Summary of court cases related to the impact of Criminal Convictions on a noncustodial parent’s right of access to a Child
DiMeco v DiMeco, [1995] OJ No 3650
Issue:
Access to children is contested.
Rule:
Divorce Act (R.S.C., 1985, c. 3 (2nd Supp.)) s. 16(1) - The court shall take into consideration only the best interests of the Child of the marriage in making a parenting order or a contact order.
Application:
The Respondent's use of violence, both in and out of the home, was used to establish a behavioural precedent and a refusal on the Respondent’s part to attempt to control their violent outbursts. The frequent use of documented violence was also used to establish why the Applicant and the Children involved had become fearful of the Respondent. The Respondent’s documented use of death threats, for which he was convicted, was also used to establish a precedent for why the Applicant and Children are fearful of the Respondent.
Conclusion:
“It is always very difficult to deny a parent access to his children, but that access must be for the benefit of the children, and in their best interests. In this case I am satisfied that access is not in their best interest, in fact it is contrary to their best interest.” DiMeco v. DiMeco, [1995] O.J. No. 3650 s. 36
Conclusion:
The Respondent’s criminal convictions were used to paint a picture of the Respondent’s mindset and behavioural problems during the marriage, and in the way he interacted with their children.
JBY v DDH, 2006 CanLII 29935 (ON SC)
Issue:
The Respondent initially had no access to the child due to the Applicant obtaining default judgment against the Respondent, whilst they were incarcerated. The Respondent seeks to vary the default order to allow them access on an incremental basis.
Whether a material change in circumstances occurred following the Respondent’s release from prison that could influence the Child’s best interests.
Is Access by the Respondent in the best interests of the Child?
If access is in the best interests of the Child, what kind of access should be made available?
Rule:
Children's Law Reform Act, RSO 1990, c C.12 s. 24(1) - In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child, in accordance with this section.
Children's Law Reform Act, RSO 1990, c C.12 s. 29(1) - A court shall not make an order under this Part that varies a parenting order or contact order, unless there has been a material change in circumstances that affects, or is likely to affect, the best interests of the child, who is the subject of the order.
Application:
The Judge reasoned that while at the time of default judgment, the Respondent lived an “irresponsible and indolent” lifestyle that centered around drugs and alcohol fueled by criminal endeavours, after their release from prison, the Respondent had become a more responsible person. This was best demonstrated in the Judge’s eyes by the Respondent not being charged with any more crimes and having a generally more positive disposition that allowed them to finish two years of probation without incident.
When commenting further on the Respondent’s standing criminal record, the Judge states, “Mr. D.D.H.’s criminal record is unenviable. It will always be a part of his life history. I agree that past behaviour is relevant in assessing potential future behaviour, but it is not an infallible predictor of future conduct. It is possible for individuals, even those with significant criminal records, to recognize and make a real effort to come to grips with their difficulties. Rehabilitation is an accepted and important aim of the criminal justice system.”
When determining if access would be in the best interests of the Child, the judge was unable to determine if the Respondent had ever behaved in a manner that would be considered inappropriate towards their Child. Furthermore, there was no evidence to substantiate a definitive conclusion as to whether the Applicant had been abused by the Respondent or to substantiate the Respondent’s claim that the assertation was false. The judge decided that the Child having a paternal figure would be beneficial, given the Respondent’s expressed desire to interact with their Child, coupled with lack of evidence suggesting he had behaved inappropriately with the Child.
The judge thought that for practical reasons, it would be best to slowly integrate the Respondent and Child into each other's lives via supervised visits until such a time that the two have acclimated to one another, and been observed interacting safely. It was also determined it would be best to have communication between the two parties flow through counsel, rather than between the two personally, to reduce the likelihood of conflict.
Conclusion:
It was ultimately found that while the Respondent’s criminal record may have previously impacted their ability to care for their Child effectively, due to the Respondent’s continued efforts to improve themselves, an expressed desire to parent and mentor their child, and a lack of evidence suggesting that inappropriate conduct had occurred, the Respondent was given access rights.
EO v OE, [2019] OJ No 6705
Issue:
Should the father have access revoked?
