“Additional guidance about supervision or termination of parenting time is provided by VSJ v. LJG 2004 CanLII 17126 (ON SC), [2004] O.J. No. 2238 (S.C.J.) (Blishen J.).
In that case, the court was considering whether a final order for supervised parenting time or termination of parenting time was in a child’s best interests. The court stated, at para. 128,
There is a presumption that regular access by a non-custodial parent is in the best interests of children. The right of a child to visit with a non-custodial parent, to know and maintain or form an attachment to a non-custodial parent is a fundamental right and should only be forfeited in the most extreme and unusual circumstances. To deny access to a parent is a remedy of last resort.
The court reviewed the case law and found that the factors most commonly considered by courts in terminating parenting time were:
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- Long term harassment and harmful behaviours toward the custodial parent causing that parent and the child stress and 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 non-custodial parent and child,
- Neglect or abuse to a child on the access visits,
- Older children’s wishes and preferences to terminate access.
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The court noted that none of the cases reviewed dealt with one factor alone. In every case, there were a multitude of factors which had to be carefully considered and weighed in determining whether to terminate parenting time was in the best interests of a child.
The court continued, at para. 137,
As the termination of access is the most extreme remedy to be ordered in only the most exceptional circumstances, the court must carefully consider the option of supervision prior to termination. 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.
The court noted, at para. 138, “Supervised access is seldom viewed as an indefinite order or long-term solution…There may be occasions, however, where medium or longer term supervised access is in the child’s best interests.”
The court then quoted Professor Martha Bailey’s article “Supervised Access: A Long Term Solution?” 37 Family and Conciliation Courts Rev. 478 (October 1999), wherein she said, at p. 480,
The issue of whether long term supervised access is in the best interests of the child must be determined on a case by case basis, taking into consideration all circumstances relevant to the best interests of the child. The question then is whether there are any circumstances under which long term supervised access will be in the best interests of the child, even where unsupervised access is not a future option.
The court continued, at para. 140,
In my view, supervised access, whether short, medium or long term, should always be considered as an alternative to a complete termination of the parent/child relationship. Clearly, if there has been an attempt at supervised access which has proven unworkable, such as where the access parent continually misses visits or is inappropriate during the access then termination must be considered…If the purpose of supervised access is for the access parent to attend treatment or counselling and there is a refusal or unwillingness to follow through, then, to continue supervised access may not be a viable option.
The court also stated, at para. 149, “Although supervised access can continue on more than just a short term basis, it is never a permanent solution to access problems.”