Lidkea v. Jarrell

Lidkea v. Jarrell Collection Decisions of the Court of Appeal Date 1999-03-15 Docket numbers C27726 Judges Osborne, Coulter Arthur Anthony; Goudge, Stephen Thomas; Borins, Stephen Subject Family Decision Content DATE: 19990315 DOCKET: C27726 COURT OF APPEAL FOR ONTARIO OSBORNE, GOUDGE and BORINS JJ.A. BETWEEN: ) ) LEONARD STEVEN LIDKEA ) Leonard Steven Lidkea ) in person Appellant ) ) - and - ) ) Michele Faye Lisa Jarrell MICHELE FAYE LISA JARRELL ) in person ) Respondent ) ) Heard: February 18, 1999 ) OSBORNE J.A.: [1] On June 16, 1997, the Honourable Mr. Justice Jarvis suspended the appellant father’s access rights to his daughter Shakyra. The appellant has appealed. He seeks to set aside Jarvis J.’s order and submits that he should have access to his daughter “… equal to that of her mother [the respondent].” [2] The appellant and the respondent were married in Montreal on November 7, 1987. They have one child Shakyra Langille born February 19, 1988. After the parties separated in March 1989, the respondent moved with Shakyra to New Brunswick where she obtained a divorce from the appellant on February 4, 1991. In the divorce judgment Gurette J. granted custody of Shakyra to the respondent with reasonable access to the appellant, on reasonable notice. The appellant was ordered to pay child support of $300 each month. At the time of the divorce proceedings, the appellant was working and living in Toronto. He did not appear in those proceedings. [3] The respondent married David Jarrell in 1991. They have one child, Christian, who was born in 1993. In about April 1996, the respondent, Mr. Jarrell, Christian and Shakyra moved to the Toronto area. It was at that point that serious access problems began. I do not propose to review each side’s version of the cause of the problems beyond noting that from the appellant’s standpoint all of the access-related problems were explained by the respondent’s manipulation of Shakyra. The respondent contended that the appellant took no account of Shakyra’s wishes and that he exercised access in an unduly intrusive and uncaring manner. Thus, Shakyra came to resent being forced to see her father. [4] Because of the access problems, in September 1996 the appellant applied to the Ontario Court, General Division, for an order varying the New Brunswick divorce judgment’s access provisions. He also sought a reduction of his child support obligations and an order rescinding the accumulated arrears of child support. In his application, he asked that a representative of the Office of the Children’s Lawyer investigate and report on all matters pertaining to access. In October 1996, in a cross- application, the respondent sought to have certain specified access to Shakyra established. She also sought an increase in child support to $500 per month. [5] On January 9, 1997, Jarvis J. ordered that the appellant have access on the first weekend of the following three months commencing on January 31, 1997, from Friday at 6:00 p.m. until Sunday at 6:00 p.m., and also each Wednesday from 6:00 p.m. to 8:00 p.m. On January 9, 1997, the parties consented to an order staying the enforcement of child support arrears. [6] On April 14, 1997, Jarvis J. appointed the Children’s Lawyer to conduct an investigation in respect of access. His endorsement reflects the concern that Shakyra “is coping poorly with the difficulties between the parents.” Jarvis J.’s order of April 14, 1997, provided that the access arrangements established on January 9, 1997, would continue. [7] On May 12, 1997, the matter again came before the Family Law Division in Toronto. It was adjourned until June 16, 1997. In his endorsement, Jarvis J. expressed the hope that by June 16, 1997 the Children’s Lawyer would be able to provide an interim report. He again noted that “the child is said to be having difficulties.” [8] Because of an increasing concern about the child’s welfare, on May 30, 1997, access was suspended, on the recommendation of the Children’s Lawyer, pending completion of the Children’s Lawyer’s assessment. [9] A representative of the Children’s Lawyer conducted an extensive investigation into the access-related problems. In the course of her assessment she conducted a number of interviews, as follows: - Office interview with Michele Jarrell May 15, 1997 - Office interview with Steven Lidkea May 16, 1997 - Office interview with Shakyra May 30, 1997 - Office interview with Shakyra and Michele and David Jarrel May 30, 1997 - Office interview with Shakyra and Steven Lidkea May 30, 1997 - Individual school interview with Shakyra June 5, 1997 - Meeting with Shakyra’s teachers Mrs. Cox, Mrs. MacIvor, and principal Mrs. Cox at Floradale Public School June 5, 1997 - Telephone interview with Shakyra’s babysitter Linda Stark June 9, 1997 - Office interview with Shakyra’s grandparents Mr. and Mrs. Lidkea Sr. June 6, 1997 - Office interview with Steven Lidkea June 6, 1997 - Telephone interview with Shakyra’s family physician Dr. Jonathan Peck June 9, 1997 - Telephone interview with Michele Jarrell June 9, 1997 [10] I