Examining parental “gatekeeping” in parenting-time and decision-making cases

"Gatekeeping" usually begins shortly after separation, when a primary care parent resists or attempts to control the parenting time of the other parent. The Ontario Superior Court states that, “[w]hen such conduct proves persistent and unjustified it is characterized as negative gatekeeping”. In other words, a primary care parent is severely controlling the other parent’s access to the child without any justification.

Gatekeeping was a major finding in Y v F-T, 2017 ONSC 4395, where the father was seeking more parenting time with his daughter (i.e. a few days per week and one overnight). The mother responded by alleging sexual abuse. The court found that the allegations were untrue, that the CAS nor any professionals ever identified signs of abuse. The court found that the mother was unjustifiably limiting the father’s access to his child. The court continued:

4 In the ordinary course, this case ought not to have fallen into such extremes. The father seeks more time — but not a great deal more, and certainly nothing out of the ordinary. He does not ask for a custody reversal. He has been paying child support.

5 But this is an extreme case. The mother has responded to the father's Application for joint custody and normative access by alleging sexual abuse of their daughter. She is convinced, or wishes to convince others — despite all the evidence to the contrary — that the father is a danger to their daughter.

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152 At the conclusion of her evidence, the mother could not concede the possibility that the messages G. is receiving both directly and indirectly from the adults in her life could be contributing towards the alleged problems she identifies in connection to G.'s relationship with her father. The mother displays no insight into her actions, or their effect on G. She takes no responsibility for the harm caused to G.

153 In viewing the totality of the evidence, and observing the parties over 14 days of trial conducted over five months, I find that the mother has engaged in an extreme form of gatekeeping. The evidence does not inform the "why" of it, only the "what:" she desires that access be indefinitely controlled because she, and others, cannot ever be certain that G. is completely safe with her father.

The court concluded that the father was to have more parenting time and, notably, that the mother’s claim for primary custody (i.e. primary decision-making) must fail. In the alternative, the court ordered joint decision-making responsibility for the child. The Children’s Law Reform Act makes abundantly clear that the court is allowed to examine each parent’s willingness to foster the relationship with the other parent and the child and each parents’ willingness to communicate with each other, etc. If the mother were to have sole decision-making, the court felt the mother would continue to marginalize the father from the child’s life:

155 I find that the respondent mother has failed to demonstrate the criteria necessary to an order for sole custody per section 24 of the Children's Law Reform Act. An order for sole custody would embolden the mother. It would not be in G.'s best interests.

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162. I make a Final Order for joint custody. It is the less risky path forward. When one parent seeks to marginalize the other parent, joint custody may be necessary to ensure that parent's continued involvement in the child's life.

The court offered other general statements about gatekeeping, applicable to other cases:

1 In the early emotional chaos of separation, it is not uncommon for a primary care parent to resist, or otherwise attempt to control access. When such conduct proves persistent and unjustified it is characterized as negative gatekeeping.

2 Gatekeeping tends to abate over time. As parents transition from intimate relationships to co-parenting relationships, most gain appreciation for the challenges faced by their child, who must grow up between two homes. Thoughtful parents wish to ease those challenges by making the road between their homes easier to travel.

3 When gatekeeping does not subside, the excluded parent either exits the child's life, or, presses for more time. Both responses carry the potential for harm. Is the child to be effectively abandoned, or, become the trophy to be won in an adult tug of war?

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154 Negative gatekeeping is a misuse of parental authority. Children are taught that they are not safe, and that they cannot trust their other parent, even when they feel safe, and do trust their other parent. Over time, the child's independence of thought and feeling are extinguished. They become enmeshed in the gatekeeping parent's dysfunction.

