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The holidays are meant to be a happy time, a joyous time and most importantly a time for children to share with both parents. Sadly as many of you know this is not the scenario for the holidays if you are a man or father involved with the Family Courts in Ontario.

Parental Alienation and the denial of access by mothers are all too common occurrences. Rarely are the perpetrators of such crimes against children punished in the Family Court, rather these women are supported by the courts resulting in emotional harm to the very children these courts claim to act in the best interests of.

In this report I will provide you all with some very strong case law in which fathers were successful in exposing the alienation of their children and more appropriately were successful in obtaining court costs, a reversal of custody and in some cases contempt of court sanctions against their female spouses. I will also include relevant legislation from the Divorce Act and Children's Law Reform Act.

Section 16(10) of the Divorce acts speaks to maximum contact between children and each parent. I have provided section 16(10) below.

(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

Section 20 of the Children's Law Reform Act states that both father and mother are entitled to custody. Section 20 and relevant subsections can be found below.

20. (1) Except as otherwise provided in this Part, the father and the mother of a child are equally entitled to custody of the child. R.S.O. 1990, c. C.12, s. 20 (1).

Rights and responsibilities

(2) A person entitled to custody of a child has the rights and responsibilities of a parent in respect of the person of the child and must exercise those rights and responsibilities in the best interests of the child. R.S.O. 1990, c. C.12, s. 20 (2).

Authority to act

(3) Where more than one person is entitled to custody of a child, any one of them may exercise the rights and accept the responsibilities of a parent on behalf of them in respect of the child. R.S.O. 1990, c. C.12, s. 20 (3).

Of particular importance is subsection 4(a) which clearly indicates that separated parents are legally bound to promote a relationship between the child or children and the other parent.

Duty of separated parents

(4a) Where the parents of a child live separate and apart and the child is in the custody of one of them and the other is entitled to access under the terms of a separation agreement or order, each shall, in the best interests of the child, encourage and support the child’s continuing parent-child relationship with the other. R.S.O. 1990, c. C.12, s. 77

Access

(5) The entitlement to access to a child includes the right to visit with and be visited by the child and the same right as a parent to make inquiries and to be given information as to the health, education and welfare of the child. R.S.O. 1990, c. C.12, s. 20 (5).

RELEVANT CASE LAW

Orszak v. Orszak (2000)

In Orszak v. Orszak (2000) the court held that “failure of the custodial parent to permit access to the access parent may result in emotional harm to that child. Emotional harm is one of the grounds for finding that a child is in need of protection under the CFSA”.

Tremblay v. Tremblay, 1987

Citing Tremblay v. Tremblay, Madame Justice Trussler states, “I start with the premise that a parent has the right to see his or her children and is only to be deprived of that right if he or she has abused or neglected the children. Likewise, and more important, a child has a right to the love, care and guidance of a parent. To be denied that right by the other parent without sufficient justification, such as abuse or neglect, is, in itself, a form of child abuse”.

Fernandes v. Vukovic, 2006

21) Ms. Cindy Ross became the family's C.A.S. worker in June, 2003. She has had extensive contact with Jessica over the last 2 1/2 years. She has also familiarized herself with the C.C.A.S. file that goes back to 1995. Ms. Ross testified at trial that in her opinion the numerous allegations made by the respondent are "mostly unfounded and mostly ridiculous". Ms. Ross has conducted approximately 30 home visits with Jessica over the last 2 1/2 years.

31) There are heinous and ridiculous false allegations made against the applicant by the respondent from an allegation of masturbating in front of the child, to denying the father access because the court order was allegedly fraudulent. The applicant has been arrested several times, he has spent 3 days in jail awaiting a bail hearing on one occasion, he has been totally embarrassed and humiliated before the police, C.A.S., his former employer, his family, his friends, the court and his daughter among others.

32) The applicant had no criminal convictions prior to the separation and had been successfully employed for 24 years by Canada Customs and Revenue as an investigator. As a result of false allegations made by the respondent against the applicant, the applicant was terminated from his long-term employment. The applicant successfully grieved this termination and he was reinstated fully to his employment. The applicant testified, and I accept his testimony, that he felt that he could not return to work for Canada Customs and Revenue as he had been totally humiliated by the respondent's false allegations and he could not accept that his employer would have treated him so badly after 24 years of faithful service. The applicant elected to take an early retirement. He now lives on his modest Government Pension of approximately $22,000.00 per year

35) Ms. Vukovic has caused much waste of the precious resources of the C.A.S. and the police over the last 11 years. The applicant had extreme difficulty exercising access to Jessica after the separation in 1994. The respondent lied, manipulated and interfered in every way possible to alienate this child from her father. To the applicant and the child's credit the respondent has been unsuccessful to date in alienating the child from him. The applicant has been constant and faithful to his daughter. He endured 4 years of unnecessary supervised access imposed upon him due to the scandalous and false allegations of sexually inappropriate behaviour against him alleged by the respondent.

