Historical Background
The parties commenced living
together in 1978 and were married on May 26, 1984. There was a separation on
October 27, 1988 and with the assistance of mediation, an agreement about
family and property matters was concluded on December 7, 1988. They were divorced
on July 19, 1991. They have three children, as follows:
Evita Jean Straarup, born
June 16, 1980;
Heidi Joan Straarup, born
September 16, 1982; and
Glen Edward Jens Straarup,
born December 7, 1985.
The separation agreement
provided for joint and equal custody and guardianship of the children,
including an obligation to consult with each other concerning their health,
education, vacations and general well-being. The children were to reside with
each parent consecutively for alternating two week periods and with Ms. Gregory
for the period June 15 to October 1, when it was anticipated Mr. Straarup would
be away fishing. He was to pay the sum of $250 per month for the maintenance
of each child.
Immediately after the
separation agreement was concluded, the husband travelled to Australia for the
balance of the year and into late January of the new year, 1989. Upon his
return, the parties resumed cohabitation. Ms. Gregory had purchased property
at Fulford Harbour, Saltspring Island, on which she and the children had taken
up their residence.
Mr. Straarup had no
residence at the time and he agreed to assist his wife in the renovation of her
property so that she could operate a bed and breakfast. In return, he was to
have the benefit of storing his nets and other equipment in a storage shed and
the use of a den in the upstairs area of the home. His work, throughout the
spring of that year, is the subject of the second action to recover for work
done and services rendered on the project.
In the period they lived
together, from late January to early June 1989, maintenance for the children
was paid, pursuant to the separation agreement, in the amount of $750 per
month. He continued these payments throughout the summer, making his last
payment in September 1989. The wife seeks an order for the payment of all
arrears of maintenance.
In early June 1989, Mr.
Straarup, a commercial fisherman, went fishing. The parties have not lived
together since then.
In September 1989, his
parents visited Saltspring Island for about two weeks. He lived in Ms.
Gregory's home and she moved out and stayed with friends each evening. In the
late fall of that year, she also travelled to Rosco, New York, and Toronto for
a period of two months. The husband remained with the children in her home
throughout this period. The purpose of the trip to New York was to allow her
to take part in "A Course in Miracles", a program sponsored by The
Course in Miracles Foundation. The time in Ontario was spent visiting with family,
relatives and friends. She had been to Rosco on an earlier occasion to take a
short course of five days' duration.
When she returned from her
trip east, Mr. Straarup made another trip to Australia. He had planned to stay
until the salmon season opened in the late spring. She said that on his
departure she did not know when or if he would return. He did return in early
March to find his wife, together with the children, had left for Rosco, N.Y.
Both actions were commenced at that time. On an ex parte motion, Millward J.
ordered the return of the children and granted the husband sole interim
custody. The order authorized him to take custody of the children and return
with them to British Columbia. At this time, Mr. Straarup purchased a home on
Saltspring to accommodate the children on their return.
Ms. Gregory applied to set
aside the ex parte order while she remained in New York. On April 26, 1990,
Hutchison J. made a finding of wrongful removal of the children by the mother,
Ms. Gregory, pursuant to Article 3 of the Convention of Civil Aspects of
International Child Abduction. His order also provided for joint custody upon
the return of the children to British Columbia and both parties were restrained
from further removal of the children from British Columbia. On June 9, 1990,
at the end of the school term, she returned from New York with the children.
Ms. Gregory then applied to
vary the order of Hutchison J., seeking an order that would allow her to
return to New York with the children. The application was denied and she
returned alone, leaving the children in the care of their father. She
explained that she did this because she was of the opinion the separation from
the children would not be long and an early trial date would be obtained. As
well, she had met the man she later married, Paul Gregory, and had developed
plans to become more involved as a teacher or instructor in The Course in
Miracles.
The children were enroled at
Fulford Harbour Elementary School on Saltspring Island in the fall of 1990. In
the month of September, Ms. Gregory's bed and breakfast and residence at
Fulford Harbour was sold. Upon Mr. Straarup's application, Master McCallum
ordered Ms. Gregory to pay the sum of $100 per month per child for the
maintenance of the children and further ordered that $5,000 was to be set aside
from the proceeds of the sale of her property as security for such payments.
