ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS 3133-12
DATE: 201401007
B E T W E E N:
BLAIR BRIAN BEHE
Applicant
Edward Rae, Counsel
- and -
LISA BEHE
Respondent
Actin in person
HEARD: December 11, 12 and 16, 2013
Ellies J.
REASONS FOR DECISION
[1] Mr. and Mrs. Behe separated on January 30, 2012. They have two young children: Victoria, who is now 10 years old, and Olivia, who is now five. Custody of and access to these children are the central issues in this trial.
BACKGROUND FACTS
[2] The parties submitted an agreed statement of facts and called evidence to amplify that statement. I will set out only what I consider to be the important background facts in this section of my reasons. I will refer to what I believe are the dispositive facts in the section entitled “Analysis”, below.
[3] Mr. and Mrs. Behe were married on July 25, 2003. During the course of the marriage, Mr. Behe worked outside of the home and Mrs. Behe stayed home to care for the children, although she did work as a lunchroom monitor at Victoria’s school for a period of time.
[4] The children have been described by third parties as being “delightful”. Victoria is in grade five. Adults who have interacted with her use adjectives like “pleasant”, “smart” and “perceptive” to describe her. Olivia is in senior kindergarten. Her teacher describes her as being “friendly, helpful, kind and polite”. Both Victoria and Olivia suffer from speech difficulties. Victoria was referred to speech therapy in 2007 and Olivia was referred in 2010.
[5] Based on the evidence, both parties were good parents while they were living together. Mrs. Behe was very involved with the children. Amongst other things, she took them to the Early Years Centre for many years and participated in a variety of children’s programs there, many of them several times a week. Individuals working at the centre indicate that she asked appropriate questions, communicated with the girls in a warm and gentle manner, and encouraged the girls to try all the activities that were available to them. Ms. Clement, a facilitator there, described Mrs. Behe as demonstrating “good parenting skills”.
[6] Although Mrs. Behe raised concerns afterwards about Mr. Behe’s drinking habits prior to their separation, there is no evidence that she was concerned about them before, nor have they since been substantiated during investigations by the Children’s Aid Society (“CAS”) and the Office of the Children’s Lawyer (“OCL”). In cross-examination, Mrs. Behe admitted that Mr. Behe was a good father and a good husband.
[7] Mr. Behe testified that “things were great in the beginning”, but Mrs. Behe’s behaviour began to change after Olivia was born in 2008. In December of 2009, Mrs. Behe saw a psychiatrist. In January of 2010, he diagnosed her as suffering from auditory hallucinations and some kind of psychosis. She was prescribed medication, but stopped taking it not long after.
[8] In February and March of 2011, Mr. Behe enlisted the assistance of the Community Counselling Centre (“CCC”) with respect to concerns he had about Mrs. Behe’s behaviour and the safety of the children while he was at work. In early January of 2012, he contacted the police for advice on how to assist Mrs. Behe, because he believed she was having difficulties with her mental health.
[9] Not long after, on January 27, 2012[^1] an altercation occurred between Mr. Behe and Mrs. Behe. The parties had been arguing about the fact that Mrs. Behe had removed Victoria from the speech therapy program. According to Mrs. Behe, Mr. Behe threw popcorn at the kids[^2] and approached her in a threatening manner. She reacted by “pushing his face away”[^3]. Although the evidence on this point is not clear, I believe that Mr. Behe then attended before a Justice of the Peace to obtain what is commonly referred to as a “Form 1” under the provisions of the Mental Health Act. Several days later, the police took Mrs. Behe to the North Bay Regional Health Centre. There, she came under the care of another psychiatrist, Dr. Cochrane, who cared for her from that time until August of 2013. Dr. Cochrane saw no evidence of delirium, psychosis or major mood disorder, so he discharged her that same day.
[10] On January 30, 2012 Mrs. Behe was charged with assaulting Mr. Behe as a result of the altercation. She was later also charged with failing to comply with the terms of her release which prohibited her from contacting Mr. Behe, directly or indirectly. Mrs. Behe was eventually placed on probation for a period of four months. At the time of trial, Mrs. Behe was no longer prohibited from communicating with Mr. Behe.
