Getting in, getting out: when is an order for supervised parenting time appropriate?

• by Lesley Singer

Originally published in the OFLM 2024-05 edition

Overview

Through a review of recent case law, this article identifies the factors courts consider when determining if supervised parenting time is necessary or if a different remedy (such as a no contact order) is more appropriate. This article further examines judicial approaches to transitioning into unsupervised parenting time and the importance of neutral, third-party evidence in making that determination. Past mental health concerns alone will not suffice to prolong an order for supervised parenting time, reflective of the court’s evolving attitude towards reducing the stigma associated with mental health.

Introduction

A court may order supervised parenting time as a short-term solution to exceptional circumstances, notably where one parent’s relationship with their children is fragmented or there are threats to the other parent’s well-being.

Supervised parenting can take different forms. Typically, where safety concerns are not at issue or are less serious, family members or neutral non-related third parties may be ordered by a judge to supervise a party's parenting time. However, more formal and structured conditions are required in high-conflict cases, where it is appropriate for companies such as Brayden Supervision Services (“Brayden”) to provide supervised parenting time. These may take place either at designated centres or at the parent's home (Bala et al., “Supervised Access as a Stepping Stone Rather than a Destination: A Qualitative Review of Ontario Services & Policies for Assisting Families Transitioning from Supervised Access”, 2016 CanLIIDocs 4597).

It is well-established law that the test for appropriate parenting time arrangements, including whether to order supervised parenting time, is predicated on the child’s best interests. Pursuant to s.24(2) of the Children’s Law Reform Act and s.16(2) of the Divorce Act, when making a parenting order, courts must give primary consideration to the child's physical, emotional and psychological safety, security and well-being.

With this mandate, when making an order for supervised parenting time, courts look to various factors concerning the physical and mental safety, stability and wellbeing of the child (Karimi v. Kyron, 2024 ONSC 2043). If available, evidence from the Office of the Children’s Lawyer or the parenting time supervisor’s notes are generally probative when determining whether the supervision remains necessary.

Courts are alert to the artificial conditions under which supervised parenting typically occurs, and so, as will be explored in the case law below, the prevailing jurisprudence treats supervised parenting time as an exceptional remedy.

Getting in: Court Considerations for Supervised Parenting Time Orders

It is understood that the best interests of the child are, with few exceptions, realized through a stable and loving relationship with both parents (A.(M.) v. D.(J.), 2003 OJ No 2946). Further, as supervised parenting time is "a great intrusion into the relationship between a child and parent… its continued imposition must be justified” (Young v. Hanson, 2019 ONSC 1245, at para. 32).

A judge will only make an order for supervised parenting time when it is absolutely necessary and accordingly, the parent seeking an order for supervised parenting time bears the burden of establishing that necessity (W.H.C. v. W.C.M.C., 2021 ONCJ 308; Klymenko v. Klymenko, 2020 ONSC 5451).

This begs the question: under what circumstances will a court find that supervision is necessary?

A helpful starting point is provided by Justice Pazaratz in Izyuk v. Bilousov, 2015 ONSC 3684. On a motion for security for costs, his honour states:

Supervision may be an intermediate step in certain situations such as:

a.     Where there are substance abuse issues which need to be addressed.

b.     Where the child requires protection from physical, sexual or emotional abuse.

c.      Where there are clinical issues involving the access parent.

d.     Where the child is being introduced or reintroduced to a parent after a significant absence (at para. 53, emphasis added).

Izyuk was a highconflict case concerning an Applicant mother who was a serial litigator with multiple unpaid cost orders, including from trial, at which supervised parenting time was imposed. The rationale for ordering supervised parenting time in this case was that the mother was also a reckless alienator. She had lied routinely in her affidavits and to the OCL social worker, and her trial testimony was fraught with falsehoods. Further, she had made repeated attempts to isolate the father from the child’s life.

