Court File and Parties

Court File No.: NORTH BAY FO 46-10 Date: 2013-01-04 Ontario Court of Justice

Between: Denis Gauthier, Applicant

— And —

Sophia Gunner, Respondent

Before: Justice Gregory Rodgers

Heard on: April 23, 24, 25, 2012 and July 27, 2012

Reasons for Judgment released on: January 4, 2013

Counsel:

• Geoffrey Laplante for the applicant(s)
• Peter Doucet for the respondent(s)

Judgment

Rodgers, J.:

Introduction

[1] This case focuses on the best interests of a little girl named Sofia Chelsea Jane Gunner. She was born on January 27, 2009. She is almost 4 years old. Both parents call her Chelsea. It is one of the few things they agree on. Chelsea's mother is Sophia Gunner aged 34. Her father is Denis Gauthier aged 36. These parents had a short and very rocky on-again off-again relationship that ended dramatically on February 8, 2010.

[2] The parents have litigated custody and access issues vigorously for most of Chelsea's life. To date, there have been 27 court appearances with 16 temporary orders. Mr. Gauthier has had 8 different lawyers represent him. This is to say the least, a high conflict case.

[3] Mr. Gauthier is seeking an order for joint custody with primary residence. Ms. Gunner is seeking an order for custody with a provision for supervised access to Mr. Gauthier.

Present Situation

[4] Since June of 2010 there has been a temporary order in place that was intended to allow for the child to spend equal time with each parent on a week-about schedule. This was implemented when both parents lived in North Bay.

[5] For the last year Ms. Gunner has worked at a remote work site north of Kapuskasing. She works and is housed at a construction project where a dam is being built. Her work schedule is three weeks at the job site and one week out. Her mother and fourteen year old son Trayven continue to reside in North Bay. The week-about access cycle has continued. Chelsea goes back and forth between her father's home and Ms. Gunner's North Bay residence. Ms. Gunner comes to North Bay one week a month to be with Chelsea. On the other week intended to be Ms. Gunner access time Chelsea resides in the care of her maternal grandmother.

Background

[6] Ms. Gunner is a native woman who is from Moose Factory. Most of her extended family still reside in the Moosonee/Moose Factory area. She was raised in a functional family with no history of abuse or neglect.

[7] Mr. Gauthier was not so fortunate. He was raised in a dysfunctional family. His father was emotionally and physically abusive toward him throughout his childhood. This abuse has had a lasting effect on Mr. Gauthier.

[8] Ms. Gunner and Mr. Gauthier met on line in 2007. They moved in together in North Bay in October of 2007 only to break up at Christmas time. They reconciled in January 2008 and moved in with Mr. Gauthier's mother. In May 2008 Ms. Gunner became pregnant. Mr. Gauthier denied paternity. He accused Ms. Gunner of infidelity. At trial he conceded that he had no reason to suggest that she had been unfaithful. Unfortunately, this would not be the last unfounded accusation to be levelled at Ms. Gunner by Mr. Gauthier. His mother promptly evicted her from the residence. She moved back to Moose Factory to be with her mother.

[9] Ms. Gunner returned to North Bay for pre-natal care. She gave birth to Chelsea on January 28, 2009. By this time Mr. Gauthier was in a relationship with Shannon Dashney.

Mr. Gauthier and Ms. Dashney came to the hospital and were asked to leave by security for being disruptive. The next day Mr. Gauthier and Ms. Dashney lodged a complaint about Ms. Gunner with the Children's Aid Society. They accused her of alcohol abuse, excessive partying and a gambling problem. These complaints were unsubstantiated. At trial Mr. Gauthier acknowledged in his testimony that he complained to the CAS because he was upset about getting kicked out of the hospital. He also testified that at that time he was in no position to assume care of the newborn child.

[10] Remarkably, these parents reconciled in the summer of 2009 and moved into a house purchased by Mr. Gauthier's mother. Within weeks Mr. Gauthier threatened to commit suicide by taking a knife to his wrist. This gesture was made in front of Ms. Gunner and Chelsea who was about six months of age. The couple separated as a result only to reconcile about two weeks later after Mr. Gauthier made promises to change and get help. This final reconciliation lasted until February 8, 2010.

