ONTARIO COURT OF JUSTICE

CITATION: Davis v. Kim, 2019 ONCJ 151

DATE: 2019-02-21

COURT FILE No.: Toronto 18-15620

BETWEEN:

KEITH WILLIAM DAVIS

Applicant

— AND —

MARY KIM

Respondent

Before Justice S. Clark

Heard on February 15, 2019

Ruling on Motion and Cross Motion released on February 21, 2019

Mr. Stephen Eaton......................................................................... counsel for the applicant

Mr. Matthew J. Kim.................................................................... counsel for the respondent

CLARK, J.:

1:0 INTRODUCTION

[1] This is a ruling on a motion (as amended on January 27, 2019) by the applicant father (Davis) for overnight access to the subject child, “B”, who will be 3 years old on […], 2019.

[2] Mr. Davis seeks a weekly overnight from Wednesday at 3 p.m. until Thursday morning, with exchanges at B.’s daycare. He also seeks overnight access rotating each weekend. In week 1, from Friday at 3 p.m. until Monday morning, and in week 2, from Sunday at 10 a.m. until Monday morning. (This exchange will require supervision of a third party to avoid the parties having contact with one another, due to high conflict.) He also seeks the appointment of the Office of the Children’s Lawyer (OCL) to conduct an investigation and make recommendations for custody and access.

[3] This ruling also addresses the respondent mother’s (Kim) cross-motion, dated January 29, 2019, for an order allowing access by Mr. Davis each Tuesday and Thursday from 3 to 6 p.m., and overnights only on alternate Saturdays from 10 a.m. to Sunday at 5:30 p.m. She consents to the appointment of the OCL.

[4] The motions were heard on February 15, 2019.

[5] At this time, I indicated to counsel and the parties that I would reserve and then render my ruling, hopefully, on or before February 21, 2019, time permitting, given my other time-sensitive court obligations, but in any event, before the return date for this case on March 15, 2019 in the Integrated Domestic Violence Court (IDVC).

[6] In the companion criminal matter, Mr. Davis is charged with spousal assault on March 29, 2018. This is also scheduled to be spoken to before me on March 15, 2019.

[7] For reasons that follow, Mr. Davis’ motion is granted, in part, while Ms. Kim’s cross-motion is dismissed.

[8] No order for costs is made.

[9] The temporary order is as follows:

1. The applicant father, Keith William Davis, shall have access to the subject child, B., born […], 2016

a) each Wednesday, from 3 o’clock p.m. until Thursday morning. All exchanges shall take place at the said child’s daycare.

b) on alternate weekends, from Friday at 3 o’clock p.m. until Sunday at 5:30 p.m., to commence March 1, 2019.

The exchange on Sundays shall be at the respondent mother, Mary Kim’s residence supervised by a third party of Mr. Davis’ choice.

This schedule shall be in place for two successive alternate weekends, after which time, overnight access shall be expanded to be on alternate weekends from Friday at 3 p.m. until Monday morning.

2. The Office of the Children’s Lawyer shall consider undertaking an investigation and make recommendations on the issues of custody and access.

3. There shall be no order for costs.

2.0 BACKGROUND

[10] Ms. Kim is presently the de facto primary caregiver since the parties separated in January 2018.

[11] Mr. Davis was charged with domestic assault on March 25, 2018. It is alleged that he grabbed Ms. Kim in the face and pushed her during an access visit at her residence.

[12] Subsequently, he retained family counsel in April 2018, in an effort to negotiate overnight access. Ms. Kim was opposed.

[13] Mr. Davis then commenced a family court Application on May 29, 2018, seeking, inter alia, a shared custody arrangement and an access schedule including overnights. He continues to pay child support while these issues are being litigated.

[14] Ms. Kim filed an Answer, dated July 26, 2018, seeking, inter alia, sole custody with access, but no overnights until B. is older and able to handle such an arrangement, and until Mr. Davis can demonstrate that he can control his anger and temper which he has consistently exhibited toward her in their relationship, and her concern that B. could be exposed to this as well.

