



COURT OF APPEAL FOR ONTARIO

CITATION:

Lemon v. Lemon, 2018 ONCA 684

DATE: 20180821

DOCKET: C64113

Feldman, Hourigan and Brown JJ.A.

BETWEEN

Dawn Charlotte Lemon and Sean Lemon

Applicants (Respondents)

and

Julie Anne Lemon

Respondent (Appellant)

Ms. Alix Nenniger, for the appellant

Dawn Charlotte Lemon and Sean Lemon, acting in person

Heard: July 05, 2018

On appeal from the order of Justice Kirk W. Munroe of the
    Ontario Superior Court of Justice, dated July 5, 2017.

REASONS FOR DECISION

Overview

[1]

The appellant is the mother of two children, D.L. (age 13) and E.L. (age
    10). She appeals from the order granting sole custody to the childrens aunt
    and uncle, the respondents, with limited access to her.

[2]

We allow the appeal in part and alter the access order to grant
    increased access to the mother.

Background Facts

[3]

The appellant is the biological mother of D.L. and E.L. She was in her
    early to mid-twenties when they were born. At that time she was living with her
    mother in Detroit. Between 2005 and 2010, the appellant raised her children in
    her mothers home while working and studying part-time. D.L.s and E.L.s
    fathers have had no role in their upbringing.

[4]

In April 2010, the appellants mother evicted her and the children.  They
    initially moved in with her brother and sister-in-law, the respondents, in
    Windsor, but in September the appellant moved out on her own, leaving the
    children with the respondents. She rented an apartment in Windsor and visited
    her children regularly. Their agreement was that the children would remain in
    the respondents care until the appellant was stable in her career and able to
    obtain housing for the three of them.

[5]

The appellant continued to work and study part-time in Windsor until
    2013, when she moved to Toronto to continue her studies and work part-time in
    retail there. She also moved in with her same-sex partner, S.L.

[6]

The custody dispute between the parties began in 2013, when the
    respondents consulted a lawyer to obtain custody of the children. When the
    appellant learned of this development, she drove to the childrens school in
    Windsor, picked them up, and drove them back to Toronto to live with her.

[7]

The custody dispute was made all the more difficult because of stark
    religious differences between the appellant and the respondents; while the
    appellant had been raised as a Jehovahs Witness, she left the faith when she
    was 19 and became quite critical of the religion. The respondents are Jehovahs
    Witnesses who disapprove of the appellants same-sex relationship and secular
    lifestyle.

[8]

The respondents brought an application for custody of the children. In
    2013, Pomerance J. ordered interim custody to the respondents, with access in
    favour of the appellant. Pursuant to court requests, the Ontario Childrens
    Lawyer (OCL) became involved and an initial report and an update were
    prepared by the same clinician:    the first report recommended granting
    custody to the respondents with access in favour of the appellant; the update recommended
    that the appellant be granted custody of the children with access to the
    respondents.

[9]

On July 5, 2017, after an eight day trial, Munroe J. found that it was
    in the best interests of the children to remain in the sole custody of the
    respondents, with access in favour of the appellant. The appellant appeals from
    both the custody and access orders on the basis that the trial judge
    misapprehended the evidence, failed to consider and apply the maximum contact
    principle, and failed to consider and apply a preference in favour of
    biological parents over non-parents in custody disputes.

Findings of the Trial Judge

[10]

The
    trial judge applied the best interests test mandated by s.24 of the
Childrens
    Law Reform Act
, R.S.O. 1990, c. C.12 (
CLRA
)
    to decide custody and access.

[11]

Section
    24 provides that the merits of custody or access shall be determined on the
    basis of the best interests of the child, in accordance with subsections (2),
    (3) and (4).  Subsections (3) and (4) require the court to consider past
    conduct that is relevant to the persons ability to act as a parent as well as
    any violence and abuse.

[12]

Subsection
    (2) requires the court to consider all the childs needs and circumstances,
    including,

(a) the love, affection and emotional ties between the child
    and,

(i) each person, including a parent or grandparent, entitled
    to or claiming custody of or access to the child;

(ii) other members of the childs family who reside with the
    child, and

(iii) persons involved in the childs care and upbringing;

(b) the childs views and preferences, if they can reasonably
    be ascertained;

(c) the length of time the child has lived in a stable home
    environment;

(d) the ability and willingness of each person applying for
    custody of the child to provide the child with guidance and education, the
    necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or
    access to the child for the childs care and upbringing;

(f) the permanence and stability of the family unit with which
    it is proposed that the child will live;

(g) the ability of each person applying for custody of or
    access to the child to act as a parent; and

(h) any familial relationship between the child and each person
    who is a party to the application.

