OTTAWA COURT FILE NO.: FC-10-1376

DATE: 2014/06/10

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Blake Boreham
Applicant

– and –

Anne-Marie Gagnon
Respondent

Steven J. Greenberg, for the Applicant

Ann Scholberg, for the Respondent

HEARD: May 28, 2014

REASONS FOR JUDGMENT

PHILLIPS J.

[1] This dispute concerns the issues of custody and access of the child William Blake Gagnon, born April 14, 2008 (now aged six). In addition, I am asked to impute income to the Applicant and then make an order for child support. Finally, there is a request from the Respondent for a restraining order.

[2] The Applicant Father, now 27, and the Respondent Mother, now 26, began dating when they were 16 and 15 respectively. Their years together were undoubtedly their parents’ worst nightmare. Both dropped out of school. Both left their respective homes and lived together in a series of apartments and rooming houses. Both ended up with criminal records (although his is much longer than hers, a subject about which I will comment later). Their relationship was volatile, immature and highly dysfunctional.

[3] The Respondent gave birth to William when she was 20. Before the boy was 18 months old, the relationship between the Applicant and the Respondent was over. The Respondent stayed in the couple’s public housing unit, while the Applicant soon ended up in a new relationship with Sandra Lavoie-Gauthier and had two children with her: Travis, now aged five, and, Marilyn, now almost two.

[4] There is drastic disagreement with respect to the reasons for the couple’s separation. According to the Applicant, they broke up because of the Respondent’s infidelity. The Respondent, however, insists that the relationship was a violent one and that it ended as a result of her unwillingness to endure the Applicant’s abusive behavior. As she tells it, she was regularly assaulted when they were together, including once with a knife, and she kept quiet about it both out of fear of retribution from the Applicant should she tell and because she believed him when he each time assured her he would not do it again.

[5] In any event, after their breakup the couple apparently tried to work out some sort of access arrangement on their own. For a time, the Applicant was welcome to visit the Respondent and spend time with his son. By at least May 2010, however, any such arrangement had broken down. In fact, soon thereafter the Respondent secretly relocated to Toronto in an effort to get away from the Applicant. It was upon discovering that the Respondent had left town with William that the Applicant commenced the legal proceedings that have wound their way to this point.

[6] The Respondent lived in Toronto for a time at a women’s shelter and then in an apartment with a new boyfriend. During this Toronto period the Respondent alternately ignored and/or obstructed the Applicant’s efforts to establish relations with William via legal proceedings. Ultimately, on January 12, 2011, Mr. Justice Annis of the Ontario Superior Court ordered that William be returned to Ottawa to the temporary custody and care of the Applicant. Toronto Police went to the Respondent’s apartment to enforce the order. When she learned they were there to take William away, the Respondent told police that she had been assaulted by the Applicant on May 10, 2010 and also sometime in 2008 with a knife. The effect of the Respondent’s revelation was that the Applicant was criminally charged. As for William, he ended up in Ottawa living with his maternal grandparents. The Respondent, who was granted temporary custody in light of the charges, stayed in Toronto for several months before returning to Ottawa to live with her boyfriend. She visited her parents’ home regularly and by all accounts maintained a deep bond with William. Indeed, the Respondent has lived with William at her parent’s house full time since January 2014 when her relationship with that boyfriend came to an end.

[7] All of the facts narrated thus far have been painted using broad brush strokes. There are a lot of irrelevant details and allegations leveled by both sides which I have left out. Suffice it to say that this couple cannot communicate civilly with each other at all or cooperate in any way about anything. Any relationship they ever had has fundamentally and irretrievably broken down. It is also fair to say that the Respondent’s parents are no fans of the Applicant either. They obviously hold him responsible for their daughter’s tumultuous teenage years and they share her view that she lives in mortal danger from him.

