Makela v. Guenette: Parental Conflict, Emotional Abuse, and the Power of a Child’s Choice

Introduction

The recent Ontario Superior Court decision in Makela v. Guenette, 2025 ONSC 2737, offers family law practitioners and parents alike a sobering reminder that children’s voices can—and should—be heard in custody disputes, particularly when their safety and emotional wellbeing are at stake. Justice Diamond’s comprehensive judgment provides valuable insights into how courts assess competing parental narratives, weigh independent evidence, and ultimately prioritize a child’s best interests over parental preferences.

Case Overview

The decision in Makela v. Guenette arose from what began as an urgent motion by the mother \seeking the return of the parties’ 12-year-old son (“M”) from his father’s care in Verner, Ontario. The parents, both approximately 40 years old, had cohabited from 2010-2021, but never married. Following their separation, M had primarily resided with his mother in Toronto (along with her new partner), while maintaining monthly weekend visits with his father in northern Ontario.

The crisis began in November 2024 when M had a violent “meltdown” at his Toronto school, involving a physical altercation and concerning statements about harming other students. During his next scheduled visit with his father, M allegedly disclosed that the mother’s new partner had physically assaulted him on multiple occasions. Based on this disclosure and advice from Children’s Aid and police, the father unilaterally refused to return M to his mother’s care—triggering the urgent court application.

What emerged through six months of litigation was a disturbing pattern of emotional manipulation, alleged physical abuse, and a child’s desperate plea to be heard. Multiple independent sources—including Catholic Children’s Aid Society, police, school officials, and an Office of the Children’s Lawyer report—painted a consistent picture of a child suffering emotional abuse at the hands of his mother and her partner Victor. The evidence revealed that the mother systematically denigrated the father to M, calling him a “deadbeat” and “terrible person,” while questioning M’s love for her when he expressed desire to live with his father. Victor allegedly physically assaulted M on multiple occasions and joined in the verbal attacks against the father. Meanwhile, M consistently told independent third parties that he felt safe and loved when with his father, and desperately wanted to live with him permanently rather than endure the emotional manipulation and physical harm he experienced in his mother’s household.

The case is particularly notable for its methodical approach to evidence-gathering, the court’s willingness to look beyond the parents’ competing narratives to find the truth in independent third-party sources, and the high-conflict nature of the dispute, which included criminal charges filed by the mother against the father during the proceedings.

The Legal Framework: Best Interests of the Child

Justice Diamond’s analysis exemplifies the holistic approach required under Ontario’s Children’s Law Reform Act. Rather than treating the best interests factors as a mere checklist, the court examined M’s situation through multiple lenses:

Physical and Emotional Safety First

The court correctly identified that ensuring the child’s physical and emotional safety serves as the foundational starting point for any custody determination. This principle, established in cases like I.A. v. M.Z., 2016 ONCJ 615 and Armstrong v. Coupland, 2023 ONSC 5451, takes on particular significance when allegations of abuse—whether physical or emotional—are present.

The Voice of the Child Analysis

Perhaps most significantly, Justice Diamond applied the 11-factor test from J.N. v. C.G., 2023 ONCA 77, to assess how much weight to give M’s expressed wishes. The court found that:

• M’s wishes were clear and unambivalent
• His preferences were consistently expressed over six months
• Despite his age (12) and moderate maturity level, the strength of his wishes was profound
• His preferences were objectively reasonable given the circumstances
• There was no credible evidence of coaching

The court’s analysis appropriately balanced M’s age and maturity against the strength and consistency of his expressed preferences, demonstrating how the J.N. v. C.G. factors work together rather than as isolated considerations.

Key Evidentiary Lessons

The Power of Independent Third-Party Evidence

One of the most striking aspects of this case is how Justice Diamond systematically sought evidence from independent sources:

• Catholic Children’s Aid Society notes spanning 18 months
• Police interview summaries with the child
• School officials’ observations and concerns
• Office of the Children’s Lawyer report (Voice of the Child)

This approach allowed the court to cut through the parents’ “vastly divergent and competing narratives” and find reliable evidence of what was actually happening in M’s life.

Documentation of Emotional Abuse

The case provides a textbook example of how parental alienation and emotional abuse can be documented and proven. The evidence showed:

• Systematic denigration of the other parent (“deadbeat,” “terrible person”)
• Emotional manipulation (“guilt-tripping,” questioning the child’s love)
• Forced statements against the other parent
• Pressure and retaliation when the child expressed contrary wishes

Justice Diamond correctly noted that such denigration “fits within the definition of family violence” under s. 24(3)(j) of the Children’s Law Reform Act and can be “devastating” to a child.

The Broader Context: Recognizing Emotional Abuse

This case arrives at a time when family courts are increasingly recognizing that emotional and psychological abuse can be as damaging as physical violence. The court’s finding that M was being “suffocated from the pressure and potential emotional blackmail” placed upon him reflects this evolving understanding.

Challenges and Criticisms

The High-Conflict Context

The proceedings were further complicated when the mother filed criminal charges against the father for historical sexual assault, assault, and domestic violence on November 23, 2024—just 24 hours after the court’s initial interim order. This led to the father’s brief incarceration and required emergency court intervention. While these criminal charges did not directly impact the parenting decision, they illustrate the highly contentious nature of the dispute and the complex dynamics the court had to navigate.