[13]

The
    trial judge concluded that the children are loved deeply by the appellant and
    the respondents, who love them deeply in return; that the children had
    expressed a clear wish to remain in the care of the respondents; that the
    childrens time with the respondents (seven years at that time) had been
    stable, loving, and a positive home environment; that the respondents were able
    and willing to provide guidance, education, and the necessities of life to the
    children, but that the appellants ability to do so was questionable.

[14]

His
    conclusion on ability and willingness to provide for the children was based in
    part on the fact that the appellant had quit a job, gone on social assistance,
    and moved further away from the children in the year prior to the application
    for custody.
[1]
He referred to the appellants relationship with S. as the one big positive
    and said that he was impressed by S. when she gave evidence.  At the same
    time, he expressed uncertainty as to whether the relationship would last and
    cited the fact that the parties were not married, did not have joint finances,
    and had separate leases.

[15]

He
    found that the respondents plan for the childrens care and upbringing was
    stable, but that the appellants plan presented too many variables to conclude
    that it would offer stability for the children; that while the respondents
    provide a permanent and stable family unit, he could not find the same for the
    appellants proposed family unit.

[16]

He
    also found that the respondents were markedly better able to act as parents
    than was the appellant since her ability to parent remained to be seen.  He
    referred there to the appellants desire to be the cool aunt to the
    respondents older sons by, among other things, smoking marijuana with them. In
    considering familial relationships under s.24(2)(h), he only noted that the
    appellant is the biological mother and the respondents are the biological uncle
    and his wife.

[17]

Based
    on all the evidence, the trial judge concluded that it was in the childrens
    best interests to remain in the respondents sole custody.

[18]

He
    declined to follow the recommendation in the second OCL report on the basis
    that the authors conclusions about stability were founded on the appellants
    word, which he found unreliable.  He also noted that the appellants stability
    circumstances  job, residence, social assistance  changed after the report
    was written and that the author did not communicate with the childrens
    teachers and was unaware that the appellants conduct during visits did create
    at least a risk of emotional harm to the children.

[19]

As
    for access, the trial judge found that the current distance between homes made
    frequent access very difficult, expensive, time consuming and not in the best
    interests of the children.

[20]

He
    also made permanent the prior order of King J., dated October 23, 2015, which
    directed the appellant not to include the children in any activity or
    festivity that is contrary to the religious beliefs [of the respondents].  In
    his view, that order calmed the waters of the initial anxiousness, both by the
    children and by [the respondents] over [the appellants] conduct during
    access.

Issues

[21]

The
    appellant raises the following issues:

1.

Whether the trial judge erred by finding that the appellants
    relationship was not stable, and that the appellant was not stable by
    extension;

2.

Whether the trial judge erred by failing to consider the maximum contact
    principle;

3.

Whether the trial judge erred by failing to appreciate that parents have
    a favoured status when competing with non-parents for custody of their child;

4.

Whether the trial judge misapprehended the relevant
status quo
;
    and

5.

Whether the trial judge erred by treating the appellants secular
    beliefs as less significant at law than the respondents faith.

Analysis

Misapprehension of Evidence

[22]

The
    appellant asserts that the trial judges conclusion that the appellants
    same-sex relationship was unstable was clearly wrong and not supported by the
    evidence.  She asserts this on the basis that the appellant has been cohabiting
    with her partner in a committed relationship for over three years; the
    appellants partner testified that she was committed to the relationship and
    willing to financially support the appellant and her children; the appellants
    partner assisted the appellant to rent living space to accommodate the
    childrens anticipated return; and that since many common law relationships are
    characterized by a lack of marriage and a separation of finances, it does not
    logically follow that those are indicia of instability.

[23]

We
    agree with the appellant that it would have been wrong to conclude on the
    evidence that her same-sex relationship was unstable.  The trial judge himself
    stated that As I see it, the one big positive is her relationship with S.  I
    was impressed by S. when she gave evidence before me.  While he mentioned his
    concerns about the stability of the appellants family unit under s. 24(2)(f),
    read as a whole, the focus of the reasons appears to be on indicia of instability
    in the appellants own life and its potential effect on the children.

[24]

In
    considering ability and willingness to provide as required by s.24(2)(d), the
    trial judge first commented at para. 49 on the instability of the appellants
    life more generally.  He stated that [h]er life is an example of instability
    with constant changing of education, jobs and residences.  In the past year, [the
    appellant] has quit one job, gone on social assistance, moved to a residence
    significantly farther away from [the respondents], and reconnected with
    employment in a different city.

