ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 292-2014
DATE: 2015/12/04
BETWEEN:
Kathryn Henderson
Applicant
– and –
Jesse Gordon Floyd Davis
Respondent
Gabrielle Beaulieu, for the Applicant
Susan E. Galarneau, for the Respondent
HEARD: October 6, 7, 8, 9, 2015
REASONS FOR JUDGMENT
CHARBONNEAU, Michel Z.
[1] This application raises the issue of the custody of the parties’ son Hunter Alfred Davis born on October 1, 2008. The parties have settled all other issues initially raised by the pleadings.
The Background Facts
[2] The parties started living together in June 2008. They are both members of the Canadian Arm Forces. On October 1, 2008 Hunter was born while the parties were residing in Trenton. They subsequently moved to Borden. While still in Borden, in March 2010, they separated. Upon separation, the parties agreed to share joint custody of Hunter on an alternating week basis. They entered into a separation agreement which provided that neither party would relocate without the consent of the other.
[3] The respondent was posted in Moose Jaw for military training from March 2011 to February 2012. Hunter resided with the applicant during that period of time. The respondent was back in Borden in February to March 2012 and the week on week off basis resumed.
[4] In April 2012, the respondent was assigned for further pilot training in Portage La Prairie until February 2013 when he received his wings as a helicopter pilot. The applicant remained in Borden with Hunter. The applicant married Mr. Christopher Henderson in 2012. She gave birth to their daughter, Ivory, in October 2013.
[5] The applicant was posted to Ottawa in February 2013. She set up residence in Russell. The respondent obtained a posting in Petawawa in May 2013. From May 2013 to August 19, 2014 Hunter lived with his mother in Ottawa and saw his father in Petawawa every second week-end.
[6] The applicant brought this application in April 2014 to obtain an order allowing her to move to Oakville with Hunter. The grounds of her application were that she had been posted in the Greater Toronto area in anticipation of a surgery she had to undergo and that she needed the help of her family to take care of the two children.
[7] The respondent delivered an answer and counter-claim for an order granting him custody of Hunter and child support. He was objecting to the applicant’s proposed move to Oakville.
[8] At a case conference on August 15, 2014, it was determined that a trial would not be held before December 2014. The parties would each bring a motion for a temporary order returnable on August 19th, 2014. The applicant’s motion sought an interim order allowing her to move to Oakville. In her supporting affidavit she indicates that she had originally requested a compassionated posting to Oakville and that the transfer had been granted. As a result, she was now forced to move by October 20th under threat of being declared A.W.O.L. and imprisoned. The respondent’s motion sought an order placing the child with him pending the disposition of the mobility issue or in the alternative an order mandating the applicant to remain in Russell pending the disposition of her application.
[9] The motion judge ruled in favour of the respondent and ordered that Hunter would reside with his father until disposition of the mobility issue. In a brief endorsement he found that the mother’s plan was uncertain. He found she had not been honest concerning her relocation by the military when in fact she had herself requested the relocation. He found the interim plan of the father to be in the best interests of the child.
[10] Unfortunately, the matter could not be tried before the week of October 6th, 2015. This is unfortunately another example where systemic court delays have caused unnecessary hardship to family litigants.
[11] The applicant later obtained a reversal of her posting to Oakville which meant she could continue residing in Ottawa. She was no longer asking to be allowed to move with Hunter.
[12] In September 2015, the applicant delivered an “amended” application claiming custody, child support and the appointment of the Office of the Children’s lawyer (O.C.L.) to investigate and report to the court. The O.C.L. did not agree to intervene and the parties agreed to jointly fund the services of a social worker to investigate and report. On February 27th, 2015 Janet Claridge B.S.W., M.S.W. forwarded her report to the parties and filed it with the court on March 4, 2015.
Position of the Parties
The Applicant
[13] The applicant asks that the status quo which existed prior to the temporary order of August 19th, 2014, be resumed. She indicates that prior to August 19th, 2014 Hunter had lived principally with her and viewed her as his primary parent. Hunter had been accustomed to maintaining a close relationship with his father by regular visits and was doing very well in that custody and access regime. There was no reason to change the custody regime which had worked well for Hunter’s first five years. Returning to the status quo Hunter had been accustomed was in his best interests.
[14] The applicant submits her relationship with her husband Mr. Henderson is now stable and her work as a military police in Ottawa is now stable. On the other hand, the respondent’s career as a helicopter pilot is more subject to changes. He will definitely be away from home for extended periods each year.
[15] She admits that she made some mistakes in how she went about initially with her request to relocate. At that time, she underwent a personal crisis which coincided with the birth of Ivory, her surgery and some marital difficulties. She however always provided good care to Hunter. In fact she was the one that initially took action with the school authorities and saw that a process be put in place to help Hunter deal with his anxieties and his tendency to act aggressively in certain situations. As a result Hunter’s conduct was corrected.
[16] It is also in the best interests of Hunter that he have his primary residence with his sister Ivory. He has developed a close relationship with her.
[17] Finally the applicant relies on the opinion and recommendation of Mrs. Claridge who recommends the return of the regime existing prior to August 19th, 2014.
