Miscellaneous Cases
The brief notes below are only synopses and summaries of recently
released decisions and as such should not be relied upon as an accurate
description of the law contained in the actual judgments referred
to. Always check the actual report before relying upon a comment
set out below. Please check Caveat and Note About Sources for a description of the sources used to collect these cases.
I am gratefully indebted to Shelagh Mathers of Campbell & Mathers,
in Picton, Ontario, for her assistance in compiling the
cases found below. Shelagh has been in practice since 1988 and serves
clients in Prince Edward County and surrounding areas. You can reach
her by phone at (613)476-2366 and by fax at (613)476-6064. You can
also e-mail Shelagh directly.
Joel Miller
CUSTODY CASES
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Sledzinska v Majka, Ont. Prov. Div. (Nov.
10, 1998)
Parties separated in mid 1996 and upon separation all three children
were in care of mother. Both parties applied for custody of the children.
While the court recognized that the Children's Law Reform Act made
it clear that both parents were equally entitled to custody, as usual,
the best interests of the children was the main factor to be considered.
A change in the childrens' environment would not be in their best
interests - it was speculation on the part of the father that the
children would be happier with him. No form of joint or split custody
was feasible as the anger and bitterness between the parties made
them unable to communicate and cooperate about issues relating to
the children The children remained in the custody of their mother.
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Davie v. Davie, B.C.S.C.(Jul. 14/98)
Mother seeking sole custody of 6 year old daughter living with
her since separation a year before hearing. Parties had a separation
agreement giving the parents joint custody and joint guardianship
of child. They agree that the joint guardianship should continue
but differ over joint custody. The court commented:
The petitioner relies on the Ontario Court of Appeal
decision in Kruger v. Kruger (1979), 11 R.F.L. (2d) 52
which was referred to by the B.C. Court of Appeal in Stewart
v. Stewart (1994), 2 R.F.L. (4th) 53 in adopting what has
been referred to as a cautious approach in awarding joint custody.
That is, an order for joint custody should only be made when the
parties can communicate and are willing to share the care and
control of the child.
However, the Court of Appeal in Robinson v. Filyk (1997),
28 B.C.L.R. (3d) 21 has moved away from the presumptive and cautious
approach followed in Kruger and Stewart. There is no
longer a presumption that joint custody should not be awarded
unless the parties are able to communicate and co-operate.
[Emphasis added, JM] It may be in this case that the respondent
has not made enquiries of the petitioner with respect to Mikayla's
education, swimming lessons, or whether she should engage in other
extra-curricular activities. On the other hand, it may be that
the petitioner has not asked for input or consulted the respondent
on the decisions she has made for Mikayla, and simply waits to
be asked. I do not know, nor is it of critical importance in this
case.
What is important is assessing what is in the best interest of
Mikayla. Huddart J.A. for the Court of Appeal in Robinson v.
Filyk at pages 31 to 32, applied McLachlin J. in Gordon
v. Goertz, [1996] 2 S.C.R. 27:
Writing for the majority, McLachlin, J. emphasized
the individual nature of every enquiry at 58:
But Parliament did not entrust the court with the
best interests of most children; it entrusted the court with
the best interests of the particular child whose custody arrangements
fall to be determined. Each child is unique, as is its relationship
with parents, siblings, friends and community. Any rule of
law which diminishes the capacity of the court to safeguard
the best interests of each child is inconsistent with the
requirement of the Divorce Act for a contextually sensitive
inquiry into the needs, means, condition and other circumstances
of "the child" whose best interests the court is charged with
determining. "[G]eneral rules that do not admit of frequent
exceptions can[not] evenly and fairly accommodate all of the
varying circumstances that can present themselves": per Morden
A.J.C.O. in Carter v.Brooks, supra, at p.51. The inquiry
is an individual one. Every child is entitled to the judge's
decision on what is in its best interests; to the extent that
presumptions in favour of one parent or the other predetermine
this inquiry, they should be rejected. "No matter what test
or axiom one adopts from the many and varied reported decisions
on this subject, each case must, in the final analysis, fall
to be determined on its particular facts and, on those facts,
in which way are the best interests of the children met":
Appleby v. Appleby supra, at p.315.
