COURT FILE NO.: 200-2005
DATE: 2012-11-01
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MARY-LEE CYR
Applicant
– and –
LAVERN FARRELL McLACHLAN
Respondent
David A. Reid, for the Applicant
Frank A. Cameron, for the Respondent
HEARD: October 10, 11 & 12, 2012 at Goderich
HEENEY R.S.J.
[1] This case is all about two intelligent, well-adjusted, mature and articulate twin boys, who are almost 14 years of age. They have lived virtually all of their lives with their mother, but have now expressed a considered and genuine desire to live with their father. The question to be determined is whether this court should respect the wishes of the children and order a change in their primary residence, despite the fact that their mother has, without doubt, been an excellent custodial parent for the past 11 years.
Background Facts:
[2] The Applicant (“Mother”) is presently 39 years of age, and the Respondent (“Father”) is 43. They began living together in 1997, and resided in London. They were never married. The twins, Rowan and Rory, were born on [...], 1999. The parties separated in 2001, not long after the Father’s towing business failed. The children remained with the Mother, and she relocated to Goderich several months after the separation. She remains in Goderich with her new husband, Anthony Bauer, and the twins. Her surname is now Knox-Bauer, although the title of these proceedings has never been amended. She has two other children from two relationships that predated that of the Father, Avery and Jonathan, who are now 19 and 16 respectively. They live with their fathers, but the Mother has frequent access. The members of her household also include Mr. Bauer’s daughter, Paige (aged 7), who spends about 50 to 60% of her time there.
[3] The Mother has a medical disability and is not working. She attends Kings College at the University of Western Ontario in pursuit of a degree in psychology.
[4] The Father resides at an apartment in London. He is steadily employed as Director of Education with the London & St. Thomas Real Estate Board. The twins are his only children. He works straight days, Monday to Friday, with little or no possibility of overtime. He has had access to his sons since the separation, although it was sporadic at times. For example, the Mother placed the children into foster care for 3 months in 2005 while she was undergoing surgery, during which time the Father had no access. He also did not see the children for a few months during the first half of 2010. Since then, however, he has been exercising access on alternate weekends on a steady basis.
[5] An order was granted by Aston J. on April 25, 2003, based on Minutes of Settlement. It awarded custody of the twins to the Mother, with access to the Father on alternate weekends from Friday at 5:30 p.m. to Sunday at 5:30 p.m., plus additional access during the summer and on other holidays. It is that order that the Husband has moved to vary in the present action.
[6] In February of 2011, Rowan did not return home after an access visit, and remained with his father for a week, at the end of which he was returned voluntarily. Contempt proceedings were brought by the Mother, and as a result of that the intervention of the Office of the Children’s Lawyer was sought, through an order made by me, on consent, on March 2, 2011. Morrison Reid was appointed to do an assessment pursuant to s. 112 of the Courts of Justice Act.
[7] During the course of Mr. Reid’s interviews with Rowan, the child revealed that he had wanted to live with his father for a long time. Rory, however, was content to remain with his mother. In his report dated September 14, 2011, Mr. Reid recommended that the parties have joint custody, but that the primary residence of Rowan be with the Father, while the primary residence of Rory would remain with the Mother.
[8] In the months that followed, Rory underwent a significant change in his views, and made it clear that he wished to begin living with his father as well. An updated report from Mr. Reid was ordered. In his report dated July 31, 2012, he recommended that both parties have joint custody of the twins, but that their primary residence be with the Father.
[9] The Father supported both sets of recommendations. In other words, when the first report was released, he respected Rory’s wish to remain living with his mother, while Rowan would come to live with him in London. As to the second report, he fully supported the change in residence of both children.
[10] The Mother has been opposed to the recommendations in both reports. She maintains that it would not be in the best interests of the children to live with their father, for a variety of reasons that I will canvass later. In the meantime, I will discuss the evidence of Morrison Reid, because it is, in my view, central to this case.