On an appeal from the Master's order, the security was increased by Murphy J.
to $30,000. In addition, a lis pendens, obtained in the second action
and filed against the property, was removed upon the payment into court of
$6,000.
The children spent the
latter part of the summer of 1991 with their mother while Mr. Straarup was
fishing. In August, she applied for sole custody of the three children. At
that time an order for a custody and access report was made, by consent. At the
conclusion of the summer, Evita expressed an unwillingness to return to her
father and by agreement she continued to reside with her mother where she is
today. Heidi and Glen returned to their father and resumed school on the
Island.
After the preparation of a
full custody and access report in October 1991 by S. Anderson, a Family Court
Counsellor, Master McCallum ordered that the father was to continue to have
interim day to day custody and control of Heidi and Glen and the mother was to
continue to have interim day to day custody and control of Evita. Access was
to be exercised by alternate weekend visits of the children to their parents'
homes and in that manner the children would spend each weekend together. Those
arrangements were in place at the time of trial.
Recommendations to the Court
The trial, originally set
for August 31, 1993, was adjourned on June 17, 1993 and a further custody and
access report was ordered. This was to be prepared by Dr. Doreen Kilpatrick.
She was unable to undertake the assignment and Dr. Louis Sutker was selected
for the task. He prepared a custody and access report, which was completed in
December of that year.
In the first report, Ms.
Anderson recommended the custodial arrangements recorded in the order of Master
McCallum which are now in place. Ms. Gregory is highly critical of that
report. She alleges it was superficial and biased and should not be relied
upon by the Court. Ms. Anderson was not available for cross-examination and
the evidence does not support such a conclusion. As with any report of this
nature, it is limited by the number of hours available to the writer. I must
weigh its recommendations along with all of the evidence in this case to reach
my decision as to what is in the best interests of the children.
I have had the benefit of
hearing the evidence of people that neither of the Court appointees heard.
Some people were interviewed by the Court appointees, in person or on the
telephone, prior to the making of the reports. Each report must be carefully
weighed against all the evidence I heard at trial.
Dr. Sutker has prepared a
lengthy report and testified at trial. He recommends that Heidi remain in the
care of her father and that Glen's custodial care be moved to the mother. Essen-tially,
the recommendation is made for the following reasons:
1.The
mother is more aware of the educational and emotional difficulties and needs of
Glen;
2.The
mother is much less likely to be derogatory of the father in the presence of
the child and in the long run she has more chance of success with Glen; and,
3.The
mother has remarried. Her residence is more stable than that of the father,
who is not now living with an adult person although he has had several
relationships since the parties separated.
At the time of trial, the
parties conceded that the custodial arrangements for Evita and Heidi were not
in dispute. That is because both girls have expressed a preference and their
parents are prepared to honour these wishes. Indeed, as I understand the
recommendation of Dr. Sutker, his recommendation with respect to Heidi is, in a
large measure, made to acknowledge her preference.
The Children
At the conclusion of the
trial, I had the pleasure of meeting the children collectively and
individually, in the absence of counsel and the parties. They are delightful
children in whom both parents can take genuine pride. The parents must
understand that choice of residence is not made out of a lack of love or
concern for the parent who was not selected. There was some evidence that Glen
had expressed an interest in remaining with Heidi and his father. I mean no
disrespect to him when I say that his age is such that he is not capable of
making such a difficult decision and his choice cannot be a determining
factor. As the parents cannot agree, it remains for the Court to decide what
is in his best interests.
Evita and Heidi are both
progressing well at their schools and in the after-school activities in which
they participate. They appear to be typical children. They both enjoy their
animals and indeed Heidi announced her long term goal was to be a
veterinarian. Evita currently plans to study psychology. Both children have
the ability to achieve these goals and will not lack support and encouragement
from their parents in that regard.
After meeting the children
and weighing all of the evidence, I am satisfied that in the present
circumstances the decisions of both Evita and Heidi should be respected because
to do so would, in the present circumstances, be in their best interests.
Accordingly, the current arrangement will be continued and Evita will live with
her mother and Heidi will live with her father.
The difficult issue
remaining is the custodial arrange-ment for Glen. The evidence leads to a
conclusion that all three children love and care for their parents. They want
the custodial struggle to end. Heidi told me she would like her brother to
remain with her on Saltspring but that, too, cannot be a deter-mining factor.