[11] On the advice of welfare authorities, Mr. Behe left the matrimonial home with the girls following the altercation and moved into his parents’ home. He enrolled the children in daycare. Although it is not clear exactly how, Mr. Behe made contact with the CAS after he left the matrimonial home. Condition 2 of a “Safety Plan” prepared by the CAS required him to initiate an “emergency” custody application, which he did. On January 31, Mr. Behe obtained an order for temporary custody of the children from the Ontario Court of Justice, made without notice to Mrs. Behe.
[12] Because she had witnessed the altercation between Mrs. Behe and Mr. Behe[^4], Victoria was provided with counselling through the Victim Quick Response Program offered by the Ministry of the Attorney General.
[13] The order of January 31 granted Mrs. Behe supervised access to the children at the supervised access centre. That term was varied on four occasions:
(a) On March 12, 2012, it was varied to permit Mrs. Behe to have supervised access at Mr. Behe’s parents’ home, but that access broke down;
(b) On April 12, 2012 the order was varied to allow additional access under the supervision by anyone approved by both parties;
(c) On December 14, 2012, it was varied to include such further access as is necessary for Mrs. Behe to attend counselling with the children; and
(d) On October 31, 2013, it was varied to specify that Mrs. Behe was to have two, two-hour periods of access per week, under the supervision of “an appropriate supervisor”.
[14] At the time of the trial, the parties were paying a student enrolled in early childhood education studies to supervise access, which was being exercised in Mrs. Behe’s home. According to Mr. Behe, the parties quickly ran out of mutual friends to supervise and the parties began hiring high school students to do the job. He testified that 12 such people have supervised access since the order was varied to allow it.
[15] In addition to access visits, Mrs. Behe has telephone access to the children. At the time of the trial, this access was being exercised every night, with no time limit placed on the calls.
[16] Two reports were prepared at the request of the court by Sharon Chayka, an investigator assigned by the OCL. The first was completed in August of 2012. It dealt with both custody and access. The second was completed almost a year later, in July of 2013, and dealt primarily with access only. In addition to the reports being filed, Ms. Chayka was called to testify during Mr. Behe’s case. During cross-examination, Mrs. Behe challenged Ms. Chayka’s objectivity, alleging that she was related to Mr. Behe’s new girlfriend. Ms. Chayka denied that allegation. I accept her evidence on this, and on every other issue. Ms. Chayka impressed me as being experienced, professional, thorough, and genuinely concerned about the welfare of Victoria and Olivia.
[17] In her first report, Ms. Chayka noted (at page 17) that Victoria was angry with Mrs. Behe and that, while the children still wanted to see their mother, they did not feel safe alone with her. She cautioned against the parties “parentifying” Victoria. She recommended that Mr. Behe continue to have sole custody and that the primary residence of the children remain with him. She also recommended that Mrs. Behe’s supervised access be increased on a gradual basis, providing that she maintained contact with her psychiatrist and her family physician. Ms. Chayka’s other recommendations included age-appropriate parenting classes for both parties, ongoing counselling for Mrs. Behe, and counselling for the children.
[18] It was Ms. Chayka’s hope that her recommendations would help the children to work through their feelings with their mother in a therapeutic environment, first by undergoing therapy alone and then with Mrs. Behe. Unfortunately, that goal was not achieved. Victoria did go to counselling, but refused to have her mother in the room. Access at the supervised access centre could not be increased due to constraints on resources. The involvement of untrained supervisors meant that Mrs. Behe received no guidance during her interaction with the children.
[19] Other recommendations made by Ms. Chayka were also not followed. Mrs. Behe did not continue with her counselling. According to her, this was because Victoria did not want to attend sessions with her. She testified that she went directly to Ms. Chayka for help in obtaining counselling because the CCC would not let her enroll the children due to the fact that Mr. Behe had temporary custody. Ms. Chayka told her that she could not offer the counselling and that Mrs. Behe would have to speak with her lawyer.
[20] According to Ms. Chayka’s second report and the notes from the supervised access centre, Mrs. Behe’s relationship with the children became worse, not better (see page 22/26). The children were observed to be “defiant and non-compliant” while in the presence of Mrs. Behe. Victoria rejected any physical contact with her mother and would sometimes refuse to visit with her altogether. Mrs. Behe exhibited no control over the children and was not listening to them.
