NAG v RDH, 2016 YKSC 37

SUPREME COURT OF YUKON Citation: NAG v RDH, 2016 YKSC 37 Date: 20160720 S.C. No.: 14–B0116 Registry: Whitehorse BETWEEN: NAG PLAINTIFF AND RDH DEFENDANT Before Mr. Justice R.S. Veale Appearances: Amy Steele Counsel for the Plaintiff H. Shayne Fairman Counsel for the Defendant REASONS FOR JUDGMENT [ 1 ] VEALE J. (Oral): There are two applications before the Court. The mother's application was filed on March 24, 2015, and that application was precipitated by an allegation of assault by the father against the two children, T., who is now eight, and, L., who is now seven.

The court application was made and following that, a week later, the Court made an order permitting only supervised access to the father and that it be exercised in a public place. It appears that the father did not have evidence before the Court at that time. The father’s application was filed on July 18, 2016, seeking deletion of the requirement for supervised access as the Court deleted the requirement for access to be in a public place on July 12, 2016. [ 2 ] In any event, the history is that there was a common-law relationship from 2007 to 2012. The mother had the first child at the young age of 15.

There certainly appears to be an unequal relationship between them, the father and the mother, because of a substantial age difference. However when they separated in 2012, the father had access to the children every weekend. It was then reduced to

alternate weekends and then it increased to a 50-50 sharing relationship. The father had the children for the period of February to June 2013 on a full-time basis when the mother briefly left the Yukon. There may have been a dispute between the mother and the father or there may have been a misunderstanding about the father having the children, but, in any event, the mother returned to the Yukon and the week on/week off continued from June 2013 up until March 2015, when this application was made. [ 3 ] The father was charged with assaulting the two children in February 2015. The charge was laid on May 4, 2015.

The father's access has been very limited since that particular date, and particularly since the supervised access in a public place order was made in March 2015. [ 4 ] The criminal proceeding was not concluded until June 3, 2016, when the father was given a conditional discharge.

The three months condition, which will conclude in September, and the conditional discharge order did not limit any contact with the children and indicated, in fact, he could see the children. [ 5 ] I must say that the photograph in the mother's affidavit indicates that the assault on L. was a very serious matter and I think she did everything properly to bring that before the Court, both civilly and criminally. One of the great difficulties when you have a difficult child is that physical punishment simply does not work.

The father is a young father, certainly, but it is a hard lesson to learn to be charged criminally in trying to correct a child's behaviour. Nevertheless, I have to consider it as a serious assault. [ 6 ] On the other hand, the father has made great efforts to learn about the proper care and upbringing of his children and has come forward with significant support, particularly from a program that appears to be very helpful called The Whole Child Program. The father has had involvement with that program for some months.

I am of the view that he has learned a great deal about child rearing. [ 7 ] I do not think there is any question that these two parents are not communicating at all. The mother may be very legitimate in the concerns that she has raised about the father's treatment of her, but, ultimately, the mother and father hopefully will be able to communicate after this court action is completed in an adult way so that they can discuss what is best for their children.

Aside from the assault on L, it is extremely difficult for the Court to come to any firm conclusions about what happened because I do not think either parent should necessarily be disbelieved in what they have said, but they clearly have a different view in how their relationship has worked out and how the children have been raised.

I think the mother is legitimate in coming forward to the Court and raising her concerns and insisting on supervised access. [ 8 ] From the father's perspective, I think both the father and the mother agree that the father's access to the children is very important for the development of the children. The question before me today is really one of how that is going to proceed. [ 9 ] The practice in this Court is that parents are, generally speaking, granted joint custody of the children. That does not mean that it is a 50-50 relationship.

It simply means that before they split up, they both had equal access to the children and information about the children, and joint custody after the separation simply means that they both have the same rights. [ 10 ] There are circumstances where joint access is not ordered.

This may have been one of those circumstances, had the father not come forward and made considerable efforts to ensure that he understands child development and how he can properly discipline children without physically getting involved with them. [ 11 ] In my view, given the father's efforts, it is appropriate to have an interim joint custody order. That is not in any way to say that either parent wins. In a joint custody order, the purpose of the order is that the children win because both parents remain involved in the children's lives.

That is absolutely critical in this case. [ 12 ] The second part of this case relates to the access that should be granted to the father.

There is no doubt he has had his access curtailed — and there may be valid reasons for that — but at this point, the question is what kind of access he has going forward and if and when that access should be converted to the original position between the parties, which was sharing the residential time with each child. [ 13 ] This is complicated somewhat by the fact that both children were in the Grey Mountain Primary School, which is in Riverdale — a very successful school and certainly successful for both of the children in this case — although they had originally started out at Takhini Elementary School.

It appears that the mother, who now resides in Riverdale, will ultimately be residing at Yukon College, where she intends to pursue an academic course. The father resides at the Takhini Trailer Court. Both these residences are in the catchment area for the Takhini Elementary School. [ 14 ] At this time, I am prepared to go with the mother's view that L. may be better off at the Grey Mountain Primary School because he has had success there.

I am prepared to make that order that he attend Grey Mountain Primary School for Grade 1 if it can be arranged. [ 15 ] There is a transportation issue and there is also the issue of separating the children. Quite frankly, I am quite torn about that because these two children are obviously very close to each other and I do not like to see them separated but it may, indeed, be in L.'s best interest to have that take place. The older child, of course, can proceed to Takhini Elementary School and I think things will work out from there with the First Nations' component that they have. [ 16 ] Ms.

