Court File and Parties
COURT FILE NO.: F1010/13
DATE: 2014-07-02
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: James Robert Beynen, Applicant
AND:
Anthony Melvin Whyte, Respondent
BEFORE: Heeney R.S.J.
COUNSEL: Lawrence Blokker, for the Applicant
Anthony Little, for the Respondent
Salim Khot, Office of the Children’s Lawyer
HEARD: June 25, 2014 at London
ENDORSEMENT
[1] This is a motion by the respondent (“the father”) for interim custody of his children Maxwell O’Neill Whyte, born November 14, 2000, and Jasmin Johanna Whyte, born December 23, 2006. Technically, it is a motion to vary the existing interim custody order in favour of the applicant (“the uncle”), who is the maternal uncle of the children, which was made by Henderson J. on July 17, 2013 on an ex parte basis.
[2] The children are the natural children of the father and the uncle’s sister Denise Joyce Beynen. The father and Ms. Beynen lived together in a relationship for about 17 years, which also produced an older child Melnyk. He is 18 years of age and resides in London with the uncle. He fully supports the children returning to live with their father in the Montreal area.
[3] The relationship between the father and Ms. Beynen was, as he describes it, a rather volatile one, but nevertheless was a loving one for the most part. They separated in October, 2010, and she returned to London with the children. The father exercised access over the following three years, mostly during the summer and other school holidays.
[4] On May 30, 2013, Ms. Beynen tragically committed suicide.
[5] The children were, at that time, living in London and attending school there. Following the death of their mother, they began living with the uncle and his common law spouse Katie Caskanette and their four-year old son Connor. The children had had regular contact with the uncle and his family during the previous three years that they lived in London, so it was a familiar household that they moved into.
[6] What transpired thereafter is in dispute. The uncle states that the father wanted the children to come to Montreal for a summer access visit. Before that happened, the uncle alleges that they entered into an agreement whereby the children would remain with him in London in his custody. He prepared a written agreement to that effect and sent it to the father. The father did not sign it. However, when the father’s brother attended at Toronto to pick up the children on June 28, 2013, he had with him a different agreement that granted to the uncle “temporary guardianship” of the children “while they attend school in London”. That agreement purported to be signed by the father.
[7] The children were delivered over to the father’s brother on that basis.
[8] Shortly afterward, the uncle wanted the children to return to London to attend a memorial service for their mother. Melnyk returned to London to work at his summer job, and advised the uncle that Maxwell and Jasmin would not be returning. The uncle then obtained an ex parte order from Korpan J. dated July 9, 2013 directing that the children be in the uncle’s care from July 10 to July 17. He drove to Montreal and showed the order to the father, who ripped it into pieces and refused to deliver over the children.
[9] On July 17, 2013, the uncle obtained an ex parte order from Henderson J. that granted him interim custody of the children and provided for police assistance to enforce the order. The uncle again went to Montreal and attended the father’s residence with the police. There was an angry confrontation, and the father again refused to deliver over the children. The police refused to enforce the order on jurisdictional grounds.
[10] After unsuccessfully taking steps to obtain an order from a Quebec court, the uncle commenced contempt proceedings in London. In response to that, the father voluntarily returned the children to London in early October 2013. They have remained in London in the uncle’s care since then.
[11] The father’s version is significantly different. He states that he never agreed that the children would remain in the uncle’s custody, except until the end of June 2013 so that they could finish their school year. He denies signing the agreement relied on by the uncle, and states that his signature was forged by his brother. On examining the signature on that document as compared with the father’s signature on other court documents, it appears obvious even to the untrained eye that they are substantially different from each other.
[12] While he was upset when the uncle showed up in Montreal to take the children, one can infer from his affidavit that he views it as an understandable reaction to an unjustified attempt to take away his own children. Interestingly, the police report that was filed by the uncle discloses that when the uncle attended with the police to pick up the children, Maxwell was heard to say that he does not want to reside with his uncle and wishes to remain with his father in Kirkland (a suburb of Montreal). He yelled at his uncle “why are you doing this, I want to live here.”
[13] The police officer then did a tour of the residence and found it to be a 6 bedroom house that was appropriately furnished and provided adequate living conditions. The refrigerator was full to capacity with food. The officer concluded that “the father is fully providing the kids with the essentials in life and that the kids seem content and that the kids’ security are not compromised”.
[14] Thereafter, the father took steps to enrol the children in school, including placing Maxwell in a specialized class that could deal with his learning disability. He arranged for grief counselling for the children, to help them cope with their mother’s suicide. All of this has been subsequently confirmed through the investigation carried out by the Office of the Children’s Lawyer.
