“If Only He’d Have Been Nice to Fluffy”

“If Only He’d Have Been Nice to Fluffy”

Justice Pazaratz, known for the colourful writing in his family litigation rulings, begins his judgment in a particularly acrimonious custody case this way:

If only he’d been nice to Fluffy.

Sometimes in custody trials it’s the little things — literally — that help judges figure out what’s really going on.

Because believe it or not, judges realize that how people present themselves in affidavits and on the witness stand, is not necessarily how they behave when no one is looking.

Sometimes the little things can speak volumes.

In this case, among the “little things” that the judge referred to a stuffed animal that was dear to the child that the warring parents had together.

The back-story was this: The couple had met when they both worked as flight attendants.  When she unexpectedly became pregnant with his child, they agreed that she would move in with him, but she moved out about 6 weeks later because he was inflexible and domineering with her and with her two older twins from another relationship.  The acrimony continued – and indeed was heightened – in the time following separation, when the parents had numerous conflicts over sharing custody and their different approaches to caring for the child.  They now appeared before Justice Pazaratz to determine who should have sole custody of their 3.5-year-old child (and neither of them was willing to compromise with joint custody or parallel parenting).

Justice Pazaratz chronicled numerous incidents between the couple, with the pervasive theme being the intransigence of the father in his dealings with the mother and their child.  The judge wrote:

FLUFFY

But perhaps the most mind-boggling expression of the [father’s] hostility and defiance toward the [mother] relates to Fluffy: a small, white, stuffed animal [the daughter] became attached to when she was about seven months old. The [mother] testified at length about this — and the [father] didn’t deny any of her allegations.

The first incident occurred in March 2015:

1. [The daughter] was experiencing separation anxiety when she went on visits with the [father].
2. So the [mother] said she “negotiated” with [the daughter] that she could take Fluffy with her when she went on visits.
3. When the [father] arrived at the front of her home to pick [the daughter] up for a visit he immediately pulled Fluffy from [the daughter’s] arm, pushed Fluffy into the [mother’s] face, and told her “I have my own stuffed animals.”
4. The [mother] testified [the daughter] became hysterical, but the [father] simply left with the child. Fluffy stayed behind.

The second incident occurred in April 2015:

1. The [wife] sent the [husband] an e-mail explaining that [daughter] was still experiencing separation anxiety and that the child would be bringing Fluffy with her because she found the stuffed animal emotionally reassuring.
2. However, when the [father] attended at the front of her home to pick [the daughter] up, he again removed Fluffy from the child’s arms, this time throwing Fluffy onto the driveway.
3. Once again [the daughter] became hysterical. The [father] took her for the visit. The [mother] retrieved Fluffy and went back in her house.

The [mother] testified that later in 2015 they went to court and negotiated a resolution of the Fluffy issue. (Pause for a moment to let that sink in: They went to court to negotiate a Fluffy resolution.) The [father] finally agreed that Fluffy could accompany [the daughter] during visits.

But it turned out to be a pyrrhic victory for common sense.

1. The [father] developed a new routine:
2. At the beginning of each visit, when he came to pick up [the daughter], she was allowed to bring Fluffy with her.
3. But as soon as they got to his car, the [father] tossed Fluffy into his trunk and closed it. They then drove away.
4. To the [mother’s] knowledge, Fluffy remained in the trunk during the entire visit.
5. At the end of visits, the [father] retrieved Fluffy from his trunk, and handed the doll back to [the daughter].
6. I suppose technically Fluffy got to come along for the ride.

But things got even worse for Fluffy.

1. The [mother] testified that after a while, whenever Fluffy came out of the [father’s] trunk, the little stuffed animal smelled terrible. Fluffy gave off a noxious odor, as if dipped in Vicks VapoRub or camphor oil.
2. The [mother] said on three occasions she had to wash Fluffy because [the daughter] couldn’t possibly play with a toy which had apparently been doused in an offensive and potentially dangerous substance.
3. The [mother] e-mailed the [father] asking why he was damaging the child’s prized possession.
4. The [father] accused her of fabricating a complaint.
5. The [mother] said she finally gave up and stopped sending Fluffy.

…

I have no idea why the [father] allowed Fluffy to turn into such a major and unwinnable competition.

1. He doesn’t like the [mother]. I get it.

…

1. But Fluffy was just….Fluffy.
2. Just a harmless little toy of no consequence to anyone….except a vulnerable two year old caught in the middle of a bitter custody dispute.
3. Would it have killed him to just let the child hang on to her toy?
4. Was it really necessary to make his daughter cry, just to flex his need for control?
5. In Coe v. Tope, 2014 ONSC 4002 (Ont. S.C.J.) this court offered some very simple advice for situations like this: Stop acting like you hate your ex more than you love your child.

Despite finding that they were both good parents and both loved the child equally, Justice Pazaratz concluded as follows:

The bottom line: Despite unquestioning love, incredible passion, and impressive credentials — the [father] has given us every reason to worry that if he is granted decision making authority, he will not promote the [wife] in [the daughter’s] life. There is a real danger he will shut the mother out.

In contrast, the [mother] has provided overwhelming reassurance that she has always made good and fair decisions for [the daughter], and she will continue to co-parent with the [father].

Family Court Judges don’t have a crystal ball. We can only go on the basis of how parents have behaved so far.

After reviewing all the circumstances in detailed and lengthy reasons, Justice Pazaratz concluded that it was in child’s best interests that mother be granted sole custody.  And – true to form – he added the following admonishment to the father, at the end of the judgment:

POSTSCRIPT

If only he’d been nice to Fluffy.

If only he’d been nice to the [mother].

If only the [father] had remembered the two magic words of custody cases.

”Be nice.”

For the full text of the decision, see:

Chomos v Hamilton