Violante v Beun, [2014] WDFL 2907, 241 ACWS (3d) 161

This case addresses the issue of a variation of interim custody on the eve of trial due to a parent’s significant alienating behaviour.

Background

This case involves the issues of custody and access.  In particular, the father brought a motion to change temporary custody of the child of the marriage.  The parenting capacity assessor reported significant alienating behaviour by the mother.  As such, the parenting capacity assessor recommended an immediate change in custody.  The father launched this motion to change temporary custody in light of both the parenting capacity assessor’s recommendation and the supportive positions taken by both the Office of the Children’s Lawyer and Children’s Aid Society.  It is important to note that this motion was brought despite the fact trial was fixed on an expedited basis and was only 3 months away.

Analysis

In granting the father’s motion to change temporary custody, Justice Mesbur considered all the evidence that was before the court.  It was clear from such evidence that the Children’s Lawyer, Children’s Aid Society and the parenting capacity assessor were of all the same opinion – that an immediate change in custody was necessary.  Justice Mesbur stated in paragraph 7 of her judgment,

In forty years of doing this kind of work, I have never before seen a professional parenting capacity assessor, the Children’s Lawyer and a Children’s Aid Society all take such a strong and consistent position seeking an immediate change in temporary custody.

The evidence before the Court raised a sincere concern regarding the mother’s behaviour, as she attempted to alienate the father from the child.

In cases involving custody and access, the court’s primary guiding principle is the best interests of the child.  It was clear from the evidence that the behaviour of the mother was not in the best interests of the child.  Justice Mesbur held,

I am sufficiently concerned about the gravity and nature of the allegations that I am not prepared to risk any further potential harm to Ruthie.  The court’s sole and primary concern must be Ruthie’s best interest.  I, therefore, conclude that this is one of the rare an exceptional cases where an immediate change to temporary custody is necessary.

In so stating, the Court granted the father’s motion to change temporary custody.  This decision, despite the severity of the mother’s conduct, was significant as courts will rarely entertain a motion to change interim custody pending a trial.  Given the rise in research regarding parental alienation, it appears as though courts will be more willing to intervene at an earlier stage to prevent the ill effects of a party’s alienating behaviour.