Background

The parties are the parents of a six-year-old boy. The father had engaged in acts of violence and domestic abuse against the mother during their relationship. In addition, he also has a criminal history and has spent time in jail. Due to these factors, a restraining order was made against the father, which prohibited him from having any contact with the mother and child or coming within 500 meters of them.

As a result of the restraining order, the father was unable to exercise any meaningful access to the child. The father has seen the child for over a year. He brought a Motion to Change to terminate or modify the restraining order to permit him to have supervised access to the child. The mother asked the court to dismiss his Motion to Change on the basis that allowing the father to have access to the child would destabilize the physical and emotional wellbeing of the child and the mother. The father’s Motion to Change was heard by Justice Sherr at the Ontario Court of Justice.

Analysis

Applying the legal test in M.A.L. v. R.H.M., Justice Sherr held that the onus is on the person seeking to change the restraining order to establish a material change in circumstances which justifies the lessening or removal of protections.

Terminating a Restraining Order

In deciding to terminate a restraining order, it is important to first examine the evidentiary foundation for that order. In this case, the severity of the abuse and the father’s involvement with the criminal justice system justified the making of the restraining order.

Then, the court had to determine whether a restraining order is still necessary. While the father argued that the restraining order is no longer necessary, the evidence established that he had not complied with the restraining order to have no contact with the mother or the child: The father attended a birthday party of the child and the child’s first day of school in contravention of the restraining order.

Furthermore, the father has shown no insight into the impact of his behavior on the mother or the child and was dismissive of the mother’s concerns. Due to these factors, Justice Sherr held that the father had not shown a material change in circumstances to justify the termination of the restraining order.

Supervised Access

Justice Sherr then considered the issue of supervised access and whether the restraining order should be changed to allow some access to the child. Section 24 of the Children’s Law Reform Act states that the court must make custody and access decisions in the best interests of the child. Acts of violence or abuse committed by a person against his or her spouse or the child are only considered if it is relevant to their ability to parent. It is normally in the best interests of a child to continue their relationships with both parents, but access is the right of the child, and so the best interests of the child remain paramount.

Therefore, the starting point when determining access is to ensure that the child and his or her caregiver will be physically and emotionally safe. While the father argued that he had a close bond with the child, the court found that the father has had a negative impact on the child’s wellbeing and that he exposed the child to significant domestic violence. His attempts to minimize the effect of his actions demonstrated his lack of insight into his own parenting issues.

As such, it was not in the child’s best interests to have access with the father at this time. However, the court provided the father with an opportunity to demonstrate constructive and sustained change should he wish to restore access. Some of the preconditions to restoring access include abstaining from criminal behavior, attending intensive therapy to address anger management issues, complying with court orders, and demonstrating responsibility by paying child support.

Summary

While this is an exceptional case where access is not in the child’s best interest, it demonstrates that parents can take steps to restore access by addressing underlying concerns and improving their parenting skills.

Take the First Step Today

Contact the family law attorneys at the Feldstein Family Law Group, P.C. if you’re ready to file or contest a Motion to Change. Our experienced legal team can help you safeguard your child’s best interests by litigating in court on your behalf. No matter the complexity of your case, our legal team can help you pursue a favorable case result that protects your parent-child relationship.

Call the Feldstein Family Law Group, P.C. at (905) 581-7222 to arrange a consultation today.