Court File No. FS-0154-0000 (Guelph)
Date: May 22, 2014
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
TRICIA LEE BEIRNES
Applicant
- and -
CHRISTOPHER CHARLES BROWN
Respondent
R E A S O N S F O R J U D G M E N T
BEFORE THE HONOURABLE JUSTICE J.R. BELLEGHEM
On May 22, 2014 at GUELPH, Ontario
APPEARANCES:
I.J.H. Brown Counsel for the Applicant
L.U. Protopapas Counsel for the Respondent
(i)
ONTARIO SUPERIOR COURT OF JUSTICE
T A B L E O F C O N T E N T S
Reasons for Judgment 1
Transcript Ordered: November 17, 2015
Transcript Completed: November 18, 2015
Ordering Party Notified: November 18, 2015
R E A S O N S F O R J U D G M E N T
BELLEGHEM, J. (Orally):
[1] The applicant, Tricia Lee Beirnes, hereinafter referred to as the mother, is 36 years of age. The respondent, Christopher Charles Brown, hereinafter referred to as the father, is 46 years of age.
[2] The parties started living together in 2009. Their son, Spencer, was born June 24, 2010. Spencer is presently turning four years of age in one month’s time.
[3] On October 22, 2012, after a relationship that was described as “rocky” ended, the mother left the father, taking Spencer with her. The parties have never reconciled.
[4] The parties had purchased a home jointly. Prior to the present court proceedings, they had been in court over matters of support, custody and access. As a result, no custody order was ever made. However, the status quo by which the child, Spencer, remained primarily in the care of his mother, was maintained up until trial.
[5] Despite having lost his employment of many years as a representative for a pharmaceutical company, the father has managed to maintain his support payments. Mother had worked about six months during the short relationship, otherwise she was a stay-at-home mother.
[6] The parties have had the benefit of being represented by very able and experienced family law counsel. They presented their clients’ positions in a highly professional manner, in keeping with the highest traditions of advocacy. While the relationship between the parties, particularly after separation, had become quite troublesome, communication being their main difficulty, they both presented as very able and loving parents for Spencer. Regardless of the outcome of this trial, the parties, their families, counsel and the court can all be assured that Spencer, every moment of his life, will be in the care of devoted and loving parents.
[7] With a few noteworthy exceptions, both mother and father have done their utmost to make their personal concerns secondary to their love of their son. It is, therefore, no easy task to impose a final order on the parties, respecting the custody of their son, save for the recognition that it is possible that both parties will accept the consequences of the past, and try to work together in the future, as best they can, to promote Spencer’s happiness.
[8] It is important that the parties understand that my role is to be impartial. When I refer to particular aspects of the evidence, which may make one or the other of the parents, or even, in some cases, both of them, feel uncomfortable, it is not intended as a criticism, but rather an objective observation, based on the evidence, which was presented to me, and upon which I am bound to make my decision.
[9] In addition, while some of my comments may nevertheless sound critical, it is important that both parties recognize and accept that this is simply a snapshot in time. Both of them are still, at least by my standards, relatively young. They have many years in which to reflect on how they have dealt with matters in the past, and to make whatever changes they deem necessary to ensure that Spencer is raised in a happy and loving environment, whether he is with mother at any particular time, or with father at any particular time, or, indeed, with family or friends from time to time.
[10] Having seen the parties testify and the sincerity demonstrated by each of them, I am satisfied that my comments will be taken in the true light in which they are intended - instructive but not critical, and that they will abide by the terms of the order, which I am bound to make in light of the evidence with which I have been presented.
[11] Both the applicant and the respondent each have a son from a prior relationship. The applicant’s son, Brody, is ten years of age. The applicant has custody, while Brody’s father, Steve, has him on alternate weekends and one evening every other week. The applicant and Steve had negotiated an out of court custody/access agreement, which remains in effect.
[12] Steve wrote a letter on the applicant’s behalf to the court, in which he unequivocally described, with glowing terms, not only the ongoing amicable relationship between himself and the applicant, but the excellent parenting abilities and cooperative nature of the applicant mother, particularly around parenting issues.
[13] The respondent similarly has a son, Carter, age 13, from a previous marriage. He shares custody of Carter with Carter’s mother on a week about basis. On his evidence and that of his witnesses, it appears that he has a somewhat similar amicable relationship with Carter’s mother. It also appears that he and Carter’s mother are able to maintain the week about schedule without difficulty.
[14] With respect to Spencer, the child of the applicant and respondent, the parties have been unable to agree on custody and access until the eve of trial, when the permanent living arrangements with Spencer were finally agreed on, based on the status quo.
[15] On August 13, 2013, Justice Ricchetti of this court made a consent order, which provides that the primary care of Spencer was to be with the applicant mother, and that he was to be in the care of his father alternate weekends from Friday’s at 4:00 p.m. until Monday at 9:00 a.m., and every Tuesday from 4:00 p.m. until Wednesday morning at 9:00 a.m., and such other times as the parties may agree. These were the living arrangements, which were finally agreed to, on the eve of trial.
[16] Subsequently, the parties have agreed to most of the holiday access schedules to be imposed by court order, and, therefore, save for some minor scheduling issues, which I will deal with in due course, the only issue at trial was whether legal custody of Spencer should be solely in his mother or whether the court should make a joint custody order, which would give the respondent father an equal say in all the decision making respecting Spencer’s care and well-being.
