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Custody and Access: Parental Alienation

One problem that clients often come to me with is that they feel that the other parent is alienating them from their child.  This is a serious allegation and one that usually occurs during high conflict circumstances. Clients often describe this alienation as “she’s telling the kids that I hate them” or “he’s telling the kids all about our case and that I don’t care about them.”  Statements like these could potentially fall under the category of parental alienation (to learn more about custody and access and the differences between them, see our previous post on Custody and Access for more information).

Parental alienation has been legally described by Justice Zuker as follows:

[I]n some cases a custodial parent will make unfounded allegations and alienate the children from the other parent by inducing unfounded fears about the access parent in the child’s mind. This has been referred to by some mental health professionals and lawyers as “parental alienation syndrome” or “malicious mother syndrome,” though these are not clinical “diagnoses” that a mental health professional can make, but rather are a conclusion about a particular state of facts….[1]

 

It has also been described by Dr. Janet R. Johnston as a child that:

“expresses freely and persistently, unreasonable negative feelings and beliefs (such as anger, hatred, rejection and/or fear) toward a parent that are significantly disproportionate to the child’s actual experience with that parent. Entrenched alienated children are marked by unambivalent, strident rejection of the parent with no apparent guilt or conflict.”[2]

What we’re seeing here is that alienation is set out heavily in the facts of the case.  A set of core elements to determine parental alienation is described in L.R.H. v. A.K.H., 2003 BCSC 1201, [2003] B.C.J. No. 1820 at para 48 as follows:

  1. a campaign of denigration by the children where they continuously profess hatred of the alienated parent;
  2. the children give weak, absurd or frivolous rationalizations for the deprecation of the alienated parent;
  3. the children show no ambivalence about their parents: one is entirely “good” and the other only “bad”;
  4. the independent thinker phenomenon;
  5. the children offer reflexive and complete support of the “good” parent in the parental conflict;
  6. the children do not appear to feel guilty over cruelty to and/or exploitation of the alienated parent;
  7. the children’s descriptions of the alienated parent sound rehearsed, coached or borrowed; and
  8. the children’s animosity spreads to the friends or extended family of the alienated parent.

This case goes further to describe the alienation as an extreme where one parent essentially coaches the children to promote hatred against the other parent.

What these legal precedents show us that in order to prove this alienation, the parent will have to clearly demonstrate deliberate action on the part of one parent to turn the children away from the other.

If this can be proved, it is a very real consideration regarding custody and access decisions in court.  For example, take a look at s. 16(10) of the Divorce Act (“DA”):

 

Maximum contact

(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

This means that BOTH parents are obligated to ensure that the child has a relationship with the other parent and to help facilitate access to that parent so long as it’s in the best interests of the child.  A general way of looking at this is that even if you don’t happen to get along with the other parent, so long as the child is safe with the other parent, you are basically required to ensure that your child sees them.  This will of course have to be determined in a case by case basis factoring in the best interests of the child under s. 24(2) of the Children’s Law Reform Act.

 

See the cases below for an idea of how custody and access could be arranged or changed due to parental alienation:

DeSilva v. DeSilva, [1997] O.J. No. 330 (Gen.Div.),

  • father had seriously hampered older daughter’s relationship with mother
  • court found that significant damage had already been done to the relationship
  • factoring in the child’s age and wishes, making a change in custody at that time was unrealistic and unworkable

Rogerson v. Tessaro, 2006 CanLII 15126, [2006] O.J. No. 1825 (C.A.),

  • custody was varied from mother to father
  • mother’s alienation of the children from the father was not in children’s best interests
  • mother’s conduct included:
    • not telling father about nor giving him medications prescribed for children
    • mother moved towns and uprooted the children, indicated to father she would move again if he moved to her new town
    • mother’s behaviour persisted even in the face of assessments and court orders
    • father had shown himself to be a caring and capable parent who understood the importance of the children’s relationship with the mother

Fiorito v. Wiggins, 2013 ONSC 4272, [2013] O.J. No. 3153,

  • custody was granted to father
  • three children had lived primarily with mother after separation
  • court order in 2008 provided detailed and generous access to father that mother was not following
  • mother found to be continually obstructing and undermining children’s access to the father
  • court also found that since separation, the children’s relationship with father transformed into one based on fear and an intense dislike which was found to be primarily caused by the mother
  • court ultimately found that the mother could no longer have custody of the children as she was inflicting harm and emotional abuse upon the children

This blog is intended for legal information purposes only and is not to be construed as legal advice.

