Family law and criminal law proceedings are dealt with separately by the courts, but a parent’s criminal charges may still be relevant when determining parenting arrangements and decision-making responsibility for children. The primary consideration is the best interests of the child, but a party’s criminal charges or criminal record may be considered to determine whether it impacts the party’s ability to ensure the child’s safety, security, and physical and emotional wellbeing. However, in cases where the court finds there is a risk, precautionary measures may be warranted.

A Party’s Criminal Record Can be a Relevant Consideration

In Rezwan v. Rezwan the respondent mother took the child and left the home where she had resided with the applicant father. Neighbours who witnessed the events surrounding the mother’s leaving called the police, which resulted in charges against the father, and a no-contact order. The mother went to stay with her extended family, but the father had not seen the child since the mother left the house. He sought a regular parenting schedule while the mother opposed his request, instead requesting the father to have supervised or virtual parenting time.

The judge accepted that the father wanted an ongoing positive relationship with his daughter and was concerned the mother was alienating him from his daughter. Both parents cared for their child, but otherwise there were few facts the parties agreed on. The mother was concerned about the father’s conduct, while the father believed the mother was “weaponizing criminal allegations” in the family proceedings. The father did have a criminal conviction for mischief, though the mother alleged there were occasions of violence, such as when she tried to leave the marriage. There was evidence about the father’s conduct at the mother’s doctor’s office with notes stating he was threatening and that the staff were concerned for the mother’s safety. Ultimately, the clinic had to call the police and stop treating the mother, due to the father’s behaviour towards staff.

On one occasion, the mother brought an urgent motion for the child’s return. The father suggested this was an indication the mother knew how to navigate the court system if he should overhold their daughter again. However, for Justice Brownstone, this was troubling, as it minimized the father’s actions, and “an urgent court order for a holdover should be a rare occurrence” and not be used routinely to ensure compliance with a court order. There was no evidence that violence had been directed towards the parties’ daughter and the father also claimed there was no history of domestic violence. However, the daughter did witness the incident when the mother left the house, which led to neighbours telephoning the police.

Court Says Criminal Justice System Should Not be Used to Gain Leverage

Justice Brownstone noted that “too often, criminal charges form part of family law proceedings” and agreed with the father that the “criminal justice system should not be weaponized” to gain leverage in family law proceedings. However, that was not the issue in this case, as some of the father’s actions were concerning and the parties’ daughter had witnessed some of it. A 2021 order that the mother obtained after the father overheld the daughter provided for equal parenting time, and the father argued that it should be restored. He also pointed to the AFCC-O Parenting Plan Guide which cited the maximum contact principle, although the judge reminded the parties that the court’s only concern is ensuring their daughter’s best interests are met. Hameed v. Hameed found that the best interests can be met by having a relationship with both parents except in “circumstances of danger to the child’s physical or mental well-being”. It was also in the daughter’s best interests “not to be exposed to aggression or violence”. Further, section 16(5) of the Divorce Act states that:

“In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.”

This cautions courts about using a party’s past conduct when considering a child’s best interests. However, looking at the father’s conduct as a whole left the judge with concerns about the aggression the child could be exposed to. Her need for “stability, safety, physical, emotional and psychological well-being” meant that it was warranted that the father’s parenting time be supervised by the paternal grandparents.

Parenting Restrictions Should be Proportional to the Risk

In M.M. v. N.M the father was charged under the Criminal Code, and child protection services required that the parties’ child not be left alone with the father as a condition for the father’s contact with the child. This situation amounted to a material change in circumstances, as the father’s criminal charges prevented compliance with the terms of a previous order. It was clear that it was necessary to vary the final order since those provisions could not continue, and without a change the father would not have any parenting time with the child. In family law cases, restrictions on parenting should be an exception rather than the norm. The judge looked at Jennings v. Garrett, in which the court stated that the right of a child to visit with the parent exercising parenting time “should only be forfeited in the most extreme and unusual circumstances. To deny access to a parent is a remedy of last resort”.

Justice Madsen found there are a range of factors that could lead to the termination of contact with a child, including:

• long term harassment of the other parent,
• a history of violence,
• extreme parental alienation,
• the lack of a relationship between the parent and the child,
• neglect, or
• instances where older children wish to terminate contact.

These are also all relevant in considerations of whether parenting should be supervised. Previous cases held that supervised access could be used as a precautionary measure even when the risk of the parent’s reoffending was low. In S.I. v. I.I., the judge commented that supervised parenting time “is usually a last resort where there is a risk to children that cannot be addressed in any other satisfactory way. It is not to be ordered lightly”. In determining appropriate arrangements, Justice Madsen noted that the allegations against the father were serious and involved children. However, the allegations were unproven and the father had not been convicted of any crime. He also did not have a previous criminal record. It was evident that the mother was worried by the charges, but the judge reiterated that restrictions on parenting need to be proportional to the risk. In this case there was less risk, and a “less restrictive approach” was appropriate.

Parties Can Expect Their Past Conduct To be Raised

Family law cases can overlap with criminal matters in unpredictable ways. As such, there may be additional considerations when it comes to parenting plans and contact with a child. Criminal charges will not necessarily negatively impact a parent in family proceedings, especially if the charges are not serious and do not pose a danger to children. However, parties can expect the issue to be considered by the courts.

The Family Lawyers at NULaw Help Parents Navigate Complex Parenting Issues and Disputes

The compassionate family lawyers at NULaw in Toronto regularly provide comprehensive legal advice to clients navigating a variety of family law matters, including parenting disputes, child support obligations, and property division matters. We work closely with clients to understand their circumstances and develop a strategic approach to position them for the best possible outcome. If you have concerns, our lawyers can help you with solutions tailored to your unique circumstances. To learn more about how we can help you navigate your family law issues, contact us online or call our offices at (416) 481-5604.