IN THE SUPREME COURT OF NOVA SCOTIA
(FAMILY DIVISION)
Citation: J.W. v. D.W., 2005 NSSF 2
Date: 20050105
Docket: SFHD-000164, 1201-52038
Registry: Halifax
Between:
J.W.
Applicant
v.
D.W.
Respondent
Judge: The Honourable Justice Kevin Coady
Heard: November 15, 16, 17, 18, 22, 23, 29, 30, 2004
December 6, 2004, in Halifax, Nova Scotia
Counsel: J.W., self- represented
Colleen Scheuer, for the respondent
By the Court:
[1] This is an application by Mr. J.W. to vary this couple’s 1998 Corollary Relief Judgment respecting custody. The Corollary Relief Judgment granted Ms. D.W. sole care, custody and control of the three children of the marriage. Mr. J.W.’s access was extensive but very structured. The children have lived with Ms. D.W. since separation on April 16, 1997. Mr. J.W. seeks a change in custody on the basis that access is being denied and the children are being emotionally abused by their mother’s approach to parenting.
[2] The eldest child, J.R., is now twelve years old. J. and M. are eight year old twins. Mr. J.W. is an aircraft mechanic in the Canadian Armed Forces. Ms. D.W.’s principle occupation has been caring for the boys. Mr. J.W. has remarried and has a new family.
[3] This family is in a state of crisis and has been since separation. The acrimony has not lessened over the past eight years. There has been no parenting by consensus and the parents have continually relied on external agents and the courts to address their never-ending issues. There is no evidence to suggest that these parent’s relationship will improve in the foreseeable future. It is a sad state of affairs.
[4] Any future for these boys must avoid a continuation of the events of the past five years. A review of the litigation history is a guide to achieving this goal. There was considerable conflict and litigation prior to the 1998 corollary relief judgment but this court has focused on events since the divorce.
[5] The starting point for this application must be the Corollary Relief Judgment. It reflected conflict and an inability to communicate. Access was very structured. The parents were not permitted to speak badly of one another. They could not contact each other’s workplace. Ms. D.W. was directed to authorize the release of school information. Communication was to be by way of a logbook. There was no requirement to consult Mr. J.W. on major decisions affecting the children.
[6] The following represents a history of court orders issued since that time:
- 29 June 1999. Variation order respecting child support.
- 31 August 1999. Variation order respecting basic child support, Section 7 expenses, access to allow Mr. J.W. to take J.R. to Beavers and an order prohibiting contact between the parties.
- 5 November 1999. Assessment ordered. Martin Whitzman authorized to prepare a report that focused on access arrangements.
- 7 March 2000. Variation and Order - issue of access, rules for pick-up and drop-off, summer access, derogatory remarks, second-hand smoke, alcohol, Cubs and Beaver meetings.
- 12 March 2000. Order respecting Christmas access and hours for weekend access.
- 12 April 2000. Variation Order respecting property issues, medical and dental plan and life insurance.
- 3 October 2000. Order for Judgment, Nova Scotia Court of Appeal re: childcare expenses
- 15 December 2000. Order of Enforcement. Recital states “and upon determining that there has been a denial of access as ordered December 31, 1998 and March 7, 2000" - Court reaffirms Christmas access for 2000.
- 12 February 2001. Variation Order respecting child support and mortgage payments.
- 26 June 2001. Order for Judgment. Nova Scotia Court of Appeal dismisses Ms. D.W.’s appeal of 12 February 2001, order respecting child support.
- 25 April 2002. Order respecting child support and Section 7 expenses and prohibition from litigating support for six months.
- 6 August 2003. Interim Order respecting access and requiring Ms. D.W. to disclose to Mr. J.W. the children’s school address.
- 8 September 2003. Order respecting child support.
- 18 December 2003. Interim Consent Order respecting the disclosure to Mr. J.W. of the children’s school and home addresses.
- 5 January 2004. Assessment Order for issues of custody and access with a psychological component.
- 15 October 2004. Order requiring former counsel to transfer client file to incoming counsel.
[7] The police have had extensive involvement with the W. family. While the evidence of the police officers suggested they were considered a nuisance, they obviously recognized the volatility of the family and took their complaints seriously.
[8] In 1996 Ms. D.W. was charged with assault on Mr. J.W. Eventually the charge was dropped at the insistence of Mr. J.W. In 1997 Ms. D.W. alleged that Mr. J.W. threatened her life and he was charged. He remained on a no-contact undertaking for eight months. He was acquitted after a trial.
[9] In September, 2003 Ms. D.W. complained that Mr. J.W.’s present wife, M.W., had assaulted M. by putting soap in his mouth. She was acquitted after a trial.
[10] The police evidence was that they received numerous complaints from both parents. Mr. J.W.’s complaints usually related to denials of access. Ms. D.W.’s complaints usually related to Mr. J.W.’s conduct.
