If you're a separated parent facing a custody dispute over a toddler or infant, you know the stress of creating a complex and often high-conflict parenting schedule. Many parents strive for equal parenting time or shared custody, but a recent Ontario decision highlights a crucial legal point: for very young children, a sudden move to an equal, week-about schedule can be overturned if the court doesn't properly consider the child's best interests and fundamental need for stability.
This article breaks down a key family law case, demonstrating the importance of the child's age, the existing care arrangement (status quo in family law), and social science guidance like the AFCC-Ontario guidelines for custody when determining a parenting schedule for a toddler.
The Case: Young Child, Significant Shift in Care
The recent decision involved a young boy, referred to as A., who was only 15 months old. His parents, who were separated spouses and were never in a relationship for long, were fighting over his temporary residence while the matter of his child custody laws in Ontario was being resolved.
The Background
Age of Child
A. was 15 months old.
Status Quo
A. has had his primary residence with the mother since he was born. The father's parenting time had gradually increased to two four-hour visits each alternate weekend. The child was still breastfeeding at night.
The Motion
The father, citing his week-on/week-off work schedule and the desire for A. to spend time with his older half-siblings, sought an immediate implementation of a week-about parenting plan.
The Mother's Position
The mother opposed the immediate and drastic change, arguing that A. was too young for such an extended time away from his primary caregiver and proposed a more gradual increase, leading to an equal schedule by the time A. started kindergarten.
The Initial and Reversed Temporary Custody Order
The motion judge granted the father's request, ordering a gradual transition to equal time-sharing on a week-about basis.
However, the appeal court granted the appeal and set aside the temporary custody order. The appellate court found that the motion judge made several significant errors in law by failing to properly apply the standard of the best interests of the child under the Children's Law Reform Act.
The Appeal Court's Key Findings
The appeal court emphasized that when ruling on child custody laws in Ontario, a judge's sole focus must be the child's well-being. A judge must follow the "clear road map" set out in the Children's Law Reform Act and demonstrate that they considered all relevant factors.
Failure to Address Mandatory Factors
The appeal court found the judge's reasons insufficient because they mentioned only a few factors and failed to analyze many critical ones under the Children's Law Reform Act, specifically:
- The child's young age and stage of development.
- The child's need for stability.
- The history of care of the child.
The ruling clarified that the test is not whether there are legal reasons to deny the father more time, but whether the ordered schedule is in the best interests of the child. While maximizing contact is a guiding principle, it must be consistent with the child's well-being.
Disregarding the Status Quo
The court highlighted the error in failing to analyze the status quo. A. had been in the mother's primary care for his entire 15 months of life. The law strongly favours maintaining the status quo on an interim basis, especially for an infant or baby, unless the evidence clearly shows that the current arrangement is harmful. The judge's decision to order a significant change to equal parenting time without any analysis of the impact on the child's stability was deemed an error in law.
Dismissing Social Science Guidelines
The motion judge dismissed the AFCC-O Guidelines as "not law." The appeal court reiterated that while not binding, these guidelines reflect widely accepted social science research on post-separation arrangements for young children. Ordering a 15-month-old to a week-about schedule is a major departure from recommended age-appropriate parenting schedules, and this required a robust explanation from the motion judge, which was missing.
The High-Conflict Factor
Further, the case involved serious allegations of high-conflict behaviour and past family violence, which the motion judge also dismissed without proper analysis. The appellate court noted that ordering equal parenting time—which requires a high degree of co-operation—in a high-conflict situation, without analyzing the impact on the parents' ability to communicate, was also an error of law.
Deeper Dive: The AFCC-Ontario Parenting Plan Guide and Developmental Science
The motion judge's dismissal of the AFCC-O Guidelines (formally the AFCC-Ontario Parenting Plan Guide) as "not law" was a critical error reversed on appeal. While this guide is not legally binding, it is rooted in developmental science and accepted by Ontario courts as a reliable benchmark for crafting a parenting schedule that meets the best interests of the child.
The Guide categorizes children by age and stage of development, offering distinct recommendations for contact. A. was 15 months old, placing him in the "Babies (9 to 18 Months)" category.
The AFCC-O's Recommendations for Babies (9 to 18 Months)
For children in this critical age bracket, the Guidelines emphasize that their rapid development includes an increase in object permanence and the development of strong, specific attachments. This means they are highly sensitive to separation and changes in routine.