This clearly articulated approach to the enquiry about a child's
best interests must extend to the choice between sole and joint
custody under the Divorce Act. Madam Justice McLachlin was discussing
a presumption in favour of the custodial parent on an application
for variation of a custody order upon proof of a material change
in circumstances, which in the case before the Court, was the
proposed move of the custodial mother to Australia. The view
expressed, however, is equally applicable to a presumption in
favour of joint or sole custody. There simply can be none, whether
the presumption comes from the judiciary as an institution or
from the experience of an individual judge. Nor can there be
concern about parental rights unless those rights are necessary
to advance the child's best interest.
Unfortunately, on this application there is little evidence about
Mikayla. However, there is no suggestion that Mikayla and her
father do not enjoy their time together, or that the respondent
is not a good parent.
In making a custody order, s. 16(8) of the Divorce Act provides
that the court is to take into consideration only the best interest
of the child, as determined by reference to the condition, means,
needs and other circumstances of the child. S. 16(10) provides
that the court must give effect to the principle that the child
should have as much contact with each spouse as is consistent
with the best interest of the child, and shall take into consideration
the willingness of the person for whom custody is sought to facilitate
such contact.
The respondent might not be taking as active a role in Mikayla's
life as the petitioner would like him to, but I do not find it
is significant enough at this time to deprive Mikayla of the value
and benefit of her father's input in her upbringing, educational
development, social environment and health care. I am confident
based on the evidence that the respondent is keenly interested
and wants to be involved in Mikayla's development and growth.
There should therefore be an order for joint custody of Mikayla.
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P.J.B. v. M.M.B., B.C.S.C.(Jul. 8/98)
Parties began living together when he was 19 and she 15 years
old. Married 6 years later in 1989, had two children and separated
in 1995 when wife fled to a transition house with kids. Allegations
of sexual abuse towards 7 year old daughter by husband were dismissed
in psychological evaluations as well as allegations he made about
male friend of mother. Initial custody and access report suggested
joint custody of children with them living with mother one year
and father the next. Second report a year later proposed sole
custody to father with specified access to mother. Mother in psychiatric
hospitals twice since separation. Father had a gruff manner and
acted in an inappropriately hostile manner towards the mother,
concerning whom he had a lot of anger. But the psychiatrist who
testified was aware of that but, because of what he saw as the
stronger attachment the children had to their father than to their
mother, and because he thought the father treated the children
more appropriately, he recommended the father should have custody.
Court rejected much of the mother's criticism of the father and
her allegation that the children were afraid of him, But it also
rejected the argument that the mother's mental condition was such
that it was in the best interests of the children that they reside
primarily with their father. Court concluded that since her release
from psychiatric treatment in 1996 she had made substantial progress.
She was now off medication and availing herself of considerable
help from various support groups.
Court summarized views of the parents as follows: "In the end, I
conclude that both parents have the best interests of the children
at heart and both have a strong relationship with their children.
Both are equally capable of caring for the children's basic needs.
I find the mother is making significant progress and that her calm
nature and manifest determination to improve herself mark her as
an increasingly effective parent. The father has demonstrated competent
parenting in many respects. The obviously aggressive and angry side
of his nature, when dealing with adults, has not impaired his parenting
to a significant degree."
the court felt that each parent had much to offer the children and
that joint custody was warranted. It stated:
Is the inability of the parents to communicate so significant
that it mitigates against an order of joint custody? I conclude
it is not.
There is no presumption in law favouring either sole custody or
joint custody. Rather, custody must be determined by a consideration
of the best interests of these two children in the specific circumstances
of this case: see Robinson v. Filyk (1996), 28 B.C.L.R.
(3d) 21 (C.A.).