[17] When the applicant mother commenced her application, she indicated that she was content to share decision making responsibility with the father, which is to say, she was agreeable to joint custody as an alternative head of relief. However, since the application was commenced, and up to the time of trial, the manner in which the parties have managed the issue of custody and access and related decision-making matters, respecting Spencer, have deteriorated, to the point where the mother now claims that if she was to have primary care of Spencer, it would be impossible for her to engage the father in meaningful decision-making discussions, because of the many incidents which have occurred, which have been counterproductive to joint decision-making.
[18] For his part, father argues that mother is very authoritative, and refuses, in any event, to take his interests or wishes into account, respecting Spencer, and that it is for this reason that it is imperative that he be provided with the assistance of a court order to ensure that his concerns for Spencer’s well-being are addressed in any decision making. Much of the evidence at trial dealt with communication issues between the parties, which each of them sought to put forward as evidence supporting their relative positions.
[19] Before I begin my analysis of the facts of the present case, I turn to a brief consideration of the relevant law. The parties were not married. Consequently, the Children’s Law Reform Act applies. Under section 20 of the Act, both the father and the mother are equally entitled to custody until a custody order is made. In that regard, section 24 of the Act, sets out the test for custody as being the best interest of the child. This test is affirmed in numerous cases, which need not be quoted because the law is so well documented in this area.
[20] Under section 24 of the Children’s Law Reform Act, in determining the best interest of the child, I am to consider all of the child’s needs and circumstances, including the love, affection and emotional ties between the child and the parents. I am also to consider the ability and willingness of each person applying for custody to provide the child with guidance and education and the necessities of life and any special needs, the parenting plan of each party, the permanence and stability of the family unit with which it is proposed the child will live, the ability of each person applying for custody to act as a parent, and the relationship by blood between the child and the party applying for custody.
[21] The Act also provides for consideration of past conduct of the party, both in the context of the person’s ability to parent and whether the past conduct demonstrates abuse against the parent of the child, or any child. I touch on this part of the legislation because counsel for the applicant argued that some of the evidence is capable of being construed as abusive of the applicant mother, and, arguably, abusive of the child, in the sense that the child was exposed to needless and unwarranted haranguing of the applicant mother, by the respondent father, on at least one occasion, which was recorded. This was a very disturbing matter that came up at trial. If it had been positively demonstrated that it was not an isolated incident, then I would be more inclined to give serious effect to relevant provision of the Act to which I have referred. However, in the absence of other evidence to show that this was a pattern of conduct, I prefer to treat it as an isolated circumstance. It may well be that I am simply in error, and that, in fact, it is part of a pattern of conduct. I may well be able to infer this from the evidence of the applicant. However, in the interest of encouraging the respondent father to continue with his efforts to mend his ways at turnover times, I treat the matter as an isolated incident, which is nevertheless consistent with other communicative aspects of the relationship between the parties. I refer here specifically to the emails, which are consistent with the conduct to which I referred.
[22] The two leading cases dealing with joint custody versus sole custody are the Court of Appeal decisions in Kaplanis v. Kaplanis (2005), 2005 CanLII 1625 (ON CA), 10 R.F.L.(6th)373 and Ladisa v. Ladisa, (2004),2004 CanLII 15138 (ON SC), 3 R.F.L.(6th)382 released in early 2005. In Kaplanis, the court ordered sole custody. In Ladisa, the court ordered joint custody.
[23] In Kaplanis, the trial judge had awarded joint custody and ordered the parties to attend counselling and have a counsellor make the decisions, where the parties were unable to agree. In the case before me, while father acknowledged communication difficulties, his counsel argued that joint custody could still work, where communication was difficult, by having a parenting coordinator assist by mediating, to ensure that a joint decision was made.
[24] In Kaplanis, the Court of Appeal reversed the trial judge and awarded sole custody to the mother. In the course of the judgment, the court made a number of comments, which relate to the communication issues, and the suggestion of the appointment of a parenting coordinator to help resolve these. In particular, the court has this to say, at paragraph 9:
“Family law cases are, by their nature, fact-based and discretionary.”
The court goes on, at paragraph 10 and following:
“As in any custody case, the sole issue before the trial judge was the best interests of the child. The fact that both parents acknowledged the other to be “fit” did not mean that it was in the best interests of the child for a joint custody order to be made.”
At paragraph 11, the court adds:
“The fact that one parent professes an inability to communicate with the other parent does not, in and of itself, mean that a joint custody order cannot be considered. On the other hand, hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for the making of an order of joint custody... In this case, there was no evidence of effective communication. The evidence was to the contrary”
And then, at paragraph 13, the court notes:
“...the trial judge did not have the benefit of expert evidence or input from the Children’s Lawyer respecting the child.”
Again, at paragraph 14, the court adds:
“The legislation does not specifically authorize the making of an order for parental counselling and, while some trial judges have held the court has inherent jurisdiction to make a counselling order, carrying out the order requires the co-operation of the parents. There was no evidence that the parties would be able to agree on whom to appoint. There was no agreed process for the appointment of a counsellor in the event that they could not agree who should be their counsellor. Nor was there any evidence that they were willing to submit their disputes to be decided by a counsellor outside the court process envisaged under the Divorce Act and without recourse to it.”
[25] I refer to that aspect of Kaplanis because of the suggestion put forward in the present case, with respect to the appointment of a parent coordinator.
[26] In the companion case of Ladisa, in which the Court of Appeal upheld the trial judge’s joint custody order, the court also dealt with communication issues, but found that the parents’ history of co-parenting supported the notion that the parties would be able to make joint decisions respecting the children. In that regard in Ladisa, the court has the following comments relative to the case before me, commencing at paragraph 8:
“Ms. Savoia, the social worker appointed by the Children’s Lawyer, recommended that the children be in the joint custody of their parents.”
