Changing Primary Care & Alienation

Often separated parents will hear from lawyers, judges, mediators and arbitrators that you cannot force a teenager to see one parent or the other. “Teenagers talk with their feet,” is a phrase that is used to describe the level of control parents have over teenaged kids in terms of enforcing custody and access. This can be compounded when one parent has alienated the children from the other. Over time that alienation can go so deep that the relationship is irreparable. This issue was recently adjudicated in the Ontario Court of Appeal in A.M. v. C.H., 2019 ONCA 939. In A.M., the Court of Appeal dealt with an appeal of a decision of Justice Nicholson where he ordered a 14 year-old boy to go live with his father in the face of extreme alienation by the mother. At first the child refused to go live with his father. Matters became worse when he was forced to go as he trashed his father’s home, physically assaulted his father, was arrested and then placed into a foster home. On appeal, the Court of Appeal upheld Justice Nicholson’s decision and awarded costs to the father in the amount of $40,000.00 for the appeal. Of note in the decision are the Court of Appeal’s comments that, since the incidents described above, the child apologized to his father and was now living with his father as per the direction of Justice Nicholson. In his weekly law review, Phil Epstein, Q.C. commented on this case as follows: “What this ultimate result may well say to judges and lawyers and even parents is that, in these kinds of extreme alienation cases, it may never be too late to do a custody reversal, even with a 14 year-old.” While Epstein may be correct, there are a number of factors at play when alienation has taken place and there is an attempt to reintegrate by the parent who castaway.