Rules:
Children's Law Reform Act, RSO 1990, c C.12, s 24,28,29,30,35
Courts of Justice Act, RSO 1990, c C.43, s 112
Family Law Act, RSO 1990, c F.3, s 46
Application:
The judge found that the father’s ongoing history of violence, and extensive criminal record suggested a lack of credibility in any evidence submitted by the father. Additionally, it helped substantiate claims made by the mother that the father was abusive throughout their relationship. The judge also references a list of common factors that lead courts to terminate access:
Long term harassment and harmful behaviours towards the custodial parent causing that parent and the child stress and or fear. See M.(B.P.) v. M. (B.L.D.E.), supra; Stewart v. Bachman, [2003] O.J. No. 433 (Sup.Ct.); Studley v. O'Laughlin, [2000] N.S.J. No. 210 (N.S.S.C.) (Fam.Div.); Dixon v. Hinsley, [2001] O.J. No. 3707.
History of violence; unpredictable, uncontrollable behaviour; alcohol, drug abuse which has been witnessed by the child and/or presents a risk to the child's safety and well-being. See Jafari v. Dadar, supra; Maxwell v. Maxwell, [1986] N.B.J.No. 769 (N.B.Q.B.); Abdo v. Abdo 1993 CanLII 3124 (NS C.A.), (1993), 126 N.S.R. (2d) 1 (N.S.C.A.); Studley v. O'Laughlin, supra.
Extreme parental alienation that has resulted in changes of custody and, at times, no access orders to the former custodial parent. See Tremblay v. Tremblay 1987 CanLII 147 (AB Q.B.), (1987), 10 R.F.L. (3d) 166; Reeves v. Reeves, [2001] O.J. No. 308 (Sup.Ct).
Ongoing severe denigration of the other parent. See Frost v. Allen, [1995] M.J. No. 111 (Man.Q.B.); Gorgichuk v. Gorgichuk, supra.
Lack of relationship or attachment between noncustodial parent and child. See Studley v. O'Laughlin, supra; M.(B.P.) v. M.(B.L.D.E.), supra.
Neglect or abuse to a child on the access visits. See Maxwell v. Maxwell, supra.
Older children's wishes and preferences to terminate access. See Gorgichuk v. Gorgichuk, supra; Frost v. Allen, supra; Dixon v. Hinsley, supra; Pavao v. Pavao, [2000] O.J. No. 1010 (Sup.Ct.).
The father’s use of violence and history of assault convictions as well as a conviction for criminal harassment is easily applicable to the first common factor listed above. Additionally, the father’s history of violence and criminal record was used to justify why a restraining order was appropriate and necessary in the circumstances.
Conclusion:
The final decision made by the judge was to revoke the father’s right to access his child in light of his violent tendencies, history of criminal convictions, and the child’s wishes. Furthermore, the Judge granted a restraining order against the father.
Chartrand v De Laat, [2008] OJ No 4529
Issue:
Should the Applicant have access to the Child? If so, what kind of Access is appropriate?
Rule:
Children's Law Reform Act, RSO 1990, c C.12, s 24(1), s 24(2), s 24(3), s 24(4)
Application:
The Respondent argued that the Applicant should not be allowed access due to their concerns over their child being negatively influenced by the Applicant. The Respondent had a variety of concerns over the Applicant’s past behaviour, such as a failure to follow through with access, the Applicant’s drug use and criminal record, mental health issues, previous parenting history, a recurring failure to follow court orders.
The judge, in order to determine if unsupervised access being allowed for the Applicant was in the best interests of the Child, examined the facts against the following factors as listed in s 24 of the Children's Law Reform Act: the love or affection between the Child and Applicant, the views of the Child, whether or not the Child would be in a stable environment, the parent’s ability and willingness to provide guidance, education, and the necessities of daily life for the Child, including having a plan to care for the Child, considering the stability of the family unit and the individual’s ability to act as a parent.
