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by Daniel Gloade on August 6, 2013

In the decision of Duarte v. Duarte, 2013 ONSC 4835 the Honourable Justice Stevens considered a motion by the Father to have overnight access to the daughter.  The parents disliked each other and frequently squabbled in front of the daughter.

The daughter reported to the O.C.L. investigator that she did not want to have over-night visits with her Father.  The O.C.L. investigator felt that the mother was NOT coaching the daughter to say this.  The O.C.L investigator recommended that the Father have no overnight visits until the parental dispute abated and all three (parents and daughter) agreed on it.

Justice Stevens reviewed the O.C.L. Report’s contents and noted that the daughter’s reasons for not wanting over-night visits were  that she felt more secure with the Mother and  that she sensed that her Mother would not like it.

Justice Stevens concluded:

  • In general, having over-night visits with both parents benefits the child.  There needed to be a good reason why this benefit should be delayed any longer:
  • Daughter already spends a substantial amount of time with the Father.  The daughter stated that she enjoyed spending time with the Father (in general) and there was no evidence that the Father harmed her;
  • It was unlikely that the parties would come to an agreement on the issue in the near future.

Justice Stevens ordered an access schedule that eased the daughter into overnight access with the Father.

When it comes to access decisions, the stability of maintaining the status quo and wishes of the child do not decide matter. 

Even if the child is genuinely uncomfortable with increased access, it should not bar generous access if the discomfort is caused by parental conflict only.  

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