[8] The parties could not be further apart as to what ought to be the result here. For his part, the Applicant asserts that he has set up a nice family home with his new partner and their kids and he has demonstrated through his actions since William was born that he is the one who most wants to parent the boy and he should thus be awarded sole custody. The Respondent answers that the Applicant is highly manipulative and violent and that she lives in fear of him to this day. She maintains that if some of her conduct since the dissolution of her relationship with the Applicant is problematic vis-à-vis her ability to put William’s interests first, it all should be viewed through the sympathetic lens of a woman struggling to leave the grip of domestic violence. The Respondent insists that she is the most suitable sole custodial parent because she, with the help of her parents, has demonstrated the ability to provide stability for William and make the decisions necessary to deal with his physical, emotional and educational needs on a day-to-day basis.

[9] Thankfully, I do not need to determine who is or would be the better parent. Such a contest is a distraction from the key issue - the best interests of this child. Toward that end, I will be guided by Section 24 of the Children’s Law Reform Act. While I will of course consider the section in its entirety, the headings most applicable to the disposition of this particular this case are:

• the love, affection and emotional ties between William and the Applicant and the Respondent, including other members of William’s family who reside with him and other persons involved in his care and upbringing;

• the length of time William has lived in a stable home environment and the permanence and stability of the family unit(s) with which it is proposed he will live;

• the ability and willingness of each of the parties to provide William with guidance and education, the necessaries of life and to deal with any special needs;

• the plan proposed by each party with respect to William’s care and upbringing, considered in the context of the ability of each party to act as a parent;

[10] It is a tremendous relief to hear that William is thriving. By all accounts he is a healthy and happy boy who is doing quite well, all things considered. For the past two years he has enjoyed stability living at his maternal grandparents’ house. Since at least January of this year that household has contained his Mother on a full-time basis. William goes to a local Catholic elementary school where he is doing reasonably well; early indications of ADHD are being well handled by both the school and the Respondent. The evidence was clear that William is well loved and well cared for and that there are deep emotional ties between him and his Mother.

[11] I must also say that it is clear that William is both well-loved and well cared for when he visits his Father’s place; pursuant to a temporary access order made in June 2012. The Applicant’s new partner, Sandra, appears to be an industrious, responsible and loving person and she and the Applicant have established a good home in which to raise children. Indeed, one of the silver linings of all of the Children’s Aid Society (“CAS”) involvement in this case arising out of the Respondent’s many complaints to them is that many visits to the Applicant’s home have been undertaken by objective observers. All the evidence shows that the Applicant and his partner are capable parents. Their home is clean and safe and organized around their children in an appropriate way. Various assessments of the Applicant’s relationship with William, including a report from the Office of the Children’s Lawyer filed with the trial record, also establish that the Applicant and William share a meaningful bond. I cite as a representative example the CAS case notes from a father’s access visit on August 26, 2011:

Will and father had great fun interacting with each other... It was observed that Will and father have great bond...Will was so happy around father. His vocabulary is good, communicates well and is very talkative. Will Saying he did not want to return home at the end of the visit. It was heartbreaking seeing Will crying wanting to remain with father. Their relationship appears to be so natural. Spontaneous affection shown.

The bottom line was that it seemed to me in reviewing the evidence about the Applicant as a parent that the various objective officials could not say enough good things about him.

[12] The Applicant has a distressing criminal record as a young person. Among many others, he has convictions for assault causing bodily harm as well as weapons offenses. He was sent to jail repeatedly and repeatedly breached the terms of various forms of sentence. He testified that he was then engaged in significant drug abuse and was angry about the fact that his own upbringing was fatherless. Whatever the cause, it seems that throughout the Applicant’s teenage years his life went completely off the rails. However, I must say that I accept the Applicant’s evidence that William’s birth was a life-changing event for him, prompting him to clean up his act. Certainly the criminal record ends essentially right after William’s birth which supports this claim. Moreover, the evidence is that after William was born the Applicant went to work for the first time, securing full-time employment with an asbestos removal company, a job he held for the next five years. Finally, I have reviewed an affidavit prepared by the Applicant’s former probation officer, Ms. Pamela Hempel, who makes clear her view that the Applicant became a changed man from the one she knew as a probationer. She also attributes the change in him to becoming a father. I accept that while the Applicant has a criminal record he is not to be overly judged by it in the present circumstances - it simply does not currently bear on his ability to act as a parent. While I am cognizant of section 24(4) of the Children’s Law Reform Act, there is no need to protect William from his Father’s character as alleged by the Respondent.