In my view, the best interests of the two children in this case
will be met by an order for joint custody with the children residing
with the father from Friday afternoon to Friday afternoon, and
residing with their mother for the same period in alternating
weeks. I have concluded that the potential negative consequences
of moving back and forth, are outweighed by the positive benefits
of nurturing a strong, consistent relationship with each parent.
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Hildinger v. Carroll, Ont. Gen. Div.(Jul.
2/98)
the parties are parents of a 13 month old daughter. Mother became
pregnant during love affair in New York but returned to Canada
to have the baby. Court found this was to avoid U.S.custody problems
and to further her intention to be a single parent. She omitted
father's name from birth certificate. Father wanted to be part
of child's life. Was tr3eated for depression when mother left.
Relationship between them was "somewhat venomous" and access was
"somewhat denied" until father obtained an interim order when
child was 5 months old giving him interim access every second
weekend for 3 hours on Saturday and 3 hours on Sunday. The father
was vigilant in exercising his access rights, even during the
extremes of winter, at times taking more than 12 hours to make
the trip from New York to Ottawa. Father had successful joint
custody with the 3 teenage children of his first marriage and
there was no evidence that "he would be anything but a loving
and caring father." Mother was also loving and caring, and had
proven that she could provide a stable home for the child. However,
she didn't want the father to be a part of it, until the child
is old enough to choose for herself. There was an assessment ordered
by the court which recommended no or restricted access. Court
found assessor misunderstood information given to her and found
her "opinion is primarily grounded in the fact that the mother
has been the primary caregiver for the past 13 months. What is
not addressed in her report is the fact the mother engineered
that very situation by intentionally planning to deprive the father
of his legal custodial rights. Nancy Mae does not "belong" to
the mother, no more than she "belongs" to her father. She is not
the "property" of either. Both share equal rights to the custody
of Nancy Mae, subject to what this Court may order. In my view,
this is not an appropriate case to deny access to the father.
Rather, I view this as an appropriate case to permit Nancy Mae
to better know and bond with her father. The father needs more
time with Nancy Mae. Nancy Mae will profit from growing up knowing
both her parents. ... On all the evidence, the mother has been
unbending with respect to the father's reasonable demands for
information and additional, or amended, access. The mother must
know that she does not "own" the child." Court gave father extensive
access both inside and outside of Canada. [NOTE: See the It's
Good News To Have a Dad in Cases
and Comments for a similar decision.]
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L.S.L v. C.S., S.C.C. (Nov. 12/97)
Supreme Court removed restrictions on custodial mother which
the Quebec Court of Appeal had set preventing her from involving
8 year old son in door-to-door Jehovah's Witness proselytizing.
The test is the best interests of the child and these were not
shown to be compromised by the custodial parent's activities.
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Coda v. Coda, Ont. Gen. Div.(Aug. 20/97)
14 year old daughter living with father and 11 year old daughter
living with mother. Acrimonious divorce proceedings and neither
child wished to see the other parent. Both daughters were resistant
to counselling. Court ordered status quo without ordering any
specific access to either child by the non-custodial parent. Counselling
ordered for both the children and both the parents.
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Nottingham v. Emond, Ont. Gen. Div.
(July 29/97)
Mother and father had joint custody by a consent order in 1992
confirming a status quo of four years. Mother moved to vary to
sole custody because of concerns about father's unrestricted access
to child and his conduct (he pleaded guilty to charge of telephone
harassment. There were other problems resulting in order for father
not to contravene access provisions. Father failed to complete
forms required for a bilingual assessment. On appeal court upheld
lower court award of sole custody to mother without viva voce
evidence. Held that there was a material change in circumstances
despite the fact that earlier order was on consent and represented
the status quo at the time. Ample evidence that father had done
nothing to proceed with the bilingual assessment and that he in
breach of interim orders. Father held to be advancing his own
interests and not those of the child.
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Dwyer v. Dwyer, Ont. Gen. Div.(May
16/97)
The Ontario court refused to change joint custody to sole custody
as requested by the father who had primary residence despite the
mother's drinking problems. Both are good parents but selfish. The
court did not want to regard father for not making the joint custody
work by not consulting sufficiently with the mother.
