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by Daniel Gloade on January 2, 2015

The case of Scott v. Lloyd, 2014 ONCJ 639 shows that legal actions, whether through separation agreements or court orders, need good faith for them to work.

The facts of the case are relatively simple.

  •  October 1996 Father and Mother cohabitated;
  • 12 February 1998 Daughter Anieca born
  • 7 May 2007 Father and Mother Separated.  Anieca lives with Mother
  • 10 October 2007 parties sign Separation Agreement.
  • 10 October 2007- December 2010 Father’s access to Anieca was sporadic
  • December 2010 Father’s access to Anieca ceases.  Mother states that Anieca does not wish to see him.

Separation Agreement:

  •  Mother has sole custody
  • Father has access to Anieca on a schedule to be agreed upon by both parties
  • Father pays Mother Spousal Support of $1000 per month until 2019.  This amount is the same regardless of Father’s income changes

The Mother brought a Motion to Change the court order because the Father underpaid child support.

The Father brought a Motion to Change seeking to end the Spousal Support because the Mother alienated Anieca from him.  The Mother stated that Anieca does not want to see the Father.

Justice Sheilagh Marie O’Connell agreed, from reviewing Reports from a Therapist, that Anieca has stated that she did not want to see her Father.  Justice O’Connell correctly summarized the law on this issue.  First, the child’s wishes do not decide the issue.  Second, the court must make a nuanced inquiry as to the stated wish, including:

  1.  how clear and ambivalent the wishes are;
  2. how informed the expression is;
  3. the age of the child;
  4. the maturity level;
  5. the strength of the wish;
  6. the length of time the preference has been expressed for;
  7. practicalities;
  8. the influence of the parent(s) on the expressed wish or preference;
  9. the overall context; and
  10. the circumstances of the preferences from the child’s point of view:

See Decaen v. Decaen, 2013 ONCA 218 (CanLII).

Justice O’Connell held that both parents were to blame for Anieca’s alienation from the Father.

The parties obtained an expert report from a counsellor.  The counsellor advised that the Father’s access to Anieca should be on a schedule based on the therapist’s discretion and that Mother, Father and Anieca should all receive individual counselling to deal with the conflict between Anieca and the Father.

Justice O’Connell held that although the counsellor’s recommendations would be useful, the court does not have the power to order a party to attend counselling.  Nor does the court have the authority to Order future child access to be at the discretion of a counsellor.

Justice O’Connell used her authority, however, to order that a therapist our counsellor supervise access.

The next issue was whether the Father could eliminate his spousal support obligation on the grounds of parental alienation.

The Family Law Act states as follows:

33 (10) The obligation to provide support for a spouse exists without regard to the conduct of either spouse, but the court may in determining the amount of support have regard to a course of conduct that is so unconscionable as to constitute an obvious and gross repudiation of the relationship.

33(4) The court may set aside a provision for support or a waiver of the right to support in a domestic contract or paternity agreement and may determine and order support in an application under subsection(1) although the contract or agreement contains an express provision excluding the application of this section,

  • if the provision for support or the waiver of the right to support results in unconscionable circumstances;

Justice O’Connell held that these provisions were equivalent and that similar reasoning should be used.

In this case, spousal support was upheld because:

  • Both parents were responsible for alienating the Father from Anieca
  • Eliminating spousal support was not a punishment that fit the misdeeds of the Mother.

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