Amongst all the issues dealt with during a separation or divorce, custody and access to children is one of the most emotionally difficult for all involved. These matters can become complicated further in the event that a history between the parents has resulted in a restraining order, or when a parent has spent time incarcerated. Both of these factors were in play in a recent case heard by the Ontario Court of Justice.

The family’s history

The parents have a child together who was six-year-old at the time of the trial. The parents didn’t ever live together, and the mother lives with a new partner. The father was in jail for nearly the first two years of the child’s life.

The mother made serious allegations of domestic violence against the father during a hearing on October 31, 2016. At that trial, the mother had been seeking sole custody with no access to the father. A summary judgment in favour of the mother was granted after the father failed to attend a scheduled court date.

During an uncontested hearing in June 2017, the court issued a restraining order against the father, preventing him from being within 500 meters from the mother and child’s home, school, work, or other places he has reason to believe they may be.

A motion to change

The father filed a motion to change on October 17, 2018. He asked the court to terminate his child support obligations, rescind the amount he was in arrears, and to have access to the child. This also meant that a motion to change the restraining order would be necessary.

The court referred to the province’s Family Law Rules which outline when a court can change an order, stating that an order may be changed if it:

(a) was obtained by fraud;

(b) contains a mistake;

(c) needs to be changed to deal with a matter that was before the court but that it did not decide;

(d) was made without notice; or

(e) was made with notice, if an affected party was not present when the order was made because the notice was inadequate or the party was unable, for a reason satisfactory to the court, to be present. 

The court also had to take into consideration whether a default judgment should be set aside. It cited a list of factors to consider when addressing such a question:

a) Whether the motion to set aside was brought promptly after the defendant learned of the default judgment;

b) The existence of a plausible excuse or explanation for failing to comply with Rules of Civil Procedure;

c) Whether the facts establish that the defendant has an arguable defence on merits;

d) The potential prejudice to the moving party should the motion be dismissed and the potential prejudice to the respondent should the motion be allowed; and;

e) The effect of any order that the court might make on overall integrity of administration of justice.

The court’s analysis

The court pointed out that the father provided little evidence as to why the restraining order should be set aside, noting that a material change in circumstances must be shown. While the father said he was not aware of the restraining order until this trial began, the court did not find him to be a credible witness. The court said that the father’s history of paying child support was “abysmal” and that he was hiding income to avoid paying it. Furthermore, the father provided no reasons as to why he missed previous court dates.

In addition to the above, the court also found that it would not be in the best interests of the child for the father to be given access.

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. Our lawyers 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.