CANADA Trends and Developments Contributed by: Heather Hansen, Shannon Beddoe, Maureen Edwards and Victoria Lunetta, McCarthy Hansen & Company LLP
Interpretation and application of the maximum contact principle (post-2021 Amendments) As outlined earlier, the intention of the 2021 Amendments to the Divorce Act was to move towards focusing on the interests of children and not on the rights of parents. The aim of changes in terminology and language was to move away from “win-loss” dichotomies in child-related dis - putes. Importantly, the amendment to Section 16(10) has helped to create new conversations, and thus more clarity, around the interpretation (and relevance) of the prior “maximum contact” principle. Subsection 16(10) of the Divorce Act was replaced with Section 16(6), which provides for the following: “In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.” The concept of “maximum contact” no longer exists under the new provision and is replaced with “parenting time consistent with best inter - ests of child”. Under the new provision, the courts are directed to only consider the best interests of the child (by considering the crite - ria in Section 16(3)) when determining parenting time. There is no longer any basis for a common law presumption of equal parenting time, how - ever inconsistently such a presumption was or was not applied prior to 2021. While courts do still, in some cases, seek to maximise a child’s parenting time with each parent, they now do so only subject to the best interests of the child. Some of the jurisprudence on Section 16(6) since the 2021 Amendments includes the following.
Barendregt v Grebliunas, 2022 SCC 22 This case is paramount in asserting the new ver - sion of the maximum contact principle follow - ing the 2021 Amendments. In Barendregt, the Supreme Court of Canada provided a defini - tive direction on interpreting the new provision. There, the court clarified – and in so doing set - tled a long-standing debate and subject of con - flict in the jurisprudence – that previous judicial interpretation of the maximum contact principle as meaning a presumption of equal parenting time was a judicial overreach. The court fur - ther confirmed that the old “maximum contact principle” is better referred to as the “parenting time factor” and that the principle must “not be used to detract” from the “child’s best interests” inquiry (Section 16(3)). At paragraph 9, the decision reads: “The law relating to the best interests of the child has long emphasised the need for individ - ualised and discretionary decision-making. But children also need predictability and certainty. To balance these competing interests, the law provides a framework and factors to structure a judge’s discretion. This case calls on the court to examine how some of those considerations apply in mobility cases. In particular, I clarify that a moving parent’s reasons for relocation and the “maximum contact factor” are relevant only to the extent they bear upon the best interests of the child; a parent’s testimony about whether they will move regardless of the outcome of the relocation application should not be considered; and family violence is a significant factor impact - ing the best interests of the child.” Paragraph 164 provides: “The question before the trial judge was not how to best promote the parenting time factor; it was how to best pro - mote the best interests of the children. These
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