[11] The W. family have extensive involvement with child protection agencies. In January, 1998 a babysitter made a referral alleging that Ms. D.W. was emotionally abusive to J.R. The allegation involved inappropriate discipline and exposing the children to adult concerns respecting custody and access. This complaint was not substantiated and the file was closed.
[12] In April, 1998 Ms. D.W. made a complaint that Mr. J.W. had grabbed her around the neck. She was also alleging that J.R. did not want to visit his father. The Agency directed that she pursue a peace bond and took no action. In August, 1999 Mr. J.W. complained of Ms. D.W.’s emotional abuse of the children. The Agency was concerned with these chronic complaints and recommended mediation. Ms. D.W. would not attend unless the police were present. Mr. J.W. would not attend citing a fear that such a meeting would lead to further accusations against him.
[13] In July, 1998 there was a referral from RCMP Cst. Murphy. This raised concerns of emotional abuse of a 6-year-old by Ms. D.W. No action was taken on this complaint.
[14] The next referral was from the RCMP in 2001. They raised concerns that Ms. D.W. was not allowing access, was irrational and may need counselling. The Agency did not investigate as there was no child welfare issue.
[15] The next contact was from Ms. D.W. in July, 2002. She complained that Mr. J.W. was not using appropriate child restraint seats while transporting the children. This complaint was not investigated. In July, 2003 Ms. D.W. complained that her husband had abused her. Once again the Agency did not investigate.
[16] Ms. D.W. made a complaint in September, 2003 concerning the “soap in the mouth” incident. The allegation was jointly investigated by the Agency and the RCMP. The Agency did not substantiate the alleged incident but the police laid charges.
[17] The last referral was in October, 2004 and came from Rilda Van Feggelen, the court appointed assessor. She reported possible emotional abuse of the children by Ms. D.W. The Agency did not investigate given the upcoming court proceeding.
[18] The court had the benefit of a Custody and Access Assessment prepared in May, 2004 by Rilda van Feggelen. She is a registered psychologist with expertise in the area of children and the family. She is a senior member of her profession. She presented two alternative recommendations.
[19] The first proposal was for a joint custody arrangement which would preclude one parent from assuming all control. This proposal was contingent on the parents sharing in decision making. In her oral evidence she stated that such an arrangement would not be workable unless there is improvement in parental communication. She further stated that she is no longer convinced that joint custody is still a viable solution. This court finds that joint custody is not a solution. This couple’s history, and the damage they have done to each other, is irreversible. Joint custody in any configuration is not in the children’s best interests.
[20] Ms. van Feggelen testified that the status quo cannot continue. She felt the children were currently at risk and as such needed to be “rescued” from their present circumstances. This court accepts the assessor’s opinion that the status quo is not in the boys’ best interest. Allowing the present to continue will result in lasting damage to all three children. Ms. van Feggelen agreed with the suggestion that these are children in a situation that called for “short-term pain for long-term gain”. It is unfortunate that this family’s situation has deteriorated to the point where the options available to the court are so limited and absolute.
[21] Ms. van Feggelen’s other proposal was to grant sole custody to Mr. J.W. with supervised access to Ms. D.W. She felt that access, in such a scenario, required supervision because Ms. D.W. was a flight risk and that she might do something irrational. The court views this proposal as a recognition that these parents cannot co-parent. It is a recognition that one parent must have their parental role seriously curtailed. The question for this court is which parent is best suited to be the primary parent.
[22] Ms. van Feggelen’s report, as well as her viva voce evidence, clearly supports Mr. J.W. as the custodial parent. Yet she recognized that the boys are very attached to their mother and that they would be afraid of anything other than staying with their mother. The children are convinced that custody will not change. They will oppose anything that would limit their mother’s role in their life.
[23] The import of Ms. van Feggelen’s evidence is that the boys’ relationship with their mother is unhealthy. She concludes that they are insecure, dependant, isolated and that they are likely to have relationship difficulties as adolescents and adults.
[24] The assessment does not raise questions concerning Ms. D.W.’s ability to provide for the boys’ physical well-being. They present well and outwardly do not appear in distress. There is also no question concerning Mr. J.W.’s ability to parent as a sole custody parent. The critical question is whether the boys’ life with their mother is sufficiently harmful to demand a change in custody after seven years.
[25] This court finds that the following evidence from Ms. van Feggelen addresses this analysis:
- The boys live with their mother at an address unknown to their father and go to a school, the location of which he is not supposed to know. This is a burden for all three children.
- There is no telephone contact between the boys and their father. Extended access is not encouraged.
- There is no indication that the boys have any significant contact with their mother’s extended family.
- Ms. D.W. is largely negative in her comments about Mr. J.W. and such an attitude is apparent to the children.
- Ms. D.W. told the assessor that she could not live without the boys and they could not live without her.
- The mother feels the only appropriate home for the boys is with her and the less time they spend elsewhere the better.
- Ms. D.W. is unwilling to let go of any issues from the past.
- Ms. D.W. views Mr. J.W.’s present wife as “conniving and manipulative” and has nothing good to say about her. This disdain is apparent to the children.
