D. (D) v D. (H.), 2015 ONCA 409

In this high conflicts custody matter, the Ontario Court of Appeal reiterates the principles set out in King v Mongrain with respect to striking a party’s pleadings when custody and access are in issue.

Background

The appellant mother, HD, and the respondent father, DD, were married and have two young children together.  During the marriage, the Children’s Aid Society (CAS) became involved because of concerns for the children’s mental and emotional well being as a result of exposure to domestic violence.  Following separation, there were several incidents following which DD pleaded guilty to criminal harassment HD.

HD was later granted sole custody on a consent Order.  CAS recommended against unsupervised access for the father, but DD refused to engage in supervised access.  After receiving a positive and supportive response from CAS, HD moved with the children to Alberta.  At this point, the father had not seen the children for nearly 6 months.

DD brought a motion to vary the consent Order to gain custody of the children.  An ex parte Order was made in Ontario ordering HD to return the children to DD’s temporary care while the motion to vary was adjourned.  HD returned to Ontario for the hearing while the children remained in Alberta as per an arrangement with child welfare authorities.

Order Under Appeal

In her motion materials, HD provided ample evidence of harassment and stalking by DD as well as indication from the local CAS that the children would be apprehended if they were returned to him.  The motion judge required HD to return the children into DD’s care immediately or else she would bar HD from participating in the motion hearing.

As HD did not comply, the issues were decided solely on evidence adduced by the father.  He was granted sole custody under the Divorce Act and the mother’s access was subject to providing him with a psychiatric report he found acceptable.  While the motions judge gave no reasons for her decision, the transcript of the hearing indicated her concerns about HD’s mental health and possible substance abuse. In light of her frustration with the police and CAS’ failure to implement her Orders regarding the children, the motions judge further stated it was in the children’s’ best interests to return to Ontario.

Analysis

While the family courts have power to strike pleadings, it should be avoided in custody and access matters.  The Court of Appeal had held in King v Mongrain that a custody Order is not to be overturned by an appellate court in the absence of a material error, a serious misapprehension of the evidence, or an error in law.

The mother’s pleadings in King were struck because of her contemptuous behavior and custody was awarded to the father.  That Order was set aside because of an inadequate evidentiary basis to decide custody; and a failure to consider the best interest of the children in making the custody Order.

King reiterated the longstanding principles in family law that for a court to make custody and access decisions in the children’s best interests, a full evidentiary record and participation of the parents are generally required.

Here, the motions judge made similarly clear errors of law in dictating the prior custody order be set aside.

Inadequate Evidentiary Basis

According to King, the court needs the participation of both parents in order to make custody and access decisions in the best interests of the children.

HD (or her counsel) was essentially prohibited from participating in the motion in any way and denied her right to file materials, cross-examine, and make submissions.  As such, there the one-sided determination based entirely on the father’s submissions and witnesses was not supported by adequate evidence.

Failure to Consider the Children’s Best interests

While it was appropriate for the motions judge to consider the limited evidence of the mother’s mental health challenges, she failed to consider DD’s ability to parent in light of his guilty pleas to criminal harassment in a domestic context.  She further failed to give any consideration to the family’s history of domestic violence, the mother’s longstanding primary caregiver role in the children’s lives, the very young ages of the children, the father’s sporadic access over the majority of their lives, his decision not to engage in access, and the concerns of child welfare authorities about his domestic violence.

For the above reasons, the motion judge’s custody Order was struck down.  The Court further emphasized that the children’s best interests are the sole consideration in custody decisions.  The police and CAS’s failure to return the children to Ontario were irrelevant to the issue of custody.  Custody cannot be awarded to one parent to punish the other for non-compliance with court Orders.