Separations or divorces involving disagreements over the custody and access of children can be difficult for all involved, especially in cases where there are allegations of influence over the children by one parent, and the children claim they don’t want to see the other parent. A 2018 decision from the Court of Appeal for Ontario looked at a case where a father attempted to gain custody of his children, alleging parental alienation on the part of the mother.

The divorce

The parents were married in 1998 and had three children before separating in 2013. The case took over three years to get through the courts, and during that time children lived with the mother and had very limited contact with the father. In fact, between their date of separation and the appeal in 2018, the children had only seen their father five times.

The father believed the mother was alienating the children from him, an allegation she denied. Her view was that the father’s conduct, including abuse,  during the marriage was to blame for the children’s refusal to see their father.

The 2017 order

In 2017, the children (S, N, and A) were 17, 15, and 10 years old). At this time, the father was concerned about the time it was taking for the trial to occur. He brought a motion seeking sole interim custody of the children for 90 days, during which time the children would have no access to the mother. Failing this, he asked for an order for a trial dedicated strictly to custody and access.

The motions judge granted summary judgment, dismissing the father’s motion. The motions judge gave no order concerning S, who would be turning eighteen within a few weeks of the decision. Concerning N and A, the motion judge gave sole custody of them to the mother, ordering that access and communication between the father and N would be at N’s discretion, while access and communication for A would be at A’s discretion in consultation to the mother. The motions judge also awarded costs of $80,636 to the mother. The father appealed on a number of grounds, some of which are laid out below.

The appropriateness of summary judgment

While the father argued the motion should not have been subject to summary judgment, the court found that both parties’ lawyers were confident the record contained sufficient evidence to be determined by summary judgment. The motions judge agreed. The court gave deference to the motion judge’s decision and dismissed this ground of appeal.

Expert evidence

The father submitted that the motions judge failed to give proper weight to an assessment done on what type of involvement he should have on his children, as well as the motion judge’s finding that there was no evidence the mother had influenced the children to be alienated from him. The court found the motions judge gave appropriate weight to the assessment, and that the motions judge was correct in giving weight to other pieces of evidence, such as the children’s refusal to participate in therapy with the father. The court also found the motions judge did not find there to be “no evidence” of influence over the children, but instead the “motions judge reasonably concluded that the children’s views and preferences were not manufactured and were genuine and were not unduly influenced by their mother”

Best interests analysis

While the father argued the motions judge did not adequately consider the bests interest of the children as well as the principle of maximum contact, the court found the children’s views and wishes to have been adequately expressed. The children were clear that they did not want to have contact with the father. They expressed these views to 13 different participants.

The court, having upheld the motions judge’s decision on all grounds of appeal, dismissed the appeal and upheld the previous order of costs.

The lawyers at Borden Family Law understand the emotional difficulty of working through a divorce and issues such as custody and access to children. We help our clients focus on what is best for their children while also navigating the complexities of the family law system. To speak to us today, please call us at 905-576-6090 or reach us online. Please remember to ask us about our flat fee payment options as well.