Access Suspension and Restraining Orders

Watts v Sheppard 2016 ONSC 8062

In this case penned by Justice Nicholson of the Ontario Superior Court of Justice, the Respondent father brought a motion to continue the terms of an access suspension and restraining order against the Applicant mother. The test to be applied to the Respondent father’s request to further extend the suspension of access and restraining order is whether such an order is in the best interests of the children.

Background

Following a motion brought by the Respondent father, Justice Nicholson granted an order temporarily suspending access between the Applicant mother and the children. Justice Nicholson went further and also restrained the mother from having any direct or indirect communication with the children.

In 2009, prior to the father’s motion, the parties attended a two week trial in which the main issue was mobility. The mother had planned to move from Ontario to rural England in pursuit of an internet relationship. The mother therefore sought the permission of the court to have the children, aged six and five at the time, move to England with her.

At trial, Justice Roswell held that it was in the best interest of the children to live primarily with their father in Ontario. The mother then elected to move to England without the children. The final order provided that the mother would have access with the children in both Ontario and England and that the parents were to have joint custody of the children.

Since the trial, the mother has demonstrated her disappointment with the final order and has subsequently undermined all aspects of it. To date, the mother has refused to pay the cost orders against her resulting from the trial and subsequent court appearances. The mother has made every effort to undermine the father’s authority and the children’s lives in Ontario. The mother oftentimes attempts to influence the children to move to England with her and refers to England as their real home.

Despite the mother’s actions, the father had made several attempts to provide the mother with meaningful and extensive updates with respect to the children. However, the mother had made it clear that she had no intention of reading any such correspondence from the father and referred to the father as “Darth Vader” when speaking with the children.

When the mother’s court ordered access visits ended, whether in Ontario or England, the mother refused to support the children’s transitions back to their father. Instead, the mother would emphasize the sadness of these events and therefore burden the children with her own grief regarding their separation from them.

At the end of a summer access visit, the mother even went so far as to refuse to return one of the children to Ontario. During the summer access visit, the mother had coached the child to inform his father that he wished to stay in England. As a result, the father commenced a Hague proceeding to force the mother to comply with the custody order. In the end, the mother entered into a consent order for the return of the child to Ontario but informed both children that she was extremely upset and physically ill about having them reside in Ontario. Following same, the mother sent the child more than 2,000 IMessage’s expressing her sadness about his return to Ontario.

What is most concerning, however, is that the mother went on to violate several other court orders regarding communication with the children, resulting in serious emotional consequences for the children.

The mother’s behaviour has had a significant impact on the children such that their behaviour is turbulent. The children were happy and affectionate with their father on some days and angry and upset with him on others. As such, the father argues that the only way to bring some stability into the lives of the children is to suspend the mother’s access completely and obtain meaningful counselling for the children. Justice Nicholson agreed with same.

Analysis

Justice Nicholson held that the mother’s conduct was both extreme and unusual. Essentially, the mother became obsessed with disrupting the lives of the children with their father in Canada in order to pursue her own interests.

To begin, Justice Nicholson laid out the test to be applied to the Respondent father’s request to extend the suspension of access and restraining order. The test is found under section 24(2)(d)(e)(f)(g) of the Children’s Law Reform Act, which offers the following guidelines for interpreting “best interests of the child”:

(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.

Justice Nicholson observed that the Applicant mother is unable and unwilling to provide the children with guidance, education and the necessaries of life to meet any special needs of the children. Justice Nicholson notes that the mother had also missed the opportunity to propose a plan for the expansion of access at the motion and continued to fail to acknowledge any responsibility for her prior conduct which resulted in the temporary suspension of access and restraining order.

Unfortunately, the Applicant mother demonstrated through her actions and inactions that she had a destabilizing impact on the children’s lives. Justice Nicholson held that the mother’s lack of appreciation for and focus upon the needs of the children demonstrate that she is unable to act in a manner that is in the best interest of the children.

Ultimately, the Respondent father obtained the orders requested in his notice of motion save and except the order regarding costs.

Andrew Feldstein

The Feldstein Family Law Group (FFLG) is one the largest family law firms that practices Family Law exclusively in Greater Toronto, with ten lawyers and counting. The boutique law firm has won the Top Choice Award for Family Law™ in Toronto for the past eleven years (2007 to 2017 inclusive).

Managing Partner Andrew Feldstein has been practicing family law for more than 20 years and frequently comments on Family Law issues through the media. The Feldstein Family Law Group offers vast written, video, and media resources on its website to those who find that they need to end their relationship.

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