Court File and Parties

Ontario Court of Justice

Date: 2015-12-09

Court File No.: Sudbury D 279-14

Between:

R.R. Applicant

— And —

B.T. Respondent

Before: Justice A.L. Guay

Heard on: October 27, 28, 29, November 4, 6, 2015

Reasons for Judgment released on: December 9, 2015

Counsel:

• Adam Kosnick, for the Applicant
• Réjean Parise, for the Respondent

GUAY J.:

Introduction

[1] The parties to this application are the unmarried parents of a child by the name of D.R., born on […], 2007. The father, R.R. seeks an order for joint custody of D., with her care and control to be shared with her mother on a week-about basis. The mother, B.T., wants the court to grant her sole custody of D., subject to regular access by the father every second weekend. The parties have agreed to share holidays and will provide the court with a copy of their agreement in this respect.

Brief Cohabitational History of the Parties

[2] The parties met and started living together in 2007. They separated for the first time in 2009. This separation lasted for two years, the parties reconciling in 2011. After a further two-year period of cohabitation, they separated for the second time in October 2013 for a two-week period. They separated for the final time at the end of March 2014. The parties disagreed on the date of their final separation, the mother claiming that it went back to October 2013 and the father insisting that it occurred around the beginning of April 2014.

Applicable Statute Law

[3] The manner in which a court must decide issues of custody and access in Ontario is clearly set out in section 24 of the Children's Law Reform Act (R.S.O.1990, c. C-12, as amended). Under subsection 24(1) of the Act, the court is directed to determine the merits of an application for custody or access to a child on the basis of "best interests of the child" in accordance with subsections 2, 3 and 4 of section 24.

[4] Subsection 24(2) of the Act sets out the criteria to be used by the court in determining what a child's best interests are. The court is directed to consider "all the child's needs and circumstances", including the emotional ties between the applicant and the child, the child's views and preferences, the length of time the child has lived in a stable home environment, the ability and willingness of the applicant to provide a child with guidance and education, the necessaries of life and any special needs. Also included in the list of criteria are the applicant's plans, the permanence and stability of the family unit with which the child is to be placed, the ability of an applicant to act as a parent and the blood relationship or adoption relationship between the applicant and the child. Subsection 24(3) limits a consideration of an applicant's "past conduct" if he or she has engaged in violence unless the court is "satisfied that the conduct is otherwise relevant to that person's ability to act as a parent". More specifically, subsection 24(4) addresses the existence of an applicant's past violence and abuse towards his or her spouse, a parent of the child, a member of the applicant's household or any child.

[5] Not all of the criteria for determining best interests set out in subsection 24(2) are equally important in every case. The court's duty to "consider all of the child's needs and circumstances", in fact, permits a consideration of other factors in determining what is in a child's best interests. Examples of this could be a child's links with extended family, community and friends, a child's ties to his or her daycare or school, a child's history of involvement with local sports and cultural groups, etc. In the present case, four of the criteria listed in subsection 24(2) attract attention. These are the criteria dealing with the length of time a child has lived in a stable home environment (subparagraph (c)), an applicant's ability and willingness to provide the child with guidance and education (subparagraph (d)), the permanence and stability of the family unit in which it is proposed that the child will live (subparagraph (f)), and the ability of each applicant to act as a parent (subparagraph (g)). In this case, there is also an important issue with respect to past conduct (subsection 24(3)) and its bearing on the question of what custody regime is in the child's best interests.

The Parties' Relationship

[6] I do not propose to discuss the history of the parties' relationship and behaviour in detail, but only as far as is required to illustrate who is capable of promoting the child's best interests as she continues her journey through childhood.

