When Make-Up Access is not in the Best Interests of the Children

Balice v. Serkeyn, 2016 ONCA 372

This case serves as a very good example of the idea that when it comes to child custody and access, the most important and heavily-weighted principle is the “best interests of the children”; a parent’s right to see or maintain contact with their child is but a secondary factor or consideration. Where make-up access may be appropriate and necessary in some cases (particularly when the primary parent has violated or thwarted an access order), it is important to note that a detailed examination of the make-up time’s impact on the children may determine that such an access arrangement is contrary to the children’s best interests.

The case specifically deals with the appeal of an order that made a contempt finding against the mother and further made significant changes to the parties’ access schedule to their two children.

BACKGROUND

The parties were parents to two children, and their parenting and access arrangements were structured by a court order made in 2013.

In 2014, the father moved for a contempt order against the mother, asserting that she had failed to comply with the 2013 order. The motion judge agreed and found the mother in contempt.

In a further hearing, the motion judge further held that the mother had not yet purged her contempt. The judge additionally found that the father had missed 122 days of access because of the mother’s contempt. The judge concluded that where the mother had already enjoyed more time with the children than the 2013 order had provided for, an order that transfers the mother’s time with the children to the father was in the children’s best interests.

On appeal, the mother argues that the motion judge erred in several ways – namely that the judge’s ordering an increase in the father’s access did not adequately account for the children’s best interests.

ANALYSIS

The Court of Appeal allowed the appeal, finding that the motion judge’s reasoning is unclear about whether the new order is meant to penalize the mother for her contempt, or serve as a variation of the 2013 order, or a stand-alone order altogether.

The Court noted that regardless of the reasoning or characterization of the motion judge’s order, its effect of change on the original custodial arrangement (such that it altered the balance that had previously been established) required a careful consideration of the children’s best interests.

The Court found that the motion judge’s decision and order was based on the premise that the access days missed by the father must be made up within the next two years; further, that this premise failed to consider the impact that such a big change would have on the children.

Although the motion judge found that the mother was trying to undermine the father’s relationship with their children, the Court of Appeal nonetheless found that a new hearing was required – for the motion judge’s reasoning did not adequately consider the best interests of the children. Where a detailed examination of the impact of the 122 days’ make up time is required in order to assess the best interests of the children, and the need for such an order, the Court of Appeal set aside the motion judge’s order and remitted the matter for a fresh hearing.

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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