IN THE SUPREME COURT OF NOVA SCOTIA
(FAMILY DIVISION)
Citation: J.M. v. L.C., 2005 NSSC 156
Date: 20050616
Docket: SFHF-000197
Registry: Halifax
Between:
J. M.
Applicant
v.
L. (T.) C.
Respondent
|
Editorial Notice
Identifying information has been removed from this electronic version of the judgment. |
Judge: The Honourable Justice Kevin Coady
Heard: May 30, 31, June 1, 2, 2005 in Halifax, Nova Scotia
Decision: June 16, 2005
Counsel: David Grant, for the Applicant
R. Ritchie Wheeler, for the Respondent
Coady, J.:
[1] The child, A. F. M., is presently nine years old and living with his mother and her family in [...]. He has not had any contact with his father since December 31, 2001. Mr. M. has applied under the Maintenance and Custody Act requesting visitation. Ms. C. has applied under the Maintenance and Custody Act requesting sole custody and an order denying Mr. M. access to A.. Prior to the commencement of the trial, Mr. M. conceded sole custody to Ms. C..
[2] Ms. C. also applied for child support from Mr. M.. There has been no child support paid since separation in 2000. Prior to trial, Ms. C. advised the court that if visitation is denied, she will not seek child support. It is the intention of Ms. C. and her present partner to adopt A..
[3] Mr. M. argues his access to A. was arbitrarily cut off by Ms. C. and she has since stood in the way of the father-son relationship. He argues a renewed relationship is in A.’s best interest.
[4] Ms. C. takes the position that renewed contact will be disruptive to A. and, as such, is not in his best interests. In support of her position she alleges a history of pre-separation abuse, a fear of flight, the lengthy period since contact and the success A. has achieved living in [...] with his mother, stepfather and several siblings.
[5] These applications were filed in February, 2002. The trial was held over three years later. Mr. M. did not pursue an interim application and no steps were taken to advance his case for visitation. On the other hand, Ms. C. took no action to perfect her application. She was the custodial parent and Mr. M. was not pushing the issue of visitation. I have not found any reason for the delay. This delay of three-plus years has been prejudicial to Mr. M.’s case in that there has been an extended period of no contact with his biological son. This delay has been advantageous to Ms. C.’s case in that A. has lost all contact with his father and he has excelled in his new family setting in [...].
[6] Ms. C.’s application to terminate Mr. M.’s access to A. relies significantly on her allegations of verbal, mental and physical abuse during the marriage. She feels A. was exposed to this abuse and has been harmed by this behaviour. No expert evidence was offered on this point, so this conclusion amounts to her opinion.
[7] I am satisfied this couple’s household was very dysfunctional. All of the children were undisciplined and there was a lot of aggressive behaviour. They had problems in school and in the community. Ms. C. was ineffective in maintaining stability in the home.
[8] I find that Mr. M. brought very little to this family by way of positive contributions. He was an abusive partner and intolerant of the children’s behaviour. I accept that there was some violence in the home but there was little admissible evidence on this point. I find that much of the abuse was partner abuse. I am satisfied the partner abuse overflowed into the children’s lives. I find Mr. M.’s influence created further dysfunction in the home. It was as a result of the involvement of Children and Family Services that Mr. M. was separated from Ms. C. and the children.
[9] In 2003 Ms. C. married D. T. and in 2004 they, and the children, relocated to [...]. The family now consists of the parents, Mr. T.’s 25-year-old special needs son, Ms. C.’s two teenage sons and A.. They own their own home and are gainfully employed. The children are well settled and many of the problems of the past have been resolved. I am satisfied they are now a happy and functional family. Mr. T. has created a level of stability not before known to this family.
[10] A. has gone from a very timid, self-absorbed child to an outgoing and sociable boy. He is very happy in his new home and family and has many friends. He has learned French and is doing well in school. He has a wonderful relationship with his siblings. Mr. T. disciplines A., and the other children, without resorting to physical punishment. A. has grown very close to Mr. T. and refers to him as “Papa”. I accept Mr. T.’s evidence that A. makes no mention of his father, Mr. M..
[11] Mr. M. emigrated to Canada from [...] in the mid 1990's. He resided with Ms. C. for four years. While he was lacking in insight, he did provide care to A. when Ms. C. was at work. I must recognize that Mr. M. did care for his son for the first four years of his life. While he contributed little on the emotional side, I am satisfied he provided for his physical needs.
[12] There are two further factors which impact on this decision. The first is that after the December 31, 2001 assault, Ms. C. unilaterally terminated Mr. M.’s access. She took steps to make it difficult for Mr. M. to access A. at school or in the community. The second factor is that Mr. M. did little to advance his right to access. He did not pursue his legal remedies and did not take advantage of the caregiver’s offers to see A.. It should be noted that after 2000 and before January, 2002, Mr. M. was seeing A. on a weekly basis and was exercising some overnight visitations.
[13] I do not find Mr. M.’s behaviour was such that I would terminate his legal right to access for only that reason. I do not conclude he is a threat to A.. Further, I am not persuaded that Mr. M. is a flight risk. This case must be decided with reference to the following four factors:
- The significance of Ms. C. terminating Mr. M.’s access unilaterally after a period of regular post-separation access.
- The significance of Mr. M.’s failure to pursue access legally or through other channels.
- The significance of Mr. M. being the biological father of A..
- The significance of A.’s new stable life in [...] and the impact on that life by renewed contact with Mr. M..
[14] In Abdo v. Abdo (1993), 126 N.S.R. (2d) 1 (C.A.), the Nova Scotia Court of Appeal affirmed a Family Court’s decision to terminate access because continued access would not be in the best interests of the children. Pugsley, J.A. stated there is no presumption that it is in the best interests of children to have contact with both parents. The only consideration is the best interests of children. Pugsley, J.A. stated:
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.
