Date: 19961211
Docket: CA017385
Registry: Vancouver
COURT OF APPEAL FOR BRITISH COLUMBIA
BETWEEN:
PETER STUART ROBINSON
PETITIONER
(RESPONDENT)
AND:
MARIA CHRISTINE FILYK
RESPONDENT
(APPELLANT)
Before: The Honourable Madam Justice Rowles
The Honourable Mr. Justice Donald
The Honourable Madam Justice Huddart
P. Kenney Counsel for the Appellant
B.L. Fogelberg Counsel for the Respondent
Place and Date of Hearing Vancouver, British Columbia
1 October 1996
Place and Date of Judgment Vancouver, British Columbia
11 December 1996
Written Reasons by:
The Honourable Madam Justice Huddart
Concurred in by:
The Honourable Madam Justice Rowles
The Honourable Mr. Justice Donald
Reasons for Judgment of the Honourable Madam Justice Huddart:
[1] This is an appeal from an order granting sole guardianship
and sole custody of Pascale Robinson to her father. The
appellant is Pascale's mother who sought either sole custody or
joint custody at trial. She does not appeal the trial judge's
decision that Pascale should live with her father, but asks
that this court order joint guardianship and joint custody,
with primary residence to the father. She says that is the only
proper order to flow from the findings of fact made by the
trial judge, that the trial judge erred when he refused to
continue the consensual care-giving arrangements that had
worked well for Pascale from the time of her parent's
separation in February 1990 until the order of a master in
August 1992, only because of the geographical distance that
separated them. At the time of the trial the mother lived in
Calgary, the father in London, Ontario.
[2] As will become apparent, this case requires this court to
revisit the principles that are to guide a trial judge's
decision as to whether joint or sole custody is in the best
interests of a child under the Divorce Act, R.S.C. 1985 (2d
Supp.), c. 3 and the Family Relations Act, R.S.B.C. 1979, c.
121.
The Facts
[3] Pascale was born in May 1986 in Paris where her mother was
pursuing graduate studies. Shortly after her birth her parents
married. Until her parents separated in February 1990, she
lived with both parents in Vancouver while her mother worked
and her father studied at the University of British Columbia.
After the separation Pascale lived about half of each week with
each parent. That arrangement worked well until her father
obtained his Ph.D. and a teaching position at the University of
Western Ontario and her mother was accepted at medical school
at the University of Calgary. Both parents wanted to be
Pascale's primary caregiver.
[4] The mother's plan was that she and Pascale would live with
her mother in the family residence in Calgary where she had
grown up. The father's plan was that Pascale would live in
London with him and his new partner, Catherine Cooke, whom
Pascale had known since April 1990. When they could not agree
on Pascale's primary residence, even with the help of a
mediator, the father petitioned for divorce with either sole or
joint custody, but with his home as Pascale's primary
residence. The mother responded by seeking sole or joint
custody of Pascale, but with her primary residence in Calgary.
[5] On 14 August 1992, a master awarded interim custody to the
father. When the trial began in April 1993, Pascale was living
happily in London with her father and Ms. Cooke, whom he
planned to marry that summer. Her mother was living in Calgary.
Pascale had visited her on her way to Ontario the previous
August, for ten days in October, three weeks in December, and
two weeks in March 1993. By all accounts Pascale was continuing
to do well.
The reasons of the trial judge
[6] Early in his oral reasons, at 4, the trial judge said:
There is little to choose between the parents. I am
satisfied that both are perfectly capable of
providing Pascale with a stable, nurturing home.
Their love and concern for her cannot be questioned.
If, in these reasons, I am critical of either party,
those criticisms relate only to consideration of
where Pascale's interests will be best served. They
should not be taken to mean that I consider either
party a poor resource for Pascale.
[7] After a careful consideration of the circumstances of
both parents, the trial judge found that the best interests of
Pascale would be served if she continued to live with her
father, stating, at 10-11 of his reasons:
I have no doubt that Pascale could be happy in
either home and Ms. Cooke and Mrs. Filyk are both
capable of providing appropriate alternative care in
the absence of the parents. In the longer term, I am
satisfied that both parties are capable of continuing
to care for Pascale. Medical residency for Ms. Filyk
would not be a problem. Children of single parents
are quite capable of doing well.