The Reports of the Office of the Children’s Lawyer:
[11] Morrison Reid, M.S.W., R.S.W., is a highly respected and experienced social worker. His qualifications as an expert in his field were conceded. Since the year 2000 he has performed in excess of 400 clinical investigations not unlike the ones before this court, in which he has interviewed all parties concerned and made recommendations concerning matters of custody and access. In addition to the two reports, which were filed as part of the court record, he also gave oral testimony at trial.
[12] He interviewed the children 6 times during the course of preparing his reports, which is considerably more than the 2 interviews that are usually done. I am satisfied that Mr. Reid got to know the boys very well, and came to understand their thoughts and feelings. He found the boys to be thoughtful, confident and articulate, and well able to express their views.
[13] At pg. 7 of his updated report, he summarizes the views and preferences of the children in the following terms:
Rory and Rowan both articulate their desire to live with their father as a desire to experience living with him while they still have a period of childhood left in their life. They observe they have lived with their mother since a young age and now want a chance to live with their father. Rory and Rowan perceive this as a perfectly normal desire. They emphasize they are not rejecting their mother; they love her and wish to continue their relationship with her. Rory and Rowan both hope their mother could see this through their eyes and not her own. They both believe their mother will not listen to them or respect their opinion about their father. This creates sadness and pain for them.
[14] In the paragraph immediately following, Mr. Reid commented on the negative effects on the children and on their relationship with the Mother that would, in his opinion, flow from her continuing opposition to their wish to begin living with their father:
Ms. Knox-Bauer has been and is a good parent to Rory and Rowan. It is easy to have much empathy for her position. However, continuing to oppose Rory and Rowan with respect to their desire to live with Mr. McLachlan may create more difficulties for her and them than are solved. Currently, Rory and Rowan resent her position and may come to resent it more in the future, creating conflict between the twins and their mother. Rory and Rowan love their father. When their love for their father is not respected, they feel they are not respected. It is important for Ms. Knox-Bauer to begin to understand the depth and strength of the relationship her sons have with their father.
[15] The Mother attacked the conclusions in both reports, alleging that the views of the children were the product of influence on the children by the Father. Mr. Reid testified that he discussed this issue many times with the children during his interviews with them. At the top of pg. 8 in his updated report, he rejected that allegation:
Ms. Knox-Bauer suspects that Rory and Rowan have been influenced by Ms. McLachlan. There is no evidence to support her concerns. Rory and Rowan are making a choice based on independent thinking. Rory and Rowan should be allowed to live with their father to allow their dream of experiencing life in his home to develop. They are now 13 ½ years of age and it can be predicted that their desire to reside with Mr. McLachlan will grow stronger as they grow older.
[16] Mr. Reid was pressed on this opinion during cross-examination, and remained firm in his conclusion that there had been no pressure exerted on the boys by their father. There had, however, been pressure exerted on the boys by their mother. They both reported, on several occasions, that the Mother says negative things about their father in an attempt to influence them to abandon their wish to live with him. At pg. 6 of his updated report, Mr. Reid discusses what Rory had to say about the subject of influence:
Rory reports he is experiencing stress in his relationship with his mother. He adds that his mother is constantly telling him that his father is a bad parent and a bad person. Rory believes his mother states these opinions to place pressure on him to live with her.
[17] The Mother denied having made any negative comments about the Father, except “where he puts me in a position where, as a parent, I have to say something in response”. Her Husband, Anthony Bauer, testified that he never witnessed the Mother saying anything negative about the Father in the presence of the children. His evidence, however, does not determine the issue. Just because nothing was said in his presence does not mean that nothing was said at all.
[18] The Mother has an obvious and deeply-held conviction that the Father is an incompetent parent, and that the children should not be entrusted to his care, and I am satisfied that this attitude would be reflected in things she has said to the children, as they reported to Morrison Reid. Indeed, she may well feel that she needs to protect the children from the prospect of moving to the Father’s household, and is acting as a good parent in saying what she needs to say “in response” to his quest for such a change.