do not propose to review the report and recommendations of the Children’s Lawyer in any detail. It is clear from the assessment report that Shakyra was adversely affected by the ongoing inability of the appellant to recognize and respect her wishes. The assessor noted that the appellant tends to see the access-related problems in terms of “rights” which he claims to possess. As the assessor noted, “he feels that as Shakyra’s father he should have the right to have contact to enjoy a parental relationship with her regardless of her mother’s wishes.” The assessor further noted that the respondent was frustrated by the appellant’s emphasis on parental rights and his inability to recognize Shakyra’s genuinely held wishes. In this court, the appellant continued to approach access on the basis that it was his right. For example, in his factum he stated: It is respectfully submitted that the appellant fathered a child with the respondent and is entitled to equal access to his daughter as per s. 26 and 28 of the Charter. [11] The assessor confirmed that Shakyra had developed a strong disinclination to have access visits continue. She expressed her views on access privately to the assessor and in another interview with the assessor at which the appellant was also present. Shakyra told the assessor that the appellant simply wanted to show her off to others during access visits. She resented the appellant saying bad things about her family in front of her. Shakyra also told the assessor that the appellant said that it did not matter where her family moved since he would follow them and keep the respondent in court until Shakyra was 18. Shakyra viewed the appellant’s biggest problem to be his failure to listen. In a meeting with the assessor that Shakyra attended, the appellant initially tried to laugh off Shakyra’s complaints but then stated that she was being coached by the respondent. [12] As a result of the accumulation of information that was collected, the assessor recommended and the court accepted that access be suspended as of May 30, 1997, pending the return of the application on June 16, 1997. [13] Jarvis J.’s decision to suspend access was not made in haste. In the approximate nine month period during which the application and cross-application were before the court a variety of strategies was attempted. None worked in the sense that Shakyra consistently resisted and resented being forced to see her father. [14] The principle of the best interests of the child controls the disposition of the issue of access, as it does the issue of custody. There was considerable evidence, accumulated for the most part in the nine month period extending from October 1996 to June 1997, that supports the motions judge’s conclusion that access was not working. The motions judge did not fall into error in allowing the representative of the Children’s Lawyer to determine what should be done about access. He observed when commenting on the Children’s Lawyer’s assessment: I have read the report of Ms. Martin and must say that the fears she expresses and recommendations that she has made correspond with the conclusions I have reached over the past several months that this matter has been before me. Regular access has exacerbated the difficult relationship between the parties and has led to unfortunate consequences for Shakrya. [15] The motions judge’s conclusion is supported by the evidence. As I have said, access was working against Shakyra’s best interests at the time the order under appeal was made. Shakyra had come to resent and be negatively affected by visits with her father. This was recognized by the respondent, the family physician, Shakyra’s teachers and the representative of the Children’s Lawyer. Although the relationship between the appellant and the respondent is not good, this is not a case where the custodial parent has wilfully tried to frustrate the non-custodial parent’s access rights. [16] In my opinion, there is no basis upon which to interfere with Jarvis J.’s decision to suspend access. I share Jarvis J.’s hope that summer access visits with Shakyra’s paternal grandparents can be arranged. I am satisfied that, to the extent practicable, the respondent will co-operate in that endeavour. [17] In his June 16, 1997 order Jarvis J. provided that Shakyra not be removed from Canada without the appellant’s consent, or further order of the court. Mr. and Mrs. Jarrell want to move to the United States. I am reluctant to deal with this issue (there was no cross-appeal from Jarvis J.’s mobility restrictions) mainly because there is no evidence filed to support the move. I am also reluctant to make a mobility decision based upon evidence and information that is at least 18 months old. If Mr. and Mrs. Jarrell want to move to the United States they should move to vary the mobility part of Jarvis J.’s order. By proceeding that way the court will have current information concerning the proposed move and its impact on Shakyra’s best interests. [18] For these reasons, the appeal is dismissed without costs. Released: March 15, 1999