[15] This case has now been properly transferred to this IDVC, as is mandated when both a family and criminal proceeding are pending. The idea is to have both streams (sometimes referred to as “the two silos”) spoken to on the same day, in the same court, before one judge, for case management and virtually any other aspects, short of trial. In other words, in its essence, it is “one judge for one family” in an effort to create a more efficient court process and to serve the parties by:

1. taking a more holistic and multi-disciplinary approach to the family issues, by facilitating, where appropriate, more access to and coordination of support services for the victim and child. By having these additional supports (such as the OCL, and in this particular case, the Barbra Schlifer Clinic), they serve as another “eye” on the parties and child, thus allowing for more contact with a parent, even where there is an alleged history of violence.

2. in the criminal sphere, the court can provide a more effective judicial monitoring to increase accountability for the alleged offender and better, or at least more sustained compliance with court orders, with a view that this will lead to improved parent-child relationships post-separation, and post-charge, thus decreasing the “risk” of violence.

[16] The goal or aim is to foster improved judicial decision-making as a result of having more information about the family, and to do justice to the imperative that a child benefits from greater involvement with both parents.

[17] It is understood, however, that if none of the legal issues in this case are resolved that the parties’ legal rights and interests in both the family and criminal courts are preserved, and that they would be entitled to a trial on the merits before another family court jurist, while Mr. Davis would be entitled to a trial in criminal court before yet another jurist.

3.0 THE POSITIONS OF THE PARTIES

[18] Mr. Davis feels that Ms. Kim is trying to “punish” him for her perception of the “wrongs” in their relationship, and therefore, makes unilateral decisions about her version of co-parenting that are not very “child-centric.” He denies all allegations of abuse, but regardless, he submits that just because the parties no longer have a sustainable romantic relationship, and are “not right” for one another, this does not mean that he would, in any way, be abusive toward B.

[19] Ms. Kim, on the other hand, submits that Mr. Davis’ anger and physical and emotional abusive behavior toward her will spill over onto B. in situations of stress. Furthermore, given his lack of engagement and parenting experience with B, renders him unable to responsibly deal with anything more than a series of short day visits. She initially did not propose any access schedule, except to say that she opposed overnights. She then modified her position, proposing a gradual schedule of one overnight per month, Saturday to Sunday, with weekly Tuesday and Thursday visits from 3 to 6 p.m. for a reasonable, but undetermined time, and then access would increase in frequency and quality. Her rationale is that this would afford an opportunity for Mr. Davis to establish a healthy parental relationship with B, while allaying her concerns about parental responsibilities stemming from documented incidents of domestic violence. This arrangement would then continue until such time as the OCL could be involved and provide their recommendations to the court. This, in her view, would also give the court an opportunity to gauge and assess Mr. Davis’ behaviours until satisfied with his parenting abilities sufficient to eliminate any risk to B.’s safety.

4:0 HISTORY OF COURT PROCEEDINGS

[20] The family case came before Justice Weagant on September 19, 2018 as a case conference. The issue of overnight access was discussed, but not resolved. It was then transferred to IDVC for October 19, 2018.

[21] On October 19, 2018, my first involvement with the case, I conducted a case conference as well. What emerged from the discussion was that Ms. Kim was opposed not only to any overnight access, but to have the OCL appointed. At this time, I granted Mr. Davis leave to bring a motion for overnight access, returnable on November 30, 2018.

[22] Ms. Kim then retained new counsel (Mr. Kim, no relation) who then contacted Mr. Eaton, counsel for Mr. Davis, seeking an adjournment of the motion. The request was opposed, given that Mr. Davis had been seeking some form of overnight access for approximately the last eight months, without success.

[23] Counsel and the parties attended court on November 30, 2018, at which time counsel Mr. Kim formally sought an adjournment so he could properly respond to the motion materials. The court did not grant it, but urged the parties to discuss the issues, since they were all together in the courthouse. This bore some fruit. A temporary consent order was crafted where Mr. Davis would have a series of 3-hour visits with B, a few 8-hour visits, and three overnights:

• Saturday December 15 from 10 a.m. to Sunday December 16 at 6 p.m.

• Friday December 21 from 10 a.m. to Sunday December 23 at 6 p.m.

• Saturday January 12, 2019 from 10 a.m. to Sunday January 13 at 6 p.m.

The motion was otherwise adjourned to my next IDVC sitting day.

[24] On January 19, 2019, unfortunately the matter was not reached, given the excessive number of cases on the docket. It was, therefore, adjourned to my next sitting day in IDVC, February 15, 2019.

