Mills v. Diamantakos: The Child’s Best Interest
This case deals with parents who have one child of the relationship that was five years old at the time of the Court proceeding. The Mother’s position was that she should have sole custody of their son, while the Father’s position was that there should be joint custody.
In June 15, 2006, the Mother brought a motion and was granted sole custody of the child, and access to the Father. However, the Father wanted the final Order of 2006 to be set aside. His reasoning was that he did not agree to sole custody and it was his understanding that the parties would have joint custody. The Father argued that it was a mistake that he made by leaving the Court prior to ensuring that a consent Order was made in accordance to his wishes of joint custody. The Father had ample opportunity to seek duty counsel for an understanding of the contents of the Order, and yet he deliberately decided to leave the Court without a proper understanding of the terms of the final Order.
The Court does not look highly upon individuals who delay in trying to set aside an Order. The legal principles the Court used to note the Father in default, and hence dismiss his claim include:
- If the party is absent when an order is made, the party must move without delay to have the Order set aside. Unfortunately, the Father waited 21 months to launch this motion to set aside the Order;
- The party is to provide a reasonable explanation in relation to the circumstance under which the party defaulted in attendance. The Court stated that there was nothing in the material that evidenced joint custody. Also, joint custody is not based on what the parties ask for rather it’s based on what is in the child’s best interests. As far as the Court was concerned, the Father never filed an Answer or attempted to materialize a defence against the Mother’s argument for sole custody. The Father had an obligation to inform himself of the Order by asking for assistance from duty counsel, the Court’s case management staff, or he could have personally attended the Courthouse, but he declined to; and
- The party must put forth facts to show that there was and continues to be a genuine issue for trial. Since the Father had not filed any material with the Court, the Court believed at this juncture to reopen the issue of custody would only create undue stress on the child. The Court dismissed the Father’s motion to set aside the 2006 Order.
In the alternative, the Father requested that the Court refer the case to the OCL to have the issue of custody and access canvassed and assessed so that the parent who can better care for the child is granted sole custody. The Court was not willing to get the OCL to intervene as they felt this was a premature suggestion. The Court stated that the parents had not used their best efforts to settle the child’s distress by working cooperatively to ensure a relaxed transition between the parents’ households. The Court advised that the parents exchange offers to settle the access dispute. The Court decided that once the parties were willing to explore a “sincere and child-centred effort” to provide an access plan that is in the child’s best interests, the Court would revisit the access issue at a case conference.
Unless a person has a very good reason for not moving sooner, Courts do not often tolerate people not participating in legal proceedings in the times provided in the Family Law Rules. The Father in these circumstances did not help himself in any way by not filing an Answer or providing the court with a financial statement. Coming back before the court 21 months after an order was made regarding custody and access, only compounded the problem. At the end of it all, what this case really came down to was whether it was in the child’s best interest to upset the status quo that had been in place for 21 months. There was nothing that the father provided to suggest that sole custody was not in the son’s best interest. The fact the father decided to take action 21 months after the order was made indicates that the father was prepared to and in fact lived with the reality of sole custody for almost 2 years.
What this matter really cried out for was a tweaking of the access schedule to make the access and exchange smoother and minimize the difficulties the “reasonable access on reasonable notice” clause for access provided. For anyone contemplating such an access proposal, be warned that this clause will only work if both parents are being “reasonable”. It just requires one or both parents to do something or expect something of the other parent and be disappointed to make “reasonable access on reasonable notice” unworkable. People need to think of Orders and contracts such as Separation Agreements as documents that protect you and set out what is expected of you and the other person when one or both of you is not being reasonable.