No Matter What: Me and My Family

Being Together

Article 9 of the UN Convention on the Rights of the Child states broadly that children should not be separated from their parents, unless required for their own safety and wellbeing. In the case of separation or divorce, where a child’s primary residence must be determined because the parents are no longer living together, such a determination must be made in accordance with applicable laws and procedures. The Convention specifically states that children have a right to stay in contact with both parents after separation or divorce, unless it would be harmful to do so. This sentiment is reflected in both provincial and federal laws dealing with families, separation and divorce.

The maximum contact principle applies to decisions about custody and to decisions about access; in fact it must be considered in all parenting decisions. It is the one factor that is singled out which courts must consider when determining new parenting arrangements. It is important to note that the maximum contact principle is limited by the best interests of the child. This means that if contact conflicts with the best interests of the child, such contact may be restricted, but only to the extent that it is contrary to the child’s best interests.

While the term best interest of the child is not precisely defined, courts have made some general statements that indicate that the best interests of the child are served by…

  • being safe from physical, psychological and emotional harm
  • having their ordinary and special needs addressed as well as possible
  • being nurtured with a view to maximizing their potential

The courts have also recognized that younger children may need more frequent bonding opportunities and the wishes of older children should be taken into account.

Even in cases involving sole custody, courts will be guided by the belief that the child should have as much contact with both parents as is consistent with their best interests. When one parent seeks custody of a child the court must consider that parent’s willingness to facilitate access between the child and the other parent.

And while the courts recognize a parental and legal duty to facilitate access, they are also mindful that any ongoing conflict between parents which adversely affects the child must be minimized or avoided. In support of this, and as previously discussed, courts have noted that parental conflict is the single factor which has consistently proven to be severely detrimental to children upon separation or divorce. Finding ways to facilitate comfortable, non-confrontational access is key.

Something to Think About…
Here are just a few tips to help encourage an ongoing relationship after separation and divorce…

  • Remember that both parents can provide children with positive role models for different aspects of their lives.
  • It may be helpful to separate the other person’s role as spouse from that of parent in order to see the positive in the relationship.
  • Remember that the child has a shared history with both parents and should be able to have a shared present and future with both.
  • Provide meaningful opportunities for the other parent to stay involved in the child’s life.
  • Find ways to minimize conflict and include the child in the parenting plan.

Being Together

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