“Mr. Kinnear suggests that the maximization of contact between the children and their mother is in their best interests. He says that the maximum contact principle would presume at least shared care of the children rather than the present primary residence arrangement.
The maximum contact principle originally arose from s. 16(10) of the Divorce Act, R.S.C. 1985 c. 3 (2d Supp.) which provided that contact between children and their parents should be maximized “as is consistent with the best interests of the child”. That provision has been repealed as of March, 2021 and replaced by s. 16(6) of the Divorce Act which reads as follows:
(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child.
This provision is now echoed in s. 24(6) of the CLRA which is, of course, applicable to this case as the parties never married.
The fact that there is still a “maximization of contact” principle was reviewed by the Court of Appeal in Knapp v Knapp, 2021 ONCA 305. In that case, the appellant mother made submissions that the maximization of contact principle meant that the onus was on the party who was objecting to shared care. The answer of the Court of Appeal was an unequivocal no:
The trial judge applied these principles and did not mistake maximum parenting time with equal time. Nor did she place an onus on the appellant to rebut equal parenting time. Her reasons, read as a whole, demonstrate that she was alive to the principle that a child-focused approach to achieving as much parenting time as possible with each parent is the objective of the maximum contact principle. It may end up being equal time. It may not. Each family is different, and the principle is a guide set out to benefit children.
This was confirmed in Brown v. Fagu, 2021 ONSC 4374 where Mandhane J. confirmed [at para. 34] that, “Clearly the idea of a presumption in favour of one type of parenting order is anathema to the court’s unrelenting focus on the child’s best interests.” She stated that, at best, “all things being equal, the child deserves to have a meaningful and consistent relationship with both parents.” In other words, as suggested in the section, the time-sharing arrangement should only be ordered in accordance with the best interests of the children according to the particular circumstances before the court.
Applicant’s counsel cited Bazinet v. Bazinet, 2020 ONSC 3187 as authority for the proposition that shared care would be presumptively in the best interests of the children and that the court should ensure that parenting time is maximized. However, this case is clearly distinguishable as it was decided under s. 16(10) of the Divorce Act which provided for maximization of contact and which has now been repealed. At para. 192 of the decision, Petersen J. says that, “whatever stability is offered by the status quo parenting schedule cannot displace the statutorily mandated principle of maximum parental contact unless the evidence establishes that maximum contact would conflict with MA’s best interests.” If that statement means that maximum contact between both parents overrides the other factors concerning the children’s best interests, I do not believe that is now the law. In fact, s. 24(6) of the CLRA makes it clear that the quantity of a party’s parenting time must be “consistent with the best interests of the child.””