Clement v. Clement, 2010 ONSC 1113, 2010 CarswellOnt 935

The parties in this case were married in 1987 and separated in 2009. There were two children of the marriage, Brigitte (aged 16) and Martin (aged 12), the temporary custody of whom forms the basis of this dispute. It was adduced in court that at the time of separation there was a shared custody arrangement agreed to whereby the children would reside with each parent on a week-by-week basis. However, with the passage of time what occurred is that Martin remained in the matrimonial home with the Respondent-husband and Brigitte continued to alternate between residences and spent time with both parents. The parties, unfortunately, were not amicable and allegations were hurled at one another regarding improperly influencing the children. The parties did attempt to resolve the issue of custody by bringing an initial motion for temporary custody, however, that motion did not proceed and consequently the arrangement was never concluded.

Since the Applicant-wife was determined to fundamentally alter the de facto custody arrangement that was in place she began behaving in such a manner that was condemned by the court and which ultimately resulted in the court ruling in her Respondent’s favor.

She contacted the Children’s Aid Society (hereinafter referred to as the CAS) and arranged for a meeting with a CAS Social Worker as well as contacted the local police making various false allegations against her Respondent. Moreover, when the Respondent left the couple’s motor, boat, and trailer in the Applicant’s parking spot, so that she could sell the items for a profit, she called the police. This resulted in the arrest and detention of the Respondent who was charged with mischief.

While the Respondent was in court awaiting his bail hearing the Applicant took it upon herself to change the custody arrangements. She had Martin delivered to her where she kept him out of school for a brief period of time and then enrolled him in a school nearer to her residence. Justice Cornell from the Ontario Superior Court did not look favorably on the applicant’s actions. He stated that her behavior ran contrary to s. 20(4) of the Children’s Law Reform Act which provides that:

Where the parents of a child live separate and apart and the child lives with one of them with a consent, implied consent or acquiescence of the other of them, the right of the other to exercise the entitlement to custody and the incidence of custody, but not the entitlement to access, is suspended until a separation agreement or court order provides otherwise.

He emphasized that the proper procedure to follow to rectify her dissatisfaction with the custody arrangements would have been to apply for a temporary order for custody. Her unilateral actions of changing Martin’s school and his residence were unacceptable and as a result would not be tolerated by the court.

Justice Cornell awarded temporary custody to the Respondent and determined that pursuant to s.24(1) of the Children’s Law Reform Act this would be in the children’s best interests as Martin would be able to return to the matrimonial home and re-enroll in his previous school. Once again he would be reunited with all his friends and the surroundings with which he was most familiar. He also granted reasonable access to the Applicant and stated that each party was to abide by the “Rules for Separated Parents” which were attached to the reasons.

Justice Cornell’s main motivation in coming to this decision was to ensure that the Applicant was not rewarded for her outrageous conduct. Rather, she should have been patient, followed proper procedure, brought a motion for custody and presented the court with the best possible evidence. Had she behaved accordingly perhaps the outcome would have been different.