Joint Custody Ordered to Combat a Gatekeeping Parent: JY v LF-T 2019 ONSC 1718

In JY v LF-T, a judge’s decision to order joint custody was appealed by the mother on the grounds that a joint custody order was inappropriate due to poor communication between the parents. The judge ordered joint custody for the purposes of combatting the mother’s gatekeeping behaviors and ensuring the father had the ability to maintain a meaningful role in his daughter’s life.

Background

The appellant and the respondent are the parents of a daughter who is 8 years old. The daughter lives with her mother, her mother’s new husband and her half siblings. The trial tasked the court with making a custody and access determination. The trial judge ordered joint custody, primary residence with the mother, liberal defined access with the father, and numerous ancillary terms related to parenting arrangements. The mother had a history of ‘gatekeeping.’ This occurs when one parent is alienating the child from the other by engaging in gate-closing behaviors that hinder the other’s involvement with the child.

In this case, the gatekeeping behaviors included but were not limited to:

  • unilaterally giving the child her husband’s surname (not her biological father’s);
  • removing the child from the jurisdiction without prior notice to, or consent of, her father;
  • making false allegations of sexual assault against the father (for which no evidence was found); and
  • unilaterally determining when and under what circumstances the father would see his child, including insisting that access be conducted under her mother’s supervision at her mother’s residence.

Analysis

The court found that the mother was a competent parent who is more than capable of taking care of her daughter. The father was not seeking primary residence of his daughter. The court found that absent the gatekeeping behavior this would have been a straightforward case that resulted in an order of primary residence with the mother, defined access with the father, joint custody with some guidelines on decision-making processes.

In order to combat the mother’s gatekeeping actions, the trial judge found that joint custody was the best way forward with primary residence being with the mother. The judge stated that “when one parent seeks to marginalize the other parent, joint custody may be necessary to ensure one parent’s continued involvement in the child’s life.”

The appeal judge agreed with the trial judge’s determination that this was in the child’s best interests to ensure a meaningful relationship with both parents. It was stated that “gatekeeping is borne of a fundamental disrespect for the other parent, as a parent. An order for sole custody to the gatekeeping parent can reinforce that disrespect. Where, as here, parental conflict arises because of the gatekeeping, the intractable nature of the problem is obvious: awarding sole custody to the gatekeeper supports and rewards past gatekeeping and reinforces its lessons for the future”.

Notably, the trial judge warned that should the order not be adhered to, it may result in an order for sole custody and primary residence with the father because it would be the best solution to secure the father-daughter relationship. The appeal judge enforced these comments as the best course of action should the mother not stop her gatekeeping behaviors.

The trial judge cautioned the parents to consider that their daughter is beginning to reach an age where she understands more and that they need to be aware of what behavior they are modelling for her and that successful conflict resolution does not include name-calling, bullying, threatening, or false accusations. The appeal judge found that the order for joint custody was appropriate and therefore dismissed this ground of appeal.

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