Court of Appeal for Ontario
Date: 2018-08-21 Docket: C64113 Judges: Feldman, Hourigan and Brown JJ.A.
Parties
Between
Dawn Charlotte Lemon and Sean Lemon Applicants (Respondents)
and
Julie Anne Lemon Respondent (Appellant)
Counsel:
- Ms. Alix Nenniger, for the appellant
- Dawn Charlotte Lemon and Sean Lemon, acting in person
Heard: July 5, 2018
On appeal from: The order of Justice Kirk W. Munroe of the Ontario Superior Court of Justice, dated July 5, 2017.
Reasons for Decision
Overview
[1] The appellant is the mother of two children, D.L. (age 13) and E.L. (age 10). She appeals from the order granting sole custody to the children's aunt and uncle, the respondents, with limited access to her.
[2] We allow the appeal in part and alter the access order to grant increased access to the mother.
Background Facts
[3] The appellant is the biological mother of D.L. and E.L. She was in her early to mid-twenties when they were born. At that time she was living with her mother in Detroit. Between 2005 and 2010, the appellant raised her children in her mother's home while working and studying part-time. D.L.'s and E.L.'s fathers have had no role in their upbringing.
[4] In April 2010, the appellant's mother evicted her and the children. They initially moved in with her brother and sister-in-law, the respondents, in Windsor, but in September the appellant moved out on her own, leaving the children with the respondents. She rented an apartment in Windsor and visited her children regularly. Their agreement was that the children would remain in the respondents' care until the appellant was stable in her career and able to obtain housing for the three of them.
[5] The appellant continued to work and study part-time in Windsor until 2013, when she moved to Toronto to continue her studies and work part-time in retail there. She also moved in with her same-sex partner, S.L.
[6] The custody dispute between the parties began in 2013, when the respondents consulted a lawyer to obtain custody of the children. When the appellant learned of this development, she drove to the children's school in Windsor, picked them up, and drove them back to Toronto to live with her.
[7] The custody dispute was made all the more difficult because of stark religious differences between the appellant and the respondents; while the appellant had been raised as a Jehovah's Witness, she left the faith when she was 19 and became quite critical of the religion. The respondents are Jehovah's Witnesses who disapprove of the appellant's same-sex relationship and secular lifestyle.
[8] The respondents brought an application for custody of the children. In 2013, Pomerance J. ordered interim custody to the respondents, with access in favour of the appellant. Pursuant to court requests, the Ontario Children's Lawyer ("OCL") became involved and an initial report and an update were prepared by the same clinician: the first report recommended granting custody to the respondents with access in favour of the appellant; the update recommended that the appellant be granted custody of the children with access to the respondents.
[9] On July 5, 2017, after an eight day trial, Munroe J. found that it was in the best interests of the children to remain in the sole custody of the respondents, with access in favour of the appellant. The appellant appeals from both the custody and access orders on the basis that the trial judge misapprehended the evidence, failed to consider and apply the maximum contact principle, and failed to consider and apply a preference in favour of biological parents over non-parents in custody disputes.
Findings of the Trial Judge
[10] The trial judge applied the best interests test mandated by s.24 of the Children's Law Reform Act, R.S.O. 1990, c. C.12 ("CLRA") to decide custody and access.
[11] Section 24 provides that the merits of custody or access shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). Subsections (3) and (4) require the court to consider past conduct that is relevant to the person's ability to act as a parent as well as any violence and abuse.
[12] Subsection (2) requires the court to consider "all the child's needs and circumstances", including:
(a) the love, affection and emotional ties between the child and,
- (i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child;
- (ii) other members of the child's family who reside with the child, and
- (iii) persons involved in the child's care and upbringing;
(b) the child's views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) the plan proposed by each person applying for custody of or access to the child for the child's care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) any familial relationship between the child and each person who is a party to the application.
