When spouses divorce and they share multiple children, most people would assume that a parent’s access to one child would equal their access to another. However, that may not always be the case.
Canadian courts must strike a delicate balance between two (sometimes) opposing concepts: the best interests of the child, and what is known as the ‘maximum contact principle’, which dictates that courts should find a way to ensure each parent has the maximum contact with their children under the circumstances. With respect to the best interests of the child, the federal Divorce Act, which governs child access following divorce, provides that:
In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.
The Divorce Act also sets out the ‘maximum contact principle’, as follows:
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.
In a recent decision out of Nova Scotia, the court found themselves facing a tough situation. In the case, the divorced couple shared four children, ranging in age from 13 to 17. With respect to the two oldest children, an arrangement had been made whereby the father could arrange visits by contacting them through the mail. However, the two youngest children indicated that they did not wish to have contact with their father. They had not seen him for seven years, approximately half their lives. Further, they had memories of erratic behaviour on his part and were wary of seeing him.
The lower court relied heavily on their wishes and denied the father access, a decision the father appealed. On appeal, the court found that the original judge had erred in placing the best interests of the child well above the maximum contact principle in order of importance. The court stated:
The wishes of a 14 and 13 year old are certainly to be carefully considered in determining their best interests, but they remain only one factor among the conditions, means, needs and other circumstances of the children that a judge must assess in reaching a decision.
The court held that a similar arrangement should be made as had been with respect to the two older children. The mother would provide an email address and phone number to the younger children that they could use to contact their father, and he could contact them by mail. Any arrangements for access would be made with the children directly. This solution provided an opportunity for the father to communicate with his daughters while giving them control over the decision to see him in person or speak with him on the phone.
While the original decision was overturned, it does not mean that Canada’s courts may not take different approaches to access when it comes to multiple children. The guiding principle in the Divorce Act regarding the ‘best interests of the child’ applies individually to each child, rather than to all the children in a family as a collective group. What best serves one child may not work for another.
Parents and children in the same family can have drastically different relationships, and this must be taken into account when determining access. At the same time, the best interests of the child, while a key and important factor for the court to consider, must always be balanced with the maximum access principle. This balance may shift, depending on the family circumstances and the age of the children, but the two principles should always be considered in relation to one another.
The family law lawyers at Mincher Koeman are exceptionally experienced with respect to child custody and access following the breakdown of a relationship. We will work with you to ensure a custody and access arrangement that fits your family’s specific circumstances. Contact our office today by calling us at 403-910-3000 or contact us online.
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