[11] On that night at about 11:00 p.m. Mr. Gauthier bundled up Chelsea and attempted to take her to his mother's residence. Unbeknownst to Ms. Gunner he had filed an application for custody a few days earlier. He had also even before that lodged a complaint with the police against Ms. Gunner for welfare fraud which resulted in a charge being laid and the issuance of an arrest warrant.

[12] Ms. Gunner refused to permit him to leave with their daughter at such a late hour. An argument ensued and Mr. Gauthier called the police to report that she was assaulting him and her children. (This was not true according to both parents at trial) Ms. Gunner went to a neighbour's house with both Trayven and Chelsea. The police responded. They arrested her on the outstanding fraud warrant. She was taken into custody and Chelsea was placed with Mr. Gauthier by the police. Ms. Gunner and her son Trayven spent the next three months living at a transition home. Chelsea was separated from her mother for several weeks.

[13] Chelsea was walking by six months and was potty trained at 7 months. Ms. Gunner had been her primary care giver since birth. When Chelsea next saw her mother through supervised access the child had reverted to wearing diapers.

[14] By June of 2010 Ms. Gunner's contact with Chelsea was expanded to week about access. The fraud charge was ultimately withdrawn by the Crown. Unfortunately, Mr. Gauthier's complaints about her parenting would continue. In all, he made 8 complaints to the CAS about her parenting. He frequently complained of her physically abusing the child. Indeed much of the court filings in this case include several allegations by Mr. Gauthier and Ms. Dashney about Ms. Gunner's abuse and neglect of Chelsea. None of these complaints were ever substantiated (at trial Mr. Gauthier conceded that he now accepts that no abuse was occurring).

[15] By January 2011 the CAS issued an alert to its staff warning that Mr. Gauthier was a malicious complainer and that any complaints from him should be handled with caution and suspicion. Each time the CAS investigated they found no child protection concerns arising from Ms. Gunner's parenting. In some instances the child would have been disrobed and examined for injuries by medical staff.

[16] To be fair, on one occasion following her arrest Ms. Gunner suggested to authorities that Mr. Gauthier may have sexually assaulted Chelsea. There was no basis for this complaint. This was one occasion. Mr. Gauthier has been much more persistent in his attempts to sabotage Ms. Gunner's opportunity to parent her daughter.

[17] As late as a few weeks before the start of this trial Mr. Gauthier hired a private investigator to surveil Ms. Gunner in an attempt to discover conduct to discredit her. Nothing of significance was found. As recently as March 2012 he photographed Chelsea in an attempt to document bruises he associated with her abuse.

[18] Denis Gauthier is a very troubled man. He has struggled with depression since his teens. He is often overwhelmed by anxiety and has often been suicidal. Mr. Gauthier was very candid in his testimony concerning his mental health issues. He described that he suffers from social anxiety. This causes him to believe people are talking about him when he goes out in public.

[19] I attribute much of Mr. Gauthier's nastiness toward Ms. Gunner throughout these proceedings to his chronic mental health problems. Any degree of stress appears to overwhelm him. The greatest source of his stress recently seems to be the prospect of losing custody of his daughter.

[20] In July 2010 he told Dr. Talarico at the North Bay General Hospital that if he lost his daughter he would think of suicide. In June of 2011 Mr. Gauthier was suffering unbearable anxiety. He was depressed and suicidal. He told a counsellor, Heather Hall, that the source of his stress was from "wondering if I would lose my daughter." He reported that, "My daughter is the person that keeps me going". In March 2010 he was experiencing intense feelings of hopelessness and helplessness. He told Suzanne Thompson, another counsellor, that he had nothing in the world but this child.

[21] Mr. Gauthier told Dr. Roat, his psychiatrist, that this family case is the primary source of his anxiety. Dr. Roat opined that Mr. Gauthier has an adjustment disorder and is overwhelmed by stressors. His issues are rooted in his childhood and he will continue to suffer.

