Superior Court of Justice: Family Law Program

Wednesday, May 5, 2010Niagara-on-the-Falls, Ontario

The Alienated Child:Myths, Realities & Effective Responses

Professor Nicholas BalaFaculty of Law, Queen’s University

bala@queensu.ca

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OVERVIEW

• Introduction – New concepts & old problems– Realistic Estrangement vs. Pathological Alienation

• Legal Responses

• Conclusions: Advice for judges – Complexity of cases– Need for fast response– Need for case management

CONCEPTS & DEFINITIONS

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Old problems & new concepts• Resistance of children to visitation, esp. in high

conflict separations always been an issue• 1987: Richard Gardner developed

“parental alienation syndrome”• 2001: Janet Johnston & Joan Kelly

– Not a “syndrome” • DSM issue• Often not all fault of one parent

– Preferable concept is the “alienated child” • Consider conduct of both parents, vulnerability of child,

siblings etc.

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Concepts• Kelly & Johnston: Alienated Child: “child who freely and persistently

expresses unreasonable negative feelings and beliefs (such as anger, hatred, rejection, and/or fear) toward a parent that are disproportionate to their actual experience of that parent”

• Alienating conduct is common in high conflict separations– many (or most) children do not become alienated,

but all suffer from conflict

• Pathological (or Irrational) Alienation vs. Justified Estrangement

• Need to determine whether child’s conduct is justified (eg by abuse, poor parenting etc.) [estrangement]

vs.“irrational” or “pathological”

• Many “mixed cases,” with both parents having some responsibility

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Significance of discovery of “alienation”

• Heightened awareness – > more recognition by mental health professionals,

lawyers, judges– > also more unfounded cases

• research on long and short term harm• research on intervention strategies

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Legal Responses to Alienation & Access Enforcement

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Legal Responses to Alienation & Access Enforcement

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Survey of Canadian Cases: 1989-2008• 623 cases mention “alienation” child/parent

• 175 decisions resolve alienation claim– 24 of 40 cases 1989 - 98 with court finding of alienation(60%)– 82 of 135 cases 1999-2008 with finding of alienation (61%)

• 106 substantiated vs 69 unsubstantiated

• Moms 2 X more likely to be “alienating parent”– Because Moms more likely to have custody/primary care– Only 3/106 alienating parents were access parents

• Dads 3X more likely to make unsubstantiated claim9

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1 0 15

3 4 3

8 8 710 9

12 1210

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13 12 14

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152025

3035

40

1989 1991 1993 1995 1997 1999 2001 2003 2005 2007

Total Canadian Cases Where PA Claimed

PA Claims Increasingly Common

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Presumption of accessDivorce Act

s.16(10) In making an order [concerning a child], 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.

This provision affects both: • creates presumption of access (“maximum contact”) • custody decisions (“friendly parent”)

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Duty to support child’s relationship to the other parent

• Better NOT to view visitation as “right of child,” as this encourages parents to manipulate child.– “The parent does not have to force a child to go with the other parent but

should ‘require’ the child to go.” - Sickinger v Sickinger, [2009] O.J. 2306 (S.C.), per Greer J. – “there was ample … evidence upon which the trial judge could base her finding

of contempt, including the mother's own evidence in which she admitted to doing nothing to encourage the child to have a relationship with the father. In addition, there was ample original evidence upon which the motion judge could find that the mother took active steps to discourage the child's relationship with the father and his extended family.”

- Sickinger v Sickinger, 2009 ONCA 856, per Doherty, Moldaver & Epstein JJ.A.

