Shared parenting is where both parents have the children at least 40%of the time. Shared parenting, however, is not the default when determining how much time children will spend with each parent.
There has been some confusion in the past because the Divorce Act states in section 10:
(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.
The Family Law Act is clear however that the only consideration for the Court is the best interests of the child. Because of this, the maximum contact principle is application only in so far as it is in the best interests of the child.
The Divorce Act is currently being amended by Bill C-78, section 7.1 and will state as follows:
“A person to whom parenting time or decision-making responsibility has been allocated in respect of a child of the marriage or who has contact with that child under a contact order shall exercise that time responsibility or contact in a matter that is consistent with the best interests of the child.”
Section 7.1 confirms that when making orders regarding where the child will reside the court’s primary concern is the best interests of the child and that may or may not be a shared parenting regime.
Deborah A. Todd