No Material Change: Court Dismisses Motion to Reinstate Access

M.A.L v R. H. M, 2018 ONSC 1597

BACKGROUND

This motion was brought by a father who sought to reinstate access to his 8-year old son, who he had not seen in six years. The father also sought to terminate a permanent restraining order against him.

The father argued that he had taken steps to address his personal issues, and further maintained that it was no longer reasonable for the mother to fear him. As per the father, this amounted to a material change in circumstances.

The mother argued that she till feared the father, and that there was no reason to believe that the father had changed.

In terms of facts, the parties cohabited for approximately a year, and their relationship was one of high-conflict. The court noted that the father had a history of high-conflict relationships, a history of anger management (a propensity to use violence in conflict situations) and a substance abuse problem.

ANALYSIS

The court determined that with respect to the father’s motion, the court must engage in a two-stage inquiry:

  1. Has there been a material change in circumstances?
  2. If so, what arrangement is now in the best interests of the child?

After hearing from several witnesses, the court found that the father’s motion to change was founded on a superficial and self-serving analysis – for the father failed to acknowledge or demonstrate an understanding of his problems and past conduct. For such reason, the court concluded that he failed to establish a material change in circumstances.

The court acknowledged that after the father’s previous involvement with the criminal law, he has had no more charges or convictions since 2012, but held that this in and of itself does not constitute a material change.

The court further accepted the witnesses’ evidence that the father now has a stable lifestyle and no longer uses drugs or engages in aggressive behaviour. But again, the court found that this was not sufficient to establish a material change as the father’s past conduct has been so extreme and ingrained that the passage of some minimal time is not enough to address the court’s concerns.

The court concluded that the father had “failed to establish that there are any new facts or circumstances which – if they had existed at the time – would have resulted in a different order being made.”

The court further noted that “access is important” and should not be denied except in the most extreme circumstances, but that a person’s biological connection to a child is not enough to warrant overriding what is otherwise in that child’s best interests.

Given all of the above, the court dismissed the father’s motion in its entirety.

What makes this case most interesting however, is the court’s commentary on the court system and the issues of domestic violence and access to justice.

The court specifically noted that “motions should not be allowed to form a neat exception to restraining orders.” The court found it ironic that the purposes of the restraining order was to protect the mother and child, and further keep the father out of their lives; but by being able to bring this motion and “labelling his papers ‘Notice of Motion’ and ‘Affidavit in Support of Motion,’ the father’s “anxiety-producing messaging instantly attained legitimacy.”

Thereby, in addition to dismissing the father’s motion, the court further ordered that he may not commence any further motion or proceeding in relation to access or the restraining order without leave of the court.

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 twelve years (2007 to 2018 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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