Recent case: Motion for summary judgment for sole custody and no access

In the case of E.A. v F.A.S 2014 ONSC 2761, the mother brought a motion for summary judgment for sole custody of the child with no access to the father.

Summary judgments are set out in Rule 16 of the Family Law Rules. Where the party can satisfy the court that there is no “genuine issue for trial,” the court shall make a final order.

In this case, the mother started her application in early 2009 and brought her motion for summary judgment in April 2014. During that time, she had sole care and control of the child and the father had seen the child through supervised access.

Justice Horkins concluded that there was no genuine issue for trial with respect to custody and awarded sole custody to the mother, but felt there was a genuine issue for trial with respect to access, so set that matter down for trial.

The father had been convicted of a number of criminal offences related to abuse and violence against the mother and the child, including threats to kill both of them. While he was on bail subject to a condition that he not contact the mother or any member of her family, he made three telephone calls to her mother and father. His conduct during a mediation process was of such concern that the mediator disclosed information about the father’s behaviour, citing that he was permitted to do so because the information constituted “an actual or potential threat to human life.”

The assessment found that the mother was a “committed, caring and supportive parent who seems capable of managing parenting challenges” and that the father had some personality traits that raised concerns about his ability to parent.

The report noted some concerns that the child was being negatively influenced against his father because of the “contempt and fear” the mother and her parents feel towards the father, tying this back to the abuse and violence perpetrated by the father:

The assessor is of the view that [the applicant’s] behaviour . . . is the result of a woman who has been traumatized by her experiences. . . She is a woman who has experienced domestic violence. Consequently, in her mind, she is taking a protective stance in limiting her son’s contact with his father.

The assessor concludes that co-parenting is not possible.

During the proceedings, the father’s access to the child was suspended by the access centre because of an incident, the details of which were not known to the court.

In making her decision to grant sole custody to the mother, Justice Horkins writes:

There are compelling facts that are not in dispute. . . .It follows that the court is able to grant summary judgement on the issue of custody. . . Since the criminal charges, the applicant has been the child’s sole caregiver. She alone has made decisions for their child. With help from her parents, she has been providing the child with a stable home environment. She is able to provide the child with guidance and education and the necessaries of life. It is in the best interests of the child to continue this familiar stable environment. . . There are simply no facts that support an order of joint custody. Granting the applicant sole custody of the child is the only order that is in the best interests of the child.

I decline to make a final order concerned access on a summary judgment motion. While the facts relevant to the issue of final custody are not going to change between now and the trial date, the same cannot be said for access. The issue of access is in a state of flux.

The court is concerned with the applicant’s conduct that suggests she is alienating the child against the respondent. At the same time the court recognizes that according to [the assessor] the applicant’s conduct flows from her genuine fear of the respondent. A final decision on the issue of access will require the court to weigh the evidence and find facts and this is not permitted on a summary judgment motion.

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