Cavannah v. Johne 2008 Ont. S.C.J. “Maximum Contact Rule Prevails”

The parties in this case met at a wedding in August, 2005. By mid-October that same year, the respondent mother found out she was pregnant. The pregnancy was a surprise to both parties and discussions ensued as to what they would do. By November, 2005, communication broke down between the parties and they stopped dating. The parties did not and still do not know each other very well.

The subject of this case is the daughter of these parties who was born on June 13, 2006. Both parties adore her and have made her the centre of their lives. However, they cannot agree on how to share the child’s time between them. At the time of the trial, the child’s primary residence was with her mother with access to her father. The applicant father seeks an equal time sharing for the child, while the mother wishes for the more “conventional regime” of primary residence with her and weekend and midweek access to the father.

The father is forty-three years old and a school teacher by profession. The father voluntarily began to make child support payments when the child was born and increased the quantum when he realized the figures were inaccurate. He has even agreed to pay the full amount of support as specified in the Child Support Guidelines even if the child is with him, as he requests, for fifty per cent of the time.

When the father was informed of the birth, he arrived the next day to see the baby. The parties had trouble trying to sort out time periods that the daughter would be with the father as the mother was breastfeeding. Following a case conference in April 2007, the mother reluctantly agreed to increased access to include overnight visits after the child reached one year of age. In November 2007, when the father realized that the mother had no interest in moving to Toronto, he gave up his house in Toronto and his position with the Toronto Board of Education to move to Collingwood to be closer to the child and to facilitate mid-week visits. He became frustrated when his requests for additional access seemed to produce few results.

The Judge stated the this case must be decided pursuant to the principles outlined in Part III of the Children’s Law Reform Act. The parties were not in dispute with the issue of custody and agreed to have joint custody of the child. The Judge concluded that each parent had the capacity to care for the child’s needs and the case should be decided in the best interests of the child. While the case was not being decided under the Divorce Act which contains the maximum contact principle, the judge based his decision in light of this principle. He stated that the maximum contact principle has long been recognized as a proper consideration in the best interests test, even if it is not explicitly in the CLRA.

The judge noted that despite the father’s enormous commitment to the child, his contact had been restricted by the breastfeeding. The mother argues that since the child is thriving, there is no need to alter the status quo in a radical way. The judge stated that while the status quo is important, it would be unfair to deny the father an equal opportunity to parent the child.

As a result, the judge ordered a time sharing of three nights with the father (Thursday to Sunday) and four nights (Sunday to Thursday) with the mother each week. The judge recognized that alternative arrangements may be required as the child gets older.

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  1. This is a case that should be read by any parent that is seeking a shared parenting regime, or even more time with their child(ren), as it sets out the factors that a court looks for when having to decide the issues of residency and access. Particularly for the parent who wants shared parenting, or more time, to work on a long term basis, they need to:

    1. stay involved,
    2. be pro-active in requesting information about your child(ren) not just from the other parent but from doctors, teachers, coaches, etc., and
    3. live close to where the child resides.

    Another point, however, is that the judge read into the legislation a factor that the legislators did not find appropriate to include in the legislation, the maximum contact principle. The maximum contact principle makes sense in situations where the children are living with both parents, which then must change as a result of the parents finding that they can no longer live together and must separate, and in come cases divorce. The maximum contact principle makes sense in those situations as the child(ren) came from a situation where, for however long, they knew what it was like to live with both parents. Should the same principle be applicable in a situation where the parents never lived together, as in this case? If we as a society place a high value on both parents being involved in a child’s development and upbringing, then the answer is obviously yes.

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