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"If only he had been nice to Fluffy": Why the little things count in custody cases

If only he’d been nice to Fluffy.

Sometimes in custody trials it’s 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.

So starts Justice Pazaratz in the first lines of his judgment in Chomos v. Hamilton. It was a 6 day custody trial, with parents involved in a bitter dispute over who would have custody of their 2 year old daughter.

There was plenty of evidence back and forth, and even testimony from an investigator with the Office of the Children's Lawyer. Those were duly considered by the judge. What stood out for him, though, was the father's treatment of Fluffy - a stuffed animal. The father refused, at first, to allow the child to take Fluffy with her when he picked her up. The little girl cried. Another time, he took Fluffy from his daughter's arms and threw it on the driveway, and then drove off without Fluffy while his daughter cried.

For the judge, this was the clincher. He wrote:

It’s quite apparent that at every step in this parental turf war, the father sought 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 Coe v Tope 2014 ONSC 4002 (CanLII) this court offered some very simple advice for situations like this: Stop acting like you hate your ex more than you love your child.

Other judges are already telling parties about the Fluffy case. It has valuable lessons for parents going through the court process.

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