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ACCESS CASES
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Johnson-Steeves v. Lee, Alta. C.A.(November
7, 1997)
In this decision the Alberta Court of Appeal upholds the trial
decision which held that "its good news to have a dad." This is
the case of the mother who made a deal with a friend to have intercourse
so she could conceive a child with the various genetic qualifications
she wanted but without having to deal with the issues of separation,
etc. The deal also provided for the "father" to pay support. He
wanted to see the child and she wanted to exclude him from the
child's life. She suggested she had a constitutional right to
determine the family model within which to raise a child (one
without a father) and that he was merely a biological father,
not a sociological one. For a case comment on the trial decision
see It's Good News To have A Dad!
In the appeal the court states clearly that, without deciding if
the charter applies in this sort of case, it certainly doesn't create
the right for a custodial parent to decide on a family model which
excludes the other parent from the life of the child, especially
where such a model is inconsistent with the best interests of the
child.
On the more fundamental issue the court said the trial judge found
that it was in the child's best interests that the father have access
to him. In agreeing with the original decision the court said: "In
fact, it is difficult to imagine circumstances in which the Court
would deny a right of access to a biological father of good character,
who is able to make a positive contribution financially and emotionally,
to the child's life, and who wishes to maintain a relationship with
the child. It is even more difficult to imagine why any court would
deprive the child of the benefits of such a relationship."
The court also held that the fact that there was no bond formed
between the father and child was the result of the mother's conduct
and the doctrine of equitable estoppel, if it applies to custody
and access, does not apply because "it can only be employed where
it is consistent with the best interests of the child."
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G.V. v. L.S., Ont. Prov. Div.(Nov.
20/97)
Older and wealthier neighbours baby sat for daughter for 5 years
since she was 8 months old. A loving and very close bond was created.
Relationship was like that of godparents or grandparents. Close
contact maintained even after parents moved and the return trip
to visit was over 3 hours. Child told sitters of sexual abuse
by father. He had to leave home and was criminally charged. Eventually
charges were stayed and then dismissed because daughter wouldn't
testify against him. Feelings towards sitters became bitter and
apart from 2 visits a year earlier the parents cut off access
between them and daughter feeling, despite evidence to the contrary,
that sitters had put child up to making false allegations in order
to set up a claim for custody for themselves. On the visits a
year ago it was obvious that there was a deep bond between daughter
and the sitters. She was ecstatic to see them and cried when she
had to leave.
Sitters sought access. Court held that where strangers seek access
they must show an existing deep and warm relationship and can't
seek access in order to create it. That test met here. The enriching
quality of the relationship between the child and her sitters was
never in doubt. The issue in this case was not whether the years
of the child's involvement with this couple were of benefit to her
but whether an access order would be of benefit to the girl, not
only for now, but on a long-term basis. The question would be how
her life, as a whole, would be affected.
In considering this child's best interest, the court needed to consider
child as part of her natural family. A parent's decision to terminate
access to an outsider might well be arbitrary but, unless there
was proof that it would adversely affect the child, a court should
not override it. The opinion of a natural parent responsible for
nurturing and rearing a child about who should have contact with
the child deserved great weight. It was not the only circumstance
for a court to consider but an important one. In this case, there
was no proof that the parents' decision would adversely affect the
girl and thus no basis upon which this court could disregard their
wishes. On the contrary, to override their wishes here could damage
their relationship with the child and undermine the functioning
of the family unit.
In light parents' deep-rooted mistrust, insecurity and animosity
towards the sitters that would eventually affect her, a resumption
of access would be productive of stress and tension not only between
the child and her parents but also between her and her brother.
Access would poses a threat to their parenting authority. Access
could also produce confusion and dissatisfaction in the girl over
the social and economical shortcomings of her own family when compared
to the lifestyle of the sitters. In the context of all aspects of
this child's life and primarily her place within the family, access
to the sitters would not be in her best interests. The stability
and emotional health of her natural family had to take precedence.