- Ms. D.W. was found by the assessor to be “an intelligent and talkative but angry and bitter 42-year-old mother”.
- J.R. appeared to the assessor to be depressed and withdrawn with an overriding impression of hypervigilence. He consistently checked with his mother before making a comment in her presence. He was very protective of his mother and was wary of acknowledging involvement with his father.
- J.R.’s performance on the assessment testing suggested he lacked any solid foundation upon which to build his identity.
- J.R. appeared very dependant on his mother and at the same time he acted like the other parent in the family.
- M. suffers from low self-esteem and is intensely emotional. He was very guarded in his response to the assessor’s questions.
- M. advised the assessor that “when dad has a problem, I don’t care. When mom has a problem, I really care.”
- In the assessment testing M.’s answers suggested disturbed family relationships. He did not appear to know which way to turn and is only satisfied when his mother appears satisfied.
- The assessor concluded M. “appears to be a child in considerable distress”. He tries to maintain his cool yet is anxious and has many worries.
- J. is extremely guarded and avoids expressing any feelings. He worries about his mother.
- J. gives the impression of being programmed to present himself to the assessor in a positive light.
- J.’s performance on the assessment testing suggested “a tense and emotionally overwhelmed child whose approach to the task was uneven and heavily pressured”. His performance suggested he distanced himself from everyone, even family, except for his mother.
- J. appeared as a likeable hypervigilant child who has learned to maintain some self control by suppressing and denying feelings and by gearing all emotional reactions to keeping peace, particularly with his mother.
- All three boys seemed almost “brainwashed” into suppressing emotions, keeping secrets and giving no information that could bring disapproval.
- Both parents want the battle to stop but Ms. D.W. wants to resolve the issues by cutting Mr. J.W. out of the boys’ life as much as possible.
- It was the assessor’s opinion that Ms. D.W. has risked, and continues to risk, the physical and psychological safety of the children by moving them and keeping them in an undisclosed location which the children must keep secret. “The resulting insecurity about where they belong and the pressure on them to prevent the loss of their loving relationships with either of their parents suggest the children may be considered emotionally abused.”
- The children feel they owe their love to their mother and this is unhealthy in that they do not see other options.
- The boys’ affection to their mother lacked spontaneity and appeared rehearsed.
[26] The above described conditions and behaviours are the result of the childrens past and present family circumstances which includes their relationship with their father.
[27] The question at this point is whether a change in custody would be in the boys best interest given their strong emotional bond to their mother and their stated aversion to such a change. The following evidence addresses this inquiry:
- Ms. van Feggelen concluded that Mr. J.W. wants to focus on the children’s present needs while Ms. D.W. was unwilling to let go of the issues from the past.
- Mr. J.W. loves his sons to the point where he is prepared to absent himself from their lives if that were the only way to remove the conflict in their lives.
- Mr. J.W. has an extended family who are involved in his life. He is prepared to involve them in his sons lives.
- On weekend access, J.R. is very solemn and quiet initially but tends to relax as the weekend progresses.
- Mr. J.W.’s present immediate family include his wife, an 11-year-old stepson and a five-year-old daughter. The boys are attached to these family members and are especially devoted to their sister.
- Mr. J.W. has shown a willingness to include his stepson’s father in their family and to foster that relationship.
- Ms. van Feggelen concluded the boys had no fear of their father and were not afraid of his reaction to their loyalty to their mother.
- The assessor concluded that while the boys do not express love for their dad, they are comfortable in his home.
- The assessor reported that when questioning the boys in their father’s home they were more spontaneous and did not check with anyone before responding.
- The assessor felt that Mr. J.W. did not speak badly about Ms. D.W. in the presence of the boys.
- Ms. van Feggelen’s opinion was that if custody changed, Mr. J.W. would be committed to access with Ms. D.W.
- Mr. J.W. recognizes that the boys require counselling whereas Ms. D.W. does not accept that there is anything wrong with the boys or their family circumstances.
[28] While most of the probative evidence came from the parties and the assessor, there were conclusions that I drew from the entirety of the evidence:
- I find as a fact that Ms. D.W. truly loves her children and that she wants to do what she thinks is best for the boys.
- I find that Mr. J.W. loves his children and is committed to doing what is in the boys’ best interest.
- I find that Ms. D.W. has allowed her personal feelings and attitudes to cloud her judgment as to what is in the boys’ best interests. She has not moved on since separation and is, in effect, attempting to preserve as much of her family past as possible.
- I find that Mr. J.W. has shown that he knows what is best for the boys. He has made a concerted effort to shield the boys from parental issues and conflict. He has moved on since separation and is forward looking in his perspectives.
- I find that Mr. J.W.’s access, when it occurs, is fraught with difficulties and obstacles created by Ms. D.W. While the Corollary Relief Judgment, and its variations, sets forth extensive access, it has been limited to where, at best, it occurs every second weekend. Ms. D.W. must accept responsibility for this scaling back of access.
- I find that Ms. D.W. is unable to control her emotions in front of her children or her community. The incidents at the school, the soccer field and at her home on July 6, 2003 amply demonstrate this characteristic.
