Court File and Parties
Court File No.: F1797/12
Date: December 20, 2012
SUPERIOR COURT OF JUSTICE – ONTARIO
FAMILY COURT
RE: Andrea Anne Deakin, applicant
AND:
Blair MacDonald Deakin, respondent
BEFORE: MITROW J.
COUNSEL:
Jennifer Howard for the applicant
Peter Eberlie for the respondent
HEARD: December 19, 2012
ENDORSEMENT
[ 1 ] The respondent, Blair Deakin (“Mr. Deakin”), brings this motion seeking an order to permit him to take his daughter, Kyrah, age 6, on a trip to Cuba from January 4, 2013 to January 12, 2013.
[ 2 ] The applicant, Andrea Deakin (“Ms. Deakin”), opposes the relief sought.
[ 3 ] The parties agree that the three relevant affidavits for Mr. Deakin’s motion are Mr. Deakin’s two affidavits sworn December 14 and 18, 2012 and Ms. Deakin’s affidavit sworn December 17, 2012.
BACKGROUND
[ 4 ] Mr. Deakin and Ms. Deakin were married to each other in 2006. They began to cohabit in 2002. They separated either July 2012 or August 2012, depending on whose version is correct, but nothing turns on this for the purpose of the motion.
[ 5 ] The parties are the mother and father of Kyrah. Ms. Deakin also has a daughter, Shawneen, age 17, from her first marriage.
[ 6 ] The parties continued to live at the matrimonial home “separate and apart” under the same roof until near the end of October 2012, when Ms. Deakin purchased a new residence.
[ 7 ] Pursuant to a separation agreement prepared by Ms. Deakin, the parties agreed to joint custody of Kyrah, with access described as “50/50” and then set out in detail in the separation agreement. The separation agreement dealt with division of property. Spousal support was released.
[ 8 ] The purpose of the trip to Cuba is for Mr. Deakin to attend the wedding of a family friend. Mr. Deakin is the “best man.” The invitation also included both children and Ms. Deakin but, given the recent separation, Ms. Deakin and Shawneen are not attending the wedding. Mr. Deakin purchased the tickets for himself and Kyrah in September 2012. The fare for each ticket is $1,065.
[ 9 ] The dispute arises in large measure from Ms. Deakin’s allegations against Mr. Deakin as to his alleged conduct on September 19, 2012 described in detail in paragraph 6 of her affidavit. It is unnecessary to repeat all the allegations, but they include some conduct by Mr. Deakin alleging he goes for walks after midnight blurting out words to himself, that he injured himself on September 19, 2012 in an attempt to convince police that Ms. Deakin assaulted him in order to have her arrested. Also included were allegations of pushing, punching and swearing at Shawneen, causing wilful damage to property and verbal abuse directed against Ms. Deakin in the presence of Shawneen.
[ 10 ] Ms. Deakin speaks of a concern that Mr. Deakin may have an undiagnosed mental illness, or some emotional instability.
[ 11 ] Ms. Deakin raises concerns about Mr. Deakin’s parenting. She believes Kyrah recently sustained a bladder infection because Mr. Deakin used the wrong type of bath soap (Kyrah has a skin sensitivity, she says, requiring a certain brand of soap to be used that Mr. Deakin failed to use). She claims Mr. Deakin took Kyrah to emergency without notifying Ms. Deakin.
[ 12 ] Mr. Deakin, for his part, denies these and other allegations raised. He points to his active involvement as a parent prior to separation. He mentions, for example, the “Daddy/Princess” nights when he would stay at a hotel on a weekend with Kyrah to enjoy child focused activities.
[ 13 ] Mr. Deakin points to the separation agreement, signed the day after the police incident on September 19, 2012. He states the separation agreement continued his significant role as a parent of Kyrah and that the separation agreement belies Ms. Deakin’s groundless allegations against him.
[ 14 ] Ms. Deakin explains that she prepared the separation agreement under duress acceding to what Mr. Deakin demanded, which included equal parenting time with Kyrah. Ms. Deakin deposes she was prepared to sign anything Mr. Deakin wanted, that Mr. Deakin was abusive and volatile and she was desperate to remove herself and Kyrah from the home environment. She states she had no legal advice, there was no disclosure and that the child care schedule set out in the separation agreement was not in Kyrah’s best interests.
[ 15 ] Mr. Deakin points out, among other things, that Ms. Deakin did receive money owing to her pursuant to the separation agreement. Ms. Deakin has commenced an application seeking to set aside the separation agreement. She has brought a motion (scheduled for a special appointment in February 2013) seeking interim custody and supervised access to Mr. Deakin.
[ 16 ] Mr. Deakin defends the separation agreement and asserts that Ms. Deakin wants to change the childcare arrangements now that she has received her money pursuant to the separation agreement.
[ 17 ] Mr. Deakin argues there is no child-focused reason to disallow the trip to Cuba. Ms. Deakin fears Mr. Deakin’s recent conduct calls into question his judgment and parenting ability. She fears he is unstable. She asserts that Kyrah should not be entrusted in his care for a trip that long, far from home.
DISCUSSION
[ 18 ] Clearly the serious allegations made against Mr. Deakin cannot be resolved on the basis of conflicting affidavits and no cross-examination.
[ 19 ] The focus of the court’s enquiry is to determine what is in Kyrah’s best interests. The best option would be to adjourn the motion to the special appointment when the interim custody issue will be fully argued. That is not an option given the timing of the trip.
[ 20 ] I have to assess any potential risk to Kyrah, in the face of conflicting affidavit material.
[ 21 ] I conclude that Kyrah’s best interests require a cautious approach until the court can make findings as to the veracity of Ms. Deakin’s allegations. The trip to Cuba is primarily an adult activity – not centred around Kyrah.
[ 22 ] Weighing any risk or negative consequence to Kyrah in missing the trip, versus going on the trip, and given the current disputed allegations, leads me to find that Kyrah should not go on the trip.
[ 23 ] However, I need to be very clear. I make this decision reluctantly – out of an abundance of caution. This decision is not to be interpreted that I have made any findings against Mr. Deakin, or that I have accepted the allegations made against him. Mr. Deakin’s right to claim reimbursement of the airfare from Ms. Deakin should be preserved.
ORDER
[ 24 ] For reasons set out above I order:
Mr. Deakin’s motion to allow Kyrah to travel with him to Cuba is dismissed.
This order is without prejudice to Mr. Deakin’s right, if so advised, to seek reimbursement of Kyrah’s airfare from Ms. Deakin.
If the parties cannot agree on costs, brief written submissions should be forwarded care of the trial coordinator on or before January 31, 2013.
“Justice Victor Mitrow”
Justice Victor Mitrow
Date: December 20, 2012