At paragraph 10, the court adds:
“Jordan expressed the desire to spend equal time with each parent.”
And then, at paragraph 11:
“At the time of trial, the mother had arranged for counselling for the children and the father had agreed to cooperate with her efforts.
The trial judge found:
Despite the intense conflict between these parents, in emergencies and when the parents have had an opportunity to consider the real interests of their children, they have behaved appropriately, even in each other’s presence.”
At paragraph 13, the court adds:
“The trial judge also found that both parents had made efforts to meet the financial needs of the children when these needs presented themselves, without consideration of whether the other parent should be paying or without anticipation that one parent reimburse the other for that expense, and that they had done this at great personal sacrifice to themselves.”
And, at paragraph 14:
“In the result, the trial judge found that the children needed the parenting that both parents could give them. She therefore ordered that Jordan and Jessica reside with both parents on an alternating weekly basis...”
Finally, at paragraph 16, the court adds:
“In my opinion, it was within the trial judge’s discretion to make the order she did respecting Jordan and Jessica. The trial judge’s conclusion took into consideration the history of co-parenting by the parties while they were married and the ties that the children had to both their parents. With respect to communication and cooperation, the trial judge considered the evidence of third parties respecting the parents’ interaction with their children. She was satisfied that, despite their strife, when necessary, the parents could and had communicated effectively and put the interests of the children ahead of their own.”
[27] In Worcop v. Worcop, [2009] W.D.F.L. 1824, Justice Gray, of this court, was dealing with the extent to which communication issues affected the resolution of a joint versus sole custody issue. At paragraph 94, he has this to say:
“In the final analysis, in my view, an order for joint custody is not to be rejected based on any rigid standard as formerly reflected in Baker, supra. The focus is simply on the best interests of the child. The best interests of the child will obviously not be fostered if the parents are unable to communicate and cooperate in making decisions that affect the child. However, a standard of perfection is not required, and is obviously not achievable. The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis. In making this assessment, the court must be governed by the evidence that has been presented as to the communication and cooperation between the parties to date; the mechanisms that are in place to ensure that it will continue; and the assessment of the judge as to the capabilities of the parties to do so in the future.”
[28] With respect to the issue of abusive conduct, in D.L.C. v. R.J.M. [2005] O.J. No. 5500, Justice Aitkin of this court again, in a decision released in December 2005, has this to say, at paragraph 43:
“I accept D.L.C.’s evidence that on several occasions both before and after the separation, R.J.M. was verbally or emotionally abusive with her or treated her in a threatening or demeaning manner...I find that R.J.M. has difficulty controlling his anger, and considers angry outbursts and aggressive behaviour acceptable in the pursuit of his goals. R.J.M. tried to downplay the number and severity of such episodes and tried to explain them away by saying that he was justifiably angry with D.L.C. about one thing or another. Abusive behaviour cannot be justified.”
The court adds:
“There are numerous examples where R.J.M. dug in his heels to get his own way, rather than negotiating a solution acceptable to both himself and D.L.C. There are other examples of his acting in a high-handed fashion designed at causing D.L.C. inconvenience.”
The court adds:
“Although people are often not acting at their best at the time of a separation, the pettiness and mean-spiritedness of this behaviour raises doubts as to whether R.J.M. would be able to work cooperatively in a joint custody arrangement.
All of this behaviour is of a threatening and bullying nature, and raises doubts as to whether joint custody would be a workable arrangement for this couple. Joint custody requires a basic level of respect and civility between the parents so that meaningful communication regarding the child can occur.”
The court adds:
“As well, the child learns that bullying and intimidation are valid forms of interaction that can produce the sought-after results. This is not good modelling for a child. Finally, no parent should be expected to subject himself or herself to the bullying of a former spouse in the name of joint custody. The integrity and dignity of both parents must be protected; not to do so jeopardizes their ability to parent effectively.”
[29] With respect to a need for consultation inherent in the ability to communicate, Justice Aitkin adds this, at paragraph 63:
“There are examples in the chain of e-mails of both parties having taken the initiative to provide information to the other or to consult the other regarding the matters concerning K. That being said, D.L.C. has done so more frequently than R.J.M. R.J.M.’s messages tend to be terse, direct and to the point. D.L.C.’s tend to be more discursive and informative, though at times argumentative and defensive.”
Justice Aitkin adds:
“My first concern is R.J.M.’s tendency to become a bully and to intimidate, in order to get what he wants. In my view, he does not recognize his own disrespectful, abusive and aggressive behaviour and he has no insight into how destructive this sort of behaviour is to effective communication and shared parenting. I did not hear anything during the trial which would lead me to believe that R.J.M. will change in this regard, especially if he continues to have a joint decision-making role with D.L.C.
My second concern is that R.J.M. has denigrated, and I find continues to denigrate, D.L.C. in K.’s presence...Conveying such negative messages to K. is not good parenting...”
[30] Finally, dealing again with the personality characteristic of rigidity and the need for flexibility for effective co-parenting, in the decision of Justice Quinlan in LaPalme v. Hedden [2012] O.J. No. 5756, Justice Quinlan, similarly, deals with the issue of rigidity, at paragraph 68, where he states:
“I found Mr. Hedden to be rigid and inflexible. He holds strong opinions about the validity of his parenting style and about health and nutrition... Can these two parents work cooperatively in Meegan’s best interests? Can they communicate appropriately? Will Ms. LaPalme be able to move beyond her upset and frustration? Will Mr. Hedden be able to change his personality construct to allow for cooperation and compromise?
