Gene C. Colman update 16 February 2020
In the blog post below I referred to the Justice John Harper’s decision in the Ontario Superior Court of Justice where custody was changed from the alienating mom to the target parent, dad. The mother appealed and the Ontario Court of Appeal released its decision on 30 October 2015. While the appeal court did reverse and modify some aspects of the trial decision, they left in place the father’s primary custody of the children. Based upon fresh evidence and in accordance with the maximum contact principle, the appeal court granted some unsupervised access including overnight access to the mother. Justice Harper’s decision still, in my opinion, stands as a valuable precedent that in extreme circumstances a judge can change custody in Parental Alienation cases.
Now here is my 2013 blog post:
In an important child custody case, Family Court Chief Justice, John Harper, addresses parental alienation almost without using those words, “parental alienation“. Clearly, F. (A.) v. W. (J.) is an egregious example of the lengths that a vengeful and ill parent will go to alienate the children from a formerly loved parent.
In this contested child custody case, at the previous go-around (June 2011) Justice Harper laid down the law for mom. The judge set out some very detailed conditions to which the mom was required to adhere. He telegraphed that failure to reform her alienating behaviours in the children’s presence could result in serious consequences when the review before him would take place. Even though the case was under the federal Divorce Act, Justice Harper enlisted other statutes and legal principles to find that the children were “in need of protection” within the meaning of the Ontario child protection statute, and he therefore ordered the Children’s Aid Society to supervise and counsel the mother.
The review ultimately took place and it was clear that mom had not even tried to change. Fortunately, dad had surreptitiously recorded mom’s rants and raves at two of the children exchanges. Dad had the hard evidence to prove that mom’s protestations of compliance with the 2011 order were simply false.
Generally speaking courts will not admit into evidence secret recordings. In this case, the recordings demonstrated that dad very wisely tried to terminate the mother provoked confrontations in the children’s presence. This surely went a long way to persuading Justice Harper that the recordings should be admitted. Dad was not egging mom on; rather, he was trying to defuse the conflict while the mom regaled in escalating the parental conflict and at times reduced the children to tears. The case does not stand for the proposition that all secret recordings get into evidence. However, this case does support the legal proposition that intractable alienating should result in residence change. If you want to have secret recordings allowed, this case gives some implicit guidance as to how to go about securing admission of such evidence.
Full custody and residence went to dad while mom could see the kids only during her therapy sessions. To get this order, dad had to endure years of verbal abuse from his ex and oppositional, defiant and crude provocations from his own children. From the costs decision, we learn that dad’s legal bill exceeded one half million dollars. Aside from motions and conferences, he had to withstand two trials (the original trial and then the review hearing that was even lengthier than the trial). Not many parents have the fortitude and financial resources to wage lawfare to that extent. Still, the result, although long in coming, was nonetheless gratifying. The system did ultimately and appropriately respond, even though it took too long and cost too much money.