The Risks of Making Unilateral Child Access Decisions

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A few weeks ago, we wrote a blog about a mother who left the United States while pregnant with the child she had with her former husband. The father tried to use the Hague Convention to have the child returned to the United States but was unsuccessful in doing so, primarily because the child had never been a habitual resident in the United States. This week we look at another situation where one parent made a unilateral decision to withhold access (now referred to as “parenting time”) to the child. This case highlights the risks of acting unilaterally when making decisions about a child, especially when the other parent is the child’s primary decision-maker. The decision, which was issued by the Ontario Superior Court of Justice, involves parents who are separated. The father failed to return the child to the mother’s care after spending time with him.

Conflict high amid dispute over how relationship ended

The mother and the father were in a relationship that led to the birth of their child, who was born in 2017. The mother and father lived together until July 2021. An incident occurred between the father and another child of the mother from a prior relationship. The father left the house following the incident.

The mother claimed the father had been posting inappropriate things about her on social media. She also told the court the father would show up at her house without her permission and ransacked the home on one occasion. Meanwhile, the father said the mother made him feel unsafe, citing an encounter they had at a retail store in which he said she made a scene. The father also argued the separation was not because of any violence on his part, but because he had discovered the mother’s presence on several dating sites. He went on to state that the mother has made several false allegations about him to the police as well as the children’s services organization in the country where they lived.

Father failed to return child to mother’s care

The matter made its way before the court after the father took the child into his care. The decision does not make mention of how long the child was in the father’s care but does state that he refused to return the child to the mother on August 15, 2021. The mother told the court she has always been the child’s primary caregiver and that the father had never cared for the child. She asked the court to provide a police enforcement order prohibiting the removal of the child from the city in which the mother lives without her prior written consent. She also asked for the father to be required to keep a distance of 25 meters from their home and be prohibited from making day-to-day decisions about the child.

The father did not ask the court for anything stated he had kept the child from the mother “out of fear” that she would keep the child away from him or coerce the child into making false allegations about him.

Best interests of the child are paramount

As set out in the Children’s Law Reform Act, the paramount consideration in parenting time and decision-making matters is the child’s best interests. There are several factors to consider, but primary consideration must be given to the child’s physical, emotional, and psychological safety, security, and well-being.

In this case, the court noted that this is an application for a temporary motion, meaning questions related to the care and decision making of the child would be made between the parties or by the court at a later date. In temporary motions, the status quo is often maintained as a sort of “band-aid” solution pending a full hearing. The status quo will usually be put aside only if the best interests of the child require it.

Since the time of the parents’ separation, the child has lived primarily in the mother’s care. In addition, the mother’s affidavit made allegations against the father, including those related to heavy cannabis use and inappropriate visits to her home. The court noted, however, that her allegations were not supported by any evidence. While the mother called the police and the children’s services organization in the past, they had not become involved.

Turning to the father’s behaviour, the court stated that self-help in matters related to access to children should be discouraged and that a parent who engages in self-help tactics will generally raise serious questions about their parenting skills and judgment. Because of this, the court found that while there was little evidence provided by the mother to make a ruling in her favour, the father’s conduct was improper.

The court ordered the child to be returned to the mother’s care. However, the court also acknowledged the importance of the father having parenting time with the child. As a result, he was granted specified parenting time every second weekend. The court did not grant a restraining order against the father, though, stating that the mother had not provided enough evidence to demonstrate a need for one.

Contact Howie Johnson Barristers & Solicitors for Advice on Decision-Making Responsibility (Custody) and Parenting Time (Access)

At Howie Johnson Barristers & Solicitors, our team of experienced family law lawyers understands the importance and sensitivities around matters related to children. Please call us at 519-973-1500 to speak with us today about parenting issues or any other matters relating to your separation or divorce. We have been a fixture of the family law community in Windsor and Essex Country for over 25 years and look forward to helping you.

 

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