Behrens v. Stoodley

Behrens v. Stoodley Collection Decisions of the Court of Appeal Date 1999-12-17 Docket numbers C30620 Judges Catzman, Marvin Adrian; Borins, Stephen; Sharpe, Robert J. Subject Family Decision Content DATE: 19991217 DOCKET: C30620 COURT OF APPEAL FOR ONTARIO CATZMAN, BORINS AND SHARPE JJ.A. BETWEEN: ) ) DOUGLAS JAMES BEHRENS ) Andreus R. Snelius ) for the appellant ) Applicant ) (Respondent in the Appeal) ) ) and ) ) CHERIE EVELYN MARIE STOODLEY ) Michael Walz ) for the respondent ) Respondent ) (Appellant in the Appeal) ) ) Heard: November 29 and 30, 1999 On appeal from the judgment of Pardu J. dated September 1, 1998. BORINS J.A.: (Dissenting) [1] This is an appeal by Cherie Stoodley from the judgment of Pardu J., dated September 1, 1998, awarding custody of her daughter, C.J., to the child’s father, Douglas Behrens, with generous access to the appellant. [2] The trial judge was of the opinion that it was in the best interest of the child that she be in the custody of her father. In reaching this conclusion, she addressed the guidelines in s. 24 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 for determining the best interest of a child. As well, she rejected the recommendation of Jean-Marc Bisson that the appellant resume sole custody of C.J. Pursuant to the order of Caputo J. made under s. 112 of the Courts of Justice Act, R.S.O. 1990, c. C.43, Mr. Bisson conducted an investigation of the circumstances relating to the best interest of C.J., and in two reports which total 32 pages presented his recommendations to the trial judge. As well, he testified at the trial. [3] To place the trial judge’s conclusions in context, I will summarize the relevant facts which emerge from the evidence presented at trial and an agreed statement of facts. [4] About four months after C.J.’s birth on February 26, 1990, the appellant and the respondent, who were married, separated. They signed a separation agreement on May 15, 1992, in which the appellant obtained the sole care, custody and control of her daughter, with no right of access to the respondent. The appellant and the respondent were divorced on May 20, 1993. The respondent lives in a common law relationship with Carrie Shelbourne. They have two young children. The appellant married Brian Stoodley in June, 1996. [5] Subsequent to the separation, the respondent did not see his daughter until February, 1994. Because the appellant believed that it would be in C.J.’s best interests to develop a healthy relationship with her father, she arranged for the respondent to visit with C.J. This proved to be successful, and over the following 2-l/2 years C.J. spent lengthy vacation periods with the respondent and his family. [6] During C.J.’s summer visit with the respondent in 1966, she expressed the wish to spend the school year of 1996-1997 living with her father and attending school in the area in which he lives. Because it was her goal that the child be able to enjoy a healthy relationship with both of her parents, the appellant, with some reluctance, agreed. However, it was understood by the appellant, the respondent and C.J., that when the school year ended in June, 1997, C.J. would resume living with her mother. [7] As the result of an acrimonious telephone conversation in March, 1997, between the appellant and Carrie Shelbourne, in which it appears the appellant indicated she wanted C.J. to be returned to her, the respondent consulted a lawyer and, on April 3, 1997, commenced proceedings to obtain custody of C.J. On May 16, 1997, the respondent was awarded interim custody of C.J. The trial which lasted six days, commenced on August 10, 1998. At this time, C.J. had been residing with the respondent for about 26 months, prior to which she had lived with her mother since birth in circumstances in which her mother was her primary caregiver. Indeed, throughout the first four years of C.J.’s life, her mother was her exclusive caregiver. [8] In his report of October 14, 1997, Mr. Bisson, to whom C.J. had stated she wished to live with her mother, recommended that the respondent resume sole custody of C.J. Although he reported that both parents love C.J. and can provide an appropriate home, it is apparent from his report that his view of C.J.’s custody was that she was to resume living with her mother at the end of the 1996-1997 school year. He felt that it had probably been a mistake for the parents to believe that a six-year old child “was emotionally ready to distance herself from her mother for an entire school year”. He concluded: C.J. has expressed a deep desire to be with her mother. Cherie is willing and available to resume the child’s care, has appropriate accommodation and the support of her spouse, and so it would be in C.J.’s best interest to return to her mother’s care at the earliest opportunity. [9] By the time Mr. Bisson prepared his second report on July 21, 1998, for the purpose of updating his earlier report, circumstances had changed somewhat. A year had passed and C.J. had now lived for over two years with her father. She expressed the wish to continue living with her father. Mr. Bisson speculated that she may have expressed this wish because the delay of a year in bringing the case to trial may have