(a) The period between 2007 and 2009

[7] As far as can be determined, this phase of the parties' relationship was relatively peaceful when compared with later periods. It witnessed the birth of their only child, D., on […], 2007. Notwithstanding the father's claims, the evidence suggests that it was the mother and not the father who provided most of the actual childcare during this period. This is corroborated by the fact that when the parties separated in 2009, the child remained in the mother's care, the father being allowed to access D. on a regular but not liberal basis. I accept the fact that the father had had some involvement in the child's care initially but it seems clear that after the child was placed in full-time daycare at about three or four months of age, the mother took over most of the caregiving role outside of daycare hours. I accept the mother's evidence that at this stage of the child's life and at later relevant stages, she continued to be D.'s primary caregiver. Again, this finding is corroborated by the manner and extent to which access by the father and his immediate family was exercised by them and determined as a function of the mother's concerns in periods of separation.

(b) The period between 2009 and 2011

[8] This period was marked by the ability of the parties to communicate for the purpose of addressing mutual concerns. While their attempt to negotiate a separation agreement in October 2009 failed, an agreement was signed on January 18, 2010. The sticking point had been the father's reluctance to agree to a term in the agreement granting the mother custody. The father held out and the agreement which was signed stipulated that the parties were to remain joint custodians of D. I accept the mother's evidence that while she did agree to joint custody, there was a clear but unwritten understanding that D.'s principal residence was to continue being with her. While the personal relationship of the parties in this period is oblique, the evidence suggests that there was dysfunction in their relationship and that the mother may have wanted out of the relationship more than the father.

[9] Shortly after the separation agreement was signed, the parties purchased a duplex on Bessie Street in the Coniston area of Sudbury. While it may seem strange that this occurred very shortly into what was to be a two-year separation between the parties, the father's poor economic circumstances coupled with (according to the mother) her concern that D. would have a room of her own in an acceptable residence when visiting her father motivated the mother to co-sign a mortgage on that property and to become a joint owner.

[10] During this period, the father continued to have biweekly access to D., who, to all appearances, continued to remain mainly in her mother's care. The evidence does not indicate that the father sought more access to D. than he was getting. The mother's positive and supportive relationship with the father's immediate family remained intact throughout this period and continued to be amicable. By the fall of 2011, the parties reconciled.

(c) The period between 2012 and 2014

[11] The parties' relationship in this period took a definite turn for the worse. The father's dissatisfaction with the situation was complicated by some medical concerns as well as by his growing hostility and anger. His anger seemed to flow out of a general malaise afflicting him but was directed, in particular, towards the mother. While, according to the mother, he did not physically strike either her or D., there was a lot of yelling and intimidating behaviour on his part towards her. While the father disputed that he had been advised by his doctor to take counseling with respect to his anger issues, the evidence indicates that he had been encouraged to do so by her but that he rejected her advice.

[12] The situation deteriorated to a point that towards the end of October 2013, the mother took D. and separated from the father for a couple of weeks. During one of these weeks, she actually stayed with the father's mother, L.R. At one point during this separation, the father, without notice to the mother, attended at D.'s school and took her to his sister L.A.'s residence leaving the mother in a panic as to where D. had gone. The father later contacted the mother telling her that if she wanted to see D. she would have to return to the matrimonial home. Unable to figure out what to do, the mother felt that she had no alternative but to return there. That Christmas, the father refused to allow the mother and D. access to his family members, including his parents. His refusal was based on his feeling that they had interfered in his personal business. According to the mother's evidence, which I accept on this point, the father's controlling and emotionally abusive behaviour continued after that time, the father also not allowing her to have contact with her immediate family members.

[13] The mother felt that she was not able to offer the father what he seemed to want and testified that his involvement in various extramarital relationships ultimately convinced her that their relationship was at an end. As the parties still owned the Bessie St. property it was the mother's increasing hope that the father would leave what had become the matrimonial home on John Street (owned by the mother and purchased by her from the sale proceeds of her Edward Street residence in Coniston). While the father had announced his plan to move to Bessie St. he repeatedly found reasons not to do so, as untenable as the relationship with the mother had become. Finally, on February 26, 2014, he entered the mother's bedroom and sexually assaulted her.

