Family law related to children is designed to represent and ensure that the best interests of a child are met. In most cases, this means that courts will tend to lean towards ensuring that children have at least some kind of relationship with separated or divorced parents and to give each of them parenting time with the child. Of course, there are unfortunately instances where it’s not in the best interests of a child to spend time with one parent. This could be related to criminal activity or abuse which makes a parent’s home unsafe, but it could also be because the conduct of a parent during the separation process leaves a court with no other option than to remove a parent from the child’s life altogether. A recent decision from the Ontario Superior Court of Justice looks at one such instance of this.
Decision making responsibility should normally be provided to both parents
The parties in the matter include a mother, a father, and their child’s paternal grandmother. Following the parents’ separation, the mother determined that she wanted to seek sole decision-making responsibility and parenting time for the child she shared with the father. She also asked for a no contact order between the child and the father to be put in place.
The parties have some history of litigation following their separation. While the exact age of the child was not outlined in the decision, it stated that the child was five-years-old when the parents separated in September 2019 and that prior to the separation, the mother was the child’s primary caregiver. Since the separation, the child has resided only with the mother, who has acted as the sole decision-maker for the child. The father is said to have made no meaningful effort to be involved in the child’s life and has acquiesced with respect to the mother’s desire to be the sole decision-maker.
The father’s conduct regarding parenting time
The court began its analysis by looking at the Children’s Law Reform Act which states that both of a child’s parents are equally entitled to decision-making unless it is within the child’s best interests to not have a parent involved. The court stated that common law has held that denying parenting time between a parent and a child is a remedy of last resort.
The court stated that the father had only seen the child once since late 2019 when the parties separated. This visit was in July 2020. The mother told the court that a previous order required the paternal grandmother to be present to supervise the visit, but she was not. Additionally, the mother said the father held out the “carrot” of consenting to give full decision-making authority to the mother in exchange for the visit, but he did not keep that promise. In addition to the father not seeing the child, the court also accepted that he had made no attempts to do so. The father even failed to respond to the mother’s attempt to seek a no contact order. In most cases, the courts would not have to even hear his defence on the matter, but the court said they would indulge him in giving him an opportunity to participate in case conferences along the way, which he failed to do.
Finally, the court noted that the father was incarcerated for the first two years of the child’s life and that during that time he had no contact with the child. The period of his incarceration as well as the time he has failed to see the child following the separation amount to half of the child’s life.
Is a no contact order the most appropriate remedy?
Previous court decisions have held that courts should attempt other parenting orders before resorting to a no contact order, but that when other options have failed, a no contact order may be suitable. Factors that may lead to a termination of parenting time include:
- 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 court found that in this case, factors (a), (b), (d), (e), and (f) were in place and that it was in the child’s best interests to avoid further supervised parenting orders and instead allow the no contact order to be put in place. In addition to looking at the father’s conduct, the court also noted that the child’s life seems to have improved since time with the father has been removed, with the child sleeping better and experiencing less anxiety about having to see the father. The court commended the paternal grandmother for wanting to have a relationship with the child but said that such visits contributed to the child’s anxiety.
Howie Johnson Barristers & Solicitors can help you with issues related to parenting time
At Howie Johnson Barristers & Solicitors we recognize that working through disputes concerning parenting time can be one of the most stressful aspects of separation or divorce. With over 25 years of experience, our family lawyers can help ease this stress while working compassionately and efficiently towards a solution that has your family’s best interests in mind. We offer services across all areas of family law, including child support, spousal support, mediation, and more. We proudly serve clients in Windsor, Essex County, and throughout the region. Please give us a call at 519-973-1500 or reach out to us online to schedule an initial consultation today.