[19] By contrast, there is no evidence that the Father denigrates the Mother in the eyes of the children. Indeed, Rowan reported that “his father tells him to respect his mother and does not say negative things about his mother”. Nor do the children report any pressure being exerted on them by their father as to where they should live. Mr. Reid says the following, at the bottom of pg. 6:
Rory reports that his father listens to him and respects his opinion. He indicates that in the past, when he told his father he wanted to live with his mother, his father supported his opinion and did not try to talk him out of it.
[20] Mr. Reid was shown a note, written by Rory and dated Dec. 20, 2010, where he writes: “I felt bad when my dad pressured us into coming to live with him.” The Father testified that Rory told him that he wrote that in the presence of, and at the urging of, the Mother, and that she “dictated” the contents of the note. Mr. Reid had not previously seen the note and did not discuss it with Rory. Despite what the note says, however, Mr. Reid held firm in his opinion that Rory’s views and preferences came across as “quite independent”.
[21] I do not place much weight on this note. Given that it was written in the presence of the Mother, there is a strong likelihood that Rory was saying what he believed his mother wanted to hear. I am satisfied that the information expressed by the child to the independent social worker, in the absence of either parent, is far more likely to be reliable.
[22] The Mother also alleged that the Father tried to bribe Rowan with a promise to put him into hockey if he moved to London. She testified that Rowan had had a conversation with his father about hockey, and was angry at her because she could not afford to put him in hockey in Goderich. Shortly after that, she says, he said he wanted to live with his father.
[23] The Father testified that he did have a discussion about hockey with Rowan. The Father had played hockey all of his life, and there were photographs of him in uniform around his residence. Rowan brought the subject up, and the Father did say that he would put him in hockey, but did not do so as an incentive to get him to move. It was simply one of many extracurricular activities that they would explore.
[24] Mr. Reid discussed this issue with the Father, and was told that “whatever Rowan wanted to play, he would support that”. I am satisfied that any discussion about hockey was nothing more than an expression of a father’s desire to support the athletic interests of his son, and was not intended as, nor did it operate as, a bribe to induce Rowan to change residences. Nor do I find any merit in the Mother’s other allegations that the Father tried to bribe the children with a cell phone and money.
[25] Counsel for the Mother relies on two other incidents that, he argues, amount to influence or manipulation. The first occurred in December 2010. According to the evidence of the Father, which I accept, he received a telephone call from Rowan on a Thursday, saying that his mother had informed him he had to leave the next day. Rowan reported that once he told his mother that he wanted to live with his father, she decided that he had to leave on Friday. The Father came and picked him up, even though it was a non-access weekend. The Mother testified that she had given Rowan no such marching orders, and demanded his return. The child was returned to her a few days later, after the intervention of counsel.
[26] The second incident happened in February of 2011. The Father was under the misapprehension that when a child attains the age of 12, he or she could decide where they wanted to live. Rowan was also of that view, and advised the Father that his mother had told him the same thing, although she denies having done so. Since Rowan clearly wanted to live with his father, he called his mother on Sunday, February 20, to say that he was not returning to live with her. He remained with the Father after the access visit for another week. The Mother brought a contempt motion, the Father consulted counsel, and the child was returned.
[27] I do not regard either of these incidents as influence or manipulation, although they were clearly inappropriate. As Mr. Reid confirmed, the belief that children can decide where they want at age 12 has become something of an urban myth, and is a very popular misconception. It is not surprising that the Father might have believed it. However, he had, by that point in time, already retained Mr. Cameron as his counsel, and Mr. Cameron had written a letter to the Mother’s counsel dated February 14, 2011. That letter requested that the Mother agree to an experimental change in Rowan’s residence, failing which the Father would consider bringing a motion to vary. A copy of that letter was sent to the Father.
[28] Nothing in that letter suggests that the Father was entitled to, or would consider, acting unilaterally to effect a change in residence. Clearly, the Father should have consulted his counsel on February 20 to confirm whether or not his understanding was correct. His counsel was, after all, only a phone call away.
[29] As to the December 2010 incident, once again the Father acted inappropriately. While he believed that he was acting on the joint wishes of both Rowan and the Mother in coming to pick Rowan up, he should have consulted with her to confirm what Rowan said before acting on it.