5.0 THE MOTION AND CROSS-MOTION ON FEBRUARY 15, 2019

[25] The court scheduled this for a 9 a.m. start to make sure it was the first matter dealt with.

[26] The materials filed by Mr. Davis disclose that the scheduled overnights went well, and that B. was happy, slept well, and did not exhibit any anxiety or distress. On December 21/22, he took B. to spend “Christmas” with his own family in Paris, Ontario, sleeping at his mother’s place. It was Mr. Davis’ impression that B. wanted to stay longer with him, but he reminded B. that his mother (Ms. Kim) was also excited to see him and spend time with him too, and that this response seemed to satisfy B. His materials also support the claim for mid-week overnights to allow him to make a proper dinner for B. and to observe a proper bedtime routine, and then have breakfast the next morning before taking B. to daycare. This would allow him to engage in actual parenting and not just be the “visiting” parent.

[27] Ms. Kim’s materials, on the other hand, illustrate her opposition to any expansive overnights, for three main reasons:

1. It would leave her with no “free weekends” with B.

2. Mr. Davis has a lack of parenting experience with B. Even prior to his moving out in January 2018, he never expressed an interest in sharing parental time or duties such as bedtime routine.

Furthermore, while verbally expressing genuine interest in B’s health, Mr. Davis has only attended 2 of 18 pediatrician visits, and 2 of 6 specialist/clinical visits since B. was born (Mr. Davis disputes this and claims he went to 5 medical appointments and several walk-in-clinics with B.) In any event, she is concerned that although his time to be with B. is fairly “flexible,” she believes that he will continue to prioritize his own interests over those of B., and suspects that it will only get worse once Mr. Davis starts law school in September, 2019.

3. Most importantly, she still has safety concerns for B. due to Mr. Davis’ propensity to resort to physical and emotional abuse in stressful situations. More specifically, she identifies the following:

1. she has been the victim of a long history of verbal and emotional abuse almost from the very outset of their relationship.

2. starting in 2017, some of these incidents occurred in the presence of B. 3) a physical incident took place on January 28, 2017, when she was breastfeeding B. This resulted in police intervention. There had been prior police involvement also in 2012 and 2013, which led to an arrest and charge of assault, which was ultimately resolved by way of a peace bond.

3. after the March 29, 2018 incident, the Children’s Aid Society of Toronto (CAST) became involved to investigate possible safety risks to B. They determined that there was a “moderate” risk of emotional harm due to adult partner conflict, post-separation.

At this time, Ms. Kim noted a change in B’s behaviour, becoming withdrawn, confused, anxious, and easily irritable, affecting his sleep patterns and routine.

5. she claims that Mr. Davis downplays or minimizes his abusive behaviour, and even portrays himself as the “victim.”

6. although Mr. Davis has now completed a PAR (Partner Assault Response) Program as of December 2018, she has reservations that his issues have not been completely or fully addressed, as he continues to act in a domineering and controlling way, using this litigation as yet another “tool” of control.

7. given his unwillingness to accept responsibility for his actions, she believes that it is “inevitable,” and “only a matter of time” where B. will be exposed to Mr. Davis’ violent behaviour, and harmed as a result.

6.0 DISCUSSION OF GENERAL LEGAL PRINCIPLES AND PROPOSITIONS

[28] In order to better understand, appreciate, and make sense of the conduct and narrative in this case, a number of guiding principles will, hopefully, inform and animate the analysis.

[29] Best Interests – The best interests of a child is regarded as an all-embracing construct, addressing the physical, emotional, intellectual and moral well-being of the child. The court must, therefore, look not only at the child’s day-to-day needs, but also his/her long term growth and development.

[30] Access –The courts are required to give effect to the principle that a child should have as much contact with each parent as is consistent with the willingness of the person for whom custody is sought to facilitate such contact. In other words, the courts start with the presumption that regular access with the parent who does not reside with the child serves the best interests, and that it is the child who has the fundamental right to know that parent, and that only in the most unusual and exceptional circumstances will courts order severing such right and deny access. This is sometimes referred to as the “maximum contact rule”.