The evidence of the relationship between Heidi and Glen was conflicting but I
conclude it is a normal brother and sister relationship. There are moments of
conflict which are only natural. Overall, they appear to have an age
appropriate, warm and loving brother and sister relationship.
While Evita did not express
a similar wish to me, I am satisfied on all of the evidence that she would
welcome Glen to her home and provide him with all the love and support of a big
sister.
My first impression was that
it would not be in either Heidi or Glen's best interests for them to be
separated. They have lived all of their lives together and, in particular,
they have been together with their father, since their return from New York, a period
of almost four years. Separating these children would require some cogent
reason and because of that, the recommendation of Dr. Sutker requires extremely
close examination.
I believe it unlikely that
Dr. Sutker would have made the recommendation calling for a shift of Glen's
residence if Glen did not present a special challenge for both parents. When
it comes to learning, Glen is not a typical child. He has found school and the
learning process to be difficult experiences. While tests performed by Dr.
Sutker and by Dr. Ralph D. Miller, a Support Services Consultant for the School
District, are not entirely in agreement, it is clear Glen has significant
learning problems of which I will have more to say later. In addition, the
tests reveal an insecure and fragile young boy, lacking confidence and
self-esteem. All of the evidence and my own observations support such a
conclusion.
The Petitioner/Father
The father is 47 years of
age. He is of Danish decent, coming to Canada at the age of 18. He spent
several years in the north, eventually moving to Saltspring Island. He first
met his wife as a young man living in Northern Canada and they met again some
years later on Saltspring Island. They travelled to Australia, where they both
worked in the Outback region, living a rugged life without many amenities. In
1982, they returned to Saltspring, before the birth of Heidi, and he began his
current career as a commercial fisherman.
The mother describes their
relationship as violent and abusive but there was little evidence before me to
support such a conclusion. She describes him as a heavy drinker who has abused
alcohol. I have no doubt there were unhappy incidents of alcohol abuse while
they lived together but it appears that in the last few years, the
responsibility of single parenthood has created a situation where he is now
described as a social drinker.
He has provided a happy home
and a clean environment for his children. He has been genuinely concerned with
their well-being. Despite the evidence of some people who said he had done a
good job "for a man", I conclude the physical home environment has
been a happy experience for Glen and Heidi and he has been a good parent to
them. He has recently purchased another home closer to Ganges. From all
accounts, this, too, will be an excellent home and provide an opportunity for
the children to raise some animals.
Through no fault of his, he
is required to be away from home for periods of time in September, October and
into November of each year so that he can earn his living as a fisherman. On
these occasions he has made suitable arrangements for the children. These
arrangements have even been made on weekends that the wife would have been
happy to have Heidi and Glen in her home and thus have been the subject of some
disagreement.
He has been involved in
several relationships since the separation. This aspect of his life is
unsettling and is an element of instability in the lives of Heidi and Glen.
He has been slow to
acknowledge the nature and extent of Glen's learning difficulties, being
content in the past to lay blame on others in the school system or on the wife
for creating stress on all of the children by pursuing these proceedings and by
showing up at school from time to time. It is fair to acknowledge he has made
an effort to tutor Glen at home, in math and reading. These efforts have not
been cooperative undertakings with school teachers and it may well be they are
counter-productive, given the nature of Glen's learning deficit. He believes
his efforts have caused substantial improvement for Glen at school.
I am also satisfied he has
had considerable difficulty in accepting the wife's departure and her
subsequent participation in The Course in Miracles. He has denigrated her to
others and in the presence of the children. He has wrongly accused her of
partici-pating in a cult. Finally, I believe he has not fully accepted Evita's
decision to live with her mother and unfortunately has not participated in the
events in her life to the extent that he might have.
He is a strong-willed
individual who, in my opinion, demonstrates a definite need to control in any
given situation. He tends to set the agenda and expects others to follow. If
his actions at school are any indication, he has little ability to cooperate
with others once he has formed an opinion.
In assessing the relative
strengths and weaknesses of the parents, Dr. Sutker said the following of Mr.
Straarup.
...his
strengths are his relatively allowing nature with the children, his provision
of a model of competence in practical areas for them, his investment in them
and involvement with them, especially the younger two children, and his ability
to provide adequate housing for them and material needs, which are freely
given.
