Diab v. Diab 2016 ONSC 3299

This recent Superior Court of Justice decision provides insight into the difficult analysis that the Court must undertake when rendering high conflict and highly contentious custody and access decisions, particularly those involving parental alienation. Specifically, this case provides insight into when the wishes of a child may be adhered to, and when they may not. The particular circumstances of each child must be carefully considered, and it ultimately remains the best interests of the child that will govern the outcome of such cases, even if the child has expressed a desire to the contrary.

Background

The parties separated in the fall of 2011. There are four children of the marriage, aged 24, 18, 16, and 10. At the time this matter came before the Court, the three eldest children had already become estranged from their mother, and did not have a relationship with her. The youngest child, however, resided primarily with the mother, and had alternating weekend access and one week night after school.

As adults, it is beyond the jurisdiction of the Court to make any custody or access order concerning the eldest two children. As such, the Court heard submissions regarding the best interests of the 16 year old and 10 year old children.

The father sought to adjust the current Order to obtain equal parenting time with the 10 year old child. The mother sought custody of the children, or alternatively, shared custody with the children’s principle residence with her. The mother presented evidence which suggested the father’s involvement in alienating her from the children’s lives. The mother expressed concerns that if the 10 year old child had considerably more access with the father, her relationship with the child would become estranged, as it had with the older children.

Analysis

The concerns and positions of each child was fully reported at trial.

With regards to the 16 year old child, the Court deferred to the child’s wishes which were presented from counsellors and professionals involved with the family as an extreme wish not to have a relationship with the mother. The Office of the Children’s Lawyer supported the child’s wishes, and submitted to the Court that given the child’s age, her wishes should govern.

Further, as the Court pointed out, case law has established that a 16 year old child should be listened to with regards to where he or she will reside and whom the child will visit.

With regards to the 10 year old child, the Office of the Children’s Lawyer supported the father’s proposed equal shared parenting plan, claiming that such an arrangement would allow the child to develop a relationship with both parents.

The child expressed a preference to reside with the father, and to have access to the mother.

Despite the positions of the Office of the Children’s Lawyer and the child, the court ordered custody of the child to the mother, and maintenance of the status quo with regards to the father’s access.

In rendering its decision, the Court considered evidence from a family and child therapist who had suspicions that the elder children’s wishes had been influenced by the father, and who had concerns that the youngest child may be influenced accordingly. The Court noted that the circumstances of the 10 year old child and the 16 year old child are considerably different, and altering the parenting plan for the younger child was likely to risk his relationship with the mother.

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.

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