And, most importantly, would joint custody be in the best interests of Meegan? I find it would not.
I am not troubled by the ability of Ms. LaPalme to move beyond her upset and frustration. I accept that she will be able to do so. However, although I do not doubt that Mr. Hedden has Meegan’s best interests at the forefront, his rigid and inflexible personality and his strong opinions about the validity of his parenting style and what is in his daughter’s best interests do not bode well for cooperative communicative parenting with the mother of his child.”
[31] At the end of the day, I am bound by the Court of Appeal in Kaplanis and Ladisa. The principles set out in those decisions are summarized by Justice Zisman in Mitchell v. Carson, rendered June 1, 2012, starting at paragraph 61 as follows:
“In Kaplanis v. Kaplanis,[FNI] the Ontario Court of Appeal, confirmed the principles of determining whether a joint custody order is appropriate:
There must be evidence of historical communication between the parents and appropriate communication between them.
It cannot be ordered in the hope that it will improve their communication.
Just because both parents are fit does not mean that joint custody should be ordered.
The fact that one parent professes an inability to communicate does not preclude an order for joint custody.
No matter how detailed the custody order there will always be gaps and unexpected situations, and when they arise they must be able to be addressed on an ongoing basis.
The younger the child, the more important communication is.
Joint custody should not be ordered where there is poor communication and the parties fundamentally disagree on too many issues affecting the child’s best interests.[FN2]...
Where the conflict between parents is primarily the fault of one parent, the other parent should not be able to use the conflict as a justification to oppose joint custody.”
[32] With the foregoing legal principles in mind therefore, I turn to an analysis of the present case.
[33] Here, father’s counsel argues that joint custody is the only way to ensure that Spencer has the benefit of the parental guidance from both parents, as well as the support of the families of both the maternal and paternal branches. He has grandparents on both sides, which have much to offer. I agree. However, I question whether simply granting mother sole custody would inhibit or affect, in any way, the love and affection that Spencer shares with both sets of grandparents.
[34] Counsel for father argues that mother is authoritative and, although father disagrees with many of her decisions, he goes along with them. I am more inclined, on the evidence, to find that mother is consultative rather than authoritative. The evidence certainly does not demonstrate that father is willing to “go along” with “mother’s decisions”. This was a constant theme in the evidence, which I simply find untenable.
[35] I do agree with father’s counsel, however, that Mr. Brown is highly involved with his son. I do not agree with counsel’s characterization of Ms. Beirnes, however, as being rigid, impersonal and almost cold. In fact, I find just the opposite. I find that it is Mr. Brown who is the rigid one. He insists upon following a court order with respect to drop off when it would obviously be in Spencer’s interest to have been a little more flexible and cooperative with Spencer’s mother. He could have set aside, for example, his own expressed fears of Spencer’s maternal grandmother in order to take him to the Tim Horton’s in Fergus, rather than insisting he be brought to Guelph.
[36] Mr. Brown and his counsel placed much stock in the fact that he enjoyed a week about custody arrangement with Carter. In my view, it is simply presumptuous of Mr. Brown to assume that he could import this type of custody arrangement into his custody arrangement with Spencer’s mother. In doing so, he was simply assuming that his relationship with Spencer’s mother was the same as his relationship with Carter’s mother. Carter’s mother and Spencer’s mother are separate individuals. His preoccupation with this mode of custody demonstrates his apparent inability to see outside himself as being the centre of Spencer’s world and Carter’s world.
[36] It is Spencer’s relationship with both his mother and his father, and Carter’s relationship with both his mother and his father that are at issue, not simply Carter’s relationship with his father and Spencer’s relationship with his father. If the latter were the case then Mr. Brown’s premise that the custody arrangements should be the same would make sense. However, he fails to take into account the simple fact that whatever arrangements he was able to make with Carter’s mother were, those arrangements cannot simply be transferred to his relationship with Spencer’s mother.
[37] While Mr. Brown professes that the central dispute in this case is about Spencer, there is no escaping the fact that his preoccupation has to do with his own rights to parent Spencer, rather than what is in Spencer’s best interest. As an example, from the evidence in this case, let me read a portion of the evidence in which he passionately sets out what is his view of the central dispute of shared custody or joint custody, as opposed to sole custody. This should demonstrate that he is more preoccupied with his own rights, vis-à-vis Spencer, than he is with what is in Spencer’s best interest. He works from the assumption that equal decision-making responsibility is in Spencer’s best interest, but, in fact, his concern is more about his own involvement. Let me read a portion of the transcript from May 20, 2013:
“ A. I think the last year and a half have shown that it’s all on her terms. Again, it’s the – I think we come from different experiences with the other kids where I’m in a joint custody, 50/50, no issues, so I’m used to that. Tricia comes from a sole custody kind of what she says goes. She’s used to that. So Tricia has approached this whole thing from that perspective of, you know, she – she treats this as a – she has sole custody, from day one; that she calls the shots on everything. And, to me, that’s not fair. There’s got to be a common ground in all of this. And my biggest fear is that – that I’m treated the same way Steve is, because, again, there’s no – in my opinion, there’s not a lot of co-parenting that goes on; it’s really what Tricia says goes. And that’s not fair, and it’s not fair to Spencer, because he doesn’t experience the best of both, right. But, again, Tricia comes from that, you know, sole custody, you know, what I say goes, you know, she calls the shots; when the time is for her, it’s for her. And, again, it’s about Spencer. Again, it’s just – all of this aside, it’s all about Spencer.
