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CUSTODY AND ACCESS - Considerations - Conduct of parents - Custody - Sole custody - Access - Supervision - Decision-making authority - Primary residence - Practice and procedure - Appeals

Monday, December 18, 2017 @ 12:31 PM  

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Appeal by the mother from an order granting the father sole custody of the parties' two children. The parties married in 2000 and separated in 2010. A divorce was granted in 2012. The children, ages 11 and 13 at trial, had health issues. The oldest child had serious food allergies. The youngest child was asthmatic and lactose intolerant. The trial judge found that the mother became obsessed with the children's health issues and the father had difficulties controlling his anger. Post-separation, the mother had care and control of the children. The father exercised unsupervised access until he commenced divorce proceedings. Thereafter, the mother only permitted supervised access. A series of interim orders gradually imposed an equal parenting arrangement. A parenting assessment recommended joint custody with shared decision-making. The trial judge found that the mother's conduct following the parenting assessment indicated an unwillingness to follow certain recommendations and indications of parental alienation. The trial judge concluded that shared custody was not in the children's best interests and granted sole custody in favour of the father with supervised access for the mother. The mother appealed.

HELD: Appeal allowed in part. The evidence of the mother's behaviour understandably raised concerns regarding her emotional stability and the children's well-being while in her care. The essence of the trial judge's decision was that the children's best interests were consistent with the father serving as primary caregiver with full decision-making authority, and the mother having a limited role until she demonstrated a change in her obsessive behaviour. That conclusion was supported by the evidence and was entitled to deference. However, the trial judge erred in ordering sole custody in the absence of any pleading by the father requesting sole custody. Proceeding in such fashion constituted a breach of procedural fairness. The parties were granted joint custody with primary care and final decision-making authority to the father, with supervised access for the mother, subject to review upon the mother's completion of court-ordered therapy.

Wenzel v. Wenzel, [2017] M.J. No. 329, Manitoba Court of Appeal, B.M. Hamilton, H.C. Beard and J.A. Pfuetzner JJ.A., November 27, 2017. Digest No. TLD-December182017001