Hildinger v. Carroll

Between
Jean Hildinger, applicant, and
Daniel Carroll, respondent

[1998] O.J. No. 2898
Court File No. 24367/97

Ontario Court of Justice (General Division)
McKinnon J.

July 2, 1998.
(5 pp.)

       Family law — Custody and access — Joint custody — When available — Access — Considerations in awarding access, welfare of child.

       Application by the mother for custody.  The 13-month-old child who was born of a short liaison between the parties. The mother was a nurse employed in the US, and the father who was a businessman working and residing in the US  The mother fled to Canada with the intention of raising the child as a single mother without the involvement of the father.  The father obtained an interim order allowing him access on two weekends per month, which he faithfully exercised despite sometimes difficult travelling conditions.  He had also paid $500 per month in child support since her birth.  The mother sought to deny access completely.

       HELD:  Joint custody was ordered with primary residence to remain with the mother, and liberal access to the father, which was to be exercised in New York to assist in relieving the onerous travel requirements of the previous access order.  The father was also awarded specified access to be exercised in Ottawa.  Support was increased to $750 per month in recognition of the decreased access costs.  The child was entitled to the benefits of a relationship with her father, including the availability of dual citizenship.  The mother's attempts to prevent access by father or limit it were not in the child's best interests.

Counsel:

Peggy Malpass, for the applicant. Leonard Levencrown, for the respondent.

¶ 1      McKINNON J. (endorsement):— The parties are the parents of 13 month old Nancy Mae.  The parents met in New York City while the mother worked as a pediatric nurse at Mount Sinai Medical Centre.  They fell in love and shared the intention of giving birth to a child.  After this brief love affair, the mother fell out of love.  She was, however, pregnant with Nancy Mae.  The father was devastated by the mother's change of heart and was treated for depression.  At all times he intended to be an integral part of Nancy Mae's life.

¶ 2      With the assistance of legal counsel, the mother returned to Canada while still pregnant, and gave birth to Nancy Mae in Ottawa on June 2, 1997.  This was designed to avoid custody problems in the U.S.  On all the evidence, the mother intended to be a single parent, without any involvement on the part of the father.  Indeed, on the "Statement of Live Birth", the mother omitted any information relating to the father.  As such, the child has the surname "Hildinger".

¶ 3      The relationship between the parties has been somewhat venomous.  Access to Nancy Mae had been largely denied to the father until an interim order of Cunningham, J. was made on November 14, 1997, giving the father interim access every second weekend for 3 hours on Saturday and 3 hours on Sunday.  The father has been vigilant in exercising his access rights, even during the extremes of winter, at times taking more than 12 hours to make the trip from New York City to Ottawa.

¶ 4      The father is a highly successful, well educated businessman, earning substantial income.  A graduate of Stanford with a Master's degree, he is the Worldwide Product Manager for IBM.  He is divorced from his first wife, and enjoys a successful joint custody relationship with the 3 teenagers of that marriage.  There is nothing in the evidence to suggest that he would be anything but a loving and caring father.

¶ 5      The mother is also loving and caring, and has proven that she can provide a stable home for Nancy Mae. However, she does not want the father to be a part of it, until the child is old enough to choose for herself.

¶ 6      An independent assessment of the situation was ordered by Cunningham, J.  The assessment was conducted by Lena Jones, M.A., a Family Consultant.  Ms. Jones recommends no access, or, in the alternative, highly restricted access, similar to that in place at present.  She alleges in her report that the father suffers from a "Narcissistic Personality Disorder", based upon a conversation she had with the father's psychiatrist, Dr. Philip Muskin.  Her report places significant emphasis upon this diagnosis. Unfortunately, Ms. Jones is incorrect, as is evidenced by her own notes of that conversation, and Dr. Muskin's strongly worded written denial.

