Factors Considered in an Award for Custody

Walton v. Sommerville, 2010 CarswellOnt 3363, 2010 ONSC 2765

Background 

This case is a small portion of a much larger Court action in this matter. This judgment of Justice D.L. Corbett of the Ontario Superior Court of Justice was based on an urgent Motion brought by the father in this matter. The parties were scheduled for a Trial to commence in June 2010, and this was the second urgent Motion brought in the matter of one month just prior to the Trial.

The first Motion was brought after a confrontation took place between the father and the mother’s new partner during an access exchange. After the confrontation, the father took the boys with him instead of handing them over to the mother’s new partner and then sought to change the children’s primary residence by way of an urgent Motion. Justice Corbett also heard this first Motion and Ordered that the children be returned to their mother immediately and refused to change their primary residence. His reasons for doing so were based on the fact that “these boys need stability in their lives” and issues of changing the primary residence of the children would be best dealt with at Trial where a Judge would be able to make this determination based on the evidence presented to the Court.

Shorty after the children were returned to the mother, the youngest child was pulled out of public school and began a course of home schooling because the mother believed that he was being bullied at school and the authorities that were involved, including the school principal, the police, and even the local MPP, did not do anything to help the situation. The mother went so far as to call into a local radio station to speak about the problems that her son was having with being bullied and the fact that no one had done anything about it. Unfortunately, the mother failed to inform the father of the fact that the boy was having problems with bullying in school, or the fact that she had removed him from school and had begun home schooling him. The father only found out about this because his mother, the child’s grandmother, lived in the same town as the mother and she heard the radio interview and informed the father of this. When the father found out, he brought this Motion on an urgent basis for the children to live primarily with him, or in the alternative for the child to be re-enrolled in his public school.

Analysis

Justice Corbett refused to become involved in this matter, once again, and intervene on the Eve of Trial. In his reasons, he explained that the mother’s actions in taking the child out of his public school, without informing the father of this or of the fact that child was having problems with being bullied was completely wrong. The parents have joint custody of the children and this responsibility includes the decision making regarding the child’s educational programs. The mother should not have unilaterally made this decision.

Similar to the decision in the first Motion discussed above, Justice Corbett again decided that any decision made by him to change the children’s residence or daily routines would be detrimental leading up to the Trial of this matter. The Trial Judge is better suited to making such decisions and would be able to make an Order regarding the custody and primary residence of the children in a way that would have the least impact on them and allow them to make any transitions required smoothly.

There was an additional issue regarding the fact that the mother was attempting to suspend the boys’ telephone privileges such that they were unable to speak with their father. While Justice Corbett acknowledges that, as a parent, the mother had the discretion to do so for disciplinary purposes, this cannot extend to the boys having telephone contact with their father. This decision reminds us that as the parent whom the children reside with primarily, part of the mother’s task is to encourage and facilitate the children’s relationship with their father. By placing the children in the middle of the parental conflict and not allowing them to speak with their father, which can only be assumed to have been done as a means to punish the father in someway, the children are the one’s who ultimately lose.

The underlying theme of this decision was quite clear. When there is such animosity between the parents that leads to a high conflict nature of the case, the children are the ones who suffer the most. In both this Motion and the previous one, Justice Corbett attempted to impress upon the parties the fact that their children’s distress and behaviour were directly related to the level of conflict exhibited between the parties. This decision is important as it again emphasizes that children should not be placed at the centre of their parents’ conflict. In addition, it also reminds us of parents’ responsibilities when there is joint custody involved and when one is the primary residence parent. Justice Corbett makes it clear that parents should be taking these responsibilities seriously.

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