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  • Writer's pictureJared Davies, Lawyer

Clarifying the removal of the ‘maximum contact’ principle

The maximum contact principle, a paragraph heading in the Divorce Act, was recently removed in the last major legislative amendment. Not only was it removed from the Divorce Act, but the Supreme Court recently said that …going forward, the ‘maximum contact principle’ is better referred to as the "parenting time factor".

The change in terminology does not seem to directly change the written underlying law. Consider that the previous Divorce Act paragraph discussing the concept of 'Maximum contact' is almost identical to the replacement paragraph of 'Parenting time consistent with the best interests of child'. Both pre and post amendment, the legislature is calling for as much parenting time as is consistent with the best interests of the child (see below):

Pre-amendment

Maximum contact

16(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.

Post-amendment

Parenting time consistent with best interests of child

(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

What has changed is the way parents will be able to use this provision. Before, it seemed to be the case that parents would use the 'maximum contact' phraseology as a parent-focused parental right, without paying attention to the most important qualification of the provision - what amount of time is in the best interests of the child?

Consistent with the parent-focused idea, the Supreme Court of Canada, in Barendregt v Grebliunas, 2022 SCC 22, said that the terminology, the 'maximum contact' principle, was creating an issue whereby some courts erroneously held there was a rebuttable presumption of equal parenting time. However, neither the old Divorce Act nor the new one supports that presumption. The Supreme Court says the presumption does not exist.

Along with the Divorce Act amendments, the Supreme Court held it was best to move away from the 'maximum contact' phrase in the case law. Instead, courts are directed to be completely child-centric when making parenting time decisions. A brief summation of the, now obsolete, 'maximum contact' principle was provided for in Barendregt v Grebliunas, but it shows that the underlying law remains — …children shall have as much contact with each parent as is consistent with their best interests:

131 Gordon requires courts to consider "the desirability of maximizing contact between the child and both parents": para. 49. This consideration has been referred to as the "maximum contact principle": see Gordon , at para. 24; see also Young v. Young, [1993] 4 S.C.R. 3, at p. 53, per L'Heureux-Dubé J., and p. 118, per McLachlin J. (as she then was). In this case, the father contends that the trial judge neglected this consideration.


133 What is known as the maximum contact principle has traditionally emphasized that children shall have as much contact with each parent as is consistent with their best interests. A corollary to this is sometimes referred to as the "friendly parent rule", which instructs courts to consider the willingness of a parent to foster and support the child's relationship with the other parent, where appropriate: see Young, at p. 44. Both of these considerations have long been recognized by the Divorce Act: see Divorce Act, pre-amendments, ss. 16(10) and 17(9); and Divorce Act, post-amendments, ss. 16(6) and 16(3)(c).

134 …But in the years since Gordon, some courts have interpreted what is known as the "maximum contact principle" as effectively creating a presumption in favour of shared parenting arrangements, equal parenting time, or regular access...Indeed, the term "maximum contact principle" seems to imply that as much contact with both parents as possible will necessarily be in the best interests of the child.

135 These interpretations overreach. It is worth repeating that what is known as the maximum contact principle is only significant to the extent that it is in the child's best interests; it must not be used to detract from this inquiry. It is notable that the amended Divorce Act recasts the "maximum contact principle" as "[p]arenting time consistent with best interests of child": s. 16(6). This shift in language is more neutral and affirms the child-centric nature of the inquiry. Indeed, going forward, the "maximum contact principle" is better referred to as the "parenting time factor".
Obvious takeaways? The Supreme Court clarifies that there is no presumption of shared parenting. The legislature has removed the ‘maximum contact’ phrase from the Acts, and the Supreme Court has removed its use in the case law going forward. Each parenting case is supposed to involve an inquiry into what is in the best interests of the specific child in question, with the specific facts of the case at play.

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