The Respondent
[18] The respondent submits that the applicant has acted unreasonably and at times dishonestly in the context of these proceedings. She has tried to minimize and discredit the importance of the role the father actually played in the life of Hunter. Her evidence in this regard is exaggerated and often totally false.
[19] The respondent admits that Hunter has a significant relationship with his mother and with his sister Ivory. She proceeded to ask for a transfer to the Toronto area without mentioning at all that the respondent was available to help her. She rather indicated she had no support or assistance whatsoever. She knew the respondent was ready and willing to provide help to her. In the past the respondent had on several occasions taken Hunter with him when the applicant needed help.
[20] The applicant in her affidavit in support of her application tried to minimize the respondent’s past relationship with Hunter. The respondent submits this was a deliberate attempt to deceive the court in believing that reducing Hunter’s access periods with his father would have little impact on Hunter. She did this to bolster her request to be allowed to move to Oakville.
[21] The respondent submits the applicant was untruthful when she disguised her transfer in her communications first with the respondent and later in her court application as a move mandated by the army. She only corrected this when she had no choice but to do so during the interim motion proceeding.
[22] The respondent submits that the applicant deliberately embarked on a smear campaign against the respondent. As an example, the respondent points to her communication with the authorities to reveal that an alleged fraud had been committed by the respondent. Similarly for the first time at trial she indicated the respondent asked her to get an abortion when she first became pregnant with Hunter. She posted negative comments on-line.
[23] The respondent submits the applicant’s life is far from stable. Her new husband has not shown that he is committed to her and the children and particularly Hunter, in the long term. The applicant was planning to move to Oakville when Mr. Henderson would remain in Ottawa.
[24] The respondent submits he has a very stable relationship with Mrs. Whittaker who is very involved and supportive in her relationship with Hunter. On the hand she has clearly demonstrated that she believes in leaving all the important decisions affecting Hunter in the hands of the biological parents.
[25] The respondent asks the court not to follow the recommendation of Mrs. Claridge for the following reasons:
She never took a chronology from the respondent. If she had she would not have come to the conclusion that the mother had been the “principal” parent before August 14th, 2014. Her conclusion was based solely on the word of the applicant who minimized the role played by the father.
She describes the applicant’s home as “stable” between October 2012 and July 2014. The evidence indicates otherwise. There is evidence Hunter was experiencing personality problems when he came to live with the father in August 2014. Hunter had to undergo therapy for those difficulties. The respondent submits they were caused by the upheavals he experienced in the mother’s home from late 2013 to the summer of 2014. Those difficulties are well noted by Mrs. Claridge in her report.
Her conclusion is inconsistent with and contrary to the many findings she makes in the body of her report.
[26] Both parents are members of the military and subject to transfers and/or deployment. The respondent submits the evidence establishes his present situation is unlikely to change for the next 5 to 7 years. On the other hand it is not so clear whether the recent reversal of the mother’s move to the Toronto will extend pass January 6, 2016. There is no evidence the army has decided to do so.
Analysis
[27] In all cases where the court is asked to decide the custody of a child the overarching issue is what order will ensure the best interests of the child.
[28] Section 24 of the Children’s Law Reform Act dictates that the Court will determine what is in the best interests of the child by considering all the child’s needs and circumstances including a series of 8 factors set out in subsection 2.
[29] I am satisfied that both parties could provide a good home and good care for Hunter. They have both done so at different times in the past. I conclude on the evidence that there is equal love, affection and emotional ties between the child and each parent (factor 2 (a) (i)), and that both have equal ability and willingness to provide to the child guidance and education and the necessities of life (factor 2 (d)). Neither party offered any evidence contrary to this conclusion nor in fact was it ever a real issue throughout the trial.
[30] However, the evidence raises the following issues:
Should the status quo which exists since the interim order continue or should there be a reversal to the custody and access regime in place before August 19th, 2014? (factor 2 (c));
Which parent is more likely to provide a stable long term home without the risk of forcing a review of the issues again in the near future? (factor 2 (f);
Which parent has the better ability to act as a parent (factor 2(g));
Are there important affection and emotional ties between Hunter and the respondent’s spouse Mrs. Whittaker, the applicant’s husband Mr. Henderson and his young sister Ivory? (factor 2 (a)ii-iii).
Issue 1 - Status Quo
[31] Mrs. Claridge recommends a return to the status quo that existed before August 19th, 2014. When I read the report I must admit I found it very difficult to know exactly on what basis she came to that conclusion. During her testimony I tried to get more information from her in order to better understand her position and she was not able to provide a meaningful answer. She appeared to come to the conclusion that until August 14, 2014, the applicant was the principal parent while the respondent was more of an access parent. It appears that this conclusion informed her final recommendation. I find that conclusion is not supported by the evidence.
