Court File and Parties

COURT FILE NO.: 07-FA-014889 FIS
DATE: 2012-08-31
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MONIKA WYSZYNSKI, Applicant

AND:

GARFIELD EGBERT BRAHAN, Respondent

BEFORE: Justice Spies

COUNSEL:
Marlo K. Shaw , for the Applicant
Garfield Brahan, the Respondent in person [1]
Catherine Bellinger, the Children’s Lawyer

HEARD: August 30, 2012

ENDORSEMENT Re logan

[ 1 ] The Applicant Mother’s motion for an order that she be granted temporary sole custody of Logan, age 13, was adjourned to August 30, 2012. For reasons already released, [2] I have granted her motion with respect to terminating a restraining order and her requested relief with respect to the other children of her common law relationship with the Father, namely their daughters Vivienne, age 8 and Nikita, age 14.

[ 2 ] With respect to Logan, the Mother seeks an order that he return to live with her as he did from the time of separation in 2007 until May 27, 2012. She seeks an order for temporary custody as well. The Father seeks an order that Logan continue living with him and that he continue to have temporary sole custody of Logan as ordered by Greer J. on May 29, 2012.

[ 3 ] The position of Ms. Bellinger, for the Children’s Lawyer, (“OCL”), is that Logan’s primary residence should continue to be with his Father, which is what he wishes, even though that might mean changing schools for his Grade 8 year. Ms. Bellinger recommends however, that the Mother be granted temporary sole custody of Logan to ensure that he will continue to have access to his Mother and sisters. There is a concern that the Father will not facilitate access otherwise and ultimately alienate Logan from his Mother.

[ 4 ] At the conclusion of argument yesterday, I advised everyone that I would make a temporary order today so that Logan knows where he will be living and going to school next Tuesday, and that I would provide written reasons for my decision as soon as possible. I have been able to consider not only my order but also provide my reasons for that order. As set out in more detail below, I have concluded that the Father should continue to have temporary custody of Logan and that Logan should live primarily with his Father, but this presumes Logan will have regular access with his Mother and sisters. I hope these reasons will help the parents understand how I have come to this extremely difficult decision.

[ 5 ] I will not repeat the history of the conflict in this family since 2007 or the earlier orders made by this court as all of those facts are set out in my earlier Endorsement and Supplementary Reasons for Decision.

[ 6 ] Ms. Szende, the Clinical Investigator with the OCL, in her affidavit sworn August 13, 2012, ascertained Logan’s wishes when she met with him on June 15, 2012 and August 2, 2012. She reported that Logan has consistently stated that he wishes to live with his Father, that over time access with his Father has increased and that until the events of May 27, 2012, Logan was spending alternate weekends and extended vacation time with the Father. Logan did vacillate on whether he wanted to see his sisters but that may have been because he was concerned about saying anything that would jeopardize his wish to remain living with his Father. When Ms. Szende reported to the court for the motion heard in December 2011 by Justice Herman, sMs. Szende was of the view that “Logan appears to be burdened by the protracted conflict”. She does not repeat this in her affidavits for this motion and in any event the conflict was inevitable given the events of May 27 th .

[ 7 ] At my request further information was provided for the motion with respect to Logan. In addition to his report cards, Ms. Szende met with him again at my request to ascertain how Logan felt about leaving Maryvale Public School and attending a new school. He told her that he preferred to go to Pierre LaPorte Middle School and that he could see his friends from Maryvale when he visited his Mother. He remained consistent in his wish to live with his Father.

[ 8 ] Although it is clear that I must make a decision that is in Logan’s best interests, how best to address that depends on balancing a number of competing factors. There is no doubt that both parents love Logan very much. On the one hand, if I grant the Mother’s motion, all three children will be back together with her which is what the status quo was since the parties’ separation in June 2007. In addition it will mean that Logan will be able to complete his Grade 8 year; his graduation from primary school, at Maryvale. I have reviewed his report cards for Grades 5 through 7 and it is clear that he has made a lot of friends at Maryvale, that he participates in sports there and he is doing well academically. Apart from the Father’s recent statement to Ms. Szende that he would return to Jamaica if Logan does not live with him, it could be expected that Logan would continue to see his Father as before. I should state clearly however that I have not considered the possibility of the Father returning to Jamaica in coming to my decision in this matter.

