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.s. 16(10) of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.)
In Rigillo, the Court stated that the lower court erred by relying on an existing temporary without prejudice order to create a status quo with one parent without considering the maximum contact principle. In other words, the Court of Appeal decision directed courts to specifically address the maximum contact principle when considering the best interests of the child test. This is good news for parents seeking expanded access or more time with their children.
This is in contrast with the proposed Divorce Act changes which propose to change the emphasis from custody and access to parenting time. The explainer for the proposed legislation specifically states that the government discounted a presumption of shared parenting to favour an analysis of the best interest of the child, stating:
Over the years, several private member’s billsFootnote 13 have proposed changes to the Divorce Act that would have created a legal presumption of equal shared parenting meaning equal time and joint decision-making responsibility. This presumption would apply unless a parent could prove that such an arrangement is not in the best interests of the child. While in most cases parents can and should share responsibilities for their children, a presumptive equal shared parenting arrangement does not work for all families. For example, if one parent travels frequently with work, or does shift work, it may be very difficult to share time with a child equally. If there has been family violence, sharing responsibilities may be dangerous to the child and other family members. An imbalance in power between spouses—as well as the high cost of legal representation—may make it difficult for a party to present evidence to convince a court not to apply the presumption. Several stakeholders, including the Canadian Bar Association, have argued that a presumption could increase litigation by forcing parents to lead evidence showing that the other parent is less fit, thus fuelling conflict. The Special Joint Committee on Child Custody and Access noted that a parenting presumption would shift the focus of the inquiry in parenting matters away from the best interests of the child. A presumption would be inconsistent with the emphasis on children’s best interests brought in by the 2019 changes to family laws.Legislative Background: An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act (Bill C-78 in the 42nd Parliament)
It is important to have a strong team of family lawyers to assist you in your family law dispute. If you have questions about your rights and obligations relating to child custody or access contact Windsor family law lawyers Mary Fox, Tanya McNevin or Thomas MacKay today by calling 519-259-1820. We serve clients in Windsor, Tecumseh, Lasalle, Essex, Leamington, Kingsville, Belle River and Lakeshore, and throughout southern Ontario.