Allegations surrounding “alienation” in Canadian courts have increased dramatically over the past several years, along with the responses and orders that judges have made, in dealing with parental conflict in this very difficult area.
The starting point in Canadian law for dealing with the relationship between a child and a non-custodial parent is the “maximum contact principle” of the Divorce Act:
16 (10)…The court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.
The maximum contact principle has two aspects. Firstly, the courts should ensure that there is as much contact with each parent as is “consistent” with the best interests of the child. Secondly, if one parent is thwarting contact between the child and the other parent or alienating the child from the other parent, that is an important factor in deciding whether to award custody to the parent who will facilitate contact with the other parent.
The first reported case using the term “alienation” was in 1989.
Over time, the concept of alienation progressed to the point where professionals were referring to it as “parental alienation syndrome”.
Recently, there has been controversy in the legal and medical worlds about whether parental alienation is a “syndrome”. The controversy seems to surround the issue as to whether it is appropriate to blame only one parent for family dysfunction.
Even the use of the term “alienation” has been questioned, with some professionals and judges preferring to use the term “estrangement”.
Nevertheless, whether it is referred to as a “syndrome”, as “alienation” or “estrangement”, or some other term, it is clear that it exists and, regrettably, that reports to it occurring following marriage breakdown, are on the rise.
Studies have concluded that where judicial intervention is required in order to assist parents and children in cases of this nature, it is important for the justice system to take an early and immediate response to cases where a child is resisting contact to a parent. Not surprisingly, earlier intervention is more likely to be successful, and a delay can result in the alienating parents escalating their behaviour if they are not confronted with a clear judicial response.
However and in responding to cases where there are problems with the relationship between a child and a parent, the court must be satisfied that the child is truly alienated, and not justifiably estranged from that parent (the distinction that is drawn between these two is whether the alienation is “rational” or “irrational”).
Further, there are cases in which a judge finds that there has been alienation, but concludes that any further attempt to enforce the relationship between the child and the rejected parent is more likely to harm, rather than help, the child.
Most often and before getting to the drastic stage of changing custody, judges are prepared to use mental health professionals to directly respond to alienation issues, by ordering therapeutic intervention with the explicit goal of re-establishing the child relationship with the rejected parent, while leaving the child in the custody of the parent who has alienated the child. In these cases of less severe alienation, counselling is most likely to be most effective when a judge persuades the parties of its value and the importance for a child having a positive relationship with both parents. However, counselling is unlikely to be useful if parties seem resistant to counselling, and are only attending the sessions in order to avoid contempt of court.
In the past few years and in cases of severe alienation, judges have been willing to transfer custody of a child from the alienating parent to the rejected parent, especially where counselling has been attempted and, as a result of the conduct of the alienating parent, has failed.
To be sure, judges have clearly struggled with the issue of whether custody should be transferred to the other parent, in cases of severe alienation. For example and in the case of A.A. v. S.N.A., the trial judge recognized that he faced a “stark dilemma” as to whether to leave the child with a “highly manipulative” and “intransigent” mother who would never permit her child to have any sort of relationship with her father, or to transfer custody to the father, who had little contact with the child for over a year. Despite the finding of alienation, the trial judge refused to award custody to the father due to a concern that “the immediate effect of that change will be extremely traumatic”. The British Columbia Court of Appeal reversed the trial judge’s decision, observing that:
The trial Judge wrongly focused on the likely difficulties in a change in custody – which the only evidence on the subject indicates will be short-term and not “devastating” – and failed to give paramountcy to the child’s long-term interests.
There were a number of breakthrough cases in Ontario starting in 2007, dealing with alienation.
In the case of L.(J.K.) v. S.(N.C.) Justice Turnbull of Ontario Superior Court of Justice received evidence from Dr. Richard Warshak, a licensed psychologist practicing in Texas, U.S.A. Dr. Warshak and Dr. Randy Rand founded the Family Workshop for Alienated Children, a structured and highly specialized program developed to assist families in which children have become so alienated from one parent and other relatives that they either refuse contact with the alienated parent or extreme reluctance to spend time with that parent.
The goals of the program are as follows:
a.) To facilitate, repair and strengthen the child’s healthy relationships with both parents;
b.) To help a child avoid being in the middle of his or her parents’ conflicts;
c.) To strengthen the child’s critical thinking skills;
d.) To protect a child from becoming pathologically alienated from a parent in the future;
e.) To help a child maintain balanced views and a more realistic perspective of each parent as well as him/herself;
f.) To strengthen the family’s ability to communicate effectively with each other and to resolve conflicts in a productive manner; and,
g.) To strengthen the parents’ skills in nurturing their children by setting and enforcing appropriate limits.
