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Courts recognize that it is usually beneficial for the parent without decision-making responsibility to have regular parenting time with their child. Denying this access is typically a last resort when other options have failed.
However, when deciding parenting time, the best interests test is used to decide what form of contact should be ordered. A decision from the Ontario Superior Court demonstrates the type of circumstances where a parent may be denied parenting time because it may negatively impact the child.
Parenting Time Must be Consistent With a Child’s Best Interests
In Jordan v. La Russa, the mother sought decision-making responsibility over the parties’ child and ordered that the father not have any parenting time or contact with the child. The judge first acknowledged that when making a parenting order, the child’s best interests must be considered by section 24 of the Children’s Law Reform Act (CLRA). Specifically, section 24(2) provides that courts “shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.” When apportioning parenting time with a child, section 24(6) indicates that courts must “give effect to the principle that a child should have as much time with each parent as is consistent with the child’s best interests.”
The judge first dealt with decision-making authority and concluded that all of the factors listed in the CLRA weighed in favour of the mother having sole decision-making authority over the child. In particular, the judge noted that the child was five years old when the parents separated, that the mother was the primary caregiver, and that she has been the sole decision-maker for all issues related to the child. Since the separation, the father has made no meaningful effort to be involved in the child’s life.
Terminating Parenting Time is the Last Resort
The mother requested that she have sole parenting time with the child and that the father not be permitted to contact the child. Justice Corthorn noted that denying parenting time should be a remedy used only as a last resort. For instance, in V.S.J. v. L.J.G., the judge indicated that “the right of a child to visit with a non-custodial parent, to know and maintain or form an attachment to a non-custodial parent is a fundamental right and should only be forfeited in the most extreme and unusual circumstances.”
Similarly, in Van v. Palombi, the judge decided that an order for no access should only be made when other options have been tried and failed. In that case, the judge accepted that unsupervised access had to stop because the father tried to use the opportunity to gain an advantage in the litigation and to undermine the mother’s parenting of the children. Supervised parenting time was only harmful to the children in that case, so restricting parenting time was appropriate.
There has also been recognition that other options to facilitate parenting time should be tried first and that a no-contact order should be used only when other options have failed. In V.S.J., the judge indicated that supervised parenting time should “always be considered as an alternative to a complete termination of the parent/child relationship.” However, the judge believed that if the attempt proved unworkable, such as when the child remained hostile to the parent during the visit, reacted badly, or continually missed the visits, termination of parenting time would have to be considered.
Supervised Parenting Not a Prerequisite Before Restricting Contact
Justice Corthorn determined it was not in the child’s best interests to order supervised parenting time. First, the father had opportunities to pursue parenting time with the child by making requests to the mother or by obtaining a court order. However, he did not pursue either option. The judge also noted that the father had known for months that the mother would seek a no-contact order.
However, since he was served with the mother’s claims, he took no action in response. Additionally, the judge noted that the father had been given an “indulgence” by the court. He did not file his answer and was in default; however, he received notice of the earlier case conference and could have participated in the case conference if he had filed a brief. He did not do so and did not participate in the case conference. The judge decided the father was well aware that the mother intended to ask the court for a no-contact order and that the next step would be an uncontested trial. It is important to note, however, that the father did not participate in any meaningful way in the proceedings.
The one occasion when the father had parenting time following the date of separation had been over two years past. Although the paternal grandmother was to have supervised the visit, a portion of the visit was unsupervised, and the mother learned that during this time, the child suffered multiple bee stings and that the father failed to care for him. Significantly, that two-year period was not the only extended period during which the father had no contact with the child. The father had been incarcerated for the first two years of the child’s life. Justice Corthorn concluded the father had largely been an absent parent for 50 per cent of the child’s life.
Courts Consider Factors When Weighing a No Contact Order
The judge concluded, “an order for supervised parenting time is not a prerequisite to making a no-contact order.” The next issue was whether denying the father parenting time was appropriate. In V.S.J., Justice Blishen outlined the factors that should be considered when facing a request to terminate parenting time. These included:
- Long term harassment and harmful behaviours towards the custodial parent causing that parent and the child stress and or fear.
- History of violence; unpredictable, uncontrollable behaviour; alcohol, drug abuse which has been witnessed by the child and/or presents a risk to the child’s safety and well being.
- Extreme parental alienation which has resulted in changes of custody and, at times, no access orders to the former custodial parent.
- Ongoing severe denigration of the other parent.
- Lack of relationship or attachment between noncustodial parent and child.
- Neglect or abuse to a child on the access visits.
- Older children’s wishes and preferences to terminate access.
The judge also emphasized that these factors need to be considered when determining whether terminating parenting time is in the best interests of the child.
The judge looked at the mother’s affidavit and noted that some of the above factors, particularly 1, 2, 4, 5, and 6, were present in this case. Justice Corthorn was satisfied that the father’s involvement in the child’s life negatively impacted his well-being. Balancing these with other considerations, such as the right of the child to have a relationship with both parents, still did not weigh in favour of granting the father parenting time. In fact, the judge found that the child’s well-being had improved during the father’s absence. The judge concluded that, at this time, there would be no benefit to the child if the father were granted parenting time.
Sometimes a Parent’s Contact Negatively Impacts a Child
In every case, judges apply the best interests of a child standard when determining whether to terminate parenting time. Courts have looked to a set of factors that guide decisions concerning access to a child. While termination of parenting time is viewed as a last resort, the full range of considerations need to be weighed to assess whether a no-contact order is justified.
Experienced Windsor Family Lawyers Assisting with Decision-Making Responsibility and Parenting Time
If you’re navigating family law’s complexities, including parenting time and decision-making responsibilities, our experienced Windsor family lawyers at Johnson Miller Family Lawyers are here to assist you. We understand the delicate balance between parental rights and a child’s well-being. Contact us today online or by calling 519-973-1500 for a confidential consultation to discuss your specific circumstances.
