability of the child has been established, a 1-2 overnights a week may be introduced.
- Where both parents have been equally involved in the child’s care, it is not recommended to have more than three nights away from either parent.
- Early School Age Children: 6 to 9 years (pgs. 19-22)
- Where parenting has been shared more or less equally, a child may have 4-7 nights every two weeks with each parent. Examples of schedules may include:
- 2-2-3-2-2-3;
- 3-4-4-3.
- For some children, a schedule with a “home base” may be appropriate, where they reside with one parent during the week with mid-week visits with the other parent;
- Regardless of history of care, it is assumed that both parents should be significantly involved;
- Where one parent has had limited involvement, a graduated schedule could look like:
- One overnight each weekend, and an evening/dinner visit during the week; to
- Alternate weekends and a midweek visit.
- Later School Age Children: 10 to 12 years (pgs. 22-23)
- Frequent contact with both parents is recommended, but a broader range of plans may be appropriate;
- For example, an alternate week or 5-5-2-2 arrangement;
- As with early school age children, a “home base” model may be preferred due to practical reasons, such as social relationships and school.
- Early Adolescents: 13 to 15 years (pgs. 23-24)
- The child’s schedule and activities should be considered in crafting any parenting plan;
- Alternating weeks is suggested, however an expressed preference for a “home base” should be respected.
- Late Adolescents: 16 to 18 years (pgs. 24-25)
- Teenagers at this age should be afforded more input into the parenting plan, and parents ought to be flexible in accommodating the teenager’s own schedule (work, school, social, etc.);
- A variety of plans may be appropriate, but teenagers in this age group may express preference for:
- Alternating weeks;
- Alternating two-week periods;
- Maintaining a “home base” with an alternating weekend schedule.
- What other factors influence choosing an appropriate parenting plan?
Along with providing templates for age-appropriate parenting plans and schedules, the Guide also addresses various other special considerations which may change what is “appropriate” for a child, such as:
- Parents who never lived together;
- Long-distance parenting;
- Children with special needs;
- Family violence;
- Immigration status and intersectional vulnerability;
- Parental substance abuse or mental illness; and
- Incarcerated parents.
The Guide also considers times when parenting plans should be reviewed or modified; communicating, planning, and implementing parenting plans; and addressing decision-making responsibilities.
Case Law
References to the Parenting Plan Guide by Ontario courts appear to be increasing and are made favourably.
Below are five decisions from the Ontario Superior Court that have been published in 2024 where the court refers to the Guide in supporting the parenting schedule which is ordered.
- Harlow v. Gertel – Kraft J.
The Applicant father in Harlow v. Gertel (2024 ONSC 2310) was seeking primary residence and sole decision-making responsibility for the parties’ two children, aged 15 months and 3 years,
The Respondent mother had unilaterally moved the children to other province, and Justice Kraft found that they were habitually resident in Ontario and must return.
However, the Applicant had not been involved in parenting the children: he was unaware of their routines or how to care for them (at para 26). The relief sought was not found to be appropriate.
Justice Kraft cited the Guide notes for infants from birth to 9 months old, as well as 9 to 18 months, which emphasize the importance of the non-primary parent developing parenting skills and involvement in caregiving before graduating to longer visits.
These excerpts also emphasized the importance of the primary caregiver taking a “long-term view” aimed at fostering a relationship between the child and the other parent and facilitating contact that allows them to become involved in and familiar with caretaking activities.
In this case, supervised parenting was found to be appropriate for the time being once the children were back in Ontario. The Respondent mother was also ordered to provide the Applicant father with information regarding the children’s daily routines, due to the importance of communication between parents and facilitating this relationship.
- Jackson v. De Moura – Chozik J.
In Jackson v. De Moura (2024 ONSC 2463), Justice Chozik grappled with a situation where the parties’ 12-year-old daughter expressed clear views with respect to parenting, but the status quo was a direct result of the Applicant’s unilateral action in removing the children from the family home.
At the time of the motion, the Respondent father had an alternate weekend schedule with the parties’ two children, aged 12.5 and 8. The Respondent was seeking equal parenting time for both children, while the Applicant was seeking a reduction of the alternate weekend schedule for the 12-year-old.
The Office of the Children’s Lawyer had become involved, and reported that the 12-year-old consistently expressed that she wanted to spend less time with the Respondent. Conversely, the 8-year-old consistently expressed that he wanted to spend more time with the Respondent.
Despite this clear preference, Justice Chozik noted that the Respondent had unilaterally moved from the family home (months after separation) and taken the two children with her. This action abruptly changed the parenting status quo without warning. It was not clear whether the 12-year-old would still have the same strong views toward her father had the Applicant not taken this action.