[1] Dixon v. Hinsley, [2001] O.J. No. 3707, 22 R.F.L.(5th) 55

[2] Dr. Janet R. Johnston, “Children of Divorce who Reject a Parent and Refuse Visitation: Recent Research and Social Policy Implications for the Alienated Child”, Family Law Quarterly, Vol. 38, No. 4; Winter (2005) at 757-775

Can I secretly record my ex-spouse?

Can I Secretly Record My Ex-Spouse?

Seems like something you should be able to do right? If an ex-spouse is talking to the children, or anyone else, some parents try to record those conversations to use against the other spouse later on in legal proceedings.  What parents will need to be mindful of is that this may actually trigger parts of the Criminal Code (“CC”) regarding the invasion of privacy.

The part of the CC that is important here is s. 184(1) which states that:

184.(1) Every one who, by means of any electro-magnetic, acoustic, mechanical or other device, wilfully intercepts a private communication is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

This is further clarified by s. 184.5(1) which provides that s. 184(1) includes things such as cellphones:

184.5 (1) Every person who intercepts, by means of any electro-magnetic, acoustic, mechanical or other device, maliciously or for gain, a radio-based telephone communication (emphasis ours), if the originator of the communication or the person intended by the originator of the communication to receive it is in Canada, is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

If the ex-spouse were to consent to the recording, then there would be no issue with the recording as per s. 184(2)(a) of the CC:

(2) Subsection (1) does not apply to

(a)  a person who has the consent to intercept, express or implied, of the originator of the private communication or of the person intended by the originator thereof to receive it.

Parents usually do not get the consent of the ex-spouse to actually record conversations their conversations, so they resort to recording them secretly in order to try and get some dirt on the other spouse.

 

How do courts handle secretly recorded evidence?

In general, courts do not appreciate it when parents secretly record each other, then try to use that evidence against the other spouse in court proceedings.

However, even though the courts do not like to see this kind of evidence, it does not mean that they would not use it if it was important enough.

Justice Spence in Scarlett v. Farrell  2014 ONCJ 517 at para 31 provides us with a metric to go by; it will have to be determined if “the probative value [of the secretly recorded evidence] outweighs the policy considerations against such recordings, then the courts will admit them into evidence.” This means that if the courts find that the contents of the recording are important enough, the recording may actually be admitted into evidence for use against the spouse who was recorded, despite the fact that the recording was obtained illegally.

So how do we determine when a recording will be admitted into evidence? There must be a way for us to know that we can record the other spouse based on what they’re saying, especially when the safety of the child is at stake?

To use a tried and true legal expression: it depends.

The case law is split on this issue and again, this boils down to the specific facts of each case.  Ultimately, the judges have to use their discretion when weighing all the evidence to make a determination.

There is a three-pronged test that we can use to help determine whether the evidence will be admitted as described in Matthews v. Matthews, 2007 BCSC 1825, [2007] B.C.J. No. 2747 at para 70:

(i) There is a limited discretion to exclude relevant evidence, regardless of how it was obtained;

(ii) The judicial exercise of that discretion involves a balancing of competing interests; and

(iii) The court should consider whether the probative value of the evidence outweighs the prejudicial effect on the party opposite and/or the reputation of the administration of justice.

This provides a good starting point to understand how the law works on this issue.  For more context, refer to the caselaw below regarding the admissibility of secretly recorded information:

 

Secretly recorded tapes admitted into evidence:

A.F. v. J.W. sub nom. Fiorito v. Wiggins, 2015 ONCA 729, var’g 2013 ONSC 4272.

  • father secretly recorded conversations between himself and the mother during access exchanges
  • recordings showed that mother was contraveining court order’s when she claimed she wasn’t
  • court considered these recordings to go to the root of issue of whether or not the mother was continuing her emotional abuse of the children
  • Justice Harper at para 56 said:
    • “However, in far too many cases, like the matter before me, the goal of building of trust became masked by one party saying one thing in public and doing something very different when she thought the she was safe from scrutiny.”

