DATE: 20010227

DOCKET: M26991

COURT OF APPEAL FOR ONTARIO

LASKIN J.A. (in chambers)

BETWEEN:

RANDALL STEADMAN BARNES

Kevin A. Robins, for the respondent

Applicant (Respondent)

• and -

KATHERINE PARKS

Yolanta M. Lewis, for the appellant

Respondent (Appellant)

Heard: February 22, 2001

Motion to stay the order of Justice G. William Dandie dated January 11, 2001

LASKIN J.A.:

[1] The appellant Katherine Parks and the respondent Randall Barnes are the mother and father of Ethan Parks, a 6½ year-old boy. Ms. Parks and Mr. Barnes have never lived together. Ethan has been in his mother’s sole care and custody since he was born. However, on January 15, 2001, Dandie J. ordered that custody of Ethan be transferred to his father. The transfer took place the following day when, on a scheduled access visit, Mr. Barnes simply kept Ethan. Ms. Parks has appealed the order of Dandie J. and seeks a stay of his order pending her appeal. For the following brief reasons, I grant the stay.

[2] The governing principle is that a stay should be granted if it is in Ethan’s best interests to do so. Three considerations persuade me that it is in Ethan’s best interests to be in his mother’s care pending her appeal. First, on the material before me, Ms. Parks has a very arguable appeal. Second, she has been Ethan’s primary caregiver for all of his life. Third, though her anger toward Mr. Barnes has at time affected Ethan, she is otherwise a good mother and her son is very attached to her.

Background facts

[3] The appellant and the respondent met at work. They began an intimate relationship. Mr. Barnes was married but told Ms. Parks that he had left his wife and was seeking a divorce. That was a lie. Instead, he continued his relationship with both women, and continued to live with his wife.

[4] Ms. Parks got pregnant and Ethan was born in September 1994. Ms. Parks discovered that Mr. Barnes had not left his wife and she ended her relationship with him. She started custody proceedings in May 1995. She was granted interim custody of Ethan in July 1995, and final custody, on consent, in June 1997. Mr. Barnes was given access.

[5] Mr. Barnes did not disclose Ethan’s existence to his wife until early 1998. Mrs. Barnes, however, was willing to accept Ethan into her life and indeed into her home. In August 1998, Mr. Barnes applied to vary custody. The parties consented to an assessment and a detailed report, by a social worker, was given to the parties in the fall of 1999.

[6] The report recommended that Ms. Parks maintain custody of Ethan. The social worker was of the view that Mr. Barnes could better “provide an environment supportive of Ethan’s emotional growth” but concluded “that the length of time that the child has lived with his mother and the significant relationship that he has with her supports the continuation of the current living arrangement”. The report noted that despite Ethan’s exposure to his mother’s hostility to his father, the boy was doing well in school and showed no significant behavioural problems. Because of the bond between mother and child and because a “change of living circumstances can be very traumatic for a young child”, it was in Ethan’s best interests to remain in his mother’s care. The report, however, added this caveat, which the trial judge fastened on in his decision: Ms. Parks’ custody of Ethan would have to be reexamined if she was “unable to develop the ability to promote Ethan’s relationship with his father. If these changes are not forthcoming it may be necessary to remove Ethan from his mother and place him in the care of his father.”

Discussion

[7] The transcripts of evidence have not been prepared. I have only the assessment report, the reasons of the trial judge and conflicting affidavit evidence filed on the motion. I have not seen the parties or the witnesses who testified at trial. I know nothing about the evidence of the teachers on which the trial judge relied. Nonetheless, I must try to assess the merits of the appeal. If the appeal has little chance of success, then Ethan’s best interests would not be well-served by staying the custody order, thus transferring him back to his mother only until the appeal is heard. However, even though this court is reluctant to retry custody cases, in my view, Ms. Parks appears to have good grounds of appeal.

[8] The trial judge found that Mrs. Barnes’ willingness to accept Ethan into her life amounted to a material change in circumstances entitling him to re-examine custody. In awarding custody to Mr. Barnes, the trial judge relied entirely on the caveat in the assessment report, Ms. Parks’ unwillingness to promote the relationship between Ethan and his father.

