How Parenting Time Is Decided in Prince Edward Island

When parents separate, the biggest question is often where the children will be and when. Many families work this out themselves. Others need a court to decide.

This article explains the main factors a court weighs under the Divorce Act, and the language used in Prince Edward Island. It is general information only, and a lawyer can explain how it fits your family.

This article covers the law of Prince Edward Island.

The words used now

Prince Edward Island's Family Law Navigator defines parenting time as the time a child spends in the care of a parent. Decision-making responsibility is responsibility for significant decisions about a child's well-being, such as health, education, culture and religion, and major extracurricular activities. The old terms custody and access are no longer used.

The Divorce Act lets the court make an order providing for parenting time or decision-making responsibility. For unmarried and separated parents, the province's Children's Law Act also covers parenting, not only the Divorce Act.

What the court looks at first: the child

In making a parenting order the court must give primary consideration to the child's physical, emotional and psychological safety, security and well-being. The court also gives effect to the principle that a child should have as much time with each spouse as is consistent with the child's best interests. This is not a presumption of equal, 50/50 time.

The Children's Law Act also deals with the best interests of the child, and provides that parenting time must be consistent with those interests. Its wording and sections are worth confirming in the current version.

Factors the court weighs

The Divorce Act lists factors the court considers:

• The child's needs and stability
• The child's relationships with each parent, siblings, grandparents and others
• Each parent's willingness to support the child's relationship with the other
• The history of care of the child
• The child's views and preferences, weighted by age and maturity
• The child's cultural, linguistic, religious and spiritual upbringing, including Indigenous heritage
• Each parent's plans for the child's care and ability to care for the child
• The parents' ability to communicate and cooperate
• Family violence
• Relevant civil or criminal proceedings or orders

How these factors apply to your child depends on your situation, so it is worth confirming with a lawyer.

Family violence and past conduct

When assessing family violence, the court considers its nature, seriousness and frequency, any pattern of coercive and controlling behaviour, whether the child is directly or indirectly exposed, harm or risk to the child, and steps taken to prevent further violence.

On the other side, the court does not consider a person's past conduct unless it is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child. A bad separation between adults, on its own, is not the focus.

If safety is a concern, speak with a lawyer promptly.

How parenting time connects to child support

Parenting time and child support are separate questions, but they can affect each other. The presumptive child support amount is the table amount for the number of children under the age of majority, based on the paying spouse's income, plus any special or extraordinary expenses. The table used is the one for the province or territory where the paying parent lives.

Two special situations tie directly to how parenting time is divided between the parents:

• Split parenting: where each spouse has the majority of parenting time with at least one child, the order is the difference between the amounts each would pay
• Shared parenting: if each spouse has a child not less than 40% of the time over a year, the court considers both spouses' table amounts, the increased costs of shared arrangements, and each spouse's circumstances rather than just the table amount

Because the way parenting time is divided can change the child support picture, it makes sense to think about both together. How this applies depends on your situation, so it is worth confirming with a lawyer.

Agreements and what to do next

Schedules differ from family to family, and they depend on the child's age, school, work hours and distance between homes. A schedule that fits one family may not suit another, so a lawyer can help you shape one and put it in writing.

Justice Canada advises agreeing on child support, parenting arrangements, spousal support and property before applying for a divorce, because unresolved issues lead to a longer, costlier court process.

• Write down who has cared for the child day to day, and how
• Consider your child's age, routines, school and activities
• Think about how you will support your child's relationship with the other parent
• Gather any records or orders that relate to safety
• Keep communication with the other parent civil and in writing where you can
• Get legal advice before signing an agreement or going to court

Frequently asked questions