D.M. v. C.W., 2017 ONSC 7070

  • mother wanted to move to Pennsylvania,
  • father made recordings during access exchanges
  • father could not “cherry-pick” what court heard, court had to play entirety of all recordings
  • court at para 38 found that:
    • “audio recordings met the test for admissibility in that they were relevant to whether it would be in the best interests of the child to move with C.W. to Pennsylvania, more specifically, whether that proposed move would frustrate the positive access between the child and D.M.; that the probative value (or benefit) of the evidence outweighed its prejudicial effect (or cost)”

Secretly recorded tapes are NOT admitted as evidence:

Turk v. Turk, 2015 ONSC 3165,

  • The wife’s conversations with the children were recorded without her knowledge, on phones that were provided to the children by the husband.
  • The children were 21 and 17 years of age and neither were in need of protection from the court.
  • Court found that the recordings were prejudicial to the wife and her ability to have a fair trial.

S.C. v. J.C., 2009 SKQB 87, [2009] S.J. No. 121,

  • Text messages accessed between mother and child
  • Father had copied the text messages from his daughter’s phone while she was asleep.
  • Court found that manner of obtaining relevant evidence does not affect whether it will be admissible or not.
  • Court had difficulty determining reliability of evidence as there was no way of knowing whether messages represented the entirety of the communication between mother and child, or if they were taken out of context.
  • Would be significant prejudice to administration of justice in family law proceedings if evidence of this kind was admitted regularly.
  • Mother regularly texted daughter, admitting this evidence would hamper mother’s ability to text daughter and reduce daughter’s trust in Father.
  • Court found that this result could be different if the daughter was at risk in some way.

 

LGBTQ Parents and Custody and Access

One fear that some parents may have is whether their LGBTQ status might affect their rights when it comes to Custody and Access.  Thankfully, this is not in and of itself a ground to refuse custody or access to a parent as the case law below will demonstrate.

Custody

As mentioned in our last post regarding conduct that can affect custody or access, what courts will want to see is whether the conduct of the parent impacts the best interest of the child.

What courts will do is consider a parent’s LGBTQ orientation among other factors to make a determination about a person’s ability to parent.  They will look at whether that orientation actually affects the healthy development of the child.  The Courts in Bezaire v Bezaire had the following to say at para 18 of the decision:

“In my view homosexuality, either as a tendency, a proclivity or a practised way of life is not in itself alone a ground for refusing custody to the parent with respect to whom such evidence is given. The question is and must always be what effect upon the welfare of the children that aspect of the parent’s make up and lifestyle has, and it will therefore be a question of evidence in that very case as to whether what has been shown to exist has or may tend to have effects adverse to the welfare of the children.”

In addition to this, the court in Re K states the following:

“There is, in short, no evidence that families with heterosexual parents are better able to meet the physical, psychological, emotional or intellectual needs of children than families with homosexual parents.”

What we can see from this is that courts are very clear in stating that sexual orientation alone is no ground in and of itself that negatively impacts on a person’s ability to parent their children, meaning that LGBTQ parents are recognized as equally capable as heterosexual parents when it comes to decisions regarding custody.

Access

The same principles apply when courts make decisions regarding access to children.  Again, the courts are going to make a determination on whether a parent’s LGBTQ orientation, as well as other facts, affects the child’s best interest.

For example, the courts in Templeman v Templeman found that an openly gay lifestyle was not a reason in and of itself to restrict access or require that it be supervised.  In Templeman, psychiatric evidence was produced that showed conclusively that the father had a strong loving bond with his children, and that his gay lifestyle posed no risks in harming his children.

Caselaw

  1. Bezaire Bezaire (1980), 20 R.F.L.(2d) 358 (Ont.C.A.);
  2. Re K (1995), 15 R.F.L. (4th) 129 (Prov.Div.):
  3. Templeman v. Templeman, [1986] W.D.F.L. 233, 2 A.C.W.S.(3d) 294 (B.C.S.C., Dec. 22, 1986).

This post is provided for the purposes of legal information only and is not to be construed as legal advice.

Past Conduct of Parents in Determining Custody and Access

Can the Past Conduct of a Parent be Used to Determine Custody and Access?

I have had clients in the past come to me with this question wondering if they could use the behaviour of their former spouse as evidence that custody or access should be limited as a result of their actions. While this could be true, generally it will only matter where those actions have an effect on their ability to parent the child.

