This case is about how much weight judges give to the views and preferences of teenaged children where the children have repeatedly stated that they do not wish to have contact with one of their parents.
The parties were married in 1999 and separated in 2011. The parties had two teenaged children, aged 13 and 15 years old at the time.
This was a high conflict case. The parties did not have effective communication with each other, and the children had a very strained relationship with their father.
At trial, the trial judge granted sole decision-making responsibility (formerly “custody”) of the two children to the mother, and parenting time (formerly “access”) to the father at the discretion of the children and based on their initiation.
The father appealed to the Ontario Court of Appeal (“ONCA”).
The ONCA concluded that forcing access with the father against the wishes of the teenaged children “would be counterproductive, detrimental to their emotional well being and likely futile in any event”. The evidence overwhelmingly supported these conclusions. The ONCA noted that the children’s opposition to court-ordered parenting time was rooted in their own experiences with their father, and not caused by parental alienation. In this case, the children had made it clear to everyone, including their parents and the Office of the Children’s lawyer, that they did not wish to see their father and that they no longer wanted to be involved in litigation or court-ordered interventions.
In this case, the trial judge put a significant amount of weight to the views and preferences of the teenaged children. The evidence established that the children are of sufficient age and maturity so as to warrant judicial respect for their positions on these matters.
The ONCA agreed with the trial judge that the mother should have full decision-making responsibility of the children, and that the father has parenting time at the discretion of the children and based on their initiation.