As a young lawyer, Lorne MacLean QC successfully acted for the mother in the Supreme Court of Canada case of Young v. Young, which became and remains the leading authority on how to properly decide child custody and child access disputes. The court determined that the test for discussing access is the best interests of the child and the endorsed the principle of maximum contact so long as it was in a child’s – not a parent’s – best interests. The focus is on parental responsibilities not rights. When a court has saftey concerns it can order supervised child parenting contact and access. When is this appropriate?
Maximum Contact To Parents As Is In Child’s Best Interests
The Supreme Court of Canada in Young v Young [1993] 4 S.C.R. 3 acknowledged that it is in the best interest of the child to consider both the child’s and parenting capacity perspectives in deciding custody and access arrangements.
[143] In making a determination as to the best interests of the child, courts must attempt to balance such considerations as the age, physical and emotional constitution and psychology of both the child and his or her parents and the particular milieu in which the child will live.
However, when it comes to situations where a parent’s demeanour and actions show poor judgment, deficient parenting capacity or are inexcusably unscrupulous and concerning, the court may have no choice but to order supervised child access also called supervised child contact.
Rules For When Supervision Is Appropriate
In the F.K. v. M.K. 2012 BCSC 563, the Plaintiff father was seeking sole custody of the child. Yet his actions, words, and general disrespectful behaviour led to the court giving sole custody to the mother and ordering supervised access even though he had unsupervised access before.
In paragraph 147, the court relied on V.S.J. v. L.J.G., outlining the factors that are commonly considered in courts in terminating access:
- Long term harassment and harmful behaviours towards the custodial parent causing that parent and the child stress and or fear.
- History of violence; unpredictable, uncontrollable behaviour; alcohol, drug abuse which has been witnessed by the child and/or presents a risk to the child’s safety and well-being.
- Extreme parental alienation which has resulted in changes of custody and, at times, no access orders to the former custodial parent.
- Ongoing severe denigration of the other parent.
- Lack of relationship or attachment between noncustodial parent and child.
- Neglect or abuse to a child on the access visits.
- Older children’s wishes and preferences to terminate access.
In the decision, the court confirms that while it is important for a parent to have access, the safety and security of the child are of utmost importance.
[154] What the plaintiff also failed to understand is that his visible disrespect—one could say visible hatred—for the defendant and her family, will be harmful to the child’s emotional development. The child needs to grow up respecting both parents and their families.
Remember these cases require experienced counsel when parents cannot agree on what is in the best interests of their children. Contact us if you have concerns over the mental or physical safety of yourself or a child.
