WILL THE COURTS SWITCH CUSTODY?
November 9, 2007
It is difficult to predict whether a court will switch the custody of a child in a parental alienation case, but over the last two years the courts have shown an increasing willingness to prevent alienation from worsening. There is a growing body of case law on parental alienation that shows that the courts are becoming ever more sophisticated about how to deal with the problem.
Below you will find summaries of some of the key early cases concerning parental alienation, and some important parental alienation decisions. (To be updated) [For a commentary with respect to a June 2013 case where the judge change children's residence from the alienator parent to the target parent, CLICK HERE.]
THE EARLY CASES
In both of the cases below, the courts acknowledge the insidious effects of parental alienation and the need for the courts to intervene. In Reeves, the court acknowledges that switching the children's custody will probably cause them "the most immediate pain." The court instead acts in what it sees as the children's long-term interests and switches custody. In Tremblay, the court identifies alienating behaviour as child abuse. It also perceptively discusses the court's challenge in dealing with parental alienation.
Reeves v. Reeves (Ontario, 2001)
Reeves v. Reeves,  O.J. No. 308 (Ont. S.C.J.), is an Ontario case where a dad engaged in an obvious campaign to poison the children against their mom, Justice Nancy Mossip ordered an immediate change of interim custody. It appears that the evidence that the mom presented had a strong impact on the outcome. Justice Mossip wrote in her decision:
|26||There are two choices for the Court in the matter before me: |
|27||The results of parental alienation by the father against their mother on these children are observable now, and according to the Children's Lawyer social worker, the children are being adversely affected at a rapid and increasing rate.|
|28||Rarely does a Court have such unequivocal evidence as to the adverse effects on the children to remain with one parent as is set out in the two affidavits of the Children's Lawyer social worker. It would, in my view, be a grave disservice to the Reeves children not to act promptly and effectively on her advice and recommendations in this case.|
|38||Based on a significant number of studies and case law in this area, any support or encouragement by one parent that the children not have a relationship with the other parent simply demonstrates the irresponsibility of the parent who has the children and demonstrates that parent's inability to act in the best interests of their children.|
Tremblay v. Tremblay (Alberta, 1987)
In a case that predates much of the literature on parental alienation, Tremblay v. Tremblay (1987) 10 R.F.L. (3d) 166 (Alta Q.B.), an Alberta judge noted that sometimes all one can do is change custody from the alienating parent to the innocent parent. In this case, custody was switched from the mother to the father. The judge stated:
I start with the premise that a parent has the right to see his or her children and is only to be deprived of that right if he or she has abused or neglected the children. Likewise, and more important, a child has a right to the love, care and guidance of a parent. To be denied that right by the other parent without sufficient justification, such as abuse or neglect, is, in itself, a form of child abuse.
Cases of this type, where the custodial parent is, without justification and in the face of a Court Order, denying access to the non-custodial parent, are problematical. If maintenance is being paid, the Court can order that maintenance no longer need to be paid as was done recently by the Honourable Mr. Justice Sulatycky. The Court can also find a custodial parent in contempt of Court and fine the custodial parent or send the custodial parent to jail. However, neither of these alternatives does anything to further the development of a relationship between the non-custodial parent and the child. The child can still be convinced by the custodial parent that the non-custodial parent is an unfit parent and make the development of a relationship extremely difficult. Faced with such odds, I expect many non-custodial parents give up trying to see their children because they are disheartened by the difficulties in establishing a relationship or do not have the financial resources to persevere through the Courts in an attempt to develop a relationship with their children. In many cases, the variation of the maintenance or the sending of the custodial parent to jail is not in the best interests of the children. Often the intransigent parent who has defied or at least not lived up to the Court Order ends up essentially being rewarded by being victorious in not allowing the non-custodial parent access.
In cases such as this one I would shy away from sending the mother to jail. It is my belief the children could easily blame the father for the mother having to go to jail.
The Court should not automatically change custody if the custodial parent refuses access or otherwise interferes with the development of a normal parent and child relationship between the non-custodial parent and the child of the marriage. However, where the parent refuses access serious questions are raised about the fitness of that person as a parent.
In this particular case, Mrs. Tremblay has been given ample opportunity to comply with the various court Orders. Short of sending her to jail, everything has been tried to convince her that Mr. Tremblay is entitled to access to the children. On two occasions, I directed specific comments to her in the courtroom making it very clear to her that she was to let Mr. Tremblay have access.
