A father who had little contact with his three sons appealed a decision awarding custody to the mother by claiming parental alienation.
The parents were married in 1998 and separated in 2013. They have three teenage sons together, currently aged 11, 17 and 19. In June 2013, the father began a proceeding. As part of the application, the parties consented to a court-ordered custody and access assessment under the Children’s Law Reform Act. For various reasons, it took several years for the parties and the court to deal with the issues of custody and access. During this time, the father and the children had very limited contact; since the parents’ separation in 2013, the father had access to the children fewer than five times.
The father believed that the mother had alienated the children from him. The mother denied the father’s claim. Her view was that the father’s conduct was to blame for the children’s refusal to see him.
In 2017, the father had brought a motion seeking sole interim custody of the children for 90 days, during which the mother could have no access to the children. He also sought an order directing that, during this period of interim custody, the parents and children participate in a program known as “Family Bridges”.
In response, the mother brought a summary judgment motion seeking sole custody of the three children, with access to the father at the discretion of the children.
At trial, the judge found that there wasno evidence that the mother had influenced the children and had undermined their relationship with the father. The judge did not make an order of custody for the eldest son and gave the mother custody of the other two children. The judge dismissed the father’s motion regarding the oldest son, because he was soon turning 18 and would no longer be within the court’s jurisdiction. The judge gave the father access and communication with the middle child at the child’s discretion, and access and communication with the youngest child at the child’s discretion and in consultation with the mother. Finally, the judge awarded costs to the mother in the amount of just over $80,000.
The father appealed.
The father advanced that the procedure followed by the motions judge was unfair. The father also contended that the motions judge erred in failing to attach sufficient weight to the custody and access assessment, and in his factual finding that there was no evidence that the mother had influenced the children and had undermined their relationship with him. The father further argued that the motions judge erred in law by failing to adequately consider the best interests of the children and the principle of maximum contact. Lastly, the father submitted that his s. 7 and s. 11(b) Charter rights had been infringed due to the delays in proceedings.
At the outset, the court dismissed the father’s arguments about unfair procedure and the custody and access assessment. It found that the judge had adequately considered the assessment and made his decision on the evidence presented.
The court then considered the father’s assertions regarding parental alienation, stating: “While there may well have been evidence offered by the father that this was the case, this statement, while technically inaccurate, is of no moment.”
The court noted that in the expert assessment, there was no express finding of parental alienation and that “I do not agree with the father that any such finding was implicit”. Additionally, the court stated that there was ample evidence for the motions judge’s finding that the children had suffered physical abuse at the hands of their father on several occasions. The court therefore found no error in the motions judge’s decision.
The court further rejected the father’s argument that the judge had failed to adequately consider the best interests of the children and the principle of maximum contact under the Divorce Act. It found that, considering the age of the children, their views and preferences were an important factor in determining what was in their best interest. As such, the court stated:
“The motions judge clearly relied on the […] assessment reports to conclude that the children were expressing genuinely-held views and preferences when they repeatedly informed various mental health professionals who were involved with their family that they did not want their father to have access to them, even in a therapeutic context.”
Finally, the court rejected the father’s Charter arguments, finding that any delays in the proceedings had, in part, been due to the father’s behaviour.
In conclusion, the court said:
“This case, like all high conflict custody cases, is very sad. Undoubtedly, it has caused much pain to the parents and the children. Although positions have become entrenched, I do not agree with the father’s submission that the decision under appeal effectively prevents the father from ever having any relationship with his sons – something he clearly wants very much.
The order leaves the door open to a way forward. We encourage the mother to keep an open mind about the potential benefits of a relationship between her sons and their father and to encourage some form of regular communication between them. With the dispute between the parents now at an end, the father can now focus on what has always been most important – slowly re-building his relationships with his sons.”
Separation and divorce are challenging for everyone involved. When dealing with custody or access disputes, matters involving spousal and child support, the division of assets, and other family issues, emotions can be your worst enemy. Having an experienced family lawyer on your side can help you stay focused and resolve disputes as quickly and amicably as possible.
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