A slightly different take on the issue of maximum contact principle:
Facts:
Superior court Judge, Justice McLeod, at the end of a trial, ordered that the child’s primary residence continue to be with the respondent (mother), with the father receiving only one overnight with the child per week and alternating weekends. In addition, while a joint custody order was made, the trial judge ordered that if the parties are unable to agree upon matters relating to the child’s physical, emotional and educational well-being, then “ultimately” those decisions are to be made by the mother.
Father appealed. Father sought joint custody and shared parenting of the couple’s six-year-old child on a two-two-five schedule
Ruling and analysis from Court of Appeal in Rigillo v Rigillo, 2019 ONCA 548:
The Court of Appeal found that the trial judge erred in failing to address the “maximum contact” principle set out in s. 16(10) of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.).
That provision states:
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.
The Court of Appeal notes that “For instance, the trial judge found as a fact that, while the father had overstated his role on the day-to-day care of the child up to the date of separation, the child has a “loving and strong emotional tie to both parents”; prior to the events resulting in the couple’s separation, the parties “were a ‘team’ and effectively parented” their child; and the father’s conduct post-separation was “not, in and of itself, a reason to ignore the contribution he made in raising the child.”
As a result, the Appeal Judges said that “Based upon the trial judge’s findings of fact, we see no reason why the maximum contact principle would not apply in this case.”
The Appeal Judges noted that the trial judge erred by failing to advert to and apply the maximum contact principle without providing any reason for departing from it, and by proceeding on the basis of a status quo that had developed as a result of a without prejudice order. Given the trial judge’s findings of fact, particularly the finding that, while both parties had misbehaved, the child had enjoyed the benefits of “effective parenting” by both, it was an error to make an order that departed significantly from equal parenting time.
Regarding the issue of decision making, the Appeal Court Judges found that decision-making authority assists in ensuring that a parent’s relationship with his or her child is not marginalized.
Since the Appeal Court found that the trial judge erred in failing to consider and apply the maximum contact principle, the order about decision-making was also set aside and reconsidered alongside the issue of parenting time.
The Appeal Court significantly ordered that despite the parties’ history of conflict, which appears to continue to today, some form of divided parallel decision-making should be ordered.
Analysis:
This court of appeal decision arose in the light of an interpretation related to the maximum contact principal falling within the divorce act. One can only surmise that such an interpretation may also extend to the issue of maximum contact principle under related family law legislation such as the Children’s Law Reform Act and the Family Law Act.
The importance of this decision cannot be underestimated. There is now clear guidance that a without prejudice order cannot be relied upon by a lower trial court while keeping aside the principle of maximum contact between the child and each parent. Litigants can now argue that it is critical for the well-being of the child to have the maximum contact with each parent.
Another important take away from this decision is the issue of decision making authority regarding decisions for the child. The court is now encouraging either equal decision making of some sort and even in the face of conflict, at least parallel parenting. However, even for parallel parenting to occur, there is a minimum level of communication that is required between the parents in order to put in place even this minimal parallel parenting structure.
In other words, where there is zero communication between the parents or where the communication is negative and unworkable, it is difficult to make a case for parallel parenting despite the guidance given in this case.
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