Custody

[13] In my view, given all that has happened during his short life, what William needs now more than anything is stability with respect to the decision-making that will govern his day-to-day existence. It is not just a question of choosing one parent over the other, wading through all the allegations and cross-allegations to do so - it is simply and only a question of determining what is best for William. I find that when it comes to the decisions to be made about his life, what he needs is the familiar and predictable. It is in pursuit of stability in the decision-making, therefore, that I am inclined to keep in place the structure that has been working so well for almost the last two years. This leads me to conclude that the Respondent Mother shall have sole custody of the child.

Access

[14] It is also my view that it is in William’s best interests that he should have enough contact with his Father to maintain a meaningful relationship. It is also in his best interests that he continue to build relationships with his half-siblings, Travis and Meredith. Accordingly I make the following orders:

1. The Applicant Father shall have access to the child every second weekend from Friday after school to Monday morning to be returned to school. In addition, the child shall be with his Father every Wednesday after school to be returned to the school on Thursday mornings.

2. With the access beginning and ending at the school there should be no reason for the Applicant and the Respondent to have any contact with each other most of the time. Where there is no school, access exchanges shall take place through the supervised access exchange program. In the event that the supervised access exchange program is not available for the specified access times, access shall take place at the Greenbank Station of the Ottawa Police Service. No party shall audio or videotape anybody or anything during these exchanges.

3. For the specified holidays (paragraphs a to c below) the above access regime shall be suspended for the duration of the holidays and shall resume in accordance with the regular schedule immediately thereafter:

(a) Mother’s Day: if the child is not otherwise with the Respondent Mother on this weekend, he will reside with the Respondent on Mother’s Day weekend, from Friday after school to be returned to school on Monday.

(b) Father’s Day: if the child is not otherwise with the Applicant Father on this weekend, the Applicant Father shall have access to the child on Father’s Day weekend, from Friday after school until his return to school on Monday.

(c) Summer vacation: during the summer holiday period, the Applicant Father shall have access to the child for two separate two-week periods (totaling four weeks). The two holiday periods may not be consecutive to one another. The Applicant Father shall advise the Respondent Mother in writing of his chosen weeks by April 1 of each calendar year. For 2014, the notice shall be given no later than June 20, 2014.

4. Christmas: In even years, the Applicant Father shall have William on December 25 from 2:00 p.m. until December 26 at 6:00 p.m. and the Respondent Mother shall have him from December 24 at 9:00 a.m. to December 25 at 2:00 p.m. In odd years, the Applicant Father shall have access to William on December 24 from 9:00 a.m. to December 25 at 2:00 p.m. and the Respondent Mother shall have him from December 25 at 2:00 p.m. to December 26 at 6:00 p.m.

5. The Ottawa Police Service and any other municipal, provincial or federal police force with jurisdiction to do so shall locate, apprehend and deliver the child to the Applicant Father or Respondent Mother should it be necessary to enforce this order. For the purposes of locating and apprehending the child in accordance with this order, a member of a police force may enter and search any place where he or she has reasonable and probable grounds to believe that the child may be, with such assistance and with such force as a reasonable in the circumstances.

6. The Applicant Father may make inquiries and be given information concerning the child by his teachers, school officials, doctors, dentists, healthcare providers, summer camp counselors or other service providers involved with the child.

7. Neither parent shall speak in a disparaging or negative manner about the other parent or allow or encourage others to do so in the presence of the child.

8. Neither party shall remove William permanently from the City of Ottawa or change his residence from the City of Ottawa except with the consent in writing or further order of the Court.

