“The trial judge 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.
We find 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. [Emphasis added.]
As noted by L’Heureux-Dubé J. in Young v. Young, [1993] 4 S.C.R. 3 (S.C.C.), at p. 53, dissenting in the result, the goal of maximum contact will only be overtaken to the extent that contact with a parent conflicts with the child’s best interests. See also: V. (B.) v. V. (P.), 2012 ONCA 262 (Ont. C.A.), at para. 15.
There is no reference to the maximum contact principle in the reasons for judgment. In light of the trial judge’s findings of fact, it is difficult to see that principle at work in the result.”