In the recent decision of Jesmer v. Delormier, the Ontario court granted a father’s request to have access to his two-year old son, despite the fact that he had previously shown no interest in the boy whatsoever.
The father and mother had met as teenagers. They had had a two-year, on-again/off-again relationship that finally ended a few months after the boy was born. Since then, the father had never requested to see the boy, and had not even laid eyes on him since he was eight months old. In fact, he had publicly stated that he did not want anything to do with his son, had never wanted him in the first place, and did not want to see him again.
Evidently, the father had subsequently had a change of heart, because he applied to the court for joint custody of and access to the son, who was now two years of age.
In considering the request, the court evaluated all the factual circumstances. The father, who was now 25 years old, lived in a mobile home trailer owned by his parents; it was described as small, dirty, and had dogs running all over the property. His primary income appeared to be from smuggling cigarettes, for which he had been previously arrested. He smoked four or five marijuana joints a day, even when there were children in his presence. He had what was described as a “bad temper”, and had instigated a few isolated incidents of violence with the mother. He also had two children from another relationship in whom he took little interest.
The mother, on the other hand, had a new partner with whom she had lived for two years in a relatively stable relationship. The new partner had a good father-son relationship with the boy, did not abuse drugs or alcohol, and had never been convicted of an offence. The boy considered the new partner to be his father, and there had been discussion with the mother that the new partner should formally adopt the boy.
Against this factual background, the court also considered the Ontario Children’s Law Reform Act, which stipulates that both parents are equally entitled to custody of a child, and in cases where parents and the child lives with one of them, the other parents is entitled to access, visitation, and to be informed in connection with the child’s health, education and welfare. That Act also embodies the public policy principle that a child should have as much contact with each parent as is consistent with the best interests of the child. However – and while contact with both parents will usually be in the child’s best interests – that outcome is not automatic. Rather, the nature of the relationship and whether it is beneficial and meaningful is the uppermost consideration in determining access. The child’s best interests always take priority over a parent’s desires or interests.
Applying those criteria to the facts of the case before it, the court observed that the boy had had absolutely no relationship with the father or his extended family since he was eight months old. They were virtually strangers to him.
Nonetheless, the father had been making strides in getting his personal circumstances in order: he was now attending school to become a social service worker; had improved his living circumstances, and had the ongoing assistance of his parents. His proposal for access to the boy involved his being reintroduced to the boy gradually, and he was willing to see his son at a supervised access facility if necessary.
After considering all the factors, and because there was no history of shared parenting, good communication or joint decision-making between the boy’s parents, the court declined to grant the father joint custody.
However, it did agree to grant the father access to the boy, since to order otherwise would effectively sever the parent-child-relationship altogether. The court was not convinced that it would be in the boy’s best interests to deny him the opportunity to know his biological family.
While conceding that the father had actively failed to pursue access, the court was mindful that the father had “lost some precious time with his child”. It assessed the father’s current request as being genuine, and noted that he had persevered despite the mother’s resistance, and had taken both parenting and anger-management courses. Overall, the court found that it was in the child’s best interests to give the father a chance to prove his commitment to his son.
Whether the right to custody or access can or should be exercised in any given case will depend on the facts. Russell Alexander and his team of family law professionals can assist you with ascertaining your own rights in this regard.
The Court’s decision Jesmer v. Delormier can be found at
