Ontario Court of Appeal Confirms Father Can Only See Children at Their Discretion


The Ontario Court of Appeal recently dismissed the appeal of a father who had fought a 2017 custody and access order which had granted custody of two of three children to the mother and provided him with access and communication to the children only at their discretion (and in the case of the younger child, also with the consultation of the mother).

What Happened?

The parents got married in 1998 and eventually separated in 2013. While the matter waited for trial, the father and children had very limited contact, and the father only had access to the children less than five times. He believed that the mother had alienated the children from him. The mother denied the alienation and argued that the father’s conduct was to blame for the children’s refusal to see him.

The Parents’ Respective Motions

In June 2017, after learning that it was unlikely that a trial would be reached, the father brought a motion seeking:

  • sole interim custody of the children for 90 days, with no access for the mother during this “blackout period”; and
  • an order directing that, during this period of interim custody, the children and the parents participate in the Family Bridges program.

The father also requested, in the alternative, an order for a directed trial on custody and access with expert evidence to be presented on parental alienation.

In response, the mother brought a summary judgment motion seeking sole custody of the three children, with access to the father at the discretion of the children (who were 17, 15, and 10 at the time).

Motion Judge’s Decision

In September 2017, the motions judge dismissed the father’s motion with respect to the eldest of the three children, noting that within a few weeks the child would be 18 and no longer within the court’s jurisdiction.

The motion judge then granted sole custody of the younger two children to the mother, and ordered that access and communication between the father and the middle child would be that child’s discretion, and access and communication between the father and the youngest child would be at the discretion of that child, in consultation with the mother.

The Father’s Appeal

The father argued, among other things, that the motion judge had failed to adequately consider the best interests of the children and the principle of maximum contact.

The Court of Appeal Decision

The Court of Appeal disagreed with the father’s assertion that the motion judge had not considered the best interests of the children or the principle of maximum contact, noting that the child’s best interests are not merely “paramount” they are the only consideration in the analysis.

The Court noted that it was clear, based on the evidence in this case, that the children had been suffering from the protracted conflict between their parents, and that the law has recognized that exposure to conflict can be the “single most damaging factor for children in the face of divorce”.

The Court went on to say that in making his order, the motion judge had put great weight on the children’s consistently expressed views and preferences and had considered whether they were genuinely-held.

The Court also noted that the motion judge had clearly relied on assessment reports to conclude that the children were expressing their genuinely held views when they repeatedly informed various mental health professionals (thirteen in total) that they:

  • did not want to have contact with their father; and
  • did not want to participate in any more therapy.

The children’s views and preferences were a factor in the best interests analysis, and given their ages, deserved significant weight. While the youngest child was only ten at the time, the alignment of his views with that of his older brothers’ can add to the weight of their beliefs, since, as other decisions have noted:

…each individual child’s views and objections are important, but so too is the children’s collective view. Where siblings’ views align, as they do here, the maturity of the elder sibling may bolster the weight given to the younger siblings’ views. All three children have expressed the same strong desire…

The Court concluded that, based on the record as a whole, it had been open to the motions judge to conclude that the children’s views were “clearly and unequivocally” expressed and to grant them considerable weight.

The father’s appeal was dismissed, with the court noting:

This case, like all high conflict custody cases, is very sad. Undoubtedly, it has caused much pain to the parents and the children. Although positions have become entrenched, I do not agree with the father’s submission that the decision under appeal effectively prevents the father from ever having any relationship with his sons – something he clearly wants very much.

The order leaves the door open to a way forward.  We encourage the mother to keep an open mind about the potential benefits of a relationship between her sons and their father and to encourage some form of regular communication between them. With the dispute between the parents now at an end, the father can now focus on what has always been most important – slowly re-building his relationships with his sons.

Separation and divorce can present many fears and concerns regarding child custody and access. Many clients approach our firm terrified that they will lose custody of their children. At Jason P. Howie, Professional Corporation, we put these fears to rest and provide our clients with peace of mind regarding their rights to custody and access. With more than 25 years of experience guiding husbands and wives through the stress and strain of family law disputes,  Jason P. Howie understands your frustrations and fears. Jason is Certified as a Specialist in Family Law by the Law Society of Upper Canada and his experience and success practicing family law has earned him respect and distinction in the legal communities of Windsor and Essex County. Jason and his team will customize an approach to meet your specific needs. For questions that only a family law lawyer can answer contact us at 519-800-1039 or online.

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