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Parents Can Temporarily Lose Custody If They Alienate One Another

In Ene v. Ene the parties were married in 1990 and separated in 2014.

There are two children of the marriage, two daughters, aged fifteen and four. Following the separation, the Mother moved out of the matrimonial home and took the youngest daughter with her. The older daughter, continued to reside in the home with the Father. The Mother retained counsel and would not allow the youngest child  to visit the Father. The Mother also began to allege the Father was physically abusive.

The Mother brought a motion and sought various orders against the Father, including an order that the Father be restrained from contact with the Mother and youngest child, sole custody of the youngest child, an order that the Father have supervised access of the youngest child. The Mother filed ten affidavits from various individuals and sought to file further materials in support of her motion. The Mother’s evidence was voluminous, and the filed affidavits ranged 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.

Taking all the facts of the case into consideration the Court found that the Mother was not acting in the youngest child’s best interests. The Court found that the Mother’s allegations of physical abuse by the Father were so extreme that they lacked the ring of truth. 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 the youngest daughter, who was very close to her older sister.

At paragraph 70 the Court stated: “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.” Furthermore, the court advanced that 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 issued a temporary ordered that the youngest daughter shall reside exclusively with the Father for a period of one month. After this period, the parents would follow a fixed schedule that gave them equal time with the youngest child.

This is an exceptional case where the Court felt that it was appropriate to intervene in this manner and at the early stages of the proceedings to give the youngest child a period to recover from the abrupt changes in her life, to give the sisters significant time together, to provide the Child 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 the youngest child’s life. Ene v. Ene, 2015 ONSC 867