COURT FILE NO.: FS-40555-17 (Milton) DATE: 2018-12-05
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
V.K. Elliot Vine, for the Applicant Applicant
- and -
A.K. Respondent Stuart M. Law, for the Respondent
HEARD: July 12, 2018, at Brampton, Ontario
Price J.
Reasons For Order
NATURE OF MOTION
[1] Following V.K. and A.K.’s separation on October 1, 2017, after their 8 ½ year marriage, they entered into Minutes of Settlement on November 16, 2017, giving V.K. exclusive possession of the matrimonial home. A.K. exercised access to the children on a schedule that the parties arrived at voluntarily, until April 16, 2018, when the parties attended an Early Case Conference before Kurz J., A.K. left the courthouse before the Conference was concluded. Justice Kurz made an Order, in accordance with the Minutes of Settlement the parties had signed the previous November, granting V.K. exclusive possession of the home.
[2] Following the Case Conference, A.K. attended at the matrimonial home and demanded access to the children, notwithstanding V.K.’s text messages to him notifying him that one of the children was sick and had gone to sleep. A.K., enraged, kicked the door in, prompting a neighbor to call 911 and summon the police.
[3] The Police arrested A.K. and charged him with public mischief by damaging the door to the parties’ home. The Police released A.K. on an Undertaking, with a term prohibiting him from having any contact or communication with V.K. When he sent her messages in breach of that condition, the Police charged him with the offence of breaching his Undertaking. He later pleaded guilty to that charge and was granted an absolute discharge.
[4] V.K. now moves for an Order granting her sole custody of the parties’ two children, C.K., who is 6 years old, and R.K., who is 4, and for A.K.’s access to the children to be supervised. A.K. moves for an Order granting him unsupervised access to the children.
BACKGROUND FACTS
[5] A.K. and V.K. were married on April 18, 2009, and separated, after 8 ½ years, on October 1, 2017. They have two children:
(a) C.K., who is 7 years old (born […], 2011); and (b) R.K., who is 4 (born […], 2014).
[6] This was A.K.’s second marriage. He exercises supervised access to his children from his first marriage, now 14 and 16 years old, as a result of a conviction 20 years ago for sexual assault on a female who was a minor. Although he has since been pardoned for that offence, there has been no variation of the order requiring his access to the children of his first marriage to be supervised.
[7] C.K. has special needs, in that he has Attention Deficit Hyperactivity Disorder (ADHD), for which he has been prescribed medication, and a hearing impairment. Both children have shown evidence of distress, including C.K. throwing things at school, and being so agitated that he had to be removed from his class, and R.K. defecating in his clothes.
ISSUES
[8] The Court must determine what custody and access order is in the best interests of the children and, in particular, whether V.K. should have sole custody of the children and whether A.K.’s access to them should be supervised.
PARTIES’ POSITIONS
A.K.’s position
[9] A.K. submits that the parties agreed on a parenting schedule, and followed the schedule for 6 months until the incident on April 16, 2018. He argues that the incident that day was an isolated one which he has taken steps to address.
V.K.’s position
[10] V.K. argues that A.K. was verbally abusive toward her throughout their marriage, and that the incident on April 16, 2018, was simply the culmination of behavior that was intolerable and had a negative impact on both her and the children. She argues that the steps A.K. has taken have been insufficient to address his anger management problem, and that until he addresses that issue fully, his access to the children must be supervised to protect them from harm.
[11] Mr. and V.K. are agreed that the involvement of the Office of the Children’s Lawyer would be helpful in this case to assess the needs of the children and the ability of the parents to meet their needs. Mr. and V.K. interpret the children’s behaviour differently, however, in that V.K. attributes it to A.K.’s anger and his treatment of the children, and A.K. attributes it to the children’s ages, immaturity, and, in C.K.’s case, his special needs.
ANALYSIS AND EVIDENCE
a) What order as to custody and access is in the best interests of the children?
Legislative framework
[12] The Court’s determination of custody and access is governed by section 16 of the Divorce Act. [1] Section 16(1) provides that a court may make an order respecting custody of or access to a child of the marriage on application by a spouse or another person. Section 16(4) provides that, in making an order under section 16, the court may grant custody and/or access to more than one person. Section 16(6) gives the court a broad discretion to include any terms, conditions, or restrictions in a custody/access order that it considers fit and just.
