A report by the Office of the Children's Lawyer constitutes a material change in circumstances
The Ontario Superior Court of Justice has issued an order granting a father unsupervised parenting time despite his previous conviction of assaulting his daughter.
In Hunt v. Hunt, 2023 ONSC 5411, the parties, Christopher and Laura Hunt, were married in 2013 and separated in 2021. They have two children, Holly and Rowan. In May, Christopher was found guilty of assaulting Holly for an incident where he squeezed her arm, causing bruising. He was sentenced to 18 months' probation.
Christopher brought a motion before the Ontario Superior Court of Justice, requesting that a temporary without prejudice order be varied to increase his parenting time and allow unsupervised parenting time. Laura opposed the motion, arguing that there had been no material change in circumstances and that allowing unsupervised parenting time would not be in the children's best interest, especially given the father's recent conviction of assault on their daughter.
In a motion filed in February by Christoper, he sought unsupervised in-person parenting time. The judge made a temporary without prejudice order "which may be revisited once better information, particularly from the OCL [Office of the Children's Lawyer], is available."
In July, an OCL clinical investigator issued a report recommending continued supervised parenting time with a gradual increase in frequency and the eventual goal of having two overnights "after criminal court resolves."
Laura argued that the fact that the OCL clinician filed her report did not constitute a material change in circumstances. However, the court disagreed with her argument, finding that a material change in circumstances met the requirements of the Divorce Act.
The court explained that before it could make a variation order in respect of a parenting order, it must satisfy itself that there had been a change in the circumstances of the child since the making of the order. The court requires compelling reasons to depart from the status quo.
The court noted that if a party wishes to rely upon the recommendations in an assessment report to change the status quo, the court must exercise caution. However, the court also said there is authority stating that the evidence in an assessment report may be relied upon if it is sufficiently compelling to warrant a change in status quo or previous order. The court found that the filing of the OCL report constituted a material change significant enough to re-examine the children's best interest pending trial.
The court emphasized that under the Divorce Act, in making or varying a parenting time order, only the children's best interests need to be considered, with primary consideration to the children's physical, emotional, and psychological safety, security and well-being.
The court noted that in the criminal proceedings for the assault charge against Christopher, the judge acknowledged several important mitigating factors, such as the fact that Christopher is a first offender, that the offence consists of a single isolated incident, that the incident was of a short duration, that Christopher had been misdiagnosed with a mental health illness and prescribed medication which may have contributed to his behaviour at that time, and that Christopher had expressed remorse. The judge also noted that he had taken significant steps to address his mental and parenting skills successfully.
The Superior Court considered the observations of the OCL clinician in her report, that "Holly, Rowan appeared to be very comfortable with Mr. Hunt. Mr. Hunt remained calm and in control throughout the visits," and that "Overall Mr. Hunt's visits were respectful, positive interactions were noted, and the children were receptive to Mr. Hunt's directions and discipline."
Given the circumstances and evidence, the court granted Chistopher's motion. The court said that while his goal is to eventually ask the court for shared parenting time with Rowan and Holly, the court found that he also proposed a slow and progressive schedule, which shows that he is attuned to the children's needs given their young age. The court also said that Christopher's proposal showed that he was willing to allow Laura time to rebuild some trust so that she could be more comfortable.
The court noted that Christopher had 68 supervised visits with the children, all positive. However, Laura still took the inflexible position of simply seeking a dismissal of the father's motion with costs without making any proposal that would address the children's needs concerning their relationship with their father.
Ultimately, the court issued a temporary order allowing the father parenting time without supervision.
