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Nearly three years ago, Gelman & Associates’ Irina Davis represented a father in a case dealing with custody and access where the parents had a relationship high in conflict and were unable to make parenting decisions together. Over two years since the original order, the parties have found themselves back in court after the mother’s unilateral revocation of access.

Custody and access is established in 2018

At the time of the original trial, the father had moved in with his new partner, “TS”. TS also had a child from a previous relationship. In the previous decision, released in 2018, the court found there had been many conflicts between the parents and that the mother was hurt and angry about the father’s relationship with TS. In the 2018 decision, the mother was awarded sole custody of the children while providing the father and TS with access in their new home. The access was to increase over time with it culminating in alternating weekends, from Friday to Monday mornings, plus a weekly evening visit.

Mother suspends in-person access after abuse allegations

In March 13, 2020, the mother sent the father a message stating that his in-person access with the child would be suspended after allegations of physical and emotional abuse on the part of TS and that the father had “knowledge and permissiveness of this abuse”. A letter from the mother’s counsel was sent to the father, stating the child had told the mother that TS had been telling her to make false claims and “perform acts that place (the child) in danger.” The mother’s counsel also told the father a police report had been made and that the “appropriate child services agency” had been contacted.

Following the revocation of access, the child attempted to have phone calls with the child, which the mother initially refused but eventually allowed. He said during one of these calls, which was done over video, the child said she did not miss the father “or (anyone) on his side of the family.” The father said the child looked to the mother for approval when stating this.

By May of this year the father began to have in-person visits with the mother in their back yard, but that they were sometimes cancelled.

A therapist’s report had been produced by the mother, but it was not filed in time for a hearing earlier this year. In this most recent trial, both parties presented a great deal of evidence about what had transpired. The therapist’s report was also admitted.

During this most recent trial, the father’s main request was for the 2018 trial judgment to be enforced. He also sought to have his missed access made up. In the meantime, the mother has also asked the court to allow her to move to British Columbia with the child, though that was not an issue before the court at this time.

Evidence of abuse

The mother presented the court with a number of recordings of the father’s visits with the child in the mother’s backyard. However, the court found that most of the evidence in the recordings “is neither reliable, nor does it demonstrate the abuse that the mother alleges.” The court also noted that most of the statements from the child have come through the mother, leaving the court questions of reliability.

TS filed an affidavit prior to the proceeding in which she denied ever hitting TS, as the mother alleges. She said she treats the child as her own. Additionally, TS said the child told her the mother hits her and yells at her.

The Children’s Aid Society’s notes stated that the child loves visiting with her dad and that there is nothing she doesn’t like about the visits.

The court found that while oral evidence may be presented at a later date, at this point the evidence “does not form a foundation for the court to find abuse, and for there to be compelling circumstances, to drastically limit the father’s access.”

Access order is reinstated

The court noted that the relationship between the parents had “exploded,” and that the conflict is impacting the child. Regardless, the court found she enjoys spending time with her father. The court found there had been no material change in circumstances which would be needed to alter the 2018 order. However, the court did not order make-up access as requested by the father.

The parties will appear before the court again later this year, and we will be sure to update you on what happens.

Contact the family law team at Gelman & Associates to learn how knowledgeable family law lawyers can protect your custody and access rights. We strive to provide you with the information and resources necessary to make informed decisions about family law matters. To help you maintain positive mental health during a difficult period, we also offer our clients a free consultation with a psychological professional.

Conveniently located in six offices throughout Ontario, our offices are easily accessible by transit and off-highway. In order to be available to clients and prospective clients, our phone lines are open Monday to Friday from 8 AM to 8 PM. Call us at (416) 736-0200 or 1-844-736-0200 or contact us online for an initial consultation.

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