Best interests of child
Restraining Orders and Access Restriction for Difficult Parents
An Ontario court recently addressed the matter of restraining orders and access restrictions against parents whose behaviour towards their children following a divorce was inappropriate and disruptive to the children’s best interests.
The mother at the centre of this case was subject to an access restriction, as well as a restraining order. Essentially, she was unable to visit or communicate with her two children, based on her inappropriate and disruptive past behaviour towards them.
The father filed a motion requesting a continuation of the access restriction and an expansion of the restraining order to include the mother’s new husband and other extended family members. He claimed that the mother’s extended family members continued to communicate with the children on behalf of the mother and in a way that mirrored her inappropriate past communications with the children.
The History of the Parties
The relationship between the mother and father lasted for more than 20 years. They began cohabitating in 1987, were married in 2001, and ultimately separated in 2007. They had two children.
Following their separation, there was a two-week trial in which the main issue was mobility. The mother wanted to move from Ontario to England to pursue a relationship with a man she had met on the internet, and sought permission to move the children (then aged five and six) with her.
The trial judge determined that it was in the children’s best interest to live primarily with their father in Ontario, but granted the mother access to the children in both Ontario and England, as well as joint custody.
The Mother’s Questionable Behaviour Towards the Children
Following the trial, the mother moved to England without the children. It became apparent that she was unhappy with the trial judge’s final order and went to great lengths to undermine it at all costs, including by denigrating and undermining the father’s authority, attempting to strongly influence the children to permanently move to England, and criticizing the children’s lives in Ontario. The mother also engaged in excessive communication with the children, including through sending dozens of daily text messages and creating a “perpetual sense of obligation” for the children to be in communication with her.
At one point, at the end of a summer access visit, the mother refused to return her son to Ontario (he was then aged 13). The father was forced to initiate a Hague proceeding to force the mother to comply with the existing custody order. The son ended up staying in England for two additional months, pending the Hague proceeding. Once he returned to Ontario the mother embarked on a “campaign to make him feel guilty and responsible for the great sadness she and her new husband now felt”. In the four months following the son’s return to Canada, the mother sent him more than 2,000 iMessages.
In response to the mother’s behaviour, the father sought, and was granted, an order limiting her summer access to the children to Ontario only, prohibiting her from removing the children from the province, and requiring a professional supervisor to monitor access exchanges.
A further order was subsequently made in response to the father’s additional complaint that the mother continued to engage in constant and invasive messaging and multiple daily phone calls to the children. A judge ordered that communication be limited to three one-hour blocks of time per week.
The mother violated these court orders, continuing to make negative comments to the children about their father, and making no effort to help them accept that they would no longer be going to England. Rather than choosing to exercise her access rights, the mother “started a campaign of guilt and shame”.
In response to the mother’s actions, the children began to rebel against the father. For example, the daughter told the father that she would refuse to go to school if she was not allowed to visit England, that she would refuse to go anywhere with him, and that she would call the police if necessary. She missed so much school that the father was eventually informed that she might not be able to graduate from Grade 8.
It was for these reasons, and many more, that the father eventually sought the original order suspending access and granting a restraining order. He argued that this was the only way to bring stability into the children’s lives. The judge agreed, and the father’s requests were granted.
The Judge’s Comments About the Mother’s Behaviour
In making the original order, the judge made a number of findings about the mother, including:
The mother has demonstrated that she is unable to act as a parent or to provide the children with guidance and education and the necessities of life. On the contrary, she is willing to sabotage the mental health and emotional well-being of the children in an effort to accomplish her future goal of having them reside with her in England. She caused emotional turmoil in [the son’s life] in 2014 when she retained him in England following her access visit. She is currently emotionally abusing [the daughter] by engaging her in the clandestine plan to break down her relationships and life in Canada such that no option exists but to move to England.
The judge also noted:
…the mother’s actions demonstrate a total lack of judgment and an attempt to influence the children against the people they most care about. The mother’s actions have caused much anxiety for the children and at times they have become consumed with attempting to meet the needs and happiness of the mother. The mother and her partner constantly communicate their sadness that the children are not “home” with them in England. It is important to remember at this point in time that [the children] have never resided with the mother in England. The mother moved to England from Ontario to follow a romantic Internet interest after the mobility trial in 2009. By her actions the mother has created an untenable position for the children.
Following the suspension of access, and the imposition of the restraining order, the father reported that the children’s behavior had vastly improved, and that they thrived in his care. During this time, the father provided regular and respectful email updates about the children to the mother.
The Judge’s Decision on Extending the Access Suspension
In considering the father’s subsequent request to extend the access suspension and expand the scope of the restraining order, the judge considered several of the guidelines for interpreting “best interests of the child”, as outlined in the Children’s Law Reform Act, namely:
- (d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
- (e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
- (f) the permanence and stability of the family unit with which it is proposed that the child will live;
- (g) the ability of each person applying for custody of or access to the child to act as a parent.
The judge noted that the mother continued to demonstrate an inability to see past her own needs, and showed a lack of appreciation for the emotional needs of the children. The mother also failed to take advantage of an opportunity to convey her support for the children’s progress via the court and/or court appointed counsellors.
In addition, the mother failed to specifically propose a plan for expansion of access, and failed to acknowledge any responsibility for her previous conduct that resulted in the suspension of access and restraining order. Furthermore, the judge noted that the mother had repeatedly demonstrated that contact between herself and the children will likely have a destabilizing impact on them, and that permitting any communication between her and the children would likely disturb their emotional well-being.
The judge ultimately granted the father’s requests to continue the access restriction and to expand the scope of the restraining order. The mother was permitted to record an audio or video message to the children to be reviewed by the children’s counsellors, and, if deemed appropriate, delivered to the children by the father.
If you have questions about custody and access, including questions about dealing with a difficult spouse, contact Windsor family lawyer, Jason P. Howie. Jason has many years of experience helping clients navigate challenging post-divorce relations. Many of our clients are referred to us by former and current clients, and also by lawyers, counsellors and other professionals. Call 519.973.1500 or contact us online.