CANADA Trends and Developments Contributed by: Heather Hansen, Shannon Beddoe, Maureen Edwards and Victoria Lunetta, McCarthy Hansen & Company LLP
of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such con - tact.” While the origin of the maximum contact prin - ciple comes from legislation, and not jurispru - dence, it was jurisprudence that contributed to the rather conflicting interpretation of the princi - ple prior to the 2021 Amendments. Young v Young (1993) 4 SCR 3, 108 DLR (4th) 193 (SCC) The Supreme Court of Canada caseYoung v Young is recognised for its substantial initial discussion on the nature of custody and access and, specifically, the maximum contact princi - ple. In Young v Young, the father had access to the parties’ three daughters and the mother had custody. The custodial mother was raised in the Anglican faith and sought to limit the access rights of the father who was a member of the Jehovah’s Witness faith. The trial judge imposed limits on the father exposing the children to his faith and this was reversed by the Ontario Court of Appeal. On appeal at the Supreme Court of Canada, the mother sought affirmation that the father was not permitted to expose the children to his faith during his access time. The expo - sure to the father’s faith was ultimately allowed. The case emphasised that the maximum contact principle reflects the importance of the contin - ued involvement of non-custodial parents in the course of their children’s lives. Justice McLachlin set out the historical frame - work under which matters of custody and access had previously been resolved, from near absolute paternal preference in the 18th and 19th centuries, which was displaced to establish that mothers had the primary right to custody of a child of “tender years”, then expanded in
many jurisdictions to maternal preference, and finally settling on a “best interests” or “welfare of the child” test by the 1970s (paragraphs 205– 206). Justice McLachlin confirmed that the best interests test (referring to the child’s condition, means, needs and other circumstances) is the only test that is relevant, and that the preferenc - es of the parents and their rights have no role at all (paragraphs 210–211). Her Honour found that the fact that the court enshrined the principle that “a child of the mar - riage should have as much contact with each spouse as is consistent with the best interests of the child” was significant, as it was the only specific factor that Parliament had singled out (paragraph 212). Her Honour specifically held that the custodial parent did not have the right to forbid certain types of contact between the access parent and the child, as “the custodial parent’s wishes are not the ultimate criterion for limitations on access” (paragraph 216). Gordon v Goertz, 1996 CanLII 191 (SCC) (1996) 2 SCR 27 The 1996 case of Gordon v Goertz required the courts to consider “the desirability of maximis - ing contact between the child and both parents” (paragraph 49). While the case confirmed that the maximum contact principle is mandatory, it notes that it is not absolute “and the judge is only obliged to respect it to the extent that such contact is consistent with the child’s best inter - ests; if other factors show that it would not be in the child’s best interests, the court can and should restrict contact” (paragraph 24). Slade v Slade, 2002 YKSC 40 This 2002 case demonstrates how, in the years following Young v Young and Gordon v Goertz, the courts made sense of Section 16(10) as an
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