Judge called case an 'extreme case of resist and refusal dynamics'
In what Justice Heather McGee called an “extreme case of resist and refusal dynamics,” the Superior Court has granted a father primary care and decision-making responsibility over two children while suspending the mother’s parenting time for 90 days.
In S. v. A., 2021 ONSC 5976, the parents separated in 2016 and sought a divorce and resolution of parenting issues.
During litigation, the trial court found that the mother presented two parallel and competing narratives. On the one hand, she claimed that she wanted her sons to have a relationship with the father, consenting to orders for parenting schedules to normalize the father’s parenting time. On the other, she intentionally undermined these orders. She twice attempted to sabotage reunification counselling with allegations of sexual abuse against the father, which have been proven false. She had also encouraged her six-year-old son to accuse his father of sexually abusing his four-year-old brother.
In her decision, Justice McGee considered the four options set out in A.M. v. C.H., 2019 ONCA 764 when a parent is unwilling to support the development of a child’s relationship with the other parent. Of these options, she rejected three – doing nothing, leaving the children with the mother and ordering her to attend counselling, or providing a neutral transitional placement for the children.
Doing nothing would permanently remove the father from the lives of his children, as exhibited by the mother actively restricting the father’s parenting time, said Justice McGee. The mother’s intentional undermining and sabotage of the reunification process and her unwillingness to return to reunification therapy rules eliminate the second option. As to transitional placement, two child protection societies have chosen not to issue applications, and neither parent has proposed a third-party interim caregiver.
Therefore, said Justice McGee, she was left with the option of transferring primary care of the children to their father and granting him responsibility for decision-making. The court found that he was a capable parent and consistently demonstrated a willingness and ability to meet the children’s needs throughout the extraordinary series of personal attacks and setbacks.
In determining parenting time, the trial judge considered the mother’s efforts to undermine the previous orders and her open acknowledgment that there had been no contact between the children and their father throughout the trial. As a result, McGee suspended the mother’s parenting time and ordered a 90-day period of non-contact with certain exceptions to allow the children to become established in their father’s care.
“There is a great deal of recovery work to be done. … The losses that have accumulated over the last five years … may yet be recoverable. I worry that the losses of an ongoing conflict – particularly to the rest of the [children’s] childhood – will not be,” said Justice McGee.
Counsel for A, the mother, advised Law Times that the matter is being appealed.