[22] It is natural for a parent to experience anxiety over the potential loss of a child in a custody contest. Mr. Gauthier's fears seem to be extreme. Parents are expected to be responsible for ensuring the well-being of their children. It is unfortunate that in this case Chelsea is seen by her father as the one who is responsible for his happiness and well-being. This strikes me as a reverse of a healthy parent-child dynamic. It places an enormous responsibility on the shoulders of a three year old child.

[23] While it is clear that Mr. Gauthier has serious limitations, there are several positive areas regarding his parenting that must be considered. Kelly Morgan the clinical assessor found that Chelsea has a strong bond with both her parents and to Ms. Dashney, Mr. Gauthier's spouse. Mr. Gauthier is devoted to Chelsea. He is not lacking in day-to-day parenting skills. He has no criminal record. He has held a job for many years. In September 2012 Mr. Gauthier and Ms. Dashney were due to have a child of their own.

[24] It should be noted that by the time of trial Mr. Gauthier acknowledged that he had to stop trying to undermine Ms. Gunner. He repeatedly testified that many of his errors in judgement in making baseless accusations against Ms. Gunner were because of his inexperience as a parent. He also repeatedly testified that he assumed Chelsea was being abused because of his own experience as an abused child.

[25] Ms. Gunner also has a strong bond with Chelsea. She sees her daughter one week out of four. I was concerned at trial that Ms. Gunner was spending some of her precious time in North Bay attending Bingo and going out to a bar. This concern was alleviated to some degree by taking into account that this socializing was occurring after Chelsea was asleep and was being properly babysat.

[26] I am also mindful that Ms. Gunner would have been isolated at the work site for three weeks and the North Bay visits provide a rare opportunity for social activities. I do have concerns about Trayven's poor school attendance. He missed over 40 days of school last year. I do note however that he is 14 and Ms. Gunner was working out of town for 3 weeks out of 4 during this time and would not have been in an ideal position to enforce his attendance.

[27] The evidence at trial established that Ms. Gunner has an understanding with her employer that if she receives an order for custody of Chelsea her employer will change her work assignment to allow her to reside in Kapuskasing and to commute daily from there to the work place.

Analysis

[28] At essence, this case is a mobility case. Ms. Gunner wishes to move the primary residence of the child to Kapuskasing. It is important to approach this case in a child focused way. Section 24(1) of the Children's Law Reform Act mandates:

"The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child."

[29] As set out by the Supreme Court of Canada in the leading mobility case of Gordon v. Goertz (1996), 134 D.L.R. (4th) 342:

"The focus is on the best interests of the child, not the interests and the rights of the parents."

[30] It's obvious that joint custody would not work in this case. Both parents have difficulty communicating, cooperating or compromising with each other. This is a very high conflict case. The Ontario Court of Appeal has directed that joint custody requires a high degree of effective communication between the parents especially when the children are young. (see Kaplanis v. Kaplanis [2005] 10 R.F.L. (6th) 373 at p.381)

[31] Both Ms. Gunner and Mr. Gauthier grudgingly accept that Chelsea should have a meaningful relationship with each of her parents. Chelsea has a strong bond to both of her parents. She feels safe, secure and loved in both homes.

[32] Chelsea will soon be four years old. She will be eligible to attend school in September 2013. The week-about routine that has been in place cannot be sustained as the parents reside in two different Northern Ontario locations several hundred miles apart.

[33] In Berry v. Berry (2011) ONCA 7015 the Ontario Court of Appeal dealt with a mobility case where both parents shared equal time with the child. At paragraph 10, the Court found:

"In Goertz the Supreme Court emphasized that the superordinate consideration in a mobility case is the best interests of the child determined from a child-centred perspective. The court set out….a number of factors to be considered. Taking into account that this case involves two custodial parents, these factors can be stated as follows:

• the existing custody arrangement and relationships between the child and each of the custodial parents;
• the desirability of maximizing contact between the child and both parents;
• the parent's reason for moving, only in the exceptional case where it is relevant to that parent's ability to meet the needs of the child;
• disruption to the child of a change in custody; and
• disruption to the child consequent on removal from family, schools and the community the child has come to know."