caused her to conclude “that her initial wish to return to her mother’s home was just not going to happen and therefore [she] settled on her father’s home”. As well, he thought that C.J. might have been influenced by the respondent and his partner “to think that she should be living with her father and Carrie”. [10] Mr. Bisson concluded his second report as follows: It should be noted that the recommendations made in my initial report were not based solely on the child’s clearly stated wishes, although this was a factor to be considered. Several other points of view were outlined that would give merit to the child being returned to her mother. C.J.’s bond with her mother is stronger than the relationship she shares with her father. This is probably due to the fact that C.J. was reared by her mother from birth until age 6. This bond between C.J. and her mother is still evident today. Although this father can provide an adequate home for his daughter, it must be recognized that due to his commitment to work, the child would largely be reared by his common law partner. Although a good relationship exists between Carrie and C.J., it does not override the bond that exists between C.J. and her mother. It is apparent that C.J. needs a lot of adult attention. This can be more easily provided in the mother’s home since she does not have to divide her attention between two other children like Carrie must do. Because C.J. has lived in her father’s home for the past two years, it is natural that she would have developed relationships with her siblings and neighbourhood friends. However, after considering all the factors, especially C.J.'s long-standing relationship with her mother, I believe that this child should still be returned to her mother immediately and that the recommendations as outlined in my initial report be implemented. [11] It is regrettable that neither party has provided the court with any information about C.J.’s well-being during the 15 months that have passed since the trial. This leaves the court with no alternative but to assess what is in her best interest on the basis of the circumstances which were presented to the trial judge. [12] As I understand her reasons, the trial judge was not prepared to attach any significant weight to C.J.’s expressed wishes to the assessor in 1997 to return to her mother. In reaching this conclusion, Pardu J. was influenced by what she believed was C.J.’s “preparation” by a psychotherapist for C.J.’s interview by the assessor and by a telephone conversation between C.J. and her mother, which the respondent had secretly tape recorded, in which the mother directed “venom” toward the respondent and appeared to exert pressure on C.J. to return to her home. [13] As I mentioned earlier, Pardu J. rejected the recommendations contained in Mr. Bisson’s two reports. As well, she was not prepared to attach much weight to C.J.’s wishes, as expressed to Mr. Bisson, due to “the variability of the child’s wishes”. These appear to be the trial judge’s reasons for doing so: The commitment demonstrated by the mother in providing for her daughter during the first six years of the child’s life is substantial, and particularly impressive in light of the fact that she had no assistance from the child’s father from separation to the child’s fourth birthday. The father’s last 26 months with the child must also be weighed in the balance. The child has a close emotional bond with the mother, but also with her father, Carrie Shelbourne, her siblings and Tina Behrens, the paternal grandmother. This child has endured multiple separations from individuals to whom she has been close, firstly, the move from Sudbury, and close proximity to the maternal grandmother; secondly, the ending of the close relationship with Steven Wicks and his parents and, finally the separation from her mother. After more than two years, the child has adjusted to living with her father’s family, and leaving that home would entail a wrenching separation from family members with whom she has a close relationship. A change in custody would require adjustment to a new community and a new school, and new caregivers which would be required when the Respondent and her husband were working. The child is secure and happy in her father’s home. The activities which the child would share with her mother would undoubtedly be different from those in which the father has an interest, but I am not prepared to conclude that doing crafts and shopping are more in the child’s best interests than hockey, soccer and baseball. [14] Although Pardu J. was satisfied that either parent was capable of providing C.J. with guidance, education, the necessaries of life and seeing to her special needs, “weighing all in the balance”, she concluded “that it is in the child’s best interests to remain with her father with generous access to her mother”. [15] Counsel for the appellant submitted that the trial judge made three fundamental errors in principle: (1) She refused to accept Mr. Bisson’s conclusions concerning the child’s wishes and his recommendation regarding custody based on those wishes, and, therefore, attached insufficient weight to his recommendation that there be no change in C.J.’s custody. (2) She attached undue