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[Litigator]

Shaw v. Shaw 2008 ONCJ 130
STEPHEN EDWARD SHAW (Applicant) and ALISON SHAW (Respondent)
Ontario Court of Justice
B.E. Pugsley J.
Heard: March 19, 2008
Judgment: March 25, 2008
Docket: Orangeville 34/08

1 This matter comes before the court to review the order made without notice by Justice Douglas B. Maund
on 12 March 2008. The respondent mother brings a cross-motion to reverse the ex parte order.

2 The parties married on 26 May 2001 and separated in the late winter of 2008. There are two children of the
marriage:
• Hannah Christina Shaw (born on 28 December 2005); and
• Brayden Edward James Shaw (born on 21 May 2002).

3 On or about 9 February 2008, while out of the matrimonial home at a social function, the respondent (mother) is alleged to have hit the applicant (father). The children were not present. The parties continued to
reside together albeit the father stated that they were then separated. Commencing in the fall of 2007, the father had installed a device on the family computer to secretly track the mother's private computer correspondence.

He believed that she was having an affair and, as he put it, he "continued to monitor communications." On 17 February 2008, the father intercepted the mother's private communications with a female friend who was also
going through family problems. The result was set out as an exhibit in his first affidavit, filed in support of his motion for an order without notice. In the exchange of internet chat, the mother put down the father using vile
language and appeared to be joking about solving her matrimonial problem by resort to a gun if she could only
get one.

Mr. Shaw stated in his affidavit that the intercepted private communication frightened him but that he did not believe that his wife "could possibly be capable of murdering me". The father stated that he went to the local police to tell them of the mother's threat and of the assault (he calls it "the episode") at the dance. They checked to see whether Ms. Shaw had a firearms acquisition certificate and presumably she did not. Mr. Shaw then stated that he "asked that no charges be laid". Mr. Shaw then saw a lawyer (not Mr. Milliken) and stated that that lawyer told him to have his wife charged. Mr. Shaw then attended upon the Shelburne Police on 11 March 2008 and asked them to charge the mother. The mother was arrested and charged with common assault
relating to the incident that had taken place over a month previously.

4 Before I continue with the immediate family law narrative, I must make several observations on a continuing problem with how criminal procedures impact and pre-empt sound family law tenets.

5 The events after the arrest of Ms. Shaw do not, in retrospect, show the police, the Crown, counsel or the criminal judicial system in a good light, although her story is commonplace. These events have become routine
and predictable in almost every allegation of spousal assault such that there is presumably some policy guiding the police and the Crown attorney and forestalling professional discretion in all such matters, no matter how remote the assault may be in time or indeed how trivial the contact. Spouses of every walk of life and often with completely unblemished prior character are routinely detained for a formal bail hearing for such assaults. Invariably, the defendant (not yet convicted) is excluded from his or her home and prevented from exercising custody
of or access to the defendant's children without any consideration of the factors that this court must apply by law before determining incidents of custody or access. This is not for one moment to diminish the impact of spousal abuse on family members and children in Canada. Spousal assaults are by nature serious and there are very sound policy reasons to lay such charges and have them proceed through the judicial system to ultimate resolution if not diverted. I observe, however, that the damage of which I speak is not from the laying of the charge -- this will happen in any event, regardless of the manner in which the defendant is brought before the court. The way that the criminal justice system approaches the commencement of these matters, however, often wreaks family law havoc with the family unit of the defendant and the complainant, and in particular the children of those parties. Family courts decide custody and access issues on the basis of statute and case law defining the
best interests of the children. The criminal justice system pays no attention to such interests because it is not geared up to do so nor are the participants widely trained in how the actions of the system -- from the officer who refuses to release the defendant at the station, to the duty counsel who allows the defendant to agree to inappropriate conditions of release out of expediency -- effect the lives of the members of the defendant's family. Similarly the Superior Court is tasked with the duty of adjudicating the respective rights of the parties to remain
in the matrimonial home pending the resolution of the matrimonial litigation. Routine orders excluding a partyfrom the common home of the parties until the end of the criminal matter without thought to the consequences thereof, and without a remedy short of a bail review, place one party in a position of immediate superiority over the other party for as long as it takes (perhaps a year) for defended criminal charges to be resolved. Such rote treatment of all matters of domestic assault can lead, on the one hand, to concocted or exaggerated claims of criminal behaviour or, on the other hand, to innocent defendants pleading guilty at an early stage out of expediency or a shared desire with the complainant to start to rehabilitate the family unit.