[13] Under section 20 of the Children’s Law Reform Act (“CLRA”), [2] both parents are equally entitled to custody of their child. Where the parents live separate and apart, and the child resides with one of them with the consent of the other, the entitlement to access continues, along with the right to visit with and be visited by the child, and to make inquiries and be given information as to the child’s health, education, and welfare. [3]
[14] The court makes orders concerning the custody of a child and access based solely on “the best interests of the child”. The Supreme Court of Canada in Young v. Young and Gordon v. Goertz (1996) held that a child’s best interests must be ascertained from the perspective of the child. Parental preferences and rights do not play a role in the analysis, except to the extent necessary to ensure the best interests of the child. [4]
[15] Section 16(8) provides that the sole criterion for determining custody and access issues is “the best interests of the child…, as determined by reference to the conditions, means, needs and other circumstances of the child.”
[16] Section 16(10) provides:
(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such access. [Emphasis added]
[17] The goal of maximum contact with each parent is not absolute, but maximum contact can only be restricted to the extent that it conflicts with the best interests of the child. [5] The child’s best interests must be paramount to any other consideration when access is ordered. The convenience of the parents is not ignored, but is secondary to the welfare of the child. [6]
[18] The Divorce Act does not set out a detailed list of other factors to be considered when determining the best interests of a child. However, in an effort to apply the best interests test with greater precision and consistency, courts, when applying the “best interests” test, have considered the criteria set out in provincial and territorial legislation. The relevant provisions in Ontario are sections 20 and 24 of the CLRA. [7]
[19] Section 24(1) of the CLRA provides as follows:
Merits of application for custody or access
- (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).
Best interests of child
(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. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10.
Past conduct
(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.
Violence and abuse
(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.
[20] I will consider the evidence in relation to each of the factors that is pertinent to the determinations to be made in relation to C.K. and R.K.
a) Love, affection, and emotional ties
[21] C.K. and R.K. have a strong relationship with both parents.
b) Facilitating contact with the other parent
[22] The court, when making a custody and access order, whether pursuant to sections 20 and 24 of the CLRA, or pursuant to section 16(10) of the Divorce Act, “must give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child”. To that end, the court is required to consider the willingness of each parent who is claiming custody or access to facilitate such contact. The goal of maximum contact with each parent is not absolute, but the legislation is clear that maximum contact can only be restricted to the extent that it conflicts with the child’s best interests. [8]
[23] As for how the parties should share parenting of C.K. and R.K., I refer to the comments of McLachlin J., as she then was, in Young v. Young, where she discussed the “maximum contact principle,” in the context of an application under the Divorce Act. [9] Justice McLachlin, speaking for the majority of the Court, said:
... s. 16(10) provides that in making an order, the court shall give effect "to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child." This is significant. It stands as the only specific factor which Parliament has seen fit to single out as being something which the judge must consider. By mentioning this factor, Parliament has expressed its opinion that contact with each parent is valuable, and that the judge should ensure that this contact is maximized. The modifying phrase "as is consistent with the best interests of the child" means that the goal of maximum contact of each parent with the child is not absolute. To the extent that contact conflicts with the best interests of the child, it may be restricted. But only to that extent. Parliament's decision to maintain maximum contact between the child and both parents is amply supported by the literature, which suggests that children benefit from continued access: Michael Rutter, Maternal Deprivation Reassessed (1981), Robin Benians, "Preserving Parental Contact: a Factor in Promoting Healthy Growth and Development in Children", in Jo Tunnard, ed., Fostering Parental Contact: Arguments in Favour of Preserving Contact Between Children in Care and Their Families (1982) (at pp. 117-18). [10]
[24] Unlike the Divorce Act, which the Court applied in Young, the CLRA sets out specific factors that the court should consider when determining what is in a child’s best interests. The CLRA does not include the principle that a child should have as much contact with each parent as is consistent with the best interests of the child, as s. 16(10) of the Divorce Act does. Nevertheless, s. 20(1) and (4) of the CLRA require the court, if it finds that maximum contact with both parents is not in the child’s best interests, to explain why this is so. [11]
c) The children’s views and preferences
[25] There is insufficient evidence before the court on this motion to make a finding as to the views and preferences of the children. Both parties favour involvement of the Office of the Children’s Lawyer and that Office may be able to provide useful input in relation to this factor.
d) Length of time C.K. and R.K. have lived in a stable home environment
[26] From the time C.K. was born until the parties’ separation six years later, C.K. and, beginning in 2014, R.K., resided with both parents in the matrimonial home. Since the parties separated in November 2017, the children have resided principally with V.K.
