The Facts

This case is the third trial regarding custody and access of the Swan children. During the first trial, the father was awarded custody. During the second trial, the mother was found to have coached one of the children into accusing the father of abuse.

This third, and hopefully final, trial was a messy custody and access case between the children’s father and maternal grandmother. The mother was also a party to this proceeding, but she did not make a single court appearance as she was struggling with an alcohol addiction and an abusive relationship.

The grandmother became involved when the mother became addicted to alcohol. The mother would often leave the children at the grandmother’s home instead of spending her access time with the children.

The mother and father had three children together and this case is about the custody of two of the three siblings. The grandmother devised a plan with two of the children to take them home from school one day and never bring them back to their father’s home. The grandmother carried out this plan without telling the father or the two children’s older brother. These two children had no contact with their father and brother for almost a month because the grandmother was granted interim custody of these children pending the commencement of this third trial.

The grandmother insisted that it was up to the children to initiate access with their father, despite court orders saying otherwise. The grandmother also insisted that this was really the children’s law suit because she believed that they wanted to live with her and she was only representing them as they could not make a claim themselves.

The grandmother taught the children to dislike their father, his new partner and her child. The grandmother made all sorts of disparaging comments to the children about their father and stepmother, including that the father’s home was so lice-infested that the children had to be bathed with special shampoo every time they came home from their father’s house, and that their stepmother encouraged them to use marijuana.

The children told Ms. Freund-Bell, a social worker retained by the Office of the Children’s Lawyer to determine the best interests of the children, that they did not want to live with their father. Ms. Freund-Bell pointed out that the children appeared coached because they did not express appropriate emotions (e.g. anger or upset) when stating that they did not want to live with their father and because they equated their grandmother’s interests with their own.

The Decision

Justice Harper found that the grandmother was unfit to care for the children because of her unreasonable and harmful behaviour. In his words, the grandmother “made the children into litigants. Her conduct was destructive of the proper development and best interests of these children.”

As such, he granted custody of the children to the father and denied the grandmother and the mother access to the children. In order to repair the damage done to the relationship between the two children and their father, stepmother, brother and stepsister, Justice Harper ordered counselling to be paid for by the grandmother.

Key Points

This case is important for two main reasons:

1. it provides an example of when children’s wishes should be given little weight and
2.  it states that a determination of Parental Alienation is not necessary to make proper custody and access decisions.

1. Wishes of the Children

Justice Harper gave little weight to the children’s desire to reside with their grandmother because the grandmother’s behaviour gave the children such a distorted view about their father and stepmother that they did not have the capacity to understand the issues or appreciate the consequences of their expressed views.

He found “that the children’s expressions of discontent about their life with their father which gave rise to their views are not rational…that the children developed an unexplained distorted reality of their life with their father that was implanted in their minds and psyches by [the grandmother’s] actions and omissions…Given the unrealistic view held by the children…they do not have the ability to understand all of the relevant issues or the capacity to appreciate the consequences of making decisions relative to their custody.”

2. Parental Alienation

Justice Harper did not make a determination regarding whether this was a case of Parental Alienation. Counsel for the father argued that Parental Alienation evidence accepted in another case should be accepted as evidence in lieu of expert testimony in this case. Justice Harper did not believe that it was proper to accept a summary of expert testimony from another case because such evidence could not be scrutinized. He also did not believe that he could take judicial notice of Parental Alienation.

He went on to explain that a finding of Parental Alienation was not necessary in this case because the Best Interest of the Child test provided him with the framework he needed to make a proper custody decision. As he put it, “In this matter, I do not need expert testimony to help me draw the necessary inferences on the evidence. The concept of the best interest of the child is a legal concept and not a clinical concept. I will restrict my analysis to the factors set out in the Children’s Law Reform Act s. 24 in determining the best interest of the child.”