This principle has been replaced with the “parenting time factor” or “best interests of the child” standard as of 2022, in recent family law reforms. The emphasis has shifted towards considering what arrangement would be most beneficial for the child’s overall well-being and development.There is no longer a focus on the “maximal contact” principle for parenting orders due to changes to the newly-amended Ontario and federal Family legislation. The “maximal contact” principle has been replaced with “meaningful and consistent relationship with both parents”.

What is the pre and post amendment to the Divorce Act?

Phraseology is very important for understanding the pre and post amendments. 

Pre-amendment, the Divorce Act focused on concepts like “custody” and “access,” which often led to adversarial approaches to parenting arrangements. 

Post-amendment, the Divorce Act now uses terminology such as “parenting orders”, “decision-making responsibility” and “parenting time,” reflecting a more child-centred and cooperative approach to parenting after separation or divorce. 

Pre-amendment: Maximum contact

16(10) 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.

Post-amendment: Parenting time consistent with best interests of child

(6) 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.

What has changed is the way the provision can be used?

The amendment to the Divorce Act has changed the way parenting provisions can be used by shifting the focus from parental rights to the best interests of the child. This change encourages parents to prioritize cooperation and the child’s well-being in determining parenting arrangements rather than engaging in contentious legal battles over custody and access. 

Why is it important for parents to be cooperative with facilitating maximum contact?

It is crucial for parents to cooperate and facilitate maximum contact because maintaining a strong relationship with both parents is generally in the child’s best interests. Children benefit emotionally, psychologically, and socially from having a meaningful relationship with each parent, provided it is safe and nurturing. Cooperative parenting also reduces conflict, which can have negative effects on children’s well-being. 

Is there a presumption of equal parenting time?

While there is no strict presumption of equal parenting time, there is a growing recognition of the importance of shared parenting arrangements when it is in the best interests of the child. However, each case is considered individually, and the court will make decisions based on the specific circumstances and the child’s needs.

The best interests of the child are considered in what areas other than parenting?

The best interests of the child are considered in various areas beyond parenting, including decisions regarding child support, relocation, education, healthcare, and any other matters affecting the child’s well-being and development.

How do the courts determine the best interests of the child?

Courts consider a range of factors when determining the best interests of the child, including the:   

• child’s age
• needs and preferences (if they are old enough to express them)
• quality of the relationship with each parent
• ability of each parent to provide for the child’s physical, emotional and psychological needs
• any history of abuse or neglect
• stability of the home environment, and 
• any other relevant factors specific to the case. 

The goal is to ensure that the final decision creates a custody and access arrangement that promotes the child’s overall welfare and development.