Court Information

File No.: D57562/12A5

Date: 2013-08-12

Ontario Court of Justice 47 Sheppard Avenue East Toronto, Ontario M2N 5N1

Parties

Between: Nathalie Mashika, Applicant (mother)

And: Victor Kasweka, Respondent (father)

Before: Justice Robert J. Spence

Heard: 1 August 2013

Reasons for Judgment released on: 12 August 2013

Counsel

For the applicant, mother: Mr. Wiri Kapurura

For the respondent, father: Mr. Chad Rawn

Nature of the Case

[1] The mother in this case seeks an order for sole custody of the parties' three year-old child. The father seeks an order for joint custody.

Trial Process

[2] In order to minimize actual trial time, and therefore facilitate a speedier scheduling of the trial itself, each party's evidence-in-chief was filed in affidavit form in advance of the trial. Accordingly, the court attendance at trial was for the limited purpose of cross-examinations and submissions. Only the parties themselves testified at trial.

Background

[3] The parents are both immigrants from the Democratic Republic of Congo. The father has been in Canada since 1999, the mother since 2008. They met and began an intimate relationship in 2009. Their son was born in October 2009. The parties were married in August 2010. They separated in February 2012. The child has lived continuously with the mother since the date of separation.

[4] The mother initiated these court proceedings in September 2012 and retained counsel to represent her. The father was subsequently served and he retained his own lawyer and prepared an Answer/Claim in October 2012.

[5] On January 24, 2013, with the assistance of both counsel, the parties entered into a temporary consent order whereby, inter alia, the child would continue to live with the mother and the father would have specified daytime access. That is the parenting arrangement which has remained in place until now.

Mother's Allegations

[6] The mother claims that during the course of their marriage, the father inflicted physical and emotional abuse on her. She also claims that the father forced her to have sex with him on a number of occasions, against her will.

[7] Shortly before the parties separated, the mother says that the father "grabbed an iron and threatened to hit me" with it. This, she says, occurred in the presence of their child. Mother did not report this incident to the police.

[8] She says that during their relationship there were many times when the parties attempted to discuss child-related matters but that, typically, these discussions ended with the father hurling insults at the mother. Often these exchanges became so embroiled in conflict that mother would end up in tears. She said that the child would see her crying and would come up to her and say "mommy don't cry".

[9] Following the separation, the mother says that the father often made harassing telephone calls to her. In one way or another, father's harassment of the mother became so frequent that the mother eventually reported this to the police on May 29, 2012. The mother filed the police report as corroboration of her testimony.

[10] On November 22, 2012, after the commencement of this litigation, and after each party had counsel in place, the mother says that the father confronted her at a bus stop and began to accuse her of cheating. When the mother asked him to leave her alone and to communicate only through counsel, she says that he escalated the incident by yelling at her and humiliating her in a public place, by calling her a "whore" or "prostitute".

[11] Immediately afterwards, the mother told her lawyer about this incident and, in turn, her lawyer wrote to father's lawyer to report the father's conduct. Mr. Kapurura's letter dated November 23, 2012 was filed as an exhibit. There is no evidence of any response from the father's lawyer.

[12] Mother says that following the separation, she decided to seek domestic violence counselling through Oasis Centre Des Femmes ("Oasis"). Mother filed as an exhibit a letter from Oasis dated November 29, 2012 confirming that she had been attending counselling since October 19, 2012. The Oasis counsellor who wrote that letter stated:

[mother] receives counselor services after experiencing conjugal violence which had impacts [sic] on her psychological and emotional health. We work on her empowerment and her self-esteem. In addition, she manifests symptoms of trauma, difficulty of sleep, fear, and sadness being in this condition.

Even after leaving her abusive relationship, [mother] still gets harassment from her partner who threatens her to make her life hard. The last event been [sic] reported by my client was on November 22nd, 2012. As a result of this, her stress level has increased making her live in a constant fear.

[13] Mother alleges that when they lived together, she and the father found it "difficult" to make joint decisions. She cites one example where the parties were unable to agree on what kind of milk to feed their child, specifically breast milk or bottled milk. The mother says she wanted to follow the doctor's recommendations, but the father would not agree.

[14] Mother is adamant that the history of conflict between the parties is such that it would be next to impossible for the parties to cooperate in a joint custody arrangement.

The Father's Position

[15] The father denies the mother's allegations that he inflicted emotional and physical abuse on her. He denies that he ever forced her to have sex against her will, stating that their sexual relations were always consensual.