[14] As a result of this episode and a previous threat against the mother to bury her in the backyard, the father was charged with sexual assault and threatening by the Greater Sudbury Police Service. The evidence makes clear that the mother did not go to the police to complain and cause criminal charges to be brought against the father. The evidence discloses that the investigating officer had to "prod" the mother to disclose details of the father's abusive behaviour towards her. The father's position, which I do not accept, was that he did nothing wrong and that the mother had trumped up her allegations in order to seek tactical advantage against himself and support her claim to custody of D.

[15] While the criminal charges against the father were eventually resolved by means of a peace bond in December 2014, they led him to vacate the matrimonial home; the mother returned to live there with D. Again, in the circumstances surrounding this episode, we see the mother continuing to exercise her customary care and control of D. The evidence indicates that when the mother subsequently sought to re-establish the father's access with D., the father was very upset at what he saw as the mother's attempt to continue her control of D. and dictate to him what kind of relationship D. was going to have with him. While the father may have believed this, I find that it was the mother who recognized and attempted to re-establish the father's access with their daughter in the months following February 26, 2014. While the father may have convinced his family and, in particular, his mother, that D.'s mother was attempting to impose supervision on his access to D., I do not find this to have been the case. I find that her attempt to get the father's access back on track was laudable, particularly in light of the fact that this followed his sexually assaulted behaviour towards her.

[16] It is clear that the father's response to the mother's attempt to re-establish his contact with D. resulted in him bringing pressure to bear on his parents not to cooperate with the mother in setting the extent and conditions of his access to D. As a result, the father's mother, L.R., sent an e-mail to the mother telling her that henceforth she was no longer to communicate with her and other family members except through a third party. Unfortunately, this e-mail had a very negative impact on the paternal grandparents' access to D. They and D.'s paternal aunts lost contact with her except through the ensuing biweekly access which the father had eventually regained by the end of 2014. One does not see in the father's response to the fallout from his poor treatment of the mother any concern for his daughter's best interests. Rather than trigger a reasonable response to what the mother was attempting to achieve, the father appears to have placed his own best interests ahead of those of his daughter on this and prior occasions. His conduct throughout the last period of cohabitation with D. and her mother is not that of a mature individual and father. While the mother tried to maintain a positive and open relationship with the father's family, his response to the events which unfolded and his own negative behaviour during these events led to D.'s estrangement from her paternal aunts and grandparents. This behaviour would have been stressful not only on the mother but also on D. who experienced it firsthand. One cannot act abusively to a parent and not realize that even in the absence of physical violence, emotionally negative behaviour is bound to have a detrimental effect on a child who witnesses it. The consequence of parental violence on children is well known. It is not surprising that D. has recently adopted the practice of coming to her mother's bed at night for comfort and security, even though from the father's point of view this is simply a sign of poor parenting on the part of the mother.

Relevant Criteria

[17] At the beginning of this decision, I noted that a few of the criteria set out in subsection 24(2) of the Act had particular relevance to this matter. Among these were the length of time a child has lived in a stable home environment, an applicant's ability and willingness to provide the child with guidance and education, the permanence and stability of the family unit in which it is proposed that the child will live and the ability of each applicant to act as a parent. The evidence leaves me to conclude that the father's ability to satisfy these criteria is seriously wanting whereas the mother's is not. In so concluding, I appreciate that both of D.'s parents are emotionally connected to her and that she enjoys the time she spends with each of her parents. Each of them is her natural parent and each of them also plans to parent her in the manner in which she has been parented in the past, with the assistance of their respective families. Both parents are capable of providing her with the necessities of life and meeting her special needs as they arise.

[18] When considering the factor of length of time D. has lived in a stable home environment, the evidence leads us to conclude that her principal residence has always been mostly with her mother. While the father has lived with D. during periods of time he cohabited with the mother, this has not been the case when he and the mother were separated. During these periods, and without the financial assistance of the father, the mother has been able to provide D. with a home to call her own. The mother has even gone so far as to help provide to D. a stable residence when she visits her father. The evidence discloses that the mother is sensitive to D.'s needs and not only meets those needs but is engaged with her and concerned with her development on a round-the-clock basis. The brief altercation between the mother and D.'s aunt, L.A., over the matter of a premature pickup for access in October 2014 illustrates the mother's sensitivity to D.'s needs and routine. Having literally crossed paths with L.A. earlier than expected on that occasion, the mother refused to turn D. over to her so that D. could first come home, wind down from her day at school and retrieve her pillow and favourite blanket prior to leaving for weekend access at her dad's. In the end, it is clearly D.'s mother who has provided her with a stable home and upbringing since she was born and not her father.