weight to the tape- recorded telephone conversation between C.J. and her mother. (3) She attached undue weight to the status quo. [16] I am mindful of the standard of appellate review of a custody decision. In Haider v. Malach (1999), 48 R.F.L. (4th) 314 (Sask. C.A.), that standard was considered by Jackson J.A. on behalf of the Saskatchewan Court of Appeal. After noting that in Adams v. McLeod, [1978] 2 S.C.R. 621 the Supreme Court of Canada had approved the standard of appellate review stated by the House of Lords in McKee v. McKee, [1951] A.C. 352 to the effect that a trial judge’s decision as to custody should not be overruled unless he or she has acted on some wrong principle or disregarded material evidence, she continued at pp. 318-19: Today, this standard is stated in terms of an error in principle, a failure to consider all relevant factors, a consideration of an irrelevant factor or a lack of factual support for the judgment (see, for example, C. (G.C.) v. New Brunswick (Minister of Health & Community Services), [1988] 1 S.C.R. 1073 (S.C.C.), at 1077), but the standard of appellate review is essentially the same as that stated in McKee: error in principle or clear factual error in a matter of significance. The most recent confirmation of the standard of review comes from Gonthier J., writing for the Court, in Nouveau-Brunswick (Ministre de la santé & des services communautaires) c. L. (M.) (1998), 165 D.L.R. (4th) 58 (S.C.C.) where he cautions appellate courts to be circumspect in family law matters, especially where the trial judgment is detailed and meticulous (see para. 36 of the unreported judgment) which the judgment under under appeal is. [17] Counsel for the respondent argued that the standard of appellate review precludes intervention in this appeal. He referred to a number of custody cases in which, exercising this standard, appellate courts have declined to intervene. However, there are cases in which this court, and other courts of appeal, like the court in Haider, have intervened. I adopt these comments of Jackson J.A. at p. 319: “We cannot say that custody cases need never be appealed. The standard is a strict one, but by its very terms it admits of intervention in the appropriate case.” In my view, I am satisfied that this is such a case. [18] Although counsel for the appellant chose to characterize the grounds for appeal as I have indicated, the real issue which the appellant raised is the failure of Pardu J. to consider whether it was in C.J.’s best interest to change her custodial parent, particularly in regard to the circumstances in which C.J. came to live with the respondent and the absence of any suggestion by the respondent, or Mr. Bisson, that the appellant is an unfit parent. Stated somewhat differently, the appellant’s position is that the trial judge failed to give appropriate weight to maintaining the stability of the relationship which C.J. has with the appellant, who has been C.J.’s primary caregiver since her birth. The onus was on the respondent, who sought to interfere with the stable relationship which existed between C.J. and her mother since C.J.’s birth, to establish that a change in custody could only be made if it were in C.J.’s best interest. It is worth emphasizing that in presenting his case the respondent advanced no substantial reasons why he should be granted custody of C.J. He did not rest his case on the ground that the appellant was an unfit parent, but rather that throughout the time C.J. resided with him he had demonstrated his fitness as a parent. [19] In Haider, a child had lived with her parents for more than three years prior to their separation, and for more than three years thereafter had lived exclusively with her mother until the trial which resulted in her father’s successful application for custody. In reversing the trial judge, Jackson J.A. concluded that the trial judge erred in principle in failing to recognize, and consider, the emphasis placed by Canadian courts on the need to maintain stability in a child’s life unless there is the most compelling reason to disturb it. In my view, Pardu J. made a similar error in principle. [20] In Haider, at p. 337, Jackson J.A., quoted the following passage from the reasons of L’Heureux-Dubé J. in Gordon v. Goertz, [1996] 2 S.C.R. 27, at 92-93, commenting on the significance of the primary caregiver and psychological parent: The assessment of the child’s best interests also involves a consideration of the particular role and emotional bonding the child enjoys with his or her primary caregiver. The importance of preserving the child’s relationship with his or her psychological parent has long been recognized by this court on a number of occasions (Catholic Children’s Aid Society of Metropolitan Toronto v. M. (C.), [1994] 2 S.C.R. 165 at p. 202; Racine v. Woods, supra, at p. 188: King v. Low, [1985] 1 S.C.R. 87, at p. 101). There is a growing body of evidence that this relationship may well be the most determinative factor on the child’s long- term welfare. As I mentioned in Young, supra, at p. 66, the vital link between continuity in the emotional bonding of the child with his or her psychological parent and the best interest of the child finds ample support in the literature: