COURT FILE NO.: 17-536
DATE: July 6, 2018
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Paull v Stuart
BETWEEN: Pemi Paull, Applicant and Margaret Stuart, Respondent
BEFORE: Honourable Mr Justice Martin James
COUNSEL: Tanya Davies for the Applicant,
Michael Conroy for the Respondent
HEARD: June 29, 2018
ENDORSEMENT
[1] On January 4, 2018 I made an endorsement at a case conference to the effect that the parties were to agree on a mutually-acceptable person to interview their daughter, Jorah, as to her views and preferences regarding parenting arrangements and prepare a report. This apparently simple direction resulted in a disagreement over who should do the report, the scope of the report and, sadly, competing motions at untold expense to the parties.
[2] It is helpful to appreciate the context in which this impasse has arisen. Since 2004 the respondent has had custody of Jorah, who is now about 15 years old.
[3] To his credit, the applicant overcame an alcohol dependency and has developed a successful career as a musician. He lives in Montreal. It is unclear how access visits were handled while Jorah was growing up, including the frequency of same, but the respondent had primary parenting responsibility.
[4] The respondent alleges that the applicant has failed to pay anything close to his actual child support obligations. The applicant says he has paid child support but has not provided any details or evidence that he has paid table amount child support. The respondent included a request for child support in her respondent’s claim. The applicant has not delivered a financial statement as yet and is ordered to do so within 30 days.
[5] It is clear that the applicant seeks to play a more central role in his daughter’s life. He blames the respondent for frustrating this effort and for turning Jorah against him. It is not at all clear that this blame is well-placed. It is also possible that while Jorah wishes to have a closer relationship with her father, she resents the manner in which he has sought to inject himself into her life.
[6] The applicant appears to take the position that he is entitled to personal information about Jorah (e.g. his inquiries directed to Jorah’s doctor) and that the respondent ought to acknowledge that he has some sort of consultative role to play notwithstanding his relative absence from Jorah’s life (including paying a meaningful amount of child support) for many years.
[7] An award of “custody” to one parent, as it was traditionally understood to mean, granted full parental control over and ultimate parental responsibility for the care, upbringing and education of the child, generally to the exclusion of the other parent to interfere in the decisions made in exercising that control or in carrying out that responsibility. (See Kruger v. Kruger, 1979 CanLII 1663 (ON CA), [1979] O.J. No. 4343 (C.A.)). Since that time there has been a clear trend towards much more flexible parenting arrangements premised on the best interests of the child, but parental control and decision-making is still an important element of what it means to be the custodial parent. While mutual respect and a desire for harmonious relations may prompt the custodial parent to cooperate and confer with the other parent, but assuming that the best interests of the child are generally being met, there is no stand-alone legal requirement for the custodial parent to consult with the non-custodial parent on major decisions.
[8] It was a mistake for the respondent to contact her preferred nominee directly without prior notice or discussion with the other side. The respondent has sworn in her affidavit what was discussed, and the applicant has produced no evidence to the contrary. His concerns that the respondent’s nominee would not be impartial are pure speculation. While I highly doubt such contact would affect the outcome, it does risk creating a perception of bias or a concern regarding potential preferential treatment, which has happened here.
[9] At the same time, the applicant appears to contemplate a more expansive report than what I envisioned when the direction was given. At the hearing of the motions, Ms. Davies referred to a sort of “hybrid” assessment, somewhere between a views of the child report and a full-blown parenting capacity assessment. This is a mistaken understanding of what was ordered. A views of the child report is a non-evaluative report based on a discussion, perhaps two, with the child only, that summarizes the child’s statements. If the selected person feels that a telephone discussion with the parents for background context would be helpful or to gain insight into their expectations, there is no reason why this should not be permitted. (See generally Birnbaum and Bala, Views of the Child Reports: The Ontario Pilot Project, in International Journal of Law, Policy and the Family, 2017, 31, 344-362.
[10] In addition, the applicant expressed concern that the respondent has discussed the situation with their daughter to his detriment. It is true that, in general, children should not be involved in adult issues and parents should not discuss their difficulties with or in front of their children, but at the same time it is understandable that Jorah would expect to be included in these particular discussions. After all, she is now a teenager, the discussions are about her and the decisions being considered will affect her directly. Practically speaking, it is hard to see how she could not be included. What is important is to keep any such discussions on a positive, sensitive and child-focused basis.
[11] In light of these recent developments, I am amending my previous order to delete a requirement that the parties obtain a report respecting Jorah’s views and preferences. If the parties wish to do so on a mutually-agreeable basis, there is nothing to stop them from doing so but it will not be a court-ordered report. It was never intended that this exercise should become so complicated, controversial or divisive.
[12] Both motions are dismissed without costs subject to the requirement that the applicant is to deliver a proper financial statement within 30 days.
James, J.
DATE: July 6, 2018
COURT FILE NO.: 17-536
DATE: July 6, 2018
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Paull v Stuart
BETWEEN: Pemi Paull, Applicant and Margaret Stuart, Respondent
BEFORE: Honourable Mr Justice Martin James
COUNSEL: Tanya Davies for the Applicant,
Michael Conroy for the Respondent
ENDORSEMENT
James, J.
DATE: July 6, 2018