[34] The Berry decision sets out six factors to be considered in determining a child's best interest in a mobility/custody case involving parents who have parented equally in a week-about rotation. In the case at bar a temporary order of Justice Duchesneau-McLachlan dated June 17, 2010 states "The child Sofia Chelsea Jane Gunner ("Chelsea") (female) born January 27, 2009 shall be with her parents on a week-about schedule…" While the order does not award custody to either parent, it effectively put the parents on an equal footing in an interim basis until a final order could be made. The basic structure of that order has remained in effect to date. In my view the factors set out in the Berry decision are directly on point and I propose to apply them as follows:

1) The existing custody arrangement and relationship between the child and each of the custodial parents.

The existing custody arrangement has the child residing with her father for one week; with her maternal grandmother the next; back with her father for a week and finally with her mother (and maternal grandmother) for a week. In effect Chelsea would be with her father twice as much as her mother. The child has a strong bond with both parents.

2) The views of the child

Chelsea has yet to turn four. Her views are of little weight at this stage. I assume she enjoys her time with both her parents.

3) The parents reason for moving

Ms. Gunner relocated to obtain employment at a remote construction site north of Kapuskasing. She is a carpenter's apprentice. This job was available because of a company policy to employ aboriginal workers. She makes $50,000 annually with the opportunity to earn much higher wage upon completion of her apprenticeship. Such an employment opportunity did not exist in North Bay for Ms. Gunner. This is a valid reason for relocating.

4) Disruption to the child of a change in custody

If custody is granted to Mr. Gauthier Chelsea would continue to live in North Bay. This community has always been her home. If Ms. Gunner is awarded custody Chelsea would be relocated to the Kapuskasing area. Chelsea has never been to Kapuskasing. Indeed Ms. Gunner has never resided in that town.

5) Disruption to the child consequent on the removal from family, schools and the community the child has come to know.

Mr. Laplante acted for Mr. Gauthier at trial. Mr. Laplante presented a forceful argument that the child should not be relocated from North Bay. Chelsea has never lived anywhere else. She has extended family here. She has a strong bond to Shannon Dashney her step mother. I also take into account that Mr. Gauthier and Ms. Dashney were due to have a child of their own in September 2012. I am sure that Chelsea has developed a loving relationship with this infant. I note that Chelsea is not yet school age.

6) Desirability of maximizing contact between the child and both parents.

I have a serious concern about Mr. Gauthier's determined efforts to sabotage Ms. Gunner's opportunities to parent Chelsea. Mr. Gauthier has exercised very poor judgement since he separated from Ms. Gunner. From that time and even before he has embarked on a compulsive course of conduct intended to undermine Ms. Gunner. This campaign to discredit and vilify her took the form of multiple unfounded complaints against her. Whenever a bruise was observed on the child, Mr. Gauthier assumed Chelsea had been abused and he made a complaint. Ms. Dashney appears to have encouraged Mr. Gauthier in accusing Ms. Gunner. Ms. Dashney's entries in the communication book support this conclusion. Mr. Gauthier's conduct appears to be driven by his own long standing insecurities and mental health issues. Mr. Gauthier seems to be motivated by an overwhelming dread at the prospect of losing custody of Chelsea. His own well-being was dependant on retaining custody. This end justified the means to obtain it. He embarked on this course of conduct to undermine Ms. Gunner regardless of the impact it would have on Chelsea. I am concerned that if Mr. Gauthier was determined by the court to be the custodial parent he would continue to be compelled to make decisions based on his own needs and not Chelsea's best interest. I am concerned that he would continue in his relentless effort to minimize Ms. Gunner's role as a parent and to limit her contact with Chelsea.

[35] I am satisfied on all of the evidence that Ms. Gunner should be the custodial parent and Mr. Gauthier should receive access. I have been persuaded by a compelling argument made by Mr. Laplante that Mr. Gauthier's access should not be supervised. Chelsea will have enough changes to cope with without having to have her precious time with her father monitored. Mr. Gauthier has been parenting Chelsea every other week for over two years. My main concern about his parenting is his effort to alienate Ms. Gunner, not direct abuse or neglect on his part. Supervised access would not address the main concern but would seriously limit Chelsea's opportunity to spend time with her father.