[ 9 ] There is as well the very real concern that based on the Father’s past conduct, Logan may become alienated from his Mother, which appears to be what has happened with her older son Jordan. That was one of the reasons Herman J. dismissed the Father’s motion when the issue of custody of Logan was litigated in December 2011, even though she knew then that Logan wanted to live with his Father. I am also concerned that the Father has not ensured at least some contact between Logan and his Mother since my order terminating the restraining order. I do not know however if he was made aware of the request by Ms. Shaw of Ms. Keser for the Mother to see Logan this past weekend, given Ms. Keser was not able to firm up her Legal Aid retainer.

[ 10 ] On the other hand, Logan has been clear and consistent in his wish to live with his Father. At the age of 13, I have serious concerns about what might happen if I compel him to return to live with his Mother. In addition, as the Father submitted, the Mother has her hands full with Nikita. As I stated in my Supplementary Reasons for Decision, the Mother has deposed that Nikita is a troubled, depressed and angry teen and that her behaviour deteriorated in December 2011 when she learned that Logan would continue living with them. She believes that Nikita requires counselling but that she has been unwilling to access services despite her attempts. She has made arrangements for Nikita to go to Youth Link. Whether she will comply remains to be seen. The Father agrees that Nikita needs counselling.

[ 11 ] Nikita is clearly difficult to manage which is likely what led to the charge against the Mother on May 27 th in the first place. I agree with the Father that there is a legitimate concern as to how her conduct and interaction with her Mother could impact Logan who is so close in age to her, particularly given the evidence of the Mother as to her reaction when she learned Logan would continue living with them.

[ 12 ] In balancing these competing factors, I find that the likely impact on Logan of the difficulties right now with Nikita and his clear wish to live with his Father are both important factors in deciding this motion in favour of the Father. I have decided that provided Logan continues to have time with his Mother and his sisters on a regular basis that at least for now, he should remain living primarily with his Father. This accords with his wishes and reduces the potential for any adverse impact the conduct of Nikita and her relationship with her Mother could have on him. It will also give the Mother more time to devote to Vivienne who is only 8 and has clearly been hurt by all of the events of these past few months.

[ 13 ] As for temporary custody, given the order I have made as to where Logan will primarily live, I have concluded that the recommendation of the Ms. Bellinger that Logan live with his Father but that his Mother have sole custody is unworkable. As Ms. Keser pointed out when this matter was argued on August 21, 2012, if Logan is going to live with his Father, his Father needs to make decisions for Logan.

[ 14 ] When I asked Ms. Bellinger about her rationale for this particular recommendation she advised me it was to protect the relationship between the Mother and Logan given the concern about alienation by the Father. As I have already stated I share that concern. I believe however that the order I have fashioned with respect to access between the Mother and Logan and the Father and Vivienne, as set out below, which will mean Logan and Vivienne are together every weekend, is what is in the best interests of these children. I wish to emphasis that my decision with respect to primary residence and temporary custody in favour of the Father is predicated on my expectation that the order as to access will be complied with and in particular that the Father will exercise access with Vivienne and that he will ensure Logan has access with his Mother. Logan is old enough now to understand as well that it is important to this Court that he maintain his relationship with his Mother in accordance with this order and that if he does not, the Mother will come back to court and the order as to temporary custody could be changed so that Logan return to live primarily with his Mother. I trust the Father will ensure this is clear to Logan if he expresses any reluctance to see his Mother and sisters.

[ 15 ] I have also concluded that Logan should go to Pierre LaPorte Middle School this September for Grade 8, which is five minutes from the Father’s home, rather than take a long bus trip to Maryvale. Logan is athletic and has made friends at Maryvale and he is doing well there, but there is no reason to believe he will not make friends at this new school and do well there, particularly as this is where he wants to go to school. He says this school has lots of teams and I expect, given my decision, that his Father will ensure that he have the opportunity to play football if that is his wish or other school sports as that will be an important way for him to integrate into a new school for his graduation year. I also expect the Mother to ensure that Logan continues to have contact with his friends from Maryvale when he is with her.

[ 16 ] At my request, Ms. Bellinger advised the Court that she and Ms. Szende would remain involved with this family and periodically interview the children. Both parents were in agreement with this suggestion and this will ensure that what I have intended with my order is working and is in the best interests of the children, given the high conflict between their parents. I express again my thanks to them both for the support they have provided for some years now to this family and for their ongoing assistance to the court in this regard.

[ 17 ] I have also assumed that as in the past the Children’s Aid Society (“CAS”) will remain involved with this family on a voluntary basis to provide assistance as needed, particularly with respect to the counselling that Nikita clearly needs.

