Dearden v. Dearden 2009 Ont. C.J. “Conduct of the Parties”

The judge in this case, Justice Pugsley, demonstrated his commitment to uphold the best interests of the children over all other concerns.

The parties married in 1996 and separated in 2008. They had three children born in 1997, 1998 and 2002. After separation the parties continued to reside together in the same residence until the fall of 2008 when the mother was arrested and charged with assaulting the father. She was released on terms that excluded her from the matrimonial home.

The charges against the mother were dropped on January 8, 2009 and the mother moved back into the matrimonial home. On January 20, 2009, there was a further altercation between the parties and the mother removed the children from the matrimonial home and moved into a local women’s shelter.

The mother brought a motion on January 22, 2009 seeking limited ex parte relief from the court. The motion returned in February, 2009. Both parties sought sole custody of the children on a temporary basis. Each party detailed conflicting allegations of improper conduct by the other party. Since these affidavits were untested by cross-examination, Justice Pugsley put very little weight on these allegations. The judge asserted that the court’s duty was to determine in the very short term where the children should reside in their best interests. He noted that it was a good thing that the parties were living separate from each other since the children would no longer have to “live on tether hooks waiting for the next blow-up between their parents…”

The father relied on material which attempted to denigrate the mother’s character in order to enhance his request for custody. Justice Pugsley maintained that the conduct of the parties is irrelevant to the issue of custody and access so long as the conduct does not affect the ability of the parent to care for the children.

The judge noted that childcare had been shared between the parties in the past and neither party suggested now that the other would allow the children to come to harm. As such, the judge made the following temporary order on a “without prejudice” basis: the parties would share custody of the children; the children would reside during the week in the former matrimonial home with the father and reside each weekend with the mother.

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