[31] Domestic Violence – These words are used to describe a phenomenon which is complex and multi-faceted. It is to be noted that the information set out in the parties’ respective materials has not yet been “tested”. Suffice to say that the “polarized” positions of the parties requires a somewhat conservative and cautious approach. The statement of law and caselaw tendered by counsel for Mr. Davis is useful and instructive in showing that despite a history of violence in a relationship, a temporary order for overnight access is still possible and viable. Of course, each case turns on its own facts.

[32] Overnights – Speaking in generalities at this point[^1], so that the parties can reflect on how the courts may go about deciding this issue at trial, the following points may be instructive:

1. historically, the science and literature supported an almost inviolable blanket restriction against overnights for children under age 3, and for some, even under 5. This has been referred to as the “tender years” doctrine.

2. the rationale was that it disrupted the child’s attachment or ability to develop a secure attachment with the primary caregiver, because:

• young children need a predictable, consistent and emotionally available single caregiver, which will then allow attachments to form later.

• night time separations are different from daytime, where attention needs elevate.

• although a child may be able to “manage”, it imposes additional stress having to go back and forth. Therefore, why put a child through this?

3. More recently, the pendulum has now swung, somewhat, where certain “benefits” are identified such as:

• children, even infants, can and do attach to multiple caregivers at the same time, not sequentially.

• children do best in the short and long term when they have a meaningful relationship with two parents who act with warmth and emotional sensitivity.

• separation anxiety is “normal” even for security attached children. What is important is that the child is going from one attachment figure to another, and not a “stranger”.

• By the age of 3, a child can manage these transitions better due to cognitive maturation and language development, and a knowledge that he/she will see the other parent in another day or two.

7.0 ANALYSIS

[33] Although much of the information provided by the parties is, as yet, “unproven”, there is a least some collateral and objectively verifiable third party source material which carries some weight.

[34] Ms. Kim has included a letter, dated October 29, 2018, from Jennifer Sutherland, a registered psychotherapist, who worked with the parties from August to October, 2015. Ms. Kim was pregnant at the time. They returned for more couples sessions from May to August, 2017, at which time they were discontinued due to Mr. Davis” aggressive and angry behaviour, thus, derailing the progress. After separation, Ms. Kim returned for individual therapy, from January to June, 2018. Mr. Davis has taken issue with this report being filed by Ms. Kim, as he did not consent nor waive his confidentiality and privacy rights. He is pursuing this issue further through Ms. Sutherland’s professional standards authority. This notwithstanding, he submits that the contents of the report are inaccurate.

[35] Furthermore, the court has for its consideration various CAST records, filed by both parties. Without detailing all of them, and without making any findings of fact in these motions based on this information, it would seem that although Mr. Davis does not treat Ms. Kim very well, the notes disclose no reference to him having been violent with B. It also seems that Ms. Kim acknowledges that Mr. Davis and B. love one another, and have fun together, although she worries that he will be unable to regulate his anger and may take it out on B., as he has with her. It should be noted that CAST closed its file on June 21, 2018. It was determined that there was no role for ongoing services as there were no child protection concerns.

[36] Ms. Kim is still in the process of obtaining Toronto Police Service Incident Reports from October 2012; November 2013; February, 2017; and March, 2018.

8.0 CONCLUSION

[37] This Court does not think, nor find, at this stage of the proceedings, that what is going on here are the acts of a “vengeful” mother, or a “manipulative” father, who is bringing this motion as a “litigation tactic”.

[38] By the same token, the Court is “alive” to Ms. Kim’s feelings that the “justice system” is failing her, and that she is not being “heard”, or that her concerns are not being “validated”. More specifically:

• that the police have not taken her version of events in the various incidents seriously, or that her reports are exaggerated or even false because she may have given different accounts to different officers, and that her credibility and reliability are, therefore, suspect.

• that the CAST did not “back her” and find that B. was in need of protection because they could not find that a parent/caregiver caused the child harm, and that the “society” has somehow “forgiven” Mr. Davis because they were unable to find any risk of harm to B. while in his care.

• that the IDVC does not appreciate the insidious nature of the various forms of domestic violence she has endured, or that the court cannot see through Mr. Davis’ “ruse” that this motion constitutes “litigation abuse” in an effort to exhaust her resources and force her to settle on his terms.

