The child lived primarily with his maternal grandmother after his parents separated
The Nova Scotia Supreme Court has dismissed a father's allegation that the maternal grandmother is alienating his son from him.
In Farrell-Wadden v. Mombourquette, 2023 NSSC 164, nine-year-old Cole lived primarily with his maternal grandmother for six years after his parents separated. Cole's father has unsupervised parenting time with him thrice weekly every second weekend. However, Cole's visits with his father essentially stopped in the fall of 2022. The grandmother and father agreed that Cole began resisting parenting time with his father.
The father believes that the grandmother is alienating Cole from him. He argued that denial of his parenting time constitutes a material change in circumstances and that it is in Cole's best interest to be placed in his primary care.
The grandmother denies the father's parental alienation allegation. She said she is supportive of Cole spending time with both of his parents. She asserted that Cole should remain in her primary care, as he has been for the past six years. She claimed to be the parental figure who has been principally responsible for attending to Cole's educational, medical, and emotional needs. The grandmother also alleged that the father has not always taken his parental responsibilities seriously and often leaves Cole in the care of his partner.
The grandmother also said that Cole has been experiencing stress and anxiety, which caused him to act out and resist spending time with his father. She believes Cole deserves a say in whether he should spend time with his father.
No proof of parental alienation
The NS Supreme Court’s family division found that the father failed to prove, on a balance of probabilities, that the grandmother was alienating Cole from him. The court explained that parental alienation is a process where one parent's role is systematically eroded over time through various maneuvers by the other parent. The person alleging alienation bears the burden of proving it occurred.
The court found that the father failed to offer credible proof of any indicators of alienation. The court said there are many reasons why a child may resist or refuse visitation. The court will not assume alienation when there are difficulties with parenting time.
Child's best interests
The court cited the Parenting and Support Act, which mandates that an analysis of the child's best interests is paramount in any parenting issue.
The court considered that Cole has been in the primary care of his grandmother for the last six years. The court also acknowledged the finding of Cole's therapist that his grandmother is an important source of security for the child. The court further noted that the grandmother has attended to Cole's development needs for most of his life. She is the person who attends parent-teacher conferences and the parental figure who takes the child to medical appointments.
The court found that the grandmother had not excluded the father from his parenting role. However, the grandmother asserted that she would not force Cole to see his father if she did not feel it was in Cole's best interest. She said she would let Cole decide.
The court said the grandmother's position is counter-indicative of a willingness to support the child's relationship with his father. The court pointed out that Cole needs help navigating his relationship with his father, and the adults in his life need to stop blaming each other for the child's difficulties. The court said it is in Cole's best interest to have a positive and healthy relationship with his father.
The court ultimately declined to reduce the father's parenting time and ruled that his parenting time would not be at the child's discretion. The court further ruled that the grandmother would continue to have primary care of the child. The court also ordered the parties to continue to access therapy and counselling to address child resistance proactively.