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MOBILITY CASES
Appiah v Appiah ( February 1999) (Ont. C.A.)
The parties were married in 1978 and separated in 1992. At trial
the judge ordered that the mother have custody and that she be allowed
to relocate the children from Ontario to Quebec. The mother wanted
to move the children to Quebec because the children had previously
prospered while living there and because they would have the benefit
of living near members of her family, in a closely knit Quebec community.
The husband appealed.
The Court of Appeal was of the opinion that the trial judge was
appropriately mindful of the factors set out in Gordon v. Goertz and
also took into account the access difficulties that the father would
have. The trial judge's conclusion that it was in the best interests
of the children to move to Quebec was not varied on appeal.
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R.A. v. K.C., Que. Superior Court(May
21/98)
Parents live in Montreal, are separated and have a 6 year old
child who lives with mother. She is unemployed and has boyfriend
who is also unemployed. They feel they could find jobs and make
a fresh start in Calgary and want to move there with child. The
child sees father frequently by agreement. Mother feels she has
the right to find a place to earn a decent living for herself
and her son and father agrees but doesn't feel the child should
be taken away on what he sees as an adventure for the mother.
The court held she couldn't take child if she left Montreal. The
Quebec Civil Code provides:
"Art 33. Every decision concerning a child shall be
taken in light of the child's interests and the respect of his
rights. Consideration is given, in addition to the moral, intellectual,
emotional and material needs of the child, to the child's age,
health, personality and family environment, and to the other aspects
of his situation."
The court followed the SCC's decision in G.B. v. L. B. and held
these 6 principles to apply: Continuity in custodial care; Right
of the custodial parent to fix the child's residence; Degree of
closeness of the child's relationship to the non-custodial parent;
The reasons for the proposed move; The geographic distance and its
impact on access; and The child's opinion. The court also quoted
from Goertz v. Gordon:
"The rights and interests of the parents, except as
they impact on the best interests of the child, are irrelevant.
Material change established, the question is not whether the rights
of the custodial parents can be restricted; the only question
is the best interests of the child."
On the facts of this case the court found it to be at best doubtful
that the child would be better off living with his mother in Calgary
than remaining with his father in Montreal. Also "There is no point
in exchanging an arrangement known to be working for one, which
is unknown and the functioning of which is unpredictable." The Court
saw "no palpable benefit for J. of his mother's move, especially
if it is weighed against the harm of uprooting him from his habitual
milieu and family ties." based upon the jurisprudence including
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Chambers v. Chambers, Ont.Gen. Div.(Oct.
23/97)
Mother wanted to move to new community two and one-half hours
away with child of marriage. and her other child. Since separation
in 1994 father had exercised regular access and on a number of
occasions mother had not shared in the decision-making responsibilities
with father. Father sought custody and pointed to mother's history
of frequent moves which he said lead to instability for the child.
Court held that the child had a good relationship with the mother
and half-sister and that she should continue to have primary residence
with the mother. Even though the mother was going to be moving to
a new city the change of residence to the father would be too disruptive.
The court granted joint custody as a means to ensure sharing of
decision-making responsibilities.
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Walsh v. Walsh, Ont. Gen. Div. (Sep.
23/97)
This case considered mother's wish to move to Ottawa from Oakville,
Ontario, with the 2 children of the marriage. Report by assessor
concluded that the parents had the same quality of relationship
with the children and that they each complimented the other's
parenting and qualities, all to the benefit of the children. The
report held that the move would substantially impair the relationship
between the children and the father and that the mother's proposal
was exacerbating the children's sense of insecurity.
The court restricted her move and held her wish was primarily a
result of her unresolved anger, her own convenience and her own
peace of mind. At the same time the move would frustrate and reduce
the access and the mother could not be relied upon to promote the
relationship between them and their father. Her move was not fully
thought out and her plan for access was impractical.