Some
deficits in his parenting skills, in my opinion, have to do with his difficulty
in seeing that Glen has a real difficulty with regard to his school work and
his schooling ability that goes beyond any particular problems related to the
method that the school uses to teach, his continuing inappropriate referrals to
Ms. Gregory's involvement in the "Course in Miracles," as a cult and
his continuing denigration of her in many different areas, including her being
unstable and worse, his difficulty in coming to terms with the separation and
the children's needs to be actively involved with both of their parents, a
tendency not to see any of his own limitations as parent.
I agree with the foregoing
observations of Dr. Sutker.
The Respondent/Mother
The mother is 37 years of
age and she has been married to Paul Gregory for two and a half years. Mr.
Gregory has a son, age 26, engaged in a professional career and a daughter, age
24, who is a graduate student in psychology. His children live and work in the
United States but maintain regular contact with their father. They have
developed a warm relationship with their younger step-sisters and
step-brother. Mr. Gregory is trained as a social worker and a psychotherapist
and currently is engaged in counselling work on Saltspring and other Gulf
Islands.
Ms. Gregory lives with her
husband and Evita in a home on acreage near Elk Lake in Victoria. She runs a
bed and breakfast. The home is set back from the highway and the surrounding
land is large enough for the children to keep animals, including sheep and
goats. Glen's quarters have been small and inadequate for other than temporary
stays and so recently a new bedroom has been added to accommodate his needs. There
is a happy and stable family environment in this home. She does not work
outside the home, a portion of which is utilized for the bed and breakfast
business, and can therefore provide care for her children on a daily basis.
She said the provisions of
the separation agreement were never honoured by Mr. Straarup who left for
Australia in 1988 as soon as the document was signed. His last maintenance
payment was in September 1989. She testified that when he left for Australia
once again, in late 1989, he had sold his boat and had no property on the
Island. She thought he would not return. She made plans to travel to Rosco on
March 15, 1990, to enroll in The Course in Miracles. Mr. Straarup learned of
her plans to travel to the United States and she received a threatening
telephone call from him. As a result, she advanced her travel plans and left
on March 1, 1990. I conclude she left abruptly because of the threat made
by Mr. Straarup.
The first order by Millward
J. provided the husband with the authority to take possession of the children
and return them to British Columbia. The order of Hutchison J. was an order to
return the children. She did not do so immediately but waited a period of 5 or
6 weeks to allow them to finish their school term in Rosco. I conclude this
was not a wilful defiance of the Court order but an attempt to address the
interests of the children by allowing them to finish their school term without
further disruption.
Her return to New York, in
July 1990, characterized as an abandonment of her children by counsel for the
petitioner, is a cause for serious concern. At that point, the interim day to
day custody of the children was with the father. She said she returned because
she was confident at the time that there would be an early trial date. She
left without securing a date. I conclude her departure was prompted by the
fact that the children had gone fishing with their father and because of her
interest in her studies and the new developing relationship with Mr. Gregory.
She did not return until Christmas of that year and then only for a visit.
This was an extremely stressful period for the children who did not know when
their mother would return and if she did, whether she would remain. She
eventually returned with Mr. Gregory on June 1, 1991.
While these events do not
redound to her benefit, I am satisfied they will not be repeated. She has
established a comfortable home and a stable family situation. It is highly
unlikely to be disrupted in a similar fashion again.
The Course in Miracles has
been a major source of controversy between the parties, dating back to a period
before the signing of the separation agreement. She has been accused by Mr.
Straarup of belonging to a cult. When the television reports of the incidents
in Waco, Texas were aired, he invited the children to conclude that the
activities of their mother were comparable. He has alleged there are regular
meetings of adherents in the Gregory home and that she and Mr. Gregory
regularly attend meetings related to the Course in Miracles, outside the home.
I conclude his assertions
concerning the Course in Miracles are entirely wrong. Not long after their
return, the Gregorys held a day long Saturday meeting at their home. The
children were not present. There have been no further meetings and they do not
attend meetings outside the home. In any event, I conclude that if they did,
it would not be harmful to the children.
The Course in Miracles is
not a religion. Nor is it a cult. It is intended as a course to assist an
individual's personal spiritual growth. There are no rituals or dogma and
there is no person who is the titular head. It consists of a series of three
books. The intention is that individuals work through these books at their own
pace, returning to them from time to time for spiritual guidance and comfort.
