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CUSTODY AND ACCESS - Maximum contact principle

Thursday, August 08, 2019 @ 8:45 AM  


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Appeal by the father from a joint custody order providing for primary residence and specified access. Prior to trial, the parties' child, age six, resided primarily with the mother pursuant to an interim, without prejudice consent order. At trial, the father sought joint custody and shared parenting on a two-two-five schedule. The trial judge ordered the child's primary residence to continue with the mother, with the father's access limited to alternating weekends and one overnight per week. In addition, the mother was granted final decision-making authority. The trial judge's decision cited the undisturbed post-separation pattern of care. The father appealed.

HELD: Appeal allowed. The trial judge erred in failing to address the maximum contact principle. Given the findings of fact regarding the child's emotional tie to both parents, and the father's contributions to parenting despite his conduct post-separation, there was no reason not to apply the maximum contact principle. In addition, the trial judge erred in proceeding based on a status quo that developed because of an interim, without prejudice order. As a result, it was an error to order the father's access in a manner departing from effectively equal parenting time. Furthermore, there was nothing in the record suggesting anything other than an order granting both parties meaningful decision-making authority in a parallel parenting model. The parties were directed to provide additional submissions.

Rigillo v. Rigillo, [2019] O.J. No. 3402, Ontario Court of Appeal, C.W. Hourigan, D. Paciocco and J.M. Fairburn JJ.A., June 28, 2019. Digest No. TLD-August52019008