J. Q.B.M. A.D. 1994 No. 001581 J.C.M. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF MELFORT BETWEEN: TRACY LANDELL RESPONDENT (PETITIONER) and LORNE LANDELL APPLICANT (RESPONDENT) Irwin Carson for the respondent(petitioner) E. F. Anthony Merchant, Q.C. for the applicant (respondent) JUDGMENT KLEBUC J. August 6, 1996 Sophie Landell has two parents who both love her but who demean the capability and intentions of each other. Each parent seeks the custody of Sophie on the grounds that he or she is best able to meet Sophie's needs. Thus, the central issue is what custody arrangement would be in Sophie's best FACTS During the trial each parent presented volumes of evidence respecting the shortcomings of the other, all with the view of discrediting the other's ability to act as the custodial parent for Sophie. To review all of such evidence presented during the five-day trial would be unproductive and lead to prolix judgment. Therefore, briefly propose to set out those facts necessary to provide historical context and to deal with the distant past conduct of party only to the extent the same is relevant to her or his ability to act as the custodial parent. Lorne is 33 years of age and suffers from injuries he sustained in motor vehicle accident on February 12, 1991. As result of his injuries, he is unable to work and is dependent on disability payments received from an insurer. His injuries do not hinder his parenting capacity. Tracy is 28 years of age, works 48 to 50 hours month for modest salary, and is dependent on social assistance. Tracy and Lorne both live in the City of Saskatoon and each has rented house containing those conveniences necessary to provide satisfactory home for Sophie. The parties met in British Columbia in April of 1991 and began living together in August of that year. During their cohabitation, both engaged in the consumption of alcohol and used prohibited substances. Their relationship was not always harmonious one as evidenced by the fact that Lorne assaulted Tracy on approximately four occasions between late 1991 and mid 1993. Of those incidents, only one took place after Sophie's birth. Tracy became pregnant in late 1992. Lorne was pleased with the event, although his relationship with Tracy remained far from harmonious due to their respective unreasonable conduct. The parties moved to Nipawin, Saskatchewan in early 1993 and married there on June of that year. Sophie was born on July 10, 1993 and both parents immediately participated in her care and nurture. As consequence of being unemployable, Lorne was always available to attend to Sophie's needs. The parties continued to disagree and ultimately separated in February of 1994 without resolving the custody of Sophie. In August of 1994, they arrived at an agreement whereunder each would have Sophie for four-day intervals. Tracy breached the arrangement whereupon the matter of interim custody and access came before this Court. On November 14, 1994, an order issued giving Tracy interim custody of Sophie with Lorne to have Sophie in his care from Monday at 7:00 a.m. to Thursday at 4:00 p.m. In September of 1995, Tracy left Nipawin (where Lorne also resided) and moved to Saskatoon with the expressed intention of enrolling in massage therapy course. In fact her reason in leaving Nipawin was to frustrate Lorne's access to Sophie. The move failed its intended purpose for Lorne consistently travelled to Saskatoon in order to have Sophie's companionship for his allotted time. Tracy petitioned for divorce, custody of Sophie and child support for Sophie. Lorne counter-petitioned for divorce and custody of Sophie. Both petitions were heard in1995 and resulted in a decree nisi of divorce and an ordergranting Tracy custody of Sophie. The custody order wasappealed and the Court of Appeal directed a new trial. Changes in circumstances for Sophie and her parents since thefirst trial have created a materially different factualcontext than the one presented to the trier of fact in thefirst trial. Sophie was not developing according to established norms. Consequently, Sophie\'s doctor in early 1996 referredSophie to the Alvin Buckwold Child Development Centre at theRoyal University Hospital in Saskatoon where she was diagnosedas experiencing global development delay. In recognition ofSophie\'s needs, Lorne has moved to the City of Saskatoonbecause the Buckwold Centre is the only facility inSaskatchewan that offers the specialized attention Sophierequires. He further wished to play an active role in her training. Many persons testified as to the fitness of Tracy or Lorne to act as the custodial parent for Sophie. Their evidence essentially confirmed their respective credibility as child caregivers. Dr. Snyder, Wilma Clark and Dr. Schubert testified as expert witnesses. Lorne filed report by Dr. Cleland, clinical psychologist, which did not consider. THE LAW The issues before me arise in the context of divorce action. Consequently, the provisions of ss. 1(1), (8), (9) and (10) of the Divorce Act, R.S.C. 