In a recent case, two separated parents had agreed to certain custody and access arrangements pertaining to their two sons, now aged 13 and 11. Those arrangements had been formalized in a final court order. Because the father had been criminally harassing the mother to the point where she feared for her safety, the father was also ordered to be subject to a restraining order essentially preventing him from contacting her or going within 300 meters of her place of residence or employment.
The father claims that the mother misused the discretion that the court order had given her, by monopolizing the children’s time whenever possible. In particular, he claimed that she deliberately scheduled the children’s soccer and hockey activities during times when he was supposed to have access, and that various tournaments were scheduled during his time with the boys as well. This was complicated by the fact that the restraining order that was in place also prevented him from being at the same place as the mother.
In short, he claimed that the mother was engaging in tactics to prevent him from having meaningful access to the boys.
The mother conceded that the father’s access had been frustrated in some instances, but offered circumstance-specific justifications. She also pointed out that on several occasions the father himself had either asked to cancel access, or had consented to cancel it, sometimes making up the time on other dates. However, she did not deny that in some instances she had refused to allow the father to have access, but it was because co-operation between them had deteriorated.
The court elaborated on how the hockey issue had played out:
Another explanation for the deterioration in relations between [the mother] and [the father] is that [the mother] served as liaison for [the son’s] ockey team and joined the team in their locker room with the result that [the father], whose terms of probation prohibited him from being in the same room as [the mother], was prevented from accompanying [the son], like the other fathers, even if the practice or game fell on a night when he was to exercise access. [The mother’s] lawyer minimizes the importance of this encroachment on [the father’s] access, arguing that it interfered with his access for only a short time at the beginning of games, but I find that it would have been humiliating for [the father] to be centred out in this manner in front of the parents of [the son’s] team-mates. It is not surprising, in these circumstances, that hockey assumed a greater importance to [the mother] than it had for [the father]. When there was a conflict between the boys’ hockey commitments, and especially those of [the one son], who served on a “Rep” hockey team in 2011 and 2012, [the mother] expected [the father] to accommodate [the son’s] hockey schedule, attending at the practices and games and departing from the boys when they joined their mother and their teammates in the locker room. [The mother] explains that the rules of [the son’s] “Rep” team required him to attend every game and practice, or be “benched” if he missed one. If he missed a game, [the mother] explains at para. 17 to 20 of her affidavit, he would not be allowed to play with his team the next season. …
[The mother] states in her affidavit that she did not know whether [the father] would take the boys to their hockey games or practices. Her preoccupation with ensuring that they attended, combined with her uncertainty as to whether [the father] would take them, caused her to refuse access, or support the boys in their resistance to accompany him, so that she could assume responsibility for them herself at these times.
Still, after scrutinizing the evidence of various incidents on a more individual basis, the court found that on at least some occasions, the mother did deliberately foil the father’s access to the children, and was therefore in breach of the court order. Those breaches affected the children’s best interests, and the court took this into account when re-evaluating and amending the father’s access entitlements are part of a larger variation order.
For the full text of the decision, see:
Durkin v. Cunningham, 2014 ONSC 4659 (CanLII)
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