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What Not to Do in a Custody Battle: Using Access as Negotiating Lever


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  • What Not to Do in a Custody Battle: Using Access as Negotiating Lever

A recent decision of the Ontario courts provides sharp reminder to parents on what not to do in a custody battle. In Harboura v. Sitzer, 2016 ONSC 5844 the parents of a young child were engaged in an acrimonious separation and proceedings marked by “tactical gamesmanship.”  The court chastised the parents, urging them to re-think their positions and reminding them that access is the right of the child, not a right of one parent to be bartered or withheld.

Facts in Harboura demonstrate what not to do in a custody battle

After the parents separated, the young child lived with the mother. The mother applied to the court for an order that all access be supervised and of a very short duration, arguing that the father lacked fitness to exercise unsupervised access.  However, in her offer to settle the mother offered to agree to unsupervised access. Upon learning of the mother’s settlement position, it was clear to the court that the mother’s concerns about the father’s fitness were tactical and not sincerely believed. The mother was attempting to use access as a negotiating lever. She expressly made demands as a condition of allowing the father to exercise access and used her power as the residential parent to try to improve her position in these proceedings. The court denied the mother’s application and granted unsupervised access for the duration sought by the father.

Court reminds parents of what not to do in a custody battle

In denying the mother’s application to restrict the father’s access, the court provided strong admonishment with respect to what not to do in a custody battle:

[5]                    Access is a right of the child.  It is not a personal right of one parent to be bartered or withheld so as to prevent the child from developing a meaningful relationship with the other parent.  The custody and access issues are not a commercial negotiation.  Parents should not be thinking of custody and access as win-lose proposition.  The child wins by obtaining an equal relationship with both parents unhampered by distress and ugly emotions.  There is no “winning” on these issues other than providing the child with the healthiest upbringing available.  This type of negotiation is not in the best interest of the child and must stop.

Because of the baby, the parents will be engaged with each other for the rest of their lives. The court did not doubt the sincerity of hurt feelings and anger between the parents, but urged the parents to focus all efforts on reducing distress and creating a mutually supportive environment in which they can raise their child to be healthy and happy.

The bottom line on what not to do in a custody battle

The court in Harboura v. Sitzer was very clear on what not to do in a custody battle: do not use access as a negotiation lever. Access is the right of the child, not a right of one parent to be bartered or withheld.

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