The Ontario Court of Appeal Gave Us 1.7 Million Reasons to End Court Orders for Custody

Written By: Steven Benmor and Shely Polak

In the groundbreaking decision of M. v. F. [2015] O.J. No. 2048, the three judge panel of the Court of Appeal, consisting of Justices Benotto, MacFarland and Tulloch, considered the best interests of a six year-old boy in a high conflict custody dispute.

The social science literature defines high conflict separations as being characterized by high levels of anger, hostility and distrust, discordant co-parenting, verbal/physical aggression, protracted litigation and strained parent-child relationships continuing two to three years post separation. Unfortunately, this case exhibited most if not at all of the aforementioned characterizations. In this particular case, the parents lied to, and about, each other in several contexts. According to a psychological assessment, the father was said to suffer from alcoholism and narcissism. Throughout the course of the ongoing litigation, the mother admitted to smoking marijuana.

Further showcasing the level of conflict and hostility in this case, evidence showed that the father sent a video to the mother of a husband giving a wife keys to a car, which subsequently blew up. In a similar fashion, the mother provided false information online about the father’s personal life, sexual practices and drug habits. She installed video cameras to watch the father’s time with their son. She alleged physical abuse where the father hit her in the face, ripped out her earrings, dragged her downstairs and strangled her during intercourse. It comes as no surprise that police and children’s aid were involved.

Normally, parents with older children will use their previous parenting experiences to make more reasonable and child-centric choices. These two parents had children from previous relationships (ages 8 and 11 for the mother, and 13 and 18 for the father) and the father had a 5 month old newborn from his current relationship. This seems to have resulted in little benefit to their 6-year-old son.

These parents just could not agree on anything regarding their son. Issues of custody and access required a comprehensive custody and access assessment which was later subjected to an expert critique by another psychologist. This matter consumed 34 days of trial, followed by an appeal. In the opening paragraph of this ruling, Justice Benotto, writing unanimously for all 3 judges, stated the powerful words:

“The parties to this appeal are the parents of a little boy now age six. They have been arguing with each other about parenting arrangements for his entire life.”

Most unfortunately, it is the six-year old boy that was caught in between his parents’ high conflict war. It is this young boy who, by no fault of his own, suffered the emotional and psychological consequences resulting from an acrimonious environment. Custody and access assessor Dr. Butkowsky stated that this little boy had completely changed throughout the course of his involvement, from a happy outgoing child to an apprehensive child plagued by the surrounding conflict.

 From a legal standpoint, M. v. F. is notorious for 3 reasons:

  1. Expert critiques have little place in family court. As Justice Benotto stated:

“I too support the view that critique evidence is rarely appropriate. It generally – as here – has little probative value, adds expense and risks elevating the animosity between the parties.”

  1. There is no need for orders for “custody”. As Justice Benotto stated:

“For over twenty years, multi-disciplinary professionals have been urging the courts to move away from the highly charged terminology of “custody” and “access.” These words denote that there are winners and losers when it comes to children. They promote an adversarial approach to parenting and do little to benefit the child. The danger of this “winner/loser syndrome” in child custody battles has long been recognized. It was therefore open to the trial judge to adopt the “parenting plan” proposed by the assessor without awarding “custody.” It was also in keeping with the well-recognized view that the word “custody” denotes “winner” so consequently the other parent is the “loser” and this syndrome is not in the best interests of the child.”

  1. This family spent $1,700,000 on this court battle. That’s right. $1.7 million.

Did somebody say Family Mediation is a better option?


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