LIMITATIONS OF SUPERVISED ACCESS IN CHILD CUSTODY CASES

Supervised access is a frequently advanced claim in child custody-access cases. It places the child and parent in an artificial and restricted atmosphere. Cases have maintained that supervised access interferes with the parent/child relationship. It is meant to be a temporary measure only. One judge gathers together precedents and reminds us of the applicable legal principles.

Justice Price weighs in on the debate in Folahan v. Folahan (30 May 2013). The following unproven allegations (not unusual for family law cases) were hurled at dad:

1. He uses violence and threats of violence against his mom.

2. Threatening charges were outstanding against Dad.

3. Mom had complained to the Children’s Aid Society (but the C.A.S. had taken no position).

4. Dad made denigrating remarks against Mom in the children’s presence.

The judge reminds us that the statutory presumption in the Divorce Act in favour of maximum contact between parent and child is still alive and well and that the principle of maximum contact applies whether in a divorce case or a non-divorce case. It is the child who has the “right” to such maximum contact. If a parent seeks to violate the child’s rights, then she/he must provide cogent evidence to prove that supervised access is in the child’s best interests. The “onus” is on the parent who seeks a supervised access order. It is not up to the responding parent to prove that contact is essential; it is up to the accusing parent to clearly demonstrate why it is good for the child.

The judge reiterates that “supervised access is a tool reserved for exceptional circumstances”. So far so good. But then the judge states that it may be used as a “temporary expedient” to “overcome a cautious custodial parent’s initial fear that the other parent, due to inexperience or past misconduct, is incapable of properly caring for their child.” Unfortunately, this latter quote derogates from the rest of the decision that more clearly places the onus on the ‘fearful’ parent to establish the propriety of supervised access from the best interests of the child perspective. Mollifying the unreasonable fears of a parent should not (in light of the rest of the case decision) be a justification for imposing supervised access. However, at least the judge goes on to emphasize that in such circumstances the access will be time limited until it expands to regular unsupervised access.

In child custody-access cases, do not lightly agree to supervised access but if you do, insist that the supervised access be time-limited. This case is a good precedent for fighting supervised access claims but where it is granted, for arguing that it must be time-limited.

Nothing stated in this blog post should be construed as author support for any parent using violence, threats of violence, and denigrating remarks about the other parent in the child’s presence. The point here is that mere allegations of such behavior should not be sufficient to curtail a child’s contact with a parent.