[32] Although the evidence supports a finding that the applicant was the principal parent for two long periods of time, this was mostly due to the fact that the respondent pilot training required him to be away from home for two extended periods, one in 2011 and one in 2012. However, I accept the respondents evidence that in the first 3 years of Hunter’s life he was very involved daily with Hunters care. Moreover on many occasions during the period from the separation in March 2010 to August 19th, 2014 the respondent took over as principal parent. I accept the evidence of the respondent that during the periods noted above, when he was away on training, he was continuously in very close contact with Hunter. I find Hunter’s attachment to him was and is more comparable to the attachment of a young child to a principal parent than to an occasional access parent. I reject the evidence of the applicant to the contrary. On this issue, I also accept the evidence of Jarrett Cranston and Robert Tyler who strongly corroborated the respondent’s evidence.
[33] I find therefore that the foundation of Mrs. Claridge’s main recommendation is not supported by the evidence.
[34] The second problem with Mrs. Claridge`s report is that she never addresses the issue of what, if any, will be the impact on Hunter to return him to Ottawa. In fairness, she probably believed that the trial would be held in the next few months after the release of her report. If that had been the case, the interim order would have been in place for 6 or 7 months and not for 15 months as it has been now. Nevertheless, it would have been useful to have her views on the impact of the reversal on Hunter even after 6 or 7 months. Her decision not to address that issue reduces substantially the weight of her recommendation.
[35] The evidence indicates that in the spring of 2014 Hunter exhibited behavioural problems. To the credit of the applicant she got involved quickly with the school to find solutions. However the evidence clearly establishes that Hunter is now doing very well in school in Petawawa. The evidence indicates he is well adapted to his environment. I find a move back to Ottawa, especially in the middle of the school will impact negatively on him.
[36] I conclude that maintaining the status quo put in place since August 2014 is in the best interests of Hunter.
Issue 2 – Stability
[37] The totality of the evidence tends to establish that, notwithstanding the uncertainties of military life, both parties are likely to remain in their present location and assignment for at least the mid-term. This is a non-issue per se.
[38] However, stability of the home means more than permanent or long term location and assignment. It means the total environment of the child’s including the stability of the relationship of each parent. I conclude that the respondent and Mrs. Whittaker have a very stable and fundamentally sound relationship. I accept their evidence to this effect. I also accept Mrs. Whittaker’s evidence, which I have found to be a very credible witness, to the effect that she is very committed to the care of Hunter while not in any way wanting to usurp the biological mother’s important role in the life of Hunter. On the one hand, Mr. Henderson does not appear to have the same commitment to Hunter. It is clear that his army career is his first priority at this time. I am also not confident that the Henderson couple have the same strong relationship. His reaction when the applicant told him she was pregnant cannot be disregarded at this time. It is unfortunate that I only had the occasion to read the transcript of his evidence as he was not available to appear in person due to his army commitments.
[39] I conclude this factor also favours leaving Hunter in the respondent’s home for the time being as being in Hunter’s best interests.
Issue 3 – Ability to act as a parent
[40] When parents separate one of the important qualities a person must have is to be able to act as a parent. The ability to act reasonably at all times and do everything to ensure that the best possible relationship continues between the child and each parent is crucial to the child’s well-being. This is often the Litmus test determining the willingness and ability of a parent to act in the best interests of the child.
[41] Here the decision of the applicant to move to the Toronto area was not well thought out. She knew or should have known that the proposed move would take Hunter away from his father with whom Hunter had a very important relationship. The reasons involved at that time for her transfer did not take into account the best interests of Hunter. As she had done in the past she could have asked Mr. Davies to take Hunter with him for 1 or 2 months while she took care of her personal problems. Instead she fabricated a false story about a move mandated by the army.
[42] The effect of her decision was to create substantial upheaval in Hunter’s life. The applicant did not show good ability to act as a parent when she proceeded as she did.
Issue 4 – Ties to others
[43] The respondent admits Hunter has close ties to his young sister Ivory. I find it is in Hunter’s best interest that he have as much contact as possible with his sister to preserve those important ties.
[44] I find on the evidence that Hunter is much closer to Mrs. Whittaker than to Mr. Henderson. I accept Mr. Davis’ evidence that Hunter told him Mr. Henderson made disparaging comments about him. This evidence is not probative of the truth of what Hunter said but I accept it as probative of his state of mind and feelings vis-à-vis Mr. Henderson. My consideration of this factor also favours leaving Hunter in Petawawa with his father.
Conclusion
[45] I have come to the conclusion that it would be against the best interests of Hunter to move him back with his mother in Ottawa. He is thriving in Petawawa and the existing regime is in his best interests. I also conclude that after considering the other factors mentioned earlier, it is in Hunter’s best interests to maintain the early status quo.
[46] The parties have agreed on generous terms of access which will allow the applicant and Ivory to maintain their close and important ties to Hunter. I accept Mr. Davis’ evidence that he is prepared to call upon Mrs. Henderson to care for Hunter should there be a material change in his professional duties.
[47] Counsel for the respondent will prepare an order in accordance with these reasons and submit same to applicant’s counsel for approval as to form and content.
Charbonneau J.
Released: December 4, 2015
COURT FILE NO.: 292-2014
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Kathryn Henderson
Applicant
– and –
Jesse Gordon Floyd Davis
Respondent
REASONS FOR JUDGMENT
Charbonneau, J.
Released: December 4, 2015