Step Up Increases In Parenting Time To An Eventual 50/50 Parenting Schedule

Take a coffee break with Melanie Larock and read a weekly blog post about family law decisions released by the Court of Appeal for Ontario.

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The Court of Appeal in Cuthbert v. Nolis, 2024 ONCA 21 (released January 10, 2024), addressed the law with respect to reviews of parenting orders.

The trial judge held that it was in the children’s best interests for the father to have the opportunity to gradually increase his parenting time with a view to eventually reaching 50/50 provided that it was in a gradual, monitored way. The trial judge included a review term in his Final Order which provided that the Father could apply after a specified time to increase his parenting time “eventually leading to 50/50 access.” The parties could not agree on a new parenting schedule and a second trial was held. The second trial judge awarded the father gradually increasing parenting time with the children ultimately residing with each parent on an equal time-sharing basis.

The Final Order which was appealed permitted the Father to apply to change the parenting schedule without demonstrating a material change in circumstances. Review terms in a final parenting order must be “narrowly construed and rarely ordered.” While reviews are rare, it is well-established that Courts have the jurisdiction to impose them, and a review creates an exception to the usual requirement that a material change in circumstances must be shown to change a parenting order.

The Court of Appeal went on to say that review terms should be limited to situations where the parties’, or children’s, circumstances were uncertain at the time the original order was made. Review terms allow a court to avoid locking the parties and children into a parenting arrangement where the “situation continues to unfold in real-time and where the trial judge is not in a position to finally determine the appropriate parenting arrangements.”

In this case, at the time of the initial trial, it was unclear what was causing the child’s anxiety and it seemed that the anxiety was improving with age. The Court of Appeal found that the review term ordered was reasonable in the circumstances. The trial judge had put in place a process to gradually implement an eventual 50/50 parenting schedule.

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About Melanie Larock

Melanie Larock is a family law litigator and a partner in Thomson Rogers’ Family Law group. Melanie’s focus is on all areas of family law with a particular emphasis on complex financial issues and high conflict parenting disputes. Melanie was trained by an illustrious litigator, and she is a self-proclaimed evidence law nerd.