[21] Thus, in her second report, Ms. Chayka recommended that Mr. Behe continue to have sole custody of the children and that access to Mrs. Behe first take place only in a therapeutic environment. She recommended that supervision by non-professionals be discontinued and that access by Mrs. Behe at the supervised access centre resume once the therapist felt it appropriate. She also recommended that Mrs. Behe attend individual counselling to deal with separation issues and parenting techniques, amongst other things.
[22] Mr. Behe testified that he has enrolled the children in the counselling recommended by Ms. Chayka, but that the CCC was still waiting for Mrs. Behe to fill in some forms. Mrs. Behe testified that she returned to individual counselling only recently. Regrettably, in September of 2013, the supervised access centre advised the parties that Mrs. Behe would no longer be welcome there because she was continually violating the centre’s policies. Thus, at the time of the trial, access by Mrs. Behe was once again taking place in the presence of non-professionals, often at the mall, according to Mrs. Behe.
[23] In November of 2012, Mr. Behe bought out Mrs. Behe’s interest in the matrimonial home and moved back into the home with the children. He has a new partner now, who also recently moved into the former matrimonial home.
[24] Mrs. Behe remains single and lives in an apartment located not far away from Mr. Behe. She has obtained a full-time job at a coffee shop not far from her home, where she earns minimum wage. She testified that, if given custody, she would move into a larger place.
POSITIONS OF THE PARTIES
[25] Mrs. Behe is seeking joint custody, with the children residing primarily with her. She submits that the evidence shows her to be a good mother who loves her children and would do anything for them. She believes that as their mother, she is in the best position to know and to address their needs. She submits that joint custody would be in the children’s best interests because it would allow her to take the children on trips and to take over for Mr. Behe should anything happen to him.
[26] Mr. Behe seeks sole custody and primary residence of the children with him. He would like Mrs. Behe to have no contact with the children until the recommendations of Ms. Chayka can be implemented. He would also like an order preventing Mrs. Behe from harassing him.
ANALYSIS
Custody
[27] Both Mr. Behe’s application and Mrs. Behe’s answer seek custody under the Children’s Law Reform Act (“CLRA”). Section 24 of that act sets out the factors to be considered by the court:
- (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.
Joint Custody
[28] In my view, joint custody is not a viable option in this case. In order for a joint custody arrangement to work, the parents must be able to communicate effectively: Kaplanis v. Kaplanis, 2005 1625 (ON CA), 194 O.A.C. 106; 10 R.F.L. (6th) 373. As Mrs. Behe admitted during her testimony, the parties have a “communication problem”. That is also obvious from the evidence, which I will address below. Therefore, I am required to determine which of the parties should be granted custody, bearing in mind the factors set out above.
[29] In considering the factors listed in s. 24, I have taken into account that Mrs. Behe is at a disadvantage in a certain sense. With the exception of the first OCL report, observation visits to assess her interaction with the children took place in the unfamiliar surroundings of her new apartment, the investigator’s office, and the supervised access centre. In addition, she and the children were “put under a microscope” at the centre. On the other hand, Mr. Behe’s interaction with the children was observed only in the familiar surroundings of his parent’s home and the former matrimonial home. As well, he had the benefit of daily personal contact with the children without anyone taking notes.
Past Violence
[30] I wish to deal first with the incident of January 27, 2012. In my view, this was an isolated incident. Although Dr. Cochrane’s consultation report of January 31, 2012 refers to previous “ambient conflict” in the parties’ relationship, there is no evidence that any violence occurred prior to that date and no evidence that anything like it has occurred since. It is not reflective of either party’s ability as a parent, in my opinion.
Parental Abilities
Mrs. Behe
[31] I wish to deal next with Mrs. Behe’s mental health. In several letters, Dr. Cochrane wrote that Mrs. Behe is not suffering from any major psychiatric disorder and that he has no concerns about her ability to care responsibly for her children. Mrs. Behe’s family doctors have expressed the same opinions. There is no expert evidence to the contrary. As a result, I have no concerns about Mrs. Behe’s mental health as it relates to her ability as a parent. Nonetheless, I have serious concerns about Mrs. Behe’s parenting abilities.