The judge was not satisfied that a substantial emotional bond or love existed between the Child and the Applicant due to the Child having only met with the Applicant on two occasions, and the Applicant previously skipping his access appointment. Additionally, the judge was not satisfied that the Child’s views could be communicated, given they were two years old at the time. As well, the judge did not believe that the Applicant would be able to provide a stable environment for the Child due to his mental health issues, dependency on drugs as well as his drug possession and trafficking convictions, in addition to his alleged possession of stolen property. Furthermore, since the Applicant had used drugs in the presence of his children from a previous relationship, the judge did not believe that he would be able to create a suitable environment to raise and nurture the Child.
Among the many plans listed by the Applicant that would allow him to be supervised during access, the only one the judge found reasonable was the plan to attend the Salvation Army supervised access facility, although he noted that may still not be a possibility due to the Applicant’s previous treatment of the facility’s staff. Moreover, the judge found that the Applicant did not have a stable family unit due to his reliance on drugs, previous convictions, and alleged current criminal undertakings. The judge also found that the Applicant’s ability to parent would be impacted by his volatile emotions, and that his previous parenting shows how his drug use and inability to properly supervise his children has impacted them. Additionally, the judge also found that the Applicant’s refusal to follow court orders and his constant denigration of his other children’s mother as well as the Respondent, suggests an inability to act as a parent. In conclusion, the judge, after examining these facts, determined that the Applicant would be unable to have unsupervised access as it would not be in the best interests of the Child.
To determine if the Applicant has the right to supervised access, the judge looked at the common factors referenced in EO v OE, [2019] OJ No 6705. The Respondent argued that factors 1, 2, 4, 5 were relevant and that the Applicant should have his access rejected.
It was determined that the Applicant did harass the Respondent by pestering her for pictures, posting disparaging comments or pictures about the Respondent or her family. The Applicant also engaged in behaviour that was considered intimidating by the judge. It was noted that in the run up to trial, the Applicant had ceased such actions. This made the judge believe that the disparagement was not ongoing as well. The judge determined that the Applicant suffers from emotional bouts, as well as mental health episodes that would make him likely to exert uncontrollable behaviour that would be frightening to a child. The judge also reaffirmed that the Applicant continues to use narcotics. However, the judge commented that the risk imposed by this could be managed via supervised visits. The final relevant factor was the bond between the parent and child, no bond existed between the two, but the judge recognized this was partly due to litigation and paternity testing as well as the Applicant’s own fault. The judge decided in the end that the Applicant should have a chance to connect with his son and have supervised access visits after weighing the following factors, “(a) The maximum contact principle; (b) The right of a child to know and have a relationship with each parent; (c) A limitation of a consideration of parental conduct to that conduct which impacts on the child; (d) The risk of harm: emotional, physical and sexual; (e) The nature of the relationship between the parents and its impact on the child; (f) The nature of the relationship and attachment between the access parent and the child; and, (g)The commitment of the access parent to the child.” Chartrand v De Laat, [2008] OJ No 4529 s 114.
Conclusion:
The Applicant was allowed to have supervised visits. His previous criminal history, drug use, and patterns of volatility were used to demonstrate his inability to independently provide a stable environment, supervise children etc. This precluded him from being eligible for unsupervised visits.
Bastelak v Bastelak, [1983] OJ No 827
Issue:
Should the Respondent have their right to access revoked?
Rule:
Children's Law Reform Act, RSO 1990, c C.12, s 24
Application:
The judge decided that when assessing whether or not it is appropriate to deny access to a child, that three of the most important factors to consider are the welfare of the Child, the conduct of the parents, and the stability of the environment. When applying the factors against s. 24 of the Children’s Law Reform Act, the judge found that the Respondent was unfit to provide supervision for the Child due to his bouts of rage, history of demeaning the Applicant and Officers of the Court, as well as his history of documented violent incidents that resulted in conviction. Additionally, the judge thought it would not be in the best interest of the Child to be exposed to potentially upsetting emotional outbursts and violence.
Conclusion:
The judge ordered the Respondent should not have access to the child due to his ongoing history of domestic violence towards the mother. The judge argued that these occurrences would have greatly affected the psyche of the young child and his emotional development. The judge also expressed concerns over the cyclical nature of the Respondent’s violence.
The Respondent’s previous patterns of violence and inappropriate conduct were used to portray why the Respondent was incapable of behaving in a responsible manner and either directly or indirectly caused harm to the Child by engaging in violent episodes.
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