e) Ability and willingness of each parent to provide C.K. and R.K. with guidance and education, the necessaries of life, and to meet any individual needs she has
[27] The evidence satisfies me that V.K., who has been the children’s primary caregiver since the parties separated in November 2017, is willing and able to provide C.K. and R.K. with the guidance, education, and necessaries of life that they require. As noted above, C.K. has Attention Deficit Hyperactivity Disorder (ADHD), for which he has been prescribed medication, and a hearing impairment, and both children have shown signs of distress at school, which I attribute largely to the conflict between their parents. I find that V.K. has been attending appropriately to the children’s needs and obtaining for them the treatment and counselling they require.
f) Plans proposed for the child’s care and upbringing
[28] Neither party has made proposals for the children’s care and upbringing over the long term. V.K. has proposed that A.K.’s access be supervised, which I will address below.
g) Permanence and stability of each family unit
[29] Both family units are in transition since their separation.
h) The ability of each person applying to act as a parent
[30] V.K.’s concerns, though as yet un-tested by cross-examination, cannot be completely disregarded. A.K. exhibited an unmanaged anger toward V.K. on April 16, 2018, which A.K. characterizes as an isolated incident but V.K. says was simply the culmination of past behavior that was intolerable and had a negative impact on both her and the children.
[31] The negative effects of domestic violence on children are well known. The perpetrator of domestic violence poses a risk of harm to children even after the perpetrator and victim have separated, and even if the perpetrator has not physically assaulted the children. B. MacDonald J. has described this risk in a number of decisions, including LeBlanc v. Khallaf, 2010 NSSC 219, where she stated:
Children are harmed emotionally and psychologically when living in a home where there is domestic violence whether they directly witness the violence or not. Exposure to domestic violence is not in the best interests of children and those who are the perpetrators of domestic violence, who remain untreated and who remain in denial, are not good role models for their children. The fact that there is no evidence the perpetrator has actually harmed the child is an insufficient reason to conclude the perpetrator presents no risk to his or her child. One risk is that the perpetrator will continue to use violence in intimate relationships to which the child will be exposed in the future. Another is that the child may model aggressive and controlling behaviour in his or her relationships with others. There are many other risks some of which are summarized on the Government of Canada Department of Justice website providing information about spousal abuse. [12]
[Emphasis added]
[32] In certain cases, domestic violence justifies denying the perpetrator access to his/her children. In Children's Aid Society of Toronto v. C.(S.A.), 2005 ONCJ 274, Zuker J. stated:
There is a growing number of cases in which access has been denied to an abusive spouse or partner. Almost all of these cases fit in the category of episodic male battering. [For a case where a mother with a history of drug use and threatening behaviour was given access only with the permission of the custodial parent, see McGrath v. Thomsen (2000), 147 B.C.A.C. 195, 2000 BCCA 640, 241 W.A.C. 195, 11 R.F.L. (5th) 174, [2000] B.C.J. No. 2392, 2000 CarswellBC 2383 (B.C.C.A.).] They are situations of repeated physical violence and emotional abuse by a man, directed at his female partner and sometimes at the children as well, and most have also involved some form of post-separation spousal abuse. Although in most of the cases the custodial mother relied on expert testimony to support the application to deny access, there are cases in which access has been denied without such testimony. [13] (Citations omitted)
[33] Beyond the direct harm from domestic violence on a child, the continuing risk that it poses, and the message children may derive from the court validating the perpetrator’s parental competence by granting him custody of the children, is a factor that weighs against a finding that an order for joint custody would be in their best interests. In N.T. v. Y.T., Vogelsang J. granted interim custody to the mother, finding that the father’s need for control undermined his ability to act in the children’s best interests. He stated:
The conduct of the husband is quite relevant in determining which of the parties is better able to meet the needs of the children and to act as a proper parent, not only attending to the physical and emotional needs of their offspring, but also providing an environment of respect for the other, in order that there may be a continuation of the familial bond after separation. In that regard, I worry about the statements made by the independent midwife, Heather Struckett, in her affidavit at paragraphs 7 to 10 on page 106 of the motion record. The tone of the husband’s sworn affidavit is one of control, domination and obsession. If given custody, I fear that his emotions would overcome the best interests of these small children. [14]
