Disputes over custody and access to children can be difficult and emotional experiences. Nevertheless, it’s important for parents to keep the best interests of the child in mind and be very careful about what they say to each other and to their children. A 2016 case from Ontario Court of Justice highlights how a court might respond when parents act contrary to the best interests of the child.

A motion for change in access

The father in the case had applied to the court to gain expanded access to the 9 year-old child he shared with the mother. The mother had been granted sole custody of the child in 2009. The father, who had some access rights to the child, applied in 2015 to have the child spend full weekends with him on an alternating basis, to have full visitation with the child every other Christmas break, and to be able to take the child to visit his family in the United States.

The mother responded to the motion, asking instead for the father to be permitted strictly to day visits with the child on Saturdays, with no overnight visits, no visits for the entire Christmas break, and no visits to the United States. The mother testified about a number of factors pertaining to the father’s home and its suitability for overnight stays. The court, however, focused on evidence about the father’s attitude towards the mother, which the court said “is so toxic that it has, more likely than not, spilled over onto (the child).”

The court focuses on the father’s behaviour

On one occasion the father arrived to pick up the child at the mother’s home. When informed that the child was playing basketball nearby, the father opted to call the police to complain about the mother’s breach of a court order to have the child available for pickup. When the child returned home, he witnessed the police involvement with the parents. The father denied this as having a negative effect on the child. The father testified that it was better to call the police and hold the mother to the strict letter of the court order than to pick up the child at the basketball court.

Meanwhile, the mother was shown to have exercised considerable flexibility towards the father, accommodating his requests for changes in plans, and allowing expanded access when requested. On one instance the father was returning home on a flight and texted the mother that he would be late, (he was already late). The mother made no issue of it, telling the father he could come to collect the child whenever he was able to. On another occasion the mother invited the father to come into her home during the child’s birthday party. The court said “he was unable to set aside his hostile feelings toward the mother for the sake of participating in his child’s party and meeting his child’s friends.”

On another occasion the mother had asked the father not to talk to the child about the court proceedings. The father responded by saying “You’re a piece of shit and (the child).. will know everything you said.” In commenting on that incident, the court said “this kind of response by father demonstrates such poor judgment, that the court is almost at a loss for words to explain to father why this is so.  But since father will hopefully be reading these reasons, I will attempt that explanation.”

Parents must take all efforts to shield children from disputes

The court went on to explain that custody and access disputed between parents are adult matters and are not appropriate to discuss with children. The court said parents must make all necessary efforts to shield their children from these disputes.  Children can become emotionally harmed when exposed to these types of conflicts.

In regards to the father’s statement that the child is able to understand the basis for conflict, the court said the father “has no real appreciation for the ages and stages of child development.” The court referenced the father’s threat to tell the child “everything,” stating the father “has no appreciation of the damage he is creating, either to his own relationship with that child, or the relationship between the other parent and the child.”

The father’s attitude towards the mother did not improve in court. During his testimony, he called the mother a “crazy controlling person.” The court used this testimony to draw consistency to the actions described by the mother. The court added, “if the father is prepared to make statements like this in a courtroom, in front of a judge, the court can only shudder at what the father might be saying to the mother, or about her, away from the court’s scrutiny.”

The father also demonstrated a lack of interest in the child’s education. He testified that he has not asked the mother about how the child was doing in school, and thought the child was in grade 3, when he was in fact in grade 4. He had never been to the child’s school nor met his teachers.

Despite all of the evidence pertaining to the father’s behavior, the child does enjoy spending time with his father. However, the court found that most of the father’s time with the child was spent “hanging out” and doing fun activities rather than focusing on some of the hard work involved with parenting.  While the court was able to appreciate a desire to focus on fun when time with a child is limited, it’s also important for the child to receive “meaningful guidance” from both parents.

In issuing its decision the court expressed concern that if it denied the father’s request, the father might follow through on his threat to “tell everything” to the child. However, if it allowed the request, it would be rewarding such threats.

The court granted the father alternating weekend access, with any additional access to come at the sole discretion of the mother. Meanwhile, the father was to refrain from contacting the police about the mother other than concerning the commission of a criminal act. The father was also to refrain from talking to the child about the case before the court, and to act as primary caregiver when with the child, including taking an interest and helping him in his education

At Borden Family Law we are aware of the emotional difficulty in sorting out matters of custody and access. We help our clients by focusing on what is best for their children while also navigating the complex legal issues associated with such matters. Please call us at 905-576-6090 or reach us online to arrange a consultation today. Please remember to ask about our flat fee payment options.