“The amendments to Part III of the Act [CLRA] in November 2020 reformulated the terms “custody” and “access’ in favour of decision-making responsibility, parenting time, contact and guardianship, all to be determined according to the best interests of a child. Section 18(1) defines “contact” or a “contact order”, as noted above, differently from parenting:
“parenting order” means an order made under section 28 respecting decision-making responsibility or parenting time with respect to a child.
“parenting time” means the time a child spends in the care of a parent of the child, whether or not the child is physically with the parent during that time.
What distinguishes a contact order from a parenting order is decision-making responsibility accorded to the latter definitions. Underpinning both, the foremost consideration involving “the time a child spends in the care of” the non-parent or parent is the best interests of the child. The issue then in this case is to what extent should the decision of Scriver and Gordon be overruled in favour of TDS having contact with Arbuzova?
In Agmon Sherr J. rejected the Chapman line of cases favouring parental autonomy where settled intent could be demonstrated, referencing s. 62(3) as conferring a higher status on a person demonstrating that intent. That section is found under Part III of the Act under the heading “Procedure” and, in my view, confers no such status. As with the unsuccessful argument in Ninkovic that the reference to “grandparent” in section 21(1) and section 24(2)(a)(i) conferred no enhanced status or higher standing on a grandparent, “settled intent” is but one of several factors relevant to determining whether a contact order, in the circumstances of this case, is in the best interests of TDS. Section 62 does no more than mandate the proper parties to an application under Part III of the Act. Even so, this court adopts the three-question test set out in Giansante and followed by Agmon and Hicks.”