Q. In terms of the times that have already have been agreed upon, you having Spencer, what are you looking for, for example during - Christmas holiday season?
A. All I want is – is I think – I think half of say Christmas is fair. I think that, you know, if we say it’s a 2-week period over the holidays, you know, give me a week of that time and you take a week of that time. In summer – summer holidays are nine weeks long, you know, I would like half. I think that’s fair, you know, and if it’s – I know it’s hard for Tricia so maybe, like I’ve suggested, is the first year give me three weeks, the next year give me four weeks. It’s – the holidays are tough.
Q. You were saying the holidays are what, a time.
A. That me, my family, get to spend with him, and it hasn’t happened yet. It’s just a fight every single holiday with her. She’s never offered a holiday. She’s denied pretty much all of them. It’s not right. There has to be a fairness to it, because I’m – I’ve given up so much time during the week with him and regular time. The holidays are – it’s that time and period where I have that opportunity to make that up with him and spend that time with him. And it just...
Q. And that involves your family?
A. It does, and it just hasn’t happened
yet.
Q. Aside from that, it appears that all other issues are either resolved or well on their way to being resolved, including other holiday periods; Mother’s Day, Father’s Day, would you agree?
A. I hope we’ve resolved them. Again,
I think that – that – I want to say, from my perspective, yes, they are resolved, but, again, I can’t say that from Tricia’s perspective, because it hasn’t happened yet. I hope that, moving forward, again for Spencer, it’s good for him, it’s good that we share them all. I shouldn’t be denied that. But, again, the past is the past. Moving forward, it’s got to work together because that benefits Spencer.”
[38] Mr. Brown’s counsel also argued that, based on Mr. Brown’s evidence, when Mr. Brown and Ms. Beirnes were together as a couple, they co-parented effectively. This may or may not be the case. The fact, again, is that circumstances have changed. They are not together as a couple. The way they parented when they were together as a couple may not be the model to follow when they are living separate and apart.
[39] Mr. Brown suggests that the model to be followed is the one that he has with respect to Carter, while Ms. Beirnes argues that the one to follow is the one that she has with Brody. I have at least some evidence from both parents with respect to Ms. Beirnes’ model, respecting Brody. I only have Mr. Brown’s evidence with respect to how it works with Carter’s mother.
[40] I do not draw any negative inference from the fact that Carter’s mother was not called as a witness, any more than I draw any negative inference from the fact that Brody’s father was in Italy. However, he at least wrote a letter of support for Brody’s mother, which, apparently, Mr. Brown was unable to obtain from Carter’s mother. Again, I draw no inference from what evidence may be lacking. Rather, I draw inferences from that which was, in fact, presented. What was presented, in this case, was evidence from Ms. Beirnes, setting out with particularity the arrangements she has in place with respect to Brody, which is supported by Brody’s father.
[41] Mr. Brown, in the portion of the transcript I just read, attempts to denigrate Brody’s father. At the same time he denigrates Spencer’s mother. However, as I attempted to point out, it was all done in the context of whether the arrangements Ms. Beirnes was proposing were fair to him, that is to Mr. Brown. While Mr. Brown can use the words “it’s all about Spencer”, he does not walk his talk. If, in fact, his actions were all intended to be for the benefit of Spencer, one can only rhetorically ask what could possibly be in Spencer’s best interest when the following three-way conversation takes place at a transfer, which was recorded September 18, 2013.
[42] What is, perhaps, most significant about this, is that this occurs almost one year after the separation. By this point in time, the die has been cast, with respect to how Ms. Beirnes and Mr. Brown are going to behave towards each other when they are together in the presence of their son, Spencer. It is aggravated by the fact that he continues his berating of Spencer’s mother in an email, as soon as he gets home. For the record, here is the exchange that takes place during the transfer:
Trish Hi baby
Chris Buy him some shoes please
Chris There needs to be appropriate clothing
Spencer I like those shoes
Chris They are sandals, they are summer
shoes, your mom is too cheap to buy
you new shoes
Chris She should buy you shoes but she’s too
poor
Spencer I like my crockies
Chris Mommy doesn’t have a job I know it’s
terrible
Spencer I want my monkey
Chris What do you want – where is monkey
Chris Buy him some shoes please
Chris You have to buy him clothes
Do you understand deadbeat
Deadbeat Trish
Deadbeat Trish
Deadbeat
Wanna give me a kiss goodbye
Deadbeat Trish?
Watch out for the cars
High five
[43] Mr. Brown agreed at trial that this was not good communication. His counsel denied that the reference to a “high five” was in effect a form of trying to train Spencer how to relate to his mother. While I agree with counsel in this regard, what cannot be denied is that it is modelling behaviour, that Spencer could quite readily adopt, particularly over a period of time.
[44] In short, Spencer loves his father, and likely emulates his father. It follows, logically, that he would likely come to imitate how his father treats his mother. Mr. Brown is a highly intelligent man. He cannot hide behind a veil of ignorance. He is well aware that his conduct could well influence his son’s attitude towards his mother.