[13] The trial judge concluded that the children are loved deeply by the appellant and the respondents, who love them deeply in return; that the children had expressed a clear wish to remain in the care of the respondents; that the children's time with the respondents (seven years at that time) had been stable, loving, and a positive home environment; that the respondents were able and willing to provide guidance, education, and the necessities of life to the children, but that the appellant's ability to do so was questionable.
[14] His conclusion on ability and willingness to provide for the children was based in part on the fact that the appellant had quit a job, gone on social assistance, and moved further away from the children in the year prior to the application for custody. [1] He referred to the appellant's relationship with S. as "the one big positive" and said that he "was impressed by S. when she gave evidence". At the same time, he expressed uncertainty as to whether the relationship would last and cited the fact that the parties were not married, did not have joint finances, and had separate leases.
[15] He found that the respondents' plan for the children's care and upbringing was stable, but that the appellant's plan presented too many variables to conclude that it would offer stability for the children; that while the respondents provide a permanent and stable family unit, he could not find the same for the appellant's proposed family unit.
[16] He also found that the respondents were markedly better able to act as parents than was the appellant since her ability to parent remained to be seen. He referred there to the appellant's desire to be the "cool aunt" to the respondents' older sons by, among other things, smoking marijuana with them. In considering familial relationships under s.24(2)(h), he only noted that the appellant is the biological mother and the respondents are the biological uncle and his wife.
[17] Based on all the evidence, the trial judge concluded that it was in the children's best interests to remain in the respondents' sole custody.
[18] He declined to follow the recommendation in the second OCL report on the basis that the author's conclusions about stability were founded on the appellant's word, which he found unreliable. He also noted that the appellant's stability circumstances – job, residence, social assistance – changed after the report was written and that the author did not communicate with the children's teachers and was unaware that the appellant's "conduct during visits did create at least a risk of emotional harm to the children."
[19] As for access, the trial judge found that the current distance between homes made frequent access "very difficult, expensive, time consuming and not in the best interests of the children".
[20] He also made permanent the prior order of King J., dated October 23, 2015, which directed the appellant "not to include the children in any activity or festivity that is contrary to the religious beliefs [of the respondents]". In his view, that order "calmed the waters of the initial anxiousness, both by the children and by [the respondents] over [the appellant's] conduct during access."
Issues
[21] The appellant raises the following issues:
Whether the trial judge erred by finding that the appellant's relationship was not stable, and that the appellant was not stable by extension;
Whether the trial judge erred by failing to consider the maximum contact principle;
Whether the trial judge erred by failing to appreciate that parents have a favoured status when competing with non-parents for custody of their child;
Whether the trial judge misapprehended the relevant status quo; and
Whether the trial judge erred by treating the appellant's secular beliefs as less significant at law than the respondent's faith.
Analysis
Misapprehension of Evidence
[22] The appellant asserts that the trial judge's conclusion that the appellant's same-sex relationship was unstable was clearly wrong and not supported by the evidence. She asserts this on the basis that the appellant has been cohabiting with her partner in a committed relationship for over three years; the appellant's partner testified that she was committed to the relationship and willing to financially support the appellant and her children; the appellant's partner assisted the appellant to rent living space to accommodate the children's anticipated return; and that since many common law relationships are characterized by a lack of marriage and a separation of finances, it does not logically follow that those are indicia of instability.
[23] We agree with the appellant that it would have been wrong to conclude on the evidence that her same-sex relationship was unstable. The trial judge himself stated that "As I see it, the one big positive is her relationship with S. I was impressed by S. when she gave evidence before me." While he mentioned his concerns about the stability of the appellant's family unit under s. 24(2)(f), read as a whole, the focus of the reasons appears to be on indicia of instability in the appellant's own life and its potential effect on the children.
[24] In considering ability and willingness to provide as required by s.24(2)(d), the trial judge first commented at para. 49 on the instability of the appellant's life more generally. He stated that "[h]er life is an example of instability with constant changing of education, jobs and residences. In the past year, [the appellant] has quit one job, gone on social assistance, moved to a residence significantly farther away from [the respondents], and reconnected with employment in a different city."
