SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FS-13-12791
DATE: 20130118
RE: John Aaron Whittle, Applicant
AND:
Anna Sophia Whittle, Respondent
BEFORE: Bondy J.
COUNSEL:
Tamara Stomp, for the Applicant
Anna Sophia Whittle, acting in person
HEARD: January 18, 2013
ENDORSEMENT
A. OVERVIEW
[1] The applicant, John Aaron Whittle ("Mr. Whittle"), is thirty-eight years of age. The respondent, Anna Sophia Whittle (“Ms. Whittle”), is thirty-three years of age. They began living together in 1998. They were married January 26, 2004. Ms Whittle moved out of the matrimonial home December 10, 2011.
[2] There are two children of the relationship, McKenzie Gail Whittle born January 6, 1998 ("McKenzie"), and Aaron Clayton Whittle born July 25, 2000 ("Clayton"). McKenzie and Clayton have lived with Mr. Whittle continuously since separation.
[3] According to the applicant, the respondent exercised very little access after the initial separation. He maintains that Clayton did not start to visit his mother until approximately November of 2012. According to the respondent, she traveled to Leamington 3-4 times per week to visit the children. She claims to have spoken to the children daily by telephone. I am unable to conclude which version is more likely correct based on the evidence before me.
[4] On January 4, 2013, the applicant delivered the children to the respondent mother's home for the weekend. When he went to pick them up on January 6, Clayton did not come home with him. According to the applicant, the respondent stood in front of Clayton and said to him "tell your dad what you have to say". Clayton then stated that he wanted to stay and live with his mother. According to the respondent, Clayton expressed to her that he was "scared that he might have to go back to live with his father". The respondent mother maintains that it was for that reason that she failed to return the child as agreed. Again, I am unable to determine which version of the facts is more likely true based on the evidence before me.
B. ANALYSIS
a) Introduction
[5] I begin with the observation that subsection 20(4) of the Children's Law Reform Act, RSO 1990, c C.12, provides that where the parents of a child live separate and apart and the child lives with one of them with the consent, implied consent or acquiescence of the other of them, the right of the other to exercise the entitlement of custody and the incidents of custody, is suspended until a separation agreement or order otherwise provides. It follows that the respondent mother's "self-help" was without right or colour of right.
[6] Self-help must be discouraged and admonished otherwise anarchy will result. Children would have no stability in their lives. Their schools, their friends, the home they live in would be subject to the shifting whims of parents who may or may not have the children's best interests at heart.
[7] In this case the actions of the respondent mother are particularly egregious. She removed Clayton from his sibling, his home, his friends, and his school. In other words, she took any stability that Clayton had in his life away from him. The stability in Clayton's life must be restored.
b) Custody
[8] While the best interests of Clayton require the status quo be reinstituted, a custody order is premature.
[9] To be blunt, it is not clear to me which parent, if either, would be an appropriate custodial parent. Both have demonstrated conduct consistent with the lack of insight into the best interests of the children. Both have put their own needs ahead of those of their children.
[10] The materials filed for this motion contain affidavits from 12 ½ year-old Clayton and 15 year-old McKenzie. I find the affidavits troubling. There are countless reasons. Two examples are as follows.
[11] First, and most importantly, they are children. They do not deserve to be subjected to the apparent hate that the applicant and respondent have for one another. The children have been conscripted by one parent to say horrible things about the other.
[12] Second, the affidavits are of no evidentiary value. The affidavit of Clayton purporting to support his mother’s position was sworn by the same person as the mother’s affidavit. In other words, it was prepared with a view to supporting one parent's position rather than the child's best interest. That is notwithstanding the very obvious conflict of interest. If the children's opinions were to be canvassed, it should have been by an independent third party. It should have been by a party who could do so with minimal damage to the children. McKenzie's affidavit suffers from the same inherent flaws.
[13] Of interest, the respondent’s affidavit of January 10 claims that the parties separated in mid-2009 as a result of the applicant's heavy drinking and numerous affairs (although she acknowledges that they continued to live jointly in the matrimonial home until December of 2011). I am unsure, based on the evidence before me, whether those assertions are true. If they are, I find it incomprehensible that a mother would flee that home to save herself, and leave her children there to suffer the intolerable situation that she asserts exists in that home.
[14] In order to ensure that all possible options are left open, it is important that the mother continue to have access notwithstanding her conduct. That access must, unfortunately, be specified in order to avoid further confusion in the lives of the children.
C. ORDER
[15] I make the following order on an interim basis:
This matter is to be heard prior to a case conference based upon urgency, given that Clayton’s ability to return to his former school will be comprimised by the passage of time
Neither party shall discuss adult issues with the children. Neither party shall elicit affidavit evidence, or any other evidence from the children.
Until further order of the court the residence of McKenzie Gail Whittle born January 6, 1998 and Aaron Clayton Whittle born July 25, 2000 shall be with the applicant father John Aaron Whittle who shall reside with the children in the County of Essex. Clayton shall be returned to the applicant's home forthwith. Clayton shall be re-enrolled at St. Louis School in Leamington.
Until further order of the court the respondent Anna Sophia Whittle shall have access to the children every second weekend beginning January 26, 2013 from 9 AM each Saturday until 5 PM each Sunday, subject to the children's wishes. The applicant shall drive the children to the respondent's house each Saturday morning, and the respondent shall drive the children to the applicant’s house each Sunday evening.
Until further order of the court the respondent Anna Sophia Whittle shall have reasonable telephone access to the children.
The parties shall advise each other forthwith of any major medical urgency or any hospital attendance required by the children while in each other's care.
Each party shall be equally entitled to the release of any medical, religious, or educational information regarding the children, and each shall provide their written consent for the release of such information if required.
The parties shall be equally entitled to attend school or extracurricular activities of the children and to receive information from their schools.
An order is hereby made pursuant to section 36 of the Children's Law Reform Act directing the local police, Ontario Provincial Police, the Royal Canadian Mounted Police, or any other police agency within the jurisdiction where the children of the marriage being McKenzie Gail Whittle born January 6, 1998, and Aaron Clayton Whittle born July 25, 2000 are located, to enforce any and all orders of the Court in relation to the residency and access of the children of the relationship.
D. COSTS
[16] The conduct of both parties was egregious. That of the applicant was however less so. Under the circumstances I find costs payable to the applicant by the respondent in the amount of $750.00, all inclusive to be reasonable. The respondent shall have sixty days to pay.
Original signed by “Christopher M. Bondy”
Christopher M. Bondy
Justice
Date: January 18, 2013