“Maximal Contact” Principle Replaced by “Meaningful and Consistent Relationship with Both Parents”
In a recent Ontario ruling the court explained the conceptual shift that has taken place under recent changes to federal and provincial Family legislation. Among many others, one of the noteworthy changes is this: When it comes to the court making a parenting order, there is no longer a focus on the “maximal contact” principle.
In Bressi v. Skinulis, the parents had been in a 5-year common law relationship. The mother asked for their child to live primarily with her. Partly out of concern over the father’s substance abuse – which he denied – she asked that he should get only specified parenting time, conditional on him complying with certain orders around his drug and alcohol use and testing.
In this context, the court summarized the law around parenting orders under the newly-amended Ontario and federal Family legislation. It began by noting that on March 1, 2021, the parenting provisions contained in the Children’s Law Reform Act (CLRA) came into force, and there are corresponding recent changes to the Divorce Act.
Next, the court noted its power to make parenting orders is “broad and purposive”, and that it could “allocate parenting time and decision-making authority between the parents, impose a schedule, provide for the means of communication to be used by the parents”, and make any other orders that it considered appropriate to secure the child’s best interests.
Then, after cataloguing almost a dozen specific elements listed in the CLRA as being components of the “circumstances of the child”, and noting it must stay “laser-focused” on the child’s best interests, the court made a point to say this:
Maximal contact
There is no presumption in favour of joint parenting and the term “maximal contact” is no longer found in the CLRA. The legislation states in that: “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.”
Clearly the idea of a presumption in favour of one type of parenting order is anathema to the court’s unrelenting focus on the child’s “best interests.” The most one can say is, all things being equal, the child deserves to have a meaningful and consistent relationship with both of their parents.
With this in mind, the court reviewed the parents’ particular circumstances, including the fact that the child had resided with the mother for the entirety of her life, and was very young and vulnerable. It also scrutinized both parents’ plan for the child, noting that the mother’s was demonstrably in line with the child’s best interests.
Conversely, the court questioned the father’s credibility around his substance abuse, and also his judgment: On one occasion, he had withheld the child from the mother, which could have put the child at risk if he was indeed using drugs or alcohol. This, the court said, displayed a “lack of respect to the Mother and the Court, and will not be tolerated”.
In the end, the court granted the mother’s requested temporary order on various terms, giving the father parenting time only in accord with a set schedule.
For the full text of the decision, see:
Bressi v. Skinulis et al, 2021 ONSC 4874