Child Support

[15] I have been asked to impute an annual income of $42,000 to the Applicant in order to then determine a just amount of child support. The Respondent asserts that the Applicant left his relatively lucrative job at the asbestos removal company voluntarily and that he can return to it if he so chooses. As such, the Respondent argues that the Applicant is intentionally under-employed and that income should be imputed pursuant to Section 19 of the Ontario Child Support Guidelines.

[16] For his part, the Applicant explains that he left the asbestos job because it was dirty, difficult and dangerous and that he chose to return to Adult High School to try to better himself in hopes of improving his prospects. I come down on the side of the Applicant on this one. Removing asbestos strikes me as the sort of job one would only want to do temporarily while dreaming of greener pastures. I find it sensible that the Applicant returned to school and I do not agree he thereby intentionally caused himself to be underemployed. Nonetheless, I do find now that the main school courses are done that the Applicant is able to return to work full-time for at least minimum wage. Indeed, he testified about plans to work on a farm this summer for that very rate of pay. Accordingly, I impute income to him at the minimum wage and I make the following order:

1. Child support shall be paid by the Applicant Father in the amount of $176.00 per month based on imputed income of $22,000 commencing July 1, 2014.

2. The Applicant Father shall provide to the Respondent Mother copies of his income tax returns, notices of assessment and any notice of reassessment by June 1 of each calendar year commencing June 1, 2015.

Restraining Order

[17] Finally, I am asked to make a restraining order to protect the Respondent from the Applicant. The principal evidence in support of such an order is the alleged violence in the relationship and in particular the alleged assault of May 10, 2010. I am not, however, in a position to determine what if anything happened that day. The charges in question are apparently scheduled for trial in October 2014 and it will be that trial judge who will be put in the position to fairly decide if there is sufficient evidence of criminal culpability.

[18] For my part, I will say that I have significant credibility concerns with respect to the evidence from the Respondent about the Applicant’s abuse toward her. I found the timing of the revelation of domestic abuse to the police, coincidental as it was to their enforcement of a court order to remove William from her care, to be quite concerning. I also found her explanations for some of her efforts to thwart the Applicant’s access visits in Toronto to be unbelievable. For example, the Respondent’s assertion that she took William to a walk-in clinic on October 14, 2011 is directly inconsistent with the information she provided to the CAS that same day.

[19] Nonetheless, it is certainly true that the Respondent’s position that she has reason to fear the Applicant bears on the likelihood of future difficulty with respect to the custody and access arrangement outlined in these pages so it seems appropriate that I address it. I will say this: the Applicant’s criminal record makes clear that when he was young he was criminally dangerous. While it is easy for me as a present-day objective observer to declare that he is different now, I can see how the Respondent, who was actually there for those years, might have a different subjective memory. Whether or not he ever did anything to her, she was certainly well-placed to see him act violently in the general way illustrated by his record.

[20] Accordingly, while I make no finding of dangerousness, I will accede to the joint request of counsel and make a restraining order so that the Respondent can focus her mind on more productive things than worrying about the Applicant. I urge the Respondent, however, to try to get a grip on her fear of the Applicant. In my opinion, her present view that her life is in danger at his hands is irrational when considered against both the passage of time and the actual evidence of what has happened since the break-up. My worry is that young William will pick up on the unreasonable fear that his Mother has for his Father and I cannot see how that is good for anyone. Having said that, I do make the following order:

The Respondent shall be restrained from molesting, annoying, harassing or being within a radius of 250 metres of the Respondent. The Applicant Father shall not communicate or associate directly or indirectly with the Respondent Mother. In addition, the Applicant will not go within 250 metres of the Respondents residence, place of employment, place of education or anywhere the Applicant knows her to be. This restraining order is subject to the provisions for access outlined elsewhere in this judgment.

[21] Each party will bear their own costs.

The Honourable Mr. Justice Kevin Phillips

Released: June 10, 2014

OTTAWA COURT FILE NO.: FC-10-1376

DATE: 2014/06/10

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Blake Boreham

Applicant

– and –

Anne-Marie Gagnon

Respondent

REASONS FOR JUDGMENT

Mr. Justice Kevin B. Phillips

Released: June 10, 2014