[30] Inappropriate though the Father’s actions were, neither situation amounts to influence. In both cases, the Father was responding to Rowan’s pre-existing wish to move in with him, as opposed to exercising influence on Rowan to cause him to want to do so.
[31] I accept Mr. Reid’s opinion that the views and preferences that the children expressed to him were the product of their own, independent thinking, and were not induced by any pressure exerted on them by the Father. To the extent that any pressure was exerted at all, it was done by the Mother, in trying to portray the Father as a bad parent. By contrast, the boys consistently reported that their father never said anything negative about their mother, and tells them that they should respect her.
[32] I found Mr. Reid to be a very balanced, professional and impartial witness, who clearly had Rowan and Rory’s best interests first and foremost in his mind. His investigation was exceedingly thorough, and his findings are well supported. I reject the suggestion by counsel for the Mother that he was an “advocate” for the Father. He was quite prepared in his evidence to level criticism at the Father where appropriate, and remained at all times child-focussed in his approach to his duties. I give his evidence and his reports, and the opinions contained therein, great weight.
Mother’s Concerns about the Father’s Ability to Parent:
[33] Aside from the allegation of influence, the Mother had a list of other reasons why the Father should not be entrusted with the care of the children. These were reported to Mr. Reid and considered by him, but did not change his final opinion that the best interests of the children would be met by permitting the change in residence that they desired.
[34] In written argument, counsel for the Mother outlined those reasons, and I will now consider them in turn.
[35] First, she alleges that the Father is an incapable parent, who will not provide the children with needed structure, routines and role modelling. This allegation is not supported by any substantive evidence, but rather amounts to an inference that the Mother has made, based on the fact that the Father has never been the custodial parent, and therefore has no experience in that regard. However, saying that he has no experience caring for the children disregards the fact that the children have been entrusted to his care every other weekend for many years, together with much of the summer of 2011. There is no evidence that he failed to properly care for the children during those occasions. Had he been the completely incompetent parent that the Mother would have us believe he is, that surely would have manifested itself in some concrete way during these many access visits. I conclude that the Father has proven himself capable of caring for the children while they are in his home.
[36] There is no question that the Mother is an extremely capable and experienced custodial parent. It is also probable that her skills in that regard exceed those of the Father. However, in this case that is not a compelling consideration, because these particular children do not require a highly skilled parent.
[37] To some extent, the Mother’s case is weakened by her own extraordinary success as a parent. The evidence is clear that these boys have been raised, largely by her but with some meaningful contribution by the Father, to be mature, responsible and organized individuals, who are doing well in school, excel in sports and extracurricular activities, and who are quite capable of taking care of themselves. They get themselves up in the morning, and make their own breakfast and lunch. They have been taught to take responsibility for organizing their own schedules, rather than relying on their mother to do so for them. They get their homework done without the need for prompting. The result of all of this is that they have grown to become very low maintenance children, who do not place great demands on a parent.
[38] Had they been high-needs children, I would have had no hesitation in concluding that their best interests required that they remain in the care of their mother, where a high level of care could be guaranteed. However, on the evidence I am satisfied that the Father need not be a “super dad” to care for these children. He is, I find, quite capable of providing all of the parenting that these boys require.
[39] The Mother attacked the Father’s lack of involvement in the boys’ education and extracurricular life in Goderich. He did not know the names of their teachers, and had never spoken to any of them. He knew they were doing well in school because they sometimes showed him their report cards, but did not know in what areas they excelled and had only a vague idea about their extracurricular activities.
[40] Much of this is explicable simply on the basis of geography. Their respective residences in London and Goderich are more than 100 km apart, and the drive would take between 1 and 2 hours. The primary explanation given by the Father, though, is that over the years the Mother has accused him of every kind of abuse one can imagine. He received advice from his former lawyer that he should avoid involvement with the Mother as much as possible in order to avoid having anything misconstrued, resulting in a further accusation against him. He felt that it would only antagonize the situation if he attempted to involve himself in matters such as the children’s schooling, and so he left it entirely in the Mother’s hands.
