Jamieson v. Jamieson 2008 Ont. C.A. – The Maximum Contact Rule

Parents who wish to have sole custody of their children may think that by attacking the parenting skills of the other parent they will gain sole custody of the children. The case of Jamieson v. Jamieson from the Court of Appeal demonstrates how this strategy can backfire.

The parties in this case had a two-year old son. Both parents came to court firmly of the view that any joint custody arrangement would be unworkable because of the intense animosity between the parties. Thus, both parents sought sole custody of the child. The trial judge agreed that joint custody was inappropriate in this situation. The trial judge determined that both parents were equally competent at parenting the child. Thus, the decision regarding who to award sole custody turned on the maximum contact rule set out in section 16(10) of the Divorce Act which states “the court shall give effect to the principle that the child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child.”

The trial judge determined that the father would ensure maximum contact between the child and the mother while he was unsure about the mother’s ability or desire to do so. The crucial evidence for this finding was based on the testimony of a child and family services worker who explained how the mother had made repeated complaints against the father concerning the care of the child. When the child and family service worker went to investigate these complaints, attending at the father’s home on at least eight occasions, she found no basis for the concerns. The trial judge interpreted this evidence as further confirmation that the mother would not facilitate contact between the child and the father and was determined to undermine the parenting skills of the father. As such, the trial judge awarded sole custody of the child to the father.

The mother appealed this decision and was again unsuccessful. The Court of Appeal concluded that the findings of the judge were reasonable and appropriate and found no error in the conclusion of the lower court.

Overall, this case serves as a harsh lesson to parents who try to undermine the parenting abilities of the other parent. It also highlights the fact that when parents cannot cooperate, the court is forced to pick one parent over the other. Accordingly, it is very important to keep this in mind when making allegations against the other parent as you do not want to make allegations that will not be substantiated.

Andrew Feldstein

The Feldstein Family Law Group (FFLG) is one the largest family law firms that practices Family Law exclusively in Greater Toronto, with ten lawyers and counting. The boutique law firm has won the Top Choice Award for Family Law™ in Toronto for the past eleven years (2007 to 2017 inclusive).

Managing Partner Andrew Feldstein has been practicing family law for more than 20 years and frequently comments on Family Law issues through the media. The Feldstein Family Law Group offers vast written, video, and media resources on its website to those who find that they need to end their relationship.

This Post Has 2 Comments
  1. The Court of Appeal largely upheld the trial judge’s decision in this case.

    Sometimes in separation proceedings one or both of the parties are extremely focused on showing that the other party is an unfit parent. They are of the view that doing so will better their cause, securing sole custody for them. While it is true that legitimate concerns about an unfit parent should be raised, not only to determine what is in the child’s best interests but also at times to quite literally protect the child from harm, the Jamieson decision should serve as a warning that falsely accusing the other parent of being a poor parent will not serve the accuser.

    Sometimes in separation cases, because a party wants sole custody of the child they take the position that the parties do not have the ability to communicate with each other about their child. Again, some parties take this position thinking that they are bettering their case, forcing the judge to choose one parent to have sole custody, rather than ordering joint custody. They hope that the judge will see the other parent as not only a poor parent given the allegations they have made and also that the judge will have to award sole custody to them because the parties do not have the ability to communicate in a way that joint custody would be workable.

    In this case, the trial judge found that the parties had essentially equal parenting abilities and so turned to section 16(10) of the Divorce Act to look at which parent would best facilitate access with the child and the other (non-custodial) parent. The trial judge relied upon the social worker who had repeatedly investigated the allegations of poor parenting but found nothing. It was found that the accuser’s insistence that the other parent had inadequate parenting skills only served to highlight the other parent’s concern that the accuser was stubborn and would not facilitate contact between the child and the other parent. Thus, the accuser’s unfounded parenting allegations worked against them in the end and given that the parties both were of the view that they could not communicate about their child, a sole custody aware was the judge’s only option.

  2. The principle of maximum conduct, while present in both the Federal and Provincial legislation, has to date not been enforced to the extent that is could and should have been by the courts.

    The denial of meaningful access and the refusal to allow the non-custodial parent to participate in making major decisions for a child, in most, save for the most unusual circumstances, is contrary to a child’s best interests. The child has a right to the benefit of the involvement of and contact with both parents. This is clearly in a child’s best interests.

    This case highlights the all too frequent problem of alienation by a custodial parent and finally demonstrates the lengths the courts are prepared to go to ensure that children have the benefit of both parents.

    Too often custodial parents call the shots with virtual impunity. Access parents are left taking what they can get and oft times are not in a position financially to challenge the custodial parent in court. Even where the issue is brought to court by the access parent, the status quo has been allowed to accrue and prevails such that the courts are loathe to change it. There has to date been no specific deterrent until Jamieson. Custodial parents who now deprive their children of contact with and involvement by the access parents can be at risk of losing primary residence.

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