“That the mother would be reluctant to allow her children to spend more time with a man who betrayed both her and the community’s trust by committing an armed robbery is understandable. There is also evidence that the father’s access to date has not been without its problems and that he has difficulty controlling anger.
That said, I find the position taken by the mother to be somewhat contradictory; she says that because the father had planned the bank robbery for several weeks in advance, she does not accept his evidence that he did it because he was having a mental breakdown. At the same time, the mother says that she is concerned that the father may have a mental breakdown when the children are with him.
There is a presumption that regular access by a non-custodial parent is in the best interests of children and the right of children to visit with a non-custodial parent and to know and maintain or form an attachment to a non-custodial parent is a fundamental right. (Montgomery v. Montgomery (1992), 1992 CanLII 8642 (ON CA), 59 O.A.C. 19, 97 D.L.R. (4th) 437, 42 R.F.L. (3d) 349, [1992] O.J. No. 2299, 1992 CarswellOnt 295 (C.A.))
There are good reasons to increase this father’s access to the children. The father was very involved in the upbringing of the children before he was incarcerated. For a time, he was at home with the children while the mother worked. The father has submitted evidence that he is now gainfully employed and that his mood has been stable. The father is living with his mother at present, which means that if the children were to have increased access to him, they would frequently also have increased access to a member of their extended family; they would also have twice the amount of adult attention.
There was no evidence before me to support the mother’s submission that the grandmother has mental health issues that would affect her ability to spend time with and help care for the children.
I acknowledge that there is an unfortunate level of animosity between the mother and the grandmother. The father’s crime divided camps, damaged relationships and took a heavy toll on those around him. It does not mean, however, that his children should be deprived of the opportunity to spend more meaningful time with him.
I am also not concerned that appropriate space could not be found in a two-bedroom apartment for two young children to sleep overnight.
The mother expressed concern about overnight access visits on school nights, given the distance between the children’s school and the grandmother’s home. There was no evidence before me about the distance between the school and the home but so as not to set up an access schedule for potential failure, overnight access on school nights will be avoided at this time.”