Feb. 28, 2019-Importance of Maximum Contact Principle

Coppin v. Arboine, 2018 CarswellOnt 19895 (Ont. S.C.J.) - Family Court - M.E. Vallee J. A father brings a motion to change a previous order with respect to parenting time. The father currently has parenting time with his child on alternating weekends from Friday at 6:00 pm to Sunday at 6:00 pm. He is seeking to change that to week-about. The mother opposes the change and argues that there is no material change in circumstances and that the child is doing well under the current parenting schedule. The parties live near each other and the child has just started junior kindergarten at a school close to the mother's home.

Three previous orders had been made: one at age 7 months, one at age 11 months, and another at just shy of age 2. The child was now 4. Now the father sought to expand time with the child to week about. Justice Vallee said you can't even get to first base - the judge determined that there was no material change in circumstances that could found any modification to the order. Shocking.

Philip Epstein commented in his Epstein's This Week in Family Law, Lam. L. News 2019-04:

Since the father cannot prove a material change of circumstances, his motion is dismissed. This is not a satisfactory state of the law. There is an enormous difference in child development between a two-year- and a four-year-old child. The parenting time, in this case, is extremely limited and contrary to the principles of maximum contact. There is nothing in the evidence to indicate that the contact with the father should be limited, except that when the final order that the husband seeks to change was made, the child was only two and the somewhat limited access time was age appropriate. It is not age appropriate at age four to limit the father's time to this degree and, in any event, the child has a step-brother and ought to have more reasonable contact.

These cases have to be looked at carefully and the blanket statement that passage of time, in and of itself, does not constitute a material change of circumstances, is probably a fair comment. However, when looking at the order that was made when the child was two and comparing it to what order should be made when the child is four, is entirely a different question. With the greatest respect, I think Justice Vallee gave too rigid an interpretation of Wiegers v. Gray, supra, and its material change test.

We applaud Mr. Epstein for advocating that it is not appropriate at age four to limit the father's time to this degree. We take serious exception to his view that at age 2 somewhat limited access was then age appropriate. But at least he recognizes the importance of having maximum contact when a child is 4 years old.