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Case Briefs

SW v PW

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FactsEdit

The father of a child is bringing an application for enforcement of an access order and specified access. The original access order was very vague; granted "reasonable access ... at the discretion of [the mother]". The mother refused access claiming he was violent and abusive as well as inconsistent and irresponsible in his exercise of access. She alleges that their child was sexually abused while visiting her father and that he was unconcerned and unresponsive to the allegation. When the application was brought the child had not seen or heard from her father in over a year.

IssueEdit

  1. Should the access order be enforced?
  2. Should an order for specified access be granted?

DecisionEdit

Access order deemed unenforceable, application for specified access granted.

ReasonsEdit

Levy quickly dispenses with the issue of access, holding that the terms of the access order make enforcement next to impossible due to the discretion granted to the mother, so he turns to the application for specified access. Upon reviewing the caselaw, he holds that access is the right of the child, not the right of the parent; the parental right to access exists ultimately for the welfare of the child. The test for access is the same as in all matters involving children, the child's best interests. The maximum contact principle in s. 16(10) of the Divorce Act clearly indicates that Parliament intended parents to have access to their children. The presumption in favour of access is, however, rebuttable. The burden is not on the parent requesting access to show benefit, but rather on the custodial parent to demonstrate that harm would occur from unsupervised access. There is also no connection between access and support; paying support does not necessarily guarantee access.

Turning to the case at bar, Levy remains unconvinced that terminating access is in the child's best interests, finding no "exceptional circumstances". The father's life is more stable and has a wife who seemed reasonable at trial. As a result, he orders specified access.

RatioEdit

  • There is a strong, but rebuttable, presumption in favour of regular access.
  • Burden is on the custodial parent to demonstrate that access is not in the best interests of the child.

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