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CUSTODY AND ACCESS - Conduct of parents - Parental alienation

Friday, January 03, 2020 @ 6:20 AM  

Lexis Advance® Quicklaw®
Appeal by the mother from a 2019 trial decision granting sole custody to the father. The mother resided with the children in Regina since 2014. The father resided in Saskatoon with his new partner. The parties separated in 2014. Shortly after separation, the mother made unsubstantiated allegations that the father had inappropriately touched their daughter in 2013 and that he had assaulted the mother. Pursuant to a 2014 order, the parties were granted joint custody with primary care to the mother. The father was granted specified access. In 2016, the mother again alleged that the children reported they were abused by the father on access visits. No charges were laid. The 2019 trial judgment was automatically stayed on the filing of the present appeal. The parties thus had joint custody and the mother had primary residence of the children continuously from July 2014 to the present. The father had, since December 2018, unsupervised parenting time every second weekend and during school vacations. The trial judge concluded that the alleged sexual assaults did not occur, and the alleged abuse of the son was not supported by the evidence. The trial judge acknowledged the children were in the primary care of their mother and that the father had limited parenting time since July 2014 because of the various allegations levied against him. He concluded the mother made the allegations knowingly and with the intent to manipulate the course of litigation and drive a wedge between the children and their father. The trial judge found the children were subjected to a prolonged and sustained distorted view of their father and were denied a meaningful relationship with him. He found the father was capable of understanding the children’s emotional needs and was able and willing to address those needs. He concluded that if the children were left with the mother, she would not promote any contact between the children and the father but that the father would put his animosity aside to allow the children to have a meaningful relationship with their mother.

HELD: Appeal dismissed. The trial judge did not err in law by changing custody and primary residence to the father after finding that the mother could not and would not change her deep-seated beliefs about the father and the resulting behaviours, even if she was warned that continued false allegations could lead to a change in custody. The trial judge understood and grappled with the only issue, being the best interests of the children having regard to their condition, means, needs and other circumstances. He referred to and took account of the status quo. This factor was a key factor in his decision to provide for a lengthy transition. The trial judge accorded sufficient weight to the status quo and to the fact that the mother had long been the primary parent. He did not err by finding an order for joint custody was impossible.

S.T. v. J.T., [2019] S.J. No. 450, Saskatchewan Court of Appeal, L.M. Schwann, B. Barrington-Foote and J.D. Kalmakoff JJ.A., November 8, 2019. Digest No. TLD-December302019003