A teenage son has his way with his father, who is separated from his mother. The father lavishes the son with material things like an X-Box, BlackBerry and Ipod, expensive clothes and sporting equipment. When together, father and son spend time playing tennis, roller skating and bicycling.
What child does not want to live with a parent who treats him like that?
This question confronted the Ontario Supreme Court of Justice in the case of Z. v. M., 2010 ONSC 3294. The case involved a bitter custody dispute between the mother with whom the son was residing, and the father with whom he wished to live.
Trouble began in the marriage very early on. The mother complained of verbal and emotional abuse in the hands of the father. He would put her down in public and call her names. He would isolate her by not allowing visits by her relatives or phone calls to them. In the course of disagreements, he would threaten to take the son away and flee the country.
Eventually, the mother decides to leave taking the son with him. Recognizing, however, how important her son’s relationship to the father is, the mother does not stand in the way of the father’s access to the son. But then the mother comes to have difficulties with the son. The son starts calling her names, pushing and shoving her at times and making threatening hand gestures to her. The son begins to pry on her, asking who she is on the phone with and telling her to hang up.
Her relationship with the son becomes strained, and the mother believes the father has a hand in it. The mother is concerned that the son was “modelling his conduct on his father’s manipulative and disrespectful behaviour”.
In seeking custody, the father argues that the son would be better off with him in terms of material needs as well as a stable routine and improved hygiene and nutrition which the father claims the mother is not able to provide.
The son expresses his preference to live with the father.
In its decision, the court acknowledged that a child’s wishes were to be considered in determining whether awarding custody to one parent was in his or her best interests. The child’s wishes however cannot be relied upon when there is parental alienation. In this case the father had alienated the mother from the son. The influence that the father had exerted over the son proved to be negative and harmful. The son’s preference was clearly the product of the father’s determined intention to lure the son away from the mother.
The court was therefore unable to conclude that the son’s best interests will be served by residing with his father. Primary residence of the son was awarded to the mother subject to access in favour of the father.