Court held that the move would diminish the role of the father and
his family in the children's upbringing to their detriment and would
lead to a diminishment of the quality and frequency of access and
have a negative impact on the children.
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Loder v. Holland, Nfld. C.A. (Aug.
15/97)
Court of Appeal reversed trial court's order allowing mother
to move with child to Alberta with her new boy friend and take
a design course there. C.A. held that there were grounds to support
a material change in circumstances since the consent custody order
but trial judge failed in not embarking on a fresh enquiry as
to the best interests of the child. Father argued judge didn't
consider stability of the new relationship, her ability to earn
an income, future arrangements to facilitate continued access
etc. Trial judge should not have discounted the principles set
out in the Goertz v. Gordon case. (Those principles are more fully
discussed in the Case Comment: Mobility
Rights: Can you take the kids when you move?)
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Ligate v. Richardson, Ont. C.A. (June
23/97)
Child's best interests served by allowing mother to move without
the father's consent. Lower court held to have erred by requiring
compelling reasons for the move, by placing undue emphasis on
a residence clause in the separation agreement and by failing
to adequately consider the mother's views
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Pisko v. Pisko, Alta. C.A. (July
22/97)
The Alberta Court of Appeal allowed a 9 year old son to be moved
by his mother to Scotland to join her new husband for a 2 year job
transfer there. The move was "temporary" and wold give the child
a "stay at home" mom.
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MISCELLANEOUS CASES
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Winnipeg Child and Family Services (Northwest
Area) v. G.(D.F.), S.C.C. (Oct. 31/97)
WC&FS had obtained order for compulsory confinement and treatment
of pregnant woman addicted to glue sniffing prosing serious risk
to fetus of unborn child. SCC held mother not shown to be mentally
incompetent and that parens patriae jurisdiction didn't
apply unless incompetency shown until child was born. Existing
law doesn't provide for any duty to an unborn child until that
child is born alive. No basis to extend existing duty or recognize
right to sue mother for bad effects of lifestyle choices. To make
parens patriae jurisdiction apply to unborn children would be
a generic change in the law and could only be done by legislative
action.
CAVEAT and NOTE ABOUT SOURCES
The brief notes below are summaries of recently released decisions as
well as from digests and reports set out more fully in a variety of
sources including the Syrtash Family Law Netletter (one of the QuickLaw
databases found as SFLN), the monthly Ontario Family Law Reporter, the
case summaries found at the end of both The Lawyers Weekly and the Law
Times weekly legal newspapers, caswes posted onn the Internet by the
Supreme Court of Canada and The British Columbia Superior Court and
Court of Appeal and the Ontario Court of Appeal and the public press.
The summaries here are done for general information by the Family Law
Centre and are not the responsibility of any of those sources.
As these are only synopses and summaries they should not be relied upon
as an accurate description of the law contained in the actual judgments
referred to. Always check the actual report before relying upon a
comment set out below.
If you have access to QuickLaw, you will be able to find the excellent
Syrtash Family Law Netletter (SFLN) with John Syrtash's full summary
and comments along with the report of the case itself. That is the most
direct way to get the written decision of any case without obtaining
a copy from the lawyers involved or the court office - unless the case
is a decision of the Supreme Court of Canada, the Ontario Court of Appeal
or the British Columbia Superior Court or Court of Appeal, whose decisions
are available on the Internet. Both The Lawyers Weekly and The Law Times
have fax services which will send you copies of the decision at a charge.
Many of the cases set out below will eventually be reported in the regular
print legal reports and available from your local law library.
The Family Law Centre will not be able to supply copies of full judgements.
To get further information if you are not a lawyer with access to the
sources referred to above, you are advised to retain one to do the research
you want or to follow up on anything you find of interest below.
Note: The designation means that the summary
is new and is the most recently added case or group of cases to the
section, not necessarily that the case is more recent than the others
noted below it.
If you know of any case you think should be included to the listing above,
please send me an e-mail
with the information. Thanks, Joel Miller.