¶ 7      Ms. Jones opinion is primarily grounded in the fact that the mother has been the primary caregiver for the past 13 months.  What is not addressed in her report is the fact the mother engineered  that very situation by intentionally planning to deprive the father of his legal custodial rights.  Nancy Mae does not "belong" to the mother, no more than she "belongs" to her father.  She is not the "property" of either.  Both share equal rights to the custody of Nancy Mae, subject to what this Court may order.  In my view, this is not an appropriate case to deny access to the father.  Rather, I view this as an appropriate case to permit Nancy Mae to better know and bond with her father.  The father needs more time with Nancy Mae.  Nancy Mae will profit from growing up knowing both her parents.

¶ 8      In her cross examination, Ms. Jones acknowledged that the real difficulty in this case is one of distance.  She testified that were in not for the distance, the father should see his daughter at least 3 times a week.  In my view, that is entirely inconsistent with her ultimate recommendations.

¶ 9      In the final analysis, I do not believe that the mother should profit from her conduct, which, as stated, was intentionally engineered to attempt to become a "single parent."  This would not be in the child's best interests.

¶ 10      In my opinion, Nancy Mae should be able to enjoy the full fruits of her parents union.  This would include knowing the love of her father, and the benefits of dual citizenship.  Those benefits are in fact the "property" of Nancy Mae, and the mother should not unilaterally be able to deprive her of them.

¶ 11      The present access regime is unduly onerous upon the father and affords insufficient time to the child to reap the rewards of a meaningful relationship with her father.  On all the evidence, the mother has been unbending with respect to the father's reasonable demands for information and additional, or amended, access.  The mother must know that she does not "own" the child.

¶ 12      In the result, there shall be an order for joint custody of Nancy Mae.  Primary residence shall remain with the mother.  The father shall enjoy liberal access to the child, and be permitted to exercise that access in the United States. The fear of the mother in permitting the child out of the Regional Municipality of Ottawa-Carleton is unfounded.  This Court has every good reason to expect that the father will abide by this order, and, should be not, the Courts of the United States of America have historically respected these orders.

¶ 13      There shall be an order granting access to the father for one month during the Summer; for one week during the Fall; for one week during Christmas and New Year's; for one week during the Spring.  These periods of access may be exercised in the United States of America.

¶ 14      In addition, the father shall enjoy the right of access to the child in the City of Ottawa for 3 hours on the child's birthday in each alternating year; and for 3 hours on each Father's Day.

¶ 15      In addition, the mother is ordered to process an amendment to the Birth Registration so that the natural father's name appears thereon.  However, the child may retain the surname "Hildinger".

¶ 16      The father is free to apply to the Consul General of the United States to process an application for Consular Report of Birth Abroad of a citizen of the United States and, if required, the mother will cooperate promptly in the documentation required.

¶ 17      The mother will cooperate in executing any documentation to ensure that Nancy Mae acquires an American passport.

¶ 18      The father is well capable of paying support.  He has been paying $500.00 per month since the birth of the child.  It is common ground that his access costs have been inordinately high.  As a result of this order, they should be lower.  As such, the father shall pay support in the amount of $750.00 Canadian dollars, indexed yearly to the Statscan Consumer price index, and paid with 12 post-dated cheques in each year.

¶ 19      In my view, the mother needs some time to adjust to this order.  As such, the father's summer access right will not occur, in this year, prior to July 15th, unless otherwise agreed upon by the parties.  He shall enjoy access to the child for a 3 hour period this weekend, on either Saturday or Sunday, as may be agreed upon by the parties:  (i.e., the weekend of July 4/5)

¶ 20      The father will provide the mother at least 30 days notice of his access periods when exercised in the United States.  It is hoped the parties might be able to agree well in advance as to the dates of access.  With respect to Christmas - New Year's access, the period will alternate year to year.  For access in `98 - `99, the mother shall be at liberty to choose the week during Christmas/New Year's.  For `99 - 2000, the father, and thereafter, alternating.  It is expected that the parties shall be able to iron out details between themselves, and with the aid of their counsel.  In the event they cannot, I may be spoken to.  I would view that as unfortunate.

¶ 21      There shall be no order as to costs.

McKINNON J.