Goldstein, Freud and Solnit’s Beyond the Best Interest of the Child, supra, while perhaps lacking in empirical data, remains an influential analysis of the psychological needs of children following divorce. The authors emphasize, among other factors, the importance of continuity in the child’s relationships and conclude that the major focus of custody decisions should be to preserve and protect the relationship between the child and his or her psychological parent. [L’Heureux- Dubé J.’s emphasis] [21] Jackson J.A. continued at p. 337 in a passage which has particular application to the circumstances of this appeal: While the cases to which L’Heureux-Dubé J. mentions are ones involving a biological parent and a government agency, the principle she cites appears in custody cases at the appellate level as well. The principle is referred to variously as “maintaining the relationship with the psychological parent” or “maintaining the status quo” or simply “maintaining stability” in the child’s life. However one describes the principle, the Court’s response is the same. [22] In my view, the trial judge erred in principle in failing to give adequate consideration to the importance of maintaining established stable relationships, and did so in the absence of any compelling evidence that it was in the best interest of the child to terminate the relationship which had existed since the child’s birth and to which the parties had agreed when they signed their separation agreement and when they agreed that the child could reside with the respondent throughout the 1996-1997 school year. [23] Nowhere in her reasons did the trial judge state that in making a decision as to custody, consideration must be given to the importance of maintaining stability in the child’s relationships. Rather, her focus was on the fitness of the parties and their partners to be parents and the report and recommendations of the assessor, which, as I have mentioned, she did not accept. Although she concluded that either parent could care for C.J.’s needs, on balance she concluded that it was in C.J.’s best interest to remain with her father. As I understand her reasons, a significant fact leading to this conclusion was the 26 months which C.J. had spent with her father, subsequent to his custody application and prior to the trial. However, in considering this fact, she failed to appreciate the reason why C.J. came to live with her father in the summer of 1996, which was the desire of the appellant that C.J. have the opportunity of establishing a relationship with her father, together with the understanding of the parties and C.J. that at the end of the school year the appellant’s custody of C.J. would continue. [24] It is in respect to the foregoing fact that the appellant’s third ground of appeal was directed. Counsel for the appellant took the position, with which I agree, that the trial judge attached undue weight to the status quo as she perceived it. Moreover, in my view, not only did the trial judge err in principle in doing so, she misconstrued the true status quo. [25] A proper characterization of the true status quo at the time of trial must take into consideration these facts. The appellant was the primary and exclusive caregiver of C.J. from the time C.J. was about four months of age, as acknowledged by the parties in their separation agreement. After the parties separated, the respondent had no contact with C.J. for four years until, in 1994, the appellant encouraged the respondent to exercise access with a view to C.J. establishing a healthy relationship with her father which she believed would be in C.J.’s best interest. When C.J. came to live with her father for the 1996-1997 school year, it was with the intention to further establish the relationship, and with the clear understanding of all concerned that this was to be a temporary arrangement and that at the end of the school year C.J. would continue in her mother’s custody. It was never intended by anybody that this period of time would be allowed to ripen, as it were, into a change of custody. What happened was that the appellant’s reward for being attentive to her child’s best interest was the loss of the custody of her child. [26] Although she did not put it in these precise terms, as I read the trial judge’s reasons what influenced her decision was the maintenance of the status quo as she perceived it. The true status quo was that the appellant had primary care of C.J., and when the school year ended, C.J. was to continue living with her primary caregiver. The trial judge should not have considered as a component of the status quo the additional time during which C.J. resided with her father consequent to his application for custody and the delay which occurred in bringing the case to trial. [27] As well, the trial judge permitted her concept of the status quo to influence her conclusion that during the extended period C.J. lived with her father he was able to demonstrate his abilities to become her custodial parent and that C.J. was comfortable living with him. As Abella J.A. stated on behalf of this court in MacGyver v. Richards (1995), 22 O.R. (3d) 481 at 488: But it is, in my view, a quantum leap from the observation that a child has a good