The parties commenced their relationship in 1984 and were married in 1987. They had two children as well as a child from a previous relationship. The parties separated in 1989. Pursuant to a consent order the husband was granted supervised access to the children. The husband subsequently made harassing telephone calls to the wife, there were incidents during the supervised access which led the mother to fear that the children would be hurt if access continued. The wife alleged that the husband was abusive towards her and the children throughout the relationship.
The wife brought an application in Family Court to terminate the supervised access and the husband responded by bringing an application for supervised access. The report of the assessor stated that the children were not afraid of their father, but the mother was terrified. The Family Court judge allowed the wife's application and dismissed the husband's application, concluding that supervised access should not be granted as it was not in the best interests of the children. An appeal to the Supreme Court was allowed, the judge concluding that the trial judge erred in failing to give effect to the presumption that access by both parents is beneficial to the children and in failing to place the evidentiary burden on the wife to prove that access would be harmful to the children. The wife appealed to NSCA.
- Should the father's supervised access be terminated.
Appeal allowed; decision of Family Court judge restored.
Pugsley, writing for a unanimous court, held that the decision of the trial judge showed no manifest error in reasoning and should be entitled to a significant degree of deference, especially as the parties had trouble making themselves understood in English. The Supreme Court judge overemphasized the principle of maximum contact; contact with each parent will usually promote the balanced development of the child, but this should not be subordinate to the principle of the best interests of the child. It was not necessary for the appellant to establish that supervised access would be harmful to the children, she need merely demonstrate that it would be in the best interests of the child to eliminate supervised access.
The trial judge's findings indicate that the father's behaviour is violent and unpredictable - to a degree that even supervised access would not be in the best interests of the children. The appellant's mother had previously supervised access but had been screamed and and pushed by the father.
All of the evidence taken together weighs in favour of no access. The father was likely to abuse the access situation and there was little to be gained for the children. This decision also favours the wishes of the custodial parent (re: Gordon).
- In all but the most extreme circumstances, parents are entitled to at least supervised access.
- If the custodial parent wishes to prevent access, they do not need to demonstrate the access would be harmful to the children, merely that it would not be in their best interests.