When deciding parenting time and contact with a child, courts may grant an order defining the terms of contact. Courts can determine how much contact will be in the best interests of the child, which may not be equal between the parents. In some cases, a parent may ask for an order that the other parent’s contact be supervised. Generally, contact with a child should be free from supervision as supervision can interfere with the parent-child relationship. However, supervision can be justified after considering the child’s safety and well-being.
Courts Take a Holistic Look at Children and Their Needs
A court’s primary obligation is to take into account the best interests of the child. Under section 24(2) of the Children’s Law Reform Act (CLRA), courts must consider all of the factors related to the circumstances of the child, giving primary consideration to the child’s physical, emotional, and psychological safety, security, and well-being. Section 24(3) of the CLRA further lists a range of factors related to the circumstances of a child, including:
- the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child.
Throughout, the child’s interests remain the primary focus, not either parent’s preferences. Legislation directs judges to assess each child’s specific circumstances and, as courts have phrased it, to “take a holistic look at the children, their needs and the people around them.”
In Bressi v. Skinulis et al., the Court stated that there is no presumption in favour of joint parenting time and that any objective of maximum parenting time does not equate to equal parenting time. However, there is recognition that it will often be in the interests of a child to have contact with both parents. In Young v. Hanson, Justice Chozik emphasized the importance of bonding, attachment, and stability in the lives of young children.
Restrictions Must Be Justified by the Parent Requesting Them
Supervised contact is not the norm in parenting disputes. When a parent attempts to reduce the other parent’s normal access to a child (e.g. through supervised or limited contact), the parent seeking the reduction in access must justify their position and explain why this reduction is necessary.
In Folahan v. Folahan, the Court explained that it is not in the best interest of children for parents to have to demonstrate why they should be allowed to exercise unsupervised access to their children; instead, the parent seeking to restrict access must demonstrate why contact must be supervised. In Young v. Hanson, the judge commented that “supervision is a great intrusion into the relationship between children and parent, and its continued imposition must be justified”.
Courts have also previously held that the greater the restriction on contact sought is, the more important it becomes to be able to justify the restriction. The most restrictive form of contact is supervised access.
Supervised Access Reserved for Exceptional Circumstances
Courts have repeatedly explained that supervised access is reserved for exceptional circumstances. In Folahan, the Court described how supervised access can be employed where the benefit a child would receive from contact with a parent must be balanced against the risk of harm to a child that contact might entail. It may also be appropriate as a temporary measure in situations where a parent fears that the other parent, due to either inexperience or past misconduct, is incapable of properly caring for the child.
Even where supervision is justified, it is not meant to be a permanent feature of a child’s life. In a 1992 case, M.(B.P.) v. M.(B.L.D.E.), the Ontario Court of Appeal wrote that supervised contact can provide a temporary and time-limited measure to resolve a parental impasse over contact and should not be used as a long-term remedy.
Izyuk v. Bilousov further clarified that supervision acts as an intermediate step before a parent may have broader access and can be justified in a range of situations, such as:
- Where there are substance abuse issues which need to be addressed;
- Where the child requires protection from physical, sexual or emotional abuse;
- Where there are clinical issues involving the access parent; and
- Where the child is being introduced or reintroduced to a parent after a significant absence.
As Justice Pazaratz put it, in situations of supervised contact, the hope is that the problem that justified supervision in the first place can be corrected or eliminated “and that a more natural and less restrictive parent-child relationship will be allowed to evolve”.
In Stec v. Blair, the father acknowledged that he had an addiction to opioids which stemmed from a workplace injury when he was prescribed medication to address his pain. He was referred to a program at a medical clinic which helped him to address his addiction. At the same time, he also saw an addiction counsellor. During the litigation, he agreed to provide opposing counsel with a drug test which showed he was free of all non-prescription drugs. However, the mother was skeptical of his recovery. She found a cabinet of anti-depressant pills, methadone, and steroids.
While the judge was not prepared to find the presence of the medications was conclusive proof of use, they did raise some concerns. An investigator referred by the Office of the Children’s Lawyer recommended that three months of random testing take place before the father’s access could be unsupervised. For the judge, the father’s counselling was a positive step, but there was concern about a relapse. Although the onus was not on the father to show that he was drug-free, the Court was satisfied that he once had an addiction and that his maintenance of that addiction was not clear. That could affect his ability to parent and meet the child’s needs. The Court decided to give the father an opportunity to establish that he was managing his addiction. Contact could be unsupervised, but not before he provided a negative drug test, and it would remain unsupervised as long as he provided a weekly test for a period of three months.
Less Restrictive Measures Will Be Used Before Ordering Supervision
Even in cases where there may be some concern about a parent and their ability to meet the child’s safety and well-being, supervised contact may not be necessary. Courts may consider other less restrictive safeguards before ordering supervised parenting time.
T.T. v. J.D.B. dealt with a motion regarding whether the mother’s parenting time should be supervised. A previous order for supervised parenting time arose from the mother’s involvement in a motor vehicle accident while the children were passengers. The mother was charged with operating the vehicle while impaired by alcohol or drugs and dangerous operation of a motor vehicle. The father also alleged that the mother had an issue with alcohol. The father sought continued supervision and an order for a breathalyzer testing plan. The mother asserted that she did not have a problem with alcohol and argued that neither supervision nor alcohol testing was required.
For the judge, the motor vehicle accident and allegations of impairment raised serious safety concerns for the children and could indicate serious judgment issues. But the facts were disputed, and the mother had no prior convictions. The father had the burden of establishing that supervision was justified, and the judge was not satisfied that supervision was required. However, the mother was to refrain from the consumption of alcohol or non-prescription drugs during her parenting time and for 24 hours prior to the parenting time and not operate a motor vehicle with the children as passengers.
Supervised Parenting Time Can Help Address Parenting Issues
Decisions about parenting and contact are made in the best interests of the child. Courts recognize the important bonds between a parent and a child, and that supervised access is an exceptional remedy that can interfere with that relationship. The parent pursuing supervised access must satisfy the court that it is justified, but restrictions may be appropriate on a temporary basis to ensure the parent properly cares for the child.
Contact the Divorce & Family Lawyers at Boulby Weinberg LLP for Assistance With Parenting Time Matters
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