[32] In my view, Mrs. Behe has become so focused on getting custody of the children that she has completely lost the perspective required to be a good parent. As proof that she has become obsessed with obtaining custody, I offer the following:
(e) Mrs. Behe testified that she tried to change the January 31 Ontario Court temporary custody order in “tons” of motions. The record reveals at least six.
(f) In one of her attacks, Mrs. Behe brought a motion ahead of the scheduled return date of another one, on a date upon which her lawyer was not even able to attend. The motion judge ruled that the motion was a repeat of one he had heard just a few weeks before.
(g) Mrs. Behe brought another motion without the assistance of her lawyer, which resulted in an order being made on April 19, 2012 prohibiting her from doing so again.
(h) When Ms. Chayka made her first visit to observe Mrs. Behe in the company of the children, Mrs. Behe used the occasion as an opportunity to try to give the investigator information favourable to her case, rather than to interact with the children.
(i) When she first attended for counselling at the CCC, Mrs. Behe was “constantly trying to build up her court case”, according to information her counsellor, Ms. Pitre, provided to Ms. Chayka (see page 17 of Ms. Chayka’s first report).
(j) Mrs. Behe contacted the CAS to express concerns about Mr. Behe’s behaviour after the first custody order. The allegations she made included an allegation that the children may have been abused sexually while in Mr. Behe’s care. The CAS investigated and determined that none of the allegations were substantiated. Given her admission that Mr. Behe is a good father and the fact that Mrs. Behe did not advance any allegations of sexual abuse in these proceedings, I view these allegations as an attempt at gaining an advantage in the custody battle.
(k) Mrs. Behe told her children during an observation visit that she would not stop until she got custody of them. At least as disturbing as this comment is the fact that she made it in front of Ms. Chayka.
(l) She said the same thing during the trial.
[33] As proof that Mrs. Behe has lost her perspective, and therefore lacks insight into how her behaviour is affecting the children, I point to the following evidence:
(a) Involving the Children in the Custody Battle
[34] Ms. Chayka warned against putting the children in the middle of their parents’ custody battle. However, the notes of the supervised access centre contain entries such as:
(i) “Lisa asked if Daddy took good care of them” (at page 2);
(ii) “Lisa then began to tell Victoria how much she loved her and how she would do anything to get her back” (at page 11); and
(iii) “Lisa consoled Olivia and said, ‘I know you don’t feel good; this is why mom should be home with you; I’m sorry mom’s not home with you” (at page 86).
[35] Mrs. Behe admitted during her evidence-in-chief that she told Victoria on the telephone that the reason she is going to court is so that Victoria can come home. She also admitted that she asks the girls during phone calls if they are being properly fed and cared for by their father.
[36] Mrs. Behe seems unable to see how damaging these types of comments can be.
(b) “Parentifying” the Children
[37] During an observation visit at her home leading up to the preparation of Ms. Chayka’s second report, Mrs. Behe told Victoria to remind Mr. Behe not to have any alcohol when driving. This is exactly the type of “parentification” against which Ms. Chayka also cautioned in her first report.
(c) Force-feeding the Children
[38] The notes of the supervised access centre, interviews with lay supervisors, and the evidence obtained during interviews with the children demonstrate that Mrs. Behe is force-feeding Olivia. Mrs. Behe believes that Olivia is too skinny. Because of her concern, she often brought food to the access centre, even though she knew that the children had already been fed by Mr. Behe and that the CAS had found no evidence to support her concerns that the children were not being fed properly.
[39] Although Mrs. Behe acknowledges that Victoria has a weight problem, the food Mrs. Behe brought to the centre often consisted of things like chicken wings, fries or wedges, and fruit. Although Victoria often refused the food, it was not fair to temp her. When she did eat, Victoria ate the fattening foods and Olivia ate only the fruit. Thereafter, Mrs. Behe would follow Olivia around, feeding her the chips or other fatty foods by hand. According to Mr. Joly, who supervised access outside of the centre for a period of time, this sort of behaviour also happened at home.
