Courts are becoming ever so cognizant about the damaging effects had on children caught in the battle of alienation. The case of Filaber v. Filaber is yet another court decision involving a change of custody from the alienating parent to the alienated parent. In this particular case, the children involved were 12 and 14 years old. From this case (and many others in the caselaw), it is quite evident that currently, courts are loathe to tell an alienated parent that it is too late for him/her to reverse his/her unfortunate circumstance of having been alienated. Instead, courts are much more willing to step in and implement drastic measures in an attempt to reverse the damaging effects of the alienation, regardless of the ages of the children involved.
The parties were married on January 27, 1987 and separated on May 23, 1998. They had three children of the marriage. The Husband issued an Application on February 1, 2007 and brought an urgent motion, without notice to the Wife, seeking custody of the three children. Prior to the Husband’s Application, the Wife was the Applicant in an action for divorce that she brought against the Husband in 1999. According to these proceedings, the judge ordered that the Wife was to have interim interim sole custody of the children, and the Husband was given specified access. In November 2006, the eldest child moved in with the Husband, and continued to reside there during these proceedings. Thereafter, on January 22, 2007, the remaining two sons began residing with their father at a shelter. Since January 22, 2007, there had been no meaningful contact between the children and their mother. Various orders by the court were made thereafter, among which, Justice Mossip ordered the matter to proceed to a two day motion.
The Wife in this case alleged severe parental alienation by her husband and therefore was seeking sole custody of her children. At the motion for custody, the Wife argued that the Husband had refused to allow her to have a meaningful relationship with her children, to the point that her children now fully refused any contact with her whatsoever.
In coming to its conclusion, the court relied heavily on a report prepared by a social worker. Although the court recognized that the Wife had contributed somewhat to the children’s avoidance of her through her strict parenting practices, and the son had contributed somewhat to the estrangement himself, the court also acknowledged that the Husband had contributed greatly to the estrangement and had taken no active steps to stop the estrangement from continuing. Resultantly, the court decided and thus ordered that an immediate change in custody would be in the children’s absolute best interests. The Husband’s access to the children was temporarily suspended by the court in order to allow the Wife to rekindle her relationship with the children. Furthermore, the court ordered that the Wife would have the sole authority to pursue whatever remedy she feels is necessary to enable a transition for her children of least conflict, including participation in a Family Workshop put on by Dr. Randy Rand in the United States. As such, the Wife was granted permission to transfer the children outside of Canada for purposes of treatment. Moreover, the court ordered that the Wife, children and Husband participate in counselling as recommended by Dr. Randy Rand. The court also mandated that there be a reassessment and a written report in three months time setting out the current situation for the children, and furthermore, ordered the matter to be brought back to court for reanalysis in three months. Costs were reserved by the Court until further review of the matter.Post by Andrew Feldstein