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 wellbeing 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.
Parents who wish to have sole custody of their children may think that by attacking the parenting skills of the other parent they will gain sole custody of the children. The case of Jamieson v. Jamieson from the Court of Appeal demonstrates how this strategy can backfire.
The parties in this case had a two-year old son. Both parents came to court firmly of the view that any joint custody arrangement would be unworkable because of the intense animosity between the parties. Thus, both parents sought sole custody of the child. The trial judge agreed that joint custody was inappropriate in this situation. The trial judge determined that both parents were equally competent at parenting the child. Thus, the decision regarding who to award sole custody turned on the maximum contact rule set out in section 16(10) of the Divorce Act which states “the court shall give effect to the principle that the child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child.”
The trial judge determined that the father would ensure maximum contact between the child and the mother while he was unsure about the mother’s ability or desire to do so. The crucial evidence for this finding was based on the testimony of a child and family services worker who explained how the mother had made repeated complaints against the father concerning the care of the child. When the child and family service worker went to investigate these complaints, attending at the father’s home on at least eight occasions, she found no basis for the concerns. The trial judge interpreted this evidence as further confirmation that the mother would not facilitate contact between the child and the father and was determined to undermine the parenting skills of the father. As such, the trial judge awarded sole custody of the child to the father.
The mother appealed this decision and was again unsuccessful. The Court of Appeal concluded that the findings of the judge were reasonable and appropriate and found no error in the conclusion of the lower court.
Overall, this case serves as a harsh lesson to parents who try to undermine the parenting abilities of the other parent. It also highlights the fact that when parents cannot cooperate, the court is forced to pick one parent over the other. Accordingly, it is very important to keep this in mind when making allegations against the other parent as you do not want to make allegations that will not be substantiated.