On a previous emergency motion, Justice Pazaratz held that there was “good reason to fear the Applicant intended to abduct the child out of the country, as a result of her continuing preoccupation with gaining full control and excluding the Respondent from the child’s life” (Izyuk v. Bilousov, at para 15). Given this, Justice Pazaratz made a temporary order for the mother to have fully supervised parenting time. This order continued at the trial as a final order.

This indicates that, in addition to the list enumerated by Justice Pazaratz, a flight risk and non-stop parental alienation are good reasons to order supervised parenting time.

Similar extreme circumstances will give rise to the level of necessity required to make an order for supervised parenting time. In a more recent case, B. v. B. (2023 ONSC 3336), Justice LeMay ordered that the Respondent father’s parenting time be supervised for two of the three children of the marriage (given the age of the eldest child, Justice LeMay was satisfied to leave it up to him to have contact with his father).

Drawing upon the factual underpinnings of an OCL report, Justice LeMay remarked that parenting time at a supervised access centre was necessary for a multitude of reasons, including:

  • accusations and admissions of physical violence towards the children,
  • repeatedly disparaging the Applicant in the children’s presence, and
  • involving the children in conflict between he and the Applicant.

The Respondent’s parenting skills required “a complete reset” and supervised parenting time was the appropriate avenue to try and accomplish this (B. v. B, at para. 109).

Where supervised parenting time is not appropriate

  1. Lack of necessity

Supervised parenting time is not appropriate in two scenarios. The first, of course, is when the concerns do not rise to the level of necessity. After all, supervised parenting time is conceived best as a “last resort where there is risk of harm to the children that cannot be addressed in any other satisfactory way.” (Kohli v. Thom, 2021 ONSC 927 at paras.29-31).

For example, in Pereira v. Berezovsky (2024 ONSC 1862), while the Applicant was regularly combative, abusive and uncooperative towards the respondent, Justice Kraft ordered that parenting exchanges taking place at the police station was in the best interests of the child as opposed to supervised parenting time.

  1. More serious intervention required

Secondly, in the most serious of circumstances, a no contact order is the most appropriate remedy, rather than supervised parenting time.

The principles for determining when no contact order may be appropriate over supervised parenting time were articulated in Armstrong v. Coupland (2021 ONSC 8186) and subsequently cited with approval in Gill v. Gill (2023 ONSC 5882), including:

  1. Following a period of limited or no access (due to the parent's actions), where the parent provides no evidence that they can control their violent action, a termination of contact may be necessary. The potential for violence could lead to fearful consequences with respect to the child(ren) or the other parent.
  1. To deny access to a parent is a remedy of last resort.

  1. Terminating access may be required where there is a history of long term harassment and harmful behaviours towards the custodial parent causing that parent and the child stress and or fear.
  1. Ongoing severe denigration of the other parent may warrant no contact or supervised access.

  1. While supervised access is seldomly an indefinite or long-term solution, it should always be considered as an alternative to a complete termination of the parent/child relationship (at para. 125).

Getting Out: When Should a Supervised Parenting Order Be Lifted?

As put by Justice Abella: “Supervised [parenting time] is designed to provide a temporary and time-limited measure, to resolve a parental impasse over access, rather than provide a long [term] solution” (M. (B.P.) v. M. (B.L.D.E.), (1992), 1992 CanLII 8642 (ONCA) at para. 80).

While supervised parenting isan effort to repair the parent-child relationship, in some circumstances it may hinder the very thing that it sets out to remedy. As an intrusive measure, supervision restricts the parent’s ability to manage and organize his or her parenting time. Once again, it falls upon the party who wants supervised parenting time to show that it remains as necessary (Karimi v. Kyron).

In the context of the facts in Karimi, Justice Des Rosiers describes some factors for court consideration when determining whether supervision conditions should be modified or lifted that may be generalizable:

  1. the child's right to have a meaningful relationship with both of her parents and a relationship with her grandparents,
  2. safety concerns, both physical and health-related,
  3. the capacity to the parents to co-operate and communicate about her needs,
  4. the ability of the parents to place the child's needs ahead of their own needs…
  5. their ability to adhere to rules established by the court (at para. 48).

