A case out of Newmarket family court has highlighted the pitfalls of taking the law into your own hands, commonly known as “self-help.”
In Abankwa-Harris v. Harris, even though the husband and wife separated in December 2007 they continued to reside in their Richmond Hill home with their three children until the end of June 2009. It is not uncommon for a couple to continue to reside under the same roof well after separation for numerous reasons.
From the fall of 2008 to May 2009 they tried to negotiate all their family law issues in a comprehensive separation agreement. The wife’s father assisted by shuttling back and forth over a number of months as the wife’s agent, trying to secure the husband’s agreement on all issues.
By May 2009 the parties had agreed on joint custody and an equal-time sharing regime for the children; in fact the last four drafts of their separation agreement provided for it. There were no restrictions or conditions attached to the husband’s visitation nor any violence, safety issues or any other unusual circumstance relating to visitation or care of the children. There were, however, some minor issues on other points that remained outstanding — and by the end of May, still no agreement had been signed.
Frustrated with how long the process was taking, in June the wife instructed her lawyer to prepare court papers and serve them on the husband. At the same time, she took the children from the home and moved them to an unknown location, denying him all form of contact. Although he retained a lawyer shortly thereafter and tried to get equal-time access, the wife and her lawyer would have none of it.
With the first court date scheduled for September, the husband had virtually no contact with his children for well over two months by the time the matter was argued in court. The wife tried to rely on the new “status quo” in an attempt to discredit the husband, arguing that he had a drinking problem and that the children were afraid of him. She asked that he receive as little visitation as possible: Two to three periods a week for only four to six hours a time.
The husband argued that his estranged wife’s conduct was highly improper — a crime in fact — and said that her unilateral actions should not be used as a weapon to deprive the children of their right to be in his care unless there was compelling evidence justifying the removal. He relied on the draft agreements, which all spoke of joint custody and equal time. He also argued that until final arrangements for visitation could be determined, the children should be in each party’s care for one week at a time with a visit to the other party every Wednesday.
The Honourable Madam Justice C. Gilmore reviewed the case law, legislation and evidence and agreed with the husband. She found the wife’s reasons for removing the children from the home were not sufficiently compelling to allow any significant change in the status quo. She said the court should examine the parties’ “way of life” prior to issues of custody and access arising and found there was no doubt the husband was involved in the children’s lives prior to the removal. Although the wife disliked his lifestyle, she found no clear evidence either she or the children had been placed in a position of risk or harm as a result of his behaviour. Finally, in a strong rebuke to the wife’s unilateral action she said “Mere frustration resulting from the other party’s actions while going through a separation is not unusual and should not be seen to be a ground for self-help” and that any complaints the wife may have had about the husband’s lifestyle (i.e., the drinking) were best addressed in the context of a court order rather than from unilateral action.
In the end she ordered the wife to return the children to the matrimonial home and that until it was sold the parties shall take turns moving in and out for one week at a time. She also ordered the husband not to drink any alcohol while the children were under his care.
This kind of an arrangement, informally known as a “nesting” order, is quite rare in family law, particularly in a high-conflict case. However, it is clear that by making this ruling the judge was sending a strong signal to the wife (and all future litigants) that unilateral action involving the removal of children from the other parent without a court order or written agreement will not be tolerated in the absence of clear evidence justifying the removal. Interestingly, the court did not provide any guidance as to what the arrangements should be once the home is sold. Perhaps she hoped that by that time the parties, with the assistance of a mediator or children’s lawyer, will have reached an agreement as to whether the schedule should be continued or not.
We applaud the court’s courage and hope this bold decision serves as a model for other separated parents to think carefully and put their children’s best interests before they act unilaterally and try to take them away from the other parent.
Brahm Siegel is a partner in the law firm of Nathens, Siegel LLP, a Toronto law firm restricted to family law matters. Brahm has experience in all aspects of divorce and family law and devotes much of his time to assisting clients with custody and access dispute. He can be reached at (416) 222-6980. View his firm’s Divorce Magazine profile and website.