Dr. Warshak’s program consists of seven phases, which include gaining physical possession of the child, and transporting the child to the location of the intervention (a facility in Texas or California) where the child is oriented to the program. Contact is facilitated between the child and the rejected parent, the parent-child relationship if repaired, and the child is ultimately reintegrated back to his or her family, while either remaining with the previously alienated parent or returning to the rejecting parent (if appropriate).
In most cases of severe alienation, a child will not willingly accompany the alienated parent to the workshop. Therefore, a court must order that law enforcement agents or professional transport agents be used to safely escort the child to the program site. If a child is still unwilling to attend, the transport agents are able to use physical restraints to ensure the child’s safety, during transportation.
Through the use of audio visual materials, such as a DVD’s and slide shows tailored to the child’s developmental level, the child begins to understand how it is possible that he or she has developed an unrealistic and negative view of his or her parent. If and when, through the “repairing” phase, the child begins to relate positively to the former rejected parent, the workshop then provides tools for the parents and child to be able to deal with the inevitable conflicts which will arise once they return home together.
The repair stage of the workshop generally lasts from 3 – 7 days. Once completed, the “aftercare” stage begins, in order help nurture the newly restored relationship and solidify the positive feelings that have developed during the intervention stage.
Dr. Warshak’s workshop is obviously quite expensive, and is considered by many judges to be overly intrusive to a child’s privacy and wellbeing. Many opponents to the program have understandably claimed that it is a violation of a child’s rights, to force him or her (especially by physical force) to leave one parent’s care and attend a program in a different country.
In the case of Filaber v. Filaber (2008), Justice Van Melle ordered that custody of the children be transferred from the alienating father to the rejected mother, and ordered that the mother have the sole authority to pursue whatever remedy is necessary to transition the children from the current alienated state to a normalized and stable relationship with her, including participation in Dr. Warshak’s family workshop.
The recent case of Fiorito v. Wiggins (2011), is not only an excellent review of the topic of alienation, but it also involves one of the most proactive judicial steps that appears to have been taken by any judge in dealing with a high conflict custody case.
In Fiorito, Justice Harper of the Ontario Superior Court of Justice stated the following:
“I find that it is not necessary or helpful to engage in the controversy within the clinical profession about the merits of concepts of parental alienation, realistic estrangement, or family systems based “alienated child” approach. I do find that the focus on the concept of parental alienation creates an environment that could lead to narrow and limiting analysis of very complicated dynamics of family interaction that must be understood in order to find a solution that has the best chance of success. In this case, the pursuit of the label of PAS, diverted many of the professionals.
The relevant inquiry by assessors should not be the search for a diagnosis or a label. The relevant inquiry must be the critical review of the actions of the parents as they impact on the children’s functioning and their needs. If emotional abuse is a serious risk the professionals and the protection agencies must attempt to be more specific as to the cause of the emotional abuse and be more specific as to the depth of the negative consequences, both short term and long term on children in each case”.
Cleverly, Justice Harper finds that all 3 children in this case are “in need of protection” as defined under the Child Family Services Act. This highly unusual step allows Justice Harper to make orders under that legislation, including the involvement of the local Children’s Aid Society (CAS). Justice Harper directs the CAS to act as a supervisor, overseeing the time-sharing arrangements between the parents. Further, he makes an order finding that the mother is in contempt of court, but puts her on probation and requires that the term of her probation be that she comply with all of terms of the custody and access order. If there is breach of the probation order, the matter is brought back before Justice Harper for submissions on sentencing. Justice Harper then makes a multi- directional order, as follows:
“I make the following order:
1. Anna Fiorito is found in Contempt of the order of Thomas J. dated October 24, 2008 and the order of Quinn J. dated, March 5, 2010.
2. Pursuant to the Family Law Rules to enforce my finding of contempt I sentence Anna Fiorito to 6 months probation. The terms of her probation being that she shall comply with all of the terms of the custody and access order as set out below.
3. If there is a breach of probation the matter is to be brought back to me for submissions on sentencing for that breach.
a.) The mother, Anna, shall have custody of the three children under the supervision of the Society.
b.) This order shall be the subject of a review before me in six months to determine if any gains are being made. The expected gains to include:
i. The mother has transformed her present projection of the children’s father as a person to be feared to someone who is a safe and loving father who should be respected and trusted.
ii. The father has stopped any pursuit of having the mother designated as someone who has infused parental alienation syndrome into her children. He must recognize that my findings in these Reasons are findings that relate to the mother’s and his conduct and functioning, based on all of the evidence, that impact on the children’s needs and define each parent’s ability to meet those needs.
iii. The negative actions of one parent that lead to the negative reactions within the other parent must stop now.