relationship with a non-custodial parent to the conclusion that the preservation of this relationship is the determinative factor in deciding what is in the child’s best interests. [28] To characterize the status quo as the trial judge did constituted a fundamental error in principle. In my view, not only does her characterization work to bonus the respondent by creating a distorted status quo resulting from the delay in bringing the case to trial, but it also encourages a parent in the position of the respondent to take advantage of the situation to seek a change in custody, and then to take steps to delay the commencement of the trial. However, I do acknowledge that on the record before this court there is no explanation why the trial did not commence before August 10, 1998. [29] I appreciate that I have defined the issues somewhat differently than did counsel for the appellant. However, I did so for the purpose of better focusing on the real issues before this court. Although I did not deal expressly with the first two grounds of appeal advanced by the respondent, they have not been overlooked. Rather, they have been encompassed in the approach which I have taken to the proper manner of considering the best interest of C.J. in the context of the facts and circumstances of this appeal. [30] With the greatest respect, I must conclude that the trial judge made the two errors in principle which I have discussed. Given these errors, I am not satisfied that she would have reached the same result had she taken the correct approach to determining the best interest of the child. [31] As neither party requested that the court order a new trial, which is one option open in the event that the appeal was successful, I do not intend to do so. Rather, I will allow the appeal and set aside the judgment of Pardu J. As the appellant is C.J.'s custodial parent pursuant to her parents’ separation agreement, the respondent is to return C.J. to the appellant’s custody, and the respondent is to have access on the same terms as stipulated by the trial judge for the appellant. The appellant will have her costs of the trial and the appeal. Released: MAC DEC 17 1999 Signed: “S. Borins J.A.” SHARPE J.A.: [32] I have had the advantage of reading the reasons of my colleague Borins J.A. With respect, I am unable to agree with the conclusion he has reached. For the reasons which follow, it is my view that the trial judge made no error in principle and that there is no basis for this court to interfere with the trial judge’s determination that it is in the best interests of the child that she be in the custody of her father, the respondent on this appeal. [33] Borins J.A. has set out the essential facts and I will not repeat them here. However, there are certain additional facts which, in my view, do bear upon the issues raised. [34] Between 1991 and 1995, the appellant developed a close relationship with Steven Wicks. This fact is important as the child, C.J., developed a close relationship with Mr. Wicks, referring to him as “daddy” and to his parents as “grandma and grandpa”. C.J.’s relationship with Mr. Wicks and his parents was severed when the relationship between Mr. Wicks and the appellant ended in March 1995. I mention this as the number of separations C.J. had endured was a factor considered by the trial judge. [35] It is also significant, in my view, that on February 18, 1996, a few months before C.J. started living with her father, the appellant was involved in a motor vehicle accident from which she suffered soft tissue injuries. The trial judge found that as a result of this accident, the appellant was unable to work and that she found it difficult to cope with life for a certain period of time. The accident and its effects would seem to have had some bearing upon the decision of the appellant to allow C.J. to live with her father for the 1996-1997 school year. [36] In addition to the disagreement in March 1997, there was another incident that prompted this application by the respondent for custody. A dispute erupted in December 1996 over money owing pursuant to the separation agreement. The trial judge found that in a fit of temper, the mother had retaliated by indicating that the child would not be returned to her father. The trial judge further found that it was the repetition of this threat in March that led the respondent and his partner to become concerned that the appellant would remove C.J. from them and that they proceeded with this custody application. [37] Finally, I note that there is nothing in the record before this court to explain why there was a delay from the date interim custody was ordered in May 1997 until this matter proceeded to trial before Pardu J. in August of 1998. There is certainly no evidence that the respondent was in any way responsible for that delay nor is there any evidence that the respondent sought to gain an advantage in his custody application by inappropriately resting on the interim order he had secured rather than proceeding expeditiously to trial. [38] The appellant has raised three grounds of appeal which are as follows: 1. that the trial judge erred in refusing to accept the recommendation of the assessor appointed pursuant to the Courts of Justice Act