This riveting case involves a decision by the Ontario Superior Court of Justice to change custody from a mother to a father amidst allegations of the father’s sexual abuse of the children.

In addition, the decision saw a marked expansion of the role of mental health professionals by allowing a therapist to determine the mother’s access to the children pending a review of the court.

Background

The parties were married in 2004 and subsequently had two children, X & S. The parties separated in 2009, after which time the children’s primary residence was with the mother. Due to the mother’s concerns regarding the father’s mental health issues, as set out more fully below, the father’s access to the children was extremely limited and sporadic.

At trial, the father sought sole custody of the children with no access to the mother while she sought therapy for her issues. The mother sought sole custody, with supervised access to the father.

The case sets out a number of allegations by the mother against the father for sexual abuse and the trial involved lengthy testimony by members of the Children’s Aid Society, various police detachments, and numerous mental health professionals involved in treating the father and the children.

Analysis

Interestingly, despite her fervent and consistent allegations against the father of sexual abuse of the children, none of the allegations were ever substantiated by any of the numerous third parties involved.

While the father’s therapist confirmed a working diagnosis of Bi-Polar II, he was not found to present any kind of threat to the children.

Moreover, while the children were both found to have exhibited disturbing sexualized behaviors and a “disorganized attachment” to the parents, the court found that these behaviors could not be attributed to the father’s interaction with them.

Rather, the court found that the mother was extremely paranoid, unduly influenced by her own mother, and highly unlikely to foster any kind of meaningful contact between the father and the children.

As a result, while the court recognized and reiterated the principle of maximal contact between a child and his/her parents, it nevertheless found that the mother had deliberately undermined the children’s relationship with the father and moreover engaged in a “continual assault on the children’s psyche” to the point of not only parental alienation, but of actual harm to the children.

In the result, the court ordered an immediate change in custody from the mother to the father, recognizing its remedy as a “drastic solution”, but one warranted by the mother’s extreme irrational and paranoid behavior.

Among its other orders, the court also ordered ongoing therapy for the father and children and a restraining order against the mother and her family, prohibiting contact with the children or the father until further review of the matter by the court.

Finally, and notably, the court ordered that the mother could be permitted access to the children if the therapists involved in their care deemed it appropriate and beneficial for the children in furtherance of their treatment.

Since the decision was released, this particular edict of the court has come under criticism by both the legal and health care communities as a wrongful delegation of decision-making authority and one that could ultimately impede the goal of repairing the relationship between parent and child.

The parties were scheduled to return to court on July 5, 2012 at which time a date for review of the matter was to be set.