COURT FILE NO.: FC-16-553 DATE: 2018/10/10 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jennifer Boyd, Applicant AND James Daniel Boyd, Respondent

BEFORE: Justice P. MacEachern

COUNSEL: Altynay Teshebaeva, for the Applicant Respondent, in person Deborah Scholey, Children’s Lawyer

HEARD: August 14, 2018

ENDORSEMENT

Overview

[1] This is a motion for summary judgement brought by the Children’s Lawyer on behalf of the child, Jack. The Children’s Lawyer [^1] seeks a Final Order granting the mother sole custody, with specified access to the father.

[2] At the outset of the hearing of this motion, the parties were able to agree to the terms of a Final Order for access as sought by the Children’s Lawyer. For the reasons set out below, I grant the Order for summary judgment and make a Final Order for the Applicant mother to have sole custody of Jack.

Background

[3] The parties married on July 27, 1996. They separated on November 8, 2015. They have two children. Jessica turned 18 in January of 2018, and is no longer the subject of a custody order. Jack was born on October 10, 2002 and will turn 16 on October 10, 2018.

[4] This Application was commenced on March 15, 2016. There are other issues between the parties in these proceedings related to finances that have not yet been resolved. These issues are not part of this motion. This is a motion for summary judgement with respect to the parenting issues only.

[5] After the parties’ separation in November of 2015, they continued to reside in the matrimonial home with the children until June 4, 2016, when the children and the mother moved out. Since June 4, 2016, Jack has primarily resided with the Applicant, his mother, and visited with the Respondent, his father. The involvement of the Office of the Children’s Lawyer was requested by Order dated June 10, 2016.

[6] Given the parties’ agreement on terms for a Final Order for access, the only issue in dispute on this motion is the issue of custody. The Children’s Lawyer, on Jack’s instructions, seeks a Final Order granting the mother sole custody of Jack.

Positions

[7] Jack has sworn an affidavit setting out his reasons for instructing the Children’s Lawyer to bring this motion. Jack does not want to shut his father out of his life – his affidavit is clear that he loves his father and enjoys spending time with him, but Jack does not want to live with his father on an equal timesharing basis. He wants to primarily reside with his mother, with access to his father on alternate weekends with mid-week access on Thursday evenings. Jack states that his parents disagree about everything, and that his father will disagree with his mother just for the sake of disagreeing. Jack wants to put an end to being caught in the middle of his parents’ conflict and sees a Final Order granting his mother sole custody as a means to assist him in achieving this goal. Jack believes that an Order for sole custody to his mother will act as a buffer between himself and his father, who is a strong personality and often experienced by Jack as overpowering. Jack wants to separate himself from the conflict between his parents and firmly believes that sole custody to his mother will assist him in doing so. Jack does not have any behavioural, health or education issues.

[8] Jack’s mother supports his position. She also experiences Jack’s father as a very strong personality who has difficulty accommodating the views of other people. The mother states that she supports both children’s relationship with their father and will not try to limit the father’s right to receive information concerning Jack’s wellbeing, which is one of the father’s fears. Jack’s mother argues that it is important for the Court to support Jack’s desire to be heard and his courage to speak out.

[9] Jack’s father does not want Jack’s mother to have sole custody. He fears that Jack’s mother will use sole custody to minimize his role in Jack’s life and to send Jack the message that Jack does not need to listen to his father, which he strongly believes is not in Jack’s best interests. He believes that Jack’s mother has influenced Jack and alienated Jack from him.

Analysis

[10] Rule 16(6) of the Family Law Rules requires the Court to grant summary judgment if there is no genuine issue requiring a trial [^2]. The moving party has the onus to provide evidence that there is no genuine issue requiring a trial.

[11] As set out in Hryniak v. Mauldin:

“There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result [^3].”

[12] The test for determining custody is the best interests of the child [^4]. These are to be determined based on a consideration of all of the child’s needs and circumstances, including the child’s views and preferences. While a child’s best interests are not necessarily synonymous with the child’s wishes, the older the child, the more an Order as to custody requires the co-operation of the child and consideration of the child’s wishes [^5].

[13] The evidence before me supports that Jack’s firmly held wish is that his mother have sole custody of him, that he understand the difference between custody versus timesharing, and the difference between joint and sole custody. It is apparent that Jack finds it stressful to be caught in the middle between his parents and their conflict, and is seeking a means to assist him in creating a buffer between himself and their conflict. I accept Jack’s reasons for seeking an Order for sole custody to his mother as bona fide, well-reasoned, and mature. Given Jack’s age, his wishes should be given significant weight, particularly given his explanations for why he holds these wishes.