(d) “Patrolling” the Children’s Neighbourhood
[40] Mrs. Behe did not stop at feeding Olivia at the access centre and at her home. She brought food to the children at their home. Knowing that she was not to be on the property, Mrs. Behe would bring the food either to the property line or give it to a neighbour to be given to the children. Victoria complained about this to Ms. Chayka, calling Mrs. Behe’s behaviour “patrolling” the neighbourhood. Victoria told Ms. Chayka that it was scaring the other children away. Although Ms. Chayka set this out in her second report, the behaviour continued.
(e) Breaking and entering the family home
[41] After being advised by a neighbour that someone was in his house, Mr. Behe arrived home one day to find Mrs. Behe coming out of a basement window. According to Mrs. Behe, she was looking for something that she had misplaced. I do not accept that explanation, given the evidence of Mrs. Behe’s obsessiveness. Even if it was true, there is no reason why she should be sneaking into the home instead of having someone contact Mr. Behe (if she was still prohibited from doing so herself at that time) and asking him to look for it.
(f) Making inappropriate contact with Mr. Behe during access exchanges
[42] Mr. Behe complained to Ms. Chayka while he was being interviewed in advance of her second report that Mrs. Behe was trying to hug and kiss him and at times put her hands down his pants in front of the children during access exchanges. The kissing was confirmed by Victoria. Mrs. Behe told Ms. Chayka that she felt the children needed to know that she still loves their father and wants to be a family again. This does nothing to help the children through the separation.
(g) Causing the termination of the Supervised Access Centre involvement
[43] September 29, 2103 was the last day that Mrs. Behe exercised access at the access centre. On that day, staff advised her that they were ending her access visit because she was violating the centre’s policies by bringing food. Before me, she testified that this was the first time she had been so advised. However, Mrs. Behe admitted to the centre staff that she wanted to get kicked out of access centre. I find that disturbing. The access centre was providing Mrs. Behe with guidance on how to interact positively with her children. This is an example of Mrs. Behe’s refusal to accept that anyone could know more than she does about what’s best for her children. I will provide another example.
(h) Removing Victoria from speech therapy
[44] In January of 2012, Mrs. Behe cancelled Victoria’s speech therapy. She testified that she put speech therapy for Victoria “on hold” because Victoria was missing classes and because other children were on waiting lists to receive it. However, she was told by school officials that Victoria needed the therapy and that the waiting list was not her concern. Removing Victoria from speech therapy against the recommendations of teachers and therapists, demonstrates a failure to accept professional guidance. Doing so without consulting Mr. Behe demonstrates Mrs. Behe’s inability to co-parent.
(i) Other evidence
[45] Mrs. Behe filed a number of letters from witnesses who spoke highly of her ability as a parent. I am not persuaded that they are very helpful. For the most part, they relate to her ability as a parent prior to separation. Most of the events to which I have referred occurred after. They do give me hope, however, for what might be, provided Mrs. Behe is prepared to work at it.
Mr. Behe
[46] I contrast all of the evidence I have listed above with the evidence of Mr. Behe’s ability as a parent both before and after the separation. I do not accept Mrs. Behe’s position that Mr. Behe did anything to “engineer” (my word, not hers) a win early in the custody battle. Beginning in 2009, he sought to help his wife with her mental health and to keep his children safe while keeping the family together. He brought the motion which resulted in the January 31 order as part of a plan to protect his children that was developed with the help of the CAS. I accept his evidence that he also sought temporary custody in order to provide Victoria’s school with the authority they needed to re-enroll her in speech therapy.
[47] I also reject Mrs. Behe’s contention that Mr. Behe unfairly brought up the evidence of her earlier mental health issues in pursuing the order he did. He was candid in his materials to point out the dated nature of that evidence.
[48] There are really only two serious issues that have been raised about Mr. Behe’s ability as a parent. One is the complaint of Mrs. Behe about his drinking. I am not concerned about this allegation. Although Mr. Behe does have a conviction for impaired driving, it is very dated, having occurred more than 19 years ago. Further, the allegation was not substantiated by the CAS. As well, the proof offered in court was weak. While I appreciate that an allegation like this can be difficult to prove visually, the photos are not persuasive. They were all taken prior to the separation. Two photos show Mr. Behe having a beer. One of them was taken on his birthday. The other photos simply show containers consistent with the presence of alcohol in the home while the parties were living together.