[15] The Court of Appeal referenced the decision of MacIntyre, J. in King v. Low, [1985] l S.C.R. 87 and the following comments at p. 101:
... 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, however, they must be set aside.
[16] Pugsley, J.A. reviewed the Supreme Court of Canada’s decision in Young v. Young, [1993] 4 S.C.R. 3 in concluding the best interests test was the sole consideration and a risk of harm is not a “condition precedent for limitation on access”. In that case L’Heureux-Dubé, J., while dissenting, reflected the opinion of the majority, stating at p. 46:
... The best interests of the child remain the prism through which all other considerations are refracted.
[17] In concluding the Family Court was correct in terminating access, Pugsley, J.A. stated at paras. 122 and 123:
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.
It is borne out of the trial judge’s conclusion that Mr. Abdo was a domineering, selfish, argumentative, and at times, cruel spouse and father, who was both unpredictable and uncontrollable, and that his lifestyle was at odds with his parental responsibilities.
[18] I have also reviewed Campbell, J.’s decision in Studley v. O’Laughlin (2000), 188 N.S.R. (2d) 133, wherein he terminated access between the father and his child. In reaching his conclusion, he considered the following factors disclosed by the evidence:
(1) The couple did not live together, after the child’s birth, for any significant period of time in order to establish a bond that would ordinarily come from family life;
(2) The lack of involvement between the child and his father has caused there to be no relationship between them;
(3) The relationship between Mr. Studley and Ms. O’Laughlin was accented by abuse, hot temper and cruelty on his part;
(4) Mr. Studley appears to have a significant problem with anger management resulting in explosive and somewhat unpredictable losses of control, for which he seeks no help;
(5) The regime of supervised access was intentionally designed to provide for an opportunity for Mr. Studley to learn how to perform in the role of access parent and demonstrate his abilities, to gradually built a relationship with his son and to improve his post-separation relationship with Ms. O’Laughlin so that access arrangements can appropriately be implemented – an experiment which resulted in failure;
(6) I have concluded that the adverse effect on Ms. O’Laughlin that would derive from having to deal with Mr. Studley in respect of access matters, would, at this time, have a negative impact upon her ability to discharge her parental duties.
29 In conclusion, I was unable to conclude that the child would benefit from access to his father at this time. I have concluded that Ms.O’Laughlin has met the burden of proving that it is not in the best interests of the child to have access to be exercised, even on a supervised basis, by the father.
[19] I found the case of W.R.N. v. M.A.M. (1997), 161 N.S.R. (2d) 180 (N.S.F.C.) helpful in deciding this case. Buchan, J.F.C. terminated access where the father had not formed a bond with the child, had not paid support and had not completed the requisite classes as indicated in a prior order. The Court found the child was happy and healthy in a secure, loving environment, where the father figure of the child was the mother’s husband. Buchan, J.F.C. held this should not be disturbed at paras. 20 and 21:
20 The child does not know his birth father, W.R.N. There is no evidence before the court to remotely suggest that the child is in a poor environment. On the contrary, he is in a happy, loving and secure home. The mother’s husband is fulfilling the role of a father figure. The child has not seen W.R.N. for well over three years; therefore, there is no relationship to be continued at this point in time. W.R.N. has not supported the child. He has failed to go the distance with respect to meeting the conditions of the last order. Albeit, he would greatly desire to make contact again with the child, access is the right of the child, and if it is not in the child’s best interests, it cannot be forced upon a child. It may be in later years ahead that W.R.N. and the child may mutually establish contact, but at the present time, this child is too vulnerable and at risk of psychological harm if forced to have access with W.R.N., who, in the child’s mind, is a complete stranger.
21 From the vantage point of this child, and in reviewing the law and the facts of this case, I am satisfied, that based upon the best interests of this child, access to W.R.N. shall be denied.
[20] Professor James G. MacLeod, in an annotation to Bourdon v. Casselman (1988), 12 R.F.L. (3d) 395 (Ont. F.C.) discussed the law as follows:
... Although early cases seem to hold that the non-custodial parent is entitled to access in the absence of clear danger to the child, more recently, courts have ruled that access, like custody, is to be awarded having regard solely to the best interests of the child. Under this latter view, if a parent has little to offer the child from a moral, emotional, financial or social perspective, access may be denied. Whereas the former view effectively puts the onus on the custodial parent to justify the refusal of access, the latter view puts the onus on the non-custodial parent to show why he or she should have access. The simple fact of being a parent is insufficient.
[21] I make the following factual findings respecting the four factors set forth earlier in this decision:
- Ms. C. terminated Mr. M.’s access in an arbitrary manner and without consideration of the importance of the father-son relationship. She based this decision on the problems that existed between parents. However, given the passage of time, this cannot be a factor in determining A.’s best interest.
- Mr. M. has clearly failed to pursue access since early January, 2002, either legally or through private opportunity.
- Mr. M. is A.’s biological father. I find this to be the only present connection between A. and Mr. M.. I also find A. does not recognize Mr. M. as his father and I doubt that he knows of his biological father’s existence.
- A. is now very happy and secure and his future is very stable. He has a new “Papa”, siblings, friends and community. His behaviour has improved and his education is proceeding satisfactorily. Given A.’s history, this is a tremendous accomplishment.
[22] In light of these conclusions, I find that reintroducing A. to Mr. M., after three years, would not be in A.’s best interest. The only person to benefit from renewed contact would be Mr. M.. He has allowed the status quo to develop when it was in his power to do something about it. It is now too late. I, therefore, order that there will be no contact of any kind between Mr. M. and A..
J.