What do you think about when you hear the word incarcerated? Perhaps it conjures images of clanking cells and a parade of orange jumpsuits walking down a dimly lit hall. Maybe the word is viewed through the colorful prism of Hollywood movies, where the good guy always wins and the bad guy is sent to do his justified time in prison, as the credits soar across the screen. But do you ever associate the word incarcerated with family? With being a parent?
As the end of 2023, there were (in rounded numbers) 7,944 individuals serving sentences in Ontario’s provincial prisons,[1] 3,523 in Ontario’s federal institutions, and 12,667 in Canada’s federal correctional facilities across the country.[2] While this may seem like a small number in comparison to the total population of Canada, the lack of quantifiable data on the number of parents serving custodial sentences throughout Ontario (and Canada at large) is troubling.
The intersection of family law and the criminal justice system is glaringly apparent when one is faced with an incarcerated client who is attempting to either exercise parenting time with a child or re-establish parenting time with a child after being sentenced. In her 2022 report to the United Nations Committee on the Rights of the Child, Professor Else Knudsen identifies an underlying issue with respect to the law concerning parenting time between incarcerated parents and minor children:
A foremost issue that prevents parental incarceration from being the subject of more research, policy attention or bespoke service provision is the complete lack of any available data about these children (Knudsen, 2019). While provincial and federal carceral institutions collect a great deal of quantitative information about each new prisoner on admission, no information is regularly collected about the number of children they have, the number of children for whom they were providing care prior to their arrest, and which person or system is caring for those children now. While such qualitative information might be collected on an ad hoc basis, there is no quantitative information that allows for data analysis, comparisons, or further research into this topic.[3]
As family lawyers know well, the major consideration that governs parenting time between children and their parents is the best interests principle. This concept, that orders for decision making responsibility and parenting time should accord with what is in a child’s best interests, is enshrined in both the Divorce Act and the Children’s Law Reform Act[4], and relied upon to govern the Court’s analysis when they are asked to making parenting orders throughout the jurisprudence.
When tasked with asking the court to make an order for parenting time between a child and an incarcerated parent, the starting point is determining what parenting time accords with the child’s best interests. This analysis is similar to that undertaken between a non-incarcerated parent and a child but requires the Court to go a step further in assessing the impact of a custodial sentence on parenting time. As each case is decided based on the unique circumstances of the parent and child, no uniform approach has emerged from the jurisprudence when reviewing this issue.
In the 2023 decision of Haggis v Sokolski, the Ontario Superior Court of Justice determined that despite the Respondent Father’s incarceration for robbery charges, that “an appropriately cautionary parenting time order” would be in the child’s best interests.[5] In crafting a final order with respect to parenting time, the Court in Haggis made orders delineating the Respondent Father’s time with the child while incarcerated and following his release. With respect to the Respondent Father’s parenting time while incarcerated, the Court ordered that the Respondent Father was entitled to write a letter to the child once per week, that the Applicant Mother shall read the letters to the child, and if the child wished to respond, the Applicant Mother would assist in crafting and mailing a response. [6]
In Smith v Ainsworth, the Applicant Father sought supervised parenting time with the minor child following charges of attempted murder of the Respondent Mother, aggravated assault, and assault with a weapon (a butcher knife). At trial, the Applicant Father was convicted of aggravated assault and assault with a weapon, but not attempted murder, and was sentenced to four years in prison.[7]
In reviewing the Applicant Father’s evidence with respect to parenting time, the Court agreed at paragraph eight of its reasons that “a criminal conviction ought not to foreclose all parental contact.” [8] Importantly, the Court devoted substantial attention to the issue of supervised parenting time and when it would be appropriate to make a supervision order, in light of the Applicant Father’s request for supervised parenting time.
Referring to the Ontario Superior Court of Justice’s decision in V.S.J. v L.J.G., the Court in Smith relied on the following:
There is a presumption that regular access by a non-custodial parent is in the best interests of children. The right of a child to visit with a non-custodial parent, to known and maintain or form an attachment to a non-custodial parent is a fundamental right and should only be forfeited in the most extreme and unusual circumstances. To deny access to a parent is a remedy of last resort. See Jafari v Dadar, [1996], N.B.J. No. 387 (QL).
[…]
A review of the case law reveals that there are no standard criteria for termination of access within the best interests test. Madam Justice Abella noted in para 34 of M (B.P.) v M (B.L.D.E.) (1992) 1992 CanLII 8642 (ON CA), 42 R.F.L. (3d) 349 (QL) (Ont. C.A.):
It is not a question of what standard should be used to deprive a parent of access, it is a question of what standard should be used in deciding what form of access, if any, should be ordered. The answer is clear from the statute: the standard is the child’s best interests.[9]
Taking the analysis a step further, the Court in Smith then considered the impact of a parenting order when there has been a substantial period of time since the last contact between an incarcerated parent and a child. This is important, as the breadth of custodial sentences available under the Criminal Code can range from two years to life imprisonment, which may have a substantial bearing on contact between an incarcerated parent and child. This of course is amplified when considering the effect of pre-trial detention and delays in matters proceeding to trial.