[49] The second issue is of more substance. In her first report, Ms. Chayka noted that Victoria possessed age-inappropriate information that she could only have obtained from her father. During cross-examination by Mrs. Behe, Mr. Behe testified that he was obliged to give adult information to the children in response to questions they posed after speaking with their mother on the telephone. Given the evidence I have referred to above concerning some of the comments Mrs. Behe made to the children, I have no difficulty accepting this. Still, Mr. Behe also testified that he considers himself equally responsible for having provided this age-inappropriate information. So do I. However, this concern has now been addressed. Mr. Behe did engage in the age-appropriate parenting course recommended by Ms. Chayka in her first report and there is no indication in her second report that the problem continues.
[50] The balance of the evidence about Mr. Behe’s parenting skills is positive. He has acted on Ms. Chayka’s recommendations and he has continued to encourage the children to visit with their mother, even when they do not want to.
Love, Affection and Emotional Ties Between the Parties and the Children
[51] There is absolutely no doubt that Mrs. Behe loves her children. That has been conceded and is obvious. In fact, that love may be the reason Mrs. Behe is apparently so blind to her behaviour and the affect it is having on the children.
[52] There is also no doubt that Mr. Behe loves his children. But the affection of the parents for the children is only half of what I must consider. The evidence indicates that there is a stronger bond between the children and Mr. Behe than there is between the children and Mrs. Behe.
[53] In her first report, Ms. Chayka noted that there had been no physical interaction between Mrs. Behe and the children during her visit, which was conducted at the matrimonial home. This was also noted by staff at the supervised access centre.
[54] According to Victoria’s victim assistance counsellor, Cory Boyer (at tab 14), Victoria did not include her mother in a drawing of all the people who were important to her and once drew a picture of her mother behind bars with spiders crawling on her.
[55] With respect to Mr. Behe’s interaction with the children, however, she noted (at page 8):
Victoria and Olivia appeared to be very calm in their father’s presence, there was a lot of physical actions initiated by the children and reciprocated by Mr. Behe throughout the visit. Mr. Behe talked at their level of understanding, and was able to attend appropriately to both of the children, listening to them in an attentive manner.
This observation is significant to me, because it was made early in the period following separation, before even stronger ties could be formed by virtue of the fact that the children reside with the father.
[56] By the time Ms. Chayka wrote her second report, Olivia was engaging in a lot more physical activity with her mother, but Victoria refused to do so. Her behaviour towards Mrs. Behe was described by Ms. Chayka as “bordering on rudeness”. This behaviour is also borne out by the access notes. The notes also indicate that, although she knows Victoria does not want any physical contact with her, Mrs. Behe pursues Victoria for hugs and kisses, nonetheless.
[57] During her evidence, Mrs. Behe described Victoria’s behaviour as normal for a ten year old. In my view, and that of Ms. Chayka, it is not. It is a symptom of a problem other than just her age. The evidence of Mr. Behe, who testified that the kids have “meltdowns” frequently after access with Mrs. Behe, supports that view.
The Children’s Wishes and Preferences
[58] Mrs. Behe took the position while testifying that even a child of Victoria’s age should not be dictating with whom she will live. I agree, but the children’s wishes and preferences are an important factor to consider.
[59] In her first report (at page 8), Ms. Chayka indicated that Olivia wanted to live with her mother, whereas Victoria did not. Roughly a year later, she reported that neither child even wanted to be alone with Mrs. Behe. This is understandable, given the complaints the children have about being hugged, kissed and fed against their will.
Conclusion on Custody
[60] Based on all of the foregoing, I agree with the recommendation of Ms. Chayka that sole custody and primary residence of the children should remain with Mr. Behe.