The Coaching Allegation

The mother’s argument that M had been coached by his father highlights a persistent challenge in family law: distinguishing between legitimate parental influence and improper coaching. Justice Diamond’s approach—looking at when and to whom the child made statements—provides a useful framework for this analysis.

Late-Term School Changes

The court’s willingness to order a school transfer late in the academic year (May 2025) was admittedly suboptimal timing, as Justice Diamond acknowledged. However, this decision was justified by evidence of M’s deteriorating mental health and school officials’ concerns that continuing in Toronto “against his will” would further impact his wellbeing. The court found that M’s current school resources “were not working” and that further “meltdowns” were likely, making the transfer necessary despite the timing.

Lessons for Parents and Practitioners

For Parents:

1. Avoid denigrating the other parent in front of your child—it may constitute family violence
2. Listen to your child’s concerns rather than dismissing them as lies
3. Prioritize your child’s emotional wellbeing over your own relationship preferences
4. Document concerning behaviors objectively and seek appropriate professional help

For Practitioners:

Evidence and Investigation:

1. Investigate thoroughly rather than accepting client narratives at face value. High-conflict parenting cases often feature divergent, emotionally charged accounts. Probe for specifics and ask clients for documents and potential witnesses.
2. Prioritize independent, reliable evidence. Courts will delay decisions when reliable third-party evidence is missing. Encourage clients to collect school records, police reports, healthcare notes, and CAS records early. Focus on evidence from the applicable Children’s Aid Society), police, school personnel, healthcare providers, and other independent observers.
3. Seek independent corroboration for all significant allegations. Judges will not decide based on “he said / she said” claims alone. Make sure serious allegations are supported by neutral, documented sources.
4. Document patterns of behaviour, not just isolated incidents. Courts look for sustained patterns of conduct. Help clients track consistent behaviours like systematic denigration of the other parent, emotional manipulation, forced statements against the other parent, punishment for expressing contrary wishes, or dismissing the child’s safety concerns.

Voice of the Child and Safety:

1. Use Voice of the Child (VOC) reports effectively. While not binding, VOC reports can carry significant weight, especially for older or more mature children. The OCL report proved decisive in this case through detailed documentation of the child’s statements and clinician observations that couldn’t be dismissed as parental coaching.
2. Emphasize emotional as well as physical safety. Emotional wellbeing, including stress and psychological harm, is central to the best interests analysis. Frame your case around both emotional and physical safety as foundational starting points.
3. Frame denigration as family violence. Systematic badmouthing or emotional manipulation can meet the legal definition of family violence under s. 24(3)(j) of the Children’s Law Reform Act. Don’t minimize these behaviours—present them as serious concerns affecting the child’s wellbeing.

Litigation Strategy:

1. Expect adjournments to build the record. High-conflict motions can involve multiple adjournments while parties gather evidence. Justice Diamond’s staged approach—initially maintaining the status quo while gathering evidence, then creating intermediate arrangements—shows how courts balance immediate safety concerns with comprehensive fact-finding.
2. Be prepared for without prejudice interim arrangements. Interim orders are often made on a without prejudice basis. Explain to clients that these are temporary solutions and that final decisions may differ once the full record is available.
3. Scrutinize living arrangements for safety concerns. Allegations about new partners or household safety are taken seriously. Proactively propose safe arrangements and conditions, such as excluding certain individuals from contact with the child.
4. Draft specific, structured parenting schedules. Vague orders lead to conflict. Propose clear, enforceable terms with details on exchange times, locations, virtual contact rules, and conditions about third-party involvement.
5. Always seek relevant child protection records. CAS notes and involvement can be critical evidence. Request disclosure early and prepare to use this information to support or challenge allegations.
6. Prepare for extended litigation when serious allegations are involved. Cases with abuse or alienation claims often require time to develop the record fully. Manage client expectations about duration, cost, and the need to maintain composure and comply with court orders. However, when child safety concerns arise, proper legal channels should always be pursued first rather than unilateral parenting decisions.

Looking Forward: Implications for Family Law

Makela v. Guenette represents a maturation in how Ontario courts approach complex parenting disputes involving emotional abuse. The decision’s emphasis on independent evidence, systematic fact-finding, and genuine consideration of the child’s voice should serve as a model for similar cases.

The case also highlights the importance of involving the appropriate Children’s Aid Society early when safety concerns arise, and the value of collaborative approaches between the court system and child protection services.

Conclusion

Justice Diamond’s decision in Makela v. Guenette reminds us that family law is ultimately about protecting children, not vindicating parents. When a 12-year-old child consistently and desperately expresses a desire to escape an emotionally abusive situation, the legal system must be prepared to listen—and act.

The case stands as a powerful reminder that the “best interests of the child” standard is not merely a legal abstraction, but a living principle that requires courts to make difficult decisions based on evidence rather than assumptions, and to prioritize a child’s safety and wellbeing above all else.

For practitioners, the case offers both a roadmap for handling complex custody disputes and a reminder of our fundamental obligation to advocate for the most vulnerable clients of all—the children whose futures hang in the balance of our legal system.

Let’s continue to elevate the practice of family law in Ontario!

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Disclaimer: The information provided in this blog post is intended for general informational purposes only and should not be considered as legal advice. Consult with a qualified family law attorney for advice regarding your specific situation. Goldhart Mediation & Arbitration is not responsible for any actions taken based on the information presented in this blog.