[8] As I mentioned earlier, the appellant does not seek to
overturn that decision. She asks only that she be awarded joint
guardianship and joint custody so that she may continue to have
a decision-making role in Pascale's upbringing. She considers
that is prevented by the award of sole guardianship and sole
custody to Dr. Robinson. The trial judge addressed the issue of
a joint order this way, at 11-12 of his reasons:
I have given anxious consideration to the
advisability of making a joint order. As to physical
custody, such an order is not appropriate. The
parties have been unable to agree and it was
necessary to make a decision for them. As to other
parental rights, given the lack of rancour between
the parties, their intelligence and maturity, and the
history they gave of resolving access problems during
the period following the interim order of Master
Wilson, I considered that it might be possible for
the parties to work together in sharing decisions
regarding Pascale's upbringing. I am mindful,
however, of the caution of the Ontario Court of
Appeal in Baker v. Baker, 8 R.F.L. (2d) 236 that
joint custody is an exceptional disposition and
appropriate only where two parties will be able to
co-operate. I believe that the parties here would be
able to co-operate if they were in the same city but
I have reluctantly concluded that their geographical
separation would make a joint order of custody and
guardianship unworkable.
On balance I am persuaded that the best
interests of Pascale lie with her father having the
responsibility of providing her primary residence and
the ability to make the decisions regarding her
upbringing. There will therefore be an order for sole
custody and guardianship to Mr. Robinson. There will
be reasonable and generous access to Ms. Filyk. I
make no order for specific periods of access. I
anticipate that the parties will continue to arrange
for access with the best interests of Pascale in
mind.
I direct that the petitioner provide to the
respondent copies of all reports received concerning
Pascale's education, medical and dental history and
such other information regarding her care as Ms.
Filyk may reasonably request. I make no order but I
express the hope and expectation that Mr. Robinson
will consult with Ms. Filyk on all major decisions
concerning the development of Pascale.
Subsequent Developments
[9] Counsel advise that the trial judge's expectation has been
fulfilled. Pascale has spent lengthy periods of time with her
mother during school vacations. The parents have required the
assistance of the court to resolve a dispute only once. In June
1996 the appellant became aware that the respondent had
accepted a teaching position at a university in Norway. She
asked the court to consider a change in Pascale's custody. A
chambers judge ordered an independent interview with the
consent of both parents. After that interview the parents
agreed that Pascale would move to Norway with her father. The
only unresolved issues are ancillary changes regarding
maintenance and the costs of travel between the parents' homes.
Since the order of the trial judge, the appellant has been
paying travel costs, but no maintenance. Pascale continues to
do well.
Guardianship
[10] No claim was made in the petition or counterpetition for
guardianship under the Family Relations Act. Although the trial
judge's reasons suggest that such an order was sought at trial,
there is no indication that the pleadings were amended.
Nevertheless it was within the court's jurisdiction to make
whatever order the trial judge deemed necessary to ensure
Pascale's best interests, whether that be sole or joint
guardianship under s. 30(1) of the Family Relations Act or sole
or joint custody under s. 16(4) of the Divorce Act. See
Levesque v. Lapointe (1993), 44 R.F.L. (3d) 316 at 324
(B.C.C.A).
[11] The respondent does not disagree that a joint guardianship
order is in the best interest of Pascale. The trial judge's
reasons do not reveal that he considered the possibility of a
joint guardianship order with sole custody to the respondent.
However, from the proceedings at trial it is clear that he was
alive to that possibility. The respondent's view can be
discerned from his own words at the trial, in response to a
question by the court, at 165 of the transcript:
THE COURT: Let me put a specific question to you.
One of the options open to me would be to make
an order for joint custody and joint
guardianship or sole custody with joint
guardianship. Do you think that the two of you
are mature enough to deal with an order like
that which requires a very large measure of co-
operation?
A I guess my views on this are as follows, I think
it's very important for Pascale for her mother
to be involved in her life. I feel that for that
reason I have an unchangeable obligation to
involve Maria in Pascale's life and, therefore,
over this past year I have treated the
arrangement as a joint custody arrangement and a
joint guardianship arrangement and consulted
Maria on all decisions relating to Pascale. I
see that as an indelible obligation based on the
nature of Maria's relationship with Pascale and,
therefore, even though I find dealing with Maria
and negotiating with Maria very difficult, I
feel that from the point of view of my child it
is an arrangement that is, with difficulty,
workable and it is an arrangement that is in
Pascale's interest.