Need for Frequent Contact
The core recommendation is that the child should see both parents frequently—ideally every two to three days—and not be away from either parent for a very long period. This frequent contact is vital for strengthening the child's attachment to both parents.
Overnights
For a child who has had consistent, good-quality involvement from both parents prior to separation, a shared parenting arrangement with regular overnights may be appropriate. However, if one parent (like the father in this case, who only had two four-hour visits per weekend) had limited involvement, the non-residential parent must first actively be involved in basic caretaking routines (feeding, bathing, sleeping) to build skills and comfort before introducing overnights.
Focus on Stability and Routines
The Guidelines stress the need for a consistent schedule of waking, sleeping, and eating to foster self-regulation. A week-about schedule, which creates a sharp transition and a lengthy separation from the primary caregiver every week, can easily destabilize this routine for a baby.
Breastfeeding
The appeal court specifically noted the judge failed to "properly consider the impact on the child by ending breastfeeding," suggesting that while breastfeeding doesn't preclude overnights, it is a significant factor in the child's physical and emotional security that requires specific judicial consideration.
Why the Week-About Schedule Was Unsound
For A., who was in the Mother's primary care since birth and had only limited, non-overnight visits with the father, the motion judge's immediate switch to week-about custody was a drastic, non-graduated departure from the AFCC-O guidelines. The court should have required evidence to justify moving A. from his established status quo to a schedule generally considered appropriate only when care was already shared more or less equally before separation.
The appeal court's subsequent interim order—which increased the father's time gradually through longer daytime visits and a single overnight every two weeks—actually mirrors the step-by-step approach recommended by the AFCC-O Guidelines for cases where one parent's involvement needs to be built up in a developmentally appropriate way.
By failing to weigh this established social science, the motion judge committed an error of law that disregarded A.'s developmental needs, leading to the successful temporary custody order appeal.
The Outcome for the Young Child
The appeal was successful, and the matter was sent back to be heard by a different judge. Pending the new motion, a stepped, gradual increase in the father's time was ordered, starting with increased daytime access and a single overnight visit every two weeks. This phased approach prioritized A.'s need for stability and age-appropriate bonding.
Conclusion: Prioritizing a Child-Centric Approach in Parenting Disputes
The appeal decision involving A. serves as a critical reminder to separated spouses and family law practitioners across Ontario: while the Children's Law Reform Act states a child should have "as much time with each parent as is consistent with the best interests of the child" (s. 24(6)), this principle is not a blanket mandate for equal parenting time or 50/50 custody, particularly for toddlers and infants.
This case underscores the appellate court's commitment to ensuring that trial judges properly engage with the mandatory factors of the best interests test. The failure to address crucial factors like the child's young age, the need for stability, and the established status quo in family law was deemed a palpable error, leading to the temporary order being set aside.
For any separated parent navigating a custody dispute over a young child, the key takeaways are:
- Document the Status Quo: The existing stable routine is paramount on a temporary motion. Maintain comprehensive records of the child's daily care, especially if you are the primary caregiver.
- Highlight Developmental Needs: Do not overlook the importance of the AFCC-O guidelines. Ensure your legal arguments explicitly connect the child's developmental stage (e.g., breastfeeding, need for consistent routines) to why a gradual increase in parenting time for a toddler is necessary over a sudden week-about schedule.
- Co-operation is Key: The court will scrutinize the parents' ability to communicate. In high-conflict situations, ordering equal parenting time may be inappropriate as it necessitates a level of co-operation that may not be possible, directly impacting the child's security and well-being.
Ultimately, this ruling is a victory for the best interests of the child standard, emphasizing that a tailored, child-centric approach must always prevail over a simple desire for shared custody or an arbitrary parenting schedule. If you are questioning the legality of a temporary custody order or need advice on a developmentally appropriate parenting plan, seeking expert legal counsel is the first crucial step.
Are you a separated parent with a young child facing a custody dispute?
Contact our family law team today for a confidential consultation to ensure your child's best interests and stability are protected under Ontario law.
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The information provided in this blog is for general informational purposes only and does not constitute legal advice. No attorney-client relationship is established through this writing. You should consult with a qualified attorney for advice tailored to your specific situation. The lawyer and their firm disclaim any liability arising from reliance on this blog or any other content on this website.