Garrow v. Woycheshen: Custody & Access

The parties in this case began cohabiting in 2006, and had one child together shortly thereafter. The parties had a very volatile relationship, and thus, permanently separated in August 2007. Since the parties’ separation, the child resided primarily with the mother. Pursuant to an interim access order, the father was granted overnight access every second weekend and mid-week access on alternate weeks.

The mother in her Application requested sole custody of the child and child support in the table amount under the Child Support Guidelines. The father, on the other hand, sought joint shared custody.

The evidence presented in this case included the testimony of both parties. It was evident to the judge based on such evidence that the parties had a very unstable and hostile relationship, which Justice McKay felt could be attributed primarily to the mother’s negative behaviours and actions. According to the Court, the mother often marginalised the importance of the father’s involvement in the child’s life. The Court further commented on the mother’s hostility towards the father. Justice McKay felt that the mother in her testimony, “took almost every opportunity to criticize [the father] on a personal level, describing him as a man “who’s on antidepressants, pain medication, smokes marijuana daily, takes his medication with alcohol”. The Court further noted that the mother did not simply criticize the father’s parenting skills, but also painted a very negative picture of him as a person as well. All of this testimony was brought to the attention of the Court without any evidence to support or substantiate the allegations.

The father’s evidence presented in this case focused on the positive role that he could play in the child’s life if he was granted more access to the child. The father, in his testimony, also refrained from making criticisms of the mother as a person. In reviewing all of the evidence presented in the case as a whole, the Court came to a conclusion regarding credibility, and decided that “where the evidence of [the mother] conflict[ed] with the evidence of [the father], [the court] accepted the evidence of [the father].” The Court concluded that the father was a motivated parent who was capable of caring for his daughter, and who was deeply committed to improving his parenting skills and strengthening his relationship with his daughter. The Court was of the view that both parents were good parents who were committed to the child. However, the Court remarked on the difficulty in granting the mother sole custody over the child, given her hostility toward the father and her unwillingness to ensure that the father would remain involved in the child’s life. According to the Court, although the mother may have recognized that the father should have some involvement in their daughter’s life, “her actions [clearly revealed] that it [was] her view that his involvement should be on her terms and under her control”. An award of sole custody to the mother, according to the court, would raise the real risk of minimizing or eliminating the father’s involvement with the child. The mother was essentially “blind” to the benefits the child would receive in having as much contact as possible with both her parents. According to the Court, other Courts in the past “have recognized that in such situations, parallel parenting may be the appropriate regime, in spite of the conflict between the parents”.

The Court concluded that the best interests of the child required some assurance that the father would remain involved in her life. As a result, the Court Ordered that a joint shared custodial arrangement be had. The child would reside with one parent for one week, and the other parent for the following week, with a Monday overnight visit with the parent who does not have care during that week.

In other words, as pointed out by the Ontario Court of Appeal in Ursic v. Ursic, “one cannot be the instigator of high conflict and then argue in favour of sole custody”.

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