THE COURT: So you would not be opposed, if I am
understanding you correctly, to an order for
joint guardianship which would require you, if
you were the one with custody, to involve Maria
in making decisions on Pascale's upbringing?
A No, I would not be opposed to that.
[12] The respondent had earlier expressed concerns about the
potential for access problems if Dr. Filyk were to have sole
custody of Pascale. In cross-examination it became apparent
that the communication difficulties giving rise to his concerns
began with the interim order for sole custody in August 1992
and Dr. Filyk's move to Calgary to live with her mother.
[13] It seems that the communication difficulties the trial
judge saw as having derived from the geographical separation
between the parents were the only reason for not ordering joint
guardianship, as they were the only reason for not ordering
joint custody. That result means that, were her father to die,
Pascale's mother would be required to obtain a court order to
assume guardianship and custody of Pascale. As events have
transpired, it also makes Pascale vulnerable to her mother's
lack of decision-making authority when she is in the care of
her mother in Alberta, should an accident befall her.
[14] When a joint guardian dies, the surviving guardian
continues as sole guardian without the need for an order under
the Infants Act or the Family Relations Act (F.R.A., s. 29(2)).
Because a guardian is guardian of both the person and the
estate of a child (F.R.A., s. 25), upon the death of the
custodial parent, the child's guardian is obliged to assume
full responsibility for the child's care and can do so without
requiring the intervention of public authorities or the courts.
Providers of medical care frequently require the consent of a
guardian before undertaking some treatments. Finally, had the
appellant been the joint guardian of Pascale, she would not
have had to bring an application for custody to seek the
direction of the court with regard to Pascale's change of
residence earlier this year. She would have been able to make
an application under s. 32 of the Family Relations Act as a
joint guardian, asking for directions on the various issues
flowing from the respondent's change of residence. Such an
enquiry, with its emphasis on Pascale's best interests, would
remove some of the threat implicit in the more adversarial
application for a change of custody, the only process available
to a non-custodial parent without guardianship rights by which
to have issues of concern resolved.
[15] In circumstances where the court determines that both
parents are fully capable of caring for a child, the child has
done well under their joint care, the first dispute between
them arises because of a change of their circumstances that
requires a decision as to the child's primary residence, and
neither parent puts forward reasonable grounds for opposing a
joint guardianship order, I should think that a child's best
interests would require the continuation of the joint
guardianship the parents had shared since the child's birth.
[16] As I shall explain shortly, I am of the general view that
an appellate court should interfere with the decision of a
trial judge in matters of custody and guardianship only rarely.
Nevertheless, I am persuaded that this is one of those cases
where the interests of Pascale require that we do so, as her
parents both recognize. Geographical separation may make a
joint custody order unworkable, but it makes a joint
guardianship order desirable when a child spends considerable
periods of time with the non-custodial parent and that parent
is the obvious person to assume the care-giving of the child
upon the death or incapacity of the custodial parent.
[17] When a child is doing well under the care of two good
parents, the views of those two good parents must be respected.
The court's intervention in the family should be limited to the
resolution of the issue that brings them to court. In this
case, the parents who were joint guardians and joint custodians
by agreement could not agree on Pascale's primary residence;
both sought sole custody; and neither opposed joint
guardianship. It may be that the trial judge simply overlooked
the fundamental agreement about guardianship because of the
over-arching struggle about custody. It may be that counsel did
not articulate clearly the parents' views about joint
guardianship in their anxiety to ensure that the trial judge
understood their position with regard to custody. It was the
trial judge who raised the issue with both parties during their
cross-examination.
Custody
[18] The appellant says that the trial judge was wrong to
deprive her of all decision-making authority with regard to the
upbringing of Pascale solely because of the geographical
distance between Calgary, Alberta, and London, Ontario.
[19] In her factum, she desribes the errors this way:
(1) failing to consider the jurisdiction of the
Court under either the Family Relations Act or
the Divorce Act to order joint custody;
(2) failing to consider the circumstances under
which a Court may make an order for joint
custody;
(3) failing to apply the relevant considerations for
a joint custody order to the circumstances of
this case and concluding that the geographical
separation of the parties precluded a joint
custody order.