Let’s look a little closer at what this actually means.

First, we need to have a refresher on the “Best Interests of the Child” under s. 24(2) of the Children’s Law Reform Act (“CLRA”). From here, we can now look at how past conduct of a spouse may be factored into that list under s. 24(2).

24(3) of the CLRA shows us that past conduct can be considered but ONLY in relation to custody or access and ONLY THEN in accordance with s. 24(4) of the CLRA. The language in these sections identifies that the conduct will be considered only if the conduct is relevant to the person’s ability to act as a parent (s. 24(3)(b)), and also if there was violence or abuse against the spouse, parent of the child, member or persons’ household, or any child (s. 24(4)).

Keep in mind that anything done in self-defence or to protect another person does not fall under this category of violence or abuse mentioned above (see. S 24(5)).

The Divorce Act (“DA”) also makes mention of these issues under s. 16(9), where again they show that the past conduct is not relevant unless it affects the persons’ ability to act as a parent.

Let’s take adultery as an example.  Somerville v. Somerville is one such case where the extra-marital affair of the husband resulted in the end of the marriage.  What the court found was that the affair only spoke to the husband’s ability as a spouse, NOT his ability to act as a parent to his child.  Therefore it was not a relevant consideration when determining custody or access.


Relevant Parental Conduct

When determining custody or access, courts start with relevant parental conduct to determine who the custodial parent would be and who would be entitled to access.  These initial relevant considerations could include, but is not limited to:

  1. Who has been making the decisions for the child?
  2. How often does the child see each parent currently?
  3. Who prepares the food and clothing for the child?
  4. Who arranges after school activities etc?

Adjusting Terms of Access

After the initial assessment, courts will then see if the conduct of the parents should be considered to see how the terms of access might change such as: frequency, duration, supervision, overnight access, or even if access should be denied.

To support this analysis under s. 24 of the CLRA, Justice Dunn in T.(R.R.) v. T.(G.) considered the use of additional factors:

  1. the non-custodial parent’s acceptance of the custodial parent’s responsibility for the child’s discipline and conduct;
  2. the non-custodial parent’s punctuality, attendance and behaviour on access visits;
  3. the non-custodial parent’s attempts to keep informed of the child’s current events, health and achievements;
  4. the non-custodial parent’s attempts to help the child adjust to returning to the custodial parent; and
  5. the non-custodial parent’s sensitivity to time limitations on the visit.

Sample Case T.(R.R.) v. T.(G.)

In T.(R.R.) v. T.(G.),  the father was denied access because he:

  1. Repeatedly showed up for visits drunk;
  2. Left multiple threatening messages on the mother’s answering machine;
  3. Acted inappropriately during his access visits;
  4. The children didn’t want to visit with the father; and
  5. The children were in a better emotional state when they did not see the father.

Here we can clearly see that the conduct of the father was directly affecting his ability to parent the children.

As a final note, I would like to point out that no parent has an inherent right to access to the child simply because they are the biological parent, nor do they have any proprietary rights or even domain over their child.  See Montgomery v. Montgomery, where the court was clear in showing that no biological link should be permitted to surpass the best interests of the child.

 

Case Citations:

  1. Somerville v. Somerville, 2007 ONCA 210, [2007] O.J. No. 1079, 2007 CarswellOnt 1697, 36 R.F.L.(6th) 7
  2. (R.R.) v. T.(G.), [1994] O.J. No. 2453
  3. Montgomery v. Montgomery, [1992] O.J. No. 2299, 42 R.F.L.(3d) 349 (C.A.) (at 360 [R.F.L]

 

Legal Disclaimer that this is information only and not to be construed as legal advice.

Child Custody and Access Introduction

One of the most significant concerns for parents, if not THE most significant concern, on separation is what will happen with the children.  Where will the child live? Who is going to make decisions for the child regarding their education, religion, or medical care? How much time will each partner spend with the children?

These questions are related to custody and access and this post will focus on those issues alone.  Child support issues are covered in our previous post here.

There are two different statutes dealing with custody and access in Ontario: the Divorce Act for married spouses, and the Children’s Law Reform Act (“CLRA”) for non-married and married spouses (see our post on married vs. Common law spouses for details on the difference between both types of relationships).