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Alienation & Access Enforcement: Experts

• 149 of the 175 cases (85%) had court-appointed expert– 83/149 had only 1 court appointed expert (58% of cases with an expert)– 66/175 cases, more than one court-appointed expert – 19/66 (28%) with 2 or more court appointed experts who had significant

disagreements between them

• Court-appointed experts very influential – followed over 90% if clear &unanimous

• Party-retained experts rarely preferred to court-appointed – only 2/29 cases

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Court-ordered therapy: Jurisdiction• 27% of cases (includes both with PA finding & without)• Suggestion of lack of jurisdiction to order parents to counselling:

– Kaplanis v. Kaplanis (2005, Ont CA), per Weiler J. A. • But msot decisions make such orders for parents and/or child to

attend counselling/therpay/education – As condition or incident of custody or access– Or sentence for contempt:

• See e.g. Kozachok v. Mangaw, (2007 Ont Ct J.) per Jones J. • C.A.G. v. S.C. (2005, Man. Q.B), per Douglas J.• Sickinger v Sickenger (2009, Ont CA)• Now accepted by Phil Epstein

• Child’s consent not legally requiredL. (J.K.) v. S. (N.C.) L.(J.K)(2008, Ont. Sup. Ct.), per Turnbull J

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Court ordered therapy: Wisdom• “While the court has the inherent jurisdiction to order

reconciliation counseling, such orders are made sparingly….There should be compelling evidence that the counseling will be beneficial to the participants.”– Snider v. Laszlo, (2009, Ont. Sup. Ct), per Boswell J.

• Ultimately, most effective if those receiving counselling or therapy do so willingly and are prepared to engage

• In cases of less severe alienation, a judicial “push” towards therapy may have positive effects – Judicial persuasion & education– Threat of custody reversal may help engagement

• In severe alienation cases, likelihood of positive outcome for therapy is low, unless change in custody, especially if only the child is in therapy

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Police Enforcement– Court can direct police to enforce access order

• Children’s Law Reform Act, s. 36– In theory – police obliged to enforce; in practice -

reluctant to do so, especially if strong resistance by a child to contact with access parent

– Used by some judges to “motivate” compliance with an access order (10% of cases in study)

– Such orders are highly intrusive and may frighten children, or further polarize an already bad situation

“[order for police involvement] is an order of last resort… to be made sparingly and in the most exceptional circumstances.”

- Allen v. Grenier, [1997] O.J. No. 1198

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Contempt• civil process, but burden of “proof is beyond a reasonable

doubt” of “willful breach” by parent• Purpose is to secure compliance, not punish

– Finding without sentence – Sickinger (Ont. 2009)– Contempt is a “blunt instrument” for promoting better

parenting• Sentences:

• “real restraint” as sentence may harm the child• suspend sentencing to see if compliance• behavioural conditions rather than fine or jail• if flagrant & persistent breach, jail is possible

– alienating parent may becoming a martyr-like to the children • maintain focus on interests of child

– “a jail term [for alienating custodial father ] would be of no benefit to the children” – C.A.G. v S.C., (2005, Man. QB), Douglas J.

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Variation of Custody• Most extreme judicial remedy

– May need to combine with suspension of contact with Alienating Parent• Must demonstrate material change in circumstances and that variation is in the

child’s best interests (capacity of rejected parent?)– Weight risks of change in custody vs likely harm if child stays with alienating parent

• Increasingly common if severe alienation:– Can. cases 1989-2008 of cases where parental alienation found

• 52/106 change custody to alienated parent (9 with no access) • 17/106 change from sole to joint custody as warning/interim stage

– No statistically significant difference in treatment of Moms & Dads– “The trial judge …wrongly focused on the likely difficulties of 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 M.'s long-term interests. Instead, damage which is long-term and almost certain was preferred over what may be a risk, but a risk that seems necessary if M is to have a chance to develop normally.”

A.A. v S.N.A., [2007] B.C.J. No. 1656 (C.A.)

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Other judicial responses

• Costs– Increasingly common– Also monetary penalty payable to frustrated parent

on contempt motion• A.G.L. v K.B.D., (2009, Ont. S.C.) per McWatt J.

• Vexatious litigant– A.A. v S.N.A., 2009 BCSC 387, per Martinson J.