- I find that Ms. D.W. is prepared to ignore court orders if they are at variance with her views of the world. She perceives herself as a victim and feels she is always at war with anyone she feels is a threat to her family unit.
- I find that Ms. D.W. has difficulties maintaining relationships with her own family and within the community.
- Ms. D.W. has continually defended her choices by stating that Mr. J.W. was, and continues to be, physically abusive to her. I find that such was nothing more than a tool to defend otherwise indefensible positions. There has been animosity on the part of both parents but I cannot conclude, on the evidence, that Ms. D.W. has been at risk from Mr. J.W. since the Corollary Relief Judgment.
[29] I do not find that Mr. J.W. suffers the same limitations. He is a parent in a very functional family unit, has the support of extended family and is very comfortable in his present community. I find that he can control his frustrations and makes an effort to shield the boys from parental conflict. He is not prone to outbursts and he maintains effective relationships. I have no concerns about Mr. J.W.’s ability to accept and live by court orders. It is clear that his military training predisposes him towards accepting authority.
[30] While I have already commented on the evidence of these parents, I feel it necessary to comment on their respective personalities as such relate to their parenting abilities.
[31] Mr. J.W. presented as a father who dearly loves his children but who is frustrated by Ms. D.W.’s efforts to limit his parental role. He is fully capable of providing for the children’s physical and emotional needs. I find that his only deficiencies as a person have grown out of his relationship with Ms. D.W. If something ever happened to Ms. D.W., there would be no concerns about Mr. J.W. stepping in as the principle care parent.
[32] This has been a highly emotional proceeding for both of these parents. I was impressed by Mr. J.W.’s ability to control his emotions. I noted that when he was cross-examining Ms. D.W. he did not once take a “cheap shot”. He exercised a great deal of restraint in the face of less than complimentary evidence. I also found that Mr. J.W. was able to focus on the more probative issues and did not dwell on the situational evidence. Notwithstanding the evidence, Mr. J.W. always kept his cool.
[33] I was troubled by Mr. J.W.’s statement that if this application fails, he must step out of the boys’ life. I recognize this as an unusual stance for a loving parent. Yet, I am satisfied that he genuinely feels that continued access will not benefit the boys and, in fact, will cause them harm. On all of the evidence I cannot be critical of Mr. J.W. for adopting such a position. Issues surrounding past access has been detrimental to every member of this family. It has created an unbearable situation for the children.
[34] I am not convinced that in the past Mr. J.W. has not contributed to this family’s plight. Yet, I find that presently he wants to move forward and the only thing holding him back is Ms. D.W. and her continuous efforts at ejecting him from his children’s lives.
[35] I find that Ms. D.W. is firmly stuck in the past as far as the family breakdown is concerned. I found her to be controlling to the point where she cannot envisage a family unit that includes Mr. J.W. This was apparent in her evidence and her response to Mr. J.W.’s evidence. She is not capable of accepting, or even considering, views contrary to her own. She has convinced herself that only she can know what is in the boys’ best interest. She is incapable of masking these strong views.
[36] I found Ms. D.W.’s evidence to be defensive and not purposive. On many occasions she mocked contrary evidence with a feigned recital of non-complimentary words. I was left with the impression that she does not recognize how she appears and sounds. She hears only what she wants to hear. She responds to anything else with contempt.
[37] I found that Ms. D.W.’s evidence was not always trustworthy. She was evasive and misleading in responding to questions about her mother and extended family. She was exaggerative about Mr. J.W.’s alleged physical and emotional abuse. She clings to these exaggerations to support her choices surrounding the location of her children’s home and school.
[38] Ms. D.W. denied speaking derogatorily about Mr. J.W. when her own witnesses contradicted that position. She expanded her evidence to respond to challenges as was the case about M.W. taking the phone during the “booster seat” incident. I found her evidence about the school incidents, and the contacts with police, at variance with others whose evidence was believable. This was also the case with her description of the “home show” incident involving Mr. K.. Exhibits 13 through 17 (letters) challenged her original evidence on access issues. The Community Service file also challenged her evidence on several points.
[39] Some of these contradictions may not be germane to some of the legal issues, but they do impact on Ms. D.W.’s credibility. I am satisfied that Ms. D.W. is so convinced as to the correctness of her positions that she is prepared to be less than forthright when she feels threatened.
[40] The parties called several secondary witnesses. While some of that evidence was not helpful in the final analysis, the following evidence was found to be truthful and probative of issues in this application:
- Cst. Dempsey was involved in the “booster seat” incident. He felt the car seats “seemed fine to me”. This supports Mr. J.W.’s evidence that this was a ruse to deny access. He testified that many of the W. contacts related to allegations of access denied. He spoke of Ms. D.W.’s inability to stay calm in the presence of the children and Mr. J.W.’s ability to avoid escalating his frustration.
- S.C. is a family friend. I accept her evidence that Ms. D.W. spoke derogatorily about Mr. J.W. at sporting events and in front of the twins.