1985, c. (2nd Supp.) apply. Of particular significance are the provisions of ss. 1(8), (9) and (10) which provide: (8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child. (9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as parent of child. (10) In making an order under this section, the court shall give effect to the principle that child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact. In determining what is in the best interest of the child, as directed by ss. 1(8), this Court has consistently applied the principles outlined by Lord Simonds in McKee v. McKee, 1951 CanLII 305 (UK JCPC), [1951] D.L.R. 657 (P.C.) at p. 666 where he states: [T]he welfare and happiness of the infant is the paramount consideration in questions of custody To this paramount consideration all others yield. What is meant by the term "paramount consideration" is discussed in J. and another v. C. and others, [1969] All E.R. 788 and in K.K. v. G.L. and B.J.L. (1985), 44 R.F.L. (2d) 113 (S.C.C.). In J. v. C., Lord MacDermott at pp. 820-821 states: The second question of construction is as to the scope and meaning of the words ". shall regard the welfare of the infant as the first and paramount consideration." Reading these words in their ordinary significance, and relating them to the various classes of proceedings which the section has already mentioned, it seems to me that they must mean more than that the child's welfare is to be treated as the top item in list of items relevant to the matter in question. think they connote process whereby, when all the relevant facts, relationships, claims and wishes of parents, risks, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interests of the child's welfare as that term has now to be understood. That is the first consideration because it is of first importance and the paramount consideration because it rules on or determines the course to be followed. Subsection 1(10) of the Act expands upon McKee v. McKee by directing the Court to give effect to the principle that child should have as much contact with her or his parents as is consistent with the child's best interest. While parental conduct is of importance, ss.1(9) of the Act provides that the Court is only to take into consideration such conduct to the extent that it is relevant to the ability of the person to act as parent of the child. Mr. Justice Halvorson of this Court in Keyuk v. Keyuk (1993), 1993 CanLII 9108 (SK QB), 114 Sask. R. 222 states the principle clearly at p. 224: There is no convincing evidence however, to suggest this trait constitutes conduct which is ". relevant to the ability of that person to act as parent of child" as envisaged by s. 1(9). He [the father] has treated the mother roughly in the past. Perhaps, she must accept some criticism too. That was yesterday; this is today. DISCUSSION Parenting Resources and Plans Tracy spends qualitative time playing with and caring for Sophie while maintaining an active social life and working. Her current employment is inadequate; therefore, she proposes to study massage therapy starting in the fall of 1996. This course will take two years to complete and will involve intensive study on her part. During much of this period, Sophie must be placed in the care of sitter or day care facility for Tracy has few family members in Saskatoon to call on for meaningful child care. Her brother is university student and thus involved in his own activities. She has step-aunt who has three children of her own. question her availability to help despite her willingness, as do Tracy's great aunt who is 70 years of age. Lorne provides qualitative care for Sophie, including play and teaching. With respect to the latter, he undertook steps to help Sophie well in advance of the Buckwold Centre assessment of his daughter's need. He had purchased educational toys and equipment with the view of encouraging Sophie's development. More important, he patiently assists her in the use thereof. The very favourable comments by those who testified on his behalf confirmed my assessment of his child care skills and dedication to his daughter. Because ofhis employment disability, he remains available to providefull-time care for Sophie and exhibits a very strong desire todo so. When needed, his mother is also available to help in Sophie's care. Observation of the Experts Dr. Schubert interviewed Sophie and Lorne on several occasions, including one occasion where he attended at Lorne's home and observed their interaction. Based on his observations and tests, including the Minnesota Multiphasic Personality Inventory test he administered for Lorne, he had no reservation in opining that Lorne had good parenting skills and nothing in his character diminished his suitability to act as custodial parent. In his view, Lorne's previous conduct did not impair his ability to care for developmentally delayed child. Dr. Richard Snyder, pediatrician with the Buckwold Centre, testified that he had examined Sophie and found her delayed in language development