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[캐나다]온타리오주 항소법원 A.G.L. v. K.B.D. et al.



1. 판결 캐나다 Ontario Superior Court of Justice A.G.L. v. K.B.D. et al. 2. 판결일 2019.1. 16. 3. 판결 요지 아동최선의 이익을 위해 부모 따돌림을 한 어머니로부터 양육권을 박탈하고 접근 금지 명령한 판결입니다. - 부모 따돌림에 의해 양육권자 변경 사건으로 부모 따돌림이 발각되면 아동의 의사는 판결에 영향을 주면 안된다(143절 참조) - 자녀가 아버지와의 연락을 원했는데, 한달만에 명백한 이유도 없이 극적으로 변했다(147절 참조). 4. 판결문 일부 발췌 [142] The views and preferences of the children is a factor to be considered under the best interests of the child test. No objection was ever made by the parties regarding the necessity or reliability of any of the children’s out of court statements. I have proceeded, then, on the assumption that they are admissible for the truth of their content. On that basis, I am able to consider the views and preferences of the children in determining who should have custody. [143] While the case law generally supports placing a great deal of weight on the views and preferences of children over 12, there are clear exceptions. One is in a case such as this, where one parent has undermined the child’s relationship with the other parent (Pettenuzzo-Deschene v. Deschene, [2007] O.J. No. 3062, 40 R.F.L. (6th) 381 (S.C.J.); Tock v. Tock, [2006] O.J. No 5324, 154 A.C.W.S. (3d) 1125 (S.C.J.)). In Pettenuzzo- Deschene, Justice Whalen determined that if the court finds that there has been parental alienation, then the child’s views cannot be seen as their own. [144] In the case of Mitchell v. Mitchell, [2002] O.J. No. 2504, 30 R.F.L. (5th) 365 (S.C.J.), little weight was placed on the views and preferences of the children because of the influence of a parent. Similar findings were made in Bergen v. Bergen, [2008] A.J. No. 902, 2008 ABQB 237 about wishes expressed to one parent. [145] Dr. Fidler also testified that the views and preferences of an alienated child are not independent views and preferences. [146] I find that neither D. nor J., with the exception of K., who appears to have a balanced view towards her parents, has an independent view or preference regarding custody and access. K., being the third and youngest child, seems not yet to have [page444] succumbed to her mother’s views regarding her relationship with her father. She is also still of an age, at nine years old, where, as Dr. Fidler suggested, she has not chosen a side to alleviate confusion and stress created by the parents’ battle. [147] It is clear, on all the evidence before me, that D. and J. have not formed their views and preferences from their own experiences. J.’s views and preferences changed dramatically from wanting contact with her father to not wanting to visit overnight in a matter of one month — and for no apparent reason. [148] I find that they have formed their views and preferences solely from the unrelenting influences and behaviour of K.D. Neither of these children, as well as K., have ever disclosed a reason why they did not want access with A.L. [149] As a result, I give little to no weight to D. and J.’s views and preferences. I give some weight to K.’s views and preferences. [150] The Office of the Children’s Lawyer has taken a position different from that expressed by the children. This has been sanctioned where there is evidence that the child’s views and preferences were not independent (Boukema v. Boukema, [1997] O.J. No. 2903, 33 O.T.C. 190 (Gen. Div.); Reeves v. Reeves, [2001] O.J. No. 308, 102 A.C.W.S. (3d) 1116 (S.C.J.); Children’s Aid Society of the Regional Municipality of Waterloo v. A. (B.), [2005] O.J. No. 2844, 2005 ONCJ 220; Filaber v. Filaber, [2008] O.J. No. 4449 (S.C.J.)). I am also in agreement with the OCL position that the status quo in this matter cannot be sustained. Conclusion [151] The three children of the marriage have been alienated from the applicant over a long period because K.D. is unable to accept that it is in the best interests of the children to have a relationship with their father. She has been given several opportunities to change her behaviour over many years and refuses to do so. I find that her unrelenting behaviour toward the children is tantamount to emotional abuse as described by Dr. Fidler. The views and preferences of the two older children are not their own. And for the children to have any further contact with the respondent, significant therapeutic intervention is necessary. [152] It is remarkable that A.L. has not given in to the respondent’s persistence in keeping his children from him over the last 14 years and simply gone on with his life without the children as, no doubt, many other parents in the same situation would have and, indeed, have done. It is now time for his and the children’s fates to be free from K.D.’s control. She has shown that she cannot be entrusted with it. [page445] [153] The best interests of these children require an order for A.L. to have sole custody of them. This court orders the following: (1) The applicant, A.L., shall have sole custody of the children, D.K.V.D., born November 11, 1994; J.M.A.L., born August 19, 1997; and K.D.M.D.L., born September 16, 1999 (the “children”); and is further granted the authority to make all decisions regarding the children’s welfare without consultation. (2)The respondent shall have no access to the children pending a review of