Father’s Lack Of Participation In Proceedings Leads To Uncontested Trial


One topic that comes up frequently in our blog is the idea of the best interests of a child (or children). The phrase comes up so often in our blogs because the child’s best interests are the only factors that can be considered when determining what happens to a child whose parents or guardians are involved in family law conflicts. We recently blogged about the importance of communicating during family law litigation and the risks of failing to respond to the court. This week, a recent decision from the Ontario Superior Court of Justice provides us with an opportunity to look at how these two topics intersect. 

Father noted in default for failing to respond

The parents involved in the matter were married in the Spring of 2012 and had one child together before they separated in 2020. Following their separation, the mother brought an application to Family Court seeking a parenting order. The father was noted in default, and the matter made its way to court as an uncontested trial. When the trial kicked off, the court stated that it had to determine if the grounds for an uncontested trial had been established and, if so, whether the mother’s requested parenting order was in the child’s best interests. 

The court stated that Ontario’s Family Law Rules allow a respondent (in this case, the father) 30 days to file an answer. If they fail to do so, one of the consequences can be an uncontested trial. 

The court noted that the mother brought her application in September 2021, with the father being served on October 25 of that same year. The father did not respond, leading a court to note he defaulted on December 21. In order to move ahead, a judge prior to the hearing had to authorize things to proceed with an uncontested trial. Once that authorization was granted, the court was able to move ahead with the trial. As a matter of process, the court stated that affidavit evidence might be relied on during an uncontested trial unless the court states that it would like to hear oral evidence. In this case, the court did not feel any additional evidence was necessary.

Mother puts forward case for her parenting plan

The mother sought an order to make her residence the child’s primary home but that the father would have parenting time on alternate weekends during the school year and on a week-on/week-off basis during summer. One of the reasons the mother wanted to have the child in her care during the work week was that the father recently lost his license due to an impaired driving charge and was unable to pick her up or drop her off at school. 

Secondly, the mother said that since September 2021, she had had parenting responsibility for the child during the week, with the father having parenting time on alternate weekends, which is the same as the arrangement the mother proposed. 

The court noted that the mother’s suggestion that the child resides with the father on a week-on/week-off basis during the summer showed that she supports the child’s relationship with him and his new girlfriend (the mother also has a new partner). The court said, “I find the mother has demonstrated her willingness to support the development and maintenance of the child’s relationship with the other parent.”

The court noted that the father had not participated in the proceedings to this point despite having opportunities to do so since October 2021. This means that the father has not put forward any alternative parenting arrangements. 

The court was satisfied that the mother’s plan, which was consistent with the status quo, was in the child’s best interests. The court provided a list of what factors should be considered when determining the child’s best interests. The list, which is not exhaustive, includes the following:

(a)  the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(b)  the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c)  each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;

(d)  the history of care of the child;

(e)  the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f)  the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g)  any plans for the child’s care;

(h)  the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i)  the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;

(j)  any family violence and its impact on, among other things,

(i)  the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii)  the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and

(k)  any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. 2020, c. 25, Sched. 1, s. 6.

The mother had asked for sole decision-making responsibilities in relation to matters concerning the child. She mentioned that the child hurt themselves on a dirt bike while in the father’s care, and the father did not take the child to the doctor but instead took the child to a firing range. The father, once again, had also failed to participate in the proceedings. 

The mother, who works as the director of a child care centre, had satisfied the court that she is able to make sound medical decisions related to the child. 

The court was satisfied that giving the mother sole decision-making responsibilities was in the child’s best interests. The court also added that each parent would be responsible for letting the other know if there was a medical issue related to the child while in their care. 

Johnson Miller Family Lawyers can help you with issues related to parenting time

At Johnson Miller Family Lawyers, 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 toward a solution that has your family’s best interests in mind. We offer services across all areas of family law, including child supportspousal supportmediation, and more. We proudly serve clients in Windsor, Essex County, and the region. Please give us a call at 519-973-1500 or reach out to us online to schedule an initial consultation today.

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