[15] He turned the children over to the uncle in October 2013 in compliance with the order of Henderson J., but now seeks interim custody.
[16] Custody is to be determined based on the best interests of the children, as determined by an examination of the factors set out in s. 24(2) of the Children’s Law Reform Act. The complete section reads as follows:
- (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.
[17] The first factor is the love, affection and emotional ties between the children and those claiming custody and the members of their respective families. Morrison Reid is a highly experienced social worker who was retained by counsel for the Office of the Children’s Lawyer to interview the children and provide the court with their views and preferences. He conducted interviews with the children privately on several occasions, and conducted observational visits where the children were present with each party. Collateral sources were also contacted and interviewed to supplement the report. Mr. Reid’s findings are set out in his affidavit sworn June 22, 2014.
[18] In his observational visit with the children and their father, he observed that the children, “through their behaviour and communication, demonstrated love for their father that appears to be genuine and strongly established”.
[19] The observational visit with the children and the uncle demonstrated a warm, calm environment that was child-centred. The interaction between them was warm and positive. Absent from the report, however, were observations of the overt signs of love and affection that the children had demonstrated toward their father. Interestingly, Jasmin was asked at the end of her private interview of May 4, 2014 if she wanted to say anything more about her father. She said “I love him”. When asked if she wanted to say anything more about her uncle, she said “He’s nice.”
[20] This factor favours the father’s custody claim.
[21] The second factor is the child’s views and preferences.
[22] Both Maxwell and Jasmin expressed to Mr. Reid a strong preference to reside with their father. From the context in which those views were ascertained, I am satisfied that they are sincerely held and genuinely expressed. The oldest child Melnyk has confirmed that these are the wishes of his younger siblings, and he fully supports that view, even though it would mean that he would be separated from them, given his personal desire to remain in London to finish his schooling. Furthermore, these views are consistent with the views expressed by Maxwell in July 2013 when the uncle attended with the police to attempt to bring him and his sister back to London.
[23] This factor also favours the father’s claim.
[24] The third factor is the length of time the children have lived in a stable home environment. Here, the children have resided since last October in a stable environment with the uncle in London. That is a status quo of 9 months and clearly operates in favour of the uncle, although it is not a particularly lengthy status quo. However, the evidence indicates that the environment provided for the children by the father from the end of June to October 2013 was appropriate and stable. More significantly, the children resided with both the father and their mother in a two-parent home up until the separation in October 2010. Melnyk reported to Mr. Reid that before his parents separated, his father provided ongoing care to all of the children. He reported that his father cooked meals, arranged and participated in activities and provided rules, and described him as “a good father and a good man”.
[25] Mr. Reid commented on the impact of this at para. 154 of his affidavit: “Mr. Whyte was a caregiver to Maxwel and Jasmin when parent-child attachment develops (before the age of three). These are the strongest relationships between parents and children.”
[26] In considering this factor, the uncle has provided the most recent stable home environment for the children, but it is of relatively short duration. In my view, this is more than offset by the lengthy period of time that the children lived with their father from the time of their birth until October 2010, which are very important developmental years. In Maxwell’s case, that amounts to 10 years and in Jasmin’s case it amounts to 4 years.
[27] The fourth factor is 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. Here, the uncle has demonstrated his ability and willingness to care for the children through the excellent job he and his spouse have done caring for the children since October 2013. His residence is quite appropriate to meet the needs of the children.
[28] There is no question as to the father’s willingness to care for the children. He has also demonstrated his ability to do so during the period of just over three months when they were in his care, and I have already referred to the role he played in caring for the children until October 2010. From June 2013 forward he took all appropriate steps to provide for their education, obtained grief counselling, and generally met all of their needs. He arranged for them to attend Camp Carousel in September of 2013, which is a weekend camp for grieving children, where they made good progress. He resides with his 72-year old mother in a large house owned by her, which is adequate to provide for all of the needs of the children. His mother will be available to support him in raising the children.
[29] The uncle raised concerns about the criminal record of the father. He has a conviction for spousal assault from June 16, 2005, where he received a $200 fine and 12 months probation. On October 23, 2007 he was convicted of possession of a Schedule II substance for trafficking and possession of a Schedule I substance. He received two concurrent sentences of 3 months each. Finally, he was convicted on October 10, 2013 of possession of instruments for breaking into coin devices, and failure to attend court. He was sentenced to fines totalling $1,000 after taking into account five days of presentence custody. However, the charges that led to those convictions date back to September 2007.
