Ene v. Ene, 2015 ONSC 867

This case considers whether a young child should be temporarily removed from a parent’s care after that parent has engaged in a campaign of alienation against the other parent.

Background

The parties were married in 1990 and had two daughters, ages fifteen and four. On December 20, 2014 the Mother attempted to access files on the Father’s work computer. When he objected, a dispute ensued and the police were called. No charges were laid. The parties subsequently separated on December 23, 2014.

On Christmas Day, the Mother moved out of the family home and took the youngest daughter, T., with her. The older daughter, C., continued to reside in the home with the Father. The Mother retained counsel almost immediately and would not permit T. to visit the Father.

The Mother served and filed an Application on January 9, 2015, along with a notice for an urgent case conference and a notice of motion seeking immediate orders (copied from the Application). The parties attended the case conference on January 12, where the case conference judge encouraged the parties to normalize access. The Court did not hear the Mother’s motion.

On January 13, the following day, the Mother amended her motion and sought various substantive orders, including an order that the Father be restrained from contact with the Mother and T., sole custody of T., an order that the Father have supervised access of T. on alternate Saturdays, and that each parent have reasonable telephone access to each of the two children. The Mother filed ten affidavits from various individuals and sought to file further materials in support of her motion.

The motion was heard by Justice McGee of the Ontario Superior Court of Justice on January 28, after the parties had consented to some issues on January 14. At the motions hearing, counsel for the Mother advised the Court that the Mother had made a report to the York Region Child and Family Services the night before, alleging that the Father was abusive.

Analysis

At paragraph 70, the Court writes:

“The end of a spousal relationship does not terminate the parent – child relationship. Nor does it terminate a child’s fundamental need for love, attachment and the support of each parent. A parent who intentionally removes the other parent from his or her child’s life commits an abuse upon the child.”

The Court found that the Mother was not acting in T.’s best interests. For example, it was “shocking to the court to learn … that the mother had removed T. from a weekly activity [music lessons] that both parents agree she loves” (paragraph 54). The Court also found that the Mother’s allegations of physical abuse by the Father were so extreme that they lacked the ring of truth. The Court interpreted the Mother’s actions since moving out of the home as a personal or panicked response to the breakdown of the marriage.

The Mother’s evidence was voluminous; she had filed affidavits from the children’s pediatrician, the children’s principal, a school administrative assistant, a former counsellor for the mother, a housekeeper, and family and friends. The Court found that this evidence was largely irrelevant to the issue of the Father’s parenting time or else inadmissible. Further, the fact that the Mother rushed into a Court proceeding and involved these people in it even before the close of pleadings suggested that the Mother wanted the Father totally excluded from her life and their young daughter’s life.

The Court was also concerned that the Mother took no meaningful steps to pursue a relationship with her older daughter or to ensure that the two sisters spend time together. The Court found this to be the greatest harm caused to T., who was very close to her older sister.

A custodial parent has a particular duty to foster and protect a child’s relationship with the other parent. Finding that the Mother had a clear pattern of conduct contrary to this duty, the Court took immediate action and ordered that T. shall reside exclusively with the Father for a period of one month. After this time, the parents would follow a fixed schedule that gave them equal time with T. The Court felt that it was appropriate to intervene in this manner and at the early stages of the proceedings to give T. a period to recover from the abrupt changes in her life, to give the sisters significant time together, to provide the York Region Child and Family Services an opportunity to observe the Father’s parenting, and to provide each parent an opportunity to demonstrate that he or she can support the other’s role in T.’s life (paragraph 74).

In summary, the Court issued a temporary order so that the child would live with the Father for one month, followed by a shared custody schedule. This is an exceptional case where a Court intervened early on in a custody/access dispute to prevent one parent from engaging in alienating behaviour that is likely to cause long-term damage to the relationship between a child and the other parent. This was a well written and thoughtful decision by Justice McGee of the Newmarket Family Court.