Access
[61] I am also in full agreement with the recommendations of Ms. Chayka concerning access. In my opinion, it is in the best interests of the children that visitation be conducted in a therapeutic setting only. Providing that sufficient progress is made, that access can then take place in a professionally supervised setting, such as at the access centre. Ms. Chayka recommended that the therapist make the determination as to when that should occur. However, that discretion should not be delegated to a third party (: C.A.M. v. D.M. (2003), 76 O.R. (3d) 181, 2003 18880 (Ont. C.A.)). Therefore, although I am reluctant to keep the prospect of another court appearance looming over the heads of the members of this family, I believe that the issue of access should be returned before me in six months. It may be brought back earlier, but only by Mr. Behe or with his written consent. At that time, the party seeking to change the access order shall file a written report from the therapist in support of the request.
[62] During these first six months, telephone access should be restricted, in my view, and also supervised. It should be limited to four calls per week, on the evenings of Monday, Wednesday and Friday, and one call during the weekend, at times convenient to the children. The discussions with each child should not be longer than 15 minutes per call. Olivia is too young for longer discussions and Victoria is currently not doing well with this type of access.
[63] Telephone access during this period should be supervised in the sense that the calls should be monitored by Mr. Behe. I am aware of how uncomfortable this may make everyone, but that concern is outweighed by my concern about the appropriateness of Mrs. Behe’s comments and the effect they have on the children.
[64] Telephone access may be increased in frequency or duration at the request of the children and with the consent of Mr. Behe.
Support
[65] Mr. Behe’s income for the purposes of calculating support is $53,565. Based on her new employment, Mrs. Behe’s annual income is roughly $20,000. The trial record does not contain any financial statement for Mrs. Behe. According to Divorcemate calculations prepared by counsel for Mr. Behe, the table amount payable by Mrs. Behe to Mr. Behe for child support is $306 per month. The amount of spousal support payable by Mr. Behe to Mrs. Behe is in the range of $323 to $431, with the midpoint being $377. The duration is five to 10 years.
[66] I am urged by counsel for Mr. Behe to do as the court did in Warren v. Coade-Warren, 2013 ONSC 2869 and deduct the spousal support payable by Mr. Behe from the child support payable by Mrs. Behe. I am not comfortable with that proposal. Child support is not taxable deductible to Mrs. Behe’s, whereas periodic spousal support is tax deductible to Mr. Behe. I do not have enough information about the net effects of trading one off against the other. Mr. Behe may, in fact, lose in the deal.
[67] Mrs. Behe testified that her place of employment will be closed for renovations in the month of January. As far as I am aware, she has no other source of income, apart from the support payments presently being made by Mr. Behe in the amount of $516 per month, which began on March 1, 2012. Mrs. Behe also testified, however, that she is looking for other employment and seemed confident that she would find it.
[68] In these circumstances, I believe that spousal support should continue for a period of time at a higher rate, and be decreased gradually to account for Mrs. Behe’s integration into the work force.
Non-harassment
[69] The breach with which Mrs. Behe was charged related to phone messages. Professionally prepared transcripts filed as evidence show that a few short days after being released on terms that precluded her from contacting Mr. Behe directly or indirectly, Mrs. Behe left approximately 30 voicemail messages for him during one 24-hour period. During cross-examination, she accused Mr. Behe of making “a big deal about it”.
[70] Mr. Behe complained in August of 2012 and March of 2013 to the police about being harassed by the number of phone calls he was receiving from Mrs. Behe. He made the same complaint before me. He testified that he was concerned about losing his job due to the number of calls he was receiving from Mrs. Behe at work.
[71] When she was cross-examined about how many calls she was making, Mrs. Behe did not deny making them. Instead, she testified that what Mr. Behe calls “harassment”, she calls “caring”. I disagree.
[72] Counsel for Mr. Behe requested that I put in place a restraining order, presumably under s.35 of the CLRA. That section requires that the applicant have reasonable grounds to fear for his safety or the safety of any child in his custody. That is not the evidence. Moreover, there was no request for such an order in Mr. Behe’s application.
[73] However, s.28 (1)(c)(i) of the CLRA permits a court to limit contact or communication between the parties or between the parties and their children as part of a custody or access order. Counsel for Mr. Behe suggested the use of a communication book, as did Ms. Chayka in her first report. I have difficulty seeing how that can work where access is restricted in the way I propose to restrict it. For that reason, Mrs. Behe shall be restricted to communicating with Mr. Behe in writing or by way of text message or electronic mail only, and only for the purpose of facilitating access. These methods of communication are less intrusive than phone calls, can be answered by Mr. Behe when he is not busy at work, and can easily be monitored by the court against abuse without the necessity of transcripts being prepared.
