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Grace 05-15-2006 06:38 PM

Parental Alienation
 
Mother loses kids after hindering father's access
An Ontario woman loses primary custody after court finds she sabotaged her ex-husband's relationship with their two young sons
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Font: * * * * Cristin Schmitz, CanWest News Service
Published: Saturday, May 13, 2006
OTTAWA -- A divorced woman who sabotaged her children's relationship with their estranged father has been stripped of their custody in a decision by Ontario's top court which sends a message that "parental alienation" harms children and will not be tolerated.

"We recognize, as did the trial judge, that the remedy of granting custody to the father is a dramatic one. However, that remedy was supported by the expert evidence and by the mother's persistent, ingrained and deep-rooted inability to support the children's relationship with the father," said three judges of the Ontario Court of Appeal in a unanimous decision this week.

The court dismissed the appeal of the Jarvis, Ont. mother against a lower court decision last year which ordered that the primary residence of her five-year-old twin boys be switched from the mother -- who had sole physical custody of them since their birth -- to her ex-husband who resides in Hamilton.

Calling that decision "amply supported by the evidence," the Appeal Court said that although the mother was "otherwise a good parent," her persistent "troublesome conduct" against the children's best interests included unilaterally restricting the father to daytime visits and failing to inform him about the children's medications, or to give him their prescription drugs, so that they would return home from visits with him sicker than when they left.

Obstructed access affects thousands of divorced parents and their children across Canada, according to a 1998 parliamentary report which urged the federal government and the provinces and territories to devise a nationwide co-ordinated response to failed parenting orders.

In Ontario and other provinces, courts have broad powers to punish those who violate custody and access orders, including fining parents and throwing them in jail for contempt of court.

But stripping a parent of custody, particularly if she or he has had sole care of a child for years, is still a relatively unusual step, said the woman's lawyer, Andreus Snelius.

"Contempt [of court] proceedings don't always dissuade a person" from impeding access, Snelius noted. "This decision may be an indication that courts are starting to take the situation of parental alienation much more seriously and are more willing to change custody."

"Parental alienation" is a term coined to describe the phenomenon of one parent persistently denigrating, devaluing and brainwashing the child against the other.

Snelius said his client has not yet decided whether to take her case to the Supreme Court of Canada.

The appeal court was also critical of the mother's unilateral decision -- without warning, just before the custody case went to trial -- to uproot the boys from their school and community to move to another town further away from their father. "Moreover, the mother said that if the father moved to her new town, she would move again," the Court of Appeal noted.

"This conduct, in addition to many other instances of alienating conduct, was properly viewed by the trial judge as evidence of the mother's inability to support the father's relationship with the children and to consider the best interests of the children."

By court order, the boys now reside with their father, but live with their mother most weekends and see her for mid-week evening visits.

© The Vancouver Sun 2006

Divorcemanagement 05-15-2006 06:45 PM

This kind of thing happens a lot and there isn't much to be done about it save for going back to court over and over again. I wonder how often the parties were in court prior to this decision?

logicalvelocity 05-15-2006 07:59 PM

Grace interesting article.

The case has not appeared on the OCA endosements site. Last case posted is May 12, 2006 Might be there tomorrow.

LV

logicalvelocity 05-15-2006 08:07 PM

Here's the link to the OCA endorsement site

http://www.ontariocourts.on.ca/decis...6abe_index.htm

LV

logicalvelocity 05-15-2006 08:16 PM

Contempt of Court
 
interesting cases


J.S. v. J.W - Ontario Court of Justice

http://www.canlii.org/on/cas/oncj/2005/2005oncj329.html

and

Moudry v. Moudry - Ontario Superior Court

http://www.canlii.org/on/cas/onsc/20...onsc14047.html

and

J.W v. D.W. - SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION)

http://www.canlii.org/ns/cas/nssf/2005/2005nssf2.html

LV

Grace 05-15-2006 08:26 PM

Lv
 
I wanted to read the case too, that's why I posted it hoping you would find it for me :cool:.

logicalvelocity 05-15-2006 08:38 PM

Grace,

It should be posted maybe tomorrow or the following day. Looks like they are a day or two behind.

lv

Decent Dad 05-16-2006 09:54 AM

Absolute power corrupts absolutely...