In working through this problem, Justice Chozik refers to the Guide. The Guide refers to the fact that children in the 10-12 year range may feel the need to become “allied” with one parent and start resisting the other. In light of this, Justice Chozik crafts a parenting order aimed at rebuilding the relationship between the 12-year-old and her father.
The court held that the daughter would have at least one weeknight visit and alternating weekends with the Applicant. The son’s alternating weekend schedule was slightly expanded, in recognition of his expressed preferences, and the daughter was given the option of also staying with her father on these additional nights.
- Tsiriotakis v. Rizzo – Horkins J.
In granting the Applicant’s request for an increased 2-2-3 parenting schedule, Justice Horkins notes the following:
[108] There is no justifiable reason to deny the child’s wishes. The child is entitled to have a significant and healthy relationship with both parents. Further, a 2-2-3 parenting plan is an appropriate plan for children aged 6-9 where parenting is shared (see the AFCC Parenting Plan Guide).
[109] For most of this child’s life, he has had less time with his father largely because the mother unilaterally moved the child to Windsor. A 2-2-3 parenting plan will allow the child to have his father involved in his weekly activities and give the child a real opportunity to strengthen his bond with his father in a meaningful way (Tsiriotakis v. Rizzo, 2024 ONSC 2339 at paras. 108-109).
The child had expressed their wish to spend equal time with each parent, despite the Respondent’s continued interference by way of reports to Children’s Aid societies.
Persuasive use of the Guide does not require lengthy engagement with it. In Tsiriotakis, Justice Horkins uses a swift reference to bolster her support of the parenting plan proposed by the Applicant.
- Gerasimopolous v. Sambirsky – Kraft J.
In another recent decision from Justice Kraft, the Guide was aptly quoted to support a Respondent’s unsupervised parenting time, which was challenged by the Applicant due to the Respondent’s diagnosis of Bipolar 1 Affective Disorder (Gerasimopolous v. Sambirsky, 2024 ONSC 2368).
The Applicant was seeking supervised parenting time to guard against the alleged risks of a future manic episode. Justice Kraft found that this was not necessary, and in doing to, cited the section of the Guide which addressed the additional consideration of “Parental Substance Abuse or Mental Illness” (page 42 of the Guide).
The Guide indicated that in certain circumstances, depending on how substance abuse or mental illness is impacting a party’s ability to parent, it “may be necessary to consider alternative parenting arrangements such as therapeutic intervention, supervised parenting time, or limiting parenting time until the concerns have been satisfactorily addressed”.
Further, it may be necessary to put protocols in place “for ongoing or periodic monitoring and for a resumption or gradual increase in parenting time” (at para. 106; Guide, page 42).
However, where a parent acknowledges a diagnosis and follows a treatment plan, then their mental illness should not be an obstacle to parenting time. Justice Kraft cites PP v. AV (2021 ONSC 7459), in which Justice Himel also uses the Guide to support this proposition.
This is an example of the utility of the Guide beyond the scheduling suggestions that it contains, in figuring out how to respond to different considerations which may arise on the facts.
- Gerling v. Gerling – Vella J.
In Gerling v. Gerling (2024 ONSC 1034), released in February 2024, both parties referred to different excerpts from the AFCC-O Guidelines in advocating for their proposed parenting plans.
The Applicant father sought equal parenting time on a 2-2-5-5- basis, and the Respondent mother sought a 6-8 schedule. The children were 9 and 6 years old.
The parties had differing narratives with respect to their involvement in parenting. Justice Vella found that the Respondent’s evidence was more “harmonious” with the third party and documentary evidence regarding parenting.
Justice Vella noted that even with the Guide, there are no “hard and fast rules” but rather “general principles” (at para. 36).
In finding for the Respondent, Justice Vella stated that her parenting plan was consistent with the AFCC-O Guidelines, based on the findings of fact that were made.
Therefore, it appears that referring to the Guide is only one part of the battle: The other is ensuring that you have clearly set out your or your client’s history of parenting, and referenced the appropriate section of the Guide.
Conclusion
The AFCC-O Parenting Plan Guide has immense utility to co-parents (whether or not they are in court), family law lawyers, and judges.
It can be used as a tool to explain and understand what kind of parenting plan may be appropriate for children in a variety of circumstances and developmental stages, or to support what is already a very well thought out parenting plan proposal.
The case law explored above provides examples of the ways in which Ontario Superior Court has recently used the Guide to support parenting orders.
The Guide can act as impartial evidence of what kind of parenting plans may be in a child’s best interests, provided that the proposed parenting plan is based on facts that are accepted by the court.
For a further exploration of the Guide, please see Nicholas Bala & Justice Andrea Himel, “Using the AFCC-O Parenting Plan Guide and Template: Resources for Ontario Family Lawyers and Their Clients”, 2020 CanLIIDocs 3849).