In terms of what the Committee did with the Maximum Contact Principle, they did not accept the Canadian Bar Association’s proposal to gut it and make it into an irrelevant provision.
All they did was move it into the Section where all of the factors are to be considered, but it remains a stand-alone subsection and “principle”, which arguably still means what it has meant – i.e. not just one of many separate “factors” but something still overriding. For example, it is not buried within proposed S. 16(3) where the list of “best interest factors” is included and it might have just been one of many factors (which is where we now find the “friendly parent” principle in S.16(3)(c) and the ability to cooperate and communicate (Sec, 16(3)(i)).
Conversely, the domestic violence considerations in proposed s.16(3)(j) as amplified in Sec. 16(4) and 16(5) are one of many “factors” and not a standalone “principle”, but might be part of the “primary consideration” in Sec. 16(2) if there is future risk to the child’s physical or emotional security.
The former location of the maximum contact principle was as a standalone Sec. 16.2(1) and which incorrectly referred to a circular set of references.
In proposed Sec. 16(2) the “primary considerations” include emotional and psychological safety and well-being, which should be able to deal with considerations of enmeshment/intrusive parenting and denial of parenting time to the other parent and to parental alienation matters.
Jennifer Harman and Ed Kruk’s recently published article on PA strategies being a form of domestic violence AND CHILD PSYCHOLIGCAL ABUSE should be able to be used. Se attached.
The text of the relevant changes (no consolidated version yet available) follows. Attached is the full list of changes and the first reading Bill..
Clause 12
That Bill C-78, in Clause 12, be amended by replacing line 3 on page 15 with the following:
“(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.
(7) In this section, a parenting order includes an interim”
That Bill C-78, in Clause 12, be amended by replacing lines 16 to 22 on page 16 with the following:
“16.2 (1) Parenting time may be allocated by way of a schedule. [NOTE THIS REFLECTS THE DELETION OF THE HEADING MAX CONTACT AND THE OLD PROPOSED 16.2(1)]
Give that the Conservatives proposed amendments in Committee to bring in a rebuttable presumption of ESP, we are partway home.
At first reading, the Minister pejoratively dismissed this a “parental rights” issue, when Myths and Facts (see attached submission I drafted for CAFE) corrects this to indicate that the current litigation paradigm is a parental rights issue and maximum contact/ESP is a children’s rights issue.
In the Committee clause-by-clause review of Dec. 5, a Liberal member of the committee said that there should be no presumptions (even though they are bringing one in for mobility and have one in proposed 16(2)) and ignored the content of: (I) Myths and Facts; (II) the joint submission of several organizations; (III), the public’s views; and (IV) the science.
This resulted in a position to, in effect, propose a continuation of the current mythical search for a custom solution in each case – which is a ridiculously naïve/uninformed/incorrect andsimply aspirational statement, which is completely devoid of understanding about how the current system does not work in practice, all as set out in Myths and Facts.
So, we now need to lobby the individual members of Parliament and work towards the Senate Process and our submission and presentations there.
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