6 Ms. Shaw's case illustrates the dangers of speedy or discretionless criminal procedure.

7 Inexplicably, although charged with what was in effect a one-punch bar fight over a month before where the target was her spouse, the mother was arrested and detained in custody for a bail hearing, the next day. The
mother was not then released on her own recognisance but was required to have a surety and in the amount of $5,000.00. The mother was bound over by the court on terms that effectively gave the father instant custody and instantly restricted access by the mother to her children (who of course were not at the Shelburne Legion when the assault is said to have occurred and equally inexplicably including restricted contact with her daughter from a prior marriage who resided outside the parties' household) and, in a provision that coincidently exceeds my family law jurisdiction as a judge, effectively granted exclusive possession of the parties' matrimonial home to the father. Further, Ms. Shaw, a forty-year-old adult with no prior criminal history, was required, inter alia, to:
reside with her surety and be amenable to the rules and discipline of the home; to abide by a curfew; and not to access the internet. It is hard to contemplate any understanding by the police, or later the presiding Crown, as to the meaning and intent of the bail reform measures introduced some thirty-five years ago. The presumption, as I understand it, is that the lowest form of available release appropriate to the charge and the defendant should be applied -- on a range from a promise to appear to a full-blown bail hearing. There is nothing on the record that I
have seen in the family law proceeding (including the father's affidavits and the exhibits attached thereto) that would have prevented the release of Ms. Shaw from the station house at the highest by the officer in charge on an undertaking with terms.

8 I do not know what advice Mr. Shaw received from the unnamed lawyer whom he consulted before, as he put it, asking for charges to be laid. I can only hope that no licensed lawyer in this province would have advised
the father that the fastest way to get custody and exclusive possession of the family home was to report the mother's transgressions to the police.

9 I do not know with what police officers Mr. Shaw had contact at the Shelburne Police Service. I can only hope that the officers whom he saw there do not believe that complainants in criminal matters decide whether
charges are, or are not, to be laid.

10 I do not know what counsel were present at the bail hearing held in Ms. Shaw's case, nor do I know whether the matter proceeded, as many such matters do proceed, on the basis of a consent release on terms. I hope that all counsel understand that the terms of release should have some rational bearing on the severity and timelinessof the charges that were then before the court. I have difficulty on this record understanding why the mother was required to abide by the majority of the terms on her recognizance -- although I understand completely why the mother may have been prepared to sign just about anything to be released from jail.

[fixchildrensaid]

(The rest of the Reasons for the Shaw case, Litigator, since some were not copied:)

[11] In the normal course of events under the normal Family Law Rules, O. Reg. 114/99, as amended, and assuming nearly perfect timing by the mother, the family court could not have accommodated an application by either of the parties for judicial assistance in completing their separation — and in the best interests of the children — for at least six to eight weeks. In the interim, the children’s contact with their mother would have been left entirely to the good will of the father. As it is, the matter came before the court with staggering rapidity. Mr. Shaw moved for an order without notice on 12 March 2008, the day after the arrest of Ms. Shaw. Justice Maund granted an order, triggering a speedy review of the order made on only part of the factual story. That review was one week later. Justice Maund’s order kept residential care of the children in the hands of Mr. Shaw, but also anticipated that Ms. Shaw’s time with the children would be both “immediate” and “generous”. The mother’s material discloses that, in the intervening week, the father allowed the mother one half hour with the children on Sunday, 16 March 2008. The children, as has already been noted, are 2 and 7 years of age. On the facts of this alleged assault, the imposition by the father of such limited contact is illustrative of a party concerned more with his power over his spouse than the best interests of their two young children. Mr. Shaw’s failure to abide by Justice Maund’s expectations as to contact between the children and their mother gives credence to the mother’s submission that the father’s actions, couched in terms of protection of the children, are rather directed against the mother as an errant wife. There is no reality to any restricted contact between the children and either parent. They were not present when the Legion punch was delivered, were not privy to any improper acts between the parties and the transcript of the private communications intercepted by the jealous Mr. Shaw speaks more to the mother’s frustrations in her marriage than anything at all to do with the children. Yes, the mother referred to finding a firearm to deal with the Father. On its face, this is a serious matter indeed. The context of this comment, however, makes it clear that the mother was engaged in gossipy joking with her friend who found herself in a similar situation in her own relationship. There appears to be no reality behind any alleged threat to the application founded on these ill-considered and foolish remarks, and, indeed, the father himself took the remarks in this context when he first found them. A further and similar remark lends no more credence to any threat posed by the mother to the children, nor on these facts to the father himself.

