“Subsection 16(10) of the Divorce Act enshrines the principle of maximum contact with both parents:
[T]he 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 interest 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 principle is important in custody disputes because maximum contact with both parents is usually in the child’s best interests.
Ms. Brand submits that the trial judge did not give sufficient weight to this important principle. I do not agree with her submission. I make three points. First, the maximum contact principle is not an absolute principle; if it were very few relocation requests would ever be allowed. Instead, as this court said in Bjornson v. Creighton (2002), 2002 CanLII 45125 (ON CA), 62 O.R. (3d) 236 (C.A.), at para. 34, though the maximum contact principle is obviously important, “it remains one factor in the whole of the analysis. It ought not to be treated as the governing factor.” And in Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, still the leading case on mobility, McLachlin J. said at para. 24:
The “maximum contact” principle, as it has been called, is mandatory, but not absolute. The [Divorce Act] only obliges the judge to respect it to the extent that such contact is consistent with the child’s best interests; if other factors show that it would not be in the child’s best interests, the court can and should restrict contact: Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3, at pp. 117-18.
Second, the submission that the trial judge did not give sufficient weight to the maximum contact principle is not a basis for appellate intervention. Mobility or relocation decisions are discretionary decisions: Porter v. Bryan, 2017 ONCA 677 (CanLII), at para. 11; and Elliott v. Elliott, 2009 ONCA 240 (CanLII), 247 O.A.C. 174, at para. 19. The exercise of discretion involves the weighing of relevant considerations – here the maximum contact principle. To accede to the submission that an appeal court should intervene because it would have given more weight to a relevant consideration is to abandon discretion altogether. To be justified in interfering, an appellate court would have to be satisfied that the trial judge’s exercise of discretion was unreasonable. See: R. v. McKnight (1999), 1999 CanLII 3717 (ON CA), 135 C.C.C. (3d) 41 (Ont. C.A.), at para. 35; and Ursic v. Ursic (2006), 2006 CanLII 18349 (ON CA), 32 R.F.L. (6th) 23 (Ont. C.A.), at paras. 18-19.”