Lerners’ Weekly Family Caselaw Review #2
Every week, the Courts in Ontario and across Canada deliver judicial decisions that shape the area and practise of family law. The Lerners Family Law lawyers present one of the most interesting cases from the week of September 21:
When seven-year-old ADB’s mother tragically died of a drug overdose in mid-September, it set in motion a series of revelations for ADB’s father with whom ADB had only weekend access. : A successful months-long campaign by ADB’s mother and her family had kept the father in the dark about ADB’s living arrangement and the establishment of a “secret status quo”. Making an Order for the temporary care and custody of ADB, Justice Pazaratz reaffirmed that neither a “biological connection” nor being the child’s “psychological parent” are determinative.
Upon learning of the mother’s death on Facebook, the father contacted her family and was informed by ADB’s maternal aunt, CD, that she would be seeking custody of ABD who she was “keeping”. In response to the father’s emergency motion, CD revealed that ADB had been living with her nearly a year (and full-time since the mother relapsed in March).
The father had been disturbed by things said to him by ADB: she had told him about a time when she could not wake her mother and the police were called. She had told him that she had been staying at her aunt’s house all summer (and that she hated it there). The father had instructed his lawyer to write to counsel for the mother raising his concerns but a response had not yet been received.
ADB’s access had been the subject of multiple motions and cross-motions between her high-conflict parents. In the time since ADB had apparently begun living with her aunt, the parties had been in Court twice, most recently in July. On that occasion, the mother “categorically denied” allegations by the father that she had substance abuse issues. Critically, on neither occasion was ADB’s “secret” living arrangement disclosed to either the father or the Court. Justice Pazaratz noted that despite the mother having made allegations against the father ultimately causing the CAS to investigate (an investigation which ended with their recommending unsupervised access with ADB resume) “it turns out that [there was] a lot more reason to worry about the mother’s care of the child. Except the mother and her family conspired to keep it a secret from the father and from the Court.”
As in every application for temporary custody or access, the Court’s only consideration is the best interests of the child: “Parental conduct, no matter how meritorious or how reprehensible does not enter into the analysis unless it relates to the ability of the parent to meet the needs of the child.” So, how reprehensible must conduct be to factor into the Court’s determination? Aunt CD’s conduct apparently fit the bill: There “can be no justification for all the secrecy and deception”, Justice Pazaratz said. The child had needed her father “more at precisely the time when the mother was trying to keep the father away, and CD was (at the very least) acquiescing to the mother’s destructive and irresponsible decisions.”
While the Court is usually reluctant to remove a child from the status quo, Justice Pazaratz did so in this case finding that “CD [had] demonstrated a consistent disregard for the child’s emotional needs” prioritizing protecting her sister, CBB, over “the physical and emotional needs of a young, vulnerable child.” And while “blood ties are not in themselves determinative,” Justice Pazaratz concluded that “significantly expanded time with the father [was] long overdue.” ADB was placed in the care and custody of her father. Justice Pazaratz was satisfied that the father had “demonstrated that he has sufficient insight and compassion to ease the child through the [significant] transition” occasioned by His Honour’s Order.
This was an emergency motion dealing only with ADB’s temporary care and custody. ADB was to have regular weekend access with CD. With this temporary Order in place, the parties may still proceed to a full trial for a final Order respecting ADB.
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