Mar 31, 2020

Appeal Court Upholds Reversal of Custody Due to Alienation

B(RM) v B(DT), 2020 ABCA 11 (CanLII)

The father and mother separated in 2011 and enjoyed shared parenting for six years. In November 2017 the father brought an application to have physical custody of his 11 year-old daughter after obtaining a Views of the Child report. The author of the report expressed concern that the child’s viewpoint and language were atypical of a girl her age.

In January 2018 the girl began living full-time with her father and refused to see her mother. Later in January 2018 the court ordered that the parties return to a shared parenting regime and attend counselling. Six months later the case management judge ordered the girl to have week/on week/off parenting with each parent; that her brother reside with his mother; that mother and daughter attend counselling; and that the orders be enforced with police assistance as required.

Two months later a further order provided that mother would parent her son, the daughter would live with her father and each child would spend weekends with the other parent. Another counselling order was made requiring both parents to attend. The counselling commenced three months later but was abandoned by February 2019 due to a lack of participation by the father. The same month the son left his mother’s home, despite the court order, and returned to live with his father. The Court observed that the father did nothing to facilitate his son’s return to the mother’s home.

A month later the Court ordered an expedited three-day hearing and ordered counselling for the children and separate counsellors for each of the parents. In April of 2019 the Court ordered the mother to have parenting time every second weekend with her daughter, and shared parenting of their son. The court order contained this provision:

“this gives [the father] an opportunity to demonstrate to the court at the June hearing that he is willing and able to facilitate parenting time to [the mother]

if the [father] can demonstrate to this court that he will abide by this Order, the risk his parenting time in June 2019 will be suspended is decreased.”

Despite these orders the mother had no contact with her children.

The expedited hearing occurred in August 2019 over four days. The court heard from three experts who had been involved with the family. The Court determined that each parent had engaged in alienating behaviour and made derogative statements about the other parent.

However, the judge found that the father’s behaviour had instigated the family problems and that if it continued, the children would suffer continued harm. As well, because the previous orders of shared parenting were unsuccessful, the remaining options were to do nothing and leave the children with their alienating father, or direct a custody reversal by placing the children with the rejected parent.

The judge’s conclusion was that the mother would have primary parenting and sole custody of both children, with the father having no contact with the children. The father was also found to be in contempt of five previous orders commencing in January 2018.

The father’s grounds of appeal, which included challenging certain factual findings; asserting that the chambers judge misapplied the best interests test; and seeking to introduce fresh evidence, were rejected, but most notable was his utter failure to offer a viable solution. What he wanted was the return of the children…a complete non-starter.

What this case illustrates is the Court’s apparent inability to provide timely solutions to egregious situations…the alienation in this case began in 2017 and it took until January 2020 to craft a solution that would end the father’s reign of control and obstruction.

We need to do better than this.