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CUSTODY AND ACCESS - Child's preference - Maximum contact principle

Tuesday, August 27, 2019 @ 8:33 AM  


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Appeal by the father from a decision dismissing his application for access to the parties’ 14 and 15-year-old children. The father did not have access with the parties’ four children since 2012. The parties agreed the father would have access to the two oldest children, 16 and 17-years-old, by writing to them by mail once per month and allowing the children to directly arrange access with him if they wished. A Voice of the Children Report indicated the younger children did not want to see the father. The application judge found the children’s wishes were entitled to considerable weight.

HELD: Appeal allowed. The application judge erred by failing to consider the maximum contact principle, which was a mandatory consideration in determining the children’s best interests. The wishes of the children were only one factor to be considered in deciding what was in their best interests and whether to grant access. The application judge erred by treating the wishes of the children as determinative. The father was to have access to the children on the same terms he had access with the two oldest children.

Doncaster v. Field, [2019] N.S.J. No. 300, Nova Scotia Court of Appeal, M.J. Wood C.J.N.S., M.J. Hamilton and D.P.S. Farrar JJ.A., July 16, 2019. Digest No. TLD-August26019004