[Emphasis added]
[34] In Kritharis v. Kritharis, 2001 BCSC 258, Edwards J., granted sole custody to the mother for similar reasons. He stated:
The grant of sole custody to the mother is not made to encourage her to dominate the relationship which the parties must develop to manage their child care responsibilities. It is made to ensure that the father does not dominate it. I cannot over-emphasize that mutual respect and co-operation, with neither party seeking to dominate, is the only way the parties can eliminate their animosity and thereby ensure that the children’s best interests are met. [15]
[Emphasis added]
[35] In J.M.M. v. K.A.M., Leblanc J., of the Newfoundland and Labrador Supreme Court, declined, for similar reasons, to make an order for shared custody and instead granted sole custody to the mother. He stated:
While it is true that parents do disagree on issues related to their children when living together, these parents while being able to agree on some matters, are unable to agree in many areas. This is so in my opinion, as stated earlier, as a result of the rather domineering role claimed by the father and his lack of respect for the abilities of the mother. While an inability to agree or even a high conflict separation will not of themselves absolutely foreclose the possibility of a joint custody order (See Park v. Walsh (2003), 2003 NLSCTD 33, 223 Nfld. & P.E.I.R. 116; 666 A.P.R. 116 (NLTD), and Buckingham v. Bishop (2004), 243 Nfld. & P.E.I.R. 290; 721 A.P.R. 290; 2004 NLUFC 44,), the reality of these parents’ lives and circumstances must be considered. The clear lack of respect that the father has for the mother and her abilities evident in this case and his still present anger towards her dictate to me that a joint custody or shared parenting arrangement is something that would not be in the best interests of A. In my opinion, there is a strong potential in this case that a joint or shared parenting will be used by the father as a tactic to gain control and potentially to exact retribution of some kind against the mother. [16]
[Emphasis added]
[36] In D.X. v. M.J.Z., 2011 NBQB 66, Walsh J. of the New Brunswick Queen’s Bench, in coming to a similar conclusion, stated:
An additional reason for the Court believing that day to day care to the mother is best for the children is that “in assessing the “best interests of the child” a judge needs to consider the respective attitudes of the parents and their relative abilities to foster the parent-child relationship” (L.C.M. v. B.A.C. 2010 NBQB 127). In my assessment the mother is best motivated. The Court’s findings in regard to the control and domination exerted by the father during the marriage and the reasons for it damage the father’s merits in this area. [17]
[Emphasis added]
[37] It would be unfair to A.K. to restrict his access to the children based on V.K.’s unproven allegations of violence against him, at least until her allegations can be tested by cross-examination or by an investigation by the Office of the Children’s Lawyer.
[38] The Court of Appeal for Ontario, in B.V. v. P.V., 2012 ONCA 262, (2012), the Court, while up-holding the trial judge’s decision not to award joint custody, or shared parenting, expanded the father’s access to the children beyond alternate weekends and one night per week, directing that the father have access for 35% of the children’s time. The Court stated:
[15] We agree with B.V.’s submission that the trial judge erred by awarding minimal access. In our respectful view, the terms of access ordered by the trial judge fail to respect the “maximum contact principle” contained in s. 16(10) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), directing the court to give effect “to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child”. See also Gordon v. Goertz, [1996] 2 SCR 27.
[16] The trial judge did not identify any compelling reason for limiting B.V.’s access to the extent that he did. Indeed, the trial judge’s findings at para. 82, quoted above, support a more generous access order. B.V. has both a high level of education and a stable and welcoming family arrangement with his new wife and child into which Z.V. and E.V. have already been partially integrated. It is apparent to us, particularly from the fresh evidence, that Z.V. would benefit from greater contact with B.V. who has the capacity to assist Z.V. with his special educational needs.
[17] On the other hand, in view of the trial judge’s findings that B.V. tends to be controlling, over-bearing and disrespectful of P.V., we do not agree with the submission that access on a 50% basis would be in the best interests of these children. There is no basis to disturb the trial judge’s finding that P.V. should remain the parent with whom the children spend most of their time.
