The children’s strong, consistent and long lasting wishes not to live with the father or to repair their relationship with him influenced the courts to change the father’s custody order, effectively removing his right to custody, access and information.

Epstein’s This Week in Family Law, 2016-50

Philip Epstein

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

Ontario Court of Appeal - Custody - Alienation - Police Enforcement

L. (N.) v. M. (R.R.), 2016 CarswellOnt 19110 (Ont. C.A.) - Weiler, Blair and van Rensburg JJ.A. This was a very high-conflict custody case in which there was clear evidence of alienation by the mother. Ultimately, the father obtained an order giving him custody of two children and permitting the father to take the boys to attend the Family Bridges Program, an educational and experiential program which aims to resolve issues between parents and alienated children. The Court order also required the Toronto Police Services to assist as required to ensure the provisions of the order.

In the face of that order, the youngest child ran off and disappeared and went to his older brother’s apartment. The child was retrieved by the police and returned to the father, but ran away again. The father tried to have the police enforce the order, but the police ultimately declined and filed a motion to remove the police enforcement clause.

The mother brought a motion to change the custody order. By the time the matter came before the motions court judge, the youngest child was aged 16, living alone in an apartment and was completing high school. The oldest child, who was 18, was attending university. Justice Perkins in a comprehensive decision, reviewed earlier in the Newsletter, found that there had been material changes since the original court order, and that both children did not wish to go to the reunification program or live with the father, and it was clear that the police were unwilling to enforce the order.

In a somewhat landmark decision, Justice Perkins held that no person was to have custody or access rights over either of the children and access to information about each child was entirely within each child’s own control.

The circumstances were somewhat tragic for the father. The mother had obviously succeeded in her campaign of alienation. Nevertheless, a very experienced family court judge concluded that nothing further could be done given the cemented wishes of the children and given their ages.

The father nevertheless appealed to the Ontario Court of Appeal. Not surprisingly he was unsuccessful. The Court of Appeal agreed with the motions court judge that there was a material change of circumstances entitling the court to vary the previous custody order. The Court of Appeal also agreed that the motions court judge did not err in changing the custody order even in the face of proved alienation. The motions court judge recognized that the children’s wishes may well have been tainted by the alleged parental alienation. Nevertheless, because the expressed wishes of the children were “strong, consistent and long lasting and they have been acted on by the children in defiance of the authority of both parents, the arbitrator, the police and this court’s order” nothing further could be accomplished with further orders involving the children.

The Court of Appeal noted:

I agree with the father’s submissions that the jurisprudence indicates the wishes of the child and the best interests of the child are not necessarily synonymous. However, the motions judge referred to this existing jurisprudence as well as the jurisprudence that, as practical matter, older children will make their own residential choice: see, Supple v Cashman, 2014 45 R.F.L. (7th) 273 (S.C.), at para 17; Ladisa v. Ladisa, 11 R.F.L. (6ht) 50 (Ont. C.A.) at para 17. The motions judge carefully considered the father’s submissions and gave cogent reasons for rejecting them, having regard to D.M.’s best interests. In the absence of any palpable and overriding error in the exercise of his discretion, which has not been demonstrated, this court cannot intervene in the change of the custody order. The Court of Appeal also upheld the motions court judge’s declaration that neither party has custody or access rights over the two children.

A very sad case indeed and a very unhappy ending for the father, the loss of a father figure for the children, and undoubtedly, horrendous costs for all concerned. If the purpose of this appeal for the father was his attempt to be able to demonstrate to his children, later in life, that he did everything possible to have a relationship with them, I suppose he has proved his point.