But what is the difference between custody and access? Are they not the same thing?

The person who is responsible for the child on a daily basis and makes daily decisions for the child is said to have custody of the child.  This can include decisions on things like: education, religion, and health care.  It does NOT automatically mean which parent the child will live with, although generally the person with sole custody is the parent with whom the child resides.

Access on the other hand is the ability to visit and ask for information regarding the child’s health, education, religion and general welfare.

When making a decision regarding custody and access, the courts will consider the “Best interests of the Child”, see s. 24(2) of the CLRA.  These include:

(a) the love, affection and emotional ties between the child and,

(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

(b) the child’s views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) any familial relationship between the child and each person who is a party to the application.

With these two terms defined and a background on the best interests of the child, we can approach what types of custody and access there are.

 

Custody

S.20(1)  of the CLRA provides that both parents have equal entitlement to custody of the children. However this entitlement is limited by s.20(4) of the CLRA.  What this means is that if the child resides with one spouse and you decide to move out, you could effectively be giving away custody rights to your child.  However you do not lose access rights.

Parenting decisions post separation can be approached in multiple ways.  These can include the following:

Joint Custody
With this, both parents must agree on major decisions regarding the child.  This arrangement requires that both parents co-operate well together to ensure the children are raised well and it works best when both parents have the same values and ideals on how to raise the children.  The parents may even choose to divide the decision making responsibilities.  For example, one parent may take the responsibility regarding education decisions while the other makes decisions regarding health care.

Sole Custody
One parent makes all the important decisions regarding the child.  They may have to communicate with the other parent about the decisions, but ultimately the parent with sole custody does not need the consent of the other parent.  Usually, if there is sole custody the other parent has access.

Split Custody
Each parent has sole custody of one or more children.  This is a rare solution for custody as courts generally do not like to separate siblings.  This type of custody is usually provided where the children are older and can express their opinions about which parent they want to live with.  With that, if the court determines that this opinion of the child should be given considerable weight, they may then grant split custody.

Shared Custody
This term is usually confused with joint custody.  This type of custody is actually an access arrangement and does not indicate which parent has legal decision making power, although custody arrangements can be included here (which helps contribute to the confusion).  You can have shared custody whether or not you have joint custody.  With shared custody, both parents have the child for at least 40% of the time.  Essentially, the child’s time is split evenly between the parents.  This type of arrangement can also impact how much child support is to be paid (see child support post for more details).

Access

Under the s. 20(5) of the CLRA parents are entitled to visit and be visited by the child.  This also includes the right to make inquiries and be given information about the child’s health, education, and welfare.

Types of access include the following.

Reasonable Access – sometimes called liberal or generous
If parents are able to co-operate, then access can be left open and flexible.  This type of access is heavily customizable as both parents simply communicate and negotiate access on an on-going basis as they see fit.

Fixed or specified Access
This will include a detailed access schedule with dates and times for access to be exercised.  This can cover things such as: holidays, long weekends, birthdays and so on.  You can also identify where access will take place and who will pick up and drop off the children.

Supervised Access
This may be required if one of the parents demonstrates the following behaviour:

  1. Substance Abuse;
  2. Domestic Violence;
  3. Parental Alienation.

The person supervising the access can be a relative, friend, social worker, worker at a supervised access centre, or even a Children’s Aid worker.  This kind of access is generally only done on a temporary basis.  If it’s determined that the visits are benefiting the child and the parents respect the terms of the access orders, the access can progress to unsupervised access and can also gradually increase over time.

No Access
This is an extreme result where a parent might not be able to access the child at all.  An order for no access can result where there is serious neglect of the child, abuse, or if the child’s safety cannot be protected even if supervised.

Other custody and access issues

A parent cannot refuse access to the other parent unless there is a court order to that effect.  If a parent does refuse access to another without proper justification, that parent may be found in contempt of court.  If that behaviour continues, the parent refusing access could suffer serious ramifications.

Child support and access are two different things.  A parent cannot be denied access if support is not paid, and support would likely still need to be paid even if there is no access.  It is also possible for a non-parent to be given custody or access, but this must be determined in accordance with the Best Interests of the Child.

Parents have the ability to outline their desires in a Parenting Plan which can be included in a separation agreement.  See our post on separation agreements to learn more.