Thread: How to proceed
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Old 04-25-2006, 11:10 PM
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Although, an unrelated case, this interim motion accepted the highly cited SCC case of Young v. Young on an interim motion

M. V. v. J. R. T

ONTARIO COURT OF JUSTICE

Before Justice Penny J. Jones

http://www.canlii.org/on/cas/oncj/2004/2004oncj244.html

[18] In Young v. Young, 1993 CanLII 34 (S.C.C.), [1993] 4 S.C.R. 3, 160 N.R. 1, 34 B.C.A.C. 161, 84 B.C.L.R. (2d) 1, 56 W.A.C. 161, [1993] 8 W.W.R. 513, 108 D.L.R. (4th) 193, 18 C.R.R. (2d) 41, 49 R.F.L. (3d) 117, [1993] R.D.F. 703, [1993] S.C.J. No. 112, 1993 Cars*well*BC 264, Justice Beverley McLachlin made the following comments at page 120 [S.C.R.]:

[212] I conclude that the ultimate criterion for determining limits on access to a child is the best interests of the child. The custodial parent has no “right” to limit access. The judge must consider all factors relevant to determining what is in the child’s best interests; a factor which must be considered in all cases is Parliament’s view that contact with each parent is to be maximized to the extent that this is compatible with the best interests of the child. The risk of harm to the child, while not the ultimate legal test, may also be a factor to be considered. This is particularly so where the issue is the quality of access — what the access parent may say or do with the child. In such cases, it will generally be relevant to consider whether the conduct in question poses a risk of harm to the child which outweighs the benefits of a free and open relationship which permits the child to know the access parent as he or she is. It goes without saying that, as for any other legal test, the judge, in determining what is in the best interests of the child, must act not on his or her personal views, but on the evidence.

[19] Although Young v. Young was decided in the context of the Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, I accept that the above-noted comments are equally true in the context of the Children’s Law Reform Act, R.S.O. 1990, c. C-12. The best interests of the child must govern any determination of the form of access to be granted to the non-custodial parent and the court must decide this issue on the evidence.

LV