If there is a central theme, it is that individuals must learn to be forgiving
and in so doing they are able to develop a relationship with God. It is
Christian in its terminology. It parallels Christianity but does not declare
itself as Christian.
I am satisfied the Course
requires a commitment and perseverance. It is not a course for children and in
this case it has never directly been the subject of teachings to the children.
By their conduct and example, the Gregorys attempt to reflect the teachings of
the Course and to that extent the children are affected. There is no evidence
which would allow me to conclude The Course in Miracles, taken by itself, has
had a negative impact on the children. I conclude the reverse is true and that
the underlying principles of the course have more likely had a positive
influence on each of them.
In assessing the relative
strengths and weaknesses of the parents, Dr. Sutker had the following to say of
Ms. Gregory:
In
relation to Mr. Straarup, Ms. Gregory's advantages are her sensitivity to the
needs of the children, her own stable situation and ability to provide for
them, a fairly realistic assessment of her own strengths and weaknesses, as
well as those of Mr. Straarup, and a positive home environment for the
children, as well as a stable partner.
Disadvantages
that Ms. Gregory has that are apparent involve a tendency to over identify with
the children's weaknesses rather (than) their strengths, a somewhat poor
underlying sense of self-esteem, and a tendency to apply somewhat overly rigid
standards to the children, independent of their particular needs.
Once again, I agree with the
observations of Dr. Sutker except that I would not have concluded Ms. Gregory
had a tendency to over-identify with the children's weaknesses rather than
their strengths. On the contrary, I believe she does identify with their
strengths and seeks to support those strengths as best she can. In addition, I
decline to make any observation concerning her self-esteem.
The Respective Communities
If Glen were to remain with
his father, he would continue to live and go to school in the Saltspring Island
community. Island life is unique. It is not necessarily a private life
because in an insular community, people tend to know each other much better
than in a crowded urban setting. This is a factor that will benefit children
in a single parent family. As well, this Island community is a complete
community. It offers a full range of community services and both Heidi and
Glen, under the direction of their father, have taken full advantage of this
fact. They both play soccer and have attended judo classes. Glen has moved
through the Beaver program to Wolf Cubs and very much enjoys this activity.
Both children enjoy the rural life style the community has to offer.
The community around Elk
Lake (Saanich) is also a rural community, enjoying the benefit of being
extremely close to the City of Victoria. It, too, offers a full range of
community services and Evita, with the support and encouragement of her mother,
has taken advantage of those in which she has an interest. She is extremely
athletic and an accomplished runner. She also takes music lessons.
The two communities are very
comparable. I am satisfied that if Glen were moved, a full range of
extra-curricular activities would be open to him, including those in which he
now takes part. Because of his visits to his mother, particularly in the month
of August, he has already developed a neighbourhood friend. More friends would
be acquired when he attended his local school.
Glen is in need of
professional orthodontic care. It is also recommended that he take part in
professional play therapy. Both these professional services can be accessed
from either community but it might be somewhat easier to take advantage of them
if he were living in the Saanich community.
On balance, I am satisfied
that Glen's needs and best interests can be served in either community.
Education for Glen
Glen first attended Fulford
Elementary School. He was in attendance at that school when his mother
returned in 1991.
An Individual Education
Program (I.E.P) is a program designed for individual students who have
displayed the need for special education services. In 1991 and 1992, the use
of an I.E.P at Fulford Elementary was rare as the philosophy in the school was
that each student would eventually develop at his own pace. In general there
was a reluctance to label a child as one with special education needs. Notes
made in February 1992, for the purpose of preparing an I.E.P for Glen, record
that serious concerns were expressed about his progress and learning skills.
It was decided to seek the father's permission to refer Glen for a
psycho-educational assessment. That referral to Dr. Miller was not made until
May of 1992. He testified that the referral was made on the insistence of the
mother.
After a series of tests, Dr.
Miller concluded that Glen was in the average range of general intellectual
ability. He observed that there was a severe academic skill deficit as it
appeared Glen was almost two years behind in many school academic areas. He
concluded that "taken as a whole, the discrepancy between his apparent
general learning aptitude and his academic achievement suggests a severe
learning disability". He also acknowledged that emotional factors might
be significant. Dr. Miller reported him to be emotionally very fragile,
manifesting a high degree of insecurity, low self-confidence and esteem. He
suggested that a significant emotional disturbance might be a confounding
factor in his academic learning difficulties.