[12] The father submits that he should have custody of the children and that the mother should have liberal and generous access. As already noted, in the week between Justice Maund’s order and the review, the latter submissions were not put into action by Mr. Shaw. Further, Justice Maund’s order did not grant custody to either party but rather provided that the children remain in the primary residential care of the father with substantial time for the children to be in the mother’s residential care. The order is deliberately stated to be without prejudice and the review date was set by Justice Maund as only seven days in the future. Thus, the ex parte order establishes no precedent as to custody and access between the parties.

[13] The mother submits that there was insufficient evidence for Justice Maund’s order made without notice and that that order should be vacated. Her cross-motion seeks custody of the children. She proposes to reside in Marsville with the children and to continue to support them in their current day care and school regime. Brayden has been seeing Dr. Gregor Finlayson, a psychologist, through a school referral for the last two years, and is being followed up with his paediatrician, Dr. Murphy of Orangeville based on Dr. Finlayson’s diagnosis of attention deficit hyperactivity disorder. The mother states that she has taken charge of Brayden’s medical and psychological treatment thus far.

[14] The material before the court consists of Mr. Shaw’s original affidavit, Ms. Shaw’s responding material, including two supporting affidavits and Mr. Shaw’s hand written affidavit in reply. In his original affidavit, the father focussed upon the facts supporting relief without notice. As Justice Maund’s endorsement noted, the father does not assert that the mother is any risk to the children. Mr. Shaw’s initial affidavit put the matter rather more baldly (paragraph 30, emphasis added):

I have discussed with my lawyer the fact that the issue of my wife’s access to the children will have to be dealt with. So long as I am granted the temporary custody order, I will be agreeable to arranging for my wife to have access to the children. I do not believe she represents any threat to their safety, but she may respond erratically at first to the circumstances surrounding her arrest


The father asserts that he has been the primary caregiver to the children and that he has sacrificed his social life to fill that role while implying that the mother’s social life interferes with her taking on the parenting role. Mr. Shaw’s affidavit in reply states that the mother has lied to the court in her responding affidavit and attaches numerous private conversations intercepted by the father without the mother’s knowledge. He paints the mother’s own words as supportive of his allegation that he is the quiet stay-at-home father while his wife has established a persona at least on line of a wild party animal indifferent to her husband in particular and her children as well. Reading the intercepts fully, this last allegation has considerable credibility as it relates to what the mother has said and it supports Mr. Shaw’s view that Ms. Shaw is interested in a party lifestyle separate from her husband. How this material relates to what the mother has actually done and its impact on the best interests of the children is less clear in my view. Further, what use I can make of the secretly intercepted material is also concerning.

[15] The mother’s material provides some of her perspective to the events leading up to the ultimate separation of the parties. Although the impact of her statements concerning the Legion assault to her criminal prosecution remains to be seen, it is clear that, before and after that event, the marriage of the parties was in grave danger. The mother states that after the Legion event she told the father that she wanted to leave with the children. She believed that the father already planned to use the Legion event to gain custody of the children after she was charged and indeed that she was “set up” at the Legion to that end. She stated that the father told her on or about 16 or 17 February 2008, that “in three weeks, everyone would be laughing at her.” The mother set out that she, not the father, has had the primary care of the children and that it is to her to whom the children look for comfort when they are ill or troubled. Two supporting affidavits — from a friend and from her mother — support her position.

[16] The father cast the mother’s friend as no better than the mother by reference to the intercepted conversations and did not directly respond to the affidavit of Ms. Shaw’s mother.

[17] With regard to the intercepted on-line communications, their usefulness here is, in my view, severely constrained, even setting aside the propriety of such secret interceptions. For the most part, the cited material relates, as the mother submitted, to the propriety of the mother as a wife rather than to her role as a parent. Clearly, Mr. Shaw became concerned in the fall of 2007 that his marriage was in trouble. He arranged thereafter to intercept all of the on-line communications of Ms. Shaw without her knowledge. From his material, he has suggested that his wife spent countless hours on-line since that time. From those presumably hundreds and hundreds of hours of internet chat (not yet produced), he has presumably chosen to cite as exhibits the material most supportive of his thesis that he should have custody of the children rather than the mother. Although indicative of a collapsed marriage, the material cited is, however, totally unconvincing in that regard. The material is presented as a “smoking gun” by Mr. Shaw. It does show the breakdown of his marriage in sad detail but does not present as such on the issue of custody. The father’s use of the material coupled with the early evidence of his actions in the month before and the week since the order of 12 March 2008, do, however, lend support to the view of the mother that the ultimate physical separation of the parties was something planned by the father in advance and was an indication of a controlling nature. The mother herself gave the father a perfect opportunity to place any plan into action by her actions at the Legion a month before the charges were laid.