In Griffiths v Leonard, the Court made the following comments with respect to the best interest’s principle:
Access should only be ordered if there will be a benefit to the child. It is not sufficient for the non-custodial parent to show that access will not harm the child. This is too low a threshold. (see Worthington and Worthington, 2000 CanLII 22469, 13 R.F.L. (5th) 220 (ON S.C.)). There must be some demonstrable benefit to the child, and in this case, given that Nicolas has been an absent father and that Isabelle does not in any way have a beneficial or meaningful relationship with him, the demonstrable benefit to her must be significant, particularly given that the custodial parent objectives to involving Nicolas in Isabelle’s life at this time.[10] (emphasis added by Court).
While ultimately dismissing the Applicant Father’s request for supervised parenting time in Smith, the Court still ordered that the Applicant Father may, once per year and in writing, provide the Respondent Mother with updates on his life that the Respondent Mother shall provide to the children.[11]
In Anderson v Daley, the Saskatchewan Court of Queen’s Bench ordered that the Respondent Father exercise supervised parenting time with the minor children, while incarcerated on a life sentence for the murder of the children’s mother.[12] In ordering supervised parenting time to occur at the federal institution where the Respondent Father was incarcerated, the Court first ordered telephone conversations between the Respondent Father and the children, following which the children were to be permitted one in person visit at the institution. The Court ordered these visits to be supervised by the Saskatchewan Penitentiary Service (“SPS”) and a report to be filed by SPS following the visit. If satisfied the visit was successful and the children would benefit from further parenting time, the Court held they were prepared to order in person parenting time once every six weeks.[13]
Applying the Court’s reasoning in Anderson, the Saskatchewan Court of Queen’s Bench ordered parenting time between the Respondent Father and the children on an interim basis in Klinger v Klinger.[14] In Klinger, the Respondent Father was incarcerated and awaiting trial on several criminal charges, including assault against the Applicant Mother. In ordering that virtual parenting time should occur between the Respondent Father and the children, the Court held:
There should, however, be some connection maintained. That can be done through telephone access. As well, the parties should explore with corrections authorities the prospect of communication through Skype, FaceTime, or one of the other means of electronic audio/visual communication. While the authorities will undoubtedly not allow the father unfettered access to a computer with an internet connection, some form of monitoring might be possible.
I am therefore prepared to order that the children have telephone access to their father every three weeks, as may be arranged, until the father is released from custody. If the further times of communication mentioned above are possible, the telephone access shall be converted accordingly.[15]
Significantly, the Court cautioned the Applicant Mother that she had a duty to encourage the relationship between the children and the Respondent Father:
I hasten to note that the mother has a legal duty to promote and foster this access. She should be aware that it is the court’s expectation that she will do all in her power to ensure the children have this access and that it is meaningful. This matter has not gone to trial and is far from concluded. Her willingness (or lack of same), to ensure a connection between the children and their father may well be a significant factor in her remaining the primary parent.[16]
Considerable is discretion afforded to motion and trial judges when making parenting orders between incarcerated parents and children. While no two orders in family law are ever completely alike, their overarching principles can be divined from the case law:
- Orders for parenting time between incarcerated parents and their children must accord with what is in the children’s best interests.
- The Court will consider the impact of the incarcerated parent’s sentence on parenting time, including the length of the sentence, the nature of the criminal charges, the incarcerated parent’s plan of care for the child after release, and how much time has passed since the incarcerated parent last had contact with the child.
- Complete termination of parenting time between children and their parents is considered a “remedy of last resort” and will be ordered sparingly.
- A criminal conviction is not prima facie a bar to parenting time.
While it is beyond the scope of this article to discuss the barriers to incarcerated parents exercising parenting time once an order has been made, it is important to consider the various actors who will play a role in facilitating parenting time. Consider the role of Correctional Services Canada in ensuring that phone and video calls occur between an incarcerated parent and child, while the parent is serving their custodial sentence. Turn your mind towards the role of the non-incarcerated parent in either encouraging or resisting such parenting time. Remember the inherent obstacles to incarcerated parents accessing legal services and retaining family law counsel. Consider the effect of a supervision order on an incarcerated parent and the cooperation required between Correctional Services Canada, the parents, the supervision agency, and legal counsel to facilitate supervised parenting time.
While there is no easy solution to ensuring that incarcerated parents can exercise parenting time with their children, perhaps the starting point is the concern identified by Professor Knudsen’s report: the lack of information about the children of incarcerated parents and the absence of a tailored approach to ensuring the parent-child relationship continues even in the face of a custodial sentence.
Family law counsel has a crucial role in ensuring that a criminal conviction does not result in a de facto termination of parenting time. I implore all family lawyers to consider this issue and remember the countless parents within our provincial and federal institutions waiting for the day they can hold their children in their arms again.
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