At trial Dr. Miller
testified that what he assessed was not caused by recent trauma. In his
opinion, it was an organic brain syndrome and he was not prepared to give
credence to the idea that Glen's learning difficulties were based on
experience. He acknowledged that constant disruption would slow him down and
if that were removed, he would likely do better. Ultimately, the learning
disability remained and there was a need to do more testing to design specific
learning strategies to assist him to learn. His intelligence was average and
there was a need to design the right program to help overcome the learning
deficit.
The tests performed by Dr.
Sutker in the fall of 1993 found that Glen was performing in the average range
of intelli-gence. He also noted the same profound discrepancy between Glen's
general learning ability and his actual academic achievement.
On June 17, 1992, Dr.
Miller's findings were presented to the parents and school teachers. The
father became very upset and reacted in a negative way. He blamed the school
for the lack of progress. The mother was more accepting of the report and was
seen as more understanding of Glen's needs. At trial, Dr. Miller said that the
father's reaction was not unusual. Many parents faced with such advice
initially react in an angry manner. I accept what Dr. Miller has to say in
that regard but it seemed to me that his anger and lack of acceptance has
continued for a considerable period of time.
The father's immediate
reaction was to arrange to transfer Heidi and Glen from Fulford Elementary to
Saltspring Elementary. I find he did so without consultation with Ms. Gregory,
who learned of the transfer on the first day of the fall term in 1992. The
children have continued at their new school but Glen's problems have
continued. He now attends grade 3 in a regular class with special support
services, including two programs in which he receives special one to one
attention outside the regular classroom.
Ms. Dammen is his special
education teacher and she sees him, one on one, for a half hour five days a
week. She concen-trated on math up to January and then, at the request of the
school room teacher, she began to work exclusively on his reading. She reports
that Glen has considerable difficulty in retaining basic information, a fact
that is revealed in Dr. Sutker's work. He is reading at a mid-grade 1 level. Ms.
Hlady is Glen's teacher assistant in the classroom and she confirmed the
reading difficulty. She works 45 minutes a day, one on one, with him. Both
teachers advised that, in their opinion, he had recently made considerable
progress and seldom displayed the frustration he had in the past.
Ms. Preston, the school
principal, said that last year Glen made very little progress. When he first
arrived, the father asked her to ignore everything in the file from Fulford
Elementary. No testing was done last year because the father would not consent
to further testing. This year the father consented to further tests but asked
that they be deferred pending receipt of the test results prepared by Dr.
Sutker. She said Glen's progress was the lowest in the class. She expressed a
concern for the lack of appropriate testing and said there were "big
holes" in Glen's learning.
Ms. Pearson, Glen's
classroom teacher and the profes-sional in charge of his day to day progress,
said there were a lot of unanswered questions concerning his learning. He is
inconsistent. How he processes information is not apparent and, accordingly,
how the information should be presented in order to achieve maximum learning is
unknown. He has a limited attention span. She confirmed the need for an
updated psychoeducational assessment.
After listening to the
education professionals, I conclude the father has not been a cooperative
parent in the school system. He has been threatening to some school personnel
and unwilling to accept that Glen has special education needs requiring
continual attention. He has continued to blame the school system. No system
can be perfect but I am satisfied Glen's problems cannot be laid at the door of
his school. I acknowledge the special efforts now being made at home.
However, they are not made in cooperation with teaching professionals at
school. Glen's problems must be addressed in a much more conciliatory and
cooperative manner. A true parent-professional partnership is required so that
home and school are working together to address Glen's learning problems.
Conversely, I conclude the
mother has attempted to cooperate with school officials to address Glen's
learning difficulties. Her presence in school has not been disruptive. On the
contrary, she is welcomed by the teachers, all of whom were appreciative of her
contribution. Glen has no objection to her attendance in class. Heidi has
requested that her mother not attend her class and that request has been
honoured.
There is no evidence to
suggest the services available in both school districts, Gulf Island School
District and Saanich School District, are not comparable. Ms. Gregory has
already attended on the principal of the elementary school that Glen would
attend if a move were made. Glen needs an immediate psycho-educational
assessment no matter what school he attends. Based on the information obtained
from the test results, a new I.E.P. will have to be prepared. The development
of a firm plan with specific learning strategies to address his learning
deficits is essential. Glen's academic progress also requires a
parent-professional cooperative effort.