[25] These findings about the appellant's employment and finances were not unavailable on the record. And they were in contrast to his findings about the respondents' demonstrated ability to provide "admirably for the last seven years."
[26] The trial judge referred to s. 24(2) of the CLRA and addressed each of the factors prescribed by that section when considering the best interests of the children. As one factor among others in the best interests analysis, the trial judge was entitled to consider the appellant's employment and financial circumstances as potential sources of future instability.
[27] The best interests analysis is intensely fact-specific and deference is owed accordingly. The trial judge heard evidence from all parties, from the OCL clinician who prepared both reports, and from two of the children's teachers. He heard this evidence over an eight-day trial.
[28] Without necessarily agreeing with the trial judge's assessment on the stability issue, given all the other factors taken into account in the best interests analysis, we would not interfere with the custody order on this basis.
Status Quo
[29] The appellant also asserts that given the agreed temporary nature of the arrangement, the trial judge erred in law in misconstruing the status quo.
[30] We do not agree.
[31] The status quo was nowhere considered explicitly by the trial judge. In our view, he only appropriately considered the existing circumstances as they implicated the children's current and future best interests. In this, he did not err.
Preference for Biological Parents & Maximum Contact Principle
[32] In deciding custody, the appellant asserts that the trial judge ought first to have considered a biological parent's favoured status. She cites the Supreme Court of Canada's decision in C.(G.) v. V.-F.(T.), [1987] 2 S.C.R. 244, which in interpreting the Quebec Code of the time, stated at para. 65 that, "[a] third person who wishes to obtain custody of a child must rebut the presumption to the effect that the parent is in a better position to ensure his child's well-being."
[33] She also asserts that it was an error not to consider and apply the maximum contact principle articulated in s.16(10) of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) ("DA").
[34] Section 16(10) of the DA requires the court in making a custody or access order to "give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact." While the maximum contact principle is specifically articulated in the DA, it has been held to apply to custody disputes between parents under the CLRA as well: A.C.W. v. T.M.P., 2014 ONSC 6275 (Ont. Div. Ct.) at para. 30.
[35] Our responses to both arguments are the same. The CLRA's best interests analysis already contemplates the importance of the parental bond and maximum contact through the best interests lens. That is, s. 24(2) of the CLRA explicitly requires the court to consider familial relationships – s. 24(2)(h) – as well as love, affection and emotional ties – s. 24(2)(a) - in making custody and access orders that are in the children's best interests.
[36] Accordingly, in our view, the trial judge was correct to apply the best interests framework under s. 24(2) to decide the questions of custody and access.
The Trial Judge's Application of the Best Interests Test
[37] While the trial judge applied the correct test, the question remains, whether he erred in his application of that test to the facts as he found them.
[38] In our view, in considering familial relationships, love, affection and emotional ties, the trial judge overlooked the evidence of the strong indicators in this case that time with all three parties – the mother, aunt and uncle – should be maximized.
[39] In considering love, affection and emotional ties, the trial judge stated:
It is very clear from the evidence that the children are loved deeply by both parties and the children love both parties. The children have a significant bond with [the respondents] who have raised them for the last seven years. They call them mommy and daddy. It is also true that the children love their biological mother, J. In addition, they are beginning to form a relationship with J's partner, S.
[40] However, when assessing the children's views and preferences, he erred by concluding only that the effect of the two OCL reports made it "clear" that the children "wish to remain in the care of [the respondents]". Equally clear was the children's desire to maximize their time with their mother.
[41] Further, he gave insufficient consideration to s. 24(2)(h), which requires the court to consider "any familial relationship between the child and each person who is a party to the application", by limiting his analysis to the two sentences: "[J.] is the biological mother of [D.] and [E.]. [S.] is the biological uncle of the children and [D.] is [S.]'s wife."
[42] In our view, the trial judge misapprehended the evidence of the children's views and preferences in simply stating that they wished to remain with the respondents. He also erred in doing no more than state the facts of biological relationship, by misapprehending clear statements from the children consistent with a desire to be with their mother as much as possible as well.