[25]

These
    findings about the appellants employment and finances were not unavailable on
    the record.  And they were in contrast to his findings about the respondents demonstrated
    ability to provide admirably for the last seven years.

[26]

The
    trial judge referred to s. 24(2) of the CLRA and addressed each of the factors
    prescribed by that section when considering the best interests of the children.
    As one factor among others in the best interests analysis, the trial judge was
    entitled to consider the appellants employment and financial circumstances as
    potential sources of future instability.

[27]

The
    best interests analysis is intensely fact-specific and deference is owed
    accordingly.  The trial judge heard evidence from all parties, from the OCL
    clinician who prepared both reports, and from two of the childrens teachers. 
    He heard this evidence over an eight-day trial.

[28]

Without
    necessarily agreeing with the trial judges assessment on the stability issue,
    given all the other factors taken into account in the best interests analysis,
    we would not interfere with the custody order on this basis.

Status Quo

[29]

The
    appellant also asserts that given the agreed temporary nature of the
    arrangement, the trial judge erred in law in misconstruing the status quo.

[30]

We
    do not agree.

[31]

The
    status quo was nowhere considered explicitly by the trial judge.  In our view,
    he only appropriately considered the existing circumstances as they implicated
    the childrens current and future best interests.  In this, he did not err.

Preference for Biological Parents & Maximum Contact
    Principle

[32]

In
    deciding custody, the appellant asserts that the trial judge ought first to
    have considered a biological parents favoured status.  She cites the Supreme
    Court of Canadas decision in
C.(G.)v. V.-F.(T.), [1987] 2 S.C.R. 244
,
which in interpreting
    the Quebec Code of the time, stated at para. 65 that, [a] third person who
    wishes to obtain custody of a child must rebut the presumption to the effect
    that the parent is in a better position to ensure his childs well-being.

[33]

She
    also asserts that it was an error not to consider and apply the maximum contact
    principle articulated in s.16(10) of the
Divorce Act
, R.S.C., 1985, c.
    3 (2
nd
Supp.) (
DA
).

[34]

Section
    16(10) of the
DA
requires the
    court in making a custody or access order to give effect to the principle that
    a child of the marriage should have as much contact with each spouse as is
    consistent with the best interests of the child and, for that purpose, shall
    take into consideration the willingness of the person for whom custody is
    sought to facilitate such contact. While the maximum contact principle is
    specifically articulated in the
DA
,
it has been held to apply to custody disputes between parents under the
CLRA
as well:
A.C.W. v. T.M.P
,
    2014 ONSC 6275 (Ont. Div. Ct.) at para. 30.


[35]

Our
    responses to both arguments are the same.  The
CLRA

s best interests analysis already contemplates
    the importance of the parental bond and maximum contact through the best
    interests lens. That is, s. 24(2) of the
CLRA
explicitly requires the court to consider familial relationships  s. 24(2)(h)
     as well as love, affection and emotional ties  s. 24(2)(a) -  in making
    custody and access orders that are in the childrens best interests.

[36]

Accordingly,
    in our view, the trial judge was correct to apply the best interests framework
    under s. 24(2) to decide the questions of custody and access.

The Trial Judges Application of the Best Interests Test

[37]

While
    the trial judge applied the correct test, the question remains, whether he
    erred in his application of that test to the facts as he found them.

[38]

In
    our view, in considering familial relationships, love, affection and emotional
    ties, the trial judge overlooked the evidence of the strong indicators in this
    case that time with all three parties  the mother, aunt and uncle  should be
    maximized.

[39]

In
    considering love, affection and emotional ties, the trial judge stated:

It is very clear from the evidence that the children are loved
    deeply by both parties and the children love both parties.  The children have a
    significant bond with [the respondents] who have raised them for the last seven
    years.  They call them mommy and daddy.  It is also true that the children love
    their biological mother, J.  In addition, they are beginning to form a
    relationship with Js partner, S.

[40]

However,
    when assessing the childrens views and preferences, he erred by concluding only
    that the effect of the two OCL reports made it clear that the children wish
    to remain in the care of [the respondents].  Equally clear was the childrens
    desire to maximize their time with their mother.

[41]

Further,
    he gave insufficient consideration to s. 24(2)(h), which requires the court to
    consider any familial relationship between the child and each person who is a
    party to the application, by limiting his analysis to the two sentences: [J.]
    is the biological mother of [D.] and [E.].  [S.] is the biological uncle of the
    children and [D.] is [S.]s wife.