- Bernie MacIntyre is the principal at the boys previous school. His evidence established that Ms. D.W. lacked control when she came on the school grounds in 2001. It also established that she lacked insight on the impact of this behaviour on J.R.
- J.L. is Mr. J.W.’s present spouse’s ex-husband and his stepson’s father. His evidence was compelling given that family dynamic. It indicated that Mr. J.W. appreciates the role of both parents in a child’s life. It also established that Mr. J.W.’s present family is functional notwithstanding challenges.
- Corporal Warnell had considerable contact with this family. Her evidence was that Mr. J.W.’s contacts with police usually related to his access. In reference to the August 17, 2002 attendance, she found Ms. D.W. “very unreasonable” and “close to an emotional breakdown”.
- Tony Burbridge is a senior police officer and an acquaintance of Ms. D.W. He has known her for 15 to 20 years and views her as a caring and loving parent.
- Michael Brownlow is the boys’ school principal. He found that Ms. D.W. has a positive relationship with school staff and that he has no concerns about the children. He confirmed that the boys have friends and are involved in school activities. He referenced the boys’ school records to establish that academically the boys are doing well.
- Barry McClatchey is a social worker who has assisted Ms. D.W. and the boys in the past. He testified as to the close bond between Ms. D.W. and the boys. His records indicated that post separation Ms. D.W. “buried herself in her kids” and that “part of her loss was coping with not having her children full time”.
- A.G. is a former friend and child care provider for Ms. D.W. She testified about the strong bond between the boys and their mother.
- Diane Cleveland is the twin’s former primary teacher. She testified as to the academic and behavioural success of the two younger boys.
[41] The Divorce Act requires that I do not revisit the merits unless I am satisfied that there has been a material change in circumstances since the Corollary Relief Judgment or the last variation thereof. Section 17 provides:
17. (1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,
. . .
(b) a custody order or provision thereof on application by either or both former spouses or any other person.
. . .
(5) Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change.
(6) In making a variation order, the court shall not take into consideration any conduct that under this Act could not have been considered in making the order in respect of which the variation order is sought.
. . .
(9) In making a variation order varying a custody order, the court shall give effect to the principle that a child of the marriage should have as much contact with each former spouse as is consistent with the best interests of the child and, for that purpose, where the variation order would grant custody of the child to a person who does not currently have custody, the court shall take into consideration the willingness of that person to facilitate such contact.
[42] In my opinion the search for a change in the “condition, means, needs or other circumstances” of these children will be found in two areas of the evidence. The first area relates to access denial and the second relates to the boys mental health as disclosed by Ms. van Feggelen.
[43] In assessing whether there is a material change since the last order, I have not relied on the whole history of the marriage and its breakdown. Kubel v. Kubel (1995), 15 R.F.L. (4th) 356 (Alta. C.A.). There has been considerable leakage of such evidence into this proceeding but I have focused entirely on the proper time frame.
[44] I have found that Ms. D.W. has been interfering with the children’s access to their father. I accept that access improves when there is a court case on the horizon. I see no real commitment to Mr. J.W.’s role as the boys father. In fact I find that Ms. D.W. has been committed to an active and ongoing campaign to drive him out of their lives.
[45] The unwillingness of a parent to facilitate access is an important factor in considering whether there has been a change of circumstances sufficient to vary a custody order. Rose v. Rose 22 RFL (3d) 72
[46] I also find that these children have developed an unhealthy relationship with their mother such that their future relationships will be significantly affected. I am concerned that this opinion suggests that these boys are headed into a life similar to that of their mother. That would be a life of emotional isolation, conflict and a fear that everyone is out to get them.
[47] I accept Ms. van Feggelen’s opinion that these children are presently at risk. I accept that they have no control over who they are and they lack a secure foundation upon which to build their life. The evidence, as a whole, indicates that these boys development is entirely in their mother’s hands and consequently none of them deal with their feelings effectively.
[48] J.R. has been thrust into the role of man of the house and Ms. D.W. encourages and commends that role. He approaches issues with hypervigilence. He wants to please his mother at all costs even to the point of estrangement from his dad. He is afraid to feel worried, scared or hurt. This is an unnatural burden that no 12 year old should endure. It is unhealthy.
[49] M. is a very sensitive 8-year-old boy. He had the misfortune of being drawn into the parental conflict when Ms. D.W. alleged that M.W. assaulted him. His alienation from his father at the hands of his mother was evident when he told the assessor “when dad has a problem, I don’t care, when mom has a problem I really care”. I accept the assessor’s opinion that M. is a child with “some angry and sad feelings and with significant dependency needs” and in “considerable distress”.
[50] J. presents as an 8-year-old boy who distances himself from everyone but his mother. He is very guarded about what he says and does so as to not concern his mother. He generally avoids presenting his feelings and is very worried about his mother. The testing suggested a “tense and emotionally overwhelmed child whose approach to the task was uneven and heavily pressured”. I accept the assessor’s conclusion that J. is a “likeable hypervigilant child who has learned to maintain some self control by suppressing and denying feelings, particularly negative feelings, and by gearing all emotional reactions to keeping peace particularly with his mother”.
