It’s likely not surprising that many cases involving divorced or separated parents include feelings of hostility between the parents. This can sometimes lead to litigation if parents cannot agree on essential matters such as parenting time.
In a recent decision from the Ontario Superior Court of Justice, the court was tasked with deciding whether the father of a child should be able to enjoy expanded parenting time with the parties’ young daughter despite the mother’s objections based on his past conduct. The decision provides a good look at how the courts navigate these issues.
Father’s parenting time is limited
The parents involved were in a relationship that ended in 2021. When they separated, the mother was pregnant with their child, born in September 2021. The mother initially denied that the father was indeed the child’s biological parent, though that was later established through DNA testing.
An order was given on April 27, 2022, giving the father parenting time with the child five days per week. The visits were ordered to be supervised and to take place on the verandah of the mother’s home for 30-60 minutes during the morning. The parties had difficulty settling into this routine because the mother originally refused to leave the verandah during the visits, and the supervisor refused to attend when the mother was present. Eventually, the mother agreed to leave during the visits on the condition that the visits be video recorded in the event that evidence of the father’s conduct was needed.
In May 2022, the father told the court that the mother assaulted him during parenting time and that he has not been to visit the child since. He asked the court to expand his parenting time, while the mother argued he was not fit to spend any additional time with the child. It should be noted that the father’s requested expansion was not for overnight visits but longer ones held at a different location than the mother’s verandah.
Is the past conduct of the father relevant?
The father told the court that the status quo parenting order was intended to be a stop-gap measure and that the “verandah parenting” arrangement could not continue. He told the court the current arrangement puts the child in the middle of the conflict between the parents and is preventing him from establishing a meaningful relationship with the child.
The mother said that she objected to the father’s proposal and that expanding his parenting time would not be in the child’s best interests. She listed several reasons for this, which the court addressed in order.
The first was that the father has a history of controlling his anger and that he has not provided any evidence of attending anger management courses as previously ordered. However, the court stated that an affidavit provided by the father states he has enrolled in one-on-one anger management sessions and has completed an initial course. The court said that the mother’s dissatisfaction with the course he took and skepticism of whether he completed it was not enough to prevent expanded parenting time.
The mother also recalled the father’s history of substance abuse. The father admitted he has struggled with addiction, and in the nine years since he made a serious attempt to be sober, he has had a couple of relapses. However, he said he has not had a relapse in over a year and continues to receive counselling. He also said the mother suffered from addiction and proposed that he and the mother provide hair follicle testing to ensure they both maintain sobriety. This satisfied the court, which wrote that past conduct of drug and alcohol use can be determining factors in parenting time decisions but that the father’s year of sobriety and commitment to testing and counselling was enough to move past it. The court was critical of the mother’s evidence, stating it lacked detail. The court also noted that the mother did not agree to submit to follicle testing.
The mother’s last two concerns had to do with the child still breastfeeding, and the father’s inexperienced parenting, which she said made him unable to parent the child on his own. The court wrote that having visits with the child would allow the father to develop his parenting skills.
It all comes down to the best interests of the child
Ultimately, the court had to answer whether it was in the child’s best interests to have expanded parenting time with the father. The court quoted a 2015 decision which stated,
“The right of a child to visit with a non-custodial parent and to know and maintain or form an attachment to the non-custodial parent is a fundamental right and should only be forfeited in the most extreme and unusual circumstances. Jafari v. Dadar,  N.B.J. No. 387. The party seeking to reduce normal parenting time must provide a justification for taking such a position. The greater the restriction sought, the more important it becomes to justify that restriction.”
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