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Erika MacLeod

Marginalizing a parent from a child’s life is a dangerous game that destroys separating families and has potentially lasting consequences on the physical and mental health of children.  For good reason, it also carries with it very serious consequences if challenged in court.  One of the most extreme remedies a court has available to it, is to transfer decision-making and primary care of the children to the other parent.

The recent case of Smart v Belland 2022 ONSC 5612 shows the process of how a transfer of decision-making and parenting responsibility might arise in a parental alienation case.  In this proceeding, an original contempt motion was brought against the mother and heard in January, 2021.  The Court found the mother to be in contempt of a court order for:

  1. failure to ensure that the parties’ 12 year-old daughter exercised her court ordered parenting time with the father;
  2. making decisions unilaterally without the father’s knowledge or consent contrary to the joint decision-making provisions of the court order; and
  3. failure to allow Facetime or telephone access contrary to the court order.

The judge in this case reserved her sanction for the contempt to a later date and strongly suggested that the mother purge her contempt by starting to comply with the court order and cooperate with the reunification therapy.

The sanctioning hearing was not heard until over a year later in August, 2022.  At the time of the second hearing, further evidence was submitted confirming that the mother was not cooperating with the reunification therapy causing it to be unsuccessful.  She was also continuing to refuse to comply with the parenting provisions of the court order.  Almost a year and a half later, the father had still only had very limited parenting time with his daughter.  As a result, the judge ordered the mother to:

  1. pay the costs of the reunification therapy;
  2. pay a fine to the father;
  3. register for and complete a course, namely, “”Parenting Through High Conflict Separation and Divorce”;
  4. comply with the court order; and
  5. if the mother continued to refuse to comply with the court order, the father could seek make-up time for the time that he missed with his daughter to date.

The mother was also ordered to pay 100% of the father’s costs of the proceeding of over $16,000.00.  In total, the financial cost of the contempt motion to the mother was more than $20,000.00 plus her own legal fees.

However, the most noteworthy part of this decision is when the judge confirmed the mother was engaging in parental alienation and that if she did not discontinue her behavior that the next step could be an even more serious one:

  • … in my view, the appropriate next step in this case, in the event Ms. Smart does not comply with the existing order, is a motion to change. This may be pursued by Mr. Belland with or without counsel. Ms. Smart should understand that in the context of that proceeding, her conduct in alienating B. from her father may be a significant factor which might warrant an order that B. reside with her father and that he have sole decision-making for her.

As one can see, it is only in the most serious of cases that a transfer of decision-making and parenting time will take place, but it is a very real possibility.

If you are experiencing or are being accused of parental alienation, our experienced lawyers can guide you through the steps to ensure that it is dealt with properly.  Contact us now to schedule a free consultation.

This article is authored by Erika MacLeod, an experienced Family Lawyer who is ready to assist you with any question you may have regarding your separation.

DISCLAIMERarticles provided on this website are intended to provide general information but do not constitute legal advice. We suggest that you consult one of our lawyers if you have a specific legal question or issue.