Case summary: Parenting time decision
The applicant father brought a motion for an order granting him unsupervised parenting time with the two children, who were 4 and 8 years old. The respondent mother, who was unrepresented, opposed this motion. As she had from the time of separation, she offered supervised parenting time in a supervised access centre as the appropriate arrangement. The father had declined her offer, so at the time of this motion, had not seen the children for seven months.
The father faced 13 criminal charges, including assault and sexual assault of the mother, sexual assault of her daughter from a previous relationship, assault of the four-year-old child and multiple charges of breaching recognizance.
A previous judge had requested involvement of the Office of the Children’s Lawyer (OCL), but the OCL declined intervention. Dufferin Child and Family Services (DCAFS) had had some involvement with the family in the past.
The father claimed to have been an equal caregiver of the children during the marriage, but Justice Kurz did not accept that claim. DCAFS records showed that the father told the caseworker that the mother “stays at home and cares for the children,” while he was out of the home working at various jobs.
DCAFS “verified” a “risk of mental and emotional harm as a result of child exposure to partner violence,” but did not verify a risk of sexual abuse by the father. It had closed its file on the family before this court proceeding.
Justice Kurz acknowledged that, at the interim motion stage, the court “must be modest in recognizing that it lacks all of the evidence that is necessary to make a fulsome determination of all the issues that will be better fleshed out at trial.” In this case, he said, the evidence was “incomplete and evolving.” He also noted that family law is “time sensitive,” and that children cannot wait indefinitely for decisions to be made about their lives. He cautioned:
“It [the court] has also to be wary of a party attempting to use a motion such as this to establish an artificial status quo or one based on false pretenses.”
In recognizing that he didn’t know for sure who was telling the truth and didn’t want to rely on the charges the father faced “before he has a full day in court,” he also noted that certain factors stood out. In particular, he considered the weight to give to the DCAFS position:
- It did not “verify” the most serious allegations made against the father
- It did “verify” a risk of emotional and mental harm to the children because of exposure to partner violence
- Child protection verification or non-verification is “nothing more than a generally lay opinion and a useful shorthand, “thus there is only so much that I can make of the somewhat voluminous and redacted Society records before me.”
Justice Kurz also considered the fact that the father’s claim to have been an equal caregiver appeared false and that he had not accepted any of the limited parenting time that the mother had offered to him:
“In sum, I find that there is sufficient evidence before me, as cited above, to find that supervised parenting time is necessary and, in the children’s, best interests.”
He ordered parenting time of one weekday evening for dinner and one Sunday for three hours, to be supervised by people approved by the court. He suggested that each parent propose possible supervisors, including the person presently acting as surety for the father. Anyone proposed would be required to provide an affidavit indicating that they:
- were willing to act as a supervisor
- understood their duty to the court and the children ahead of any interests of either parent, and
- would honestly report to the court about the parenting time they supervised
Justice Kurz also requested that the OCL reconsider its rejection of the earlier request for its services: “This is a particularly difficult and complex case. It is one where the OCL’s involvement would be invaluable to the court. . . . [A]n independent investigation . . . . is vitally necessary to assist the court in understanding the issues in this case, hearing the narratives of the children, determining the appropriate path through in the tangle of counter-allegations.”
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