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Non-enforcement of access if not in child’s best interests

• In some cases, despite severe alienation, in child’s best interests not to enforce access to rejected parent e.g. Consider capacities of both parents El-Murr v. Kiameh [2006] O.J. 1521

• Court unlikely to terminate if no fault on part of rejected parent, but may decide to effectively not enforce – Elwan v Al-Tahar, [2009] O.J. 1775

• Supervised “final” visit or independently vetted letter • Hope that relationship may be re-established in future

(Darnall & Steinberg, 2009)

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Expert Evidence & Judicial Notice

Expert Witness

• Court-appointed vs. party-retained• Qualified expert can introduce social science research

• Informing court about research: Without this -> judges may rely on their personal experience as parent/child or bias

• Relating research to specific case

-> R v Mohan as “guidepost”, but not directly applicable to whether court should order assessment or admit expert evidence in family law case

Judicial Notice• “dispositive” fact only to be established on the basis of personal

knowledge of judge or by reference to published sources if the matter is “incontrovertible.” – R. v. Spence, 2005 SCC

• While in family cases judges inevitably rely on their understandings of human behaviour to determine “best interests of child”, problematic to cite social science text or articles– C. A.S. & Family Services of County Colcester v. E.Z. (2007, NSCA)– Isakhani v Al-Saggaf, (2007, Ont CA)

• Best to rely on– Precedents of appellate courts that discuss social science knowledge– Law review articles

• At least, judges should cite source to counsel & seek submissions

How should courts deal with alienation cases?

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Complexity & Challenge of Alienation

• Conflicting versions of events– Parent-child interaction very difficult for court to

assess• Personality disordered and high-energy litigants

– Manipulation of court orders– Complaints to Judicial Council

• Partial responsibility of both parents– “mixed cases”

• Lack of resources25

Judicial Control Need for judicial continuity & control

early identification Psychological assessment

early response before attitudes of child set gain knowledge of dynamics gain credibility & respect of parties important for personality disordered litigants to have clear

limits and consequences Case management Remaining seized after court order Judicial role in education, exhortation & setting limits If court order is breached, judges need to follow through

on threats of sanctions or courts lose credibility26

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Court orders - Clarity• Detailed & specific orders

– limit scope for parental argument– facilitate enforcement– Give clear picture to the judge

• Consider “multidirectional order” to parents and third parties such as schools, MD etc.

• Clearly specify– times & places for transition– record of communication between parents– no (or limited) communication with child during visits– information from third parties– dispute resolution

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Structuring Relationships….• Avoid face to face transitions

– pick-up & drop off at school/day care• Supervised Exchanges• Supervised Access

– usually limited time• Access suspension

– Indefinite for more severe cases• Dealing with Threats of Violence

– restraining order• may have provisions to allow for visits

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Involving Child Protection Agency

• Duty to report emotional abuse?• Neutral source of information• Access to resources

bala@queensu.ca30

SOME REFERENCES• Bala, Hunt & McCarney, “Parental Alienation: Canadian Court Cases

1989–2008” (2010), 48 Family Court 162-177.• Fidler & Bala, “Children Resisting Post-separation Contact With A Parent:

Concepts, Controversies And Conundrums “(2010), 48 Family Court 10-47• Darnall & Steinberg, “Motivational Models for Spontaneous Reunification

With the Alienated Child” (2008), 36 American Journal of Family Therapy 107-115 & 253-261.

• Johnston & Kelly, “Rejoinder to Gardner’s ‘Commentary on Kelly and Johnston’s ‘The Alienated Child: A Reformulation of Parental Alienation Syndrome’”(2004) 42 (4) Fam. Ct. Rev. 622.

• Schirm & Vallant, La Représentation Des Enfants en Matière Famille: Leurs Droits, Leur Avenir, (Cowansville, Qc : Yvonne Blais, 2004).

• See generally special issue Family Court Review 48:1 (Jan. 2010) on Alienation and Children Resisting Contact

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