L. (N.) v. M.(R.R.), 2016 CarswellOnt 19110 (Ont CA)

Although an older child’s wishes not to be in the care of or have access to one parent may have been influenced by an alienating parent, they are still the child’s views and preferences. Enforcing a custody order against such wishes, particularly in the case of older children, is very difficult, and may not be consistent with the child’s best interests. This recent decision from the Court of Appeal serves as a reminder to family law practitioners and litigants of the serious consequences of parental alienation, and the challenges faced by the judges who preside over such cases.

Background

The parties were married in 1996. They separated in November 2005 but reconciled in August of 2006. They separated on a final basis in January of 2012. There are two children, born in 1997 and 1999. Post-separation, the children resided primarily with the mother.

Following separation, the parties sought the assistance of an arbitrator for a final resolution of their matter, the focus of which was parenting issues. The arbitrator concluded that the mother had alienated the children from the father, which greatly deteriorated the father’s relationship with them, and on January 16, 2015, the arbitrator awarded the father custody of the children accordingly. The father was also to attend the Family Bridges Program with the children.

On February 17, 2015 the Court incorporated the terms of the award into an order on consent. This order included a provision that various police forces were to assist as required with enforcing the provisions of the order, and to take all necessary actions to do so.

On February 17, 2016, the children arrived at the arbitrator’s office and were informed of the award, as the parties had been directed not to disclose this information to the children beforehand. It is the father’s position that the mother had broken this requirement, and informed the children, as they did not appear surprised by the award. The father claims that as he was leaving the arbitrators office with the children, the older child advised the younger child to “remember the plan” and advised him to hide until he turned 16 years old. Neither of the children denied that this occurred.

Upon exiting the building, the younger child ran away and was later located at the older child’s apartment. The mother retrieved the younger child, and brought him to the police station. The child advised the police that he did not want be placed in his father’s care. However, as per the Court order for enforcement, the police returned the child to the father.

As the father was bringing the younger child to the Family Bridge’s Program, the child exited the car and ran away, again returning to the older child’s apartment. The mother was also at the apartment. She advised the Court that she told the child to return to the father, but the child refused, and indicated he would rather live on the street than with the father, and would continue to run away.

The father filed a missing person report with Toronto and Durham police serves. On February 20, 2015, the child contacted the police and advised that he was not missing, but he did not wish to live with his father. The child refused to provide the police with his contact information.

On February 23, 2015, the Chief of Police filed a motion to have the police enforcement clause removed from the order. With regards to the missing person investigation over the next few months, the police had spoken with the child, and advised they were concerned for the child’s safety if they enforced the custody order, and accordingly, they closed the investigation.

The mother brought a motion to change the custody order, or alternatively, sought that there be no custody order. By December, 2015 when the mother’s motion was heard, the eldest child was 18 and attending university, but resided with the mother when not at school, and the younger child was 16.

The motion’s judge granted the relief requested by the Chief of Police, and removed the enforcement clause, noting that it was not in the children’s best interests to uphold a provision permitting physical compulsion, and that doing so would put even further strain on the children’s relationship with the father.

The motion judge further held that there had been a material change in circumstances permitting a review of the custody order, including the ages of the children, the younger child’s refusal to be placed into the father’s custody, the passage of time since the granting of the order in which no contact had been restored between the father and the children, that the police were unwilling to enforce the order, and both children appeared before the court and claimed they would not attend a reunification program or live with their father.

On the motion, the judge also considered the issue of withdrawal from parental control. Although the children wanted to live independent lives of their parents, the evidence showed the children remained somewhat reliant upon the parents, and therefore were still children of the marriage. However, given the age of the older child, the Court held a custody order was not needed in respect of him. Considering the younger child resided in his own apartment (though paid for by the mother), registered himself for school, and did not require consent for health related matters, a custody order was not required in respect of him either. As such, the motion’s judge made no custody order in respect of the children.

The father appealed the motion judge’s order and the children child cross-appealed to seek an order that no one could have custody or access in respect of them. The younger child also sought a declaration that he was withdrawn from parental control.

Analysis

On appeal, the father submitted that the motion’s judge erred in finding a material change in circumstances, as the changes which occurred were foreseeable at the time the Order was made, and according to the jurisprudence on point, namely, Gordon v. Goertz, [1996] 2 SCR 27, a material change is one which was not foreseen or contemplated when the initial order was made. The Court of Appeal notes that while the children’s resistance to the order was foreseeable, the extreme nature of the younger child’s resistance, which put the child’s health and safety at risk, was not foreseeable. Further, the evidence suggested the child would continue to act in this extreme manner if the custody order continued.

The father also submitted to the Court of Appeal that the motion’s judge erred by finding that the risk of continuing the custody order outweighed the impact on the child if he could not develop a relationship with the father. In support of this argument, the father provided the court with case law where the court did not follow the wishes of a child because the wishes had been corrupted by parental alienation. While the Court of appeal accepted the father’s case law indicating that a child’s best wishes are not necessarily in line with their best interests, the Court also noted that older children will generally make their own residential choice. Further to same, the evidence indicates that continuing the order would not be in the children’s best interests, as there was fear the younger child would go into hiding, which would interrupt his education.

With regards to the cross-appeal of the children that no person shall have custody or access rights in respect of them, the Court of Appeal found that no such declaration was required, as the motion judge’s order does not grant anyone custody of them, and therefore in effect, provides they relief they are seeking.

In respect of the younger child’s cross-appeal for a declaration that he had withdrawn from parental control, the Court of Appeal found that no such declaration was required. Although the motion judge’s order does not have the specific wording that the younger child wanted, it was a declaration nonetheless.