What is the test for overturning a reasonable custodial access agreement?

As a practical matter, a parent who has agreed to a child care arrangement should be prepared to explain why what he or she felt was appropriate earlier on is no longer appropriate. Summers v. Summers [1999] O.J. No. 3082. In essence, a parent who seeks to overturn a reasonable custodial access agreement entered into at the time of separation should be prepared to prove the agreement is no longer reasonable and how his or her proposed arrangement better meets the best interests of the children.

One of the factors under s. 16 (10) of the Divorce Act the court must consider is that the children should have as much contact with each other as is consistent with their best interests. The applicant father believes he is “entitled” to or “deserves” equal time with the children but the only test under the Divorce Act is the best interests of the child. Parental preferences and “rights” play no role in the issue of custody and access and despite the maximum contact principle, contact is to be restricted if it conflicts with the child’s best interests according to the evidence of the case viewed objectively. Young v. Young 1993 CanLII 34 (SCC), [1993] S.C.J. No. 112.