R.S.O. 1990, c.43, s.112; 2. that the trial judge placed undue weight on a tape- recorded telephone conversation between the appellant and the child; and 3. that the trial judge attached undue weight to the status quo. [39] In my view, there is no merit to any of these grounds. [40] The trial judge carefully considered the assessor’s report and had the advantage of hearing him give his evidence, tested by cross-examination. The trial judge’s reasons indicate that she carefully considered his report and quite simply rejected his assessment of the best interests of this child. It is well established that a trial judge should not delegate decision- making authority to an assessor: Strobridge v. Strobridge (1994) 18 O.R. (3d) 753 (C.A.). The trial proceeded over some six days affording the trial judge a fuller picture of the situation than was available to the assessor. The trial judge concluded that the assessor’s recommendations had been unduly influenced by his assessment of the child’s wishes and by his perception that there was a need to reverse what he considered to be the appellant’s mistaken decision in the fall of 1996 to allow the child to live with her father for one year. The trial judge considered that the assessor was influenced by what he perceived to be the inequity that would result from the mother losing custody of her daughter having taken the risk of re-introducing the father and the daughter for laudable reasons. The trial judge found, having heard the evidence, that she could not accept the assessor’s conclusions regarding the child’s wishes. [41] In my view, it was open to the trial judge to make those findings on the record before her. In particular, she was correct in according paramountcy to the best interests of the child. [42] With respect to the audio tape, it was more or less conceded before this court that the trial judge did not err in admitting the tape into evidence. In my view, the trial judge was perfectly entitled to conclude that the tape constituted “graphic and distressing evidence of venom directed towards the father and pressure exerted upon the child” and that these statements to the child “were extremely distressing” and “harmful to her emotional well-being”. I observe, however, that I do not agree with the submission that the trial judge placed undue weight upon this single piece of evidence. Rather, the trial judge’s reasons indicate that she carefully considered all of the evidence, including what she considered to be inappropriate efforts by the mother to influence the child in her direction and against the father. [43] Finally, I do not agree that the trial judge placed undue weight upon the status quo. The trial judge referred to and applied the criteria identified as applicable to the determination of the best interests of the child in the Children’s Law Reform Act, R.S.O. 1990, c.C.12 s.24. One of the criteria, identified in ss.24(c), is the following: “the length of time the child has lived in a stable home environment”. The trial judge carefully weighed the close emotional bond the child has with her mother but noted that the child also has a close emotional bond with her father, her father’s partner, her siblings, and her paternal grandmother. The child had undergone what the trial judge aptly described as “multiple separations from individuals to whom she has been close”. After more than two years, she adjusted to living with her father’s family. The trial judge concluded that to remove the child at this point from her father’s family “would entail a wrenching separation from family members with whom she has a close relationship”. [44] Far from failing to give adequate consideration to the importance of maintaining established stable relationships, it was that very consideration that led the trial judge to find that it was in the best interests of the child that she be left in the custody of her father. Two years is a very long time in the life of a young child and the trial judge properly considered the adjustment the child had made to her situation with her father. The trial judge quite properly focussed squarely on the question of what was in the best interests of the child in light of the actual circumstances as they existed at the time of the trial rather than base her decision on some earlier state of affairs, or on the perceived rights and wrongs as between the parents or the need to redress past decisions that might now be regretted. [45] As this and other courts have repeatedly emphasized, trial judges are uniquely situated to determine the best interests of children in custody disputes. Absent any error in principle, it is inappropriate for an appellate court to interfere with a trial judge’s determination of this sensitive issue: Woodhouse v. Woodhouse (1996), 29 O.R. (3d) 417 (C.A.) at 439-440; Adams v. McLeod, [1978] 2 S.C.R. 621 at 625; Fast v. Fast (1983), 33 R.F.L. (2d) 337 (Sask. C.A.) at 346. In my view, the trial judge considered the appropriate factors, made no error of principle, and the appellant has failed to demonstrate any reason for this court to intervene. [46] For these reasons, I would dismiss the appeal with costs. Released: MAC DEC 17 1999 Signed: “Robert J. Sharpe J.A.” “I agree: M.A. Catzman J.A.”