[42]

In
    our view, the trial judge misapprehended the evidence of the childrens views
    and preferences in simply stating that they wished to remain with the
    respondents.  He also erred in doing no more than state the facts of biological
    relationship, by misapprehending clear statements from the children consistent
    with a desire to be with their mother as much as possible as well.

[43]

When
    asked for three wishes, D. said that she wished that her mother could reside
    with her, E., and her aunt and uncle,  and that she wished they could either
    live in the same house, as they had before, or in the same city.  She also said
    that she sometimes has a feeling that she should be visiting her aunt and
    uncle and living with her mother.  She reported nightmares about being
    separated from her mother.  E.s wish was to have more visits with his
    mother.  He also reported kinda missing the other party while with the other
    when transitioning from his moms to his aunt and uncles place.  He said he
    enjoyed residing with his aunt and uncle but would like to spend more time with
    his mother.

[44]

The
    reports also stress that the children clearly love their mom, aunt and uncle. 
    Their mother has always been part of their life and they have always known her
    as their mother.

[45]

On
    the whole, what is most clear from these reports is that the children would
    like to spend as much time as possible with all the people they love: their
    mom, aunt and uncle.

Remedy

[46]

Based
    on these errors, what is the most appropriate remedy? We would defer to the
    trial judges decision on custody.  Given the distance between the parties 
    both geographically and philosophically  sole custody is practical.  The
    decision to award that sole custody to the aunt and uncle was available to the
    trial judge on this record.

[47]

We
    do, however, find reversible error in the trial judges insufficient analysis
    of the childrens views and preferences, familial relationships, emotional
    ties, love and affection in the context of the amount of access awarded to the
    mother.  In our view, a complete consideration of these factors is incompatible
    with the limited access awarded to her.

[48]

While
    we appreciate that the geographical distance between the parties  and the
    childrens stated dislike of the long commute between Windsor and Toronto  speaks
    against more regularly rotating access, the issue can be addressed by  increasing
    the length of time spent with the mother and her partner to the maximum
    available given school year constraints. If the appellant and her partners employment
    circumstances were to change, allowing them to move closer to Windsor, access
    time could be further increased accordingly.

Religious Restriction on Access

[49]

The
    mother also submits that paragraph 2f. of the order below, which prohibits her
    from including her children in any activity or festivity contrary to the aunt
    and uncles Jehovahs Witness religious beliefs, is both unfeasible and
    contrary to
Charter
values.

[50]

We
    agree.

[51]

Paragraph
    2f. of the Order reads as follows:

The respondent mother, Julie Anne Lemon, shall not include the
    children in any activity or festivity that is contrary to the religious beliefs
    of the applicants; solely non-controversial secular holidays, such as Victoria
    Day and Canada Day, are not deemed contrary to the religious beliefs.

[52]

The
    way this Order is worded goes far beyond a prohibition on celebrating holidays
     such as birthdays, Easter and Christmas  that are contrary to Jehovahs
    Witness beliefs.

[53]

The
    mother is living in a committed same-sex relationship.  This in itself is an
    activity contrary to the religious beliefs of the [respondents], who
    communicate their disapproval to the children. Both the appellants sexual orientation
    and her secular beliefs are entitled to the same respect as are the
    respondents beliefs. See
R. v. Big M Drug Mart Ltd.
,
[1985] 1
    S.C.R. 295 at para. 123.

[54]

The
    Order, as worded, therefore cannot stand.

[55]

In
    considering whether to include the children in activities and festivities, as
    in all things, the childrens best interests should govern.  Both parties
    should let the childrens own views and preferences on this matter guide them
    and should respect the childrens choices.

[56]

This
    restriction on the mothers access will be deleted.

Order

[57]

The
    custody appeal is dismissed.

[58]

The
    access appeal is allowed.

[59]

Paragraphs
    2b. and 2c. of the Order shall be deleted and replaced with the following:

b.

Eight weeks
    during the summer months of July and August.  The weeks are to be agreed upon
    by the parties which said agreement shall not be unreasonably withheld;

c.

During the entire school break at Christmas and March school break, the
    exact periods to be agreed upon by the parties which said agreement shall not
    be unreasonably withheld.

[60]

Paragraph
    2f. shall be deleted.

[61]

If
    the above access orders conflict significantly with the childrens activities,
    the parties are to agree on an appropriate modification which said agreement
    shall not be unreasonably withheld.

Costs

[62]

As
    success was divided, there will be no order as to costs.

K.
    Feldman J.A.

C.W.
    Hourigan J.A.

David
    Brown J.A.





[1]

The appellant and her partner S. had moved from Toronto to a
    family-sized house in Oshawa that was available through S.s brother.