36) During the four year period of the supervised access order, the applicant attended each visit and spent positive, appropriate, loving time with his daughter. This court heard the testimony of Ms. Howe, the supervisor of the Peel Supervision Project. Ms. Howe has 18 years of experience with C.A.S. Ms. Howe was a professional, credible witness. She was very positive with respect to the 4 years of supervised access between Jessica and her father. She testified access always went very well. The applicant always came well prepared. The applicant and child were affectionate and the applicant did not ever do anything or say inappropriate High praise in my opinion considering his access was under a microscope for those 4 years.

Order

81) The court orders that:

1. The applicant (father) shall have sole custody of the child Jessica Antonia Ivanka Fernandes, born July 3,1993.

3. The respondent shall pay child support to the applicant in the amount of $ 421.00 based upon her present salary of $49,000.00 per year. The said child support payments are to commence on November 1, 2005 and to be paid on the first day of each and every month thereafter pending further order of this court.

11. The respondent is found to be in contempt of the order of Thompson J. dated June 7, 2001. It is clear that at the time that the interim interim custody changed to the father on February 26, 2002 the respondent was in breach. A change of custody by court order cannot be seen to purge a contempt. I am satisfied beyond a reasonable doubt that Ms. Vukovic's actions constituted the offence of civil contempt. It is also clear that her behaviour in frustrating access between Jessica and her father was contrary to Jessica's best interests. Jessica has a right to have a relationship with both of her parents. Jessica's current good emotional health is due primarily to her father's unwavering support and the stability that he provides to her.

12. The respondent shall pay a fine of $5,000.00 to the Treasurer of Ontario forthwith with respect to her contempt.

ADDITIONAL REASONS to judgment reported at Fernandes v. Vukovic (2006), 2006 CarswellOnt 159 (Ont.S.C.J.), respecting costs.

1) Mr. Fernandes was the successful party at trial and as such there is a presumption that he should therefore be awarded costs in this matter.

2) I concur with counsel for the applicant that the respondent acted in bad faith throughout the course of this entire matter. She made false allegations repeatedly, concerning Mr. Fernandes to his employer, Family and Children's Services and the police. Her behaviours have caused the applicant serious hardship financially,emotionally and psychologically. Her false allegations, outright lies, distortions, half-truths and complete falsifications left her with no credibility before this court and caused the applicant to be humiliated and financially devastated. As such, the applicant shall be awarded costs on a substantial indemnity basis pursuant to Rule 24(8) of the Family Law Rules.

3) On the other hand, I find that the applicant always acted in good faith and behaved reasonably towards the respondent throughout these proceedings, which have lasted 11 long years.

4) As such, Mr. Fernandes shall have his requested costs from the respondent on a full recovery basis to be paid forthwith, in the amount of $252,973.44 inclusive of disbursements and G.S.T. This quantum, although significant is not excessive based upon the tremendous work created by the respondent for the applicant's solicitor over an 11-year period. The respondent made 36 false allegations to Family and Children's Services that had to be investigated. Additionally, she made 31 false allegations to the police, which also had to be investigated. This was a total abuse of precious public resources by the respondent. There were innumerable court attendances and the applicant was even suspended from his job of 24 years due to false allegations made by the respondent. The quantum of costs is modest, considering all of the circumstances in this case.

M.H. v. C.S., 2007 ONCJ 326 (Canli)

[37] The applicant, Ms. M.H., was treated fairly and in a reasonable manner by the court but she has shown a complete disregard for the court’s orders although she was given plenty of time to comply with them.

[38] Her submissions to me lacked genuineness and were contradictory. Her children are suffering under the current access regime and she is seeking to proceed with a contempt motion, the basis of which is dubious at best. The depth of her contempt and disregard for the court was displayed by her when she walked out of the court as I was explaining the orders that I was going to make after hearing from all the parties. I realize that striking a party’s pleadings is an extraordinary and very serious thing to do; however, I think that all of the circumstances point to the fact that Ms. M.H. has no regard for the court and no intention of complying with its orders. It places the court in a position of ridicule to allow a party in these circumstances, who refuses to obey the court’s orders and who walks out on a judge who is giving reasons for his orders, to nevertheless continue to use the courts resources and jurisdiction to purse further proceedings, much less this dubious contempt motion.

[39] I consulted McLeod’s Ontario Family Law Rules Annotated 2006 (Toronto: Thomson Carswell, 2006), edited by David R. Aston et al., and the annotation under subrule 14(23) says that the law is clear that to strike a party’s pleadings is an extreme remedy that should be used sparingly with utmost caution. I also understand that there must be clear evidence of deliberate default and a complete disdain for orders of the court. I find as a fact that these circumstances exist in this case and, therefore, I proceeded with the matter as an uncontested trial.

If you have taken the time to read the case law above I am sure you will agree that the denial of access is Child Abuse in one of the worst forms. There can be no doubt that women who deny fathers access to their children are child abusers and should be punished accordingly by the courts.

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