Court terminates supervised access: Recent case law

An Ontario case from earlier this year (Chickwanda v Bell, 2014 ONCJ 174 (CanLII)) allowed the Ontario Court of Justice to explore circumstances when it is appropriate to terminate access by a father to his children.

In this case, the mother had sole custody of the couple’s two children from the time of separation. The father had had supervised access, sometimes at supervised access centres and sometimes with friends, beginning in 2009. A restraining order preventing him from having contact with the mother was also in place.

At one point, criminal charges were laid against the father, which terminated the access centre’s willingness to have him as a client. This caused an interruption in his contact with his children, but there were many other interruptions instigated by the father between 2008 and 2014. He also failed to attend a number of family court appearances.

In the most recent decision, the judge listed the many gaps in access and noted that from 2008 to the time of the 2014 hearing, the father had exercised access only 40% of the time that was allocated to him. The gaps in access ranged from a few months to more than a year in length.

Justice Brophy concluded that this pattern was likely to continue in the future. The father had a total of 10 criminal convictions, many of them for breaches of recognizance and probation orders. Several of the convictions related to incidents of domestic violence. The  judge found that the father tended to blame others rather than to recognize when he was at fault and that he walked away from access when he was not happy with the terms of the arrangement. As the judge said in his decision:

the Applicant [the mother] is not blameless. Nevertheless, the Respondent [the father] has through a series of actions made it very difficult for access to be anything other than supervised. He has exhibited violent behavior in the past, has trash talked the mother of the children, has made promises to the children that he has not kept and has been inconsistent in following through with access.

Justice Brophy felt it was not in the best interests of the children to continue to have such sporadic and uncertain time with their father: “children are harmed by constant interruption and disappointment related to commitments made by parents, including access parents.”

He listed a number of specific factors that were relevant to his decision to terminate access:

  • The history of domestic violence on the part of the father
  • Evidence of his controlling behaviour
  • His denigration of the mother
  • His anger towards the mother, her lawyer and the court system
  • His lack of insight into his own behaviour
  • Past inconsistency in exercising access
  • His failure to understand the harm to the children caused by his rejection of them when he walked away from access

In making his decision, Justice Brophy said:

The cumulative impact of these factors satisfies the court on the balance of probabilities that there is a great risk that even if supervised access is reinstated there will be a future crisis point and the Respondent will once again become angry, frustrated and upset and he will, as he has in the past, walk away from access, relying upon time to prove him right. This would be extremely damaging to the psyches of the children.. . . It is acknowledged that access should not be terminated except in the most serious of cases . . . In my view this is one of those cases. . . The harm caused by the repeated losses suffered by the children cannot be permitted to continue.

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