On a family law motion for contempt in B.C., having found the mother in contempt for not abiding by court-ordered access, under what circumstances will the court order a custody reversal?

[2] The backdrop to these applications involves a tangled web of conflicting orders in competing family law proceedings from this jurisdiction and from Italy, where the mother moved with the child after the father commenced a divorce action in this jurisdiction. The predominant issue in the action was the custody of the parties’ child. Following the child’s wrongful removal by the mother, the father made a Hague Convention application in Italy seeking the return of the child. That application was ultimately unsuccessful when the Italian courts declined to order the return of the child pursuant to Article 13.

[3] At the time of the child’s removal to Italy there were interim orders for joint custody and joint guardianship of the child of the marriage, with primary residence to the mother and reasonable and generous access to the father. Pursuant to a court order, Dr. Elterman was retained to prepare a psychological assessment of the parties in which he was also tasked with investigating the issue of harm to the child after the presence of Clozapine was detected in the child’s system. Each party accused the other of administering the drug. Dr. Elterman, however, recommended that the issue be put to rest as in his opinion neither parent would intentionally harm the child. Following his report, access was varied giving the father unsupervised access on specified dates.

[4] Shortly before a scheduled July 17, 2009 visit by the father, the mother fled the jurisdiction and took the child to Italy where she and the child remain to this date. This resulted in an order in the divorce action that the mother return the child to this jurisdiction and surrender the child’s passport (July 21, 2009), and an order that the mother pay costs of those proceedings (August 6, 2009). On August 28, 2009, the mother was found in contempt of the July 21, 2009 order and the father was awarded special costs.

[5] The trial of the divorce action proceeded in late 2009. Although encouraged by the trial judge to do so, the mother chose not to return to this jurisdiction for the trial. She was permitted to participate in the proceedings by telephone from Italy but not to give evidence although she was represented by counsel who called two witnesses on her behalf. On December 14, 2009, while judgment in the action was under reserve, the mother was found in further contempt for non-compliance with the August 6, 2009 order, ordered to appear before the court to address the finding of contempt, and if she failed to comply to be sentenced to 10 days in jail, such sentence to be suspended until January 15, 2010. On December 16, 2009 a warrant was issued for the mother’s arrest on a criminal charge of contravening a custody order made by a court, contrary to s. 282 of the Criminal Code, R.S.C. 1985, c. C-46.

[6] On January 15, 2010, the trial judge gave reasons for judgment for the final order in the divorce action. In the course of her reasons, the judge found no evidence that the father had administered Clozapine to the child. After considering Dr. Elterman’s report, she concluded that it was in the best interests of the child to have a relationship with both of her parents. She also found no basis upon which to conclude that the mother would comply with any court order regarding access. Accordingly, she awarded sole custody of the child to the father on the basis that it was in the child’s best interests to be in the care of a parent who could provide for her needs and also facilitate a relationship with the other parent. She also ordered the father to continue to pay child support until the mother returned the child to his custody, as child support was a right of the child.

[7] The mother attempted to appeal this order, however, she required an extension of time to file her notice of appeal. That application was dismissed, in large part because of her non-compliance with the B.C. court orders, and no further steps were taken.

LEGAL TEST

[14] The test for the variation of a permanent custody order was recently considered by the Supreme Court of Canada in Goertz v. Gordon (unreported), May 2, 1996, Registry No. 24622. In that case a variation was sought when the custodial parent proposed to move to Australia. Writing for the majority, McLachlin J. at paragraph 49 summarized the law applicable on variation applications in the context of that case as follows:

The law can be summarized as follows:

1. The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating as material change in the circumstances affecting the child.

2. If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them.

3. This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.

4. The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent’s views are entitled to great respect.

5. Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case.

