“The principle that a child should have as much contact as possible with each parent remains a part of the court’s best interests considerations. However, the Divorce Act’s previous reference, in the heading to the relevant section, to “maximum” contact has been removed. However, the operative terms in the section remain the same.
Whether “as much contact as possible” or “maximum”, the notion of ensuring that a child enjoys as much contact with each parent as is consistent with their best interests remains an important consideration for the determination of their parenting time.
The present provision, s. 16(6) states:
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.
The previous provision stated:
Maximum contact
(10) 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.
Whether this change in the heading is merely semantic remains a point to be argued. The point was not raised before me. However, I note that in Rigillio v Rigillio, 2019 ONCA 548, the Court of Appeal for Ontario found that a court’s failure to advert to what was then the maximum contact principle represented an error in law. Any judge who departs from the principle must provide reasons for doing so. Implicit in that principle is the notion that those reasons must be in a child’s best interests.
Despite the changed wording of the heading and any potential implications, it remains necessary for any court making a parenting decision to avert to the s. 16(6) principle.”