Custody, Access and Alienation: McAllister v Norman, 2014 ONSC 4065

This case addresses the issue of custody and access in the context of alienation.

Background

The parties in this matter had one child together.  The Mother wished to move with the child from Kitchener, Ontario to Casselman, Ontario and provided strong assurances to the court that she would facilitate contact between the Father and child.  Relying on such assurances, the court permitted the mother to move and ordered joint custody, primary residence with the mother and extensive regular access between the father and child.  The Father claimed that the mother obstructed the essential terms of access and appealed.

Analysis

The court found that the many assumptions made at trial were based upon Ms. Norman’s assurances that “she would make sure that if she were allowed to move [the child, K.,] to Casselman, there would be frequent and regular contact between father and son” (paragraph 14).  Further, the court found, “Based upon the now proven allegations of Mr. McAllister and the irrefutable reality that he has been effectively marginalized from his son’s life…one need not work hard to recognize that hardly any of the intent of the provisions of Hardman, Prov. J.’s optimistic access expectations have been met” (paragraph 19).

After a consideration of the evidence, the Court held “There is no doubt that if Mr. McAllister[, the Father,] is to ever have any real relationship with K., the child’s continued residence six hours away from his father, his father’s extended family, his maternal grandmother and aunt (all of whom live in the Kitchener-Waterloo Region) cannot continue” (paragraph 22).

The Court found that the Mother, Ms. Norman, was determined to replace the Father with Mr. Nickerson and, subsequently, deprive K. from having any contact at all with the McAllister family (paragraph 22).

The Court then provided, “Ms. Norman’s true strategy is further revealed and corroborated when she gave Mr. McAllister notice that she was ‘considering’ changing K.’s surname from K. Madiron McAllister to Maiden Madiron Norman” (paragraph 25).

Upon considering section 24 of the Children’s Law Reform Act, Justice Campbell found that “it is in K.’s best interests that he be returned to this Region of Waterloo to be closer to his father and his father’s (and mother’s) extended family, who all live in this area” (paragraph 27).  Justice Campbell further held that Ms. Norman was entirely unwilling to comply with the court’s expectation that she was to ensure that the father-son relationship would be “encouraged and promoted” (paragraph 28).  Ms. Norman was ordered to facilitate access in Kitchener at least one weekend per month from January 13, 2014 to May 2014, and failed to facilitate such access at all during this time period.

After a consideration of the above, the Court ordered that the child be in the primary care of the Father in Kitchener, Ontario.  However, Justice Campbell gave Ms. Norman the opportunity to decide to move back to Kitchener and resume custody of K.

A large part of this decision to overturn the court’s previous decision was based on correspondences between the parties by email.  Thus, this demonstrates the significance of such correspondences between parties and emphasizes the consequences of acting contrary to an Order made by a court of competent jurisdiction.

Andrew Feldstein

The Feldstein Family Law Group (FFLG) is one the largest family law firms that practices Family Law exclusively in Greater Toronto, with ten lawyers and counting. The boutique law firm has won the Top Choice Award for Family Law™ in Toronto for the past eleven years (2007 to 2017 inclusive).

Managing Partner Andrew Feldstein has been practicing family law for more than 20 years and frequently comments on Family Law issues through the media. The Feldstein Family Law Group offers vast written, video, and media resources on its website to those who find that they need to end their relationship.

Leave a Reply

Your email address will not be published. Required fields are marked *