CITATION: Folahan v. Folahan, 2013 ONSC 2966
COURT FILE NO.: FS-12-74501-00
DATE: 20130530
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Abiola “Abby” Olatokunbo Olaitan Folahan v. Ayobami T. Folahan
BEFORE: Price J.
COUNSEL: Anita K. Kania, for the Applicant
Antal Bakaity, for the Respondent
HEARD: May 16, 2013, at Brampton, Ontario
E N D O R S E M E N T
NATURE OF THE MOTION
[1] Ms. Folahan applies to the court to change the terms of Mr. Folahan’s access to the children from unsupervised to supervised. She also applies to dispense with Mr. Folahan’s consent to Ms. Folahan’s travelling outside Canada with the children and to her obtaining passports for them for this purpose.
[2] Ms. Folahan additionally applied, initially, for an Order requiring Mr. Folahan to contribute to the children’s section 7 expenses and to direct a portion of his share of the net proceeds of sale of the matrimonial home to the payment of a debt she owed to the Canada Revenue Agency, which she attributed in part to him. She later abandoned those parts of her motion, having regard to Mr. Folahan’s evidence that he has been unemployed since the summer of 2012, and the fact that she has now repaid her debt to the Canada Revenue Agency.
[3] Mr. Folahan moves for an Order for equal distribution to the parties of the net proceeds of sale of the home, and permitting him to apply a portion of his share to pay retroactive child support of $6,000 he owes to Ms. Folahan and to fund his legal defence on criminal charges against him arising from Ms. Folahan’s complaints to the police. Additionally, Mr. Folahan moves for appointment of the Office of the Children’s Lawyer to ascertain the children’s preferences as to which parent they will reside with, as he asserts that Ms. Folahan has unreasonably restricted his access to the children. He further sought, initially, an Order to require Ms. Folahan to obtain a valuation of her pension from her employer, the CIBC, and to return to him his saxophone and lap top computer, but he abandoned those portions of his motion based on Ms. Folahan’s assertions that she had asked her group insurer for a valuation of her pension, and is not in possession of Mr. Folahan’s saxophone or lap top.
[4] The parties reached agreement on some of the issues, and I will incorporate the terms of their consent into this Order.
a) Requiring Mr. Folahan’s access to the children to be supervised
[5] The Applicant, Ms. Folahan (Abiola Folahan) moves for an Order requiring the Respondent, Mr. Folahan (Avobami Folahan)’s, access to the parties’ two sons, Samuel, six, and Aaron, four, to be supervised.
Legislative Framework
[6] Ms. Folahan began the present proceeding under the Divorce Act.[^1] The Court’s determination of access issues is therefore governed by section 16 of the Divorce Act. Section 16(1) provides that a court may make an order respecting custody of or access to a child of the marriage on application by a spouse or any other person. Section 16(6) gives the court a broad discretion to include any terms, conditions, or restrictions in a custody and access order that it considers fit and just.
[7] Section 16(8) provides that the sole criterion for determining custody and access issues is “the best interests of the child of the marriage, as determined by reference to the conditions, means, needs and other circumstances of the child.”
[8] Section 16(10) of the Divorce Act provides:
(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such access. [Emphasis added]
[9] The goal of maximum contact with each parent is not absolute, but the legislation is clear that maximum contact can only be restricted to the extent that contact conflicts with the best interests of the child.[^2] The children’s best interests must be paramount to any other consideration when access is ordered. The convenience and wishes of the parents are not ignored, but are secondary to the welfare of the children.[^3]
[10] The Divorce Act does not set out a detailed list of other factors to be considered when determining the best interests of a child. However, in an effort to apply the best interests test with greater precision and consistency, courts, when applying the “best interests” test in the Act, have considered the criteria set out in provincial and territorial legislation. The relevant provisions in Ontario are sections 20 and 24 of the Children’s Law Reform Act (“CLRA”).[^4]
[11] Under section 20 of the CLRA, both parents are equally entitled to custody of a child. Where the parents live separate and apart, and the child resides with one parent with the consent of the other, the entitlement to access continues, along with the right to visit with and be visited by the child, to make inquiries, and be given information as to the child’s health, education, and welfare (see sections 20(1), (4), and (5) of the CLRA).