this matter, save and except for the purpose of counselling as also referred to below at para. 6. (3)Pursuant to s. 17(3) of the Divorce Act and s. 141 of the Courts of Justice Act, R.S.O. 1990, c. C.43, the children shall be brought to this courthouse in Toronto on Friday, January 16, 2009 at 10:00 a.m. in courtroom 902 by the respondent, where the transfer of custody shall occur with the assistance, if need be, of the Sheriff and court officers. The respondent shall not be present or within the premises or vicinity of the premises during the transfer to the applicant. (4)The applicant shall have the sole authority to pursue whatever remedy he believes is necessary to enable for the children a transition of least conflict in the actual transfer of physical custody from the respondent to the applicant. (5)The applicant may, in his discretion, utilize the services of Dr. Randy Rand, including participation in the Family Workshop for Alienated Children program created by Dr. Randy Rand (“Family Workshop”). For these purposes, the applicant may transfer the children outside of Canada for treatment and may retain the services of Bill Lane, or any other transport agents, to assist in the transport of the children to the location at which the Family Workshop will be conducted. He is to advise the respondent of the dates the children will be attending the Family Workshop, but does not have to advise her of the location. (6)The applicant, the children and the respondent shall participate in follow-up counselling, commencing no sooner than three months from the date of this order (i.e., and to occur after the Family Workshop component including participation by the respondent in the Family Workshop program for “favoured” parents) with Dr. Yvonne Parnell or, if Dr. Parnell is unable or unwilling to provide counselling for any or all of [page446] the applicant, the respondent or the children, the parties shall agree on such other person(s) to provide counselling for each of them, and failing agreement, this court may appoint the person(s) upon special appointment. (7)The applicant and the respondent shall ask Dr. Randy Rand and Dr. Yvonne Parnell, or such other person(s) as is engaged or appointed to conduct follow-up counselling, to provide this court with a written report concerning their intervention as described above with the costs of their intervention, and the reports shall be delivered to the parties, through their counsel, and this court on a date to be fixed by April 1, 2009. (8)The respondent shall be responsible for the costs of all the aforesaid services. (9)The respondent is to arrange delivery to the applicant’s residence the children’s clothing and all their personal belongings within ten days of this order. She is not to attend at his residence personally. She can make arrangements for delivery through counsel for the applicant. (10) The respondent shall send all of the children’s clothing and personal belongings to them at the applicant’s address within ten days of the order, at her expense. (11) Pursuant to s. 17(3) of the Divorce Act and s. 35 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 and subject to para. 2 herein, the respondent is not to harass, annoy or molest, or attend within 300 meters of, or have any contact with the applicant or the children. She is not to have any contact, direct or indirect, or cause any contact, direct or indirect, with the children or with the applicant pending review of this matter, as set out below, and this Order of restraint of contact by the respondent with the children applies to all places where the children attend, including, without limiting the generality of same, the applicant’s home, the children’s schools, the children’s church or place of extracurricular activities. (12) The applicant shall have possession and sole control of the children’s passports and birth certificates. (13) The applicant’s passport, previously deposited with the court, shall be released to the applicant forthwith. [page447] (14) There shall be no restrictions in travel for the applicant and the children to participate in the Family Workshop. The respondent’s consent to the children’s travel out of the country is hereby dispensed with. (15) The respondent shall co-operate with all aspects of the Family Workshop and sign releases and contractual agreements necessary to fully implement this undertaking. (16) The applicant shall be entitled to confiscate and prevent the children’s use of cellphones, pagers, blackberries and computers, even if such equipment is provided by the respondent. (17) Pursuant to s. 141 of the Courts of Justice Act, and s. 36(2) of the Children’s Law Reform Act, the Sheriff of this court’s jurisdiction, York Regional Police, the Ontario Provincial Police, the Royal Canadian Mounted Police and all enforcement officials to whose attention this order is brought, shall assist, as required, for enforcing the provisions of this order, and shall specifically take all such action as is required to locate, apprehend and deliver the children to the applicant, including the power of search and entry at any time. (18) The respondent’s consent regarding the approval of the draft order is dispensed with.

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