Hi, my name is Lucy D’Ercole and I am an associate with the Feldstein Family Law Group.

Today I am going to discuss a fundamental aspect that the court must consider when making custody determinations, which is known as the “Maximum Contact Principle.”

What exactly is the maximum contact principle?

According to section 16(10) of Canada’s Divorce Act, when making an order for custody, 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 other words, when determining custody, the court must begin with the presumption that it is important for a child to have as much contact with each parent as possible, so long as this does not conflict with the best interests of the child.

Another aspect of the maximum contact principle is that the court will assess which parent is more likely to facilitate the child being with the other parent.

If one spouse has engaged in disparaging conduct towards the other spouse, such as public name-calling, that will demonstrate to the court that he or she will likely not encourage the child to spend time with the other parent. As you can appreciate, it is very important to be cognizant of how you speak to or about your spouse to others - especially in writing – before, during, and after your family law matter.

As another example: If one parent has tried to prevent the child from visiting the other parent, then he or she will appear unwilling to facilitate access, which can severely impact his or her claim for custody.

The maximum contact principle is also an important consideration in cases dealing with relocation and mobility. Even if you are the custodial parent and have primary parenting, a court will consider how a significant move - even a couple of hours away - from the other parent will interfere with the maximum contact principle.

If you are currently facing a custody dispute, it is important that you consult with a family law lawyer. For more information or to schedule a free initial consultation, please visit our website at www.separation.ca or contact us at 905-581-7222.