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PROACTIVE STEPS TO AVOID PARENTAL ALIENATION DURING ACCESS

by Daniel Gloade on October 8, 2015

The Honourable Justice William H. LeMay made a comprehensive ruling in the decision of Jagbir Dhaliwal v. Sukhjinder Dhaliwal, 2015 ONSC 6172.  You can find the full text here.

The Father had a history of drug abuse.  He was undergoing regular testing, however, and he is now clean.

The Father had not seen the child for some time.  Early in the legal proceedings, the parties agreed that the Father would have supervised access (at a Centre run by the C.A.S.).  If things went well, the access would phase into unsupervised access.

The Father requested unsupervised access.  The Mother stopped all access and sited three reasons:

  • The past access visits didn’t go well;
  • The child did not want to see the Father (Child is six years old)
  • If access was to move from the CAS Centre to the Father’s home, there was no suitable individuals to supervise the access.  The child’s paternal grandmother was inappropriate because she allowed the Father to abuse drugs.

Justice LeMay reviewed the evidence and held as follows:

  • The C.A.S. notes show that the Father’s conduct was good.  The Mother, however,  was late for access and made comments suggesting that the Father’s access was unimportant.
  • The Mother wanted both hair follicle and urine tests for drugs;
  • The Mother adjourned this motion once and asked for a second adjournment;
  • Mother proposed that the child attend counselling instead of the Father’s Access

Justice LeMay held that the Mother was attempting to alienate the child from the Father.  He made the following Order:

  • If the CAS Centre was willing to host more access visits, the child would attend three more access visits with the paternal grandmother present.
  • If the CAS Centre was unwilling to host access visits, then the Father was to have access to the child at his home with the paternal grandmother.
  • Either way, the Mother was to
    • transport the child to and from the access visits,
    • speak positively about the Father
    • advise the child that access visit attendance was expected and not optional
    • ensure that the visits commenced and stopped within the allotted time
  • The paternal grandmother was to keep a log of what happens when she supervises the access
  • The Father, Mother and child would attend counselling.  The focus of the counselling was to stop the Mother’s alienation of Father from the child.
  • The parties (not just the lawyers) were to re-attend before the same judge approximately six weeks in the future.  The parties were to update the judge as to the progression of the child’s visits
  • The parties were to schedule the next step in the proceedings before re-attending court

The Office of the Children’s Lawyer was asked to be involved.

When a parent has not seen a child for a long period of time, the court often orders the following:

  • Access should be phased in from supervised to non-supervised;
  • Assuming that everything goes well, access will increase over time.

There are good reason for ordering these conditions.  If the residential parent does not want the other parent to exercise access to the child, however, these conditions can be abused by stating the following:

  • The access visits did not go well;
  • The child does not want the access visits to increase;
  • There is no suitable third party to supervise the visits. 

In general, leaving the access in the hands of the residential parent can be a bad idea if there is reason to believe that the residential parent is acting in bad faith.  Even if the residential party does not adduce evidence supporting these allegations, the his or her discretion becomes the benchmark when discussing further access.  If viable, future conflict should be avoided by having a fixed schedule.

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