[39] Despite their differences, the court is certain that both parties love B. and want only the best for him. Although trite to say, the “devil is in the details”.

[40] Without sounding patronizing, both parties are reasonably insightful and thus, capable of truly placing the interests of their son ahead of their own.

[41] This is not an insoluble high conflict case. Things will get better. An ability for both to “do the right” thing for B. will emerge.

[42] Counsel, Mr. Kim, has urged the court, to “make haste slowly” with this issue. The temporary order made at this time balances these two tenets.

[43] At present this Court sees no compelling reasons, based on the evidence before me, to deny Mr. Davis the opportunity to have overnight access pending a full determination of this and other issues at trial, should it proceed in this manner.

[44] If the OCL can or will be involved, so much the better, but this is by no means a certainty, given this Court’s present understanding of the financial constraints on this facility, and the high demand for their services. Although I indicated that this is a case that “cries out” for the OCL and that I would be preparing a detailed endorsement of my principled reasons, this may not eventuate. In any event, the interests of B. cannot wait on this.

[45] Given the few, but successful overnights already experienced by Mr. Davis, it is no longer a mere “experiment” to allow it.

[46] Going forward, however, Mr. Davis would be well-advised to pay attention to the following:

• whether the allegations of domestic violence are true or not, he must continue to address the issue of self-control and emotional regulation. Although he may feel that this places him in a position tantamount to trying to “prove a negative”, since he denies this allegation, regardless, a parenting course focusing on how to cope with overnight access can only enhance his parenting skills, improve the “fun” factor with B., and most significantly, give Ms. Kim more reason to “buy in” to the possibility that he can be trusted to keep B. safe when in in his care.

10.0 ORDER

[47] A temporary order for overnight access is made as set out in paragraph 9 of this ruling.

11.0 COSTS

[48] Costs rules are designed to foster three fundamental purposes:

1. to partially identify successful litigants for the cost of litigation;

2. to encourage settlement.

3. to discourage and sanction inappropriate behaviour by litigants.

[49] It must also be understood that the awards should reflect what the court views as a fair and reasonable amount that should be paid by the unsuccessful party.

[50] The Court is also required to consider factors set out in subrule 24 (11) of the Family Court Rules including the following:

(a) the importance, complexity or difficulty of the issues.

(b) the reasonableness or unreasonableness of each party’s behaviour in the case.

(c) the lawyer’s rates.

(d) the time properly spent on the case.

(e) expenses property paid or payable.

(f) any other relevant matter.

[51] Both counsel have submitted a Bill of Costs. The amount claimed by both is staggering. This is not a criticism, but an illustration to the parties that they are both responsible and accountable for the positions they take in this litigation. This should give them both a “jolt” and a strong dose of “reality” that their decisions to litigate rather than negotiate, going forward, should be soberly re-evaluated.

[52] Should costs be awarded in this case to either party, it would have a “chilling” effect on their ability to have future access to justice.

[53] The main reason why the court decides that both parties shall bear their own costs is provided in an interpretation of subrule 24(11) (f) “any relevant matter”. Because these motions were spawned from a case conference framework, not surprisingly, parties are often at their “polarized worst” in these circumstances. Courts are trying to encourage parties to resolve their differences. At this stage parties are also waiting for the judge to say something helpful or meaningful to inform them about what to do, or not do next. Courts seldom want to add “fuel to the fire” by awarding costs to one party or the other at the conference stage. The court finds that a motion and cross-motion brought in good faith while still in “conference mode” should not “penalize” the litigants.

[54] Now that they have both had a “taste of their own medicine”, so to speak, one thing that is certain is that costs will be a very “live” issue on any subsequent motions and at trial.

[55] Finally, although not part of the temporary order, the court trusts that the parties can find a way to allow for access for at least a few hours on [xxx], 2019. What a wonderful birthday present this would be for their son.

Released: February 21, 2019

Signed: Justice S. Clark

[^1]: These propositions are extracted from an article, “Overnights for Children Under Three Years of Age: Overview of the Social Science Literature and Considerations for Practice” by Barbara Jo Fidler. To be fair, I did not raise this with counsel, who did not have this paper nor an opportunity to make submissions on this. I am merely providing this information at this time to give the parties some “food for thought” as this case moves forward. I make no definitive findings at this time.