Law Times

PAGE 12 FOCUS November 8, 2010 • Law Times Court lets child intervene in alienation dispute BY JUDY VAN RHIJN For Law Times I n an unusual move, the On- tario Court of Appeal has allowed a 16-year-old child with special needs to intervene in an appeal against an order for a change of custody and special counselling in a case involving alleged parental alienation. Th is particular instalment of the parental alienation litigation in S.G.B. v S.J.L. began after Ontario Superior Court Justice Ruth Mesbur's ruling in the case on June 30. Mesbur ordered a change of custody for J.B., who had been living with his father and older brother. She ruled it wasn't appropriate for the Offi ce Looking for new business leads? an enhanced listing on Looking for new business leads? an enhanced listing on CANADIANLAWLIST.com works f CANADIANLAWLIST.com works for you! ou! Get an enhanced listing on enhanced listing on www.canadianlawlist.com. 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It's Canada's most popular and reliable online network for the legal community, bringing thousands of lawyers together with clients year. of the Children's Lawyer to be in- volved and didn't hear evidence from the child before ordering him into treatment before mov- ing to his mother's home. Th e father appealed and ap- plied for a stay, which the court dismissed. Four days later, J.B. successfully applied for a stay. Th e mother then appealed to set aside the stay but lost at that stage. At that point, the child applied for intervener status, which the court granted over the mother's opposition. In deciding to grant intervener status to J.B., the Court of Ap- peal said: "J.B. satisfi es all three elements of r. 13.01(1), any one of which would be suffi cient. He obviously has an interest in the subject matter of the proceeding: his custody. He may be adversely aff ected by the judgment of the trial judge or of this court in the sense that he may object to the terms of his custody and may not obey one or more of those terms. Finally, the questions of fact and law in the proceeding are com- mon to his parents and to him." Th e court then said it still had discretion to refuse, which in an ordinary custody case it would be rare not to, but found this was no routine matter. It found that J.B., despite having the emotional maturity of a 13-year-old, is an intelligent young man and has reached the age at which his voice is entitled to be heard, especially as the court order would change his life dramatically. It also said it would benefi t the panel to hear J.B.'s perspective on these "im- portant and diffi cult issues." Jeff ery Wilson of Wilson Christen LLP who represented the child, gave his views on the original decision in his com- mentary in the Ontario Fam- ily Law Reporter. He objects to the trial judge's decision to give the mother permission to hire transporters to take J.B. for treatment. "According to her honour's ruling, J.B. was to have no rights at all," Wilson wrote. "His mother was to as- sume all of the attributes of his legal identity and voice, every- thing from holding his passport, making every decision about his health needs, and deciding when he could use a cellphone or have access to the Internet." Wilson had previously repre- sented children in mental-health and criminal matters, but this was his fi rst child client in a pri- vate custody dispute, a type of q Send me 1 year of Law Times for only $159.00 (plus applicable taxes) Name: __________________________________________________________________________ Company: _______________________________________________________________________ Address: ________________________________________________________________________ City: ____________________________ Prov: _______________ Postal Code: __________________ Tel: ( ) _______________________ Fax: ( ) ______________________ Email: ____________________________________________________________________________ q Payment enclosed q Charge my: q Visa q Mastercard q American Express Card #: __________________________________ Expiry Date: ___ / ___ (mm/yy) Signature (required): ________________________________________________ Date: ________________ 240 Edward St. Aurora, ON. L4G 3S9 Tel: (905) 727-0077 Fax: (905) 841-4357 Mail or fax this form to Law Times www.lawtimesnews.com LT Sub ad - 1/4-3X.indd 1 9/17/10 9:19:28 AM 'According to her honour's rul- ing, J.B. was to have no rights at all,' writes Jeffery Wilson. case in which the Offi ce of the Children's Lawyer would nor- mally play a role. "Th e Children's Lawyer is not the only shop in town," he wrote. "Th e Court of Appeal found J.B. didn't need a litigation guardian in this case. It would have been a provocative move to appoint one. Th e Chil- dren's Lawyer takes a best inter- ests role that may be contrary to the child's position. I treat chil- dren the same as anyone else." Jaret Moldaver of Teplitsky Colson LLP was the lawyer for the mother who opposed the intervention. "It would seem to me that the courts are not trying to promote children intervening in usual custody and access cases in a way that would likely open the fl oodgates," he says. "Th ere were unusual circumstances in this case that would likely not extend to other cases." Jan Weir, who appeared for the father, is more concerned about what happens to kids deemed victims of parental alien- ation. In fact, he was alarmed to learn that the child involved in the fi rst Canadian case in which custody changed in response to parental alienation attempted to kill his mother and that the children involved in the fi rst two matters were committed to men- tal institutions at some point. As a result, Weir asks whether such measures were really necessary and is calling for an independent review of treatments for parental alienation. "One thing to keep clear is that it is not controversial that the phenomenon exists," says Weir, noting his concern is with the notion that the alienation is the fault of the accepted par- ent and that the rejected parent is innocent. "A child may not be totally brainwashed. Th ere may be some accurate percep- tion, whether justifi ed or not, from the kids. Th e other par- ent may feed on it, but it may be that the rejected parent is partly to blame." But in this particular case, the outcome was positive. Wil- son reports that once he had intervener status, J.B. decided he would voluntarily go to treat- ment and live with his mother until his 17th birthday in June. Moldaver notes the treatment was successful, as is the current living arrangement. LT www .lawtimesnews.com Includes a FREE digital edition!

• Cover
• Revising Retainers
• Victim Impacts
• Focus On Family Law