G., if L. cannot get back into Grey Mountain Primary School for any reason or it becomes logistically difficult, then I think he should go to Takhini Elementary School. I think that would be rather obvious. I think it is important if he has had real success there and he can have the educational assistant again — because often people that have success with children, that should be continued if possible — but if it is going to be upsetting and it is going to be difficult for him to be separated, it is not worth pursuing because I think Takhini Elementary School would provide a similar program.

I will leave it for you to work that out. [ 17 ] With respect to the access, the father is seeking the following on an unsupervised basis: • eight hours on Sunday, July 24;

• overnight residential time from 10 a.m. on July 30 to Sunday, July 31 at five p.m.; • eight hours on August 7; followed by • August 13 at 10 a.m. to August 16 at 9 a.m.; and then • August 20 at 5:30 p.m. to August 21 at 8 p.m.; and • August 27 at 10 a.m. to August 29 at 8:30 a.m. [ 18 ] This fits with the father's time

schedule with his employment because he works every alternate Saturday, as I understand it. [ 19 ] The mother, understandably, still wishes this to be entirely supervised, as a result of the past experience. I am prepared to say that it should be supervised by L.H. or R.H. up until August 13, 2016.

At that time, the access will be unsupervised for the father on the terms that I have just set out. [ 20 ] I turn now to the issue of the sharing of residential time, which is part of the father's application. [DISCUSSIONS] [ 21 ] I was interrupted mid-judgment — and appropriately, I think, because the matter should be brought forward — but I had granted unsupervised access to the father for the weekends August 13 through August 29.

I am now advised that the mother had plans to take the children from August 17 to approximately September 5, taking them to Prince George by bus and then meeting with family in Prince George and then taking the children by car to Red Deer, Alberta, where her best friend is getting married and she will be part of that wedding party. [ 22 ] I must say this really puts the Court in an unenviable position because in the normal course, the Court is very supportive of parents whose family are outside to take the children on extended visits. It is sort of a given in many circumstances.

Unfortunately in this case, it is not my view that it is appropriate just because of timing. I am going to leave the access in place that I have ordered, at this point. I consider the most important interest now for the children is to get back to a normal schooling schedule, so I want them both to be attending school on August 29. [ 23 ] The mother, of course, is quite entitled to go to a wedding. Under normal circumstances, I would say the children should go with her.

But in this case, I am going to say if she wishes to attend the wedding on August 29 through September 5, I think that is certainly entirely her business and I would support that. [ 24 ] But if that is the case, I am going to order that the children reside with the father during that time period, because I really think it is important for the children to get settled into school on the first day of school, which is August 29. I am informed that September 5 is not the statutory holiday that I always thought it was in the Yukon, so the children will be going to school on that day as well.

That is my order, with respect to that, that the father would have the August 29 to September 5 period. [ 25 ] When the mother returns, it is my view that the sharing residential pattern should be returned to and that each shall have a week on and a week off. I am going to leave it to counsel to work out what the swing day is for that, because I do not want it stated on the record now because it may not be appropriate, given the time of the mother's return or the working time or attending school that may be involved in that decision, but counsel can certainly come back to me.

If there are any issues outstanding, we can come back in case management with both parents present if that is the wish of counsel. [ 26 ] MS. STEELE: Your Honour, if I could just confirm access, because I did interrupt you. Are you essentially allowing the — all the access that's specified in the Defendant's Affidavit No. 2? [ 27 ] THE COURT: Correct. But I did so on the understanding that the mother was going to be here with the children.

Having considered the issue that you have raised with respect to her travel, I think it is unfortunate but I am not prepared to change that access, primarily because it is my belief that the children should be here and getting ready for school. [DISCUSSIONS] [ 28 ] THE COURT: August 7 is the end of a period of access, and that ends the supervision. August 13 is without supervision through August 29. [DISCUSSIONS] [ 29 ] THE COURT: I think the mother should go to the wedding, quite frankly, and leave the children with the father for that week. That is entirely up to Ms. G. [ 30 ] MR.

FAIRMAN: And thereafter, the expectation is that it would be a week on/week off, the details of which we can work out? [ 31 ] THE COURT: Correct. [ 32 ] MR. FAIRMAN: Okay. And on the schooling issue, I'm just wanting clarification, if I could, about whether the attendance of L. at Grey Mountain Primary is premised on what Ms. G. has asserted as the confirmation of the availability of an educational assistant. [ 33 ] THE COURT: Transportation. [ 34 ] MR. FAIRMAN: Yeah, well, transportation will be another — another matter for sure.

But if I understand you then, if those things can't be worked out, if they can't provide bussing, if there's no EA confirmed, then he's to attend Takhini Elementary School with

his older brother? [ 35 ] THE COURT: That is correct. But I am really asking for Ms. G. to be flexible on that. If it can be arranged at Grey Mountain, I am all in favour of that. [ 36 ] MS. STEELE: Sorry to interrupt, but the educational assistant — [ 37 ] THE COURT: The whole purpose of staying at Grey Mountain is because it is the same educational assistant, right, who has obviously worked wonders with L.

If the educational assistant is not there — and this is always a big issue, because educational assistants are temporary part-time workers or something, they do not have a lot of job security — if that is not the case, then L. should go to Takhini. [ 38 ] I think even Ms. G. would agree with that, that the whole purpose of staying at Grey Mountain and separating the two boys is for L.'s best interest. But if he could be treated equally at Takhini Elementary, he should go to Takhini Elementary. [ 39 ] Thank you very much, counsel and both families. _________________________ VEALE J.