[41] While such an attitude is not commendable, it is at least understandable. Given that the children were doing so well at school and in their extra-curricular activities, there was really no need for the Father’s intervention. It was not unreasonable for him to, in effect, leave those things in the capable hands of the Mother, for the sake of peace and to avoid conflict. It might have been different had the children been struggling, while he did nothing to assist.
[42] The Mother does make a very valid point indicating a lack of parental commitment when she observes that the Father paid no child support until 2010, despite having been employed since 2006. His explanation was simply that he could not afford it. This explanation is unacceptable, given that the Mother was struggling to make ends meet on ODSP income throughout that period, until just before Anthony Bauer started living with her early in 2009. The issue of retroactive child support has now been settled by the parties, and will be dealt with later in these reasons.
[43] The next area of concern relates to the Father’s use of alcohol. The Mother testified that he drank heavily during their cohabitation, and even spent money on alcohol when their lack of funds forced them to use a food bank. She alleges that he was abusive when he drank, an allegation that the Father denies.
[44] The Mother’s evidence about alcohol consumption is, of course, over 11 years old. While the Father was convicted in 1988 of driving “over 80”, there have been no convictions in the 24 years that have passed since then. The important question is whether alcohol consumption is, at present, a problem for the Father that would interfere with his ability to care for the children. The Mother had no evidence of her own to say that it is.
[45] Morrison Reid canvassed the issue with the children, asked them directly whether they felt that their father drank too much. Their response was that they never saw him drink a lot of beer, just social drinking, such as one or two at a barbeque in the summer. They were clear that they did not see alcohol as a problem in their father’s life. He was impressed by their comments in this regard, because children these days are very sensitive to issues surrounding alcohol and drugs.
[46] The Father is the only one who provided detailed evidence as to his alcohol consumption. He admitted on cross-examination to drinking 3 or 4 beers on a typical Friday night, whether the boys were with him or not. When asked if he might sometimes have 7 or 8, he responded: “maybe”. When asked if he might have rye or vodka as well, on evenings when he has 5 or 6 beers, he said: “it depends”. He was asked if there are times that he becomes intoxicated when the boys are with him, and he said: “yes”. However, he said that it never gets out of hand, he always maintains control, and he drinks responsibly when the boys are with him. He does not drink and drive.
[47] The Father’s evidence in this regard says much about his credibility as a witness. There is no other evidence as to his alcohol consumption except that which was reported by the children, and he could easily have said he has only 1 or 2 beers on occasion, without fear of contradiction.
[48] However, the amount of his alcohol consumption does raise a real concern. The amounts he admits to drinking are substantial, and would render his blood alcohol concentration well above the legal limit for driving a car. This means that he would be unable to drive the children anywhere in the event of an emergency, or pick them up if they needed a ride home.
[49] To some extent, his evidence that he remains in control despite the amount of alcohol he admits to consuming is corroborated by the evidence of the Mother. She said that, while they were living together, he had “an amazing tolerance for alcohol”. He drank a lot of beer but she didn’t remember him becoming intoxicated every night. It was only when, on occasion, he added liquor to the mix that there were problems.
[50] Be that as it may, I consider the Father’s alcohol consumption to be excessive, which hampers his ability to respond to an emergency, as discussed above, and could provide an inappropriate role model for the twins. At this point, from the evidence of Mr. Reid, the boys do not see their father as having a problem with alcohol, although the Mother testified that Rory has mentioned some concerns in that regard on occasion. He will have to curb his alcohol consumption to a more moderate level regardless of the outcome of these proceedings, because he will have the boys with him on weekends either as a primary parent or as an access parent.
[51] While the alcohol issue is concerning, it is not determinative. Significantly, there is no evidence of any alcohol-related incident having occurred while he has had the children with him. If alcohol consumption was indeed a problem, one would have expected it to have manifested itself in some concrete way.
