Background

This was a motion to determine interim parenting arrangements for an 8-year-old boy and 7-year-old girl in light of a custody and access assessment under section 30 the Children’s Law Reform Act. The mother sought sole custody and primary care of the children in line with the recommendations of the assessor, and the husband sought sole custody and primary care with access for the mother.

Upon dissolution of the marriage, the father had been living in the matrimonial home while the mother and children had ultimately relocated to the maternal grandparents’ home. While the move had been without the father’s consent, the relocation was only two doors down, providing at least the geographic proximity necessary for co-parenting. Unfortunately for the mother’s case, the father’s access was only sporadic until the recommendations of the assessor were implemented.

The 63-page assessment found the parties to be hostile toward one another and incapable of a shared parenting arrangement. Subsequently, the report recommended sole custody to Mrs. Gorenc, with her home as the primary residence. While the assessor found the mother to be the stronger parent, he also cautioned the court about the mother’s efforts to diminish the father’s access to the children.

Analysis

This is a particularly interesting decision, in that while a certain amount of weight was given to the assessor’s lengthy report, Justice Baltman made an order that was contrary to the assessor’s opinion.

After weighing the available evidence, Justice Baltman deemed both parents’ proposals to be flawed, and preferred the maximum contact principle stipulated in the Divorce Act to the assessor’s recommendation. Given that both parents were capable and devoted to their children, the court ordered that the children spend alternating weeks with each parent. Considering the delays common to the family justice system, an order for sole custody in the mother’s favour would penalize the father by creating a status quo difficult to surmount at a trial many months down the road. Justice Baltman held that the assessor’s recommendations could not be acted upon without a full trial.

The order contained another 10 conditions specifying how this access schedule was to be implemented, including the instruction that the parents communicate with one another solely via email, and that “Neither parent will make any disparaging comments about the other parent in front of the children.”

Justice Baltman followed this order with some honest and learned advice for the parties that may well serve all family litigants engaged in custody battles. In an effort to steer the parties away from further acrimonious litigation, she offered the following:

This family is of limited means and the parents should now start focussing on a collaborative rather than divisive approach. In other words, they should spend their money on their children, rather than their lawyers’ children.