[20] The essence of her argument is that the trial judge in
effect applied a presumption in favour of sole custody to s. 16
of the Divorce Act, 1985, when he adopted the cautious approach
to joint custody taken under the earlier Divorce Act by the
Ontario Court of Appeal in Baker v. Baker (1979), 8 R.F.L. (2d)
236 and Kruger v. Kruger (1979), 11 R.F.L. (2d) 52, approved by
this court in Stewart v. Stewart (1994), 2 R.F.L. (4th) 53,
rather than making the enquiry into Pascale's particular
circumstances mandated by s.16 of the Divorce Act, 1985, as
interpreted by the majority of the Supreme Court of Canada in
Young v. Young, [1993] 4 S.C.R. 3 and affirmed most recently in
Gordon v. Goertz, [1996] 2 S.C.R. 27. On the required analysis
a care arrangement would be tailored to each child. On the
facts the trial judge found, Dr. Filyk argues that he should
have named the arrangement "joint custody" and not deprived her
of all decision-making rights with regard to Pascale.
[21] Dr. Filyk points to decisions of the trial court,
beginning with my decision in Anson v. Anson (1987), 10
B.C.L.R. (2d) 357 and continuing with those of Hinds J. (as he
then was) in Kamimura v. Squibb (1988), 13 R.F.L. (3d) 31,
Josephson J. in Heyman v. Heyman (1990), 24 R.F.L. (3d) 402,
Hood J. in Fry v. Silkalns (1993), 47 R.F.L. (3d) 169, and
Vickers J. in Senft v. Senft (15 February 1994), Nanaimo
Registry 5920/008981, as support for the criticism, both
academic and judicial, of the "cautious approach" founded on
the earlier Divorce Act. In these and other cases, trial judges
have ordered joint custody, on occasion over the objection of
one parent, on occasion where the parents' parenting
philosophies differed, if it appeared likely that the parents
could co-operate, because a joint custody order would best
ensure that the child's need for the love and affection of both
parents would be fulfilled.
[22] In Anson I opined that a joint custody and joint
guardianship order would be appropriate "where both parents are
excellent parents, there is a history of co-operation with
respect to the parenting of the child and there is no valid
reason to exclude a parent from having significant input into
the raising of the child" (at 370). I have come to be persuaded
that such a statement is as much a statement of legal or
factual presumption as that of the majority in Baker and
Kruger. It is now clear that legal and factual presumptions
have no place in an enquiry into the best interests of a child,
however much predictive value they may have. The Supreme Court
of Canada has stated absolutely clearly that such presumptions
detract from the individual justice to which every child is
entitled.
Discussion
[23] The concept of the best interests of a child has been
called ephemeral. Certainly it is difficult to apply. However
transitory it may appear, this concept is nonetheless the only
test for guardianship and custody of a child available to a
court in British Columbia.
[24] The Divorce Act adds only two factors for a trial court to
consider. Subsection 16(9) forbids the court from considering
"the past conduct of any person unless the conduct is relevant
to the ability of that person to act as a parent of a child."
Subsection 16(10) requires a court to "give effect to the
principle that a 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, [a court] shall
take into consideration the willingness of the person for whom
custody is sought to facilitate such contact."
[25] Section 24 of the Family Relations Act sets down the
factors the court is to consider in assessing the best
interests of the child. They include the health and emotional
well being of the child, the views of the child where
appropriate, the ties that exist between the child and other
persons, education and training for the child, and the capacity
of the available adult resources. Consideration of material
well-being is relevant to guardianship of the estate of the
child. Consideration of conduct is limited as in the Divorce
Act.
[26] In a country where there is no common parenting philosophy
it may not be surprising that the legislatures have chosen to
mandate individual enquiries into the individual child's best
interests, rather than to impose a community view of parenting
by laying down stricter guidelines for the exercise of a
court's authority to decide what is in a child's best interests
when parents cannot. The analysis of the child's needs and
resources will be contained by the particular child's extended
family and community.
[27] Any thought that an enquiry into a child's best interests
is to be "undertaken with a mindset that defaults in favour of
a preordained outcome absent persuasion to the contrary" was
dispelled in Gordon, supra at 58. Writing for the majority,
McLachlin J. emphasized the individual nature of every enquiry
at 58:
But Parliament did not entrust the court with the
best interests of most children; it entrusted the
court with the best interests of the particular child
whose custody arrangements fall to be determined.