Jurisprudence
[12] The Supreme Court of Canada in Young (1993)[^5] and Gordon v. Goertz (1996)[^6] held that a child’s best interests must be ascertained from the perspective of the child rather than of the parents. Parental preferences and rights do not play a role in the analysis, except to the extent that they are necessary to ensure the best interests of the child.
[13] In resolving disputes over access, emphasis must be placed on the critical importance of bonding, attachment, and stability in the lives of young children.[^7] In Young, McLachlin J. (as she then was) discussed the “maximum contact principle” in the context of an application under the Divorce Act. Speaking for the majority of the Court, she stated:
... s. 16(10) provides that in making an order, the court shall give effect "to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child." This is significant. It stands as the only specific factor which Parliament has seen fit to single out as being something which the judge must consider. By mentioning this factor, Parliament has expressed its opinion that contact with each parent is valuable, and that the judge should ensure that this contact is maximized. The modifying phrase "as is consistent with the best interests of the child" means that the goal of maximum contact of each parent with the child is not absolute. To the extent that contact conflicts with the best interests of the child, it may be restricted. But only to that extent. Parliament's decision to maintain maximum contact between the child and both parents is amply supported by the literature, which suggests that children benefit from continued access: Michael Rutter, Maternal Deprivation Reassessed (1981), Robin Benians, "Preserving Parental Contact: a Factor in Promoting Healthy Growth and Development in Children", in Jo Tunnard, ed., Fostering Parental Contact: Arguments in Favour of Preserving Contact Between Children in Care and Their Families (1982). (pp. 117-118) [Emphasis added]
[14] The principle of maximum contact is an important consideration under either legislative regimen when determining the best interests of children. Contact with both parents is the children’s, not the parents’, right. Where, as in this case, a parent argues for unequal contact between the children and each of their parents, the onus is on that parent to rebut the presumption.
[15] Donohue J.’s Order dated August 2, 2012, granted Mr. Folahan temporary access to the children on alternate weekends, from Friday at 6:00 p.m. to Sunday at 6:00 p.m., and every Wednesday, from 4:00 to 8:00 pm. She did so because, in her view, it was in the children’s best interests that their father have access to them. She evidently saw no need for his access to be supervised. As Spence J. observed in A.(M.) v. D.(J.), (2003):
With very few exceptions, all children benefit from having a loving relationship with both parents. In those unfortunate cases where parents separate and the child must live with only one parent, either the parents or the court will usually attempt to provide for “typical” or “normal” access to the non-custodial parent. This may be something like: alternate weekends, sharing of holiday time, special occasions, and so on. A parent who seeks to reduce normal access will usually be required to provide a justification for taking such a position. And the greater the restriction sought, the more important it becomes to justify that restriction. The most restrictive form of access is supervised access.[^8] [Emphasis added]
[16] It is not in the interests of children for courts to place the onus on a parent to demonstrate why he/she should be allowed to exercise unsupervised access to his/her children. Rather, the onus should be on a parent who seeks to restrict the other parent’s access to demonstrate why that parent’s access must be supervised. In C.G. v. M.G., (2009), A.T. McKay J. stated:
Supervised access is not the norm in custody and access disputes. When employed, it should operate as a temporary measure to resolve ongoing difficulties regarding access. For an order for supervised access to be made, it requires evidence of unusual or exceptional circumstances. The onus is on the parent who seeks to limit access to prove that the restrictions are in the best interests of the child.[^9]
[17] Supervised access is a tool reserved for exceptional circumstances. The court sometimes employs it where the benefit a child would derive from contact with a parent must be balanced against the risk of harm to the child that such contact may entail,[^10] or where, as a temporary expedient, it may overcome a cautious custodial parent’s initial fear that the other parent, due to inexperience or past misconduct, is incapable of properly caring for their child. However, as the Ontario Court of Appeal noted in Montgomery v. Montgomery, (1992):
The purpose of supervised access, far from being a permanent feature of a child’s life is to provide a temporary and time-limited measure designed to resolve a parental impasse over access. It should not be used … as a long-term remedy.[^11]
[18] In the present case, the evidence does not satisfy me that Donohue J.’s Order should now be varied to require Mr. Folahan’s access to be supervised.
[19] Ms. Folahan has made several allegations, since the parties separated, that Mr. Folahan has used violence or threats of violence toward her. As the Children’s Aid Society noted in their letter dated April 2013, she has alleged that some of these incidents took place in the presence of the children.