[18] The use of the intercepted on-line communications in general is a troubling issue. First, there is some question whether such an interception is illegal under Part VI of the Criminal Code, R.S.C. 1985, c. C-46 [as amended] — an issue that I do not need to decide here. Even if such an interception were illegal, the general rule at common law is that evidence in a civil action ought not to be excluded solely on the basis of the means by which it was obtained. Under the Canadian Charter of Rights and Freedoms, being Part 1 of Schedule B to the Canada Act 1982, c. 11 (U.K.), however, there may be a basis in law for excluding illegally obtained evidence where the admission of such evidence effects the Charter rights of a party; see Seddon v. Seddon, [1994] B.C.W.L.D. 1402, [1994] W.D.F.L. 873, [1994] B.C.J. No. 1729, 1994 Cars­well­BC 1409 (B.C.S.C.); cited with approval in D.P. v. Wagg 2002 CanLII 23611 (ON S.C.D.C.), (2002), 61 O.R. (3d) 746, 165 O.A.C. 209, 222 D.L.R. (4th) 97, 97 C.R.R. (2d) 324, 26 C.P.C. (5th) 377, 2002 CanLII 23611, [2002] O.J. No. 3808, 2002 Cars­well­Ont 3288 (Ont. Div. Ct.). More relevant in my view to the case at bar, there is a general repugnance in the courts to the use of secretly obtained information to decide the issue of the custody and access of children. See, for example, Fattali v. Fattali, 1996 CanLII 7272, 22 R.F.L. (4th) 159, [1996] O.J. No. 1207, 1996 Cars­well­Ont 1284 (Ont. Fam. Ct.); Tatarchenko v. Tatarchenko, 1998 CanLII 14087, 83 A.C.W.S. (3d) 792, [1998] O.J. No. 4685, 1998 Cars­well­Ont 4374 (Ont. Fam. Ct.); Joseph F. v. Valerie C. (No. 1), 2000 CanLII 21095 (ON S.C.), 2000 CanLII 21095, 100 A.C.W.S. 255, [2001] W.D.F.L. 182, [2000] O.J. No. 3978, 2000 Cars­well­Ont 3758 (Ont. Fam. Ct.); and Hameed v. Hameed, 2006 ONCJ 274, [2006] O.J. No. 3109, 2006 Cars­well­Ont 4653 (Ont. C.J.). The opportunities for abuse are, as has been noted, widespread. As my brother, Justice Stanley B. Sherr so clearly stated in Hameed v. Hameed — in a slightly different context but no less applicable to the facts of the instant case:


[11] . . . Surreptitious recording of telephone calls by litigants in family law matters should be strongly discouraged. There is already enough conflict and mistrust in family law cases, without the parties’ worrying about whether the other is secretly taping them. In a constructive family law case, the professionals and the courts work with the family to rebuild trust so that the parties can learn to act together in the best interests of the child. Condoning the secret taping of the other would be destructive to this process.


To this, I would add that there may well be public policy reasons connected to the relationship between married partners that militates against the admission of such interceptions that breach the private lives of the partners. In the context of the current law that has removed a parties’ marital misconduct from the custody and access equation, the area where interceptions such as those in the instant case are relevant is also greatly diminished.

[19] The issue before me in the Shaws’ case does not engage a detailed examination of the evidentiary issue outlined above. As stated earlier, the impact of the intercepted communications here bears hardly at all on the issue upon which the court must rule — the best interests of the children herein. The factors set out in subsection 24(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C-12, as amended, apply to the decision to be made in this case, even at the stage of this proceeding, barely one week old. The evidence of the parties is not, at this early stage, tested by cross-examination. Both assert that they have been the primary caregiver to the children and that the status quo should favour their plan for the future temporary care of their children. In my view, the circumstances created by the arrest and subsequent release of the mother on terms of bail should not bear at all on the temporary order to be made here, let alone be used to establish a peremptory status quo in the father’s favour. First, the precipitating event for Ms. Shaw’s arrest involved the care of the children not at all. Second, that precipitating event took place over a month before the arrest of the mother. This latter fact lends credence to the suspicion that the father kept the issue of the assault alive pending his decision on whether that event could be used to his personal benefit in the final separation from his wife that he knew by that time was inevitable. Third, Justice Maund’s order expressly set out to avoid any such status quo. Thus, I conclude that I should decide the issue before me herein based upon the evidence of the way the parties themselves arranged their affairs as it affected their children before the events that lead to their final separation. If Mr. Shaw did act with an ulterior motive to collect information and plan for the eventual separation of the parties and if such actions illustrated an improper motive on his part, that conduct does not bear on the matter of custody and access except as it impacts the factors set out in subsection 24(2) of the Act.