Each child is unique, as is its relationship with
parents, siblings, friends and community. Any rule of
law which diminishes the capacity of the court to
safeguard the best interests of each child is
inconsistent with the requirement of the Divorce Act
for a contextually sensitive inquiry into the needs,
means, condition and other circumstances of "the
child" whose best interests the court is charged with
determining. "[G]eneral rules that do not admit of
frequent exceptions can[not] evenly and fairly
accommodate all of the varying circumstances that can
present themselves": per Morden A.J.C.O. in Carter v.
Brooks, supra, at p.51. The inquiry is an individual
one. Every child is entitled to the judge's decision
on what is in its best interests; to the extent that
presumptions in favour of one parent or the other
predetermine this inquiry, they should be rejected.
"No matter what test or axiom one adopts from the
many and varied reported decisions on this subject,
each case must, in the final analysis, fall to be
determined on its particular facts and, on those
facts, in which way are the best interests of the
children met": Appleby v. Appleby, supra, at p.315.
[28] This clearly articulated approach to the enquiry about a
child's best interests must extend to the choice between sole
and joint custody under the Divorce Act. Madam Justice
McLachlin was discussing a presumption in favour of the
custodial parent on an application for variation of a custody
order upon proof of a material change in circumstances, which
in the case before the Court, was the proposed move of the
custodial mother to Australia. The view expressed, however, is
equally applicable to a presumption in favour of joint or sole
custody. There simply can be none, whether the presumption
comes from the judiciary as an institution or from the
experience of an individual judge. Nor can there be concern
about parental rights unless those rights are necessary to
advance the child's best interest.
[29] The only issue is the child's best interest. "The child's
best interest must be found within the practical context of the
reality of the parents' lives and circumstances, one aspect of
which may involve relocation" (Gordon, supra at 59).
[30] When the decision of a trial judge who has conducted an
individual enquiry into the best interests of a child falls to
be reviewed by an appellate court, that review will inevitably
focus on the process and the presumptions brought to the task.
If the reasons reveal a mindset with a pre-ordained default
position, then the decision must be reviewed as if that mindset
were not there. The trial judge who brings presumptions to the
enquiry is not considering the best interests of the particular
child in the particular circumstances and will have erred.
Conclusion
[31] The reasons, as well as the transcript of proceedings,
clearly demonstrate that the trial judge engaged in a careful
enquiry into Pascale's best interests before determining that
she should live with her father. Throughout the trial, the
focus was on what child care arrangements would best serve
Pascale's needs. Clearly, the trial judge had full confidence
in the respondent's ability and willingness to involve the
appellant in the upbringing of Pascale beyond whatever the
terms of an order might require. Equally clearly, he saw the
appellant as an entirely appropriate alternate care-giver for
Pascale. He was in the happy position, from Pascale's point of
view, of being able to choose between two good parents. There
can be no fault to find with the choice of the respondent as
the primary care-giving parent. As the appellant recognized,
there is no reason to review that decision.
[32] Nor in my view is there any reason to vary the order
granting sole custody to the father. The only reason to review
that order is the acceptance by the trial judge of what he
called the "cautious approach" of Baker and Kruger, that
suggests a threshold test before a joint custody order will be
made. While the trial judge may have been influenced by the
comments of the Ontario Court of Appeal to approach the issue
of co-operation cautiously, he would have found any threshold
test to have been met. These parents shared a history of joint
custody and co-operation. Their communication problem began
only with the interim sole custody order.
[33] Even were I persuaded that the trial judge brought a
mindset with pre-ordained default arrangements to the enquiry,
I would not interfere with a sole custody order in the
circumstances of this case. The evidence supports the trial
judge's conclusion that joint decision-making by these two
parents would not be workable for Pascale. A careful reading of
his reasons and of the evidence suggests that it was not simply
the geographic separation that persuaded him that a joint
custody order would not work in her best interests, but rather,
that the geographic separation would continue to exacerbate
communication difficulties that had become evident after the
parents' relocation to new cities, homes and living
circumstances. The communication difficulties caused by the
geographic separation were at the root of his decision to award
sole custody to the father.
[34] For these reasons I would not interfere with the trial
judge's order of sole custody but would vary the order to
provide that the parents continue to be joint guardians of
Pascale. I would order that each party bear their own costs of
the appeal.
"The Honourable Madam Justice Hubbart"
I AGREE: "The Honourable Madam Justice Rowles"
I AGREE: "The Honourable Mr. Justice Donald"