CANADA Trends and Developments Contributed by: Heather Hansen, Shannon Beddoe, Maureen Edwards and Victoria Lunetta, McCarthy Hansen & Company LLP
undertaking the “best interests” analysis, spe - cifically when it comes to deciding the appropri - ate parenting time and/or contact arrangements for a given child. In some cases, there may be conflicts between two or more of these criteria. When consider - ing the criteria, and when necessary to resolve conflicts between two or more of these criteria, the amendments to the Divorce Act clarify that courts shall prioritise the child’s safety, security and well-being: “When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.” At subsection (3) of the new Section 16 of the Divorce Act, the factors to be considered are set out, and include: • the child’s needs, given the child’s age and stage of development, such as the child’s need for stability; • the nature and strength of the child’s relation - ship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life; • each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse; • the history of care of the child; • the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained; • the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage; • any plans for the child’s care;
• the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child; • the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, particularly with one another, on matters affecting the child; • any family violence and its impact on, among other things: (a) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child; and (b) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-oper - ate on issues affecting the child; and • any civil or criminal proceeding, order, condi - tion, or measure that is relevant to the safety, security and well-being of the child. The Maximum Contact Principle as Case Study for the Paradigm Shift In this section, the “maximum contact principle” that was set out in the Divorce Act prior to the 2021 Amendments is analysed as an example of how the 2021 Amendments have led courts to re-examine and reinterpret long-standing principles that had been the subject of detailed development in the common law prior to 2021. Interpretation and application of the maximum contact principle (pre-2021 amendments) Prior to the 2021 Amendments, Section 16(10) of the Divorce Act provided as follows: “In making an order for custody, the court shall give effect to the principle that a child of the mar - riage should have as much contact with each spouse as is consistent with the best interests
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