[16] He denies the mother's allegation that he threatened to hit her with an iron.

[17] He does acknowledge that "we both had raised our voices with one another" in the presence of their child.

[18] He denies that he was insulting toward the mother when he and the mother spoke at the bus stop on November 22, 2012. However, he does acknowledge that mother made it clear to him that she did not wish to discuss the issues with him in public and that they should go through their respective lawyers. He says "there was nothing about [that interaction between them] that would necessitate [mother] seeking domestic violence counselling."

[19] He further denies that the parties were unable to make joint decisions together. In reference to the dispute about breast feeding versus bottle feeding, he states that the mother "misunderstood the doctor's advice". On the other hand, he asserts that he did fully understand the doctor's advice. Essentially, he says that he got it right, whereas the mother got it wrong.

[20] He says that mother wishes to be the sole custodial parent because she was "emotionally hurt by the events of our relationship and marriage", acknowledging that there was "some tension and uneasiness between us during our separation in 2012".

[21] In support of his argument that joint custodial decision-making is workable, he points to the parties' ability to cooperate in respect of terms of access, arranging pickup and drop-off locations, as well as some other procedural matters pertaining to the court process.

[22] Father believes it is in the child's best interests for there to be a joint custodial arrangement because he is able to provide valuable input into the important decisions in his son's life.

[23] Another reason he believes this to be important is that the child is a male and, accordingly, would benefit from having a male parent make decisions in his life. Father believes that mother would be better suited to make certain decisions for their child if that child were a girl.

[24] When father was asked in cross-examination how joint decision-making could be carried out in the context of mother having to attend domestic abuse counselling, he responded, "I followed the law of the Bible".

Analysis

[25] It is clear from the foregoing that there is a difference in the parties' perceptions of how the events unfolded in their lives, both before as well as following their separation. To some extent, the allegations levelled by mother, and the father's almost complete denials of those allegations, presents the court with a case of he-said, she-said.

[26] However, apart from her bare testimony, the mother has provided corroborative evidence which, in my view, tends to support her allegations. For example, she filed the police report with respect to the incident in May 2012.

[27] She also filed the letter from Oasis confirming her attendance at domestic abuse counselling since October 2012. While I appreciate that much of the content of that letter can be seen as little more than self-reporting on mother's part, the letter nevertheless confirms her attendance at the counselling itself.

[28] As to the incident on November 22, 2012 when the mother says the father humiliated her in public by calling her a "whore", the letter from her lawyer the very next day – without any response from the father's lawyer – is some corroboration of that incident.

[29] Further corroboration of that incident can be found in the letter from Oasis. As noted above, that letter was written by Oasis on November 29, 2012, only seven days after the incident complained of by mother. It strengthens mother's allegation about what occurred, suggesting that the incident between the parties was so serious that mother felt compelled to report it not only to her lawyer right away, but also to her domestic abuse counsellor at Oasis.

[30] Overall, having listened carefully to the parties' evidence, and having reviewed the documentary evidence filed, I have concluded on a balance of probabilities that the mother's version of the parties' history when they lived together, and the incidents following their separation, more likely represents the truth in respect of how the parties interacted with one another. Where the father's version of the events conflicts with the mother's, I accept the mother's version of those events over the father's. In my view, determining this credibility issue is critical to deciding the issue of sole versus joint custody.

[31] Father's counsel submitted the case of McDonald v. McDonald, which stands for the proposition that the mere refusal by one parent to agree to a joint custody arrangement "is not a sufficient basis" for the court to refuse to make such an order. (at paragraph 6 of that decision).

[32] At paragraph 11 of that decision, the court correctly pointed out certain advantages of a joint custody order, including:

the psychological advantage of allowing a parent to feel that they are participating equally in the life of their child and have the right to make some important decisions affecting their child's future.

[33] There is no question that where the parents have the ability to cooperate in joint decision-making, this is generally preferable to one parent making all the decisions unilaterally.

[34] However, this consideration must be weighed in the context of the leading case of Kaplanis v. Kaplanis, 249 DLR (4th) 620; 10 RFL (6th) 373; 194 OAC 106. In that case, the Court of Appeal stated at paragraph 11:

The fact that one parent professes an inability to communicate with the other parent does not, in and of itself, mean that a joint custody order cannot be considered. On the other hand, hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for the making of an order of joint custody. There must be some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another. No matter how detailed the custody order that is made, gaps will inevitably occur, unexpected situations arise, and the changing developmental needs of a child must be addressed on an ongoing basis. When, as here, the child is so young that she can hardly communicate her developmental needs, communication is even more important. In this case there was no evidence of effective communication. The evidence was to the contrary.

