Johnstone v. Locke: three’s a crowd

Whoever said the “more the merrier” never had to arrange custody and access between disputing parents.

When it comes to accommodating more than two parents, more may simply mean more complication and more conflict.  Family legislation and the courts generally agree that the support and involvement of both parents is best for a child (exceptional cases aside).

But what about three parents?  That was precisely the issue before Justice MacKinnon in the recent matter of Johnstone v Locke in the Ontario Superior Court of Justice.

The Respondents, Mr. Locke and Ms. Sherrington, separated a few months after the first birthday of their child, McKayla.  Immediately, the couple entered into a shared parenting arrangement which was still in place at the date of trial.  When McKayla was approximately 20 months of age, Mr. Locke began dating the Applicant, Ms. Johnstone.  Ms. Johnstone and Mr. Locke began to live together in December 2004 and married in May 2007.  They later separated in December 2008.  The Applicant and Mr. Locke also had a son together, Adrian, born in June 2008.

During the course of Ms. Johnstone’s and Mr. Locke’s relationship, both Respondents approved of and encouraged the Applicant’s relationship with McKayla.  “An unquestionable bond of love and affection developed between [the Applicant] and [the child].”  When Ms. Johnstone and Mr. Locke parted ways, they agreed to a temporary “bird nesting arrangement” whereby the four days each week that McKayla resided with them were divided between the couple equally and Ms. Sherrington continued to have physical custody the other three days a week.

After failed attempts at mediation in Spring 2008, the Applicant launched an application seeking legal custody of McKayla, claiming that neither Respondent was capable of acting with their daughter’s best interest in mind. She proposed, rather, that the Respondents should have access to their daughter.  Alternatively, the Applicant sought an award of joint custody to all three parties with equal parenting time to each of them.

Quickly, and quite expectedly, the unusually close and cooperative parenting arrangement between the three adults deteriorated.  Although both Respondents stated that they would prefer the Applicant have no further involvement with McKayla, they nevertheless proposed that the court should allow the Applicant to see McKayla twice per month on in activity-based format. In contrast, the Applicant claimed that she had been alienated from McKayla and that the court should return to the residential arrangement that was in place during the bird nesting.

The court looked carefully at the entire situation, including the period the Applicant had been married to Mr. Locke, the interim period following their separation, and the period following the Applicant’s commencement of proceedings.  Justice MacKinnon emphasized that both Respondents had encouraged the Applicant’s parental role and the cooperative approach to parenting apparent prior to the commencement of proceedings.  However, the court was also careful to note that the extent to which the Applicant became involved in McKaylas’s care was not on account of disinterest on the part of the Respondents.

Justice MacKinnon chastised both Respondents, but particularly Mr. Locke, for making decreased access to McKayla a consequence of the Applicant commencing litigation, calling the Respondents’ conduct “punitive and harsh”.  Justice MacKinnon found Mr. Locke in contempt of court for his failure to both facilitate McKayla’s access to the Applicant on three separate occasions, and to positively encourage and convey to McKayla reasons why she should want to visit the Applicant. On the other hand, the court also commented on the Applicant’s failure to realize her impact or anticipate the Respondent’s adverse reaction to her pleadings regarding their inability to parent.

In the end, the court rejected the notion that a step-parent must have “assumed a parental role in substantial replacement of the natural parent” in order to be required to provide support/have custody and access rights.  In this instance, however, the determining factor was the relationship, at the time of trial, between the Applicant and both Respondents and McKayla.  Justice MacKinnon also gave great weight to McKayla’s views towards the Applicant and the situation on the whole.

McKayla is a bright, articulate and capable nine year old child.  Her views are an important consideration for me in considering what will be in her best interests…It is clear that her primary loyalty is to her parents…McKayla wants to put an end to the conflict that surrounds her and she believes that the way to do this is to end her relationship with the Applicant. McKayla appears to have forgotten how close and loving that relationship once was…

Ultimately, the court was limited in what it could order by the existing relationship between the parties. As Justice MacKinnon explained, “joint custody would be untenable in this case.  There is no basis of trust or ability to cooperate remaining that would enable these three people to successfully co-parent McKayla in [the] future.”  She also rejected the idea that imposing joint custody would assist the Applicant to maintain a relationship with McKayla.  Rather, Justice MacKinnon wrote, it is likely to fuel more conflict by feeding the competition between the parties.

In making her final order, Justice MacKinnon looked to the case of H(DW) v R(DJ) in support of the proposition that access should be awarded to an applicant who once played a primary parenting role with transitional assistance in re-establishing the once close and loving relationship.  Justice MacKinnon nevertheless stressed that the situation would only work going forward if the Applicant is able to accept a form of relationship with McKayla that does not depend on parental status.

As with all determinations of custody and access, the court’s analysis revolved around the question of the child’s best interest.  Both Applicant and Respondents were ordered to undertake a course of counselling to assist them in working through some of their conflict and easing the stress and tension on McKayla.  Justice MacKinnon held that it was in the best interest of McKayla to have limited access initially (Sunday afternoons outside the Applicant’s home) with increased access as the situation improved (one Saturday a month overnight).

One of the most interesting aspects of this case was Justice MacKinnon’s analysis of the rights and obligations of step-parents.  Step-parent cases more commonly deal with the support obligations of the step parent; however, there are two sides to every coin, and as the “family” continues to evolve, more cases are bound to emerge dealing with the issue of step-parents’ rights.

Andrew Feldstein

The Feldstein Family Law Group (FFLG) is one the largest family law firms that practices Family Law exclusively in Greater Toronto, with ten lawyers and counting. The boutique law firm has won the Top Choice Award for Family Law™ in Toronto for the past eleven years (2007 to 2017 inclusive).

Managing Partner Andrew Feldstein has been practicing family law for more than 20 years and frequently comments on Family Law issues through the media. The Feldstein Family Law Group offers vast written, video, and media resources on its website to those who find that they need to end their relationship.

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