This case addresses the following two issues:
- Whether a parent’s supervised access to his or her children should be terminated; and
- Whether a parent should be permitted unsupervised access to his or her children.
The parties had one child together who had resided with the mother, half-brother, and step-father from birth until the Children’s Aid Society of Toronto (CAS) apprehended the child and placed her in the biological father’s care in May of 2014.
Prior to the child’s apprehension, the biological father exercised access at the mother’s home, however, he was referred to as a family friend.
After the child was formally placed in the father’s care on October 28, 2014, the mother had supervised access 2 hours every other week until same was reduced to one hour on October 31, 2014, due to concerns that her behavior during access was inappropriate.
The father commenced an Application for custody in November of 2014 and was granted an order on consent for temporary custody on January 19, 2015, after which CAS withdrew its protection application. Pursuant to the order, the mother had supervised access every Sunday for 3 hours at supervised access center and she was permitted to bring her teenaged son. The mother was also allowed unsupervised telephone access to the child.
The mother continued to seek custody of the child, however, the father was granted final custody at a focused trial on May 27, 2015. The issue of access was adjourned to the case management judge, however, a second focused trial was subsequently ordered after the parties were unable to resolve the issue by way of a case conference.
The father sought to terminate or reduce the mother’s access and the mother sought an order permitting her unsupervised access to the child to increase gradually toward her having the child on alternate week-ends and during holidays without supervision.
The mother and father each made allegations against the other regarding inappropriate behavior in front of or toward the child.
The governing principle for any custody or access decision is what is in the best interest of the child and it is presumed that it is in the child’s best interests to have regular access to both parents. Children also have a fundamental right to visit, know, and maintain attachment to their non-custodial parents and this right is only denied in the exceptional cases. As such, supervised access should always be considered instead of terminating the relationship unless such access is not a viable option because, for example, the child reacts badly to the visits or following visits or if the access parent behaves improperly during access or has repeatedly not shown up for same.
The court reviewed the following factors based on which courts have determined that terminating access was in a child’s best interest:
- Long term harassment and harmful behaviours towards the custodial parent causing that parent and the child stress and or fear;
- History of violence, unpredictable or uncontrollable behaviour, alcohol or drug abuse in the presence of the child or which poses a risk to the child’s safety or wellbeing;
- Extreme parental alienation;
- Ongoing severe denigration of the other parent;
- Lack of relationship or attachment with the child;
- Neglect or abuse to a child during access; and
- The wishes of the child once the child is old enough to have an input.
Due to the severity of a decision to terminate access, courts must seriously consider whether supervision would be sufficient to protect against risk of harm to the child during access, facilitate the relationship between parent and child, and decrease conflict between parents.
The court ordered the following:
- The mother’s access is to continue;
- The mother’s access to the child must remain supervised;
- The mother must follow the rules for her supervised access to the child; and
- The mother must attend a psychiatric assessment and counselling or a parenting program and she may not bring motions to change the court’s order until same is completed.
The court found that the mother’s access should not be terminated based on the following:
a) The mother and child displayed positive attachment and the child was affectionate toward the mother;
b) The father’s allegations that the child was afraid of the mother were not supported by evidence;
c) The father would not facilitate or encourage any contact between mother and child in future if supervised access were terminated;
d) There was no serious neglect or abuse during access and the mother was usually generally appropriate;
e) The mother does not seriously denigrate the father;
f) The mother had only commenced supervised access 9 months prior;
g) The mother consistently attended access demonstrating a commitment to having a relationship with the child
h) The child was not old enough or mature enough to make decisions regarding whether or not to see her mother; and
i) The child was able to maintain a relationship with other members on her mother’s side by having ongoing access with her mother.
The court found that the mother’s access should remain supervised based on the following:
a) The mother’s interaction with the child remains problematic and not child focused;
b) There continues to be conflict between the mother and access supervisors;
c) Due to the mother’s difficulty following rules of the access center, the court felt she may be unlikely to abide by any conditions of unsupervised access;
d) The mother cannot be trusted not to denigrate the father as she refuses to support or accept the father’s custody of the child;
e) The mother does not see how her behavior impacts the child;
f) There was no significant improvement in quality of the mother’s interaction with the child and the court felt she was unable to remain appropriate for an entire visit;
g) The mother persistently accuses the father of sexual abuse toward the child and she would likely continue to interrogate the child regarding same if unsupervised;
h) The child would be at risk of emotional harm if left unsupervised with the mother;
i) CAS expressed concerns regarding the mother’s mental health and recommended a psychiatric assessment before unsupervised access should be considered; and
j) There was no evidence of the mother participating in counselling to reduce conflict or programs to improve parenting.