[20] None of Ms. Folahan’s allegations has been substantiated independently, and none has been proven. Indeed, Mr. Folahan was acquitted at a trial in March 2012 of three charges of assault and one charge of assault with a weapon that the police had laid based on Ms. Folahan’s complaints.
[21] While the police have since laid two additional charges alleging that Mr. Folahan uttered threats, the proceedings in relation to these charges are still at an early stage, and they are unlikely to come to trial until next year. Mr. Folahan disputes the charges and I do not find, at this stage, that they justify interfering with his access to the children, whom he is not alleged to have harmed or threatened.
[22] While Ms. Folahan has also complained to the Children’s Aid Society, there is no evidence that the Society has insisted, or even recommended, that limits be placed on Mr. Folahan’s access to his children. Although the C.A.S. has commented on the potential harm that Mr. and Ms. Folahan’s conflict may have on the children, I find that both Mr. and Ms. Folahan have contributed to their conflict and they both must share some responsibility for it.
[23] It is desirable to minimize the contact between Mr. and Ms. Folahan in order to avoid exposing their children unnecessarily to their conflict. Mr. Folahan consents to an Order directing that all transfers of the children occur at a Supervised Access Centre or through a mutually agreed upon 3rd party. This should address Ms. Folahan’s concern to some extent. If the Supervised Access Centre is not available at all of the transfer times contemplated by Donohue J.’s Order, and an appropriate 3rd party cannot be found, either party may apply to the court for further directions, which I will facilitate in my Order.
[24] Ms. Folahan has expressed the further concern that Mr. Folahan has made denigrating remarks about her in the past in the children’s presence. She argues that he may do so again if his access to the children is not supervised. Such remarks are less likely to occur if contact between Mr. and Ms. Folahan is avoided. I will also include a specific term prohibiting such remarks. If reliable evidence is given that they have been made, Ms. Folahan may seek an appropriate contempt Order from the court. While Mr. Folahan could conceivably make such remarks when he is alone with the children and where it would be difficult to prove, I share the view that Kukurin J. expressed in M. v. P., (2011) when he wrote:
…I am not prepared to either assume, or take judicial notice, of the extent to which disparaging or demeaning remarks of the mother alleged by the father might impact negatively on these two children. They are seven and six years old but it cannot be much of a secret to either of them, after all through which they have been, that the mother and father are in a fight with each other and that they are not friendly.[^12]
b) Distributing Mr. Folahan’s share of sale proceeds to pay his defence costs.
[25] The partial distribution that the parties have already consented to will leave only $4,371.15 in trust of Mr. Folahan’s share of the net proceeds of sale of the home. The court must decide among competing demands on this limited fund.
[26] Ms. Folahan has obtained a temporary child support order and arrears have accrued which could only be paid, for the most part, from the funds in trust. It appears likely that Ms. Folahan will obtain an Order at trial continuing Mr. Folahan’s obligation to pay child support. It is clear from Mr. Folahan’s current unemployment that his use of the balance of his share of the net proceeds of sale to pay legal fees in his criminal proceeding would put at risk the future support of his children.
[27] I adopt the approach taken by Ferguson J. in Cipollone v. Cipollone, (1996), where he dismissed a similar motion by the husband in that case to have some of the family assets paid out to him to help him pay his defence costs. While recognizing in para. 21 that the need to preserve one’s freedom is as fundamental as one’s need for food and shelter, Justice Ferguson continued:
However, it seems to me that all the circumstances should be assessed in the same way a court would on any interim motion for support or preservation of family property. The court must balance the interests of the children and each of the parents. The court must consider the objectives set out in s. 15 of the Divorce Act concerning spousal and child support.[^13]
[28] In the present case, there is no evidence before me that Mr. Folahan is unable to secure funding from Legal Aid Ontario for his defence of the charges. There is also no evidence as to the prospect that future employment will enable him to meet his child support obligations. In these circumstances, given the very limited amount remaining in trust, the need to secure future child support must prevail over Mr. Folahan’s need for the funds for his defence of the criminal charges. This is not a case like Pang v. Pang, (2009) in which, as Lemon J. noted, “There are sufficient assets to fund both Mr. Pang’s defence and provide support”.[^14]
[29] Based on the foregoing, it is ordered that:
An order shall issue in the terms of the consent filed.
