After separation, one of the most common disputes in a family matter is how parenting time should be allocated. Parents often insist that they are entitled to equal parenting time, and that their “parental rights” should be respected and enforced. After years of sharing caretaking responsibilities and exercising equal decision-making for the children, it is understandable that parents find it difficult when they are unable to see their children on a regular basis.
Many parents embark on their own research on Canadian family law and often come across the "maximum contact principle” under a previous provision of the Divorce Act, often interpreted as parents having a right to equal parenting time with their children.
While children may benefit from having both parents in their life, every family dynamic is unique and the primary consideration will always be the child’s best interests. It is important for parents to know what the current Divorce Act provisions around parenting time mean, and how the latest amendments are applied by Canadian courts when allocating parenting time.
What is the "maximum contact principle" under the Divorce Act?
Prior to March 1, 2021, section 16(10) of the Divorce Act provided:
Maximum Contact
(10) In making an order for custody, 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.
Under this provision it was accepted that children should have as much contact possible with both their parents, provided it does not conflict with the children’s best interests. By enacting this provision, parliament took a parent-centric approach emphasizing that time with each parent is valuable, and that judges should ensure that this time is maximized.
However, the goal of maximum contact is not absolute. In Young v. Young (1993), 1993 CarswellBC 264 (S.C.C.) (“Young”), the Supreme Court of Canada provided much needed clarity on this principle and held that parenting time may be restricted in so far as it conflicts with the best interests of the child. In the final analysis, all decisions regarding a parent’s contact with the child must reflect what is in the best interests of the child. This was later confirmed in Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 (“Gordon”).
Although the Young and Gordon decisions confirmed that the primary consideration is the “best interests of the child”, the maximum contact provision resulted in courts broadening their interpretation, thereby creating a presumption that having maximum time with each parent is in the child’s best interests.
Changes to the maximum contact principle
On March 1, 2021, family law in Canada underwent significant statutory changes relating to parenting arrangements and the “best interests of the child”. Section 16 of the Divorce Act was amended, and the heading “Custody Orders” was replaced by “The Best Interests of the Child”. The amendments included section 16(3) which lists the factors to be considered when determining the best interests of the child.
Section 16(10) of the Divorce Act was also replaced by section 16(6) which now provides:
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.
At first glance, section 16(6) does not appear to be much different compared to section 16(10):
- The courts must still ensure that children have as much time with each parent as is consistent with the “child's best interests”;
- Parenting time remains premised on the idea that children should have strong relationships with each parent; and
- Having sufficient time with each parent continues to be necessary to facilitate these relationships.
What differentiates the new provisions under section 16 of the Divorce Act, is that courts must now consider only the best interest of the child when determining how parenting time should be allocated, which include the factors listed under section 16(3) of the Divorce Act:
Factors to be considered
(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
(d) the history of care of the child;
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child’s care;
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
(j) any family violence and its impact on, among other things,
(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.
The amendments clarify and remove the previous presumption that having maximum contact with each parent is in the child's best interests. When courts are called on to decide whether a child should have equal parenting time with their parents, they must consider the specific circumstances of each family, including the history of parents’ caretaking responsibilities before separation, any issues of family violence and the child’s views.
In a recent decision on parenting time under section 16(6) of the Divorce Act, the Supreme Court of Canada in Barendregt v. Grebliunas, 2022 SCC 22 (“Barendregt”), confirmed that the “maximum contact principle” is only significant to the extent that it is in the child’s best interests. The court further stated that this principle is better referred to as the “parenting time factor”, and that it must not be used to “detract from the childcentric nature of the inquiry”.
How the Divorce Act amendments affect equal parenting time after separation
Simply, there are no presumptions around equal parenting time under the section 16(6) of the Divorce Act. The amendments should also not be interpreted as eliminating the idea that children benefit from having as much contact possible with both parents. Maximizing a child’s contact with their parents may still be in their best interest and the court should take this into account when allocating parenting time.
By changing the language around parenting time, family law matters are viewed from the perspective of the child, not the parent. When applying the parenting time factor instead of the maximum contact principle, the question is not “what are the rights of the parents”, but rather “what are the parents’ duties and responsibilities” and “is allocating equal parenting time in the best interests of the child”.
Before getting caught up in numerous Google results that reinforce the concept that parents have a “right to see their children”, parents should consider the history of care that existed before separation, how shared parenting will best serve their child’s needs and how they can continue to preserve their child’s relationship with the other parent.
To understand how these changes to the Divorce Act apply to your family law matter, contact our team of experienced legal coaches today for your free consultation.
