In a case called Izyuk v. Bilousov, the Ontario court framed the question for its consideration this way:
“Should an almost two-year “status quo” created by manipulation and deceit prevail in a custody trial?”
The facts read like something out of a reality-show drama: The 30-year-old mother and the 34-year-old father met on the Internet and moved in together. As a result of an unplanned pregnancy they had a son, who was three years old at the time of the matter came before the court. For a time, the child stayed with the mother and the father had unrestricted access to him. None of it was out of the ordinary.
But that all changed when the father decided to marry another woman. The mother suddenly and unilaterally blocked him from having access, and began making a long series of unfounded allegations against the father, which resulted in her using lies to manipulate the court into giving her temporary custody which lasted almost two years pending the final custody determination. As the court put it:
I accept the [father’s] more straightforward – and obvious – explanation: The [mother] was motivated by jealousy and spite. She was upset that the [father] had married. That’s precisely why she terminated a well-established and beneficial timesharing arrangement, as soon as the [father] returned from his honeymoon.
Indeed, as part of her plan the mother had unjustly painted the father as scheming, preoccupied with money, and out to get a share of her extended family’s wealth from a successful family business (a Delicatessen) that they ran. She also alleged that he was controlling, that he intercepted her mail and tampered with her computer so that he could spy on her. She claimed that he had cheated on her during solo trips to Cuba and Israel.
Every one of these allegations, the court found, turned out to be unsubstantiated.
Yet – because courts often look at the status quo as one of several factors when making final custody orders – the temporary order that had been achieved through the mother’s lies had a serious effect, as the court explained:
We now know that much of what the [mother] told a motions judge in her December 2, 2009 affidavit was untrue. And yet those lies changed everything, not only for the [father], but also for [the son]. A new status quo was created. With profound implications. …
Creating a favourable status quo through falsehood and misrepresentation is not just a matter of litigation strategy: It is often tantamount to child abuse. It goes to the heart of “best interests” considerations; Parental judgment; The ability to sacrifice self-interest for the sake of the child; Awareness of the child’s need to have maximum contact with both parents.
If past behaviour is a predictor of the future, assessors and courts have an obligation to address – and seriously sanction – common and predictable strategic behaviours intended to create an inappropriate status quo.
While pointing out that the “custody trials are not the place to either reward or punish parents”, and that the best interests of the child must always be paramount, the court ultimately decided that the child would be better served if sole custody was granted to the father. However, the mother was given liberal access on very detailed and specified terms.
For the full text of the decision, see:
Izyuk v. Bilousov, 2011 ONSC 6451 (CanLII) http://canlii.ca/t/fnr57
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