[45] In contrast to the relationship between Mr. Brown and Ms. Beirnes in front of Spencer, we have the letter from Mr. Lankowski. He is Brody’s father. From this letter, I am able to infer how transfers between the two of them likely take place. This letter, together with the evidence of Ms. Beirnes, including her original letter of goodbye to Mr. Brown, affirm the “maximum contact” principle, which is an important one to consider in deciding whether custody should be sole or joint. Ms. Beirnes demonstrated from the outset, right up to and including trial, and the settlement agreement entered into during the trial, that she will facilitate maximum contact between Spencer and his father. This is inferentially supported by Mr. Lankowski’s letter. In Mr. Lankowski’s letter, for example, he states,
“Trisha is very flexible and gracious when extra time with Brody is needed, as well as ensuring that during that week that Brody is with me on a ‘non-sports’ night so my time with Brody is maximized. Tricia entrusted me with a key to her home, as did her parents to allow for access to anything needed for Brody during the times that he is in my care.”
[46] In contrast, I heard, in passing, that Mr. Brown changed the locks on the jointly owned home, without the benefit of an exclusive possession order. This prevented the applicant from staying in the house with Spencer while the respondent was away.
[47] Mr. Lankowski’s letter goes on to point out that he shares time with Brody and with Ms. Beirnes and the families together, where Brody has the “opportunity to have his two families interacting in a mutually caring and positive environment”. He goes on to praise the parenting skills of Brody’s mother.
[48] Contrast this with Mr. Brown’s perception of Ms. Beirnes as a parent. I will not review in detail the denigration of Spencer’s mother by Mr. Brown, so far as her parenting skills go, other than to point out a couple of simple examples. He has made an issue of her parenting ability, or lack of it, based on her depression, which is controlled by medication.
[49] In his email to her, February 18th, he states:
“We have no domestic contract order which means I have equal right to Spencer. You continue to deny me that right. My biggest concern continues to be your mental state as you are incapable.”
[50] May 12, 2013, Mr. Brown emails her:
“You are a deadbeat incapable of being anything but a bully and having it your way. Get a job and provide for your kids, really.”
[60] When Ms. Beirnes asks Mr. Brown “when the cough and cold started”, he answers on February 25, 2013 “If you can’t handle a runny nose, you should not have any custody of Spencer, seriously”.
[61] On April 2, 2013, Mr. Brown tells Ms. Beirnes,
“As your employment is irregular, to say the least, the best place for Spencer is in daycare.
He later adds,
“ I did not give you permission to take
Spencer out of daycare yesterday. As I said, I think I will deduct all days you do this from support”.
[62] When Ms. Beirnes asks where Spencer is taking swimming lessons, Mr. Brown replies, April 15, 2013,
“You’re not invited, sorry”.
[63] When asked why Brody is no longer covered under Mr. Brown’s work plan, he replies on May 17, 2003, “not happening”. A minute later, he gratuitously adds, “not my kid”. When asked what the issue was, he replies,
“never agreed to cover him”, adding “ what’s changed is we’re not together, really done”.
He finishes the now one-sided conversation with the following:
“Deadbeat Steve can look after it all…will be returned… you have now overstepped your bounds – done”
[64] Mr. Brown also criticizes Ms. Beirnes for how she dresses Spencer. He criticizes her for the activity she has him in. He criticizes her for taking the doctor’s advise with respect to his adenoids and tonsils. He denies being informed. He is later corrected.
[65] As I indicated a few moments ago, the evidence is replete with examples where Mr. Brown is highly critical, not only of Ms. Beirnes as an individual, but of her parenting abilities.
[66] Similarly, there are many emails, which I need not review in detail, which set out efforts made by Ms. Beirnes to update Mr. Brown on Spencer. There are many emails in which efforts are made to modify turnover times and places, emails dealing with schedule changes and daycare arrangements. In virtually all of these, there is disagreement between the partners. A particular theme resonates, the theme of stonewalling by Mr. Brown, who refuses to do anything unless had has an order in place to do it. He is always insistent upon having his own rights being protected, but with very little genuine reference to whether what is being sought is in Spencer’s best interest.
[67] The relationship between the parties was very short. Throughout the relationship, there was no question that the mother was the primary caregiver. Since separation, she has remained being the primary caregiver. She has made all major decisions dealing with Spencer and has kept Mr. Brown informed of those decisions. She has tried to have input from him in civil communication, but has not received the same degree of civility and cooperation in return.
[68] This is a genuine high conflict situation. I am not satisfied that, even with the help of a parenting coordinator, that it would be possible to have any form of lasting cooperation between the parties, because of their dramatically different personalities.
[69] Mr. Brown may, in fact, be able to maintain a virtually joint custody arrangement with Carter’s mother, but he does not enjoy the same relationship with Spencer’s mother. In large measure, this is a matter of his own making. In fairness, it may also be a function of his personality and Ms. Beirnes’ personality. Be that as it may, the fact is that they are simply unable to communicate civilly. This is not a case where the failure to communicate is created solely by the mother in an effort to gain sole custody. It is a simple incident of the relationship between the parties.
[70] At the end of the day, this case is not so much about custody as it is about decision-making. Father has agreed that Spencer should spend most of his time with mother, and schedules have been agreed on for virtually all the holiday and other special times. The issue is not even about parenting, per se, both parents make good parents. Both of them love their son. Both of them have much to offer Spencer.
[71] Perhaps the most significant feature of this case is this: Despite all of their anger, poor communication, lack of civility and verbal abuse that has been heaped on Ms. Beirnes, she has arranged to shield Spencer from it, and he is thriving. Given Mr. Brown’s personality, and given the history of the parties since separation, going on two years now, Spencer will forever be deprived of the same familial interaction that Brody enjoys with his parents and their families. But, he should never be subjected to irreversible damage that could be caused by requiring his parents’ cooperation before any major decision regarding his welfare is made. His parents would forever be in court, if a joint custody order were made. This would simply put Mr. Brown’s foot in the door to prolong the discordant history of communication, shown by the parties since separation. This will not improve if a joint custody order is imposed here. Their communication ability will only deteriorate further.
