Issues around child custody and access can be some of the most contentious faced by a couple going through a separation or divorce. There are many factors to consider when working through custody disputes, but as was recently highlighted in a decision from the Ontario Superior Court of Justice, the conduct of parents can be highly influential in a court’s decision.


The parties were married in 2010 and had two children (currently 8 and 9) before separating in 2012. At the time of the separation, the mother had agreed to joint custody of the children with the father as well as extensive and liberal time sharing with them in favour of the father.

By 2018 the father’s behaviour, including making disparaging remarks about the mother in front of the children, had landed him in hot water. His misconduct during access visits led to his time sharing being reduced to supervised access, which he initially refused to take part in, did so for a time, and then refused again. As a result, he had not seen his children for over a year by the time the trial occurred. In addition, the father also refused to comply with a number of temporary court orders. This led to his pleadings being struck, limiting his role in the trial to that of a limited participant.

The court was very critical of the father’s behaviour, writing.

“Through all of this, (the father) continues to act as if he has done nothing wrong at all.  He has no comprehension of the role that he played in all of these misfortunes that he has suffered.  His lack of self-awareness and insight was demonstrated by his own cross-examination of (the things off, during the cross-examination of Daniel Musselman, the assessor appointed under s. 30 of the Children’s Law Reform Act) when he referred to conversations that he had with the children which confirmed that he extensively discussed adult issues with them.  His perception that the submission of these conversations into evidence as being positive to his case, while they in fact harmed it, indicated his continuing inability to understand how to parent his children in a way that would “do no harm.”  In fact, the interactions between himself and the children that he referred to in cross-examination were clearly hurtful to these young children and (the father) appeared to have limited, if any, awareness of this.”

The question of full custody

The mother and father had each applied for sole custody of the children. However, the father’s application was struck, leaving the sole issue to be whether the father will have a parenting role at all.

The court explained that the term “custody” is beginning to lose its place in family law, since it creates a sense of ownership over children and implies winners and losers. That said, the court also stated the term “full custody”  could be useful to “to describe what might be necessary, which is to remove one of the parents from any major role in parenting his or her children.”

Courts prefer to grant joint custody to parents, but as the court explained, it requires the parents to be able to communicate effectively about their children so they can effectively co-parent without conflict. However, when parents cannot communicate with one another, agree on major issues, or have fundamentally different parenting philosophies, “an order for joint custody may very well be contrary to the best interests of the children.”

In the case at hand, the parents fit into the later category. The court explained, “the court orders (to date) confirm that the parties have an extremely conflicted relationship and have been unable to work cooperatively in parenting (the mother) and (the father).  The fact that the court has had to involve itself in making parenting decisions regarding the children is evidence, in itself, of the parties’ inability to jointly parent the children.”

There was little evidence of the mother acting in a way that was detrimental to the children. Instead, nearly all of the court orders focused on the father’s behaviour, including ordering him not to feed lactose to one of the children, and to take them to therapy.

The court did not find it appropriate to even grant supervised access to the children, since he had used these opportunities in the past to try to influence them against their mother.

The court granted full custody to the mother, and required the father to pay child and spousal support. The mother was given full authority to grant any access rights to the father.

At Borden Family Law we have been focusing exclusively on family law for over 17 years. We take a client-focused approach to our work, looking for cost-effective ways to solve our clients’ issues, avoiding litigation when possible, though ready to go to court when necessary. We have experience in every area of family law and offer bundled services as well as flat fees. Please reach out to us  online or by phone at 905-576-6090 to see how we can help you today.