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Court Says: Don’t Use Kids in a “Tug of War”

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Court Says: Don’t Use Kids in a “Tug of War”

A recent Ontario decision illustrates the unfortunate and all-too-common scenario where divorcing parents have used their children in a push-pull designed to get back at each other.

In this case, the couple had two children, a boy aged 15, and a girl aged 11. When they separated after more than 22 years marriage, among the many issues to be sorted was which of them was to have primary residence of each of the children.

When they first split up in the fall of 2011, both children remained with the mother. However, at one point the 15-year old son got into an argument with her, and she was charged with assault (though subsequently acquitted at trial more than a year later). The son then moved in with the father, while the daughter stayed with the mother. The father’s existing child support obligations were adjusted accordingly, through proper legal means.

However during the 2012 Christmas break – and without explanation – the son moved back with the mother. As the court pointed out:

The son’s return to reside with his Mother has upset the Father. The Husband has unfortunately taken some drastic and unreasonable self help.

Specifically, the father retaliated by refusing to return most of his son’s belongings to the mother, including his winter coat, school uniforms, Health Card. He also unilaterally reduced his child support payments, and cut off the mother’s spousal

support payments altogether. The father and son also stopped talking to each other.

The mother was therefore prompted to bring a motion to court to have her full support entitlement restored.

Yet despite the rift and acrimony with his son, in court the father indicated he still wanted the boy to come live with him. He claimed that the mother had “psychological and emotional issues” that prevented her from being a good caregiver, and that she was volatile, erratic, and sometimes violent.

In assessing the scenario, the court pointed that the parents had previously allowed the son to choose who he lived with, so the father’s motives in trying to impose new arrangements at this stage were suspect:

[the son] is 15 years old. Given the history of this matter, [he] appears to be capable of making up his own mind as to where he will reside. He chose to live with his Mother until the assault took place. Then he chose to live with his Father. Then he chose to move back in with his Mother. Although with some bitterness and disagreement over access, the parties have, until now, respected [his] wishes as to his primary residence.

The Husband is no longer content to permit his son to determine with which parent he resides. The Husband now seeks to take him away from the Mother, a decision which the son made on his own.

The Father’s tying this decision by his son to financial support to the Wife and to child support is somewhat troubling and may be an indication there may be financial issues behind the Father’s motivation to get his son back to reside with him.

Furthermore, the problem with the father’s legal position was this: On the one hand he claimed the mother was psychologically unfit for the son to live with. On the other hand, he was perfectly content to have his daughter continue to live with her. Furthermore, he had no medical documents to substantiate his claims about the mother’s psychiatric condition.

After similarly expressing concerns about some of the mother’s contentions about the father, the court lamented:

A careful review of the correspondence exchanged between the parties and their counsel suggests that both parties are attempting to “use” the Children in this family law proceeding. The parties simply do not appreciate the harm caused to the Children by this “tug of war”. While both parties suggest they want the Children to have a positive and loving relationship with the other parent, there is little evidence that either parent has actually demonstrated this in their conduct.

Ultimately, the court ordered the son to have primary residence with the mother, but allowed the matter to come back before the court if the boy changed his mind (but with the caution that the boy’s reasons for doing so would be carefully scrutinized).

For the full text of the decision, see:

Stockwell v. Dalcin, 2013 ONSC 2179 (CanLII)   http://canlii.ca/t/fx2d
At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at Russell Alexander.com