How Poor Behaviour Can Affect Custody And Access

Written on behalf of Arbesman Hamilton LLP

When parents find themselves involved in child
custody and access
disputes, they may find that their behaviour comes under
increased scrutiny. A recent
decision
issued by the Ontario Court of Justice serves as a reminder that when
dealing with matters involving custody, it’s important to have demonstrated
good parenting should it ever be questioned.

The background

The mother and father met in 2010 and maintained a friendly relationship
over the years. At some point the mother purchased a condo in the same building
as the father. They had a few intimate encounters, one of which led to the mother
becoming pregnant. They didn’t ever live together and were never involved in a monogamous
relationship.

After the birth of this child (who is now approaching
six-years-old), the mother took a maternity leave and the father made regular
visits with them. They were not able to agree on the frequency of these visits
at trial, with the father stating he visited nightly while the mother said the
visits were infrequent.

The parties got along fairly well until 2016 when they got
into a disagreement about when the father should have care of the child. The
father testified that he felt the mother used him to have the baby and then
treated him as dispensable. He stated he was trying to assert his right to be
involved with the child and that it’s in her best interest to spend equal time
with each parent. The mother said that she had supported the father’s
involvement in the child’s life, but at some point it became an intrusion and
began to disrupt her routine and stability. The mother said the boundaries she
set up were misinterpreted as obstacles which led to further conflict.

The peanut butter
incident

The court was critical of the behaviour of both parents, but
identified a number of areas where the father’s beahviour was especially poor.
In 2016 the father’s sister was arriving in Toronto for a visit. The sister
normally had a good relationship with both the mother and the father, but prior
to her arrival he wrote her an email stating,

“The days of having it both ways are over! If during your visit, you feel that you ‘must’ visit or plan an event with [the mother] – the person who has deliberately ensured my worst fear, I will not be a part of whatever that may be and it will have repercussions on ‘our’ relationship. I trust you will respect my wishes.”

During that visit the father’s sister brought her child (“the
niece”). The father knew the niece was allergic to peanuts, and had been asked
to keep peanuts out of the house. However, during the visit he made a peanut
butter sandwich for his daughter without knowing whether the niece was in the
home. The court described the event as follows,

“At best the father made an irresponsible and potentially grave mistake giving (the child) a peanut butter sandwich while (the niece) was visiting. At worst he was sending a warning to his sister of the ‘repercussions’ she would face for taking ‘[the mother’s] side in this dispute and that she was not supportive’ of him.”

Investigation by the
Office of the Children’s Lawyer

Each of the parents was critical of the behaviour of the other.
Ultimately, the clinical investigator appointed by the Office of the Children’s
Lawyer found that each parent displayed good parenting skills, but was critical
of a number of things the father did, including sending verbally abusive emails
to the mother, telling the child the mother only pretends to love her, asking
the child to ask the mother for sleepovers at the father’s house, and a number
of incidents that made the child aware of the conflict between the parents. The
investigator recommended the mother be granted sole custody, writing, “ “With respect to custody, joint custody is not
appropriate in families where there is high conflict. [The mother] has always
been [C.B.]’s primary caregiver and she should have sole custody.”

The court agreed with the recommendation and ordered the
mother to have sole custody with the father having access in accordance with a
strict schedule.

It is important to contact an experience family lawyer if you are
contemplating a separation, or are already in the process, and there are
children involved. The family law lawyers and their predecessors at Arbesman Hamilton LLP 
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.