[52] The next area of attack on the Father’s ability to parent related to allegations of spousal abuse. In her evidence the Mother made several allegations of abusive behaviour, some of which the Husband was hearing for the first time at trial. They included the following:
- That he pushed her against a window during cohabitation;
- That he sexually assaulted her during an access exchange by grabbing her backside and attempting to kiss her;
- That he sexually assaulted her at the time of the twin’s conception, by ejaculating inside of her when she did not want him to do so; and
- That, while she was driving past her near a variety store in London, he threatened to kill her one day.
[53] The Father denies each and every one of these allegations. He does, however, admit to having slapped her on one occasion, after she threw a glass of wine in his face.
[54] I found both parties to be credible witnesses, and given their conflicting evidence and the lack of any other evidence to support either version, it would be difficult to determine whether these incidents happened or not. However, I find that it is not necessary to do so. With the sole exception of the access exchange allegation, all of these incidents, if they happened at all, happened before or during cohabitation, so they are more than 11 years in the past. They say nothing about whether the Father, at present, has a violent disposition. Once again, if he really is a violent man, one would expect that to have manifested itself in concrete incidents of violent behaviour at some point over that large span of time, yet there is a complete lack of such evidence.
[55] Even the access exchange incident happened, on the Mother’s evidence, just shortly after separation, so it is equally far in the past. She says that the Father wrote a letter afterward apologizing for his behaviour, although the letter was not produced in evidence. There has been no repeat of such behaviour at any time since.
[56] Furthermore, none of this has any relevance to his ability to parent the children. There was nothing uncovered in Morrison Reid’s investigation to suggest that the children have been exposed to acts of violence, or that they felt that their father had anger control issues. No acts of violence, physical or verbal, have been reported to have occurred during the many, many access exchanges that have taken place in the 11 years since separation, save for the sole incident describe above.
[57] The final concern raised by the Mother is that the parties have historically been unable to communicate. The Father agrees that communication has been kept at a minimum, for the reasons already discussed. However, as Morrison Reid has observed, the parties have, in fact, been able to communicate in their own way sufficient to make access exchanges work over an extended period of time. Email and text messages can, in his view, be a very effective means of communication. It is fast, efficient, and leaves a record of what has been said, which can be reviewed later if necessary. I am satisfied that the parties are able to communicate to the extent that joint custody would be a viable option.
Analysis:
[58] In determining the outcome of this case, s. 24 of the Children’s Law Reform Act, R.S.O. 1990, c. C-12 must be considered. It reads as follows:
- (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).
(2) The court shall consider all the child’s needs and circumstances, including,
(a) the love, affection and emotional ties between the child and,
(i) each person entitled to or claiming custody of or access to the child,
(ii) other members of the child’s family who reside with the child, and
(iii) persons involved in the child’s care and upbringing;
(b) the child’s views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.
(3) A person’s past conduct shall be considered only,
(a) in accordance with subsection (4); or
(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent.
(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,
(a) his or her spouse;
(b) a parent of the child to whom the application relates;
(c) a member of the person’s household; or
(d) any child.
(5) For the purposes of subsection (4), anything done in self-defence or to protect another person shall not be considered violence or abuse.
[59] Since this is a variation application, s. 29 also has relevance. It provides as follows:
- A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child.
[60] In determining what outcome will operate in the best interests of the children, the first factor to be considered is the love, affection and emotional ties between the child and the other specified individuals. Here, all of the evidence, including specifically the evidence of Mr. Reid, points to the conclusion that the twins love both of their parents very deeply, and that this love is reciprocated in every way. There was no evidence of any significant bonds of love and affection between the twins and the other persons residing in the Mother’s household, although they clearly have good relationships. Both households have extended family nearby. This factor is, I conclude, neutral.
[61] The second consideration is the child’s views and preferences. This factor strongly favours the Father’s case. I accept the evidence of Morrison Reid that the children are intelligent, mature children who have thought this matter through, and who have made an independent choice to live with their father. Significantly, he described the boys as “two of the most thoughtful 13-year olds I have met in my entire career”.
[62] The third factor is the length of time the children have lived in a stable home environment. This factor clearly favours the Mother. She has provided a stable home for the children for over 11 years. However, Mr. Reid indicated that the children are flexible and capable of adapting to change. They are very involved in sports, drama and church activities, so it is clear that they get involved and make friends easily. There is no reason to believe that they will not adapt well to a new environment in London, particularly if the move happens quickly, while the children are still in elementary school.
