ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FC-08-73-1
DATE: 20130924
BETWEEN:
Eric Marucci Parham
Applicant
– and –
Xinjuan (Joan) Jiang
Respondent
The Applicant is self-represented,
David Hughes, for the Respondent
HEARD: August 19, 2013
Justice Patrick Smith
Introduction
[1] This is a high conflict custody and access case involving two intelligent capable parents who love their child but who have unfortunately been engaged in bitter, ongoing conflict since they separated.
[2] The Applicant father, Eric Marucci Parham [“Father”], and the Respondent mother, Xinjuan (Joan) Jiang [“Mother”], both seek, inter alia, interim sole custody of their daughter Jerica Jiang-Parham [“Jerica”] born August 4, 2005. The Mother also seeks an order for child support.
[3] Additional issues are raised in the pleadings including whether the child should remain in Hopewell school however, these issues were not pursued on the motion.
History of the Proceedings
[4] The parties met in 2002, married on April 3, 2004, separated shortly thereafter and were divorced in April 2009.
[5] The Mother first brought a court application in 2008. On July 11, 2008, Master MacLeod awarded the Mother interim custody of Jerica with access to the Father as agreed upon by the parties. This court application was not pursued, however, and was eventually administratively dismissed. Despite the fact that the application was dismissed, the Mother continued to rely on Master MacLeod’s interim Order, believing that she had custody of Jerica and that the Father had access. The Father, however, believed that the order no longer applied. Blishen J. later confirmed that the Father’s position was correct.
[6] The Father started the current court application in July of 2012, seeking, among other things, sole custody of Jerica. On September 28, 2012, Blishen J. Ordered that the Father would have access from Friday after school until Tuesday morning, with pick-up and drop-off at the school or at another location agreeable to the parties. Blishen J. did not make an order regarding custody.
[7] On October 29, 2012, a consent order was made for the appointment of an expert assessor to provide a report on custody and access. The parties appointed Dr. Weinberger.
[8] On December 4, 2012, the Father brought a motion before Maranger J. for interim custody and for an order that Jerica attend a particular school. Maranger J. held, however, that making such orders would be premature as the assessment was not yet complete. He noted that it was difficult to make findings of credibility without the assessment, in light of the conflicting accusations that the parties made against each other. Maranger J. ordered that Blishen J.’s Order would continue until the assessment was available and the matter was returned to court.
[9] Conflict between the parties persisted while they waited for the assessment, leading to further court involvement. On July 30, 2013, the Father brought a motion and the Mother a cross motion before Laliberté, J. who, inter alia, extended Blishen J.’s order and directed that the matter be heard on an urgent basis. Laliberté J. also found it difficult to make findings of credibility without the assessment.
[10] The hearing took place before me on August 19, 2013.
[11] In addition to court applications, the parties have attempted couples counseling and mediation. These attempts failed.
Background of the Parties and Jerica
[12] The Father was born in Connecticut and raised in the USA where he obtained a law degree in 1999 and worked as a patent lawyer until moving to Ottawa. In Ottawa, he worked as a Foreign Legal Consultant for Wi-Lan from August 2010 to September 2012 when he was let go. His affidavit material states that he is now unemployed. Recently, he received a certificate allowing him to practice law in both Canada and the USA.
[13] The Mother was born in China and came to Canada when she was 30 years old to study. She decided to remain in Canada when she obtained work here although her family remains in China. She is self-employed and operates two businesses from her home.
[14] Jerica is described as an intelligent and happy child who clearly loves both parents. Her health is unremarkable except for her having been diagnosed by Drs. Adams and Denmark as demonstrating features of a child on the autism spectrum, specifically that of a PD-NOS (Pervasive Developmental disorder- Not Otherwise Specified). She has been formally identified as a student with special needs although she attends regular classes with some added monitoring and support.
[15] There is substantial dispute between the parties as to the history of care for Jerica. Jerica was born in Ottawa and, aside from travel, has lived in Ottawa for her entire life. The Mother alleges that she was Jerica’s primary caregiver for that time. She also says that, up until August 2010, the Father spent the majority of his time in the United States, where he was employed as a patent lawyer. It is her position that after August 2010 when the Father moved to Ottawa to work as a Foreign Legal Consultant his role in Jerica’s life increased, although he did not replace her as Jerica’s primary caregiver.
[16] The Father alleges that he played a much greater role in Jerica’s life from her birth. For the first year of Jerica’s life, he worked in the United States for approximately two days a week. After that year, he spent only two days per month in the United States. He says that he spent the remainder of his time in Ottawa caring for Jerica, often living in the Mother’s house. He maintains that in August 2010, when he moved to Ottawa to work as a Foreign Legal Consultant, he was Jerica’s primary caregiver.
Dr. Weinberger’s Assessment Report
[17] On July 30, 2013, Dr. Weinberger completed his assessment of the child and parties. It is a thorough and well-reasoned report and provides independent evidence regarding what form of custody and access best promotes Jerica’s best interests.
[18] On page 37 of the report Dr. Weinberger concludes:
Access/Parenting Time – Both parents love the child and both provide quality care and are involved and available to the child and the child is attached to both and she is safe in either one’s care. Furthermore, both parents exercise their time with the child regularly and reliably. The child benefits from having both in her life. Overall, it is difficult to see why one parent more so than the other ought to have more time…
A sole custody arrangement may be the best solution overall, for the child, even though whichever parent loses custody is likely to feel devastated. Were sole custody to be implemented it ought to be done conditional on the non-custodial parent having maximal rights as may otherwise be available.