iv. Both parents must work with the Children’s Aid Society and any therapist recommended by the Society in accordance with this order.
c.) The mother shall allow the Society to attend at her home without prior notice to her, and interview the children and supervise the custody.
d.) The mother shall not speak negatively about the father or his present wife, Sarah, and she shall promote the father, Jefferson, positively to the children at all times.
e.) The mother shall not permit the children to be subjected to any negative comments or actions of anyone that would negatively impact on the relationship with father and the children.
f.) The children shall meet with me immediately following my oral presentation of these Reasons to the parents. I will then present my reasoning to the children.
g.) The mother shall attend at a meeting with the children and me, immediately following my oral presentation of these Reasons to the parents and the children. She shall tell the children that she promotes the contact and the loving relationship they should have with their father and she will participate in whatever the judge sets out in his judgment in order to make this family work so that the children can have both parents for the rest of their lives.
h.) The Children’s Aid Society shall arrange for counselling for the children to deal with the emotional abuse, their distorted reality of their father and to promote the reunification of the children and the father.
i.) The Children’s Aid Society shall arrange for such counselling for the mother to deal with her anger and need to learn to communicate with the father in order to allow the children to have a positive relationship with their father.
j.) The father shall attend at a meeting with me and the children immediately following my separate meeting with the children and then the children and the mother. This meeting with the father, me and the children is to start the reunification of his relationship with the children and he shall tell the children that he loves them and will do whatever is necessary as the judge directs in order to have a positive loving and healthy relationship.
k.) The father shall attend counselling to deal with his negative perceptions and anger towards the mother and to learn communication skills in order to communicate with his children, given this six month period of transition to the goal of achieving a normalized relationship. The counsellor shall be arranged by the Children’s Aid Society.
l.) The father and the mother shall each produce reports from their respective counsellors detailing the progress, if any, in the father and the mother’s counselling. These reports are to be sent to the other side and filed in court no later than one week prior to the review of this matter.
m.) The parents shall sign any releases necessary for the Children’s Aid Society to receive any report from their counsellors and the children’s counsellors.
n.) The father shall have access to the children in accordance with the schedule below that is a stepped up transition access scheme:
i. The first access after the meeting with the father, myself and the children to outline this judgment to them shall be from 4 p.m. to 6 p.m., supervised at the Children’s Aid Society, on the first two Thursdays following the release of this judgment. At that access visit the father shall tell the children that his wife Sarah will never replace their mother. That he loves them in a way that will never change and cannot be compared to his love for anyone else. Sarah wants to have a close relationship with them but she too does not want to replace their mother.
ii. The father shall have access to the children on the Saturday following the second access visit at Glengarda Children’s Centre. This access shall be monitored by Glengarda. It shall commence at 10 a.m. and end at 1 p.m. The father’s wife Sarah may attend this access.
iii. On the Thursday following the Saturday access as above, the father shall have access to the children from 4:30 p.m. to 7:30 p.m. This access shall not be monitored. The father shall pick up the children and drop off the children at the children’s residence with their mother. The mother shall bring the children to the father and promote the access in a positive manner.
iv. On the weekend following the above Thursday, the father shall have access to the children, unsupervised at his home from Saturday at 10 a.m. to Saturday at 7 p.m. The mother shall deliver the children to the father’s residence and ensure their transfer to the father and promote the access in a positive manner. The father’s wife Sarah may be present during this access, The father shall return the children to the mother’s home.
v. On the following weekend the father shall have the children from Saturday at 10 a.m. to Sunday at 7 p.m. The mother shall deliver the children to the father’s home and the father shall return the children to the mother’s home.
vi. Following the weekend set out in (v) above, the father shall have the children during the week, on Thursday evenings with no supervision from 4 p.m. to 7 p.m. in each week. And on weekends form Fridays at 6 p.m. until Sunday evenings at 7 p.m. alternating from the weekend after the Tuesday set out in this paragraph.
vii. Neither parent shall take the children out of the province without the written consent of the other or further order of this court.
viii. The Children’s Aid Society shall provide a report to me once per month setting out the progress and describing the therapy and counselling that has been put into place pursuant to this order.
ix. Costs of this trial shall be reserved to me to the hearing of the review of this matter as provided in this order.
This is an excellent and comprehensive decision with a far reaching order, one which I believe that many judges will find appealing if resistant to make an order either transferring custody of a child to the rejected parent or forcing a child to attend Dr. Warshak’s workshop.
In the Fiorito case, Justice Harper was prepared to make a very thorough and detailed order in which he was prepared to remain involved in the case in order to ensure that the children’s relationship with the rejected father was restored. If more and more Judges are prepared to deal with these high conflict situations similarly, this will certainly help many rejected parents deal with the disastrous consequences of alienation.