[63] The fourth factor examines the ability and willingness of each person applying for custody to provide the child with guidance and education, the necessaries of life and any special needs of the child. There is no question that the Mother is able to provide for all of the physical needs of the children very well. I have already concluded that the Father has the necessary skills to provide for the needs of the children as well, but on a balance of probabilities, his skills do not match those of the Mother.
[64] But providing for their physical needs is only part of the picture. An equally important consideration is who will best provide for their psychological well-being? In this regard, I have already referred to the comments of Mr. Reid that the Mother’s continued opposition to Rory and Rowan’s desire to live with their father has created difficulties. The boys resent her position and may come to resent it more in the future. They believe that their mother will not listen to them or respect their opinion about their father, and this creates sadness and pain for them.
[65] The degree to which the Mother denigrates the Father’s abilities as a parent, as reported by the twins to Mr. Reid, also causes stress to the children. Furthermore, such behaviour could eventually have the effect of undermining the Father in the eyes of the children, and detrimentally affecting his relationship with them. It is obviously in the best interests of the children to have a good relationship with both parents, and to the extent that the Mother undermines the Father’s role in their lives, she is not acting in their best interests, nor is she providing them with the “guidance” that they need. By contrast, the evidence is that the Father is fully supportive of, and respectful of, the Mother’s relationship with the children. This speaks to the Father’s “ability and willingness” to meet this particular need of the children.
[66] An important and often disregarded aspect of the best interests of the child, is to ask what will make them happy? Having a meticulously clean house, a thoroughly organized schedule, and the other efficiencies that the Mother is able to bring to the lives of the children amount to very little if the children are miserable. With regard to Rowan, there is no question what will make him happy. He rated his happiness quotient at 10 out of 10, if he were living with his father, and 1 out of 10 if he were living with his mother. Rory seems happy most of the time, at 8 out of 10, but it is an easy inference to draw that honouring a child’s genuinely held wish as to where he should live is bound to make him a happier person.
[67] The children have clearly identified the need to live part of their remaining youth with their father. They have lived virtually their entire lives with their mother, and they feel the need to experience life with their father. That is not a frivolous reason for moving, nor should it be lightly disregarded. This particular need of the children can only be met by permitting the move.
[68] The fifth factor addresses the plan proposed by each person for the child’s care and upbringing. The Mother, of course, has a plan that has worked well for 11 years. The Father did not have an elaborate plan to propose, other than to say that the children would be cared for by the same family doctor who cared for them when they were infants; and to confirm that the children would attend Glen Cairn School, which is a 5 minute walk from his residence.
[69] The sixth factor concerns the permanence and stability of the family unit with which it is proposed that the child will live. The Mother’s family unit is clearly a permanent and stable one. The Father’s family unit will consist of himself and the twins. He has resided in the same residence for many years, and the children are familiar with it from their access visits. He is steadily employed on a full time basis. I am satisfied that his family unit will be a permanent and stable one.
[70] The seventh factor addresses the ability of each person to act as a parent. I have already discussed that above.
[71] The eight factor enumerated in s. 24(2)(h) is the relationship by blood between the child and the person seeking custody, and that is obviously neutral in this case.
[72] Pursuant to s. 24(4), however, the court must also consider whether the person has at any time committed violence or abuse against the individuals named in that section. I have considered this factor already. Other than one reflexive act of slapping the Mother after she threw wine in the Father’s face, I am not satisfied that any other acts of violence have been proven nor, given their antiquity, that they have any significant relevance to the present situation.
[73] Having considered all of the evidence, only some of which I have specifically referred to in these reasons, I am satisfied that there has been a material change in circumstances affecting the best interests of the children, in that they now have a strongly held and genuine wish to experience life living in the primary care of their father. Given their age and level of maturity, their wishes must be given great weight in balancing all of the factors outlined above. Furthermore, permitting the move is the best way to provide for their happiness and psychological well-being. I conclude that their best interests will be met by allowing them to move to their father’s residence.
