By Kayleigh Pink, Associate Research Lawyer, Lam Family Law*
The Ontario Chapter of the Association of Family and Conciliation Courts (“AFCC-O”) originally released its Parenting Plan Guide (the “AFCC-O Guide”) in January 2020, and a revised version in 2021. Over the past few years, Ontario courts have relied upon and placed significant weight on the AFCC-O Guide in many cases.
Ontario judges have acknowledged that the AFCC-O Guide, “though certainly not binding…has been lauded as a useful tool in crafting child-focused and realistic parenting plans for children of separated parents”: I.S. v. J.W., 2021 ONSC 1194 (CanLII), at para 163, per Bale J., citing various cases.
Courts Have Taken Judicial Notice of Information in the AFCC-O Guide
In at least two cases, the court has taken judicial notice of information contained in the AFCC-O Guide. In Bansal v. Kelly (2022), which was an interim motion decision on parenting time for two young children (aged 15 months and 4 years), Justice McGee took judicial notice of the AFCC-O’s recommendation that “children of their age should have regular, frequent contact with each parent and not be away from either parent for very long”: Bansal v. Kelly, 2022 ONSC 7049 (CanLII), at para 36. This is already a proposition for which there is lots of support in previous case law: see, e.g., H. v. A., 2022 ONSC 1560 (CanLII), at para 51 [aged 3]; Hewitt v. Doyle, 2020 ONSC 3416 (CanLII), at paras 87-91 [aged 6 months and 2 years]; BF v. AN, 2019 ONSC 3315 (CanLII), at para 74 [aged 19 months], citing Schmidt v. Haley, 2004 CarswellOnt 1149 (ON SC), at paras 20-21; & Panduro v. Davis, 2019 ONSC 1117 (CanLII), at para 29 [aged almost 2], citing Prasad v. Lee, 2008 CanLII 24545 (ON SC), at paras 48-49.
Then, in A.C. v. K.C. (2023), the parties did not oppose the court taking judicial notice of information contained in the AFCC-O Guide in a trial involving their child (aged 10). Justice Mandhane noted that the AFCC-O Guide “succinctly outlines the developmental needs of children of separated parents who are around the same age of the Child, and also provides guidance on developing appropriate parenting plans in the face of family violence”: A.C. v. K.C., 2023 ONSC 6017 (CanLII), para 3.
Use of the AFCC-O Guide in the Absence of Expert Evidence
The AFCC-O Guide may be particularly useful where there is no expert evidence. For example, in Dworakowski v. Dworakowski (2022), Justice Sharma noted that in “making parenting orders, and in the absence of third-party assessors or other expert evidence” at trial, he had considered the AFCC-O Guide. Justice Sharma placed significant weight on its suggestions for toddlers, particularly as it related to two of the factors in the best interests test: (1) the child’s needs, given his age/stage of development (almost 3 years old), and (2) any proceeding, order, condition or measure relevant to the safety, security, and well-being of the child (the mother’s immigration status in Canada was uncertain, and the child would suffer significantly if the mother was deported and they were separated): Dworakowski v. Dworakowski, 2022 ONSC 7209 (CanLII), paras 54, 56-57, & 110-112.
Sribalan v. Dickson (2023) is another case where the court relied heavily on the AFCC-O Guide on a motion in the absence of expert evidence to determine what parenting schedule was in the best interests of two children (aged 4 and 2). The mother sought primary residence, with the father having weekend and midweek parenting time, whereas the father sought equal parenting time. The AFCC-O Guide provides, on the one hand, that toddlers need predictable and consistent routines and clear structures. On the other hand, if parents fully shared in the caretaking arrangements before separation and the child has an easy temperament, shared parenting may be appropriate as long as the separations from each parent are not too long. Justice McDermot found that the father was sufficiently involved with the children to warrant an order for shared parenting. The court then determined that the appropriate schedule, based on the AFCC-O Guide, was a 2-2-3 arrangement, keeping in mind that shorter periods of time are preferable for children of this age: Sribalan v. Dickson, 2023 ONSC 1254 (CanLII), at paras 1, 4-5, 18-20, & 28-29.
Use of the AFCC-O Guide in Combination with Expert Evidence
The AFCC-O Guide has similarly been considered and adopted when there is also expert evidence. For example, in Sadiq v. Musa, 2023 ONSC 1811 (CanLII), the mother refused to allow the father any overnight parenting time post-separation with their young child (aged 17 months). The mother’s position was based on the child still breastfeeding, the mother’s religious beliefs around breastfeeding, and the history of family violence: para 8.
With respect to the sometimes-contentious breastfeeding argument, the interim motion judge, Justice Kristjanson, heard expert evidence, considered relevant jurisprudence, and relied on the AFCC-O Guide. The court acknowledged that the AFCC-O Guide “summarizes basic social science knowledge, and offers valuable guidance about formulating parenting arrangements in a child’s best interests, appropriate for various ages and stages”. In particular, the AFCC-O Guide notes that “parenting time with the other parent can be accommodated even if a child is breastfeeding with the mother”, including by feeding the infant expressed milk from a bottle. Justice Kristjanson rejected the mother’s argument that the child should stay with her at night until the child could take the bottle without fussing, given the importance of overnight parenting time at the child’s age, and because the AFCC-O Guide recognizes that “almost all infants adjust to taking a bottle of expressed breast milk…from another regular caregiver”: paras 34-36 [breastfeeding expert], 37-39 [relevant jurisprudence], & 40-43 [AFCC-O Guide].
Regarding the mother’s religious argument, the court heard from an expert in Sunni Islamic law (the mother’s religion) and found that granting the father overnight parenting time would not infringe on the mother’s religious freedoms. Additionally, based on the evidence provided, the court was not satisfied that the family violence alleged would affect the ability and willingness of the father to care for the child’s needs: paras 28 & 44-47.
Ultimately, Justice Kristjanson held that the mother’s parenting time proposal was not consistent with the expert evidence, the jurisprudence, nor the AFCC-O Guide. Rather, the court held it was in the child’s best interests to have overnight parenting time with the father given the importance of bonding with the father, taken together with other factors: paras 43 & 48.
*with thanks to Vanessa Lam and Rebecca Winninger for their suggestions and edits.
Very insightful and helpful