Court File and Parties
COURT FILE NO.: 1660/09-09
DATE: 2019-01-10
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
PAUL SCOTT FOWLER
Applicant
– and –
BREIGHANN ELAINE FAIRBURN
Respondent
COUNSEL:
Anthony Orazietti, Counsel for the Applicant
Jasmine Gassi-Harnden, Counsel for the Respondent
Serge Treherne, Office of the Children’s Lawyer
HEARD: December 11, 2018
GAREAU J.
REASONS ON MOTION
[1] Before the court are two motions at Tabs 27 and 30 of the motion to change record. In the motion at Tab 27, Mr. Fowler requests that he have sole custody of Keigharrah Fowler, born February 2, 2006, with access to Ms. Fairburn on an alternate weekend basis. In the motion at Tab 30, Ms. Fairburn asks that the status quo continue and that she and Mr. Fowler share the care of their child on a week about basis.
[2] The present court order which Mr. Fowler seeks to vary was granted on January 25, 2013. This is a consent order that incorporated an extensive parenting plan dated January 18, 2013 which was executed by the parties. The child Keigharrah is now almost 13 years of age. She has operated under a shared custody regime whereby her parents have equal care of her for a substantial period of time, almost six years.
[3] The position of the father, Paul Fowler, is that this shared parenting scheme of equal time with each parent is no longer working and that Keigharrah has been vocal about her wish to live permanently in his home and to see her mother on alternate weekends. The position of the mother is that although Kiegharrah wishes a change and is “suffering emotionally”, to use the words of her counsel, a change should not be made at this time.
[4] The court had the benefit of having the involvement of the Office of the Children’s Lawyer, by way of counsel for Keigharrah. Keigharrah is a grade 7 student attending a French Immersion program. By all accounts she is an excellent student who is progressing very well in school. Keigharrah was described to the court as a mature and intelligent young woman. It was reported to the court that she has been clear and consistent about her desire to reside with her father on a full time basis and visit with her mother every second weekend, to include Thursday evenings to attend the Brownie program with her mother, who is a group leader. Keigharrah has met with her OCL counsel, Mr. Lawson, on six occasions from February to September 2018. Keigharrah met with her new OCL counsel, Mr. Treherne, on one occasion on November 20, 2018. Mr. Treherne reported to the court that Keigharrah’s wishes have remained clear and consistent throughout all these meetings, namely, that she is not happy under the present shared custody arrangement and that she wants to live primarily in the home of her father.
[5] In her argument, counsel for the mother conceded that there is no dispute as to the wishes that Keigharrah has expressed. The mother accepts that Keigharrah has stated that she wishes to live primarily in her father’s home. It is the position of the mother that this wish is expressed as a result of some mental health difficulties that Keigharrah is experiencing or orchestrated by the father by way of parental alienation.
[6] Keigharrah has been examined by a health professional and has had counselling through Algoma Family Services. There is no report from any professional that has examined Keigharrah that raises a concern about any mental health difficulties or parental alienation. Before the court is a progress note dated January 19, 2018 from Dr. Gayle Yee. It is worthwhile to reproduce the note in its entirety. It reads as follows:
Comes with mother Breighanna and father Paul
Mom wants Keigharrah referred to psychiatry, under the guise of getting her help
In fact there is a very acrimonious custody battle between Paul and Breighann
There is alleged abuse and mistreatment that each party accuses the other
CAS in [sic] involved in the case
There is a difficult relationship between Keigharrah and Breighann
There is no signs of withdrawal, anxiety, depression, missing school, failing grades by Keigharrah
She was able to express some of her feelings about the challenges of the relationship with her mother, but was not particularly forthcoming
At this time I do not see how a psychiatry consultation would be helpful for Keigharrah
The Office of the Children’s Lawyer is already involved; if the lawyer or case worker thinks a psychiatry referral is warranted they will recommend such and I can facilitate if desired
For now, each side needs to abide by the court order as set out; they both need to act in the best interests of Keigharrah
[7] In my view, there is no basis to the mother’s claim that Keigharrah has been alienated from her, or that parental alienation syndrome is at play in this case. There is simply no evidence before the court to support this contention by the mother. The fact is that Keigharrah still wishes to see her mother, for an extensive period of time on alternate weekends. She still wishes to attend Brownie’s with her mother. Counsel for the Office of the Children’s Lawyer indicated that Keigharrah is “not alienated from her mother”. Rather, this child has articulated reasons, which appear to me to be sound, for desiring a change in the present shared custody arrangement. She describes a strained relationship with her mother where she is yelled at and feels that she can never do anything right. She describes her mother reading the text messages she receives from her father and recording telephone conversations that she has with her mother.
