This case from the British Columbia Court of Appeal provided guidance on the “now settled” exception in Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction. Facts of the case The appellant, Mr. Andrzej Kubera…
The parties were married for approximately seven years before the wife decided to leave the matrimonial home in March of 2008 with the parties’ then five year old child.
At court on the motion for temporary custody, conflicting Affidavit evidence was presented to the presiding judge. Both parties asserted that they were the primary caregiver for the said child. The wife argued that she was the primary caregiver of the child, as she attended to all of the child’s basic needs, and provided to her all of the necessaries of life. Furthermore, she argued that the child had been in her primary care since the parties’ separation in March of 2008. In March 2008, the parties entered into an access arrangement that allowed the husband to see the child on alternative weekends and during the week. Since July 2008, the husband kept the child Tuesday overnight, but the wife argued that this arrangement was not in the best interests of the child during the school year. During court, the wife made further arguments that the husband was not cooperative, failed to communicate with her about the child, failed to make ample child support payments since April 2008, did not know how to properly parent, and was not responsible in returning the child to her on time. As a result of the foregoing, the wife argued that alternative weekends and mid-week visits, excluding overnight access during the week, were in the best interests of the child.
The husband, on the other hand, argued that he had a very healthy relationship with the child and participated at least equally or more in all aspects of the child’s life since birth. As a result, he argued that it was in the best interest of the child to have both parents participating fully in the child’s life. The husband asked the court for an order for joint custody and primary residence of the child, or in the alternative, an access schedule that allowed for mid-week access from Tuesday to Thursday, in addition to alternative weekends.
In arriving at it’s decision, like in all custody/access disputes, the court was mandated to consider the best interests of the child. In considering what temporary solution was in the best interest of the child, the court looked to the decision of Easton v. McAvoy for guidance. In this particular case, the court looked at the needs of the child and the circumstances as they existed at the time in determining what was in the best interests of the child. Furthermore, the court in Easton considered the willingness of each parent to allow meaningful contact of the child with the other parent.
The court in the case at bar, followed the principles in the Easton decision, and ultimately determined that since both parents were involved in raising the child and neither parent asserted that the other parent had posed any risk or harm to the child while in the care of the other, they were both good parents. As a result, even though the parties were unfortunately in a highly conflicted relationship, the court determined that the stability of the child was most critical at this time, and therefore, joint custody would be temporarily ordered. The court noted that although there are cases in the legal literature that say that joint custody should be avoided where there are disputing parties, this particular case warranted exception, as both parents were equally good parents. The judge made mention of the fact that she was able to discern from the Affidavit evidence that the mother was acting in a manner that was undermining the father’s role with the child, particularly in terms of school.
In addition to joint custody, the court further ordered that the husband was to have alternative weekend access, as well as access from Tuesday after school until Thursday at 7:00pm on the alternate weeks when was not spending the following weekend with his child, and Tuesday after school until Wednesday at 7:00pm on those weeks when the child was spending the following week with her father. Finally, the court made crystal clear to the parties that the child was not to be involved in the conflict between them; as such involvement would be most damaging to the child’s wellbeing. In the end, the judge alerted the parties to the fact that if joint custody did not appear to be working out between them, the order would be reviewed at a subsequent hearing. This of course sent both parties a strong message that it would be in everyone’s best interests to simply cooperate.