Argument
Counsel for the father urged
me not to alter the arrangements now in place. He argued that Ms. Gregory went
through a substantial change when she attended The Course in Miracles in the
fall of 1989. This new career opportunity dominated her thinking and she left
with the children. After she returned with the children, the Course and her
new found directions continued to take priority even to the exclusion of her
children. He argued that the Court should not take the risk of uprooting Glen
from the community he knows and understands, a community that will ultimately
provide him the life skills he needs to succeed. He said that if Glen were to
stay on Saltspring, his client has given his undertaking to see the appropriate
tests would be done. Ultimately, Glen would improve in his school work when
the stress of these proceeding had passed. The risk of moving to an unknown
school was too great.
He also argued that Ms.
Gregory's home was not ideal as it was a bed and breakfast and Glen would have
difficulty fitting in. Glen had a much better chance of fitting into his
father's life style. The Course in Miracles would dominate in Ms. Gregory's
home and the lives of the children would inevitably be negatively affected.
Ms. Gregory argued that she
left for good reasons and has never placed the Course in Miracles ahead of her
children. The husband's interest in the children is more about his need to
control and any stress in their lives is as much attributable to him. Stress
in Glen's life was not as a result of her attending at his school. The husband
is about to move to a new neighbourhood on the Island and that can be no more
upsetting to Glen than would a move to her home. She is the person to best
address Glen's needs and to ensure they are met. In that regard, she has
already made inquiries at a school, has had Glen seen by an orthodontist and a
registered play therapist, services that he is in need of obtaining.
She argued that she has
always been alive to Glen's special needs. Mr. Straarup has been slow to
acknowledge these needs and quick to blame others. Only recently, with the
report of Dr. Sutker, has he displayed any real interest and that will go away
if he succeeds in retaining the custody of Glen. She was always the primary
care provider and now has a stable home environment. Mr. Straarup's continual
denigration of her is irresponsible and his life style is unacceptable. He is
away from home for periods of time and she can provide care for Glen in these
periods that is superior to any babysitter. She will be a full-time mother and
willing to encourage a team approach to address his special needs. Overall, it
is in her son's best interests in the short and long term that he be placed in
her custody.
Conclusions ─ Custody Issue
Both parent have strengths
and weaknesses which I have already attempted to address. The communities and
the school districts are comparable. The issue comes down to Glen's special
needs, both learning and emotional. In which home and community environment
will his best interests be better served?
Removal from his present
environment and the daily companionship of Heidi is a factor that must be taken
into account. His older sister, Evita, will provide as much for him in that
regard, in my opinion. In addition, his father will have generous access and
Glen will continue to visit his Saltspring home on a regular basis.
Glen is a child in need of
some special attention. I have concluded he is more likely to receive this
special attention and his special needs will be addressed better with his
mother. She has been quick to recognize and accept the challenge. His father
has been slow to understand the challenge presented by Glen's learning
difficulties. Instead, he has blamed the school system and has taken every
opportunity to lay fault at the feet of Ms. Gregory.
I conclude that Glen's best
interests would be served if he were in the custody of his mother, for the
following reasons:
1.His
special educational and emotional needs will more likely be addressed by his
mother;
2.The
mother will provide a more stable home, each day of the year;
3.The
husband is away from home fishing for many days in September, October and into
November in each year. The separation agreement signed in 1988 recognized the
nature of his occupation and the fact that he would be away for these long
periods. The wife was to have custody in these periods because that was in
Glen's best interests. It remains in his best interests to be cared for in a
consistent way by his mother who is particularly aware of his special needs,
rather than a babysitter who may change from time to time; and
4.She
is much less likely to make denigrating comments of the other parent that can
only be damaging when made in the presence of the children.
While it is appropriate to
be critical of the wife's long separation from the children in 1990-1991, I do
not place much weight on those events when assessing the situation today. She
and Mr. Gregory are in a stable relationship and I am satisfied they have no
present intention of returning to the United States. They have made a life in
their new community and it has every indication of continuing for many years.
There will be an order that
the wife have sole custody of Glen effective immediately.
