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by Daniel Gloade on April 14, 2014

The case of Van v. Shilletto, 2014 ONCJ 104 is counter-intuitive to what many believe to be the law of the land.  The chronology is as follows:

  •  2002 Andy was born.  Mother and Andy stayed in Vietnam while Father immigrated to Canada
  • 2004 Mother and Andy immigrated to Canada and resided with the Father
  • 2004 Youngest daughter Selena was born
  • 2006 Father retired and therefore spent more time with the children
  • 2007 Mother gets job, Father is a stay-at-home parent.  Mother becomes friends with future Boyfriend, but they never reside together
  • July 2010 Mother and Father separate; Children went with Mother but Father xercises access every Saturday from 10:00 a.m. to 8:00 p.m.
  • February 2011 Father commenced paying child support
  • June 15, 2011, Consent order that Mother have custody and Father have access every Saturday
  • January 2012 Mother diagnosed with cancer.  She tells Boyfriend but they conceal illness from Father and children
  • July 16, 2012 Mother dies of Cancer. Mother designates Boyfriend as parent’s guardian.  Boyfriend moves into Mother’s former house.
  • Father brings Application for custody of the children.

There was an investigation from a clinical investigator from the Office of the Children’s Lawyer.

The Father’s conduct was admonished.  When Mother and Father were together, Mother was expected to live with the Father’s ex-wife and child of a previous marriage.  During the first custody dispute, the Mother accused the Father of abusive behaviour.  Finally, the Father continues to speak ill of the Mother and new Boyfriend in front of the children.

The O.C.L. critical investigator was also critical of the Boyfriend’s behaviour, however.  The Boyfriend told the children that the Father may have contributed to the Mother’s death by the Father’s failure to inform the Mother of his Hepatitis B.   The illness may have been successfully treated had the Mother known early on.  (The Father admitted giving the Mother Hepatitis B, but claimed that he informed the Mother).  The Boyfriend also read aloud from the court pleadings

The children blame the Father for the Mother’s death.  They now hated him.  They also criticize the Father because he fails to spend much time with them when he does exercise access.  They say that his access is boring.

Justice E. B. Murray held that the Boyfriend should have sole custody and the Father continue weekend access.  The children have always expressed a strong desire to reside with Mother and Boyfriend.  Although both Boyfriend and Father had exposed the children to the custodial conflict, the Boyfriend demonstrated a change in attitude and tried to encourage the relationship between the children and the Father.  The Father has never spoken fondly of the Boyfriend, however.

This is an extra-ordinary because biological Father has never been accused of bad parenting and was the children’s principle caregiver for years.  He lost custody to the Boyfriend, however, who never really got into a parenting role until the last two years. 

Several ideas appear to conflict:

  • Access parents are admonished for being the “fun parent” who takes children to activities while the custodial parent often must force the children to entertain themselves.  Yet the access parent can be criticized for not engaging with the children if they are left alone.
  • The courts are critical if a former spouse makes inquiries about the parent’s new spouse.  They consider such inquires “controlling behaviour” and a form of harassment.  This case shows, however,  just how relevant an ex-spouse’s new partner can be to the future of the children.
  • Exposing the children into an adult conflict harms the children and will be admonished by the courts.  The Boyfriend’s accusation that the Father may have contributed to the Mother’s death, however, likely did incalculable damage to the Father/children relationship.  What are the children’s best interests when the child is successfully alienated from one of the parents?  If you decide custody based on the children’s wishes, then parental alienation is an effective strategy for success.

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