Law Times

Law Times • June 21, 2010 An online resource tool 1.800.263.3269 ntitled-6 1 1/28/10 4:34:45 PM Focus On FAMILY LAW Appeal court makes 'anomalous' ruling Decision upholds order barring father, three siblings from access to child BY ROBERT TODD Law Times ed — highlights the gravity the court attaches to cases of parental alienation syndrome. In C.S. v. M.S., the appeal court up- A held Superior Court Justice Craig Per- kins' February 2007 decision, which gave C.S., the mother, custody of her and her husband M.S.' youngest child, M. On top of that, Perkins barred three other children of the marriage from having access to M.; issued a restraining order keeping the father from contact- ing his ex-wife or M.; and awarded the mother costs of more than $320,000. Perkins' ruling followed what the ap- peal court described as a "long (18 days) and contentious trial with many wit- nesses and a mountain of documentary evidence." Th e appeal decision — from a panel including justices Stephen Goudge, James MacPherson, and Jean MacFar- land — found that M.S.' argument fo- cusing on parental alienation syndrome was "misconceived." However, the deci- sion appears to have been based on an overwhelming concern that M. would become a victim of the syndrome. Th e judges found that, while the three oldest and now adult children of the marriage were alienated from their mother, M. wasn't a victim of alienation. Th e panel noted as well that the focus of the trial was on M.'s best interests. "Th e father had taken aggressive and persistent steps to alienate his other children from their mother," the panel wrote. "Th e likelihood of this continu- ing with M. if the father had access to her was virtually certain." Th erefore, the appeal court pointed out, the trial judge found the risks to M., if the father had access to the child, were too great. 'There is no other case in the country where access to a child from the age of 10 to 18 has been terminated,' says George Callahan. Perkins also found that the father and two oldest children disobeyed a court order placing the third child in foster care while "very serious protec- tion concerns" were handled, accord- ing to the appeal court's summary of his fi ndings. "I have no reason to have confi dence that the father or the older children would respect terms of a new access or- der, such as terms prohibiting negative comments about the mother or pres- sure on the child to move to the father's home any more than they have respect- ed previous court orders on various sub- jects," said Perkins. Th e trial judge went on to express his doubt in the father's willingness to help the three oldest chil- dren reconcile with the mother. Th e Court of Appeal panel agreed with Perkins' analysis, concluding that barring access to the father and siblings was in M.'s best interests: "Th e inclusion in the access order of the other children who are alienated from their mother is justifi ed by the fi nding that the father has engaged them in his cause and that they operate as a single camp." Th e panel went on to back what it called a "very large award" of costs to the mother. It again supported the trial judge's analysis of the factors prompting the signifi cant award. Per- kins wrote: "In this case, the father has acted in bad faith over a long period of time, in relation to more than one is- sue, and on many occasions. Th e con- sequences of his bad faith have been a vastly prolonged and more expensive court case and vastly increased emo- tional damage." For his part, M.S.'s lawyer, George Callahan, says the case remains "anoma- lous" in Canadian jurisprudence. "Th ere is no other case in the country where access to a child from the age of 10 to 18 has been terminated," he says. "Th is was a case of high confl ict, but recent Ontario Court of Appeal decision — which the appel- lant's lawyer calls unprecedent- there are cases where the confl ict was equally severe and a completely diff er- ent remedy, a therapeutic remedy, was imposed. It's my view that the therapeu- tic remedy should have been imposed." Callahan notes it's also unprecedented for a Canadian court to prevent one sib- ling from contacting another sibling when they're not parties to the application. For her part, C.S.' lawyer, Sheilagh O'Connell of Legal Aid Ontario's fam- ily law offi ce in Toronto, says the case demonstrates the need for courts to identify high-confl ict family law cases early on. Doing so is particularly im- portant where parental alienation could become a factor, she notes. "In this case, the assessment of the family situation occurred a little too late and it was quite a lengthy assessment. I wonder, if there had been a very early identifi cation at the outset that this was a high-confl ict situation and there had been an immediate assessment and recommendations by the appropriate mental-health professionals, [whether] it may have assisted this family." Both parties consented to an assess- ment in April 2003, but it was delayed until the winter of 2004 and fi nally took place on Feb. 17 of that year. "By that point, the parties were very embroiled in a really diffi cult, high-con- fl ict case," says O'Connell, who notes poor case management in which various judges handled the matter at diff erent points may also have thwarted quick identifi cation of the heightened stakes. In the meantime, Callahan says the cost award is likely to force M.S. into bankruptcy. Callahan, who says leave to appeal to the Supreme Court of Canada won't be sought, calls this case one of the most diffi cult of his career. "Th is had been, from my perspective, an extraordinarily complex, very diffi cult appeal to perfect and to get access to the exhibits and what was necessary to perfect." LT PAGE 9 Stay on top of new case law A weekly email alert to keep you up to date in criminal law. Subscribers receive an e-mail bulletin of case summaries of recent court decisions in the criminal law area. The summaries are arranged by topic and are linked to the case digest and the full-text decision in pdf format. Family Law Sub-topics include: • adoption • child welfare • custody • divorce • domestic contracts • property Visit canadalawbook.ca and click "Access online products" to sign up for our no-obligation free trial service. Annual subscription $410 • P/C 0534700999 • Each additional recipient $23 • P/C 534710999 • support For a 30-day, no-risk evaluation call: 1.800.565.6967 LT0621 CaseAlert-Family (LT 1-4x5).indd 1 Canada Law Book is a Division of The Cartwright Group Ltd. Prices subject to change without notice, to applicable taxes and shipping & handling. www.lawtimesnews.com 6/16/10 11:39:00 AM

• Cover
• Charter Rights
• Dodging A Bullet
• Focus On Family Law