When a parent is charged with a crime that is sexual in nature and involves youth, there is bound to be an impact on the parent’s ability to maintain a relationship with their children, even if the victim of the crime was not a child of a parent. In a recent decision from the Ontario Superior Court of Justice, the court was asked to determine whether a father could have access with his two sons after being charged with sexually assaulting the daughter of his former partner (the mother of the sons). We want to offer a warning that the facts of this case involve crimes that are sexual in nature and may be difficult for some to read.
The mother and father involved have two children together, boys aged 7 and 3. The mother has a 15-year-old-daughter (“M”) from a previous relationship, while the father has a 13-year-old daughter (“N”), who is also from a previous relationship.
The parties had an on-again-off-again relationship from 2013 to 2019, at which time they separated for food. N remained in the care of the father while M and the parties’ sons remained in the care of the mother.
In May 2020 M stayed overnight at the father’s house in order to visit with N. During that visit, the father was alleged to have provided alcohol to both children and to have sexually assaulted M. M called 911 on that evening and the father was charged with sexual assault, sexual interference and invitation to sexual touching.
While the charges against the father have not yet been proven in court, a test done on M did confirm that she had been sexually assaulted. While on bail awaiting trial, the father was ordered not to have any contact with females under 16-years-of-age.
The father asked that he be able to have supervised visits with the two children he shares with the mother. The court noted that such contact orders must be based on the best interests of the children as established in the Children’s Law Reform Act. According to Act, the following factors should be taken into account when domestic violence or abuse is an occurs. These factors are:
(a) the nature, seriousness and frequency of the family violence and when it occurred;
(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;
(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;
(d) the physical, emotional and psychological harm or risk of harm to the child;
(e) any compromise to the safety of the child or other family member;
(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;
(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve the person’s ability to care for and meet the needs of the child; and
(h) any other relevant factor.
The court stated there is little doubt the allegations made by M would qualify as family violence. Regardless of what happens in a criminal trial, the local Child, Youth and Family services organization has determined that sexual abuse of some kind occurred and regardless of what may happen in a trial, they believe it occurred in the father’s home and while M was in his care.
The court noted that the case at hand involves children who live with the victim of abuse. While some decisions may support a parent being able to have access with children who were not the victim of such an assault, the facts of this case need to be given proper consideration. As a result, the court found that it would not be in the best interests of any of the children to have contact with the father.
If you are contemplating a separation, or are already in the process, and there are children involved, your first step should be to consult with a family lawyer who has experience with custody and access matters. NULaw and its predecessors have been helping clients in Toronto since 1953. We provide clear, practical advice so that clients can make informed decisions about their parental rights. Contact us online or at 416-481-5604 to book a consultation.