[ 18 ] Accordingly, for these reasons, a temporary order shall go as follows:

1. The Respondent Father shall have temporary sole custody of Logan Lee Wyszynski-Brahan, born September 6, 1999, and his primary residence shall be with his Father subject to access with his Mother as set out below.

2. Logan will attend Pierre LaPorte Middle School this September for Grade 8.

3. Every other weekend, the Mother shall have access to Logan from after school on Friday to Monday morning. If the Friday is a school holiday the pick up time shall be noon on Friday. This access shall commence this Saturday morning, September 1, 2012, at 10:00 am. Because Logan will need time with his Father on Monday to get ready for school on Tuesday, the access to the Mother this weekend will end on Sunday, September 2, 2012, at 7:00 pm. Otherwise, if the Monday is a holiday, the access is extended until Tuesday morning for the start of school.

4. The parents clearly cannot communicate with each other and I agree with the Mother that Logan is still too young to travel the entire distance between his parents’ homes alone, by TTC. Accordingly, unless the Mother prefers to pick him up directly from school or another pick up point and drop him off there, the Father shall bring Logan to a point within a five minute walk from the Mother’s home and pick him up at the same location on the Monday morning so that the Mother does not have the burden of transportation. I trust that with the ongoing involvement of the CAS and the OCL that the specific times and place of drop off and pick up can be agreed upon to avoid further conflict between these parents.

5. Every other weekend, commencing Friday September 7, 2012, the Father shall have access to Vivienne Wyszynski-Brahan, born December 22, 2003, from after school on Friday to Monday morning when school starts. If Monday is a holiday, the access is extended until Tuesday morning. This way Vivienne and Logan will be together every weekend, either with their Mother or Father.

6. With respect to Nikita, given her age I make no order with respect to access with her Father. I hope she and her Father will try to build a relationship as she clearly needs the love of both of her parents, particularly at this time.

7. The parties may, with the assistance of CAS and the OCL, add mid week access to the children and a schedule for holidays. Although they must negotiate this through intermediaries, they have been able to modify Logan’s access without court involvement and I expect them both to be reasonable and NOT force this issue to come back to this Court.

8. The children should have telephone numbers for each parent and when Logan and/or Vivienne are with their Mother she shall ensure they have telephone contact with their Father at least every other day. Similarly, I expect the Father to ensure that when Logan and/or Vivienne are with him that they have telephone contact with their Mother at least every other day.

9. I ask that Ms. Szende arrange to interview Logan and Vivienne shortly after this Thanksgiving and contact Logan’s teacher to see how the children are doing. An updated report should then be provided to both parents. If at that time the Mother has any serious concerns about Logan, that the parties are not able to resolve, she may renew her motion with respect to him before this court on notice to the Father and Ms. Bellinger. I hope that that will not be necessary as I recognize that all of this uncertainty has been very difficult for the children and their parents.

10. As for costs, although there has been divided success, the Mother has clearly been more successful. She succeeded in terminating the restraining order and she obtained all of the relief she sought with respect to Nikita and Vivienne. She did not “beat” her offer to settle but Ms. Shaw advises that she has reduced her hourly rate for the Mother by more than half. The Father has been successful with respect to the relief that he sought with respect to Logan. In all of the circumstances, I award the Mother costs of her motion in the amount of $3,500. This may be paid by the Father in monthly installments of $500, commencing October 1, 2012.

11. Neither parent shall make disparaging comments about the other to any of the children or to anyone else in their presence. If there are any legitimate concerns about the care either parent is providing to the children, those concerns should be reported to the CAS.

[ 19 ] I wish to emphasize that this is a temporary order and the parents will have to either agree on what is in the children’s best interests in the long term, or bring this matter back to court. They have had extensive assistance from the CAS and the OCL since their separation and I hope they will seriously consider the recommendations they make as to the future care of these children as the representatives of both of these agencies are experienced in assessing what is in the best interests of the children. This conflict over place of residence, custody and access and the conflict between the parents has no doubt caused these children a lot of distress which will take time to heal. They need to know both parents love them by their parents’ actions and words and they certainly deserve some peace and stability so that they have a chance to enjoy their childhood.

SPIES J.

Date: August 31, 2012

[1] Ms. Keser attended court at the outset of the return of the motion to advise that she could not in fact represent Mr. Brahan. A Notice of Change of Representation was filed. Mr. Brahan was offered the assistance of Duty Counsel but asked that the matter proceed so that a decision could be made as soon as possible.

[2] Endorsement: Wyszynski v. Brahan, 2012 ONSC 4853 , Supplementary Reasons for Decision: Wyszynski v. Brahan, 2012 ONSC 4853