A recent Ontario case considered whether to terminate a restraining order against an abusive father to permit him to have access to his child.
The mother is 23 years old and the father is 26 years old. The parents have never lived together although they have a six-year old son together.
The father was in jail for almost the first two years of the child’s life.
In 2016, the mothersought custody of the child, no access for the father, child support and a restraining order. The mother made serious allegations of domestic violence against the father.
In 2017, the mother was granted custody of the child. A temporary order was also made requiring the father to pay child support of $315 each month. A few months later, the court made the restraining order sought by the mother and a final order confirming the amount of child support. The restraining order prohibited the father from having any contact with the mother and the child, or coming within 500 metres of their home, residence, school, daycare or any other place that the father had reason to believe they may be. The father did not appeal any of these orders.
In 2019, the father asked the court to set aside the restraining order. At trial, the father asked to orally amend his motion to change to include an alternative request to change the restraining order to permit him to see the child. He also sought to have access on alternate weekends and on every Wednesday in his amended motion to change. In his trial affidavit, he asked for access to start at a supervised access center and then gradually progress into the community. At trial, he just asked for access to take place at a supervised access center.
The mother asked that the father’s motion to change be dismissed. She was opposed to any access order.
The father had not seen the child since at least February 2018.
At the outset, the court found that the father was not a credible witness. It found that he quickly became evasive when challenged on his evidence, particularly concerning his employment, residence and his knowledge of his criminal release terms.It further found that the father had not provided a satisfactory excuse for his non-attendance at court when the restraining order was made. The court refused to set aside the restraining order.
In considering whether to terminate the restraining order, the court explained that the evidence presented by the mother in 2018 overwhelmingly supported her claim for the restraining order. The mother and child had been subjected to considerable domestic violence by the father and the father violently abused the mother, sometimes in the presence of the child. The court stated:
“The father’s dishonesty and non-compliance with court orders gives the court no confidence that the safety of the mother and the child can be protected without the restraining order.
The court finds that the father has not shown a material change in circumstances to justify the termination of the restraining order.”
Finally, the court refused to award the father access rights. It found that it would not be in the child’s best interests to have access with the father because the evidence indicated that neither the mother nor the child would be safe with a supervised access order. As a result, the court ordered that the restraining order would not be changed to permit the father to have access to the child.
The court did state that the following conditions would need to be met if the father had any chance of obtaining access rights in the future:
a) Continue to have no contact with the mother or the child for a sustained period of time.
b) Abstain from criminal behaviour.
c) Attend intensive therapy with a therapist trained in domestic violence issues to address his abusive behaviour and anger management issues. He should provide a report from this therapist that he has meaningfully participated in this therapy and that sets out any gains he has made.
d) Demonstrate that he can understand the impact of his abusive behaviour on the mother and the child.
e) Demonstrate that he has learned and is applying healthier methods to deal with stress and frustration.
f) Demonstrate an ability to accept responsibility for his actions.
g) Show responsibility by accurately reporting his income and paying child support pursuant to the child support guidelines.
h) Pay the outstanding costs orders.
In conclusion, the court refused the father’s requests and ordered that he not be allowed to bring any motion to change the restraining order or bring an access application for one year.
Separation and divorce are challenging for everyone involved. When dealing with custody or access disputes, matters involving spousal and child support, the division of assets, and other family issues, emotions can be your worst enemy. Having an experienced family lawyer on your side can help you stay focused and resolve disputes as quickly and amicably as possible.
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