[36] Mr. Gauthier should be under no illusions however. Many young active healthy and happy children develop bruises from time to time. Not every bruise speaks of abuse. Any further unfounded complaints against Ms. Gunner may affect the extent and nature of his access to Chelsea.

Final Order

[37] There shall be a final order as follows:

1. Sophia Gunner shall have custody of the child Sofia Chelsea Jane Gunner (D.O.B. January 27, 2009)

2. Denis Gauthier shall have access every third weekend from Friday at 8:00 p.m. to Sunday at 5:00 p.m.

3. This routine of access shall commence when the mother Sophia Gunner has relocated to Kapuskasing.

4. Exchanges will occur at the Kenogami Inn Highway 11 at 8:00 p.m. Fridays and 5:00 p.m. on Sundays. The parties will make reasonable allowances for weather and driving conditions. The parties are free to make alternate exchange arrangements.

5. Weekend access shall be extended by one day if the access falls on a statutory long weekend.

6. Both parents have the right to make emergency medical decisions regarding the child while she is in their care.

7. Mr. Gauthier shall refrain from making any unfounded complaints of abuse or neglect by Ms. Gunner. Any further unfounded allegations by him may amount to a material change of circumstance that may permit a review of this order that may jeopardize any further access.

8. The child's health card shall travel with her.

9. Ms. Gunner shall not relocate from the Kapuskasing area without a further order from the court.

10. The parents shall communicate with each other using e-mail or text messaging whenever possible. Communication shall occur between both parents only. Shannon Dashney shall not participate in this communication. All communication shall be civil and focused on the child's best interests. This communication shall not be used to criticize the other parent or to document complaints for litigation purposes.

11. Mr. Gauthier shall maintain contact with his psychiatrist and other mental health professionals to help him cope with his anxiety issues and the changes brought about by this order.

12. The child will spend every second March break in the care of her father Denis Gauthier commencing in 2014 from the first Saturday at noon to the last Sunday at noon.

13. The child will spend equal time with each parent throughout the summer months on a two week-about rotation with exchanges on Sundays at 5:00 p.m. The first two weeks of July will be with Ms. Gunner. The regular every third weekend access will re-commence following Mr. Gauthier's two week access period in August.

14. The child shall be permitted to speak to the other parent by phone or Skype every second night while in the care of either parent.

15. Neither parent shall speak negatively about the other parent in the child's presence. Both parents shall also make their best effort to prevent any other person from speaking negatively about the other parent.

16. Christmas access – Regardless of the regular weekend access schedule, the parents shall have the Christmas break equally. For 2013, Mr. Gauthier shall have access for the first week commencing Friday at 8:00 p.m. to the following Friday at 8:00 p.m. Ms. Gunner shall have the following week. The every third weekend routine will re-commence following the Christmas break. Ms. Gunner shall have the first week of Christmas break for 2014. Each parent will have the first week of the Christmas break every second year going forward.

17. Mr. Gauthier shall pay child support for the child Sofia Chelsea Jane Gunner in the amount of $100 per month commencing February 1, 2013 based on an annual income of $25,000. This deviates from the Child Support guidelines but takes into account that he will incur considerable cost associated with travel for access and that he is supporting another child.

18. There shall be a support deduction order.

19. Mr. Gauthier shall have s.20(5) C.L.R.A. rights to information about the health and education of Chelsea.

20. This order will come into effect upon Ms. Gunner notifying the court through counsel of her relocation to Kapuskasing.

21. Counsel may contact the Court by teleconference to discuss the implementation of this order.

Conclusion

[38] This was not an easy case to decide. I am indebted to counsel for their assistance. In particular I commend Mr. Laplante for presenting such a compelling case for his client Mr. Gauthier. Mr. Laplante's advocacy convinced me that while Mr. Gauthier is a troubled person he is not a bad person. He was profoundly damaged by his own father and is doing his best not to repeat that cycle with Chelsea. His intentions are good however his hyper vigilance about the possibility of her being abused will ultimately harm her notwithstanding his best intentions.

Released: January 4, 2013

Signed: Justice Gregory Rodgers