In the recent case of J.J.T. v. J.A.S. BC supervised child access was ordered and the court set out a list of factors to be considered as well as the legal test for ordering BC supervised child access. Clients often ask what rules determine when BC supervised child access will be ordered and for how long. BC Supervised child access under the Divorce Act, also called supervised child contact under our new Family Law Act, is an extraordinary measure put in place to protect children while still maintaining contact with a parent. It is an artificial environment that is not intended in most cases to be permanent.
BC supervised child access cases often involve high conflict and hotly disputed allegations on both sides. Cases may involve drug and alcohol abuse, physical and mental abuse, family violence issues, mental health issues, borderline personality disorders and sexual abuse allegations. When a judge hears these allegations they err on the side of caution until a more thorough investigation has been completed.
Factors Considered in Ordering BC Supervised Child Access
[41] The respondent argues, however, that the claimant is incapable of looking after the needs of the Children for the following reasons:
(a) He has had multiple run-ins with the law;
(b) Prior to the parties’ separation, he showed little interest in the day to day needs of the Children;
(c) She is still breast feeding M. M likes to be feed every 1 -2 hours and wakes up during the night;
(d) He seems to get tired and bored of the Children quickly. Parenting time he has had in the past is often cut short because he has other things to do;
(e) During his past parenting times, he made little effort to interact with the Children, preferring instead to sit on the couch, talk on his phone and text. He does not read J. stories or play with him;
(f) He is not patient or inclined to take care of the Children when he is preoccupied by other matters or if he is having a bad day;
(g) He has shown a lack of interest when it comes to the Children’s health;
(h) He has shown that he is unaware of the Children’s schedules;
(i) He has ADHD so he is unable to focus on a single task and is easily distracted; she is concerned that he may stop taking his medication as he has in the past;
(j) He started using steroids in March or April 2014 and was using them at the beginning of the summer when he became rude, mean and bad-tempered.
(k) His friends, family members and current girlfriend are unsavory;
(l) He has been unreliable in attending scheduled parenting time in the past;
(m) He has no fixed or predictable work schedule;
(n) He has engaged in acts of family violence in front of the Children and has assaulted the respondent in the past;
(o) He has threatened to kill one of the respondent’s friends and her horses.
Best Interests Of The Child Require Courts To Protect Children From Risk Of Harm
[42] In making an order respecting guardianship, parenting arrangements or contact with a child, the court must only consider what is in the best interests of the child: s. 37(1) FLA.
[43] In making that determination, all of the Children’s needs and circumstances must be considered, including those enumerated in s. 37(2)(a)-(j) of the FLA. The overarching consideration is the physical and emotional safety of the Children.
[44] While the allegations the respondent makes against the claimant remain unproven and are disputed by the claimant, I have determined that the risk of violence or harm to the Children should he have unsupervised parenting time with the Children is present and cannot be taken lightly. That risk is not so much related to the claimant harming the Children, but, if the respondent’s allegations prove to be true, the potential, and perhaps unintentional, consequences of the claimant continuing to engage in criminal activities.
[45] The principles of supervised access were discussed by Griffin J. in F.K. v. M.K., 2010 BCSC 563, citing V.S.J. v. L.J.G., [2004] O.T.C. 460 (S.C.J.) at para. 137:
...It is possible through a supervision order to do the following: protect children from risk of harm; continue or promote the parent/child relationship; direct the access parent to engage in programming, counselling or treatment to deal with issues relevant to parenting; create a bridge between no relationship and a normal parenting relationship; and, avoid or reduce the conflict between parents and thus, the impact upon children.
[46] At para. 143 of V.S.J., the court stated that when terminating or restricting access, it is necessary for the court to weigh and balance numerous factors in the context of the child’s best interests including:
1. The maximum contact principle;
2. The right of a child to know and have a relationship with each parent;
3. A limitation of a consideration of parental conduct to that conduct which impacts on the child;
4. The risk of harm: emotional, physical and sexual;
5. The nature of the relationship between the parents and its impact on the child;
6. The nature of the relationship and attachment between the access parent and the child; and,
7. The commitment of the access parent to the child.
[47] Supervised access generally requires evidence of exceptional circumstances as it is just one step away from a complete termination of the parent-child relationship: F.K. at para. 147 and V.S.J. at para. 1.
[48] Though the above cases were decided under the former Family Relations Act, R.S.B.C. 1996, c. 128, the case of Q.B. v. W.I.M., 2014 BCSC 219 makes it clear that the same principles apply in the context of theFLA, which has a new focus on the issue of family violence and a mandate to protect the child emotionally and psychologically (at para. 49).
[49] I have considered and weighed these factors.
[50] I am satisfied on the evidence that, on an interim basis and until the issue can be fully canvassed at trial, it is not in the Children’s best interest that the claimant have unsupervised parenting time with them. The risk to them is such that an order imposing supervised access is required. Even if the likelihood of the risk of harm is low, the Children’s safety is the paramount consideration. I adopt the words of Barrow J. in Dawson v. Dawson, 2014 BCSC 44:
[45] Dealing with the latter point first, the earlier act of violence in this case was extremely serious; indeed, it was potentially lethal. Given the protective purpose of orders under Part 9 of the Family Law Act, it is reasonable in my view to apply what might be termed a sliding scale to the threshold. The potential for very serious acts of violence is sufficient to engage the provisions of the Act, even if those acts of violence are, in absolute terms, not particularly likely.
[51] Supervised access will protect the Children from harm but allow the claimant to continue to develop a relationship with them and give him the opportunity to take the necessary steps to create a safe environment for the Children.
If you or a loved one require a BC Supervised Child Access Order or are unfairly being accused of behaviours that put you at risk of having only BC Supervised Child Access you need to take immediate action by calling us immediately at 1-877-602-9900.