Conclusion ─ Maintenance
Inadequate attention was
paid to this issue at the trial which focused on the custodial arrangements for
Glen. I believe maintenance for the girls can off-set each other. There
remains the need to fix an appropriate level of maintenance for Glen. If the
parties cannot agree, then the matter should be set for a resolution in
chambers. I am not seized of the matter for the purpose of fixing maintenance.
When an order was made for
the payment of maintenance by Ms. Gregory on October 29, 1990, I understand the
issue of arrears was canvassed. Similarly, on appeal before Murphy J., the
issue of arrears was raised and no order was made for their payment. I believe
the maintenance which the court ordered her to pay took into account any
outstanding arrears. There was no formal order for their cancellation. I
conclude that if there are any arrears of maintenance owed by Mr. Straarup,
their payment should be cancelled.
Conclusion ─ Access
The access arrangements will
closely parallel those now in effect. They will be as follows:
1.Access
will alternate on weekends. If either parent is unable to undertake the care
of the children on their access weekend, then the other parent is to be
provided with the opportunity of the extra access weekend. Alternative
arrangements are to be made by the Wednesday evening preceding the weekend;
2.Summer
access will be exercised by the father in July and the mother in August;
3.Christmas
access is to take place in two periods, from school closing to December 24
and the second period from December 24 to school opening. As I understood the
submissions, period one this year would be the for the mother and period two
for the father. The periods would alternate each year unless either parent
planned a special Christmas holiday away from British Columbia. In that
regard, the father was in the process of planning such a holiday trip for this
year, to Denmark. If that were to happen, then the mother would be entitled to
a comparable Christmas holiday access trip in another year of her choice. In
the event such holiday trips are planned, the party exercising this special
access shall provide a detailed itinerary to the other party; and,
4.Spring
break and Easter access will alternate each year.
Conclusion - Action for Unjust
Enrichment
In the second action, Mr.
Straarup claims Ms. Gregory has been unjustly enriched by the work done and the
services rendered on the Fulford Harbour property in the spring of 1989. He
says their agreement was not fulfilled in that the property was sold and he no
longer had a place to store his nets and other goods. In fact, he did have the
benefit of storage on the property until the property was sold. The
arrangement made by the parties did not preclude a sale of the property by Ms.
Gregory and in the circumstances, it appears to me the arrangement between them
was fulfilled.
If I am wrong in that
conclusion, then, in my opinion, there has been no unjust enrichment. Courts
apply the principle of unjust enrichment to remedy an injustice where someone
makes a contribution to another, without compensation or juristic reason. To
succeed the plaintiff must prove:
(a) an enrichment of Ms.
Gregory;
(b) a corresponding
deprivation; and
(c)the
absence of any juristic reason for the enrichment.
Pettkus v. Becker 1980 CanLII 22 (S.C.C.), [1980] 2 S.C.R. 834; Sorocan v. Sorocan 1986 CanLII 23 (S.C.C.), (1986)
29 D.L.R. (4th) 1, [1986] 2 S.C.R. 38; Peter v. Beblow
1993 CanLII 126 (S.C.C.), (1993) 101 D.L.R. (4th) 621, 77 B.C.L.R. (2d) 1.
The plaintiff's hourly rate
is more than others who worked on the project under contract. The work
performed by him could have been done at a lesser hourly rate by someone else.
He had the advantage of using the property for storage and he lived rent free
for a combined period in excess of six months in the spring and fall of 1989.
There is no enrichment or deprivation. In my view, this is not a proper case
for the application of the doctrine of unjust enrichment.
There will be an order
dismissing the action and ordering that the funds paid into court, together
with all interest earned on the money, be paid to the defendant, Ms. Gregory.
Costs
This is not a proper case
for an award of costs. The initial proceedings in Court were necessary to
return the children to British Columbia. When the interim orders were made, it
was considered in the best interests of the children to remain, first with
their father and later, the eldest with their mother and the two younger
children with their father. Ms. Gregory has succeeded at trial in that I have
concluded it would be in the best interest of the youngest child if he were
returned to his mother. When I consider the proceedings as a whole, success is
divided. Any
additional costs incurred in the
second set of proceedings are minimal. There will be no order for costs in
either action.
"D.
H. Vickers"
D.
H. Vickers, J.
Vancouver, British Columbia
March 21, 1994
PDF Format
