written on behalf of Feigenbaum Law
In many cases, a separation or divorce can significantly impact not only the parties in the relationship, but also any children. Following the breakdown of a relationship, it is not uncommon for one parent to be granted more parenting time than another, for example, in situations where one parent has sole decision-making responsibility, the child will typically reside primarily with this parent. However, these situations can impact the child’s relationship with the other parent, among other factors.
A recent Ontario Superior of Justice decision provided insight on how the courts determine whether a child should be ordered to spend time with one parent.
Relationship between mother and son is damaged following divorce
In Daniels v. Stemberga, the proceedings leading up to the trial started in 2013 when the child was two-years-old. The parents had separated and the Court granted shared parenting time with the child. However, the mother’s home was designated as the child’s primary residence.
In the following years, the child began to have behavioral issues at school. The Court described these challenges as significant, and the child attended counseling. It was noted that there was a high degree of conflict present in the parents’ relationship that was causing the child’s issues. The Children’s Aid Society verified that the mother had been emotionally and physically abusive toward the child.
Child’s behaviour improves after living with father
By 2020, the child was in the care of his father full time. The father told the counselor that the child did not want to be left alone with his father. The counselor noticed that the child’s behaviour had improved since moving in with his father.
There was no indication that the child’s attitude towards his mother, or his desire not to see her, came about as the result of parental alienation by the father. Instead, it was found that the mother’s relationship with the child and her actions towards him were the cause of these feelings.
Mother is diagnosed with cancer; Court orders supervised parenting time
The mother was diagnosed with stage 4 breast cancer in 2020, after which she brought a motion requesting parenting time with the child. Upon review of the family history, the Court noted that this case involved high levels of conflict. The Court also noted that in November 2018, it was alleged that the mother pushed the child while he was in the shower, which was an incident which triggered the child’s move from his mother’s home to his father’s home.
During the trial, the Court found that the matter had evolved beyond the issues of the parents’ toxic relationship and into one where the “child’s beliefs, feelings and emotions are deeply rooted in him and cannot be easily unrooted.”
At that time, the Court allowed the mother to have supervised parenting time with the child.
Mother claims that father stopped bringing the child to see her
In the case at hand, the mother told the Court that her cancer worsened in 2021 and claimed that the child’s father stopped bringing the child to see her around this time. In the fall of 2022, the mother was told that her cancer was not curable.
The mother visited the father’s home in an act of desperation to see the child but when the father brought the child to the door, the mother said he told her “I don’t want a mother in my life.” Despite this, the mother sought to try to rebuild the relationship with the child before she passed away.
Court considers the best interests of the child
The Court’s analysis on the mother’s request for parenting time began with determining whether an order requiring the child to spend time with his mother was in the child’s best interests. This concept is a well established principle in both the Children’s Law Reform Act and the Divorce Act. In order to determine the best interests of the child, the Court must consider the child’s physical, emotional and psychological safety, as well as the child’s security and well-being.
In this case, the Court also considered the child’s views and preferences. The Court found that the child was aware that his mother was dying and that she wanted to see him. However, he stated that he did not care if she was dying and had no interest in spending time with her. He said he felt “disgusted that she would be making him feel bad” about the situation. He also told the Court that he would refuse to go visit his mother, even if ordered to do so by the Court. The Court found that the child clearly expressed his feelings and it respected them.
Child’s views are not determining factor; Court orders visit with mother
The child’s views on the issue are not the only factors for the Court to consider. The Court also assessed the child’s overall needs, age, stage of development, and need for stability. While the child was clear when expressing his feelings on the situation, the Court also highlighted the fact that the child was only 12 years old and was not an emotionally mature adult. Specifically, the Court wrote that:
“He does not, and cannot be expected to, have any insight into the complexities of arriving at the truth in high conflict situations or the importance of forgiveness and reconciliation. While I do not believe he will be able to reconcile his feelings of hostility towards his mother through a visitation at her deathbed, and in fact I expect it may take years for this child to heal emotionally, I find that for the sake of his long term emotional and mental development, it is in his best interests to see, speak to and listen to his mother at least once before her death.”
Despite the child’s clear desire not to see his mother, the Court ordered that he see his mother once, for one hour, while in the presence of his father.
The Family Lawyers at Feigenbaum Consulting Help Families Resolve Complex Parenting Issues
The experienced family law team at Feigenbaum Consulting, led by Mark Feigenbaum, assists clients with a wide range of family law matters, including divorce, child support and division of property. We provide each client with advice and guidance tailored to their unique situation. If you have questions regarding a family law issue, contact us online or by phone at 1-877-275-4792 to speak with a member of our family law team.