[51] Ms. D.W. has burdened these boys by insisting they keep secret their school and home addresses. Only children as above described could maintain this secrecy. It is not natural and Ms. D.W. should have achieved her objectives in some other way.
[52] There was considerable evidence that the boys present very well outwardly. They are achieving in school and do have some friends and activities. They appear as well rounded and appropriate to the observer. I find that this represents an outward shell that they have developed to please and protect their mother. It is a shallow guise. These boys have serious problems under their brave exteriors. I also find that Ms. D.W. has no insight into the boys conditions and does not see any concerns about how her sons are developing. I accept Ms. Van Feggelen’s opinion that these boys need to be “rescued” to avoid further damage.
[53] Ms. van Feggelen was very concerned about Ms. D.W.’s comments that “I can’t live without them and they can’t live without me”. In fact she was sufficiently alarmed that she made a referral to Child Protection alleging emotional abuse. I do not accept Ms. D.W.’s explanation that this comment was taken out of context. This is exactly how she feels.
[54] I must accept that the original Corollary Relief Judgment, and its subsequent variations, was correct and appropriate at the time it was made. Gordon v. Goertz (1996), 19 R.F.L. (4th) 177 (S.C.C.). A comprehensive access schedule was put in place. That anticipated access has fallen away and all that is left is a tortured remnant of what was attempted. I find that to be a material change in circumstances. I also find that the boys’ mental health has deteriorated over the years and that amounts to a material change.
[55] Change alone is not enough to amount to a material change in the circumstances of a child. The change must have altered the child’s needs or the ability of the parents to meet those needs in a fundamental way. Watson v. Watson (1991), 35 R.F.L. (3d) 169 (B.C.S.C.). The questions to be asked is whether the previous order might have been different had the circumstances now existing prevailed earlier. McCallum v. McCallum (1976), 30 R.F.L. 32 (P.E.I.S.C.). To quote Gordon v. Goertz, supra at page 190:
The change should represent a distinct departure from what the court could reasonably have anticipated in making the previous order.
[56] I am satisfied that the present access situation, and the boys mental state, amount to a change in the conditions, means, needs or circumstances of these children and their parents ability to meet their needs. I find that these changes materially affect the boys and that they were not foreseen or reasonably contemplated at the time of the original order.
[57] I find that the Section 17(5) threshold test has been met and that I must now enter upon a fresh assessment of the best interests of these children. Francis v. Francis (1972), 8 R.F.L. 209 (Sask C.A.). I must not default to the existing order and must not conclude the present custodial parent is the best person to have custody into the future. I am also not permitted to confine my inquiry to the changes which have justified variation. Willick v. Willick, [1994] 3 S.C.R. 670. I must inquire into the entirety of the present circumstances of the parents and the children.
[58] The best interests of the child is the only consideration that I can apply in determining future custody of these children. In order for me to assess the children’s best interests, I must consider how the threshold changes impact on all aspects of the children’s life.
[59] In pursuing this assessment I have considered Young v. Young, [1993] 4 S.C.R. 3. I have applied the following principles:
... the test is broad. Parliament has recognized that the variety of circumstances which may arise in disputes over custody and access is so diverse that predetermined rules, designed to resolve certain types of disputes in advance, may not be useful. Rather, it has been left to the judge to decide what is in the “best interests of the child”, by reference to the “condition, means, needs and other circumstances” of the child. Nevertheless, the judicial task is not one of pure discretion. By embodying the “best interests” test in legislation and by setting out general factors to be considered, Parliament has established a legal test, albeit a flexible one. Like all legal tests, it is to be applied according to the evidence in this case, viewed objectively. There is no room for the judge’s personal predilections and prejudices. The judge’s duty is to apply the law. He or she must not do what he or she wants to do but what he or she ought to do.
[60] In Foley v. Foley (1993), 124 N.S.R. (2d) 198 Justice Goodfellow advanced a number of factors that may be considered when assessing a child’s best interests for custody purposes. He cautions that this list is neither exhaustive nor ranked. Many custody decisions reference this list as a tool to arrive at what is in a child’s best interests. I will do likewise:
Statutory Direction: I have considered Section 17(1), 17(5), 17(6) and 17 (9) of the Divorce Act.
Physical Environment: These children have experienced several moves since separation, both in terms of homes and communities. There has been no evidence that these moves have caused disruption in their lives. The boys’ well-being, and their relationship with Mr. J.W., exceeds any benefits of staying in their present home.
Discipline: There has been little evidence to suggest that these boys require much discipline. I find that both parents are capable of appropriate discipline.
Role Model: Ms. D.W. believes she is a positive role model for her children but she is mistaken. Her influence is not leading the children into a well-rounded adolescence and adulthood. Mr. J.W. can be a positive role model but Ms. D.W.’s actions have shielded the boys from the benefit of their father’s influence.
