Children acting in defiance of custody order in Ontario Superior Court of Justice parental alienation case

L. (N.) v. M. (R.R.)

2016 CarswellOnt 1639

Ontario Superior Court of Justice

Family law --- Custody and access — Factors to be considered in custody award — Conduct of parent — Parental alienation

Parties married in 1996 and had two sons born in 1997 and 1999 — Both parents were verbally aggressive and physically violent — Parties separated in 2012 and sons remained in mother's primary care for three years following separation — Final order for custody made in February 2015 incorporated, on consent, terms of arbitration award granting sole custody for sons to father — Arbitrator found that father's relationship with sons was seriously damaged by campaign of parental alienation by mother — Order prohibited communication between sons and mother and between sons — Older son refused to go with father, younger son ran away from father, and both sons refused to attend reunification treatment — Sons continued to reject order and refuse all contact with father — Police were called enforce order in respect of younger son only — Police made some attempts but did not persist — Police brought motion to remove police enforcement provisions from order — Mother brought motion to change order to provide her with custody of sons — Father brought motion to enforce existing custody order — Sons supported both motions to change order and asked that there be no custody order — Police motion granted — Mother's motion granted in part — Order went that no person had rights respecting custody of or access to either son — There were material changes including that older child turned 18 and younger child turned 16 — Chief of police had standing to bring motion — Unlawful withholding did not extend to cover influencing or alienating — Alienation of child, so that child voluntarily decided that target parent was unworthy, untrustworthy, or dangerous did not amount in law to unlawfully withholding child — There was little if any room for parens patriae jurisdiction to operate as basis for police enforcement in Ontario, in face of scheme set out in Children's Law Reform Act — Sons were acting in defiance of custody order and were demonstrably unwilling to be delivered into father's car, and consistently took this position over period of many months — It was not in children's best interests to maintain provision for physical compulsion because it would likely not work, and would likely make it harder for there ever to be any repair of relationship between father and sons — Younger son would again go into hiding and drop out of school if order were renewed in favour of father — Result of order was that sons had no family — It was not in best interests of sons to maintain communication barriers — Renewal of order would likely strengthen sons' opposition to reopening contact with father.