[19] With respect to the criteria of providing a child with guidance and education, I find the father has been remiss in this obligation. The father does not appear to have been very involved in arranging her medical or dental appointments. More importantly, having exposed D. to his anger and emotional outbursts on more than one occasion, he is hardly in a position to offer her the guidance she needs when problems arise in the future. The father's willingness, also, on more than one occasion, to get back at his immediate family for collaborating with D.'s mother, thereby causing D.'s contact with those family members to be lost, suggests that the father will put his own needs before those of his daughter when the situation motivates him to do so. Not only is this not appropriate "guidance" for a young child, but it suggests that a child who is exposed to this kind of response to difficult situations will be emotionally damaged and learn inappropriate coping strategies for dealing with crises in her life. Such crises are bound to occur later in her life.

[20] The last subsection 24(2) criteria to be considered in determining the best interests of a child in this case is that concerning the ability of an applicant for custody to act as a parent. Generally, parenting is a skill learned through experience. We may take courses and learn from our own parents how to actually parent our children, but it is we ourselves who must rise to the occasion when called upon to do so and use the personal abilities and intelligence that we have to carry out this task. When the Act talks about ability, it is looking at the known experience of applicants for custody or access in carrying out this task. A review of the evidence with respect to parenting in this case indicates that the child's primary parent has been her mother since the day she was born; she continues to be so. It is notable that, notwithstanding the father's sexual assault on her on February 26, 2014, the mother would take the initiative in re-establishing the father's access to their daughter. I find that much of the mother's conduct during the course of her relationship with the father was predicated on a commitment to properly parent their daughter and do what is in her best interests. While she had agreed in January 2010 to a joint custody regime with the father, she did so only with the clear understanding that she would be the primary parent of their daughter. I accept her evidence on this point. Why, given his past experience with her, the father would have been concerned about being sidelined by an award of sole custody in the mother's favour, is puzzling. The evidence strongly suggests that the father did not really want the obligations associated with a joint custody arrangement at this time and that he was mainly interested in trying to protect his own parental status. His conduct since D.'s birth shows that he has had other priorities than actively parenting a young child. He persisted in remaining, from his viewpoint, in a failed relationship with the mother, refusing to vacate the matrimonial home because it suited him to cling to the illusion of a marriage and a family, a marriage and a family which his conduct would have the effect of destroying. Rather than withdraw to his own residence, which had been provided to him in part with the assistance of the mother, he chose to force her out of what was in effect the home she purchased with money obtained from the sale of her previous home. He neglected to see that his daughter, D., was both a witness to and a recipient of the negative, emotional fallout resulting from this rapidly deteriorating situation. The evidence indicates that over and over, the father sought control over his family and that he was willing to use intimidation, pressure or threats to maintain that control over his daughter, his spouse and family. To be sure, the father is not without parenting skills, but he lacks the maturity required of a person asking to be granted custody or joint custody of his daughter.

Effect of Conflict on Child Development

[21] In his closing argument, the mother's counsel drew attention to the effects of parental conflict on children, often long after the dust of angry personal feelings and legal arguments has settled. In Young v. Young (, [1993] S.C.J. No. 112, [1993] 4 S.C.R. 3, 108 D.L.R. (4th) 193), the Supreme Court of Canada felt obliged to consider this issue, pointing out:

Nonetheless, a number of conclusions about the effects of divorce on children emerge with remarkable consistency in all of the major studies and psychological literature on children after divorce. One of the most important of these is the role of conflict in the welfare of the child. Along with the quality of the relationship with the custodial parent and the ability to maintain contact with the non-custodial parent, there is substantial evidence that continuing conflict is the most important factor affecting the ability of children to readjust to the new family situation after divorce (Weisman, supra, at pp. 47 – 48). It appears that, above and beyond the disruption caused by divorce or separation itself, it is the discord and disharmony within the family which are most damaging to children in the aftermath of divorce.