[74] I agree with Mr. Reid that the Mother has been a good and loving parent, who should not lose her legal status as a custodial parent simply because the children wish to begin living with their father. Accordingly, the appropriate order would be one of joint custody. Such an order would also provide for a “seamless return” to the Mother’s residence, in the event that the boys find that they miss their lives in Goderich more than they anticipate they will, and wish to return there. Accordingly, there will be an order for joint custody of the twins in favour of both parties. The primary residence of the children will be with the Father.
[75] As to access, Mr. Cameron, for the Father, has proposed, in his written submissions, a detailed schedule of access in favour of the Mother, which includes alternate weekends, and half of all school vacations. Those proposals are largely in line with the recommendations of Morrison Reid. Mr. David Reid, for the Mother, simply proposed frequent access including half of all holidays, including summer break.
[76] To minimize the need for frequent communication, it seems to me preferable to specify access with some degree of detail. Accordingly, the Mother will have access as outlined in para. 106 of the Father’s written submissions.
Other Issues:
[77] There are two housekeeping matters that remain to be dealt with.
[78] As already noted, the parties have resolved the issue of retroactive child support owing by the Father. On consent, an order will go as follows:
- The arrears owing by the Respondent to the Applicant for retroactive child support are fixed at $19,000, inclusive of s. 7 expenses;
- The Respondent shall pay these arrears to the Applicant by way of payments of $300 per month, commencing November 1, 2012, such continuing payments of $300 to be due and payable on the 1st day of each month thereafter until all child support arrears have been paid;
- In any event, and notwithstanding the terms of paragraph 2, all child support arrears shall be paid by the Respondent to the Applicant within 36 months next following November 1, 2012.
[79] The other matter relates to the contempt motion. The Mother is seeking costs of $1,500, given that the Father’s unlawful withholding of Rowan in February 2011 was the second time in three months that he engaged in the same behaviour. The Father argues that a contempt motion is a quasi-criminal procedure, and he cannot be found in contempt unless the requisite mens rea has been proven. Given that he was operating under the honest belief that a child of 12 could make his own decision as to where he should live, he submits that mens rea has not been proven. He asks that the contempt motion be dismissed without costs.
[80] From the comments of counsel, I was given to understand that the only issue I would be asked to determine would be the issue of costs arising out of the contempt motion, not whether the Father was, in fact, in contempt of court. The motion was brought by the counsel for Mother, and in his written submissions, he seeks only an order for costs, not a finding of contempt. I will restrict my decision to the costs issue.
[81] As provided for in Rule 24(4), where a party has behaved unreasonably, the court has the discretion to deprive that party of costs or make them pay the costs of the other party, even if they were successful on the motion. Accordingly, even had I decided the motion on the merits and concluded that mens rea had not been proven, I would still have discretion to order the Father to pay the Mother’s costs of the motion.
[82] I have already discussed the Father’s actions, both in February 2011 and in December 2010, and have found them to have been inappropriate. Given that he had engaged counsel, who was actively seeking to arrange a change in Rowan’s residence, the Father should not have acted unilaterally in effecting such a change without the Mother’s consent or a court order. The Father acted unreasonably in doing so, instead of proceeding with the motion to vary that was contemplated by his counsel. It was entirely reasonable for the Mother to have brought her contempt motion, given that the Father committed what was objectively a breach of the custody order twice within three months.
[83] I find that the Mother is entitled to her costs of the contempt motion, fixed at $1,500.
[84] As to these proceedings, if the parties cannot agree on costs I will accept written submissions from the Father within 15 days, with responding submissions from the Mother within 10 days thereafter and any reply within 5 days thereafter.
T. A. Heeney RSJ.
Regional Senior Justice T. A. Heeney
Released: November 1, 2012
COURT FILE NO.: 200-2005
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MARY-LEE CYR
Applicant
– and –
LAVERN FARRELL McLACHLAN
Respondent
REASONS FOR JUDGMENT
Heeney R.S.J.
Released: November 1, 2012