[19] On page 38 of his report Dr. Weinberger states:
What appears to me given the wholesale analysis here is the weight of the data and impressions leans towards the Mother being the one to be granted final authority, with the Father being involved in all other ways that would be realistic and helpful to the child.
[20] Dr. Weinberger concluded that, while both parents have meaningful relationships with Jerica and provide quality care to her, joint custody is not likely to be a feasible solution. This is due to the high level of conflict between the parents.
[21] Dr. Weinberger states, at page 36 of his report, “each parent is competent enough when with the child. It is when the parents interact that difficulties arise… There is value in crafting a regime that minimizes exchanges/transitions.” He further noted, at page 41, that “exposure to adult conflict presents a risk to a child’s well-being. How much more so to a child with special needs?”
[22] While he observed that, to date, Jerica is “weathering the storm not too badly,” he emphasized that “one would not want to predict that the child’s resilience would continue as is should the parental conflict march on unabated.”
High Conflict
[23] I am concerned that unless prevented by court order, conflict will continue to escalate with Jerica caught in the middle. Jerica has witnessed frequent altercations between her parents, including CAS interventions and her Father’s arrest by the police and his removal in handcuffs.
[24] There is no meaningful communication between the parties now or predictably at any time in the near future. The Mother directs all communication from the Father to her lawyer. She no longer accepts emails or telephone calls from the Father, nor uses the communications books because she finds all communication with the Father unpleasant and harassing. The Father’s email dated August 21, 2012, illustrates how toxic their relationship has become:
Ungrateful??? Are you completely out of your mind?...Should I be grateful for all your lies, tricks, extortion, attacks, harassment, abuses, thefts, conversions, false accusations, that utterly undeserved night in jail, or any of the resulting damage to our innocent daughter? Should I be grateful that this summer you’ve been trying to undermine eight years of my selfless devotion and utter dedication to raising her? You’ve been inconceivably evil for the past month and a half, and I’m simply at a loss for words to describe the devastation you’ve wreaked. If you died tomorrow of a brain tumor…I’d honestly think the world a better place…Do you know she’s asked me to find her a better Mommy?! I was once grateful that you bore her, but you’ve used up that credit many times over. I’m grateful that she’s here, but she owes you nothing…You are doubtless her biological Mother, but I think you’re now doing more harm than good. So what does that make you? What is being that cares more about themselves than their child? I think even you must know, somewhere in that selfish, dishonest and singularly unloving mind, that you’re a lousy excuse for a human being, much less a parent, but you’re more than smart enough to get by.
[25] Furthermore, the Father has demonstrated an inability to withdraw from a confrontation in the presence of the child when it is obviously best to do so. One incident, described in the police occurrence report, serves to support this finding. On July 15, 2012, the Father went to the Mother’s church service to pick up Jerica. He had tickets to an event for himself and Jerica, and believed that the Mother had agreed to this arrangement. He was running late, so he decided to go to the church service and pick her up. The Mother refused to allow him to take Jerica, stating that it was not his access time. The Father persisted and an intense argument developed in front of the congregation and child, ending when members of the congregation physically restrained the Father, preventing him from leaving with Jerica.
[26] I agree with Dr. Weinberger’s comments at page 38 of his report:
Perhaps there is room for interpretation as to who was to have access to the child at that time however it seems to me that the Father could have backed off and re-attempted to sort things out after, and for the future, rather that consciously and deliberately walking in to a situation, in public and in a house of worship, when one could reasonably have foreseen that he would be inviting confrontation.
[27] Even if the Father correctly believed that he had arranged to take Jerica to an event, it is problematic that he was unable to put Jerica’s best interests ahead of this plan despite it being clear that his persistence was creating a situation that served to embarrass and traumatize his daughter.
[28] I also have concerns about the Mother’s conduct and her ability to act responsibly with sole custody of Jerica. These concerns relate to circumstances when she decided to act unilaterally. For instance, she transferred Jerica to Hopewell school without consulting the Father or obtaining his consent—an action described by Justice Blishen as “at the very least inappropriate.”
[29] As well, despite the Order of this Court dated October 29, 2012, stipulating that “[n]either party shall undertake medical treatment of the child except for emergency situations without the prior consent of the other parent or further court order,” the Mother transferred Jerica’s care without any consultation or prior notice to the Father.
The Toxicology of Conflict
[30] Parents involved in high conflict custody and access disputes typically fail to see the harm that they cause to their children, often believing that they are fighting for the best interests of the children. The evidence is clear that intense conflict causes significant harm to children. Parents are often unaware of this important fact. For this reason, I will quote at length from Jackson v. Jackson, (2008) 2008 3222 (ON SC), 50 R.F.L. (6th) 149 (Ont. Sup. Ct.) at paras. 7 and 20.
... (text continues exactly as in the original decision)
Patrick Smith, J.
Released: September 24, 2013
COURT FILE NO.: FC-08-73-1
DATE: 20130924
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Eric Marucci Parham
Applicant
– and –
Xinjuan (Joan) Jiang
Respondent
REASONS FOR JUDGMENT
Justice Patrick Smith
Released: September 24, 2013