Wishes of the children: There is no question but that the boys would prefer to stay with their mother. In actuality they resist any extension of time with their father. After considering the evidence of the assessor, I place little value on their wishes. The boys are young. There is evidence that once they are with their father they relax and seem to be happy in that home. They have developed sibling relations with Mr. J.W.’s stepson and their young sister. I find that the boys’ wishes are not based on a full appreciation of their options. Their stated wishes represent their desire to please their mother.
Religious and spiritual guidance: I do not consider this to be a factor that assists in this assessment.
Assistance of experts: The only current expert called was Ms. van Fegglelen. Her report and oral evidence clearly support a change in custody. Mr. J.W. has acknowledged the necessity and availability of counsellors for the boys should custody change. Ms. D.W. is ambivalent because she sees nothing wrong in the way she has been raising her sons. She does not accept the conclusions of the assessor.
Time availability of a parent for a child: I find that both parties have sufficient time to parent their children.
Cultural development of a child: This is not a factor in this case.
Physical and character development of the child by such things as participation in sports: I have no concerns about either parents ability to ensure the boys are involved in activities. Ms. D.W.’s evidence, and that of the assessor, establish that she has not been successful in developing character.
Emotional support to assist a child in developing self-esteem and confidence: The assessment clearly found that the children lack self-esteem and confidence. I found Mr. J.W. to be a confident man with a view to the future. Ms. D.W.’s efforts to date have created dependent and isolated children.
The financial contribution to the welfare of the child: Both parents are employed and are capable of supporting the three children.
The support of extended family: On the totality of the evidence I find that the boys will have greater contact with extended family if they live with their father. I am satisfied that in the past they were isolated from Mr. J.W.’s family as a result of Ms. D.W.’s actions and influence. They were isolated from Ms. D.W.’s extended family because of the conflict in that family’s relationships.
The willingness of a parent to facilitate contact with the other parent: Ms. D.W.’s track record in this area does not disclose such a commitment. In fact I accept the assessor’s conclusion that Ms. D.W. “wants to resolve issues by cutting J.W. out of the boys’ life as much as possible”. I also accept her oral evidence that if custody changes Mr. J.W. would be committed to access.
Interim and long range plan for the welfare of the children: Ms. D.W.’s plan is to continue with the status quo. The assessor stated that the status quo cannot continue and that the children must be rescued to avoid ongoing harm. On the other hand, Mr. J.W. has a forward looking plan for the boys. It is a plan that includes his present family, his extended family, the boys and Ms. D.W.
The financial consequences of custody: This is not a factor that weighs one way or the other in assessing the best interests of these children.
[61] This is a family that has not recovered from the impact of family breakdown. More importantly, the consequences of the status quo is adversely affecting these young children. The evidence leads me to believe that there is no possibility this situation can be fixed. Communication will not improve. Co-parenting will never happen. I agree with the assessor that the status quo cannot continue and that the children must be “rescued” from their present circumstances.
[62] This is one of those rare and exceptional cases where drastic action is required to meet the best interests of the children. It is a case where the wishes of the children must be given little weight. It is one of those few cases where the parental rights of one parent must be severely curtailed in the interests of creating a healthy family environment for these children. It is unfortunate for the parents that things have gotten so bad that the court is left with such limited options.
[63] I am granting Mr. J.W.’s application to vary the Corollary Relief Judgment, and variations thereto, respecting custody. Upon the release of this judgment Mr. J.W. will have sole care and custody of all three boys.
[64] These children have lived with their mother for 7 years. It is a rare case where custody and primary care changes after such a lengthy period. There is no doubt that the boys will experience some immediate trauma and grief. However, I am satisfied that this will be a temporary condition. I am satisfied that they will warm up to their new home and immediate family within a reasonable period of time. The evidence has shown that the longer the children are in Mr. J.W.’s home, the more relaxed and comfortable they become. Once they no longer feel compelled to please Ms. D.W., I expect that they will be more receptive to their new family and home. The boys do love their dad but have been stifled in their expression of their love. They have a good relationship with M.W. but she has been demonized by Ms. D.W. They love their step-brother and little sister. There is a varied and extensive lifestyle available in Mr. J.W.’s military community.
[65] I have made this decision as a result of several factors that are apparent on the evidence. I have placed considerable weight on the evidence of Ms. van Feggelen. I have concluded that if I do not vary custody, the boys will be irreparably harmed. Further, Ms. D.W. has no insight into the boys’ plight and, in fact, has created the status quo. On the other hand, Mr. J.W. is restrained and has shown himself more intuitive when it comes to the children’s best interests. He is more committed to non-custodial access than Ms. D.W. He enjoys a stable life, a functional family and an active extended family.
[66] I have also based my decision on the fact that in the foreseeable future it is unlikely that Ms. D.W. will change her attitude towards Mr. J.W. It is unlikely that she will change her approach to parenting given that she will not accept her shortcomings.
