The Left Behind Parent - Accelerated Return to Parenting care
"In the absence of family violence, or other just reason, the removal or withholding of children from the left-behind parent speaks to the need for an accelerated return to a normative parenting schedule, not a delayed return. The parenting deficits created by the removal of a supportive, previously stable relationship must be ameliorated, not extended." - McGee J in Bansal v. Kelly, 2022 ONSC 7049.
The Principle
The child's best interest is the paramount consideration in deciding custody and access disputes. The change in living arrangements arising from parents separating from each other can be difficult for the entire family and particularly the child, especially in high conflict matters.
A positive co-parenting relationship between separated partners is of great value to the physical and emotional well-being of a child. Unfortunately, in some cases, the parental conflict or misgivings escalates into a removal of the child from the care of the one parent by the other, or a significant diminishing of a previously robust and positive parental involvement. The parent from whose care the child is removed may be described as the "left behind parent".
There is a common argument that if a child has been removed from the care of a parent for extended periods, reunification should be slow and gradual. This is not always the case and the Court disagreed with this approach in Bansal v. Kelly, 2022 ONSC 7049. [Bengal v. Kelly], which matter involved very young children.
The Facts
In Bengal v. Kelly, the children’s access to their father had been interrupted for several months, post separation. The Applicant father filed an interim motion seeking equal parenting time. Both children were under the age of 4 and then living with the mother. The Respondent mother’s submissions relied heavily on a view that the children are unaccustomed to spending time with their father, and that any contact should be gradual and expanded slowly. The Court reviewed the living arrangements of both parents, the availability of a grandparent (paternal) to help with child care, employment status, and accusations of intimate partner violence. (in this case, there was no evidence supporting the accusation of family violence).
One concern that the court took into consideration was the abrupt removal of the children from their home in Brampton to the Respondent’s mother’s home in Prince Edward Island.
Prior to their relationship ending, the Applicant and Respondent had a house in Brampton. The Applicant purchased the Respondent’s interest in the home, leaving the latter with $100,000. However, the Respondent claimed that she has found it difficult to return to work and purchase permanent residence in Ontario. She also did not indicate that she is under any disability or inability to return to the workforce in Brampton where she was previously employed. Upon her return to Brampton, she moved the children around from various Airbnbs, hotels, and family shelters.
Both Applicant and Respondent had family that could provide child care support in their roles as grandmothers.
The Ruling
The Court found that the Applicant was able to provide child care with the support of his mother, during his work hours. The unilateral removal of the children from his care for prolonged periods was found to be inappropriate and not in the children's best interest.
The Court ordered a robust parenting schedule for the father including a 5 day stretch of access on week one and two days access on the alternating week, culminating to 7 days access on a biweekly basis. The mother’s request for a more gradual and alternate weekend schedule for the father was dismissed.
Our Thoughts
Parenting time offers children the opportunity to receive the love, care and guidance of their parents (even after separation) and this should not be undermined except for serious and just cause. Attempting to set a new status quo on parenting by unilaterally imposing and/or changing access schedules that result in considerable exclusion of a previously involved parent will likely be frown upon by the Court, with implications to claims made in family court.