[8] The father and mother of Keigharrah have had extensive litigation before this court. As noted in Dr. Yee’s progress notes, referred to earlier, “In fact, there is a very acrimonious custody battle between Paul and Breighann. There is alleged abuse and mistreatment that each party accuses the other.” It is obvious that the parties still have much distrust and discord between them. The principles set out in Kaplans v. Kaplans, 10 RFL (6) 373 is still good law in Ontario. In Kaplans, the Ontario Court of Appeal held that there must be some evidence before the court that, despite some other differences, the parents are able to communicate effectively with one another. It was held to be an error in principle to award joint custody; (a) where there was no evidence of historical cooperation and appropriate communication between the parties; and (b) in the hope that it would improve the parenting skills of the parties.
[9] Recently, in Berman v. Berman, 2017 ONCA 905, the Ontario Court of Appeal re-affirmed the principles in Kaplans regarding joint custody.
[10] If these are the principles to be applied with respect to joint custody they are even more important in cases of shared custody, where parents have to co-parent a child on an equal basis. In cases where shared custody is to be considered the parents should have a high level of communication and cooperation in which their paramount concern is the welfare of their child. This does not exist in the case of Mr Fowler and Ms. Fairburn. Their daughter, Keigharrah, is caught in the middle of her parents’ conflict and she is unhappy and wants a change. None of this is surprising.
[11] Courts are generally loathe to change a longstanding custody arrangement on an interim basis on affidavit evidence. Such a change in custody, without the benefit that the full examination that a trial can bring, should only be done in exceptional circumstances. I am of the view that exceptional circumstances exist in this case. Keigharrah is almost 13 years of age. She is very unhappy with the present arrangement and her unhappiness is not whimsical in that she has expressed clear reasons and the foundation as to why she wants a change. In my view, it would be more detrimental to the wellbeing of Keigharrah to leave the status quo than it would be to take a risk in making a change. Simply put, the present arrangement is not working and to continue it will only be harmful to this child.
[12] After hearing the motions on December 11, 2018, I indicated to counsel that I would not be rendering a decision before the end of the Christmas holidays since the parties had made Christmas plans with Keigharrah based on the present custody arrangement. Accordingly, this matter was adjourned to today’s date, January 10, 2019 at 10:00 am, for a decision.
[13] For the reasons given, the court is making an interim order as follows:
(a) Effective immediately, the applicant Paul Scott Fowler, shall have interim custody of Keigharrah Lynn Fowler, born February 2, 2006.
(b) The respondent, Breighann Elaine Fairburn, shall have parenting time with Keigharrah on alternate weekends from Thursday at 4:00 pm to Monday at 9:00 am, when Keigharrah is to return to school. This shall commence on Thursday, January 17, 2019. On the off weeks the mother shall be permitted to take Keigharrah to Brownies and return her to her father’s home after Brownies.
(c) The respondent mother shall have the 2019 spring school break from 4:00 pm the day school is released until 4:00 pm on the Sunday prior to school re-commencing (March 8 to March 17, 2019). The respondent’s alternate weekend access shall re-commence on Thursday, March 28, 2019.
(d) This arrangement is on an interim basis and shall be reviewable in motions court on July 11, 2019 at 10:00 am before me. At that time the court will be interested in having affidavit evidence filed setting out how the arrangement has been working for the benefit of Keigharrah.
(e) The issue of costs with respect to the motions at Tab 27 and 30 of the motion to change record are reserved to the hearing judge ultimately disposing of the motion to change.
Gareau J.
Released: January 10, 2019
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
PAUL SCOTT FOWLER
– and –
BREIGHANN ELAINE FAIRBURN
REASONS ON MOTION
Gareau J.
Released: January 10, 2019