[67] In light of this decision, I will terminate all child support obligations set forth in the Corollary Relief Judgment and variations thereto. Should Mr. J.W. seek support from Ms. D.W., he can file an application with this court.
[68] The issue of Ms. D.W.’s access to the boys is very problematic for the court. Absent extenuating circumstances, the normal practice would be to extend as much access as is possible to Ms. D.W. Section 17(9) of the Divorce Act requires that:
In making a variation order varying a custody order, the court shall give effect to the principle that a child of the marriage should have as much contact with each former spouse as is consistent with the best interests of the child ...
[69] Ms. van Feggelen’s report first raised the spectre of supervised access to Ms. D.W. She stated that if Ms. D.W. continues to insist on secrecy, or moving the boys to a new location “consideration be given to allowing the children [to] live with their father, with supervised access to their mother”. I would broaden the words of her concern to the effect that if Ms. D.W. is found to be incapable of changing her approach to parenting, or her attitude to Mr. J.W. and access, then custody should go to Mr. J.W. with supervised access to Ms. D.W. This certainly is consistent with her oral evidence.
[70] Ms. van Feggelen also raised concerns as to what Ms. D.W. might do in the face of an adverse ruling in this case. She felt that if custody changed that there was a “potential” that she would run with the children. Ms. D.W. dismissed any suggestion that she would act in this way.
[71] I share the assessor’s concern. Ms. D.W.’s familial and employment connections to the community are tenuous. She has little to keep her here. I am concerned that Ms. D.W. feels so strongly about custody and Mr. J.W. that there is a real potential for flight. This is sufficiently real that the court must determine how to release this decision so that the potential for flight is removed.
[72] The assessor’s second concern was that if faced with a custody change, Ms. D.W. has the potential to do something “irrational”. When questioned further she stated that any irrational act could involve the children. This is a very serious allegation. However, I must say that I share the same concern. Ms. D.W. is unpredictable. She has not shown restraint in the past. She has ignored past court orders and can legitimize any action that is consistent with her view of the world.
[73] In Abdo v. Abdo (1993), 126 N.S.R. (2d) 1 (N.S.C.A.) Pugsley J.A. noted that there is no presumption that it is in the best interests of children to have contact with both parents. The consideration, and only consideration, is the best interests of the children. Justice Pugsley stated at paragraph 67 that “While contact with each parent will usually promote the balanced development of the child, it is a consideration that must be subordinate to the determination of the best interests of the child”.
[74] Justice Pugsley also referenced King v. Low, [1985] 1 S.C.R. 87 at paragraph 69 of the Abdo decision:
I would therefore hold that in the case at bar the dominant consideration to which all other considerations must remain subordinate must be the welfare of the child ... Parental claims must not be lightly set aside, and they are entitled to serious consideration in reaching any conclusion. Where it is clear that the welfare of the child requires it, they must be set aside.
[75] A risk of harm is not a condition precedent for limitations on access. Young v. Young (1993), 160 N.R. 1 (S.C.C.). In the case at bar, I have found that there is a risk of harm to these three children.
[76] In concluding that a Family Court Judge was correct in terminating Mr. Abdo’s access, Pugsley J.A. further stated:
Decisions on access must reflect what is in the best interests of the child. While the decision to terminate access by a parent is one, at which a court should be extremely slow to arrive, the evidence, in this case, dictates that result.
[77] In Studley v. O’Laughlin (2000), 188 N.S.R. (2d) 133 (S.C.F.D.) Campbell J. stated:
While the burden of proving that access to a parent should be denied rests with the parent who asserts that position, it is not necessary to prove that access by a parent would be harmful to the children. The extent of the burden is to prove that the best interests of the children would be met by making such an order.
[78] In Neill v. Best (1995), 147 N.S.R. (2d) 54 Judge Daley commented that
Access is not a reward for parenting or for not having custody. It is an active, productive, positive relationship that requires security, knowledgeable care, communication and understanding ... Access law should not encourage risk taking and experimentation with the emotional and physical growth of an infant child. It should look for benefits to the child, not neutral or potentially negative relationships.
[79] In light of the evidence before me, and the authorities cited, I feel that the best interests of these children demand that I interfere with access between Ms. D.W. and all three children.
[80] I am ordering that there be no ongoing access by Ms. D.W. to the boys for a period of four weeks. This is necessary to allow the boys to become comfortable in their new home. Access would likely become a vehicle for Ms. D.W. to prevent the children from settling into their new life. I will order two supervised contacts per month starting in February, 2005. The details of the supervision will be decided by Mr. J.W. These contacts should be for a period of two hours every second Saturday or Sunday afternoon. The purpose of these contacts is to allow these children some contact with their mom without interference by her in their new lives.
[81] This case will return to me in mid April, 2005 for a review of access by Ms. D.W. This will not be an appearance to re-visit custody. It will be an opportunity for Ms. D.W. to establish that she has addressed the concerns set forth throughout this decision. If she presents unchanged then access could be suspended indefinitely. If progress is made by Ms. D.W. then the court will consider reinstating access on a supervised or unsupervised basis.
J.