and motor skill development. In his opinion, early intervention is required consisting of Sophie attending special preschool sponsored in part by the Buckwold Centre and receiving speech therapy and hand-eye coordination therapy available at the Buckwold Centre. In his view, Sophie needs the best stimulation available together with consistency and stability in her home life in order to overcome her developmental problems. To such end Sophie should live at one home, sleep in the same bed every night and receive consistent instruction from her parents and other caregivers. Inconsistency in parenting approaches in his view will further delay Sophie's development. Although he spoke favourably of Tracy, in my view, he had insufficient contact with Sophie's parents on which to base credible assessment of their comparative parenting skills. Wilma Clark, also opined that Sophie is developmentally delayed and recommended the program outlined by Dr. Snyder. In her report, Ms. Clark at p. notes the following: The other concern is the need for some consistency and stability in her [Sophie's] care. It is particularly important for children who are showing developmental and learning problems that they be in stable and secure environment where there can be consistent approach to management and one that is able to provide additional teaching and intervention. Dr. Schubert concurred with the approaches by Clark and Snyder concerning Sophie. Sophie will start the Buckwold Centre program in the fall of 1996 with the full support of her parents. Assaults and Misconduct While the past physical abuse of Tracy by Lorne is not acceptable, it is only relevant in the instant case if it affects his ability to parent Sophie. See Keyuk v. Keyuk. conclude that it does not. In arriving at my conclusion relied on the learned opinion of Dr. Schubert that nothing in Lorne's character or past conduct detracts from his ability to care for Sophie or to deal with Tracy concerning their daughter's welfare. Dr. Schubert further observed that Sophie and Lorne enjoy good parent-child relationship. The fact that Lorne has avoided other acts of abuse over the last three years has led me to be less concerned with his past conduct. Though baited by Tracy's stepfather to react violently on one occasion, and subjected to tense and emotionally trying situations concerning Sophie's custody on several occasions, he has avoided physical aggression. observed that both parents over the last year have taken more cooperative approach in their dealings with each other. Each parent is a capable caregiver. But for Sophie's special needs, would have no hesitation in awarding joint custody with Sophie living with each parent during alternative weeks. Unfortunately, Sophie's special needs currently require that she be under the direction and in the care of one parent. have no hesitation in finding Lorne to be better able to meet Sophie's current needs because he is available on 24-hour basis, has demonstrated caring nature, is focused on Sophie's needs, and his mother is available to assist when required. Presently, Tracy is unable to provide the degree of care and direction Sophie requires without significantly prejudicing her own development. Accordingly, I award Lorne custody of Sophie. Tracy will have weekly access to Sophie on two non-consecutivedays between 10:00 in the forenoon and 6:00 in the afternoon,excepting those hours on such days when Sophie is in school orreceiving therapy, plus an additional period of two hoursbefore six o\'clock in the afternoon on a third day. The third day shall not be on Saturday, Sunday, or statutory holiday falling on Monday. It is my intention that Sophie sleeps inthe same bed every night and receives one standard ofconsistent directions until the degree of consistency outlinedby Clark and Snyder is relaxed by the Buckwold Centre. In the first instance, leave it to Tracy and Lorne to fix the prescribed access dates and times having regard to Tracy's hours of work and Sophie's needs. If difficulties arise in arranging appropriate access, either party may apply to this Court for further directions. No costs are awarded to either party.
A decree nisi and an order granting custody to the mother was made in 1995. Upon appeal the Court of Appeal directed a new trial. Changes in circumstances included the fact that the child was developmentally delayed and required a special program. A pediatrician testified that inconsistency in parenting approaches would further delay the child's development. HELD: Custody was awarded to the father. 1)Each parent was a capable caregiver. However, the father was available to provide full-time care due to an employment disability and exhibited a strong desire to do so. The past physical abuse of his former spouse was not considered relevant as it did not affect his ability to parent the child. 2)The mother was to have weekly access on two non-consecutive days for eight hours and two hours on a third day. The child was to sleep in the same bed every night.