Ottawa Citizen
Wednesday, December 18, 2002

Divorce bill removes key custody principle

'Maximum contact' with both parents 'de-emphasized'

Cristin Schmitz
The Ottawa Citizen

An unpublicized change in the federal government's proposed custody reforms would abolish the Divorce Act's longstanding requirement that children of divorce should generally have "maximum contact" with both parents after divorce.

The move to quietly repeal the statutory "maximum contact" principle, which non-custodial parents have relied on since 1985 to preserve their time and relationships with their children, was not mentioned in the Justice Department's news releases or press briefings when the contentious Divorce Act amendments were introduced Dec. 10.

The proposed amendment was denounced by the Canadian Alliance and some Liberals as a serious setback to children's rights to preserve strong bonds with both parents after divorce. "It's a terrible thing and it is consistent with the whole flavour of (Justice Minister) Mr. (Martin) Cauchon's proposal," charged Liberal Senator Anne Cools, an outspoken advocate for fathers' rights. "It's an attempt to shift back to the earlier position ... of 'mother gets all.'"

"It's a regressive step that is going to mean greater inequity in the rulings of courts rather than more equality," echoed B.C. MP Jay Hill, the Canadian Alliance's critic on divorce. "It's going to perpetuate the gender bias that already exists in the court system, that's my great fear."

Section 16(10) of the current Divorce Act specifically requires judges who preside over child custody and access disputes to "order as much contact with each spouse as is consistent with the best interests of the child."

That directive to courts is dropped in Bill C-22, which simply tells judges who are determining a child's best interests post-divorce to "consider all the needs and circumstances of the child," including 12 specific factors. One of those factors is "the benefit to the child of developing and maintaining meaningful relationships with both spouses."

Department of Justice lawyer Virginia McRae acknowledged that the maximum contact principle has been "de-emphasized."

"We did not want people to get bogged down on the quantity of time a child spends with a parent," she explained. "It really is about the nature of the ongoing continuing beneficial relationship between parents and children and to focus on a 'maximum' gave people something more to fight about. It's about what the needs of the children are."

Divorce law expert Julien Payne of Ottawa said the maximum contact principle has "for 15 years had a significant impact on judicial decision-making."

"Its removal may prove to be prejudicial to interests of non-custodial parents," Mr. Payne said. "Much will depend on what the courts do and I think basically once Parliament finishes its statute, control passes to the judiciary and I don't think that the judges are going to change their fundamental approach to custody, whatever you put in the statute."

Dartmouth, N.S., lawyer Julia Cornish, chairwoman of the national family law section of the Canadian Bar Association, said the maximum contact principle is often relied on in court by non-custodial parents who find their visiting rights denied or restricted by custodial parents.

© Copyright 2002 The Ottawa Citizen