Essentially, this was a rather routine Family Law case concerning custody and child support, but it involved some unique (and unfortunate) conduct on the part of the protagonists. It accordingly serves as a lesson to family litigants that their pre-trial conduct may have a significant bearing on the outcome of court decisions on custody.
To begin with, the Court framed the factual scenario in Decaen v. Decaen in the following way:
This custody battle requires the court to make some difficult choices. Because of the acrimony between the parties, joint custody and its variants are out of the question. Therefore, the main issue is whether to grant custody to a father who is more concerned about how much support he is paying for his family than about how much he is supporting it, or to a mother who frequently denied access while living near the father and would now like to move the children hundreds of kilometres away not only from him, but also from their grandparents, aunts, uncles, cousins and friends.
The family unit consisted of the parents and four children: a 22-year old from the mother’s prior relationship (who had been adopted by the father), and three children (aged 17 and twins aged 7) that the couple had together.
Once the marriage fell apart and the matter went to court, each of the parents began a smear campaign against the other: among other things the mother complained that the father was controlling and very aggressive, that he had often butted heads with the teenaged daughters, and that after separation had been charged with assaulting and threatening the mother (although the charges were later dropped).
Not to be outdone, the father put forward evidence that the mother had engaged in disreputable conduct involving the theft of cash from her employer (the charges were also dismissed) and that she had committed forgery by signing her husband’ name on a document, rather than her own. He also complained that she had also made secret plans to move herself and the children to Mississauga without telling him. But more troubling for the court were certain bits of factual information that the father was all-to-willing to share, but which had no relevance to the determination of the legal issues between the parties: The court wrote:
In addition to giving implausible evidence, Mr. Decaen offered gratuitous comments designed to make the opposing party look bad, just as Ms. Decaen did. One example is the detail he added when being examined-in-chief about how he met the applicant. Instead of stopping after answering that he met her while she was working in a tanning salon, he felt it necessary to add that she was dating the 45-year-old owner of the business, that she was on Mother’s Allowance and that he found out later that she had continued to collect Mother’s Allowance for three months after their marriage. None of these allegations were put to the applicant during her evidence, probably because counsel for Mr. Decaen had no intention of introducing it. These comments demonstrate that Mr. Decaen was willing to say whatever he felt would help his case. Indeed, at one point he admitted that he would “do anything to get (his) kids.
The court also described an incident in which the father regrettably engaged in a public protest:
Apparently, Mr. Decaen did not feel that he was getting his money’s worth with respect to the support he was paying. In August of 2008, he paraded around Sudbury wearing a “Batman” costume and waving a sign that referred to the amount of support he was paying and complaining that he was still not seeing his children. Mr. Decaen testified that he had not seen his children for two months at this point and that this was done as a type of protest engaged in by a group of men called “Fathers for Justice”, who fight for access to their children.
This incident came to the attention of Ms. Decaen through her brother, Marc, who saw Mr. Decaen and recognized him. As a result, she contacted the police and Mr. Decaen was detained and assessed under the Mental Health Act, following which he was released.
A year later, in August of 2009, Mr. Decaen put up a number of posters in the New Sudbury area showing pictures of the twins, with their first names printed on each photo, under which appeared the words, “Help Kids See Dad” and Mr. Decaen’s phone number. I will address these incidents again when I deal with who should have custody, and why.
After hearing all the evidence, and after assessing both parties’ respective entitlement to custody of the children, the court concluded the children’s best interests would be served if they remained with the mother. It wrote:
In my opinion, this is a case where custody of the children must be given to one party or the other. The difficult question, however, is to whom it should be given. Neither parent emerges as clear-cut choice. Ms. Decaen has repeatedly denied access by Mr. Decaen to the children. Her decision to move the children to Mississauga without even advising their father was a vivid demonstration of her shortcomings as a parent. However, Mr. Decaen has also clearly demonstrated his inability to put the children before his own interests. The “Batman” incident demonstrates an alarming lack of insight into the possible effects of his behaviour upon the very children concerning access to which he was protesting. The “Posters” incident demonstrated a profound lack of judgment. This incident did not stop short at simply embarrassing his children; it put the twins in danger. What kind of an advantage would a predator gain over Kaleb and Isabelle by knowing their first names and what they looked like? What if that predator had also called the phone number on the posters to learn the name of Mr. Decaen; would he or she have been able to use that information to gain access to the children somehow?
While she may have used the children as tools of punishment against the respondent on a number of occasions, the applicant has, at least, not put them in harm’s way. She has been the main caregiver since their birth. In my view, for these reasons, it would be in the best interests of Isabelle and Kaleb for the applicant to have sole custody of them.
For the full text of the decision, see:
Decaen v. Decaen (2012), 2012 ONSC 966 http://canlii.ca/t/fqk6p
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