This is another one of those cases that illustrates some of the more arcane aspects of divorce, and some of the more esoteric points affecting children that must be considered when parents decide to end their union.
The couple in this case had been married less than ten years when they decided to separate; they had two children together. Upon separation, the mother was granted interim sole custody of the children, while the father was allowed interim access. However, the mother testified that periodically the father cancelled scheduled access visits “due to work, vacation or other plans he ‘can’t get out of’”.
Nonetheless the father applied for custody of the children, as part of numerous applications aimed at resolving the outstanding issues between the parties. In this context, the father claimed that the mother had been actively obstructing his relationship with the children, and had been alienating them from him. As evidence of this, he claimed among other things that:
• the mother had registered the children for hockey under her surname (rather than his), and their hockey jerseys bore her surname on the back; and
• the children’s Facebook accounts use the mother’s surname as well.
(And it should be noted that because of the use of the mother’s surname on the jerseys, the father refused to make any financial contribution to the children’s hockey-related costs).
The mother testified that the reason for this decision was simply so that the children would avoid any stigma: the children’s paternal grandfather had been convicted a few years earlier for various sexual crimes, including some that involved the children’s own cousins as victims. She did not want the children to be associated with their grandfather’s name (and unavoidably, their father’s name) on social media and in their sports milieu.
The court considered the evidence, and was not persuaded that the mother had been trying to alienate the children from their father. For one thing, her decision to have the children use her surname was limited to a relatively narrow sphere of the children’s lives and activities; moreover she had worked with the police in connection with her concerns over Facebook, and her decision on the surnames in that regard. The court wrote:
… I am not prepared to make any finding of fault against the respondent with respect to her decision to use the G. surname for the children’s hockey registration/jerseys and/or their Facebook account. The respondent gave uncontradicted evidence that she used the G. surname in those two specific instances specifically in response to the risk she assessed arising from the criminal conviction against the applicant’s father for sexual interference with children and the proximity of his probation office to the residence of the children. It is not the function of this Court to decide whether the respondent was right or wrong in taking those limited precautions but rather whether she has acted reasonably. I find that she has acted reasonably and in making that finding note that the respondent used the M. surname for the children’s school, doctors and otherwise. I make the related finding that the respondent has not obstructed the applicant’s relationship with the children on the basis of her registering the children using the G. surname for their hockey and Facebook registrations.
The court also pointed out that – the complaints about hockey and Facebook notwithstanding – neither the father nor any of his witnesses had given evidence to establish any specific incidents to suggest that the mother had tried to obstruct or deny the father’s access to the children.
Accordingly, and after balancing a host of other considerations that are germane to a final determination on custody and access, the court ordered that sole custody was left in the mother’s hands, although she was to consult with the father on major issues. The father’s access was to continue.
J.M.E.M. v. K.L.G., 2012 ONSC 3332 http://canlii.ca/t/fs7qq
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