[18] However, as we have explained, the minimal terms of access are not supportable on the facts of this case, and, taking into account all the circumstances and the principle of maximum contact consistent with the best interests of the children, the appropriate access order would allow B.V. to have significant continuing involvement with the children throughout the year and particularly during the school year. As a result, we order that B.V. be granted access to the children for 35% of the time, so that they will spend the remaining 65% of the time with P.V. Counsel indicated that if the terms of access were changed, they would be able to work out the details. If there is any difficulty in that regard, we will receive brief written submissions. [18]
[Emphasis added]
b) The children’s best interests
[39] No one factor in the statutory definition of a child’s “best interests” is given statutory pre-eminence, whether at an interim or a final determination. But the court pays particular attention to:
- the level of hostility between the parties, the extent to which that hostility could undermine the stability of the child, and what measures, if employed, would likely strip the hostility from the environment; [19]
- the extent to which the person seeking access has laid down a track record of using contact to the child for a purpose entirely collateral to the child’s best interests; for example, to try to control or denigrate the parent or the parent’s partner; [20]
- the extent to which the person displaying the objectionable conduct has the ability and the motivation to alter the behaviour; and
- whether the parent is acting responsibly, reasonably and in a child-focused fashion in her own assessment of what is in the child’s best interests. [21]
[40] Generally, the status quo will be maintained on an interim custody motion, absent compelling reasons for a change to meet the child’s best interests. This is so whether or not the existing arrangement is officially sanctioned (that is, whether it is de facto or de jure). [22]
[41] In the present case, C.K.’s and R.K.’s best interests are best served by not departing from the current status quo. Until there has been cross-examinations on the parties’ affidavits, I adopt the comments of the court in McEachern v. McEachern (1994), 5 R.F.L. (4th) 115 (Ont. Gen. Div.):
Maintaining the status quo may not be justified in every case in the best interests of the child, but I think there should be some compelling evidence to justify a change… [23]
[42] In the present case, I find, for the reasons stated above, that there is insufficient compelling evidence to justify a change. C.K. and R.K. will continue in their mother’s care, with a temporary order for sole custody, subject to continued access by A.K.
c) Should A.K.’s access to the children be supervised?
[43] It is not in the interests of children for courts to place the onus on a parent to demonstrate why he/she should be allowed to exercise unsupervised access to his/her children. Rather, the onus should be on a parent who seeks to restrict the other parent’s access to demonstrate why that parent’s access must be supervised. In C.G. v. M.G., 2009 ONCJ 254, (2009), A.T. McKay J. stated:
Supervised access is not the norm in custody and access disputes. When employed, it should operate as a temporary measure to resolve ongoing difficulties regarding access. For an order for supervised access to be made, it requires evidence of unusual or exceptional circumstances. The onus is on the parent who seeks to limit access to prove that the restrictions are in the best interests of the child. [24]
[44] Supervised access is a tool reserved for exceptional circumstances. The court sometimes employs it where the benefit a child would derive from contact with a parent must be balanced against the risk of harm to the child that such contact may entail, [25] or where, as a temporary expedient, it may overcome a cautious custodial parent’s initial fear that the other parent, due to inexperience or past misconduct, is incapable of properly caring for their child. However, as the Ontario Court of Appeal noted in Montgomery v. Montgomery, (1992):
The purpose of supervised access, far from being a permanent feature of a child’s life is to provide a temporary and time-limited measure designed to resolve a parental impasse over access. It should not be used … as a long-term remedy. [26]
[45] In the present case, a single episode of violence toward property resulted in a criminal charge that resulted, after release on an undertaking and a charge of breach of undertaking, in an absolute discharge. There is no allegation of violence toward the children, or of physical harm to V.K. in the presence of the children that warrants curtailing or imposing supervision on the access that A.K. exercised for six months since the parties’ separation.
[46] That said, any further incident of violence shall trigger an immediate review of the existing parenting arrangement.
COSTS
[47] While A.K. has been successful in avoiding an order for supervision of his access at this time, I find that he precipitated the motion by his unreasonable conduct which should deprive him of his presumptive entitlement to costs of the motion.
CONCLUSION AND ORDER
[48] Based on the foregoing, it is ordered, on a temporary basis, that:
- V.K. shall have sole custody of C.K. and R.K.
- A.K. shall continue to exercise unsupervised access to C.K. and R.K. on a schedule that parties shall agree upon, which provides A.K. with care of the children at least 35% of their time;
- In the event of any further incident of violence between the parties, V.K. shall have leave to return her motion, whereupon the parenting arrangement and the costs of the present motion shall be reviewed.
- A request shall be made to the Office of the Children’s Lawyer for their involvement: a. To cause an investigation to be made pursuant to s. 112 of the Courts of Justice Act and to report and make recommendations to the court on all matters concerning custody of or access to the following children and the said children’s support and education: i. C.K., born […], 2011; and ii. R.K., born […], 2014. b. To act as the legal representative of the said minors pursuant to s. 89 of the Courts of Justice Act.
- The parties shall complete and submit Intake Forms to the Office of the Children’s Lawyer by December 15, 2018, and shall co-operate fully in the OCL investigation, including signing any necessary consents to authorize the release of information and documents to the OCL.
- There shall be no costs of this motion, provided that if there is any violence by A.K. toward V.K. or the parties’ property, the costs of the present motion shall be reviewed.
Price J.
Released: December 5, 2018