In Karimi, the Applicant argued that the Respondent's anger and control issues, his irreverence for the judicial process and his child health concerns necessitated continued supervision, which Justice Des Rosiers agreed with.

a.Not solely for purposes of providing comfort custodial parent

Supervised parenting time will not be extended if the sole purpose of doing so is to provide the custodial parent with a sense of comfort; rather, there “needs to be evidence of a serious concern” (Karimi v. Kyron at para. 49, citing Lewis v. Lewis, 2005 NSSC 256).

b.Importance of OCL reports and supervision notes

When determining whether a supervised parenting order should be maintained, courts look primarily to third-party supervision notes, as well as OCL reports and CAS observations, if applicable. To transition out of supervised parenting time, the evidence should indicate that the parent has taken strides to repair the parent-child relationship and has shown improvements in doing so (Karimi v. Kyron).

Adding to this, lawyers should consider providing a roadmap for how and when supervision can be lifted.In Karimi, Justice Des Rosiers gave ample weight to an OCL report, which recommended that the Respondent’s supervised parenting time continue, given the parents’ poor communication skills and the child’s young age. Disputing the OCL’s findings, the Respondent failed to provide any sort of roadmap to prove his ability to parent the child without requiring supervision. In response, Justice Des Rosiers stated that a “roadmap toward [the] termination [of supervised parenting time] should be provided in light of the Court’s concerns” (at para. 51).

Gerasimopoulos v. Sambirsky (2024 ONSC 2368) is a recent decision where Justice Kraft ordered that unsupervised parenting time was in the children’s best interests. In the facts, the Respondent father had been diagnosed with Bipolar 1 Affective Disorder (“Bipolar”) and, after having experienced a manic episode in front of the children, supervised parenting was initially ordered by Justice Diamond in 2020.

Through a series of events (and litigation), the Respondent continued to exercise his parenting time in a supervised manner. This includes a June 2023 incident where, during a manic episode, the police arrived at the scene and had to break the door down in front of the children.Despite this, the children maintained a comfortable, loving and caring relationship with their father, per the supervision notes from Brayden and CCAS observations. Further, since the June 2023 incident, the Respondent had been successfully managing his mental health.

A significant turning point in Justice Kraft’s decision in Gerasimopoulos was the inclusion of a comprehensive safety plan drafted by the Respondent's treating psychiatrist. This safety plan accounted for the possibility of the children witnessing another manic episode, setting out how to mitigate any harms to them.

The Applicant did not accept the terms of the safety plan, nor unsupervised parenting time, because of her concerns of the future state of the Respondent's mental health. In response to these concerns, Justice Kraft makes a striking statement against the Applicant's position and against applying a broad-stroke approach to continue a supervised parenting time order at para. 2:

I do not agree with [the Applicant] that the children require such significant protection to the point of full supervision whenever they are in the presence of their father because he may have a potential future manic episode… To make an order for supervised only parenting time for [the Respondent] as suggested by [the Applicant] would mean that this Court is being swayed by a stereotype that a parent with an episodic mental health condition is unfit to parent a child on his or her own…

Once again, supervised parenting orders cannot be a mere band-aid to the other parent’s concerns. Where mental health concerns have already necessitated a supervised parenting order, courts should take a sensitive approach giving “mental health the attention it deserves” to reduce the “stigma associated with Bipolar” (Gerasimopoulos, at para. 107).

Conclusion

Supervised parenting time is an exceptional and temporary remedy that courts will only make an order for when it is necessary to repair the parent-child relationship or evaluate risks that may be present.

It continues to be ill-suited for prolonged periods of time, and in the most extreme of circumstances, a no contact order is the more appropriate measure that courts will order.

Providing the courts — and the opposing party — with a detailed, professionally-drafted safety plan or roadmap may be an effective strategy for transitioning out of supervised parenting time.

Finally, when relevant to the considerations of ordering supervision, courts should take a sensitive, de-stigmatizing approach to mental health diagnoses.