Recent case law: Payment of child support when recipient alienates the child

Johnston v Mayer 2014 MBQB 197 addresses whether the mother (Ms Mayer) has to pay retroactive child support to the father (Mr. Johnston), whether the father should be found in contempt of court for his breaches of the interim custody order and whether costs should be awarded.

The father in this case, in the words of the judge, “set out to destroy the relationship between J. [the child] and her mother. He made and broke various agreements regarding the schedule for J.’s care. He manipulated J. emotionally to induce her to reject her mother. He made exaggerated and false reports to a child protection agency and the police.”

In other words, he did what many abusers do: used the child in his ongoing abusive treatment of the mother.

In 2009, the court confirmed a consent order for joint custody and alternate weeks of care and control between the parents, with the mother having final decision-making authority. A trial was set for August 2010. In July 2010, the parties agreed that the terms of the interim order would form the final order and so the trial dates were cancelled.

However, in late September, the father filed a motion asking the court to grant him primary care and control and final decision-making authority for the child, who was now 13 years old, as well as child support.

From this point until the trial in April 2013, the father repeatedly breached the 2009 consent order. Among other tactics, the father twice engineered a plan to have the child run away when she was scheduled to return to her mother’s care. His breaches were such that the child was not in her mother’s case after November 2010 except for one court-arranged visit in August 2011. For a time, J. had surreptitious contact with her mother by calling her from a friend’s house, but the father eventually succeeded in completely alienating the child from her mother.

As Goldberg J wrote in his decision:

By July 2013, it was evident that J. had adjusted to the emotional tug of war she was experiencing by supporting her father to the exclusion of any relationship with her mother. This was what the father had intended since the 2008 separation.

Once the mother heard her daughter’s evidence (that she did not want to see her mother at all), she gave up her claim for custody. In her testimony, she said she wanted J. to be able to:

finish high school without any of this bullshit, without any ugly letters and all these problems, and having meetings with her counsellors about having to testify or not. . . .If we can let her have the last two years, and even if that is just with her[father], to finish school with some normalcy . . . I’m trying to think through this whole process of what’s best for [J.]

Goldberg J. noted that the mother put the child’s interests first and chose to give her peace during her remaining high school years. The mother also agreed to pay child support.

But this was not enough for the father, who now sought retroactive child support for the period from 2010 to 2013 when J. was living with him as the result of his successful actions to alienate her from her mother. As Goldberg J. put it: “I have to decide whether support should be ordered for the period when the child was exclusively in her father’s de facto care because of the father’s contempt of court.”

He further wrote:

Although I am granting the consent order of sole custody to the father, in so doing, I am not finding that it was, or is now, in the best interests of J. that she not see her mother. I remain concerned about the effect the father’s actions have had on J. and the fact that J. now has no relationship with her mother. The order of sole custody to the father will be granted because it is now in J.’s best interests that this litigation cease, and that she no longer be subjected to court interventions. . .. I reject the argument that at some point it became in J’s best interests to be solely in the care of her father . . . . I am dismissing the claim for interim child support. . . An award of child support at this point would constitute a financial windfall to the father which would reward him for his contempt.

Goldberg J. also awarded costs in the amount of $44,863.44 to the mother and imposed a fine of $2,000 on the father for his contempt, saying:

The circumstances of this case warrant incarceration of the father. He not only harmed J. emotionally, he has caused serious emotional and financial damage to the mother. However, I am not making an order of incarceration because such an order would have a serious negative impact on J., who has been put in the middle of this tug of war for far too long. J. remains in her father’s emotional control. I expect she could be made to view her father’s incarceration as her mother’s fault, or worse, as her fault.

This case is a powerful illustration of how effective a persistent abuser can be if he is able to alienate a child from the mother. The judge, repugnant as he found the father’s actions to be, felt that to return the child to the mother’s custody, given the damage intentionally done to that relationship by the father, would not be in the child’s best interests.

While he does everything he can to signal his strong disapproval of the father’s behaviour – not awarding interim child support, ordering significant costs against him and fining him – he is not able to do what no doubt was the most important thing to the mother: return her child to her care.

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