On the evidence before me I am satisfied that Mr. Tremblay will properly care for the children. I am also satisfied that he will give Mrs. Tremblay generous access. It is therefore in the best interests of the children and the administration of justice that custody change to Mr. Tremblay and the children live with him.
MORE RECENT CASES
2006 and 2007 have seen a number of reported parental alienation cases. The trend appears to be that the courts are more and more willing to switch custody when faced with evidence of parental alienation. The decisions below demonstrate the court's increasingly sophisticated and confident understanding of parental alienation and how to deal with it.
A.F. v. I.V. (Ontario, January 2006)
This is a case of an 11 year custody battle. The alienator mother's behaviour was brazen and shameless. The mother was clearly unstable, had no regard for her child's interests. She was simply on a campaign to ruin the father's life via her dozens of lies, distortions, and false accusations of abuse to the courts, the police, and the Children's Aid Society (CAS).
Despite the overwhelming abuse of the child, the father, and the justice and child protection systems, the mother came away with supervised access. The court refused to award damages against her, but she was fined $5,000.00 for contempt of court. The hope to be found in this case is simply that the courts eventually got it right. Thankfully, the following cases show a trend that has been developing over the last two years suggesting that it is harder and harder for such a parent to get away with this behaviour.
Rospendek v. Rzyskiewicz (Ontario, February 2006)
In this 2006 alienation case (appeal dismissed in 2007), a seven-year-old boy whose primary residence was with his mother in Ontario was transferred to father's sole custody in Oregon. In this case the evidence of alienation on the part of the mother and both maternal grandparents was overwhelming. A two-person team of court-appointed assessors recommended the switch in custody. The assessment was critiqued by Susan Lieberman, who eventually became the mother's therapist. Ms. Lieberman never met with the father. Her critique did not persuade the judge, at least partly because Ms. Lieberman took a position (that the child should stay with the mother) that was inconsistent with her own evidence.
Rogerson v. Tessaro (Ontario, May 2006)
This was an appeal of an order switching primary residence from an alienator mother to the father. The mother persistently ignored court orders and assessor's recommendations. On top of her “normal" alienating behaviour, the mother went so far as to unilaterally relocate the children on the eve of trial, uprooting the children from their school and community. She even threatened that if the father moved to her new town, she would move again. In contrast, the father (in summary) did everything right – he bonded with the children, took parenting courses, and acknowledged the importance of facilitating the children's relationship with the mother despite all she had done.
R. v. Gettliffe-Grant (British Columbia, January 2007)
This is a criminal case where the alienator mother was sentenced to 16 months incarceration for abducting her children. She was unrepentant throughout, and continued the denigration and attempted further alienation of the father even when she was in jail.
R.A.L. v. R.D.R. (Alberta, February 2007)
This is a very interesting case out of Alberta, where a thirteen year old who wanted to live full-time with her father (she was with him 40% of the time) was ordered to the primary care and sole custody of her mother. On top of that, the girl was to have no communication with the alienator father. The father was also restrained from coming within 200m of the child or having her under surveillance by family members or others. What makes this case even more unusual is that the decision was partly preventative. Although there was very strong evidence of alienation, it appears that the court made its extreme decision in part to keep the father's alienation from becoming even more severe. The court observed: “A parent may engage in alienating behaviour but the child may be resilient or the full negative effects may not be seen."
C.S. v. M.S. (Ontario, February 2007)
In this tragic case, an alienator/father had already turned three out of four children against their mother by the time the case got to trial. The fourth and youngest child, a ten-year-old boy, remained in his mother's care and had not yet been alienated against her. After discussing the evidence and credibility of the witnesses at length, the court acknowledged that the alienation of the three older children from the mother was now complete, and that all four were actively trying to recruit the youngest child away from the mother. In the end, the court found that it was in the best interest of the youngest child that there be no further access to the father or the siblings. The active disobedience of previous orders raised concerns about restoring access under any circumstance. A restraining order was thus granted, restricting the father's contact, proximity and communication with the mother, the youngest child, and anyone caring for the child.
