A teenage son has his way with his father, who is separated from his mother. The father lavishes the son with material things like an X-Box, BlackBerry and Ipod, expensive clothes and sporting equipment. When together, father and son spend time playing tennis, roller skating and bicycling.
What child does not want to live with a parent who treats him like that?
This question confronted the Ontario Supreme Court of Justice in the case of Z. v. M., 2010 ONSC 3294. The case involved a bitter custody dispute between the mother with whom the son was residing, and the father with whom he wished to live.
Trouble began in the marriage very early on. The mother complained of verbal and emotional abuse in the hands of the father. He would put her down in public and call her names. He would isolate her by not allowing visits by her relatives or phone calls to them. In the course of disagreements, he would threaten to take the son away and flee the country.
Eventually, the mother decides to leave taking the son with him. Recognizing, however, how important her son’s relationship to the father is, the mother does not stand in the way of the father’s access to the son. But then the mother comes to have difficulties with the son. The son starts calling her names, pushing and shoving her at times and making threatening hand gestures to her. The son begins to pry on her, asking who she is on the phone with and telling her to hang up. The son reports to the father how the mother spends her time and which places she goes to. In one instance, the son searches his mother’s bed looking for evidence that she had slept with a man.
Her relationship with the son becomes strained, and the mother believes the father has a hand in it. The mother is concerned that the son was “modelling his conduct on his father’s manipulative and disrespectful behaviour”.
In seeking custody, the father argues that the son would be better off with him in terms of material needs as well as a stable routine and improved hygiene and nutrition which the father claims the mother is not able to provide. He sees to it that the son takes up sports activities and athletic programs that the latter is keen on, and has the sporting gear and equipment necessary to engage in these activities and programs. Video games and electronic gadgets await the son at the father’s home.
Not surprisingly, the son expresses his preference to live with the father.
The welfare of the child is at the heart of the inquiry in custody and access cases. A child’s wishes are to be considered in determining whether awarding custody to one parent was in his or her best interests. The child’s wishes however cannot be relied upon when there is parental alienation.
Parental alienation can be direct or indirect. As stated in the decision in Blois v. Gleason (2009) CarswellOnt 2527, direct alienation occurs “when one party actively undermines the relationship between the child and the other parent”. Blois also gave the following examples of indirect alienation:
- when one parent fails to support access or contact with the other parent;
- when one parent gives tacit approval of a child’s negative behaviour or comments towards the other parent;
- when the child is engaged in activities that have the effect of impeding or competing with access visits;
- when a parent is consistently late for access drop offs or shows up early for pick ups;
- when children are told that it is up to them whether or not access occurs;
- when a child sides with one parent and that parent does not try to dissuade the child from that position; and
- when the custodial parent expresses sadness that the child is going on an access visit thereby placing the child in a conflicted position just prior to the visit.
In this case, the court was convinced that the father had alienated the mother from the son. The influence that the father had exerted over the son proved to be negative and harmful. The son’s preference was clearly the product of the father’s determined intention to lure the son away from the mother.
The court was therefore unable to conclude that the son’s best interests will be served by residing with his father. On the other hand, the court found that the mother recognized the son’s needs and was open to seeking the help of counsellors to deal with those needs.
Primary residence of the son was awarded to the mother subject to access in favour of the father. To reflect the son’s wishes, however, the court was willing to afford the father more access time with the son.