Two of the major studies on divorce and the effects of conflict on the emotional and psychological well-being of children forcefully make the point that the ability to reduce conflict is crucial to the welfare of children. (para. 105-106)

Continuing, the Court noted:

Moreover, Wallerstein and Blakesley reported in the later study that problems and conflicts in some children resulting from divorce did not manifest themselves until much later, particularly in the case of girls [my emphasis] who in the earlier study had generally appeared to cope better with divorce than boys. Rather, it appears that the long-term effects of divorce cannot always be predicted from the reactions of children at the outset. (See Wallerstein and Blakesley, supra, at p. 15.)

At the five-year point, Wallerstein and Kelly concluded that, while no factor could in every case be associated with good outcome, the extent to which conflict between the parents had been resolved was the single most important factor in the well-being of the child. Following interviews ten years after their initial contact with the subjects, Wallerstein and Blakesley again identify prolonged hostility between the parents as the single most destructive outcome for the children of divorce. (paras. 106-107)

[22] A review of the evidence in this case indicates that while, except for the events of February 26, 2014, there was little or no physical violence exhibited by the father, he went around the house angry, yelling and, whether he realized it or not, behaving in an intimidating manner. At one point, his young daughter wrote him a note asking him why he was always angry. The father's depressive mood and anger seem to have had unknown causes. While he took some steps to address this situation, he does not seem to have succeeded in doing so. During the final phase of the relationship, he seems to have sought solace in extramarital affairs, thereby further adding to the dysfunction in his relationship and the consequent stress level in the home. This made his refusal to remove himself from the matrimonial home all the more difficult to understand, he promising but refusing to do so. While D. does not seem to have been badly affected by the disintegration of her parents' relationship, her apparent desire to sleep in her mother's bed suggests that the tension which has arisen between her parents may be bothering her a lot more than is apparent. Perhaps with time, this tension between her parents may abate. Hopefully, for her sake, her father will realize the impact his behaviour and anger has and can in the future have on her development and emotional well-being.

The Father's Claim for Joint Custody

[23] Having considered the evidence in this matter and, in particular, the manner in which the parties have carried out their parental roles in the past, it is clear that the father's request for joint custody and for an equal sharing of his daughter's care with her mother would not be in his daughter's best interests. The evidence discloses that the parties have not communicated with each other directly since August 2014. While the father was under a legal obligation not to communicate with the mother directly between April 2014 and December 2015, he nevertheless chose to do so and, in the process, ignore an existing criminal court order. Once again he took advantage of her fragility and fear and created a situation where she was pressured into dealing with him directly. He forced her to talk to himself not only about their daughter, D. (his reason for doing so ostensibly being his concern for D.'s emotional health), but also about other outstanding issues between them, such as child support (he wanted her to forego a claim to any) and forgiveness of a $10,000 loan he unilaterally accessed through their joint line of credit. The father's attempts to talk with the mother directly and in doing so pressure her to comply with his wishes is largely the reason that she no longer wants to communicate with him, court order or not.

[24] The evidence discloses that while the mother for a long time did her best to communicate with the father in the best interests of their daughter, his conduct towards her finally made such communication unworkable. The mother remains apprehensive as a result of the father's past behaviour towards her. I find that she has good reason to be. This is certainly not, as the father infers, a case where one parent is trying to avoid communicating with the other for the purpose of making a joint custody order possible. In Kaplanis v. Kaplanis (, 249 D.L.R. (4th) 620, 10 R.F.L. (6th) 373), the Court addressed the issue of the impact of the inability to communicate on a claim for joint custody, noting:

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. (para. 11)

