Neither parent is perfect. Both have ‘parenting deficits.’ In the modern lexicon, the judge saw them as they really are

The scales of justice


Ontario Court Judge Sheilagh O’Connell delivered her exquisitely fair decision in the decade-long and “very high-conflict” child custody case on Dec. 22.

Then, inshallah, perhaps for the holidays she was able to retreat into the zany confines of a ordinarily dysfunctional family, if not her own, then a rented one.

The case is called D.J. and S.F. The litigation is, like the child at the centre of it, more than 11 years old; it began when he was but a baby of a few weeks.

In the end, and this isn’t intended to diminish the wisdom of the judge’s decision but rather to illuminate the sheer lunacy that is the norm in the family courts, she concluded, guess what? Neither parent is perfect. Both have “parenting deficits”. In the modern lexicon, she saw them as they really are.

The artist/musician father is a little haphazard and sometimes downright irresponsible, but fun and spontaneous. The successful mother is highly structured and tightly controlling, but reliable and dependable. A kid needs some of both; this boy loves both of them, different as they are.

On most of the highly contested bits, many of which revolved around whether the child has a life-threatening allergy and if therefore he was safe with the father who originally doubted the claim, the judge found the father the more credible.

(Note to the adherents of #MeToo, #IBelieve, etc. – “credibility findings” are part of just about every trial, civil and family and criminal. In other words, it isn’t only sexual assault complainants who are vigorously cross-examined with a view to determining how credible they are.)

The mother claimed that the father’s sometimes casual attitude towards the child’s illness had endangered him. She testified about some events which, she said, proved it. But, said the judge, “the evidence does not establish (the child) has a life-threatening medical condition or allergy…The mother has exaggerated the child’s medical condition and used it to restrict his relationship with the father.”

However, the judge said, the boy has had several serious, if undiagnosed, “anaphylactic-type reactions” after eating certain foods. The father has come to accept this, and, the judge said, “it is clear that both parents should do everything they can to avoid giving the child” those foods and to carry epi-pens with them at all times. Similarly, the mother had claimed that the boy wasn’t safe on the father’s sailboat, though the dad is a veteran sailor.

The judge disagreed, and quoted a child psychologist who in 2009, for an assessment for court, found this claim “was an example of a potential effort by the mother to restrict the father’s relationship with his son.” And that, said the judge, is “still true today.”

The judge found the psychologist too had seen through the mother’s protestations that she was supportive of the boy having a relationship with his dad.

In fact, the psychologist said, her claims were inconsistent with the mother’s own comments and actions, and “more strongly suggestive of potential to undermine (the child’s) relationship with his father.

“In this regard, (the mother’s) potential to engage in a long-term pattern of behaviour commonly associated with efforts at ‘parental alienation’ could not, effectively, be ruled out.” The judge found that contrary to what she said, the mother “has actively undermined” the boy’s relationship with his dad, and that she is “hyper-vigilant, over-reactive, extremely controlling and manipulative” about it. “This was overwhelmingly obvious throughout the entire trial,” the judge said.

She saw the parents, and thus, in a system which tends to the matriarchal – mothers know and do best is often the mantra – the father prevailed.

He was seeking only reasonable custody and access to his son – he’d had only supervised visits with the little boy in recent years, during which the mother’s hired private investigators followed father and son, and then almost none – and he got it.

The judge restored the father’s unsupervised access immediately. The two are to share vacation and school holiday time. The father is to reclaim his place in his son’s life.

The litigation record is so vast (in this trial alone, 18 witnesses and 100-plus exhibits, over the entire action, documents that fill a dozen bankers boxes) that even the judge couldn’t reproduce it all.

But the miracle is that despite it all, despite the child witnessing some of the conflict and undoubtedly feeling confused and hurt, particularly over the parents’ differing views of his medical condition, the boy is just a doll, in the words of the psychologist, “a very happy, enthusiastic, outgoing, sociable, exuberant, and playful”. He’s athletic and artistic and has lots of friends.

Just about everyone who testified at trial about him, from his parents, to those who once supervised his visits with his dad, to a therapist the mother hired, to friends and relatives of the parents, pronounced him just a lovely boy.

He’s a kid, magnificent and resilient. And he loves his parents, both of them, as kids always do.