6. The focus is on the best interests of the child, not the interests and rights of the parents.

7. More particularly the judge should consider, inter alia:

(a)the existing custody arrangement and relationship between the child and the custodial parent;

(b)the existing access arrangement and the relationship between the child and the access parent;

(c)the desirability of maximizing contact between the child and both parents;

(d) the views of the child;

(e)the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child [not relevant in this case];

(f) disruption to the child of a change in custody;

(g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

[15] Goertz involved an application to vary custody in the context of a custodial parent’s proposed move to Australia. Since the parties in this case reside approximately 15 minutes from each other, that specific issue is not involved here. However, the passage I have quoted from Goertz has general application to variation applications and are, in my view, the principles I must apply to the facts in this case. These principles were aptly summarized by McLachlin J. in the final sentence of paragraph 50 as follows: 'The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new?'

DESIRABILITY OF MAXIMIZING CONTACT BETWEEN THE CHILD AND BOTH PARENTS

[49] Clearly if I consider solely the goal of maximizing contact between the child and both parents, there would be a certain logic in reversing custody. The respondent says and I accept her evidence that if this occurs she will support generous access for the petitioner.

CONCLUSION

[50] However I return to what I said at the outset of these reasons: in this case with a 12 year old boy who expresses a strong and clear wish to remain with his custodial parent, can reversing custody be said to be in the best interests of the child? I have earlier referred to the dispiriting nature of the decision that this case requires me to make. I am really in the position of having to choose the option that is the least harmful to the child. Attempting to force Dash to leave the parent whom he loves and with whom he wants to remain would clearly be a draconian outcome. Yet in this case a failure to reverse custody could be viewed as rewarding or at least not punishing custodial parent misconduct.

[51] However custodial parental misconduct ought not to drive a custody decision except to the extent that such misconduct impacts upon the child's best interests. In the case at bar I believe that the clearly articulated wish of the 12 year old child outweighs the negative probability that, if he remains in the petitioner's custody, his relationship with his mother will continue to suffer.

[52] On the facts of this case I do not believe the best interests of this child would be served by reversing custody. Dash is 12. He is an intelligent and articulate child. He wants to remain where he has always been, with his father. Although his father’s conduct towards his mother can only be characterized as appalling and although that conduct has in large measure caused the access difficulties in this case, I am not convinced that this justifies a change in custody. This is not a case where a 12 year old wants a change and the court must consider how much weight to attach to the child's wishes. This is a case where the child wants to remain where he is and in such a case with a child of this age, the court, if satisfied as to the capacity of the custodial parent, should be wary of taking what would be the drastic step of ruling that a 6 year old custody order be reversed.

[53] However I am also of the view that the court must do what it can to facilitate access. There is no good reason why Dash should not have regular access visits with his mother after this case is concluded. The constant theme of the petitioner throughout this case has been that the pending litigation has been a principal reason for Dash’s unwillingness to see his mother. By these reasons (at least pending any appeal) I have removed any threat that custody will be changed. It is in Dash’s best interest that regular access visits with his mother should resume. Those access visits should be structured in such a way as to recognize the fact that he is maturing and he should have some flexibility. But it is vitally important that Dash have a relationship with his mother. Notwithstanding the fact that the respondent abandoned her claim for this alternative relief in argument, I am prepared to respecify access in terms that will hopefully accomplish the foregoing objectives. After consulting with their respective clients and Dash, counsel are at liberty to apply if the court can assist in such respecification.

[4] As with similar successful reunification programs in the United States, the FRRP requires a number of court orders to be made to ensure as reasonably as possible the success of the program. The father therefore seeks an order that is sometimes referred to as a custody reversal order, so that he has interim sole custody, sole guardianship and primary residence to the exclusion of the mother until further order; an order that until such time that the children are reunited with the father, that the mother have no direct or indirect contact with the children; and an order for a police enforcement clause.

[...]

