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Old 01-24-2006, 10:54 AM
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It's Good News To Have a Dad - continued

The interesting part of the trial judgment, which was supported by the Court of Appeal, deals with the role of fathers in the lives of their children - especially where the mother wants to eliminate or reduce any such involvement.

On this aspect the trial judge accepted the evidence of Dr. Kneier, an expert in child psychology. Dr. Kneier had never met either party nor Nigel and his evidence was on the general question of access. He was aware of the fact that Nigel, who was now four and one half years old, had not seen Dr. Lee since he was 10 months. When responding to the concern raised by Ms. Johnson-Steeves that it would cause psychological trauma to Nigel to now meet his father, Dr. Kneier said fathers are good for children and having one is "good news not bad news".

The part of the trial reasons referring to Dr. Kneier's evidence is as follows:

It is Dr. Kneier's view that although children can, and often do, achieve a healthy development without a father, provided they have a good relationship with their mother an reasonable socioeconomic circumstances, it is better for children to have a relationship with their father than not to have one.[emphasis added] He says even a limited relationship is better than none at all. The only time no relationship is better is when there is a "bad or damaging or inadequate father".

Dr. Kneier opined that a good relationship by a boy with his father helps to develop intelligence and drive, improves academic achievement and helps develop independence, empathy and social adequacy with peers. His view of the timing of any reintroduction is :"the sooner the better". He sees not benefit from delay. Where conflict exists, as appears to be the case here, Dr. Kneier believes that there are mechanisms available to address those conflicts as long as the parents focus on the child.

In a nutshell, [Madam Justice Kenny] took from Dr. Kneier's evidence that it is children's best interests to have the influence of a "good or adequate" father than not to have that relationship at all. Although a child can develop normally in a one parent household, the do better with the influence of both parents. Dr. Kneier says fathers are important to young boys, they yearn for a father and a child may wonder why he has no father when other people do. A child would be happy, curios, [sic] and interested to know the man who was their dad. As he said, "It's good news to have a dad".

The trial court held that although Nigel had not seen his father for over 3 1/2 years and does not know Dr. Lee, "that alone is no reason to refuse access." It also noted that the lapse of time was created by Ms. Johnson-Steeves' refusal to allow access.

The judge was asked to redefine the meaning of "family" and to accept that the idea that a family consists of a mother, father and children is antiquated and not reflective of current realities. After all, according to Ms Johnson-Steeves, it was her choice to create the family unit without a father and she did so. She said she intended to tell Nigel that Dr. Lee is a special family friend who contributed the genetic material to create him. To this Madam Justice Kenny said:

Families change, however, most do by circumstance, not choice. Those of us who work in the "legal arena" see this more often than most and often wonder if there are any happy families left, but there are hundreds of thousands of content families in all shapes and forms, with and without fathers, mothers, or both. I am of the view, however, that society and biology have not yet reached the point where we have dispensed with fathers or mother completely. They form an integral part of each child's life whether or not they reside with their children.

Nigel has a father and Ms. Johnson-Steeves' desire that it not be so, does not make it so. Ms. Johnson-Steeves' interest in arranging her world as she would like to see it does not mean that it is also in Nigel's best interest. Nigel knows or will come to know that he has a father and mother as all children do. It is Nigel's right of access to his father and not his mother's right to bargain that away. At this stage, it does not matter to Nigel whether he was conceived by artificial insemination, during a one night stand, or during a long term relationship or marriage. What he does know is that he has a father and a mother. The fact that his father does not live with Nigel does not make Dr. Lee any less a father. [emphasis added]

And further:

I find that it is in Nigel's best interest for Dr. Lee to have access to him. This in no way detracts from the mother's primary role in Nigel's life or the roles played by so many other members of the extended family. What it does do is recognize that a good and decent parent, and without hesitation I so categorize Dr. Lee, can enhance this child's life. Indeed, to the extent that only such a father could do. [emphasis added]

The court left it to the parties and their counsel to consult with someone like Dr. Kneier and assist the parties in setting up the appropriate arguments to structure the reintroduction of Dr. Lee into Nigel's life in a manner to maximize the benefit to the child, and to ensure that the differences between the parents do not interfere with the best interests of Nigel in creating a relationship with his father. If they can't come up with a plan, then the court would do so for them.

COURT OF APPEAL DECISION

When the matter came before the Alberta Court of Appeal it was handled pretty swiftly with a clear endorsement of the approach taken by the trial judge and her reasons for decision.

The Court of Appeal held that, even if the Canadian Charter of Rights and Freedoms applied, which it did not decide, it doesn't create "a right for the custodial parent to decide on a family model which excludes the other parent from the life for their child, especially where such a model is inconsistent with the best interests of the child, as found by the trial judge in this case. If s. 7 protects the rights of parents, it protects the rights of both parents."

So far as the agreement that the father and child had not developed any emotional attachment was concerned the court said this was due to the mother's conduct and she could not rely on the doctrine of equitable estoppel. "In any event, if the doctrine of equitable estoppel applies in child custody and access disputes, it cannot succeed here as it can only be employed where it is consistent with the best interests of the child. The Trial judge reached the opposite conclusion."

On the fundamental issue involved in this matter the court stated clearly what most of us figured the law to be:

"The Trial judge's finding is supported by the evidence and we agree with it. 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."

Conclusion

In a way, nothing about the decision in this case is startling to family law lawyers. The court kept as the key objective the issue of what was in the best interests of the child and found that one parent can't take steps which deny the other parent basic rights of access with a child. The court resisted the invitation to find that modern society had reached a stage where a mother can define what a child's family is to consist of just to accommodate that mother's view of what she wants.

But what makes this case stand out, apart from the unusual fact situation, is the clear statement that a father's presence in a child's life is good, unless he is "bad or damaging or inadequate", and that it is the child's right to access that we need to look at.

This case makes "good news" for fathers who want to have more than a passing involvement in their child's life and sets out the principle with clarity and force that unless there is some strong reason to the contrary, the courts will support this kind of father/child contact.