• by Samantha Rich
Originally published in the OFLM 2023-11 edition
Justice Tweedie’s recent decision of Cameron v. Luckhardt (2023 ONSC 5477) is a helpful illustration of how the court interprets and applies the best interests of the child factors as enumerated in Section 16 of the Divorce Act. The court in Cameron also shows how the behaviour of both parents play an important role in making a final order relating to decision making and parenting time.
Willingness of Each Parent to Support the Child's Relationship with the Other Parent
Section 16(3)(c) of the Divorce Act states that, “In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including … each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse.”
Justice Tweedie reviewed both the mother and father’s behaviour in assessing their respective willingness to support the children’s relationship with one another.
She found that when the mother, “excludes the father from the children's lives, she minimizes the father's contribution to the children's lives, and she minimizes importance of him in the children's lives.” (at para. 22)
She found that the mother had a history of denying parenting time and not following court orders relating to parenting time. The mother “… did not have the best interests of the children in mind when she discusses with them whether or not they should go for parenting time with the father.” (at para. 23)
She also found several examples where the mother’s behaviour was problematic. These included her referring to the children as “my children”, her failure to inform the father of the birth, her failure to cooperate with the application to change the child’s last name to be inclusive of both parent’s last names, and her creating more responsibility for herself by denying the father parenting time. (at para. 25)
In reviewing the father’s behaviour, the court found that the father’s, “actions demonstrate that he does not provide the mother with information and uses the scheduling of his parenting time as a means to cause problems for the mother. This is not child focused and results in the children being placed in the middle of the parents' conflict…”
The court found that the father’s behaviour was rigid and inflexible, and that he prioritized his parenting time over the children’s established activities and schedules. Justice Tweedie found that the father would not respond to the mother's questions about access exchanges or notify the mother regarding who was picking the children up for scheduled visits, if not him. The father also did not provide the mother with information to enable her to meet the needs of the children when they were returned to her. (at para. 26)
Overall, the court found that both parents’ behaviour was problematic.
The Parents' Ability to Shelter the Children from the Conflict
Section 16(3)(i) of the Divorce Act states that, “… the court shall consider all factors related to the circumstances of the child, including … the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child.”
Justice Tweedie assessed both parents’ ability to shelter the children from the conflict by looking at their past behaviour. She cited Mattina v. Mattina (2018 ONCA 641) at para. 21:
... Exposure to conflict has been called the "single most damaging factor for children in the face of divorce"…
In Cameron, the mother, “admitted that she would have had conversations with friends within earshot of the children, during which she complained about the father.” (at para. 29)
On the other hand, the father also admitted to taking video and audio recordings of the children regarding parenting time and during exchanges. Justice Tweedie cited Whidden v. Ellwood (2016 ONSC 6938) in expressing her displeasure regarding parents taking photographs and videos during access exchanges at para. 96:
Parents in custody disputes really need to stop taking photographs and videos of one another during access exchanges.
a. They should stop pretending they're assisting the court by assembling important evidence.
b. The obvious reality is that taking videos is a strategic act of aggression and escalation. The situation never improves when people pull out cameras. Usually it gets worse. Indeed, often that appears to be the intention.
c. Access exchanges in high conflict files are already tough enough for children. Pointing a camera -- or multiple cameras -- at the interaction merely heightens the child's unease and worry that something bad is expected to happen. That someone they love is about to misbehave. That one parent is trying to get the other parent in trouble.
d. Videos recklessly and maliciously transform an ideally brief, benign transition into a horribly unhappy and frightening experience for the helpless child. The unpleasant confrontation may last only minutes. But the emotional devastation for the child can extend for hours, both before and after the exchange…
Justice Tweedie also reviewed the reports made to the Children’s Aid Society by both the mother and the father. The Children’s Aid Society reported that they were, “concerned about how much the children knew about the ongoing court proceedings and the conflict. They recommended counseling for both children...” (at para. 37)
Moreover, the police were called for assistance in enforcing parenting time on three occasions, without consideration of the impact on the children. Unsurprisingly, the court found that police involvement had been inappropriately requested and had involved the children in the parent’s conflict. As a result, a police enforcement clause was not ordered as per the father’s request. (at paras. 38 - 53)
The Father's Relationship with the Children
Section 16(3)(b) of the Divorce Act refers to, “… the nature and strength of the child’s relationship with each spouse ...”