[61] The father seeks an interim order for sole guardianship and custody, and an order for primary residence of the children, thereby varying the order of Mr. Justice Smith made May 21, 2010. Before the court makes a variation order in respect of a custody order, the court must satisfy itself that there has been a material change in circumstance such that what was previously ordered is no longer in the best interest of the children. Section 17(5) of the Divorce Act, R.S.C. 1995, c. 3 (2nd Supp.) provides:

Factors for custody order

17 (5) Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change.

[62] In making a variation order, like the original order, the court must give effect to the principles that the children should have as much contact with each parent as is consistent with the children’s best interests. Section 17(9) of the Divorce Act provides:

Maximum contact

17 (9) In making a variation order varying a custody order, the court shall give effect to the principle that a child of the marriage should have as much contact with each former spouse as is consistent with the best interests of the child and, for that purpose, where the variation order would grant custody of the child to a person who does not currently have custody, the court shall take into consideration the willingness of that person to facilitate such contact.

[63] I find that there has been a material change in circumstance since the order of May 21, 2010 was made: the children have become the product of alienation as a result of a number of family related factors, and until Dr. England released her September 11, 2013 report, the children had little contact with their father in the preceding year.

[64] The Family Law Act also provides that in making an order respecting guardianship, parenting arrangements or contact with a child, the parties and the court must only consider the best interests of the child. Section 37 provides:

Best interests of child

37 (1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only.

(2) To determine what is in the best interests of a child, all of the child's needs and circumstances must be considered, including the following:

(a) the child's health and emotional well-being;

(b) the child's views, unless it would be inappropriate to consider them;

(c) the nature and strength of the relationships between the child and significant persons in the child's life;

(d) the history of the child's care;

(e) the child's need for stability, given the child's age and stage of development;

(f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;

(g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;

(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs;

(i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;

(j) any civil or criminal proceeding relevant to the child's safety, security or well-being.

(3) An agreement or order is not in the best interests of a child unless it protects, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being.

(4) In making an order under this Part, a court may consider a person's conduct only if it substantially affects a factor set out in subsection (2), and only to the extent that it affects that factor.

[...]

[83] I am fully aware that the children may likely be distressed at having to attend FRRP - but the court is required to give consideration to a child’s best interests in the long term, and not the short term. In A.A. v. S.N.A., 2007 BCCA 363, the Court of Appeal states at paras. 27 and 28:

[27] We are of the view that in so concluding, the trial judge erred in law. We agree with counsel for the appellant that the trial judge wrongly focused on the likely difficulties of a change in custody – which the only evidence on the subject indicates will be short-term and not “devastating” – and failed to give paramountcy to M.’s long-term interests. Instead, damage which is long-term and almost certain was preferred over what may be a risk, but a risk that seems necessary if M is to have a chance to develop normally in her adolescent years. As Ms. Label argued, it was a contradiction in terms, and legal error, for the trial judge to state that M will be damaged by continuing in her mother’s custody, but to order that she remain in exactly that situation. The obligation of the Court to make the order it determines best represents the child’s interests cannot be ousted by the insistence of an intransigent parent who is “blind” to her child’s interests.

[28] While it is obvious that no court should gamble with a child’s long-term psychological and emotional well-being, the trial judge’s findings show that the status quo is so detrimental to M that a change must be made in this case. Although M has not been permitted to have a normal relationship with her father for two years, the expert opinion suggests she will succeed in adjusting, although the process will be difficult.

[84] I conclude that there the order sought for interim sole custody, guardianship, and primary residence in favour of the father should be made.

[1] In determining issues of custody, access and guardianship the paramount consideration is the best interests of the child. This includes promoting maximum contact with the non custodial parent consistent with the best interests of the child. Though both parents may be loving, concerned, and caring, the focus is on the best interests of the child and not on the parent other than to determine which parent is best able to ensure the best interests of the child.

[...]

[17] I will disregard the substantial hearsay evidence and irrelevant evidence which I heard, bearing in mind the focus is on the best interests of the children and not on the parent, other than to ascertain which parent is best able to ensure the best interests of the children.

[...]