[20] The evidence of the parties shared care of their children is to be found in all of the affidavit material filed in this case. That evidence points me to the inevitable conclusion that they, like most families, shared their resources and raised their children together. Each points to small ways that the other helped with the children, albeit in such a way as to minimize the other partner’s role. Even the intercepted communications give glimpses of such shared parenting. If the criminal charges did not impact this family with the disruptive force of a hand grenade, the parties would likely be in a position to share their children’s custody between them in a child focused way. Such a conclusion is, however, impossible at this time because of the highly intrusive bail terms faced by the mother. These terms require that there be an order that the children reside with one or the other of the parties. If they reside with the father, they will do so in the matrimonial home and the mother will not be allowed near that home. If they reside with the mother, they must therefore live outside their usual home. This is the family law effect of the criminal law decisions made here with no regard to the children’s best interests that is apparent to the court. Decisions made by courts at this early stage of a family court proceeding are made upon scant and untested evidence. Nonetheless, the parties are at this stage unable to bridge the gaps between their respective positions and the court must rule on the temporary care of the children in a sometimes rough and ready way. On the evidence before me, both parties cared equally for the children. Both have a plan to continue to provide stability for their children. There is a proven daycare system in place and both parties would continue to allow Brayden to attend his current school at the least for the balance of this school year. Each has much to give to the children and particularly at this time when the children are no doubt confused and upset at the sudden and inexplicable removal of their mother from their day-to-day lives. Indeed, the only factors that militate against a shared custody regime are:

• first, the present inability of the parties to communicate with one-another (due to the restrictive bail conditions already referred to extensively above); and

• second, any concern over the ability of the two adults properly to advance the other party in the lives of the children.

In particular, the lack of action by Mr. Shaw in abiding by the direction of Justice Maund that the children have immediate and generous contact with Ms. Shaw is concerning and will bear watching in the future.

[21] Orders for shared custody normally require that there be a great deal of ready communication between the parties about the children’s needs. Such communication is legally impossible here at this time. Indeed, the parties may not legally be near each other without the mother’s breaching her bail terms. Third-party assistance will be required to allow for the transfer of the children between them. At this very early stage in this proceeding, the parties are best able to alternate their care of the children, week-about. This will not be a joint custody regime but rather an alternating care format. This, in my view, most closely approximates the status quo ante pending further court order and makes allowance for the present inability of the parties to communicate. Mid-week visits will assist the children in maintaining contact with the other parent while residing weekly with their father or mother.

TEMPORARY ORDER
[22] The following is the temporary order pending further court order:

1. The order of Justice D. Maund dated 12 March 2008 is vacated.

2. Commencing on Friday, 28 March 2008, at 6:00 p.m., the children, Hannah Christina Shaw (born on 28 December 2005) and Brayden Edward James Shaw (born on 21 May 2002) shall alternate their residence between the parties as follows:

(a) both children shall be in the care of the respondent (mother) from Friday, 28 March 2008, at 6:00 p.m. until Friday, 4 April 2008 at 6:00 p.m.; both children shall be in the care of the applicant (father) from 4 April 2008, at 6:00 p.m. until 11 April 2008, at 6:00 p.m.; thereafter. the parties shall alternate the care of the said children week by week until further court order or the written agreement of the parties;

(b) commencing on Wednesday, 26 March 2008, and each Wednesday thereafter, the said children shall visit with the party with whom they are not then residing from 6:00 p.m. until 8:00 p.m.;

(c) the children shall remain in the care of the applicant (father) from the date of this order until Friday, 28 March 2008, at 6:00 p.m., subject to paragraph 2(b), above;

(d) pickup and return of the children shall be at the Shelburne Police Service Office in Shelburne, or such other place as may be agreed to between the parties; and,

(c) such further and other or alternative residential arrangement as may be agreed to between the parties in writing.

3. The parties shall not change the existing day-care and school arrangements of the children pending further court order or the written agreement of the parties.

4. Decisions as to the children’s emergency medical care shall be made by the parent with whom the children are then residing. Each parent shall have a copy of each child’s health card. Decisions as to Brayden’s psychological well-being or medication shall be made by the respondent (mother) and shall be communicated to the applicant (father) via counsel.

5. Educational events and meetings will be promptly communicated to the other party in advance and via counsel or directly by the school.

6. The children shall not be taken out of Ontario without further court order or the written consent of the other party.


7. The children’s residence shall not be outside the County of Dufferin without further court order or the written agreement of the parties.

8. Adjourned to 11 June 2008, at 10:00 a.m. as previously endorsed.


9.
Success being mixed, there shall be no order as to costs on these motions.