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Old 04-05-2006, 02:10 AM
logicalvelocity logicalvelocity is offline
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51 With respect, in his final analysis, the trial judge appears to almost completely discount the factors set out subparagraphs 24(2)(a)(i)(ii)(iii), 24(2)(c) and 24(2)(f) in particular except for brief reference.

52 There is no law or precedent, of which I have been made aware, that provides that a Court may give more weight to one factor enunciated in s. 24 of the CLRA than the others. To change custody based on the four factors alone as enunciated by the trial judge in his Judgment and give less than equal weight to the love, affection and emotional ties the child has for and to his mother, step-father and siblings amounts to an error in law.

53 To quote Laskin JA, in Barnes v. Parks, [2001] O.J. No. 643 (Ont. C.A. [In Chambers]) at para. 10, "In resolving custody disputes, the Courts have repeatedly emphasized the critical importance of bonding, attachment and stability in a young child's life."

54 This is not the first case before the Court in which the backdrop of the factual circumstances is a power struggle between the parents. It seems, on the evidence before the trial Judge, that there is little or no prospect that these parties will ever be genuinely co-operative with one another.

55 The trial judge's criticism of Ms. Stephen's conduct is well-founded.

56 On the other hand, in the factual circumstances of this case, to remove the child completely from the only home environment he has ever known and leave the nature and extent of all contact with the child's mother in the discretion of Dr. Cox is to override the mandate outlined in the legislation.

57 A determination of the best interests of a child is not completely defined by whether or not conflict between the parents will continue, by the failure of one parent to adequately include the other in the child's life, by the ability of one parent to inspire the child or by the benefit of one parent continuing to make decisions for the child.

58 A determination of a child's best interests starts with the child, the first of which is a consideration of the love, affection and emotional ties between father and child and mother and child. In this case, existence of the love, affection and emotional ties between Nathan and his mother have been given less weight than the factors relied upon by the Judge and that is an error in law.

59 The decision of the Court must be responsive to the issues. In this case, the Court must deal with the animosity and conflict between the parents and the mother's conduct. The Court must deal with adult behaviour but in so doing be ever mindful of the effect of the Court's response to the child's emotional and psychological health and stability.

60 In his Judgment, the trial Judge's identification as to the nature of Ms. Stephen's conduct was founded on the evidence. But the Court's response to that conduct has completely ignored the effect, if any, (a) the removal of this child from the only home he has ever known; (b) the placement of the child into the care of a nanny when he has been primarily cared for by his mother his whole life; and (c) termination of daily, intimate contact with his siblings, would have on the child.

61 There is no doubt that Ms. Stephen has allowed her emotions and conduct toward Dr. Cox to affect Nathan and his relationship with his father. It must be recognized, however, that notwithstanding the difficulties and in the face of adversity, a relationship has been spawned. The Court must support and create an environment such that continued growth is ensured while at the same time the child's emotional and psychological health remain secure.

62 Ms. Stephen has had a seriously mistaken view that custody means control. Her perception must be changed, if not voluntarily. Ms. Stephen must be obliged to realize that Nathan's father has and always will play a vital and significant role in her son's life as does she. The Court's duty is to ensure that in the circumstances of this case, Nathan benefits from the ongoing and deepening development of a loving and trusting relationship with Ms. Stephen and her husband (who also plays a significant role in Nathan's life) and Dr. Cox.

63 Further and, in any event, I find that the trial judge erred in law in recommending terms of access that could not be implemented by Dr. Cox if he deemed them "deleterious" to Nathan. Whether or not access or any incident of access is "deleterious" to a child is not the test. To delegate responsibility of defining access on that basis is an error in law. The terms of access are to be based on Nathan's best interests alone.

Conclusion

64 In the circumstances, the Appeal is granted.

65 Joint custody requires a high degree of co-operation between the parents, as recognized by the trial judge, and is usually awarded only when the parents have demonstrated the ability to co-operate.

66

"The evolution of the case-law on joint custody orders in Ontario, starting with the foundation case of Baker and Baker (1979) 23 O.R. (2d) 391 (C.A.) decided more than 20 years ago by our Court of Appeal is nicely summarized by Bellamy J. in Dagg v. Pereira (2000) 12 R.F.L. (5th) 325 (S.C.J.) at paras. 39 - 45. She identifies Moll v. Moll [1997] O.J. No. 4060 (S.C.J.) as a significant turning point. In [Moll], Kruzick J. reviewed a substantial number of cases from across Canada to conclude that "joint custody" can be an appropriate disposition even in cases where parents are openly hostile and unco-operative if crafted as "parallel parenting" instead of "co-operative parenting". Consequently, "parallel parenting" orders have become a form of joint custody, a sub-category if you will, which does not depend upon co-operative working relationships or even good communication between the parents. The concept (consistent with subsection 20(1) of the Children's Law Reform Act) is that the parents have equal status but exercise the rights and responsibilities associated with "custody" independent of one another. Section 20(7) of the Children's Law Reform Act provides clear authority for the court to deal separately and specifically with "incidents of custody". The form of a "parallel parenting" order addresses specific incidents of custody beyond a mere residential schedule for where children will reside on a day-to-day basis. For example, in South v. Tichelaar [2001] O.J. No. 2823 (S.C.J.), the court granted "joint custody" but then went on to give the father sole decision-making authority over the children's sporting activities and the mother sole decision-making authority over the dental health of the children"

(M. (T.J.) (supra) at para. 20).

67 "Joint custody" means a sharing of parental rights and obligations regardless of the marital status of the parents. Parents who live separately do not forfeit those rights or responsibilities. The move away from a joint custodial regime is required when it is the best interest of the child to take that step.

68 In this case, it is in the best interests of Nathan, taking into account all of the factors outlined in s. 24(2) and giving each factor equal weight, that Nathan's mother's struggle for control and effort to minimize the presence or significance of Dr. Cox in her son's life be removed from the equation. On the evidence, once these factors are addressed, the negative effect on the child described by Ms. Stephen in her testimony and found by the trial judge will be minimized if not eradicated.

69 Ms. Stephen appears to be have been in a state of denial as to her responsibility for the concerns she described. The concept of "parallel parenting" is intended to remove the power struggle between the parents for 'control' over the child. In my view, this is an appropriate case for a joint custody order using the "parallel parenting" model.



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Last edited by logicalvelocity; 04-05-2006 at 02:14 AM.