[21] Counsel for the plaintiff has acknowledged he has an uphill battle for custody because the plaintiff had no contact with Rene for over a year and he had only a few short supervised visits with Ryan since February, 1996. He argues that this custody application is not motivated by malice or a desire to control Ms. Mitchell or the children. Rather, it is motivated by a genuine concern for the children. Counsel submits that realistically he doesn't pretend that the court will take the day to day care of the children from the mother unless it has been established that Ms. Mitchell has a serious out of control drinking problem or she has interfered with access to the children. He submits Ms. Mitchell has hindered access to Ryan by consistently frustrating or denying access and this is reason enough to reverse custody or to make an order for joint custody. With respect to Rene, counsel submits the plaintiff developed a parental relationship with her. He is concerned that she has been pressured and manipulated not to see Mr. Koch and he wants her investigated by a psychologist.

[...]

[49] In considering the problems with access I hesitate to attribute blame because in most situations no one person is solely responsible. It is clear, however, that Mr. Koch is not acting responsibly or reasonably by maintaining a rigid, hostile stance. He lacks insight into the potentially harmful effects of his behaviour on his child and he is not acting in the best interests of his child at the present time. The plaintiff will be given an opportunity to establish a bond with Ryan. However, the court must be mindful of the potential risk to such a young child and the necessity to provide protection. Until he demonstrates an ability to act in a responsible and reasonable manner, access will be supervised having regard to the best interests of Ryan.

[...]

[52] I conclude that the plaintiff's application with respect to Rene was probably motivated by malice and spite. That application was unjustified and unwarranted and has caused anxiety and harm to Rene. 

[53] There is no basis to change custody with respect to Ryan. I conclude Ms. Mitchell does not have an alcohol problem that interferes with her ability to care for her children. Ms. Mitchell has demonstrated a willingness to facilitate access between Rene and her father. I see no basis to conclude she will not facilitate access between Ryan and his father.

[76] Dr. Reay’s FRRP is designed for very serious or extreme cases of alienation. This is a serious case, but I consider a process that requires a reversal of custody to be a last resort, and I am concerned about the complexity of the issues involved here given my finding of risk.

[77] Dr. Reay was very clear in stating that the FRRP is not appropriate where a court has made findings that the rejected parent sexually abused the children. She was not prepared to disqualify this family on the basis of my finding of risk and was content to rely on Dr. Krywaniuk’s evaluation. Dr. Hervé’s report did not change her view, as she did not consider it to be a full assessment of this family’s dynamics. In reference to my findings that the alienation here was both real and pathological, she said that she has had cases like this but provided no details. She simply advised me that if issues arose during the process her team would immediately report back to court.

[78] I am not satisfied that Dr. Reay carefully considered my reasons for judgment and the nuanced complexity of my findings. In the context here, a reversal of custody could be traumatic for these children. I must be satisfied that all other methods have been tried and failed before I would consider an order that required these children to participate in the FRRP.

[79] For these reasons, I am not prepared at this stage to direct that the reunification counselling be conducted by Dr. Reay’s FRRP. It is my view that a less drastic process can succeed if conditions are put into place and followed.

[...]

[96] I have crafted this order in contemplation of the best interests of the children and I urge the parties to move forward with this process with the best interests of their children in mind.

[231] My focus has to be on the best interests of S.R.S. I find an immediate reversal of custody to be too severe for this situation. I must keep in mind Dr. Krywaniuk’s comment that S.R.S. is quite emotionally fragile and needs to be engaged carefully and sensitively. He will need assurance that his mother will survive emotionally and that she supports his relationship with his father. S.R.S. may not cope with being completely removed from the claimant’s care and placed in the respondent’s care.

[232] I have found that this is not a severe case of alienation. It is a hybrid case of estrangement bordering on alienation. The claimant has engaged in alienating behaviours. However, the respondent’s conduct toward the claimant and S.R.S., and his inability to see that he has any responsibility for S.R.S.’s estrangement has also contributed to the situation.