Ms. Folahan’s motion to restrict Mr. Folahan’s access to supervised access is dismissed. Access shall continue to be exercised in accordance with Donohue J.’s Order dated August 2, 2012. The transfer of the children shall be at Access Counselling and Family Services at 400 Brant Street, Suite 200, Burlington, at 6:00 p.m. Fridays and 6:00 p.m. Sundays, on alternate weekends, and on Wednesday at 4:00 and 8:00 p.m. at the McDonald’s Restaurant, Meadowvale Town Centre, 6650 Meadowvale Town Centre Circle, Mississauga, either by means of a mutually agreed upon 3rd party, or by the party leaving the children, after making eye contact with the other party, in the Play Centre from where the party receiving the children shall receive them. Neither party shall have contact or direct conversation with each other, but may text each other, if necessary, to confirm arrangements for the transfer, or to communicate cancellation, in the event of an emergency. Neither party shall speak disparagingly of the other to the children.
Ms. Folahan may travel with the children outside of Canada and may obtain passports for them for this purpose, without the necessity of obtaining Mr. Folahan’s consent, subject to the following:
a) She shall, at least 2 days prior to leaving Canada for no more than 72 hours provide written notice to Mr. Folahan with information as to the date of her departure and return and the location (address) where the children will be lodged while away;
b) She shall, at least 21 days prior to leaving Canada for more than 72 hours, provide the written notice to Mr. Folahan described above and, additionally, her proposed mode of travel and, if by air, her flights and itinerary.
c) She shall not travel with the children outside Canada for more than 2 weeks without obtaining the written consent of Mr. Folahan or an Order of this court and she shall provide make-up access to Mr. Folahan within 60 days of any access time he has missed during the children’s absence.
- As success was divided, and the parties were unavailable, even by telephone, to provide instructions for settlement which may have avoided the necessity of the hearing, there shall be no costs paid by either party to the other in connection with these motions.
Price J.
DATE: May 30, 2013
CITATION: Folahan v. Folahan, 2013 ONSC 2966
COURT FILE NO.: FS-12-74501-00
DATE: 20130530
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Abiola “Abby” Olatokunbo Olaitan Folahan v. Ayobami T. Folahan
BEFORE: Price J.
COUNSEL: Ms. A.S. Clarke, for the Applicant
Anita K. Kania, for the Applicant
Antal Bakaity, for the Respondent
ENDORSEMENT
Price J.
DATE: May 30, 2013
[^1]: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as amended. [^2]: Young v. Young, 1993 34 (SCC), [1993] 4 S.C.R. 3, at pp. 46, 117-18. [^3]: S.(B.L.S.) v. S. (T.M.), 2003 CarswellAlta 133. [^4]: Children’s Law Reform Act, R.S.O. 1990, c. C-12, as amended, section 24. [^5]: Young v. Young, above, at pp. 47, 99. [^6]: Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27, at pp. 67-68. See also Berry v. Berry, 2011 ONCA 705, 7 R.F.L. (7th) 1, at para. 10. [^7]: Barnes v. Parks, 2001 241146 (ON CA) (in chambers), at para. 10, per Laskin J.A. [^8]: A.(M.) v. D.(J.), 2003 ON CJ 52807, per Spence J., at para. 24 [^9]: C.G. v. M.G., 2009 ONCJ 254, per A.T. McKay J., at para. 9, adopted by Hourigan J. in J.H. v. L.H., 2010 ONSC 3599, at para. 44 [^10]: Pastway v. Pastway, (1999), 49 R.F.L. (4th) 375, [1999] O.J. No. 2525, 1999 CarswellOnt 2055 (Ont. Gen. Div.) [^11]: Montgomery v. Montgomery, (1992), 1992 8642 (ON CA), 59 O.A.C. 19, 97 D.L.R. (4th) 437, 42 R.F.L. (3d) 349, [1992] O.J. No. 2299, 1992 CarswellOnt 295 (Oct. C.A.), at p. 360 [R.F.L.] [^12]: M. v. P., 2011 ONCJ 840, per Kukurin J., at para. 30. [^13]: Cipollone v. Cipollone, 1996 19744 (ON SC), [1996] O.J. No. 760, 20 R.F.L. (4th) 313, per Ferguson J., at para. 22 [^14]: Pang v. Pang, 2009 ONSC 28214, per Lemon J., at para. 24