Regarding the father’s relationship with Keira, Justice Tweedie emphasized the importance of parents adjusting their parenting techniques as children get older:
The parents have different parenting styles. This creates some challenges in co-parenting, particularly for the stricter parent, who, in this case, is the father. Parenting is hard. As children age, parenting techniques must change to respond to the child's increasing desire for independence and self-autonomy. Sometimes, a parent must try several discipline strategies before finding one that works. Instead of reflecting on why his discipline might not be working and persevering, the father told Keira she was not welcome back in his home. The father showed little to no insight into the potential impact on Keira of his refusal to have her attend his house. He made no comment that he could or should have done things differently. He, the parent, put the onus on Keira to re-initiate the relationship. (at para. 59) (emphasis added)
The court affirmed that, “A parent must not just accommodate access, they must facilitate it.” (at para. 67) She found that the mother was not encouraging of the relationship between Keira and her father, and that she, “is a passive observer of the deterioration of the relationship and does little to assist and foster its improvement.” (at para. 68) That being said, Justice Tweedie found no parental alienation to have occurred. (at para. 80)
The Children’s Cultural Upbringing and Heritage
According to Section 16(3)(f) of the Divorce Act, the court shall consider, “… the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage.”
Justice Tweedie affirmed the importance of children being exposed to and involved in both of their parent’s cultural heritage at para. 103:
The mother is White and is not Jamaican, and because of this alone, the mother is not able to provide the level of connection to culture and heritage that is provided by the father. While she may be aware of appropriate hair care, she did not speak at all about other aspects of Jamaican and Black culture and any actions she has taken to connect the children to that culture. She does not frequently socialize with Black or Jamaican people and so neither do the children when they are in her care. The mother has not had the same life experiences, as a White person, that the father has had, being Black. She is unable to provide the same support and guidance to the children as the father, while the children navigate the challenges they may face being biracial. (emphasis added)
She cited NS v. RM (2021 ONSC 4566) in emphasizing the importance of children connecting with their cultural heritage:
If the father is to have the opportunity to teach the children about their Inuit heritage, he must have the opportunity to meaningfully immerse them in family and community events, and perhaps to travel with them to Labrador, where he is from. (at para. 36)
She found that, “it is in the children’s best interests that the father’s parenting time is expanded such that he is able to maintain their connection to their Black and Jamaican heritage and provide support to them as they navigate being biracial in a world where bias and racism still exists.” (at para. 105)
A similar example where culture was part of the discussion, albeit in a relocation case, was Justice Akazaki’s decision of Shipton v. Shipton (2023 ONSC 1342). In Shipton, the importance of a child being exposed to both their parent’s heritage and cultural identity was emphasized:
… the religious and homogenous community proposed for the child's upbringing is ill-equipped to support a biracial female from different faith backgrounds … The very fact that the child, as a Torontonian, can pursue so many paths and experiment safely with so many aspects of her potential identity, make it difficult to see how she would benefit from the relocation. (at para. 81) (emphasis added)
In applying the Section 16 factors, the court in Cameron decided that the children's primary residence would remain with their mother as this had been the status quo for some time, and until the trial, the father had not sought more time with the children. The court also awarded sole decision making to the mother.
A prominent theme of the case was the conflict that the children were regularly exposed to. Unfortunately, both parents were unable to shield the children from their conflict.
It is therefore vitally important that children are sheltered from conflict during litigation proceedings. The words of Justice Chappel in SVG v. VG (2023 ONSC 3206) are a helpful reminder:
…. the exposure of children to high levels of conflict "is the single most damaging factor for children in the face of divorce." … children's exposure to conflict can significantly undermine their overall functioning and well-being … courts deciding parenting matters have a positive obligation to lift children out of the sea of conflict that too often characterizes Family Law cases … if parties are unable to safeguard children from conflict, the court must take matters into its own hands by uncovering and exposing the sources of the conflict and imposing terms targeted at eliminating those causes … that in framing the terms of a parenting order, shielding children from conflict must always take priority over parental rights, preferences and convenience, and it may be necessary for the sake of the child to impose terms that are costly and challenging for parties to accept and comply with … (at para. 114) (emphasis added)
Cameron teaches us an important lesson in advising clients on parenting cases. It is a helpful reminder to advise clients as early as possible on what is appropriate and inappropriate behaviour relating to parenting and communication with ex-spouses.
One can argue that not providing a client with such advice can have real consequences at trial when a judge assesses the behaviours of both clients.
Emailing a client a checklist or a link to a helpful resource is a good start. But, as the case progresses, counsel should also listen to the unfolding events and provide specific advice and guidance so that the client can learn from any mistakes and improve as they go.
Hopefully, with enough discussion and guidance, the client will improve their communication and co-parenting skills and shield children from conflict.