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CUSTODY AND ACCESS - Child’s preference - Conduct of parents - Parental alienation

Thursday, November 07, 2019 @ 6:25 AM  

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Appeal by the mother from trial judgment ordering an immediate custody reversal and prohibiting contact between the 14-year-old child and his mother for six months, with custody and access to be reviewed at the end of the six-month period. The trial judge determined that the mother had systematically and successfully poisoned the child’s relationship with his father. The child refused to visit the father and refused therapy. The mother was uninterested in participating in therapy with a view to encouraging the child to reconcile with his father. The mother’s efforts to eliminate the father from the child’s life began well before separation. The mother transmitted verbal and non-verbal communication to the children that revealed her disdain for the father and her disapproval of his parenting. The trial judge found that the mother was averse to the father playing any role in the child’s life and that the child showed behaviour suggesting that the mother had influenced the child’s resistance to a relationship with the father. He characterized her behaviour as amounting to emotional abuse, which would continue and permanently sever any relationship between the child and his father. The trial judge concluded that the long-term best interests of the child required placing the child with the father and suspending the mother’s contact with the child. He determined that the potential long-term detrimental impact of the child’s severed relationship with his father far outweighed the short-term difficulties of the custody reversal and no-contact order.

HELD: Appeal dismissed. The trial judge properly considered the child’s best interests. The trial judge explicitly considered the child’s ties to his mother and the short-term disruption that would result from a transfer of custody to the father. The mother’s conduct was profoundly harmful to the child and contrary to the child’s best interests. The trial judge’s conclusions were reasonably available on the evidence and were entitled to deference. The trial judge did not need expert evidence before choosing the remedy that was in the best interests of the child. The clear evidence about risks to the child if he stayed with his mother justified a change in custody and the no-contact order. The trial judge chose this remedy to promote the child’s long-term best interests, not to punish the mother. The Health Care Consent Act did not limit the courts’ jurisdiction to make therapeutic orders in the child’s best interests. A child’s refusal to participate in a therapeutic intervention would not necessarily determine whether a court could make such an order. A court must assess the child’s maturity and weigh their wishes accordingly. In this case, after finding that the mother had poisoned the child against the father and the child’s wishes were not his own, the trial judge was entitled to put no weight on the child’s wishes. The trial judge reasonably concluded that the child’s best interests required contact with the father and reconciliation therapy, over the child’s heated objections.

A.M. v. C.H., [2019] O.J. No. 4970, Ontario Court of Appeal, G.I. Pardu, D. Paciocco and B. Zarnett JJ.A., September 30, 2019. Digest No. TLD-November42019010