As we’ve previously blogged about, Justice Pazaratz (Ontario Superior Court of Justice) has become well-known in the legal world for his strongly worded family law decisions that can be quite critical of the parties before him. His recent decision in Chomos v. Hamilton is no different.

The case candidly outlines a custody dispute between two dueling unmarried parents, who had each requested sole custody of their daughter. Justice Pazaratz ultimately granted sole custody to mother, commenting that the father is “…a bully.  A very sophisticated, well-spoken control freak with a grudge.” A large factor in his decision was the father’s treatment of “Fluffy”, a favourite toy of the daughter.

As with many prior decisions by Justice Pazaratz, the case offers some instructive lessons for parents going through a divorce or separation.

What Happened?

The parents in this case were unmarried. Their relationship had been brief, and their child was unplanned.

The parties began a relationship in June 2012, and conceived their daughter shortly thereafter. Just before their daughter’s birth in March 2013, the mother and her twin teenage children from a previous marriage moved into the father’s house. This living arrangement lasted only six weeks before the mother, daughter, and twins moved out in May 2013.

At the custody trial that followed the separation, each party sought sole custody of the daughter, and did not propose any compromise such as joint custody or parallel parenting. Both parties believed they were the parent who should be making sole decisions in the life of their daughter.

The mother claimed that the father was “domineering and inflexible”, “rude to her children”, “controlling and always insist[ing] things have to be his way”, and “incapable of compromise”. She stated that she had moved her family out of his home after only six weeks because he was a “bully”.

Justice Pazaratz generally concurred with the mother’s sentiments, taking issue with many of the father’s actions, and particularly those towards the aforementioned Fluffy.

The Drama Around “Fluffy”

While Justice Pazaratz heard and considered a great many examples of unreasonable behaviour on the part of the father in this dispute, Fluffy became the best indication of the father’s attitude following the separation and throughout the custody process:

…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. 

Justice Pazaratz focused on the father’s actions towards Fluffy because:

[s]ometimes in custody trials its 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.

The problems with Fluffy began in March 2015, when the daughter was approximately three years old. At that time the daughter was living primarily with her mother, but had regular visitation with her father. She had been experiencing separation anxiety on visits with him. Fluffy made her feel better on such occasions. During the March 2015 incident, the father arrived at the mother’s home to pick the daughter up for a visit. When he saw that Fluffy was going to be coming with the daughter, he immediately pulled the stuffed animal out of his daughter’s hands, pushed it into the mother’s face, and told her that he had his own stuffed animals. The mother claimed that the daughter became hysterical, but the father did not appear to care, and left without Fluffy.

A further incident occurred about a month later. Despite the calming effect of Fluffy on his daughter (which he was well aware of), when the father came to pick her up, he again removed Fluffy from her, and this time, threw the stuffed animal on the driveway. The daughter again became hysterical, but the father simply drove away with her, without Fluffy.

The Fluffy issue escalated to the point that the parents went to court to negotiate a resolution. Justice Pazaratz expressed his incredulity at this, stating “[p]ause for a moment to let that sink in: They went to court to negotiate a Fluffy resolution”. After the court had to become involved, the father finally agreed to permit Fluffy on visits.

Despite the apparent Fluffy resolution, however, the drama continued. Allegedly, while the father had consented to the daughter bringing Fluffy with her, he would simply throw Fluffy in his trunk for the duration of his visits with her. This continued for some time before the situation became even more ridiculous.

At some point, the mother began to notice that Fluffy would return with the daughter smelling as though it had been rubbed in Vicks VapoRub, or something similar. On three occasions, Fluffy had to be washed because of the smell. When the mother confronted the father, he accused her of making things up. She testified that she eventually just gave up and stopped sending Fluffy with her daughter on visitations.

This behaviour ultimately became a key factor in Justice Pazaratz’s decision, with the Judge stating:

I have no idea why [the father] allowed Fluffy to turn into such a major and unwinnable competition. He doesn’t like the [mother] I get it…  [i]t’s quite apparent that at every step in this parental turf war, the father sought to imprint his “brand” on the child, and eradicate any reminder of the mother. But Fluffy was just….Fluffy. 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.  Would it have killed him to just let the child hang on to her toy?  Was it really necessary to make his daughter cry, just to flex his need for control?  In [a previous case] this court offered some very simple advice for situations like this:  Stop acting like you hate your ex more than you love your child.

What does this Mean for Parents Seeking Custody?

Custody disputes can be bitter. Regardless of whether a child’s/children’s parents are married or unmarried, courts will approach the dispute in the same way. At the end of the day, the “best interests of the child” will be a major factor in a custody decision.

Where parents are unmarried, their parenting issues are determined by the Children’s Law Reform Act. Section 21 of the Act stipulates that a parent, or “any other person” can apply for an order regarding custody of or access to a child, as well as any related details of custody. Section 24(1) states that custody will be determined based on the best interests of the child. Under s. 24(2), the court will consider the following factors when making a custody decision:

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

(i) each person entitled to or claiming custody of or access to the child,

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

(iii) persons involved in the child’s care and up-bringing;

(b) the child’s 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 child’s 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) the relationship by blood or through an adoption order between the child and each person who is a party to the application.

Justice Pazaratz considered all of these factors in making his decision, and concluded that it was in the best interests of the daughter to award sole custody to the mother, as she “in short…has what the [father] lacks. A sense of fairness and equality”.

The biggest take-away for parents was neatly summed by Justice Pazaratz in the closing lines of his decision:

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.”

This truly should be the lesson learned: when all else fails in your relationship (whether a marriage or not), and you are fighting over custody: Just. Be. Nice.

If you have questions about separation, divorce, or custody disputes, please contact family lawyer Jason P. Howie, online or at 519.973.1500.