The recent decision of SJK v JPG, written by the Honourable Justice S.B. Sherr, is a case where a parent is denied even supervised access to a child as a result of accusations of domestic violence. While it may seem unsurprising that access would be terminated in the context of domestic violence, Courts take very seriously the issue of promoting a child’s contact with both parents if it can be shown that the contact is in the best interests of that child. It is rare that a court will disallow even professionally supervised access to a child. This case is useful for a review of what circumstances may lead to an order for no access and what types of steps might be required for the parent to regain access to the child.
In this case, the father had been in jail for the first two years of the child’s life. After his release, the mother had been granted a restraining order which restricted the father’s access to both the mother and the child. This child is now 6 years old.
The father sought to have the restraining order varied to allow him access to the child. The mother opposed any access for the father.
Justice Sherr reviewed the evidence that was before the court when granting the restraining order and held that it “overwhelmingly supported” the mother’s claim for a restraining order, including two charges against the father for assaulting the mother, refusing to return the child to the mother on a previous visit, breaking into the mother’s apartment twice and threatening to kill the mother and her dog.
Justice Sherr found that the father had not taken “any meaningful steps to address the reasons why he was violent and threatening to the mother”, “showed no insight into the impact of his behaviour on the mother or the child” and “fail[ed] to address his behaviour mean[ing] the risk to the mother and the child remains very high.” (para.70) Justice Sherr found that the father had lied to the court and breached the restraining order and his terms of release on multiple occasions.
However, Justice Sherr held that if he were to determine that access with the father was in the child’s best interests, that would constitute a material change in circumstances which would allow the court to make a change to the restraining order.
In assessing whether it was in the child’s best interest to have contact with their father, the court considered the following legal principles (para. 78-80):
1. The assessment must take into account all of the relevant circumstances pertaining to the child’s needs and the ability of each parent to meet those needs. The emphasis is on the child’s interests, not the rights of the parents.
2. Children generally benefit from maximum contact with both parents, but only to the extent that it is in their best interests.
3. A parent does not have an absolute right of access. Access shall only be ordered where it will benefit the child. It is not sufficient to simply show that access will not harm the child. However, refusing access should only be ordered in extreme circumstances.
Justice Sherr also referred to the Honourable Justice J. Blishen’s summary of factors that have led courts to terminate access in previous cases (para. 81):
1. Long-term harassment and harmful behaviours towards the other parent, causing that parent and the child stress and/or fear;
2. A history of violent, unpredictable behaviour;
3. Alcohol and/or drug abuse which has been witnessed by the child and/or presents a risk to the child’s safety and well-being;
4. Extreme parental alienation which has resulted in changes of custody and, at times, no access orders to the former custodial parent;
5. Ongoing severe denigration of the other parent;
6. Lack of relationship or attachment between non-custodial parent and child;
7. Neglect or abuse to a child on the access visits;
8. Older children’s wishes and preferences to terminate access.
In reviewing these principles and others, Justice Sherr stated that the starting point in assessing a child’s best interests with respect to an application for access to that child is to ensure that the child will be physically and emotionally safe. However, it is also in a child’s best interests that their caregiver, in this case the mother, be physically and emotionally safe. If reintroducing access would risk destabilizing the child, whether directly or by virtue of destabilizing their caregiver, this can be sufficient reason to terminate, or refuse to order, access.
In this case, the mother gave evidence that the father had little involvement with the child, that the child had bad memories of his contact with the father and was concerned about how contact with the father might destabilize the child. She also testified that she did not believe she or the child would be safe even with a supervised access order. The father and parternal grandmother denied all of this but Justice Sherr found the mother’s evidence more credible. Justice Sherr found that it was not in the child’s best interests to have access with the father.
However, rather than leave the issue there, Justice Sherr set out a list of constructive steps which the father could take over the next year which, if substantially complied with, would allow him to bring another application. In any event, he was barred from bringing any future applications for at least one year. The steps set out by Justice Sherr were that the father (para. 118):
1. Continue to have no contact with the mother or the child for a sustained period of time;
2. Abstain from criminal behaviour;
3. 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;
4. Demonstrate that he can understand the impact of his abusive behaviour on the mother and the child;
5. Demonstrate that he has learned and is applying healthier methods to deal with stress and frustration;
6. Demonstrate an ability to accept responsibility for his actions;
7. Show responsibility by accurately reporting his income and paying child support pursuant to the child support guidelines; and
8. Pay the outstanding costs order.