Mar 09, 2025 – Rebuttable Presumption Case Precedent?
Yes, folks. It’s been some time since I distributed my ESP Thought of the Day. Mea Culpa. But better late (delayed) than never. Today, I am privileged to share with you two excerpts from an unreported decision. ASP v. RTP, 27 May 2024, Ont. SCJ, Family Court, Cayuga, Ont. Court File #FC 142/20-001. Hats off to father’s counsel, my good friend and colleague – Brian Ludmer. Permit me to share with you two very positive parts of this endorsement. First, the judge appears to favour a rebuttable presumption in favour of equal shared parenting. Second, Her Honour reminds us that overnight parenting time is appropriate for toddlers.
I am presenting below an excerpt from the recent endorsement of Madam Justice A.D. Hilliard:
CHAMBERS ENDORSMENT
[1] These are my reasons for summarily dismissing the Respondent mother’s motion for a section 30 assessment and my reasons for judgment on the Applicant father’s motion for expanded parenting time
Applicant Father’s Motion for Expanded Parenting Time
[7] The Applicant father is seeking an Order ramping up and expanding his parenting time with the parties only son, Joshua, who is 2 ½ years old. The schedule he seeks would have his parenting time expand over the next weeks and months until there is an equal time-sharing regime in place. The Respondent mother resists this request and seeks to have the overnight ordered by Bordin J. revisited and eliminated.
[8] Section 16 of the Divorce Act sets out the best interests test to be applied in determining what parenting order should be made. I agree with the submission of the Respondent mother that the wording in that section has been changed from the previous language that referred to the “maximum contact” principle to wording that references best interests:
16(6) MAXIMUM PARENTING TIME – In allocation parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.
[9] However, I also agree with the Applicant father’s submission that the caselaw and the social science support the proposition that shared parenting is now the norm and not the exception. Absent evidence that a shared parenting regime is not in the child’s best interests, it is still the starting point in the majority of cases involving separated parents.
[22] Overall, I am left with the Respondent mother’s unjustified position that J. should not have any overnight parenting time with his father now or any time in the foreseeable future. This is not the now generally accepted approach to parenting orders even for toddlers. Absent evidence that expanded parenting time would be detrimental to the physical or emotional well-being of a child, even children as young as two-years-old can and do have overnight parenting time with both of their parents.
The father seeks “an equal time-sharing regime”. All things being equal, a “shared parenting regime” should be the starting point. The judge agrees with father’s counsel “that shared parenting is now the norm”. Did the judge mean “equal”? We don’t know for sure but from the context, it very much appears so.
Does a “rebuttable presumption” trump best interests? Of course not! Ludmer and I argue quite simply that the starting point for parenting disputes should be 50/50. If equal time and equal decision making is contraindicated on the facts of the particular case, then by all means don’t go there. But surely it is far more sensible to start from equality rather than every 2nd weekend and some holiday time. Adequate parents should not be forced to prove that they are super mom or super dad. Parents should not be forced to prove that the other parent is no good, as was the argument that the mother advanced in the above case. The adversary system continues to wreak havoc on Canadian families. It’s time for a change, Canada. In addition to getting rid of tariffs, let’s cast off the old myths and stereotypes about dads.
It’s about time.
Link to Gene C. Colman’s Equal Shared Parenting Web Page
Link to past issues of the ESP Thought of the Day publication
Sincerely,
Gene C. Colman
Gene C. Colman Family Law Centre