[9] The trial judge made several findings adverse to Ms. Parks. He found that she used a ruse to try to change Ethan’s school in order to limit Mr. Barnes’ access; that she needlessly alarmed the parents of Ethan’s classmates when she discovered that Mr. Barnes volunteered as a teacher’s aide in Ethan’s class; and that she needlessly took Ethan to the principal’s office to discuss Mr. Barnes assisting in the classroom. The trial judge concluded that “Kathy has only herself to blame for the loss of the care and control of her son”.

[10] Understandably, Ms. Parks feels anger towards Mr. Barnes. Less understandably, she allows her anger to affect Ethan and Ethan’s relationship with his father. In deciding custody, the trial judge was right to consider Ms. Parks’ unwillingness to foster the relationship between her son and his father. For the trial judge, however, this was the only consideration. That Ms. Parks had been Ethan’s primary caregiver, his sole custodian, for all of his life appears to have played no role in the trial judge’s decision. Yet, in resolving custody disputes, courts have repeatedly emphasized the critical importance of bonding, attachment and stability in a young child’s life. Moreover, though the trial judge rightly criticized Ms. Parks for not promoting Ethan’s relationship with his father, he did not find that she had ever prevented Mr. Barnes from exercising access.

[11] The trial judge’s reasons also reflect a one-sided view of the assessment report. He points out parts of the report where the social worker is critical of Ms. Parks. But he does not refer to those parts of the report where the social worker is also critical of Mr. Barnes. For example, the report notes that Mr. Barnes “could be highly manipulative and deceitful”. Indeed, he deceived two women for several years. According to the report, he “is capable of extreme means to ensure that his needs and wants are met” and he “can be egocentric and set important values aside to secure his wants”. None of this is referred to in the trial judge’s reasons. Yet, these characteristics could bear on the determination of custody.

[12] Finally, it seems to me that the trial judge overstated the caveat in the assessment report. The trial judge determined that the assessment report had recommended a change of custody if Ms. Parks did not change her own attitude towards Ethan’s relationship with his father. As I read the assessment report, it recommended only that custody be re‑examined if Ms. Parks did not change her attitude. I doubt it could be otherwise because many factors will be relevant to Ethan’s best interests.

[13] My preliminary view, therefore, is that the appeal has merit. A stay then is appropriate. It preserves the arrangement that has existed since Ethan was born over six years ago. His mother will remain his primary caregiver until her appeal is decided. The evidence before me shows that Ms. Parks is a good mother. She and her son have a healthy relationship and a strong bond exists between the two of them. A stay will not affect Ethan’s schooling. He will be able to play with his friends. His life will not be seriously disrupted by a return to his mother.

[14] Indeed, until the trial judge’s order, Ethan had not been in his father’s care for longer than a week. Mr. Barnes has had custody of Ethan since the day after the trial judge’s order (January 16^th), a period of five-and-a-half weeks. Still, Mr. Barnes cannot rely on this brief period to deny Ms. Parks custody of Ethan pending her appeal. Mr. Barnes did not even permit Ms. Parks to explain the trial judge’s decision to Ethan, let alone permit Ethan to adjust gradually to his new living arrangements. He simply kept Ethan after an access visit.

[15] Overall, I conclude that a stay of the trial judge’s order is in Ethan’s best interests. While the appeal is pending, Mr. Barnes should have generous access, at a minimum the access that he enjoyed before the trial. The return of Ethan to his mother’s care should take place this Wednesday afternoon after school, to give Mr. Barnes time to explain my decision to Ethan. I urge him to do so with Ethan’s best interests in mind.

[16] I also urge the court reporter to prepare the trial transcript as quickly as possible. In accordance with this court’s practice direction, the appeal will be scheduled for hearing within three months of its perfection. Ms. Parks is entitled to her costs of this motion, which I fix at $1,500. Finally, one housekeeping matter: on the consent of the parties, the time for serving the notice of appeal is extended to February 14, 2001, and the time for filing the notice of appeal is extended to March 2, 2001.

Released: FEB 27 2001 Signed: “John Laskin J.A.”