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Family - Parenting - Maximum Contact Principle. Agboola v. Unoh ['maximum contact principle']
In Agboola v. Unoh (Div Court, 2024) the Ontario Divisional Court considered the 'maximum contact' child access principle [CLRA s.24(6)]:Failure to Consider the Maximum Contact Principle and the Factors Affecting the Best Interests of the Child
[20] Section 24(6) of the CLRA provides:In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child. [21] This provision came into force March 1, 2021. It mirrors amendments to the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), as amended, which replaced the maximum contact principle. As this appeal was heard after March 1, 2021, this section applies: O’Brien v. Chuluunbaatar, 2021 ONCA 555, 461 D.L.R. (4th) 113, at para. 49.
[22] Section 24(6) highlights the importance of a child having time with both parents while explicitly providing that the parenting time allotted must be consistent with the child’s best interests.
[23] At the time of this trial, in 2019, the CLRA did not include an express provision of the maximum contact principle. The 2019 CLRA, in s. 24, set out the factors that a court must consider in an application for custody and/or access as follows:24 (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). 2006, c. 1, s. 3 (1).
Best interests of child
(2) The court shall consider all the child’s needs and circumstances, including,
(a) the love, affection and emotional ties between the child and,
(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,
(ii) other members of the child’s family who reside with the child, and
(iii) persons involved in the child’s care and upbringing;
(b) the child’s views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) any familial relationship between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10; 2016, c. 23, s. 7 (1, 2); 2016, c. 28, s. 2. [24] Although the statutory provisions at the time of trial did not include the current s. 24(6) of the Act, the trial judge was alive to the need for Zoe to continue to maintain relationships with both of her parents. At p. 42 of the reasons, the trial judge said:I find on the evidence before this Court that, notwithstanding the issues between the parties, Zoe is doing well and she is growing and developing well under the primary care of the applicant. In saying that, I do not in any way wish to be understood as saying that I do not consider Mr. Agboola's role in her upbringing not to be important. He clearly loves his little girl and wishes to continue to nourish that relationship not just for himself but for the well-being of Zoe. [25] Moreover, the trial judge instructed himself to consider the maximum contact principle before embarking on an analysis of the factors set out in s. 24(6). At pp. 43-44 of the reasons, the trial judge referred to the decision of McLachlin J. in Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3, at p. 12, where she said:The ultimate test in all cases is the best interest in the child. This is a positive test, encompassing a wide variety of factors. One of the factors which the judge seeking to determine what is in the best interests of the child must have regard to is the desirability of maximizing contact between the child and each parent. But in the final analysis, decisions on access must reflect what is in the best interests of the child. [26] The trial judge’s reasons demonstrate that he was fully cognizant of the importance of the child having time with each parent so long as the allocation of parenting time was consistent with the child’s best interests.
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