How Far Must A Parent Go To Prove A Change In Behaviour In Order To Regain Access?

Written on behalf of Arbesman Hamilton LLP

The Ontario Superior Court of Justice recently heard a motion from a father who was seeking to reinstate access to his eight-year-old-son, who he had not seen in six years, while at the same time, looking to terminate a permanent restraining order against him.

The father’s position was that he had taken steps to address personal issues in his life and that the mother no longer needed to fear him. Meanwhile, the mother claimed that she did still fear him and that there was no reason to believe the father had changed.

This led the court to ask, who gets to decide how long fear can last – the perpetrator, or the victim?

The Original Order

The motion, which was heard in February 2018, was in response to a final order, issued in January 2014, which stated that the father could have no access to the son. The order also issued a permanent restraining order, prohibiting the father from contacting the son or the mother.

The judge in the case turned to the original order to provide factual context for the basis of the order. The original order, which was issued when the son was four-years-old, was related to two separate motions. The first was a motion by the mother to terminate access to the son, while the second was a motion by another woman (“daughter’s mother”) to terminate the father’s access to his daughter, who was 12-years-old at the time of the original order.

The father had a high-conflict relationship with the daughter’s mother, with the father having been convicted of physically assaulting her. The daughter had witnessed the violence and the use of cocaine by the father, which led to the involvement of the Children’s Aid Society of Hamilton (“CAS”). The father was eventually incarcerated after breaching his probation terms by contacting the daughter’s mother. The father was eventually limited granted access to the daughter, but lost it in 2012 after failing to contest a motion by the daughter’s mother to restrict access.

The father began to live with the mother in June 2009 and continued to do so for a year, at which time the son was born. This relationship was also one of high conflict, and a restraining order prohibiting the father from contacting the mother or son was issued in June 2010. Supervised access was eventually granted to the father, but was revoked again, along with the issuance of another restraining order in 2012.

The father’s use of violence against his children’s mothers as well as his drug use ultimately led to his loss of access to his children as well as restraining orders being issues against his children and their mothers. The judge who made the order summarized the father’s problems as:

  1. His propensity to use violence when dealing with conflict, particularly involving a spouse or former spouse;
  2. His inability to comply with court orders; and
  3. His continued use of cocaine.

A Two-Pronged Approach

For the motion before it, the court set out a two-pronged inquiry, consisting of the following questions.

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

While the father had taken some steps to treat his drug dependency and propensity towards violence, he had also ignored steps recommended to him to further his development in those areas. The court determined that simply avoiding criminal charges since 2012 was not enough to constitute a material change in circumstances. In addition, while the father had provided evidence that he led a more stable lifestyle and no longer engaged in aggressive behavior, not enough time had passed to demonstrate that he had overcome behavior that seemed previously ingrained in him.

A Finding Of No Material Change

Ultimately, the court concluded that the father had “failed to establish 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 stated “(the father’s) defiant and resentful attitude throughout his testimony demonstrated that there has been no improvement – no material change – with respect to his lack of understanding about why he has not been allowed to see his children.  As Justice Gordon noted in paragraph 76 of his judgment:  “Indeed, it appears he lacks the insight as to his behavioural problems, and accepts no responsibility for his actions and continues to blame others.”

The father’s motion was dismissed in its entirety.

Issues of custody and access are some of the most important decisions to make during a separation or divorce. Custody decisions impact more than just where a child lives – they will also impact who makes decisions on behalf of children, and the obligations of each parent. Contact Arbesman Hamilton LLP by phone at 416-481-5604 or online to arrange a consultation today.