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Family Law - Custody and access - Considerations - Conduct of parents - Parental alienation - Practice and procedure - Orders - Variation or amendments of orders - Changed circumstances -

Thursday, July 07, 2016 @ 8:00 PM  

Appeal by the father from an order of the Family Court granting the mother sole custody of the children with supervised access to him, and allowing the Children’s Aid Society of Ottawa (Society) to withdraw its protection application. The parties divorced in 2012. The divorce order provided for joint custody with a shared parenting arrangement. Ongoing disputes between the parties rendered the arrangement unworkable, and the Society commenced a protection application. The children were currently 11 and 13 years old. The parties consented to an assessment under s. 54 of the Child and Family Services Act. The author of the report was of the opinion that the father was alienating the children against their mother. The Society amended the protection application to place the children in the custody of the mother with supervised access to the father. The two actions were heard simultaneously. The father submitted that the motions judge erred in finding a material change in circumstances, and in ordering the two actions to be argued simultaneously. The Office of the Children’s Lawyer (OCL) submitted that the appeal should be dismissed.

HELD: Appeal dismissed. The motions judge’s findings of fact that the father was unable to set aside the parental conflict and meet the needs of the children, and that this change materially affected the children and was not contemplated when the joint custody order was made, were grounded in the evidence and did not require appellate intervention. The conclusion that the father had embarked on a campaign to alienate the children from their mother was also grounded in the evidence. The order to hear the child protection and custody proceeding simultaneously was not appealed. Even if it had been, it was a proper exercise of the motions judge’s discretion. The father’s submission that the motions judge failed to hold a full hearing was not accepted. It was open to the motions judge to hold a hearing on the basis of affidavit evidence only. The motions judge took care to separate the findings made on the protection application from the motion to change.