[72] This case requires finality. Ms. Beirnes is quite capable of making all major decisions regarding Spencer’s life, without any overriding veto from Mr. Brown. If she is granted sole custody, there is no doubt in my mind, whatsoever, that she would seek input from Mr. Brown and that she recognizes and accepts that he is Spencer’s father, and that he loves Spencer. She has demonstrated that capacity throughout their separation.
[73] Mr. Brown has no reason to fear that Ms. Beirnes will either make inappropriate or misguided decisions regarding his son, nor that he will be kept in the dark regarding any of his son’s activities, appointments, or involvements of any sort. Ms. Beirnes is an excellent communicator. She is educated. She is insightful. She has worked with Family and Children’s Services. She has used her skills to navigate the rough waters of her separation.
[74] At trial, it appeared to me that Mr. Brown was finally coming to grips with the realization that his method of dealing with Ms. Beirnes by being forceful and rude was simply not working.
[75] I will not pass judgment on the sincerity of his apologies. They were expected. No one can defend some of his actions.
[76] On this record, I discount virtually all of Ms. Robertson’s evidence. She was clearly biased and only informed by Mr. Brown’s side. Perhaps, if she had been privy to some more information before testifying, she would not have been so hasty to advocate for Mr. Brown. I do accept her evidence, however, respecting the relationship between Mr. Brown and his two sons. I only question her evidence to the extent it impacts on the ability of Spencer’s parents to co-parent. She knew nothing of that, post-separation.
[77] The daycare provider’s evidence simply supports the fact that, despite his parents’ difficulties, Spencer functions well, and that he is a happy, healthy boy. I laud her de facto refusal to “take sides”, despite being called by father.
[78] As I said a moment ago, the real issue here is not custody, but decision-making. In Kaplanis, the trial judge, in refusing the wife’s claim for sole custody stated, at paragraph 7, of the Court of Appeal Judgment:
“It struck me that it is not in the wife’s interests to try to communicate and cooperate with the facilitation of access. She would see this as weakening her claim for sole custody, because of the emphasis she puts on their inability to communicate as a justification for a sole custody order. In my view, considerations of the best interests of Victoria in the context of her extended familial relationships, must not preclude joint custody, merely because the parties, fresh from the wounds of their failed marriage, find it difficult to be civil to each other”
[79] In reversing the trial judge on this point, Justice Weiler of our Court of Appeal says this:
“Hoping that communication between the parties will improve once the litigation is over, does not provide a sufficient basis for the making of an order of joint custody. There must be some evidence that, despite their differences, the parents are able to communicate effectively with one another. In this case there was no evidence of effective communication.”
[80] In the present case, the evidence is different than in the Kaplanis case. Here, it was in Ms. Beirnes’ interest to try to communicate with Mr. Brown, and she did so. He is the one who obfuscated communication. This case, therefore, calls out even more strongly for a sole custody order than did Kaplanis. To grant joint custody here is to invite further breakdown in communication and even less effective parenting.
[81] To grant sole custody is to lift the heavy burden of requiring mother not to act until she has father’s consent. This (joint custody) would invite arbitrariness, creates uncertainty in the decision-making process required in making major decisions in Spencer’s life.
[82] Having his main residence with mother provides a solid home base. Equipping her with sole decision-making authority enables her to cope with the otherwise unwieldy demands of Mr. Brown that she incorporate his input into the decisions, that is not to act without his consent or face the prospect of being taken to court.
[83] It is ironic that one of Mr. Brown’s terse replies to one of Ms. Beirnes’ emails was simply that one word, which conveys a lot of meaning in the context of the exchanges. That terse, one-word reply was “court”. In other words, a joint custody order would give each party a veto over the other’s proposed decisions. Mr. Brown, is more vocal and insistent than Ms. Beirnes. The effect would be to make him, that is Mr. Brown, the sole decision maker, unless the parties went to court.
[84] To grant Ms. Beirnes sole custody would do nothing more than continue the status quo, so far as consultative decision-making goes, while eliminating the threat of court if she does not do as Mr. Brown wants.
[85] Her school, medical, social and sport activity decisions, to touch on a few examples, have always reflected the fact that she has Spencer’s best interests in mind, when decisions were made, and that Mr. Brown was either consulted for input if required, or informed in a timely and civil way, if required.
[86] James McLeod, in his highly respected commentary to the Kaplanis and the Ladisa cases, makes the following observations, at page 7 of the Ladisa decision:
“Weiler J.A.’s conclusion that the trial judge did not err in ordering joint custody [that is in Ladisa] reflects her reasons in Kaplanis [in which sole custody was ordered] that were released at the same time and highlights the narrow range of cases within which the court is likely to approve conflicted joint/shared custody orders. Trial and chambers judges who are inclined to make such orders should take care to ensure that they address the likelihood that the parties will be able to cooperate around child-care issues and communicate at least by communication book, email, or similar non- “face to face” technology.” (Emphasis Added)
[87] While I have touched on a few of the email exchanges here, the evidence at trial shows numerous examples of a complete lack, and, in some cases, outright refusal to communicate by text or email. There is also evidence respecting the restriction of telephone communication. There is evidence of a refusal to communicate through a familial parent.
[88] In this case, I am satisfied that there is no reasonable prospect of enhanced communication, if a joint custody order is made.
