Access vs. education weighed in recent OCA decision

A recent child access ruling by the Ontario Court of Appeal illustrates the highly contextual nature of weighing the best interests of the child, says Toronto family lawyer and civil litigator Jenny Bogod.

In Chitsabesan v. Yuhendran, 2016 ONCA 103, the panel of judges found that fostering a meaningful relationship between a child and her father was more significant than missing a half-day nursery school program, might have ended with a different result if the child were older or in a different situation, says Bogod, an associate with Basman Smith LLP.

The judges determined that the father should be permitted to bring his daughter from her home in England to Toronto for a period of roughly a month so she could foster a relationship with her paternal grandparents and the father. The father’s interim motion came after the Ontario Court of Justice restricted his access to six weeks a year in one-week blocks, except during the summer when he is to have one week at the end of July and two weeks at the end of August.

In arguing the motion, the mother’s counsel relied on the nursery school’s policy, which stresses the importance of attending school regularly. “She pointed out that, under the policy, the teacher is not able to authorize a leave of absence ‘for the purpose of a family holiday,’ ” the decision reads.

In the end, the appeal court sided with the father.

The decision reads: “No matter what may be the school’s policy regarding an absence for parental access, in our view it is not in the best interests of the three-year-old child to consider attendance at this half-day program more important than fostering a meaningful relationship with the child’s father and his family. It is always in the best interests of the child to have a healthy relationship with both parents."

Bogod says while the decision is sensible in the way it balances the interests of the child in fostering a parental relationship, it may have resulted in a different outcome had the child been older or there was a greater disruption to the child’s educational and extracurricular programs.

“Implied in the decision is that this is a contextual analysis whereby the age of the child in addition to the child’s schooling may become important factors when balancing what is best of the child in terms of increasing one parent’s access. For example, a three-year-old missing three hours a day may not be as educationally influential as a child entering into Grade 9, or a high school student who is in the midst of preparing for university or college applications or entrance exams,” Bogod tells

While the mother relied on the school policy to show that there was a commitment that could not be avoided by the child, the Ontario Court of Appeal held that the parent seeking to deny extended access must show a compelling reason why longer periods of access are not important, and balance these reasons with the best interests of the child in terms of fostering a healthy relationship with the access-seeking parent, Bogod says.

“it will be interesting to see how lower courts will refer to this decision in factually different circumstances involving older children or parents seeking to extend their access for a period longer than a month as was being sought in this case.”

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