Fair isn’t always Equal

By Valerie L. Brown of Brown Law Firm Professional Corporation

The recent Ontario Court of Appeal Case of Browne v. Browne at first glance does not seem remarkable; it is a short decision with an obvious result.  What is remarkable is that the issues raised in the case were advanced at all.

In this case, the parties,  who had been separated for several years, shared custody of their two children.  The Mother wished to take the children to Mexico for March Break to visit with her parents.  The Father, who did not appear to otherwise have any plans for the children over the holiday, opposed the trip on the grounds that it was “his time”.

The Motion’s Judge gave the Mother permission to take the children.  He also gave her permission to travel with the children for up to 14 days without the Father’s permission in the future, while continuing to require the Mother’s permission for ANY travel outside of Canada with the Father.  Of course, the Father felt this seemingly unequal treatment was unfair and biased.

The Father’s behaviour reflects at least one common, and pervasive, attitudinal mistake:  that parenting time belongs to the parent.

Access is the “Child’s Time”, not the “Parent’s Time”

The mistake this Father made was to view the children’s scheduled time with him as “his time” rather than the “child’s time”.

The United Nations Convention of Rights of the Child grants children the right to have access with their parents under Article 9(3).  There is no similar right granted to parents, only that access will be determined in accordance with a child’s best interests.

The Ontario Court of Appeal in MacGyver v. Richard confirmed that, “it is the child’s right to see a parent with whom she does not live, rather than the parent’s right to insist on access to that child”.

The starting point for questions about access, which includes holidays, is to view such issues from the child’s perspective.  The Ontario Superior Court of Justice recently warned that, “the lens through which the issues of custody and access must be approached is not from the perspective of the parent claiming these entitlements, but rather from the standpoint of the child.”

In this case, the Father’s rigid approach to parenting would result in lost opportunities to the children, and time with extended family.  His decisions seemed focussed on the conflict between him and the Mother, without consideration of the children at all.  Ultimately, this “reflexive rigidity” resulted in the Court removing the requirement that he consent to such travel in the future.

While the permission requirements for travel under the new Order treat the parents differently, they actually serve to level the playing field for the parents based on their behaviour;  the Mother had not withheld her permission for the Father to travel with the children, and the new Order prevented the Father from arbitrarily withholding his consent, as he had been doing.

Unfortunately for the children, the Father’s Appeal of the Order likely resulted in them missing the trip to Mexico this year anyway.

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