Tag: Ex-spouse

Differential parenting styles can have a negative effect on the family and is a frequent cause of separation or divorce. With that being said, concerns about the changes in a spouse’s behaviour can also lead to the end of the relationship, ultimately causing stress, anxiety and for one party to believe the other is incapable of being what they believe to be a good parent. Encompassing all of these concerns could also mean one parent may prevent the children from having regular contact with the other parent.

However, voluntarily leaving the matrimonial home and taking the children, or otherwise acting unilaterally will indisputably create a very unfavourable position for one parent in family court. If children are going to be denied post-separation contact with a parent, then invariably, the parents will be heading to family court – perhaps on an emergency motion to restrict or allow a parent to have parenting time.

Any parent going to family court on the premise of an emergency motion has to convince the judge that there is reason for this request. It is imperative that the reasoning behind the petition is compelling enough for the judge to agree.

Here are some tips on how to obtain the correct parenting order:

Family court judges typically aren’t interested in how one parent feels about the other parent – even if that parent has been wronged. Ontario (and Canadian) Family Law stipulates that the child’s best interest is the only factor to be considered. A parent who is focused on the children’s perspective and best tells the judge what the children need will be the parent who succeeds. The parent who appears to be focused otherwise, will lose.

1. Parents have to base their case on evidence, not speculation, no matter how incompetent one parent believes the other parent may be. Judges only take into account what the evidence shows. Judges will not base a decision on suspicions unless there is some evidence those suspicions are correct.

2. If a parent has not displayed evidence of bad parenting, there is no basis on which a judge can rule that he or she is a bad parent. The only exception to this is where there is objective evidence (not just the other parent saying) that a parent has threatened to harm the children or has expressed comments that sound like he or she might allow the children to be in harms way.

3. Judges view parents who try to undermine a child’s relationship with the other parent as a bad parent. They believe it shows poor judgment. So, if there are texts, social media posts, instant messages, emails or other evidence of a parent conveying damaging things about the other parent, that can assist the judge in making a determination.
4. Domestic violence, against any family member, is also a sign of bad parenting. Section 24(4) of the Children’s Law Reform Act specifically requires a judge to consider all forms of domestic violence when evaluating parenting. However, judges will not tolerate any party who makes false or exaggerated claims of domestic violence to gain an advantage in family court.

5. Finally, it is almost certain that a judge will view a parent who defies court orders, or will not cooperate with a parenting coordinator, as a bad parent. But again, a judge will not assume that a parent will breach a court order unless there is some evidence of the parent doing so in the past or there is clear of evidence of the parent’s intention to breach an Order.

The key to convincing a judge, even on an emergency motion for child custody, is to have evidence of a parent’s bad parenting and to express those concerns from the child’s perspective – how do the concerns negatively impact the child. Once that is established, it is important to tell the judge, in light of the parenting concerns, what parenting arrangement is in the child’s best interest so the judge can order it.

Protecting the well-being of your children should always be your top priority. For assistance, contact certified specialist in family law, John P. Schuman of Devry Smith Frank LLP. Contact him directly at 416-446-5080 or email john.schuman@devrylaw.ca

“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”