[35] In my view, the Court of Appeal's comments are germane to the facts of this case. While I accept that the parties did manage to cooperate with one another over a number of matters once the litigation commenced, they did so only after retaining their respective counsel and, again, only after the commencement of the litigation. There is very little, if any, history of effective communication and cooperation prior to the separation of the parties. Nor is there evidence that would permit this court to conclude that once this litigation has come to an end, and their lawyers are no longer on the scene to manage the process, the parties will be able to "communicate effectively with one another".

[36] Furthermore, it is particularly concerning to the court that the conflict between the parties occurred, at least to some extent, in front of their very young child. And it is clear that the mother bore the emotional brunt of this conflict when she stated that their child became upset when he witnessed the mother crying – something which the father did not deny.

[37] Although the father did not say this was crucial in his reasoning for joint custody, it is also concerning that he views himself, because he is a male, to be better positioned to make certain decisions for his male child, whereas he stated in his cross-examination that the mother would be better positioned to make certain custodial decisions if their child were a female.

[38] All of the foregoing persuades me that a joint custody order would be a recipe for further conflict and an almost-certain return to court to resolve that conflict. It should be the court's objective in making any custody orders to obviate the need for parties to return to court, as ongoing conflict would likely impact the child, whether directly or indirectly.

[39] It is trite to state that any ongoing parental conflict over the decision-making process would not be in the child's best interests.

[40] Finally, there is no evidence that the mother has been doing other than an excellent job as the de facto custodial parent in the past year-and-a-half since the parties separated.

Conclusion

[41] This young child is fortunate in that he has two parents who both love him and who are both committed to devoting their time and energy in doing the best they can for his benefit and wellbeing. Unfortunately, the evidence discloses that the parental dynamics prevent the mother and the father from doing this in a cooperative manner.

[42] Nevertheless, I consider it to be in the child's best interests that, to the extent a sole custody order permits, there be active involvement by both parents in the raising of their son.

[43] To that end, I make the following order on a final basis:

1. Mother shall have sole custody of the child.

2. Father shall have direct access to third-party service providers for the child, without the need to obtain the mother's consent. Without limiting the generality of the foregoing, these will include the child's school records, the right to speak directly to the child's school officials, medical and dental records, the right to speak directly to the child's physicians and dentists, as well as direct access to all other providers of services for the child.

3. Prior to making any decisions of a custodial nature, other than emergency decisions, the mother shall seek the father's input, bona fide. She is at liberty to do so in-person, by telephone, or electronically, as she chooses. She shall give the father a reasonable opportunity to respond before making the final decision. The father is at liberty to respond, provided he does so in kind, and further provided that he does so respectfully, and that he limits his comments directly to the issue at hand. Should the father be opposed to the mother's proposal, the parties will engage in a reasonable dialogue, but in the event the parties are unable to agree, the mother shall have the right to make the final decision.

[44] I wish to convey a message to the parents. I expect both of them to act with the utmost respect and civility toward one another should decision-making discussions ensue. These discussions are not an opportunity for either party to rail against the other for past wrongs, real or perceived. Given my earlier findings, this caution is directed particularly to the father.

[45] And for mother, I urge her to keep in mind that the discussions are to be carried out in good faith. In other words, she is not simply to pretend to go through the motions of seeking father's input, having decided in advance that ultimately she will ignore whatever he has to say.

[46] Although this trial was about custody only, I note in reviewing the court record that the access and child support orders are both temporary. I would have preferred it had counsel raised the need to finalize all issues at the same time. However, for whatever reason, they did not do so. I strongly encourage the parties to be reasonable and to finalize these issues without returning to court. In the meantime, and pending receipt of Minutes of Settlement on the outstanding issues, I have set a target date of October 1, 2013 @ 10:00 a.m. for the next case conference return date.

Justice Robert J. Spence

12 August 2013

Footnotes

[1] The mother testified at trial in the French language, through an interpreter; the father testified in English.

[2] The mother's testimony was in French and the interpreter used the word "whore", whereas the father testified in English and used the word "prostitute" in his denial of mother's allegation.

[3] The incident at the bus stop referred to immediately earlier in these reasons.

[4] See earlier in these reasons for the salient extract from the Oasis letter.

[5] To be clear, this is not intended as a criticism of father's lawyer.

[6] Which the father acknowledged in his testimony.