I have had clients in the past come to me with this question wondering if they could use the behaviour of their former spouse as evidence that custody or access should be limited as a result of their actions. While this could be true, generally it will only matter where those actions have an effect on their ability to parent the child.
Let’s look a little closer at what this actually means.
First, we need to have a refresher on the “Best Interests of the Child” under s. 24(2) of the Children’s Law Reform Act (“CLRA”). From here, we can now look at how past conduct of a spouse may be factored into that list under s. 24(2).
24(3) of the CLRA shows us that past conduct can be considered but ONLY in relation to custody or access and ONLY THEN in accordance with s. 24(4) of the CLRA. The language in these sections identifies that the conduct will be considered only if the conduct is relevant to the person’s ability to act as a parent (s. 24(3)(b)), and also if there was violence or abuse against the spouse, parent of the child, member or persons’ household, or any child (s. 24(4)).
Keep in mind that anything done in self-defence or to protect another person does not fall under this category of violence or abuse mentioned above (see. S 24(5)).
The Divorce Act (“DA”) also makes mention of these issues under s. 16(9), where again they show that the past conduct is not relevant unless it affects the persons’ ability to act as a parent.
Let’s take adultery as an example. Somerville v. Somerville is one such case where the extra-marital affair of the husband resulted in the end of the marriage. What the court found was that the affair only spoke to the husband’s ability as a spouse, NOT his ability to act as a parent to his child. Therefore it was not a relevant consideration when determining custody or access.
Relevant Parental Conduct
When determining custody or access, courts start with relevant parental conduct to determine who the custodial parent would be and who would be entitled to access. These initial relevant considerations could include, but is not limited to:
- Who has been making the decisions for the child?
- How often does the child see each parent currently?
- Who prepares the food and clothing for the child?
- Who arranges after school activities etc?
Adjusting Terms of Access
After the initial assessment, courts will then see if the conduct of the parents should be considered to see how the terms of access might change such as: frequency, duration, supervision, overnight access, or even if access should be denied.
To support this analysis under s. 24 of the CLRA, Justice Dunn in T.(R.R.) v. T.(G.) considered the use of additional factors:
- the non-custodial parent’s acceptance of the custodial parent’s responsibility for the child’s discipline and conduct;
- the non-custodial parent’s punctuality, attendance and behaviour on access visits;
- the non-custodial parent’s attempts to keep informed of the child’s current events, health and achievements;
- the non-custodial parent’s attempts to help the child adjust to returning to the custodial parent; and
- the non-custodial parent’s sensitivity to time limitations on the visit.
Sample Case T.(R.R.) v. T.(G.)
In T.(R.R.) v. T.(G.), the father was denied access because he:
- Repeatedly showed up for visits drunk;
- Left multiple threatening messages on the mother’s answering machine;
- Acted inappropriately during his access visits;
- The children didn’t want to visit with the father; and
- The children were in a better emotional state when they did not see the father.
Here we can clearly see that the conduct of the father was directly affecting his ability to parent the children.
As a final note, I would like to point out that no parent has an inherent right to access to the child simply because they are the biological parent, nor do they have any proprietary rights or even domain over their child. See Montgomery v. Montgomery, where the court was clear in showing that no biological link should be permitted to surpass the best interests of the child.
- Somerville v. Somerville, 2007 ONCA 210,  O.J. No. 1079, 2007 CarswellOnt 1697, 36 R.F.L.(6th) 7
- (R.R.) v. T.(G.),  O.J. No. 2453
- Montgomery v. Montgomery,  O.J. No. 2299, 42 R.F.L.(3d) 349 (C.A.) (at 360 [R.F.L]
Legal Disclaimer that this is information only and not to be construed as legal advice.