This order was eventually appealed, unsuccessfully, and the decision of JY v LF-T, 2019 ONSC 1718 was rendered as a result. There, the Divisional Court rehashed the sexual abuse allegations and the ultimate finding of gatekeeping made by the trial judge:

6 The trial was not "about" the conflict and failures to communicate between the parties. Those difficulties arose because of the mother's improper "gatekeeping", as described in detail by the trial judge: the mother unilaterally gave the child her husband's surname, rather than the father's. She trained the child to call the father "Bubba" rather than "Daddy". She removed the child from the jurisdiction without prior notice to or consent of the father. Starting in January 2015, she made and persisted in false allegations of sexual assault against the father (for which no evidence was found by police, child welfare authorities, the child's physician, or the child's teachers). She made health care decisions affecting the child without informing the father or seeking his agreement. She unilaterally determined when and under what circumstances the father would see his child, including insisting that access be conducted under her mother's supervision at her mother's residence.

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8 In the absence of the mother's gatekeeping, this would have been a straightforward case: primary residence with the mother, defined access with the father, joint custody with some guidelines on decision-making processes. The "problem" in this case is the gatekeeping which has been pervasive and extreme, and which was the central challenge for the trial judge in fashioning an appropriate custody and access order.

Importantly, the court found that the trial judge was well within their discretion and jurisdiction to order for joint custody (i.e. joint decision-making responsibility), as a result of the findings. And further, the court was well within their authority to employ a wait-and-see approach whereby joint-custody would continue into the future but would be alterable upon a Motion to Change if it was not working out:

9 McGee J. concluded that joint custody was the best way forward. She found that "[w]hen one parent seeks to marginalize the other parent, joint custody may be necessary to ensure that one parent's continued involvement in the child's life." We agree with this statement.

10 McGee J. noted that this solution might not succeed. She commented about what might happen, in future, if joint custody does not work: she admonished the father to work on his parenting skills and on settling his life, in case things did not work out and an order for sole custody and primary residence with the father presented as the best solution to secure the father-daughter relationship. These comments were not improper obiter dicta. They were analytically sound and were designed to reinforce the joint custody order. We would provide further reinforcement.

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16 In acknowledging that joint custody may not work, the trial judge was being candid. In pointing out the risks, she was not dooming the family to recurrent litigation, but rather emphasizing the central point of her decision: the best interests of G would be served by her living with her mother and half-siblings, and having a flourishing relationship with her father. Both parties will need to mend their ways for this to happen. If it does not happen, then there may have to be further court involvement. And if that should happen, the mother should understand that the result will not necessarily be a diminution in the father's involvement with G.

17 Further, the trial judge expressly found that the conflict and communications problems do not present as intractable. At trial the father indicated that he was prepared to work with the mother. There was some evidence that communications had improved. And the disputes that brought the parties to trial did not concern joint decision-making, aside from the mother's pattern of gatekeeping. And the judgment, itself, it is to be hoped, will have a salutary effect on future decision-making and communications.

The Divisional Court made other general comments about gatekeeping, ultimately finding that the mother’s appeal should fail:

15 Gatekeeping is borne of a fundamental disrespect for the other parent, as a parent. An order for sole custody to the gatekeeping parent can reinforce that disrespect. Where, as here, parental conflict arises because of the gatekeeping, the intractable nature of the problem is obvious: awarding sole custody to the gatekeeper supports and rewards past gatekeeping and reinforces its lessons for the future.

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19 The trial judge's custody and access order was well within her discretion. Indeed, we think it was thoughtful and wise in the context of this case. This ground of appeal fails.

Obvious takeaways? Gatekeeping usually occurs when a primary care parent unjustifiably limits or restricts the other parent’s relationship with the child, acting as a “gatekeeper” to the child. Albeit this finding is typically made in extreme cases such as the one above, where there are unjustified abuse allegations or other extreme efforts on the part of the primary care parent to limit or restrict the other parent’s relationship or access with the child. Ultimately, the court will act in the best interests of the child, as per their mandate. But such as the case above, the court may find that a primary care parent should not have sole decision-making responsibility because they are not willing to foster the relationship between the other parent and the child. As such, they may view that it is not in the best interests of the child for the primary care parent to have so much control over the child’s life. It may be more appropriate for decision-making of the child to be split between both parents. However, each case will be decided according to the best interests of the the unique child in question.