[14] I do not find that Jack’s express wishes are undermined by evidence of possible influence or alienation by his mother. It is clear in Jack’s affidavit that he loves his father very much and that Jack wants to spend time with his father. The evidence does not support that Jack’s views are not his own. Rather, Jack is clearly aware and impacted by the high conflict between the parties and Jack’s wishes represent his effort to try to put an end to this.

[15] Although none of the party’s pointed to any specific custodial decisions that are expected to arise in the next two years (when Jack will then be 18 and legally an adult) that appear to require the mother to have sole custody [^6], there is significant conflict between the parties, and very limited communication. The issue is simply Jack’s wish to attempt to limit his involvement in this conflict by an Order granting his mother sole custody. Jack describes, for example, his parents trying to trump each other with respect to making medical and dental appointments for him. Jack wants his mother to schedule any of his treatment or medical appointments, including dental appointments.

[16] There is no genuine issue requiring a trial to reach a fair and just determination on the merits of the issue of Jack’s custody. This Court is able to make the findings of fact necessary to make a fair and just determination of Jack’s custody. Based on all of the evidence before me and considering all of Jack’s needs and circumstances, I find that it is in Jack’s best interests for his mother to have sole custody of him and grant a Final Order on this basis.

[17] With respect to the access terms, and in particular, the terms of the Orders set out at numbers 2 through 7 below, both parents confirmed their agreement to these terms at the motion. With respect to the Order at paragraph 6, the issue of the firearms in the father’s house relates to a concern about a roommate of the father’s, who the father advises no longer resides with him. The father was clear that he dislikes guns and would not allow them to be stored illegally in his home, and for this reason takes no issue with agreeing to the Order at paragraph 6 below.

[18] The father is to be commended for agreeing to access that reflects Jack’s wishes even though the father would obviously like to spend more time with Jack and be more involved in Jack’s life.

Disposition

[19] I make the following Final Orders (paragraphs 2 through 7 are made based on the consent of the parties):

1. The Applicant, Jennifer Boyd, shall have sole custody of the child, Jack Boyd, born October 10, 2002.
2. The Respondent, James Daniel Boyd, shall have access with Jack Boyd as follows, unless Jack requests a change in the below times: a. Every Thursday evening from 3 p.m. until 10 p.m.; b. Alternate weekends, from Friday 6 p.m. until Sunday at 9 p.m.; c. In each year, on December 25th at noon until 9 p.m.; and d. Additional access as requested by Jack.
3. In the event that Christmas Eve and Christmas Day are on a period where the Respondent would normally have access, the Respondent’s access shall be suspended to provide that Jack shall spend every December 24th until noon on December 25th with the Applicant.
4. The Respondent shall not commence a text stream or telephone Jack more than three times a day.
5. Jack is free to telephone or text his parents as often as he wishes.
6. The Respondent’s access shall be suspended should the Respondent’s home contain any firearms that are not stored in accordance with the law. For clarity, the Respondent shall ensure that any firearms located on his premises shall have an attached secure locking device such as a trigger lock or cable lock so the firearm cannot be fired, or locked in a secure cabinet. In addition, the ammunition must also be locked up.
7. The parties shall refrain from speaking negatively or derogatively about the other in the presence of the children.

Costs

[20] If the parties are unable to agree on costs, the Applicant may serve and file submissions with respect to costs on or before October 19, 2018. The Respondent may serve and file submissions with respect to costs on or before October 29, 2018. Cost submissions of both parties shall be no more than three pages in length, plus any offers to settle and bills of costs, and shall comply with Rule 4.01(1) of the Rules of Civil Procedure [^7].

Date: October 10, 2018 Justice P. MacEachern

Released: October 10, 2018

[^1]: The Office of the Children’s Lawyer acts as the legal representative of Jack pursuant to s. 89(3.1) of the Courts of Justice Act, R.S.O. 1990, c.C.43, as am. [^2]: Family Law Rules, O.Reg. 114/99, as am., Rule 16(6) [^3]: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 at para. 49 [^4]: Children’s Law Reform Act, R.S.O. 1990, c.C.12, s. 24 [^5]: Kaplanis v. Kaplanis, [2005] 1625 (Ont.C.A.), para 13 [^6]: Jack, at age 16, already has a degree of autonomy with respect to certain decisions, for example with respect to some health care and privacy decisions [^7]: R.R.O. 1990, Reg. 194