What Ontario Family Court Thinks of Your Criminal Record

Published on 29 August 2022, 07:22:56 AM

A young Ontario father with 10 criminal convictions by 25 is the latest parent to discover having a criminal record can affect child custody and access.

Love, Abuse and Custody

When a young man’s partner and his mother got into a child custody dispute, the court took a long look at his criminal record and said, “Unh uh.” Besides a charge of partner abuse, the two-year-old’s dad had three priors for assault and one for uttering threats. He was facing robbery and break and enter charges when the case found its way to Ontario family court.

Mother Flees to Relatives

It didn’t help the mother’s case that she took the child and eloped to her relatives in PEI six days after the assault. The Ontario family court judge described her flight as an effort to help herself at the child’s and family’s expense. 

Custody Application That Started It All

The dispute was a classic tug of war between mother, father and paternal grandmother. The boy’s mother requested an interim custody order to live with her son in PEI. The couple had co-habitated there for a year before the boy was born. The grandmother and dad asked the court to declare London the boy’s usual residence.

Young Couple Struggled to Parent Firstborn

The paternal grandmother told a family court judge the couple were struggling to parent the infant in PEI. A retired school teacher and volunteer tutor with a Children’s Aid Society, she offered to help care for her grandson in London. The move was on. She encouraged the couple to find an apartment and co-signed the lease.

Helping Raise a Grandchild

Their stories took off from there. The grandmother said she cared for the boy at least two days a week, taking him to medical and dental appointments and enrolling him in speech therapy. Although not denying all of that, his mother testified her assistance was not as substantial as claimed. Mom’s allegations weren’t supported by speech therapists who assessed the boy, but never mind.

Mothering Skills Lacking, Grandmother Says

The grandmother backed up her court affidavit with evidence the mother lacked parenting skills, couldn’t manage money, hadn’t followed treatment recommendations and needed support to parent the boy. His mother couldn’t agree less. Not only was she “well able to parent the child”, she had a few complaints of her own.

Child’s Father Jumps In

Where was dad in all of this? He claimed to have cared for the boy since birth, with his mother taking over on weekends. His partner disputed it. She said not only had he not cared for the boy while they lived in PEI, but she was the fulltime, stay-at-home parent. They accused each other of abuse.

Argument Turns Assaultive

Communications came to halt on an April weekend, when police charged the father with assault after an angry altercation. A “stay away” order banning him from their apartment and being within 25 metres of his partner was introduced as evidence. She moved out, left the boy with his grandmother and asked her own family for help. Within days, the child’s mother had spirited him away to PEI.

Surreptitious Plan Fails to Impress Court

Family court questioned the secretive plan: “There is no credible evidence from the mother to explain why she failed to seek the approval of the court in London prior to unilaterally changing the child’s habitual place of residence which, on the evidence, is London.” 

Photos Tell a Different Story

Although the mother said she was perfectly capable of caring for the two-year-old, photos of the couple’s apartment told another story. The paternal grandmother testified she found the apartment in a state of “filth and squalor” when she entered to clean it. 

Best Interests of Child Prevails

As ever, family court found the child’s best interests outweighed the family feud. The judge was doubtful the mother would succeed in her motion to move the boy to PEI. Since he had a relationship with his paternal grandmother and a move would undermine that, family court agreed the boy belonged in London.

Returning Child to Habitual Home

Family disputes are difficult at the best of times. The judge gave the mother six days to return the child to his paternal grandmother. That just left the matter of custody and parenting time. The judge was sympathetic that the mother wanted primary custody, with the paternal grandmother having the boy on alternate weekends, when his father could visit. The paternal grandmother and father asked for joint custody for themselves, with access by dad twice a week and the mother during the week.

Criminal Record Affects Access and Custody

As this dad discovered, even partial custody can be hard to obtain if you have been convicted or are on bail or parole. The court put it this way, “The extent of the father’s unenviable criminal record at such a relatively young age speaks poorly to his ability to present to the child an appropriate parenting role model. The father’s criminal past is an undisputed fact….” 

Court Looks Favourably on Rehab Efforts

When a criminal record is in your child custody application, your visitation rights or ability to live with your child is in dispute. A recent or serious offence counts more with the court than a troubled youth or impulsive acts long in your past. Staying up to date with child support or spousal payments and cooperating with your ex-spouse or partner can demonstrate you understand your parenting obligations. 

All’s Well That Ends, Well

The ending wasn’t hard to predict. The mother and paternal grandmother got shared custody, splitting parenting of the little boy. Travelling to PEI in future was given a firm thumbs down for now.

Draft an Affidavit for Ontario Family Court 

Axess Law’s Ontario family lawyers help you draft affidavits for divorce court. Video conference online anywhere in Ontario, 7 days a week, day or evening, at your convenience. Experienced family lawyers meet with you in person at our Ottawa, Toronto, Scarborough, Vaughan, Etobicoke, Mississauga Winston Churchill or Mississauga Heartland law offices. Dial 1-877-522-9377 or in Greater Toronto 647-479-0118 or use our online booking form for an appointment.

Click here to learn more about Axess Law’s family law services.

Photo by Thomas Rüdesheim|Pixabay.