How do we define time in the Divorce Act? “Substantially equal” and “vast majority”, do they have any meaning?

• by David Tobin

Originally published in the OFLM 2024-01 edition


There are three scenarios in which three different onuses apply when determining relocation applications.

1) The child spends substantially equal time with both parents = the relocating parent has the burden of proof to show that the relocation would be in the best interests of the child

2) The child spends the vast majority of time with the relocating parent = the left behind parent has the burden of proof to show that the relocation would not be in the best interests of the child;

3) In all other cases, both parents have the burden of proof.

The case law shows that courts do not take a bright-lined approach in determining whether a child spends the vast majority of time or substantially equal time with the parents. This means it is not merely a calculation of the percentage of time spent with a parent. Judges across the provinces have found that there is a qualitative and quantitative element to these terms. Courts have also determined that cases in the ‘vast majority’ scenario, usually involve a disinterested or uninvolved parent rather than an active non-primary parent.

Notwithstanding the onus provisions, the sole consideration on relocation applications is the best interest of the child. As such, both parents should prepare and present their case as though they have the burden of proof: they must demonstrate why their plan is best for the child.

The Legislation and Case Law

When the Divorce Act was amended in 2021 it codified many common law principles with respect to relocation and it also clarified which parent, the ‘relocator’ or the ‘left behind parent’, has the burden of proof in relocation cases. Section 16.93 of the Act sets out three scenarios where different onuses/burdens apply. The text of section 16.93 is set out below.

 (1) If the parties to the proceeding substantially comply with an order, arbitral award, or agreement that provides that a child of the marriage spend substantially equal time in the care of each party, the party who intends to relocate the child has the burden of proving that the relocation would be in the best interests of the child.

(2) If the parties to the proceeding substantially comply with an order, arbitral award or agreement that provides that a child of the marriage spends the vast majority of their time in the care of the party who intends to relocate the child, the party opposing the relocation has the burden of proving that the relocation would not be in the best interests of the child.

(3) In any other case, the parties to the proceeding have the burden of proving whether the relocation is in the best interests of the child.


Immediately after 16.93, section 16.94 allows a judge not to apply the burdens in 16.93(1) or 16.93(2) if at the time of the hearing the child’s time was determined by an interim order. This is an important section to keep in mind if there has not been a determination of parenting time on a final basis, as many courts have not applied the onuses where the only orders made were temporary.

Both “vast majority” and “substantially equal” are vague terms which elude numeric definitions. This appears to be by design, but unfortunately the discretionary ways in which courts can interpret these definitions makes predicting outcomes difficult.

Courts have generally determined that 80% of time with a parent crosses over into ‘vast majority’. A few cases on this section have referred to Professor Rollie Thompson’s paper, Legislating About Relocating, Bill C-78, NS and BC (2019) where he states that he would set a threshold for ‘vast majority’ at 80 percent of the time. However, many courts have been reluctant to set a bright line for ‘vast majority’, wanting rather to consider the nature of the time in addition to the amount of time.

The policy for avoiding a bright-line approach is so that parents negotiate their children’s schedule considering only their children’s needs and interests. Courts do not want parents negotiating time with one eye on who will have the burden of proof at trial. This policy is recognized in Droit de la famille — 211795 (2021 QCCS 3938) where Justice Narang wrote:

If I were to find that parental time of 37.5%, as opposed to 40%, has a significant impact on deciding whether relocation should be authorised – and that section 16.93(2) instead of section 16.93(1) of the Divorce Act applies because of this 2.5% difference – this could have an impact on the ways in which parents agree and negotiate the division of parental time. Instead of being guided by their children’s best interests, the impact of the time share on relocation decisions would become a consideration in some cases.

In a subsequent case from Justice Narang, Her Honour notes that only situations where the left behind parent is practically absent will the other have the ‘vast majority of time’. In Droit de la famille — 231099 (2023 QCCS 2687 at para. 27), Her Honour writes:

“Vast majority” implies that the other parent is almost completely absent from their child’s life: “Ce ne sera que dans les cas où le parent qui conteste le déménagement n’a que des rapports sporadiques ou peu importants avec l’enfant qu’il assumera alors le fardeau de démontrer que le déménagement n’est pas dans l’intérêt de l’enfant.”

So when determining the term ‘vast majority’, percentages will likely not rule the day. Instead, a fact specific approach, guided by the amount of time will be considered in determining which parent bares the onus.

In Rygiel v. Mathes (2024 ONSC 33, at para. 21), Justice Brownstone found that a mother did not benefit from the onus provisions even though on the mother’s calculation the child spent 74% of the time with her. Justice Brownstone notes that the  father had “a close, active, and regular relationship with his son.” Justice Brownstone determined that given the amount and nature of the time, this was a case of an “active non-primary parent”, therefore, s. 16.93(3) applies, and each party had the burden of proving whether the relocation is or is not in the best interests of the child.