[25] In the companion case of Ladisa v. Ladisa (, 11 R.F.L. (6th) 50, 193 O.A.C. 336), the Court again addressed the issue of joint custody, this time (as opposed to Kaplanis (above)) affirming the trial court's decision. In rejecting the argument that the strife ("intense conflict" in the words of the trial judge) which had existed between the parents prevented an order for joint custody being made, the Court stated:

In my opinion, it was within the trial judge's discretion to make the order she did respecting Jordan and Jessica. The trial judge's conclusion took into consideration the history of co-parenting by the parties while they were married and the ties that the children had to both their parents. With respect to communication and cooperation, the trial judge considered the evidence of third parties respecting the parents' interaction with their children. She was satisfied that, despite their strife, when necessary, the parents could and had communicated effectively and put the interests of the children ahead of their own. (para. 16)

[26] What these cases tell us is that where there has not been a history of cooperation and communication between parents, the court ought not to foist upon them an order for joint custody that will simply not work. If there has been a history of cooperation and communication, the strife arising out of divorce or separation will not necessarily contraindicate an order for joint custody. In the present case, there had been an inability by the parties to cooperate and communicate with each other on matters touching their daughter's needs and best interests. This ability clearly eroded with their relationship until, I think, the father's sexual assault on the mother and his conduct towards her during the course of the separation which ensued. What was left of their ability to cooperate and communicate with each other with respect to their daughter's needs was, I find, destroyed by the father's focus on his own best interests.

Child Support

[27] On November 5, 2014, this court made an order for interim child support in the amount of $570 per month on the basis of the father's gross annual income of $62,000. The order also provided for an extraordinary expense payment of $150 per month for the father's share of daycare expenses. Prior to that date, the father had been employed by the City of Greater Sudbury earning close to $68,000 per annum. He had recently started employment with a private trucking company where he was earning a somewhat smaller income.

[28] While he was questioned about his current income, the father failed to provide satisfactory evidence and documentary corroboration for what he did tell the court. He testified that he was then currently earning about $1000 a week. His evidence about the net income he received from rental of the Bessie St. property was vague. He did not provide a fresh financial statement or proof of his income for 2015, even though this information had been requested by the mother. While the father indicated that he was paid by tonnage for the material he hauls, it was not possible to accurately calculate what actual income he was making. Taking therefore his past and estimated current income from employment as well as the net rental income he receives from the Bessie St. property into consideration, I impute a gross annual income to him of $62,000.

[29] On the basis, then, of a gross annual income of $62,000, the father shall pay to the mother child support for one child in the monthly amount of $565 commencing 1 December 2015 (in accordance with the Child Support Guidelines). In addition, the father shall pay to the mother the sum of $150 per month for his share of the daycare costs. Given the evidence at trial that the applicant stopped paying for daycare costs on or about April 1, 2014, the father's obligation to pay this expense shall be retroactive to that date. The mother shall provide receipts for such expenses to the father on a semi-annual basis.

Conclusion

[30] D.'s mother has demonstrated a history of consistently making decisions in her best interests; her father has not. Would one realistically expect this situation to change if the father were given more control than he now has over D.? The evidence strongly suggests otherwise. An order for joint custody would be unworkable in this case. The court cannot grant to the father the opportunity to cause more stress and conflict in his daughter's life than he already has.

[31] There will, therefore, be an order for custody in favour of the mother. This order will be subject to regular, biweekly access by the father. Access visits will commence at 6:00 p.m. on Fridays and end at 7:00 p.m. on Sundays. Should either a school professional development day or a public holiday occur on a Friday preceding or a Monday following an access weekend, that day shall be added to the weekend access unless, of course, the parties agree differently in drafting the holiday access schedule they have undertaken to provide for inclusion in the final order.

Costs

[32] The parties did not address the matter of costs before me at the conclusion of the trial. I am inviting them to set an appointment to do so before me through the Trial Coordinator at a time and date convenient to them. They shall prepare a Bill of Costs for that purpose.

Dated at Sudbury this 9th day of December 2015

Justice Andre L. Guay, Ontario Court of Justice