[89] The reality is, in my view, that if a sole custody order is made, communication may, in fact, improve because of consultation and predictability. Nothing will be gained by poor communication. It will be in the interests of the parties, jointly, as well as Spencer’s interest, to open up communication, rather than using stonewalling or threats as a tool to manipulate the decision-making process.
[90] I end where I began. This was a short “rocky” relationship that is now over. Spencer’s best interests are served by making his mother his sole custodian. His living arrangements and access to his father are agreed on. Even if they had not been, I am confident that his mother would have provided the same access arrangements, recognizing how these arrangements are in her son’s best interest.
[91] I have been asked to spell out Summer, Christmas, and Mark Break access. There is nothing in the history of Ms. Beirnes that suggests she is not capable of deciding what is best for Spencer respecting these particular segments of time. She will obviously ensure that he has equal time with mother and father at Christmas. His desire to be with both of his siblings needs also to be taken into account. I agree with her counsel that this is a decision for her to make.
[92] With respect to Summer, I see no reason in principle why Spencer should not be able to spend two weeks consecutively with his father. I would suggest, however, that this not occur until he is at least five or six years of age. Again, I defer to her to make this decision.
[93] Unless the parties agree otherwise on Spring Break, I would recommend that this simply be split equally, until he is five or six years of age. By that time he should be able to spend alternate Mark Break years with either parent.
[94] In both the case of Summer and Spring Break, she will need to take into account his other siblings. This will need input, obviously, from both of her son’s fathers, in order to make those decisions. I simply do not have the necessary evidence to determine the issues of Spring Break, Summer or Christmas, given the need to take into account the probability that it would be in Spencer’s best interest to have time with his siblings at those times.
[95] It can readily be seen, therefore, not only why she must make the decision, but why it is necessary that she be both proactive and reactive in the consultative process with both of her sons’ fathers.
[96] I have made my recommendations. It would be counter to my own ruling, now, to impose a restriction on her right to schedule Spencer’s time.
[97] In the result, therefore, an order will issue granting sole custody of Spencer to his mother, with access pursuant to the completed minutes of settlement. Where access is not otherwise provided for, the parties may agree in writing, failing which it shall be set in writing by the applicant.
[98] A further order will issue that the father is forthwith to make his best efforts to obtain $200,000.00 worth of term life insurance, at his own cost, payable to mother in trust for Spencer, or to provide for the same through his workplace, if available. He shall provide written particulars of such efforts within 60 days from the date of taking out of the order, and within 60 days thereafter, until such arrangements are completed.
[99] Are there other matters that need to be dealt with before the final order is made and we can deal with the issue of costs?
MR. BROWN: Excuse me Your Honour.
THE COURT: My recollection was it was just the insurance and some of the access that was....
MR. BROWN: There may be an inconsistency in the partial minutes of settlement, what Your Honour’s order is today. At paragraph 5, we had agreed that the parties would provide each other notice by June 1st of the weeks they propose to have extended summer access with Spencer, with the applicant having first choice of weeks in even numbered years, and the respondent having first choice of weeks in odd numbered years. By my reading of the – it appears inconsistent with Your Honour’s decision.
THE COURT: Okay, well the minutes will prevail. I should amend my Reasons. I have not made an order with respect...
MR. BROWN: No, I just draw that to your attention so.
THE COURT: I think the only inconsistency is I left it to mother to make the decision, but, if they have agreed, then obviously that supersedes what she said.
MR. BROWN: The only issue is consecutive or non-consecutive and Your Honour addressed that…
THE COURT: All I did was recommend...
MR. BROWN: Thank you.
THE COURT: ...consecutive weeks after five or six years of age, but, until then, it follows that there would be – until he is old enough to be away from one parent for two weeks.
MR. BROWN: Thank you.
MR. PROTOPAPAS: One other minor matter and I apologize, in your decision, early on, you referred to the consent order that the parties reached every other weekend, but Your Honour did also say every other Tuesday and Wednesday, and it is actually every Tuesday and Wednesday.
THE COURT: All right. Do either of you have any objection if I make that amendment to my Reasons then?
MR. PROTOPAPAS: No sir.
THE COURT: The Reporter will draw it to my attention. I will ask the Reporter to give me a transcript and I will take into account the comments that have been made in order to provide Reasons that make both the amendment with respect to the Tuesday that Mr. Protopapas advised me of, and the other matter is with respect to summer access; my Reasons only included a recommendation. They did not make an order. I left that to her, and if she has chosen to enter into a consent, then she has exercised that, as far as I am concerned. So I do not see any inconsistency there. In fact, I would encourage the parties to agree. I think that should be apparent.
...SUBMISSIONS OF COUNSEL REGARDING COSTS
...DISCUSSION REGARDING COSTS BREAKDOWN
THE COURT: For reasons given orally, order to issue:
Sole custody to mother.
Order to issue for Minutes of Settlement filed.
...COMMENTS REGARDING APPOINTMENT TIME AND FORM OF ORDER IF REQUIRED
THE COURT: I just want to reiterate my comments to both of the parties. You have both been very ably represented by very experienced and competent counsel, and the decision should reflect the evidence that I had, and I simply indicate that both lawyers did a very good job. They did not make my job any easier, in that sense.
FORM 2
CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))
Evidence Act
I, Nicki Hettinga, certify that this document is a true and accurate transcript of the recording of Tricia Lee Beirnes v. Christopher Charles Brown in the Ontario Superior Court of Justice held at 74 Woolwich Street, Guelph, Ontario taken from Recording No. 4611-crtrm#2-20140522-135901-10-BELLEGJ.dcr, which has been certified in Form 1.
Date Certified Court Reporter