It is an unfortunate yet harsh reality that the criminal justice and family law systems sometimes go hand-in-hand. Specifically, parents with a criminal record often wish for parenting time with their children or decision-making responsibility on behalf of the children. How does the court respond when a situation like this arises, and can a parent with a criminal history be successful in such arbitration?
It is generally difficult for parents with a criminal record to be granted shared or sole decision-making responsibility on behalf of their children. However, the best interest of the child will always be at the forefront of the court’s decision. If the court believes that granting decision-making responsibility to a parent with a criminal history is in the best interest of the child, a parent with a criminal history can be successful in such a matter. Courts do not come to these decisions without thorough consideration of the child’s best interest and the circumstances at hand. Furthermore, the court’s decision is guided by section 24 of the Children’s Law Reform Act.
For parents that have a criminal history, parenting time is frequently granted when joint or primary decision-making responsibility is not, specifically if it is in the best interest of the child involved. Joint and primary decision-making responsibilities are more difficult to obtain. Courts do not generally grant parents with a criminal history shared decision-making responsibility, particularly where such problems are ongoing. This is because doing so may not be in accordance with the Children’s Law Reform Act, particularly section 24, and the best interest of the child.
In Stevenson v Rose (May 14, 2001), 105 ACWS (3d) 452 (Ont SCJ), the mother was awarded sole custody of the children where the father abused alcohol, drugs, and was prone to violent acts. The father also had a criminal history for which he was incarcerated. The father was awaiting trial on an assault charge, as well. Stevenson v Rose emphasizes that ongoing criminal charges and activity likely deters courts from granting joint or primary custody to a parent with such issues.
While uncommon, joint or primary custody may be granted to parents with a criminal past despite these previous issues. Where a parent can demonstrate that they can remain free from criminal charges, a court may consider granting shared or primary decision-making responsibility to the parent. In these situations, doing so must be in the best interest of the child and in accordance with section 24 of the Children’s Law Reform Act.
In VZ v ADF,  OJ No 3448 (SCJ), the Court considered whether the parent with a previous criminal history was a good caregiver and whether they could meet the emotional, physical, social, and economic needs of the child. Pursuant to Forest v Wilson, 102 ACWS (3d) 562, if a parent with a criminal history can demonstrate that they have stable employment; an ability to financially provide for the child; a stable home environment; an active involvement in the child’s education and extracurricular activities; an ability to keep the child clean and appropriately attired; and an ability to meet the child’s medical needs, a court may be more willing to consider granting joint or primary decision-making responsibility to that parent. Primary decision-making responsibility may be granted where the other parent cannot meet the aforementioned criteria.
Furthermore, in Forest v Wilson, the court focused on the support system of parents. Where one parent can provide a number of high-quality relationships for the child with other people, such as extended family members, courts may be more inclined to grant primary or joint custody. If a parent is remarried or has a new partner, courts also consider the stability of that relationship, the relationship between the child and the new partner, and whether the new partner can demonstrate warm emotional ties and commitment to the child. Finally, Courts will consider the preferences and views of the child or children involved.
Ultimately, it is possible for courts to grant joint or primary decision-making responsibility to parents with a criminal history if the criminal activity is not ongoing, is in the best interest of the child, and in accordance with section 24 of the Children’s Law Reform Act.
At Nussbaum Law, we understand the sensitive nature of matters involving an intersection of both the criminal and family law systems. We are committed to helping our clients and always prioritize the best interest of the children involved. If you have any concerns with how a parent having a criminal history impacts potential parenting time or decision-making responsibility prospects, please contact one of our experienced lawyers for assistance.