COURT FILE NO.: FS-19-96424-00

DATE: 20200827

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: LISA GREENWOOD, Applicant

AND:

SCOTT GREENWOOD, Respondent

BEFORE: Justice Irving André

COUNSEL: S.E. Jackson, counsel for the Applicant

J. Dhaliwal, counsel for the Respondent

HEARD: July 30, 2020, via video conference

ENDORSEMENT

[1] The applicant, Lisa Greenwood, brings a motion for an order granting her temporary sole custody of the child, Liam Scot-Iggy Greenwood, born on July 27, 2009. The respondent, Scott Greenwood, has filed a cross-motion for an order that Liam continue to reside with him and an order granting Mr. Greenwood the final say in all major decisions affecting Liam’s education, health and general welfare.

BACKGROUND INFORMATION

[2] The parties were married on August 18, 2007. They separated on August 1, 2018.

[3] The parties had a rather tumultuous relationship during their marriage which has continued following their separation. Both parties have accused each other of abusing Liam and making disparaging comments to him about each other.

[4] On February 28, 2020, Bielby J. signed an endorsement granting Ms. Greenwood parenting time on Saturdays from 10:00 a.m. to 7:00 p.m. and on Mondays and Wednesdays following the end of his school day until 7:00 p.m.

[5] The parties attended a case conference on March 2, 2020. Ms. Greenwood consented to having Liam attend reintegration therapy.

[6] On July 20, 2020, the parties consented to a s. 30 assessment by the Children’s Aid Society (CAS) for an opinion regarding Liam’s best interests. The CAS has been involved with the parties since July 2018.

POSITIONS OF THE PARTIES

[7] Ms. Greenwood’s counsel submits that her client should be granted equal parenting time, on a week about basis, to Liam. She maintains that there is incontrovertible evidence that Mr. Greenwood is actively alienating Liam from Ms. Greenwood and has discussed the ongoing litigation with him, to Liam’s detriment. She submits that given Mr. Greenwood’s behaviour, Ms. Greenwood should be granted temporary sole custody of Liam.

[8] Mr. Greenwood’s counsel submits that given Ms. Greenwood’s history of mistreating Liam, their son should continue to reside with him and, furthermore, that he should have the major decision-making authority over Liam. He further contends that Liam has repeatedly stated that he wishes to reside with his father, rather than with his mother.

ISSES

[9] This matter raises the following issue: Should Ms. Greenwood be granted temporary sole custody of Liam and have week about access to Liam, or should Mr. Greenwood be permitted to retain temporary custody of him, with Ms. Greenwood having limited access to Liam?

[10] Ms. Greenwood’s counsel submits that Mr. Greenwood has alienated Liam from Ms. Greenwood and that such conduct is inimical to Liam’s best interests. She has identified the following as evidence of such conduct which Mr. Greenwood has engaged in to Liam’s detriment:

(i) He has unilaterally cancelled Ms. Greenwood’s access appointments and has adamantly refused to grant make-up access to him;

(ii) He has engaged in conduct that is harmful to Liam’s best interests such as:

a. allowing Liam to play videogames throughout the night;

b. allowing Liam to miss school thirty-seven times prior to March 2020;

c. not allowing Liam to open his Christmas gifts;

d. refusing to take Liam to his doctor for an ADHD appointment; and

e. alienating Liam against Ms. Greenwood.

[11] Ms. Greenwood’s counsel relies on numerous cases in support of her overarching submission that alienation of a child against a parent is a form of child abuse and in appropriate circumstances, may justify an order for custody against the party who engages in such conduct: see Bors v. Beleuta, 2019 ONSC 7029, at paras. 119-24; A.M. v. C.H., 2018 ONSC 6472, at paras. 109, 116; Gostautaite v. Menendez, 2020 ONSC 4396, at paras. 68-70.

[12] There is no doubt, based on copies of text messages filed by Ms. Greenwood, that there have been instances where access has not taken place for myriad reasons, including illness and simple tardiness on the part of Mr. Greenwood. Similarly, there is some evidence, based on CAS records from July 2018 to March 2020, that Mr. Greenwood is alienating Liam against Ms. Greenwood. For example, a case review dated January 21, 2020 indicates that “Liam reports disliking mom based on what dad tells him about mom.” Additionally, Mr. Greenwood, according to this review, could not provide a “real explanation” why Liam has missed school so much.

[13] There is no doubt that this type of behaviour is not in Liam’s best interests. As noted by Mossip J. in Reeves v. Reeves, 2001 CarswellOnt 277 (S.C.), at para. 38:

Based on a significant number of studies and case law in this area, any support or encouragement by one parent that the children not have a relationship with the other parent simply demonstrates the irresponsibility of the parent who has the children and demonstrates that parent’s inability to act in the best interests of their children. Children do not always want to go to school or want to go to the dentists or doctors. It is the responsibility of good parents to ensure that children go to school, go to doctors, and go to dentists. Good parents manage their children’s health and safety issues without necessarily the consent or joy of their children.