This case is also significant because of Justice Perkins' lengthy discussion of the signs of PAS. If you are interested in signs of PAS and the sorts of things that courts may be looking at in future PAS cases, take a look at paragraphs 92-95 of the decision.
A.A. v. S.N.A. (British Columbia, July 2007)
This BC Court of Appeal case concerns a ten year-old girl whose parents never lived together. The mother and maternal grandmother were alienating the child against her father and constantly obstructing him from seeing her. At trial, the judge acknowledged that the alienation was harming the child but left the child in her mother's care. An assessment showed that switching custody could be harmful to the child in the short term, and there would be risk to the child involved. The court of appeal sympathized with the difficult decision before the trial judge, but found that he erred in law by not favouring the child's long-term best interests. He was therefore incorrect in leaving the child with her mother. The girl was placed in her father's care.
A nice post-script to this case is that when the alienating mother tried to change custody back to herself pending her appeal to the Supreme Court of Canada, the Court of Appeal refused. The Court of Appeal noted that the child had been doing well and making significant progress in her father's care and refused to switch custody back to the mother pending the mother's appeal. Remember, this was a case of a 10 year-old child who was determined not to have a relationship with her father and made it clear to the assessor that she would not cooperate. The child's determination had been so strong that the trial judge was convinced that he should not switch custody to the father. The change of custody and supervision of the child were carried out properly, and the child was clearly benefiting from it.
Pettenuzzo-Deschene v. Deschene (Ontario, August 2007)
This interim custody case is fascinating. It concerns the alienation of a seven year-old girl from her father. The girl would go into hysterics during her supervised access visits with the father and the girl's mother (and counselors) opposed the continuation of the visits. However, in the words of the court-appointed assessor “what we have here is a multifaceted, severe, malicious, self-serving, deliberate campaign of parental alienation." The assessor's report by Dr. Andrew Hepburn persuaded the judge to change the girl's primary care to the father on a temporary basis until further order. The mother was granted supervised access for 2 hours/week and infrequent telephone access beginning 10 days after judgment. The judge intervened to curb the emotional harm being done to the children before it was too late.
The alienator parent lost custody of her three children to the father whom she vilified in the presence of the children. It took too long and cost too much money but in the end justice and common sense prevailed. For Colman's commentary, see the Blog Post re this case.
The following are the proper legal citations for the cases listed above:
Reeves v. Reeves,  O.J. No. 308; 102 A.C.W.S. (3d) 1116 (Ont. S.C.J.)
Tremblay v. Tremblay (1987),  82 A.R. 24 •  6 W.W.R. 742 • (1987), 10 R.F.L. (3d) 166 • (1987), 54 Alta. L.R. (2d) 283 (A.B.Q.B.)
A.F. v. I.V.; Fernandes v. Vukovic,  O.J. No. 126; 145 A.C.W.S. (3d) 101; 69 W.C.B. (2d) 107 (Ont. S.C.J.)
Rospendek v Rzyskiewicz, 2006 CarswellOnt 1514,  W.D.F.L. 1972, 28 R.F.L. (6th) 55 (Ont. S.C.J.)
Rogerson v Tessaro, 2006 CarswellOnt 2777, 147 A.C.W.S. (3d) 821,  W.D.F.L. 3046,  W.D.F.L. 3047,  W.D.F.L. 3049,  O.J. No. 1825 (Ont. C.A.)
R. v. Gettliffe-Grant,  B.C.J. No. 3335; 2006 BCSC 1943; 217 C.C.C. (3d) 474; 72 W.C.B. (2d) 77 (B.C.S.C.)
R.A.L. v. R.D.R.,  A.J. No. 163; 2007 ABQB 79; 156 A.C.W.S. (3d) 134 (A.B.Q.B.)
C.S. v. M.S.,  O.J. No. 787; 37 R.F.L. (6th) 373; 155 A.C.W.S. (3d) 605; 2007 CarswellOnt 1267 (Ont. S.C.J.)
A.A. v. S.N.A.,  B.C.J. No. 1474; 2007 BCCA 363; 243 B.C.A.C. 301; 159 A.C.W.S. (3d) 537 (B.C.C.A.)
Pettenuzzo-Deschene v. Deschene,  O.J. No. 3062; 40 R.F.L. (6th) 381; 159 A.C.W.S. (3d) 404; 2007 CarswellOnt 5095 (Ont. S.C.J.)