In a recent case, the court considered a father’s request to set aside a restraining order that prevented him from having access to his six-year-old son.
The Parties’ Story
The parties, who never lived together, had one child.
The father was in jail for almost the first two years of the child’s life.
In June 2017, the court made a restraining order that prohibited the father from having any contact with the mother and the child. The father did not attend court that day.
The father brought a motion to set aside the restraining order, or in the alternative, to have it terminated or changed so that he could have access to the child.
The Relevant Legal Principles
Under the Family Law Rules, the court is able to set aside an order where the order:
- was obtained by fraud;
- contains a mistake;
- needs to be changed to deal with a matter that was before the court but that it did not decide;
- was made without notice; or
- was made with notice, if an affected party was not present when the order was made because the notice was inadequate or the party was unable, for a reason satisfactory to the court, to be present.
In determining whether to set aside a default judgment, the court should also consider the following factors:
- whether the motion to set aside was brought promptly after the defendant learned of the default judgment;
- the existence of a plausible excuse or explanation for failing to comply with Rules of Civil Procedure;
- whether the facts establish that the defendant has an arguable defence on merits;
- the potential prejudice to the moving party should the motion be dismissed and the potential prejudice to the respondent should the motion be allowed; and
- the effect of any order that the court might make on overall integrity of administration of justice.
For a court to terminate a restraining order specifically, the person seeking to change the order must establish a material change in circumstances justifying the termination.
Furthermore, any decisions with respect to custody and access must be made in the best interests of the child. Among other things, the court will consider a person’s past conduct – including whether the person had been violent or abusive towards their spouse or child – if it is relevant to their ability to act as a parent.
The Court’s Decision
In dismissing the father’s motion, the court found that the father did not provide a good excuse for not attending court when the restraining order was made. The court noted that the father was represented by counsel up until May 2017 and had notice of the June 2017 court date. Furthermore, while the father claimed he was in jail when the court order was made, there was documentary evidence that showed this was not the case. The court concluded that the father did not move on a timely basis to set aside the restraining order, and that he did not have an arguable case that would support setting it aside.
The court also found that the father had not shown a material change in circumstances to justify the termination of the restraining order. It noted that the evidence the mother presented in June 2017 overwhelmingly supported her claim for the restraining order, as she and the child were subjected to domestic violence by the father. Furthermore, the father had not complied with the restraining order to have no contact with the mother or the child. He also had not taken any meaningful steps to address the reasons why he was violent and threatening to the mother. The court concluded that the safety of the mother and the child could not be protected without the restraining order.
Finally, the court found that it was not in the child’s best interests to have access with the father at this time. Neither the mother nor the child would be safe with a supervised access order, as the father had displayed a “disturbing pattern” of extremely violent and unstable behaviour towards the mother. Furthermore, the father had not taken any meaningful steps to address his behaviour, had showed no insight and took little accountability for his actions. The court therefore concluded that the father’s re-engagement with the mother through supervised access would compromise the safety of both the mother and the child.
Lessons Learned
Courts recognize that it is normally best for children to have relationships with both of their parents. As a result, access will be refused in extreme circumstances only. That said, parents do not have an absolute right of access. Courts will only grant access to a parent when it can ensure that the child will be physically and emotionally safe.
If you have questions about your rights, it is best to speak with a lawyer. At Gelman & Associates, our lawyers provide exceptional legal representation in all family law matters. Our goal is to always empower clients to make informed decisions about their future. We give all prospective clients a comprehensive family law kit during their initial consultation, as well as a copy of our firm’s handbook on separation and divorce. This information is full of resources that will help you understand and navigate the difficult and often complicated separation and divorce process.
With six offices throughout Aurora, Barrie, Downtown Toronto, Mississauga, North York and Scarborough, we are easily accessible by transit and off-highway. Our phone lines are open Monday to Friday from 8:00 a.m. to 8:00 p.m. Call us at (844) 736-0200, or contact us online to schedule an initial consultation.
