Father loses joint custody but retains access
An interesting decision from Ontario took away a father’s joint custody of his son, but allowed him to retain access so that the son, who was a competitive hockey player, could “… have a sense of relaxation which he currently enjoys at this father’s home in contrast the rigors of a very busy schedule while at his mother’s residence.”
The parties began to live together in January 2002 and separated in July 2004. They have one child (a son) born July 2002. Since the couple’s separation, the son has lived primarily with the mother.
In January 2012, a final order was issued outlining the arrangements between the parties with respect to custody and other issues. The order provided that:
- The parties would share joint custody of the child;
- The child’s primary residence would be with the mother;
- The father would have access; and
- The father would pay $388 in monthly child support.
The mother filed a motion to change the final order and requested that she be given sole custody of the son, with reasonable and generous access by the father in accordance with the son’s wishes, and as mutually agreed to by the parties.
The father wanted to maintain joint custody arrangement, and the same access schedule.
Issues to be determined
In making a final decision with respect to the mother’s request to change the custody and access terms, the court had to decide:
- Had there been a material change of circumstances with respect to custody and access?
- If so, what alternative custody arrangement would be in the son’s best interests?
- What parenting schedule was in the son’s best interests?
Material change in circumstances
The mother argued that there was a material change in circumstances that affected custody and access:
- The son was now 14, four years older than he was when the original order was issued, and his needs had changed;
- Communication between the two parents had significantly deteriorated;
- The parties could not work together in a joint custodial agreement;
- The father had not honoured his parental obligations; and
- The mother had increasingly taken charge of the son’s needs.
She further argued that the son was late for school when he was in the care of his father, and that the father’s license had been suspended by the Family Responsibility Office (FRO) for non-payment of child support, which significantly affected his ability to transport the son to his activities (the son plays competitive hockey, and practices, games, tournaments, hockey camps, and high-performance athletic programs took up a considerable amount of time).
The father took no position on whether there had been a material change in circumstances.
Son’s best interests: custody arrangement
The mother argued that a joint custody regime was no longer sustainable because of the lack of communication between the parties. She claimed that she was, by default, making final decisions about matters such as the son’s healthcare and that she had been providing information to the father and seeking his input but had been receiving none.
The father admitted to some communication issues, but that he simply let the mother dictate all final decisions. He wanted to maintain joint custody.
Son’s best interests: parenting schedule
The mother shared a number of concerns with respect to the father’s care of the son, including his failure to ensure that the son obtained proper medical attention after he injured himself while playing hockey, and his willingness to allow the son to play video games for too long. She suggested that access should be reasonable and generous, in accordance with the son’s wishes and as agreed to between the parties, and suggested a minimum of one or two visits per week.
The father wanted to retain the previous schedule. He admitted that it would be challenging since his license was suspended, but that he expected that the license would eventually be reinstated. He also admitted to spending little time with the son during the summer.
The final decision
The court granted the mother’s request to change the custody terms but emphasized that the son should still maintain regular visits with the father. The court’s reasoning was instructive, per the below.
Material change in circumstances
The court found that there was sufficient evidence to establish that there had been a material change of circumstances justifying a variation of the final order, the most dramatic of which was the father’s lack of response to communications from the mother regarding the son’s health. Additional concerns raised by the mother, including lack of care by the father when the son suffered a concussion, lack of timely attendance at sporting events and school when the son was in the father’s care, and failure by the father to ensure proper food and nutrition, also provided evidence that a material change in circumstances had occurred since the original custody and access order was issued.
Son’s best interest: custody arrangement
In terms of what custody arrangement was in the child’s best interests, the court found that the parents “do not possess the minimum ability to communicate in order to make major decisions as they pertain to [the son]”.
The court also noted the following:
- Both parents have a strong bond with the son;
- The son has lived primarily with the mother;
- The mother has played the lead role with respect to the son’s schooling, medical needs, activities, and scheduling;
- Each parent wants to play a role in parenting the son;
- The mother has organized the son’s activities and competitive sports, and has managed his schedule;
- The parents have been unable to implement a joint custody arrangement whereby they can both agree on final decisions about the son;
- There was no evidence of meaningful exchange of information. Instead, communication between the parents was abrasive, contemptuous, and resorted to name-calling;
- The father had deliberately ignored emails from the mother about the son, and had not demonstrated a willingness to work with her to make decisions about the son together;
- The son’s time with his father is a chance for the son to play video games and provides him with “down time.”
The court went on to conclude:
- It is important to ensure that the son’s needs (medical, educational, emotional, etc.) are met. The mother should continue in her primary role in this respect;
- The father should continue to play a meaningful role;
- The mother will have sole custody of the son, but will consult with the father before making any final decision, and will keep the father informed about all major decisions about the son;
- The father will have a right to direct access to all of the son’s medical, dental, educational, or other records.
Son’s best interest: parenting schedule
In determining what schedule is in the son’s best interests, the court noted:
- The son is very busy with after-school activities, including competitive hockey;
- The father had a history of bringing the son to school and important sporting events late;
- The father will only be able to take the son to his various activities once his driver’s license is reinstated;
- The son should have a sense of relaxation which he currently enjoys at his father’s home in contrast with the rigors of a very busy schedule that he enjoys at his mother’s residence.
The court concluded that:
- The son’s best interests dictate that he should be brought to school and sports in a timely manner, which the father was unable to do both before and after his license was suspended;
- It is in the son’s best interest for there to be a routine with the mother playing the “lead parent” in terms of organizing his educational, medical, and sporting activities;
- However, it is important, and also in the son’s best interests to see his father regularly, and that a schedule be set.
The court went on to outline a restricted access schedule for the father.