I read that article in the paper on Sunday. Very interesting indeed. Although, like most aticles in the media, we do not get the whole story. BTW, there have been more in the paper like this. Cristin Schmitz from CanWest covers almost all divorce stories.

Sad for the kids.

I would be interested as to why the father lost custody in the first place. This decision would basically invalidate most, if not all, of the reasons.

logicalvelocity 05-17-2006 11:16 PM

Rejoinder
 
Rejoinder,

I came across the case at the OCA site

http://www.ontariocourts.on.ca/decis...may/C44199.htm

and at CanLII

http://www.canlii.org/on/cas/onca/20...onca10333.html

ROGERSON v. TESSARO

COURT OF APPEAL FOR ONTARIO
RE:
KENNETH ROGERSON (Applicant/Respondent) –and- ANITA TESSARO (Respondent/Appellant)


BEFORE:
ROSENBERG, MOLDAVER AND LANG JJ.A.


COUNSEL:
Andreus R. Snelius

for the appellant


Mari-Anne Saunders

for the respondent


HEARD & RELEASED ORALLY:
April 28, 2006


On appeal from the judgment of Justice Cheryl LaFreniere of the Superior Court of Justice, dated August 29, 2005.

ENDORSEMENT

[1] This appeal cannot succeed.

[2] The appellant argues that the trial judge erred in two respects: first, in failing to give sufficient weight to the status quo of de facto maternal custody and, second, in giving too much weight to s. 16(10) of the Divorce Act. We disagree.

[3] In comprehensive reasons, the trial judge made factual findings about the mother’s conduct, which are not challenged on this appeal and which were amply supported by the evidence. She drew reasonable inferences from those findings and concluded that the appellant, while otherwise a good parent, was unable to support a relationship between the children and their father.

[4] The trial judge was alert to the persistence of the mother’s conduct in attempting to alienate the father from the children. That troublesome conduct carried with it long term implications that were contrary to the best interests of the children. It included a broad range of behaviours, including such potentially serious behaviour as not telling the father about or giving him medications that were prescribed for the children.

[5] The mother’s problematic conduct included the mother’s decision to move the children’s home to a different town on the eve of trial. As a result of that move, the children were uprooted from their school and their community. Moreover, the mother said that if the father moved to her new town, she would move again. This conduct, in addition to many other instances of alienating conduct, was properly viewed by the trial judge as evidence of the mother’s inability to support the father’s relationship with the children and to consider the best interests of the children.

[6] The mother’s conduct persisted despite assessments and court orders stressing the importance of the relationship between the father and the children. As the trial judge noted, the mother is not persuaded by judgments of the court.

[7] In contrast, the father bonded closely with the children, took advantage of parenting courses, established himself as a capable and affectionate parent, participated fully in the children’s schooling and extra-curricular activities and, finally, appreciated the importance of facilitating a relationship between the mother and the children.

[8] We recognize, as did the trial judge, that the remedy of granting custody to the father is a dramatic one. However, that remedy was supported by the expert evidence and by the mother’s persistent, ingrained and deep-rooted inability to support the children’s relationship with the father. We note that the trial judge carefully structured her order so that the children’s transition from primary residence with the mother to primary residence with the father would be gradual and cause as little disruption as possible for the children.

[9] Since this appeal was primarily fact driven and we see no error of law, the appeal must be dismissed.

[10] The respondent is entitled to costs of the appeal, which we fix at $2,500.00, inclusive of disbursements and GST.

AlexisAndrew 07-28-2010 01:03 AM

Does anyone have any other examples of change of custody due to one parent not doing enough to encourage a relationship with the other, let alone alienating them?

Better still, does anyone have contact details for any of the the wining parties (I know they probably want to put it behind them), or how about the lawyers they used?

Finally, does anyone have advice when it comes to trying to file for this type of application please?

Thanks


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