In Shipton v. Shipton (a case in which our firm was involved and the appeal of which, partially on this issue, was recently heard) squarely addressed the term ‘vast majority’ and how it fits into the legislative scheme setting out the various scenarios giving rise to different onuses.

In  Shipton, the left behind parent had the child in his case 22.6% of the time at the time of trial. However, the arrangement which lead to this increase in time occurred right before trial.

Justice Akazaki determined that “the “vast majority” rule in subsection (2) reverses the onus stated in subsection (1).  “This amounted to a very limited legislative reversal of the Supreme Court’s ruling that there was no presumption in favour of the custodial parent’s decision to relocate … Indeed, it is the exceptionality of the objector’s parenting time displaced by the parenting time of the majority parent that governs the meaning of s. 16.93(2) by giving legal force to the circumstances of the parenting.” (emphasis added).

At paragraph 102, Justice Akazaki, gleaned from the wording of the section and the legislative background and note that:

The effect of subsection (2) is essentially to protect a custodial parent from being controlled by a relatively uninvolved ex-spouse by discouraging objections made in bad faith.   Parliament has essentially stated that, in certain cases, objectors must think twice before standing in the way.  When read together with s. 16.91, the intent of Parliament is clear that subsection 16.93(2) was intended to discourage objections from those who were not expected to file objections under s. 16.91.

The term ‘substantially equal’ is also the subject of judicial interpretation. Similar to ‘vast majority’ a flexible approach is the preferred approach, but it cannot be untethered from the actual amount of time spent. In interpreting ‘substantially equal’, Justice Marion of the Court of Kings Bench of Alberta (Lemay v. Lemay, 2023 ABKB 303, at para. 73) determined that “While precise formulas or specific percentages are not the overriding factor in determining “substantially equal” parenting time, they do provide some guidance on thresholds.” Noting that many cases involving 50/50 parenting will obviously be substantially equal and that although not a hard cut-off, the 40/60 split is a rough indicator of the lower end of the threshold.

Justice Marion goes on to state that when cases are close to the 40% time “the specific factual context becomes critical, viewed in light of the underlying policy behind the burden of proof in section 16.93(1), namely that in cases of substantially equal parenting, all else being equal, the starting point is that the stability of the status quo is in the best interests of the children” (Lemay v. Lemay, 2023 ABKB 303, at para 76).

The strict reading of the sections also makes it clear that whether the child spends the ‘vast majority’ of the time with a parent or ‘substantially equal’ time with the parents, it must be pursuant to an order, arbitral award, or agreement (agreements need not be formalized in writing) for this to impact the onus/burden. It follows that a parent cannot disturb a status quo by reducing the amount of time the child spends with the left behind parent to benefit from an onus (S.T. v A.T, 2023 BCSC 875, at para. 54; JRD v. AKMD, 2023 ABKB 685, at para. 12).

That is not to say that compliance with any oral orders is necessary to benefit from the onus provision. In Tass v. Jackson (2023 ONSC 6564, at para. 29), a father argued that a relocating mother should not benefit from the burden in light of her breaches of orders. Justice Chang determined that that argument could not succeed. At paragraph 29, Justice Change wrote:

[29]        In my view, read in its entire context and in its grammatical and ordinary sense, harmoniously with the scheme of the Divorce Act, s. 16.93 does not, as the respondent suggests, provide for an “if you comply, then you can rely” regime for the applicable burdens of proof.  Rather, it provides for differing burdens of proof based on the amount of time that a child should (pursuant to court order, arbitral award or agreement) and actually does spend in the care of each parent.  The requirement of substantial compliance in s. 16.93 is expressly and, in my view, intentionally directed at both parents in a relocation application. (emphasis added)


Section 16.93 sets out three difference scenarios where three different burdens/onuses will apply in relocation cases. The terms “substantially equal” and “vast majority”, which determine which parent  has the burden of proof in relocation cases are intentionally vague, to allow for many different arrangements which could fit within either term.

Lawyers and parents must keep in mind that it is not just the amount of time, but also the nature and quality of the time that is important when determining which parent has the onus. Given the uncertainty built into these terms, both parents, whether relocating or staying behind should prepare their cases as though they have the onus.  Why? Because notwithstanding the onuses, the court will determine all relocation applications based solely on the best interest of the child. Both parents, ought to provide comprehensive and cogent evidence about why their parenting plan best meets the needs of the child.  A parent that focuses too heavily on which parent has the burden of proof may risk winning the battle at the expense of the war.