Background

This was a case of high conflict between the parties, who had a 12-year-old son. The mother had been diagnosed with breast cancer – incurable and terminal, and so she brought an urgent motion for an order to have her son visit her before her death.

The father opposed the motion citing the damaged relationship between the mother and son.

The child had had anger issues, fears related to both parents, behavioral issues…etc. at one point, but, since residing with his father, these issues had subsided. A clinical consult report in 2020 noted that the child spoke of a desire not to be left alone with the mother and expressed anger towards her, to the point of threatening to harm her. However, now the tension between mother and child was not as high, but parenting visits had ended in November 2020. The mother claimed that the father did not respond to her requests for visits, which the court noted was effectively non-compliance with a previous court order requiring the parties to facilitate parenting time upon agreement.

An interim parenting order stated that the child’s deeply rooted beliefs / animosity towards the mother were a combined result of him having been exposed to his parents’ conflict at a young age, historical incidents involving his mother (such as seeing her lose her temper), and alienation by the father.

Issues

Would it be in the child’s best interests to order visitation with his mother prior to her death?

If yes, what should the conditions and scope of that order be?

Analysis

The court took note of the history of conflict and legal proceedings in the matter. The child had gone from having the mother as his primary caregiver, to a shared parenting schedule, and now to having his father as primary caregiver with the mother having limited, supervised parenting time. The Children’s Aid Society (“CAS”) had been involved quite early on, since the child was just two years old.

Notwithstanding all of the above, the only factor to be considered in determining whether an order to mandate visitation was appropriate was the best interests of the child. Justice Somji noted that all the factors listed under the Children’s Law Reform Act in assessing the best interests of the child had been considered. The most pertinent factors here, though, were as follows:

s. 24(3)(e) the child’s views and preferences

• The child had clearly expressed to his counsellor, in October 2022, that he did not wish to see his mother and did not care that she was dying – nonetheless, this was held not to be entirely determinative of the matter in the circumstances.

s. 24(3)(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability

• As a 12-year-old, the child was not an emotionally mature adult. The court acknowledged that one visitation at his mother’s death bed would not repair years of hurt, but such a visit would be beneficial to the child’s long term emotional and mental development. Such a visit would be an opportunity for closure for the child. Furthermore, the court considered that the child’s relationship with his father should not be impacted by the belief that his father was the one who held him back from a final opportunity to say goodbye to his mother.

s. 24(3)(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent

• The court noted that, though he had not facilitated visits with the mother in the past, the father was in a difficult position as he did not want to jeopardize his relationship with the child by forcing visitation against the child’s wishes. The father conceded that, should the mother’s death be imminent, and the court found that it was, he would agree to their son visiting on compassionate grounds.

s. 24(3)(j) any family violence and its impact on the child

• There had been an incident where the child fell in the shower as a result of the mother startling him angrily. The court noted the difference between a parent who is negligent / careless in their conduct resulting in injury to a child, as opposed to a parent who intentionally pushes a child to cause harm. Though the court recognized that the child’s fear of his mother was not just from this one incident, this did not preclude the visit sought as there was low risk that the child would be physically harmed at the hospital.

Conclusion

The court ultimately held that it was in the best interests of the child to have a final one hour visit with his mother. The order mandated that the father would facilitate the visit within the next seven days of the order, but that he was not to supervise the visit. He could arrange for a nurse or another adult to do so. After this visit, it would be at the child’s discretion as to whether there would be further visits. The court highlighted the fact that the purpose of the visit was to provide both mother and child with an opportunity for some closure prior to the mother’s passing.