[43] When asked for three wishes, D. said that she wished that her mother could reside with her, E., and her aunt and uncle, and that she wished they could either live in the same house, as they had before, or in the same city. She also said that she sometimes "has a feeling" that she should be visiting her aunt and uncle and living with her mother. She reported nightmares about being separated from her mother. E.'s wish was to have "more visits" with his mother. He also reported "kinda" missing the other party while with the other when transitioning from his mom's to his aunt and uncle's place. He said he enjoyed residing with his aunt and uncle but would like to spend more time with his mother.
[44] The reports also stress that the children clearly love their mom, aunt and uncle. Their mother has always been part of their life and they have always known her as their mother.
[45] On the whole, what is most clear from these reports is that the children would like to spend as much time as possible with all the people they love: their mom, aunt and uncle.
Remedy
[46] Based on these errors, what is the most appropriate remedy? We would defer to the trial judge's decision on custody. Given the distance between the parties – both geographically and philosophically – sole custody is practical. The decision to award that sole custody to the aunt and uncle was available to the trial judge on this record.
[47] We do, however, find reversible error in the trial judge's insufficient analysis of the children's views and preferences, familial relationships, emotional ties, love and affection in the context of the amount of access awarded to the mother. In our view, a complete consideration of these factors is incompatible with the limited access awarded to her.
[48] While we appreciate that the geographical distance between the parties – and the children's stated dislike of the long commute between Windsor and Toronto – speaks against more regularly rotating access, the issue can be addressed by increasing the length of time spent with the mother and her partner to the maximum available given school year constraints. If the appellant and her partner's employment circumstances were to change, allowing them to move closer to Windsor, access time could be further increased accordingly.
Religious Restriction on Access
[49] The mother also submits that paragraph 2f. of the order below, which prohibits her from including her children in any activity or festivity contrary to the aunt and uncle's Jehovah's Witness religious beliefs, is both unfeasible and contrary to Charter values.
[50] We agree.
[51] Paragraph 2f. of the Order reads as follows:
The respondent mother, Julie Anne Lemon, shall not include the children in any activity or festivity that is contrary to the religious beliefs of the applicants; solely non-controversial secular holidays, such as Victoria Day and Canada Day, are not deemed contrary to the religious beliefs.
[52] The way this Order is worded goes far beyond a prohibition on celebrating holidays – such as birthdays, Easter and Christmas – that are contrary to Jehovah's Witness beliefs.
[53] The mother is living in a committed same-sex relationship. This in itself is "an activity contrary to the religious beliefs of the [respondents]", who communicate their disapproval to the children. Both the appellant's sexual orientation and her secular beliefs are entitled to the same respect as are the respondent's beliefs. See R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 at para. 123.
[54] The Order, as worded, therefore cannot stand.
[55] In considering whether to include the children in activities and festivities, as in all things, the children's best interests should govern. Both parties should let the children's own views and preferences on this matter guide them and should respect the children's choices.
[56] This restriction on the mother's access will be deleted.
Order
[57] The custody appeal is dismissed.
[58] The access appeal is allowed.
[59] Paragraphs 2b. and 2c. of the Order shall be deleted and replaced with the following:
b. Eight weeks during the summer months of July and August. The weeks are to be agreed upon by the parties which said agreement shall not be unreasonably withheld;
c. During the entire school break at Christmas and March school break, the exact periods to be agreed upon by the parties which said agreement shall not be unreasonably withheld.
[60] Paragraph 2f. shall be deleted.
[61] If the above access orders conflict significantly with the children's activities, the parties are to agree on an appropriate modification which said agreement shall not be unreasonably withheld.
Costs
[62] As success was divided, there will be no order as to costs.
K. Feldman J.A. C.W. Hourigan J.A. David Brown J.A.
[1] The appellant and her partner S. had moved from Toronto to a family-sized house in Oshawa that was available through S.'s brother.