[30] Without doubt, this factor weighs against the father’s claim for custody. The spousal assault in particular is concerning, and is a specified factor to be considered under s. 24(4)(a), although the fact that it was dealt with by a modest fine and probation indicates that it must not have been a serious assault. Significantly, the most recent offences occurred in 2007. There is no indication of any criminal behaviour since then, and he told Mr. Reid that he is no longer involved with drugs and does not have problems with alcohol use. His criminal record was explored in an interview with Sophie Alevizos, Intake Child Protection Supervisor with the Department of Youth Protection in Montreal. His record was not viewed by her as an impediment to his care of the children.
[31] This factor weighs, on balance, in favour of the uncle’s claim for custody.
[32] The fifth factor is the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing. This is a neutral factor, since the plans proposed by both parties for the children’s future are quite appropriate.
[33] The sixth factor is the permanence and stability of the family unit with which it is proposed that the child will live. There is no doubt that the uncle’s family unit is stable, but the children have only formed part of that family unit for the past eight months or so, so it lacks permanence. Once again, the father served in a parental role throughout the children’s early developmental years, up until the separation in October of 2010, so the family unit that he has to offer does reflect a great deal of permanence for the children. By all accounts, he provided a stable home for the children to reside in from June to October of 2013. I consider this to be a neutral factor.
[34] The seventh factor is the ability of each person applying for custody of or access to the child to act as a parent. This has been canvassed already.
[35] The final factor is the relationship by blood or through an adoption order between the child and each person who is a party to the application. There is simply no question that this factor weighs heavily in favour of the father. He is the natural parent of both children, and was with them during their developmental years when, according to Morrison Reid, the strongest relationships develop between parents and children. Given that the children’s mother is deceased, it can fairly be said that the children need their one remaining parent more than ever.
[36] The uncle has a blood relationship with the children, but he is not their father, and the children clearly know the difference. It is reflected in their displays of affection and in their views and preferences as to where they want to live.
[37] Balancing all of these factors, I am of the view that the best interests of the children will be met by reuniting them with their father, in accordance with their wishes. I applaud the uncle and his spouse for stepping forward and caring for the children in their time of need following their mother’s death. However, it is time for him to step aside and allow the father to parent his children. It would not be wise to force the children to remain living with the uncle in London, while their father is able to provide them with a good home in Montreal. They would, inevitably, resent the fact that their wishes were ignored, and would come to resent the uncle himself for being the author of their unsatisfactory situation.
[38] In simple terms, I am satisfied that reuniting the children with their father would make them happy. Material comforts and amenities aside, the happiness of the children has to count for a great deal.
[39] The uncle argued that a motion to change the status quo of interim custody should only succeed where there has been a material change in circumstances. The authority relied upon in the uncle’s factum is Clements v. Merriam, 2012 ONCJ 700 (O.C.J.). However, that case dealt with the interim variation of a final order for custody that had previously been granted, and is distinguishable on that basis.
[40] Here, the interim custody order that is in place was granted on an ex parte basis, where only the uncle filed evidence and made representations. There is no reason why it should tie the hands of the court that, for the first time, is now deciding the issue of interim custody with the benefit of evidence and fulsome submissions from both sides, as well as from the Office of the Children’s Lawyer.
[41] In any event, there has been a material change in circumstances. The affidavit filed by the uncle in support of the interim order sworn July 15, 2013 stated that the children have expressed that they wish to stay in London. If indeed that was the case when that affidavit was filed, the situation has changed dramatically. As already noted, the children are firm and unequivocal in their desire to live with their father.
[42] For all of these reasons, an order will go varying the ex parte order of Henderson J. dated July 17, 2013, such that interim custody of the children is granted to the father.
[43] The changeover of custody will happen at a time to be arranged between counsel, but no later than the end of July 2014. This will enable the children to get well settled before school begins in September in Montreal, while providing a necessary transition period before the children move out of the uncle’s home.
[44] Given the significant role that the uncle and his spouse have fulfilled in the lives of the children, it is clearly in the children’s best interests that the uncle receive reasonable access, and an order will go in that regard. I will leave the details to counsel to arrange, and if there is any difficulty in that regard, I may be spoken to.
[45] The case has already been adjourned to Assignment Court on October 24, 2014, so no further order is required to move the file forward.
[46] Mr. Blokker expressed concerns as to whether this court would continue to retain jurisdiction over the custody issue once the children became resident in Quebec, and whether the father could be compelled to return the children if ultimately ordered to do so. Mr. Little, for the father, confirmed on the record that his client fully attorns to the jurisdiction of this court, and agrees that it is in this court that the issue of custody should be decided on a final basis.
[47] This is not a case for costs.
“T. A. Heeney R.S.J.”
Regional Senior Justice T. A. Heeney
Date: July 2, 2014