Costs
[74] I asked the parties to address the issue of costs during their submissions at trial.
[75] Mr. Behe has been largely, if not completely, successful in the sense that he agreed with Ms. Chayka’s recommendations, as do I. Pursuant to Rule 24, therefore, he is presumptively entitled to costs.
[76] This was a two and one-half day trial. Ordinarily, I would award costs in the range of $5,000 to $7,500 for a case of this length, nature and relative simplicity. However, I am mindful of Mrs. Behe’s low income, and the newness of her employment. For that reason, I would award costs of only $2,500. I would also make those costs payable over time, commencing once Mrs. Behe has had an opportunity to gain a stronger foothold in the labour market.
CONCLUSION
[77] A final order shall issue, as follows:
(a) Mr. Behe shall have custody of the children, Victoria Ashanti Behe, born November 23, 2003, and Olivia Ruth Behe, born February 16, 2008.
(b) The primary residence of the children shall be with Mr. Behe.
(c) Mrs. Behe shall have access to the children, as follows:
(i) Visitation under the supervision of and at a location determined by a professional therapist whose services are offered through or recommended by the Community Counselling Centre; and
(ii) Telephone access limited to four calls per week, on the evenings of Monday, Wednesday and Friday, and one call during the weekend, at times convenient to the children. The discussions with each child shall not be longer than 15 minutes per call. Such access may be increased in frequency or duration at the request of the children and with the consent of Mr. Behe.
(d) Mr. Behe shall pay spousal support, as follows:
(i) $425 per month, commencing on February 1, 2014,and payable on the first day of each month thereafter until January 31, 2015;
(ii) $375 per month, commencing on February 1, 2015, and payable on the first day of each month thereafter until January 31, 2017;
(iii) $325 per month, commencing on February 1, 2017 and payable on the first day of each month thereafter until January 31, 2020.
(e) Mrs. Behe shall pay child support for the two children in the amount of $306 per month, commencing on February 1, 2014, being the amount payable for a payor earning $20,000 per year.
(f) Mrs. Behe shall not communicate with Mr. Behe, directly or indirectly, except in writing or via text message or electronic mail, and only for the purpose of facilitating access.
(g) Mrs. Behe shall pay costs to Mr. Behe in the total amount of $2,500, without interest, payable in monthly amounts of $100, commencing on January 1, 2018.
(h) The matter of access shall be returned before me in six months, or earlier by Mr. Behe or with his written consent.
[78] Mr. Rae shall be at liberty to prepare the formal order and to submit it for my signature without the necessity of approval of a draft by Mrs. Behe.
[79] Mrs. Behe now has two choices. She can refuse to accept my decision, as she has the previous orders, or she can accept it and the recommendations of the professionals upon which it is based. I sincerely hope she will follow the latter course of action. In my opinion, this is the only way in which she will regain her focus; a focus which must be on the best interests of the children and not on who has custody of them.
Ellies J.
Released: 20140107
[^1]: The General Occurrence Reports prepared by the police give two different dates: namely, January 22 and January 27. The latter is probably correct, as it comes from a statement given by Mr. Behe on January 30. That was also the date Mrs. Behe gave during her testimony. Nothing turns on this, in any event.
[^2]: Mr. Behe denies throwing popcorn at the children. In a consultation report prepared on January 31, 2012, Dr. Cochrane indicates that Mrs. Behe told him that Mr. Behe threw the popcorn at her. This is more likely to be accurate, given that it was related shortly after the events, before the custody battle began. As I will indicate later, nothing turns on this, either.
[^3]: Mrs. Behe’s testimony is also contradicted by Dr. Cochrane’s consultation report on this point. The report says she held “her open hand against his neck and chin”. No evidence was introduced by either party as to the facts that formed the basis of the assault conviction.
[^4]: Mrs. Behe denies that Victoria witnessed the assault. She testified that Victoria heard the assault and may have seen Mr. Behe throwing the popcorn. This contradicts her evidence that Mr. Behe threw the popcorn at the children, who most likely would have seen it.