[14] Mr. Greenwood, on the other hand, has responded to allegations of alienation and has also accused Ms. Greenwood of physically abusing Liam. He deposed that he did not keep the appointment with Liam’s doctor based on a conversation with the doctor. He attributes Liam’s frequent absences from school to Liam’s illness and denies alienating him against Ms. Greenwood. He also insists that Liam not only dislikes Ms. Greenwood but does not wish to live with her.

[15] In determining what is in Liam’s best interests in this case, I cannot place much weight on Liam’s wishes given that these views may not be independent. Even if they were, the issue of custody and access in this case cannot be determined by the wishes of eleven-year-old Liam: see A.M. v. C.H., 2019 ONCA 764, at para. 27.

[16] Given that the parties have consented to participate in a s. 30 assessment, I am reluctant to change Liam’s living arrangements, without a review of the findings of the experts who will be involved in preparing the report. I am also reluctant to accede to Ms. Greenwood’s request for custody and shared parenting for the following reasons:

(1) Both parties indicate that in recent months, Ms. Greenwood’s access to her son has improved and that the parties’ relationship has improved;

(2) Ms. Greenwood moved to Mississauga following separation while Mr. Greenwood remained in Brampton where Liam has attended school for his whole life. While Liam will be entering a new school this fall, having to move to Mississauga and attend a school in that city will involve a major disruption in his life, the more so given his medical issue and the ongoing COVID-19 pandemic; and

(3) While I am prepared to conclude that Ms. Greenwood loves her son dearly, granting her custody at this point may be somewhat difficult for Liam, given the existence of some evidence that he is alienated from her.

ORDERS

[17] Based on the above, I order that:

(1) Liam Scot-Iggy Greenwood, born on July 27, 2009, shall continue to reside with the respondent, Scott Greenwood.

(2) The respondent, Scott Greenwood, shall consult the applicant, Lisa Greenwood on any and all major decisions affecting Liam Scot-Iggy Greenwood’s education, health, and general welfare. Both parties shall be involved in making all final decisions concerning Liam’s education, health and general welfare.

(3) The applicant, Lisa Greenwood, shall have parenting time with the child, Liam Scot-Iggy Greenwood, born July 27, 2009, as follows:

	Sunday	Monday	Tuesday	Wednesday	Thursday	Friday	Saturday
Week 1	Scott	Scott	Scott	Scott	Lisa pick up after school	Lisa pick up after school	Lisa
Week 2	Lisa (exchange at Tim Hortons)	Scott	Scott	Lisa picks up Liam after school until 7:00 p.m.	Lisa pick up after school	Scott	Scott

(4) The applicant, Lisa Greenwood, shall be responsible for picking up Liam after school and that if there is no school, then the exchanges shall occur at the Tim Hortons restaurant.

(5) That the applicant, Lisa Greenwood, shall be responsible for picking up and dropping Liam off from the respondent’s home.

(6) That the parties shall enroll into the ‘Our Family Wizard’ program or a similar program within thirty (30) days.

(7) Neither party shall make disparaging comments about each other to Liam.

(8) In accordance with section 112 of the Courts of Justice Act, for the Children’s Lawyer to conduct an investigation and to make recommendations to the court on all matters concerning custody of or access to the child and the child’s support and education.

(9) An order on a temporary basis that, commencing August 1, 2020 and on the first day of each month thereafter the applicant, Lisa Greenwood shall pay periodic child support to the respondent for one child, Liam Scot-Iggy Greenwood, born July 27, 20009, in the amount of $726 based on an income of $77,884.

(10) An order on a temporary basis that the parties shall pay Liam Scot-Iggy Greenwood’s section 7 expenses proportionate to their annual income. Based on their 2019 income the applicant mother’s proportionate share of the section 7 expenses is 76.4% and the respondent father’s proportionate share is 23.6%.

COSTS

[18] Ms. Greenwood seeks costs of $7,257.89 on a full recovery basis and $5,895 on a substantial recovery basis.

[19] Mr. Greenwood seeks costs of $5,500 on a substantial recovery basis.

[20] Mr. Greenwood was substantially successful in this matter. However, the issues in the motion and cross-motion were not complex and could have been resolved if the parties were willing to set aside their differences for Liam’s wellbeing. Mr. Greenwood’s counsel’s hourly wage, $225, is not unreasonable given his 2016 year of call. Finally, this hearing took up approximately one hour of court time.

[21] Based on the above, Ms. Greenwood is ordered to pay costs, fixed in the amount of $3,500 inclusive, to Mr. Greenwood, within ninety (90) days of today’s date.

André J.

Date: August 27, 2020