As family law practitioners, some of our most difficult work are those cases involving parental alienation. We all — well, those of us who take on disputed custody and access cases — have had those terrible, terrible files where all we can say to ourselves is, "Why can't this parent see the real harm is being put on the child?" All too often, one parent just can't get past the fact that a separation between spouses needs to be kept out, as much as possible, of the children's everyday lives. Go ahead, hate your ex, but don't stick the kids in the middle of it.
As counsel, we need to ensure that our clients understand the consequences when they take steps to unreasonably and unnecessarily push the other parent out of the child's life by creating friction and unfamiliarity with the relationship.
Alienation cases have always been difficult to prove. In the past, courts did not seem as ready and willing to change a status quo, notwithstanding the long-term effects on a child's relationship with the other parent. In these cases, the alienating parent creates a situation such that the child dislikes, or is extremely uncomfortable or unfamiliar with, the access parent, and the courts were hard pressed to change a status quo forcing a child into "unfamiliar territory." What has been happening more and more in the last 18 to 24 months is a reversal of how the courts deal with alienating parents. Rather than maintaining status quos, the judiciary is becoming more proactive in changing the custodial arrangements to minimize "dominant" contact with the alienating parent by putting the marginalized parent in the dominant role.
In a recent decision of the Alberta Court of Queen's Bench, Justice Andrea Beverly Moen, in T.S. v. A.V.T., made a very thorough and common-sense ruling in a rather horrific case of alienation by the mother. This case had been ongoing for approximately five years. There were some 14 court applications relating to access, guardianship, contempt, assessments, and others.
The mother in this very sad story did everything she could to push the father out of the child's life. She failed to adhere to court-ordered access without any substantiated reasons, including alleging that the child needed to be breastfed at three years of age; she refused to co-operate with court-ordered assessments; she accused the father of abusing alcohol and having violent outbursts. Worst of all, she made unfounded allegations against the father of sexual and physical abuse towards her, her other daughter, and the parties' child. The child was, as a result, forced to undergo assessments and intrusive physical examinations to look for signs of abuse. None of the mother's allegations were ever substantiated.
Moen allowed her some latitude in the hopes that the threat of contempt would finally make her see that she needed to step back and co-operate. After several years of this, and what I must say is a great deal of patience on the father's part, Moen was left with little to do but change custody, granting the father custody of the child, including primary residence. The mother was ordered to do all of the travelling for access visits. In addition, Moen ordered the father to set up a web cam so that some access could occur via internet. The father, however, was granted the primary caregiver and decision-maker role, being the one that was most co-operative and understanding of the child's true needs, including having the mother in its life.
In Donald v. Leyton, a recent Ontario decision of Justice C. Raymond Harris, custody was again changed from the status quo of the mother being in control to granting sole custody and primary residence of the child to the father. This too is a rather sad case and a show of great patience and perseverance on the part of the father and his counsel. Here, the parties were only together a brief period of time. Shortly after the child's birth, the mother left with the child, without informing the father. Again, whatever she could think of to keep the father out of the child's life she did. She never allowed the father to change a diaper, feed the baby, put the baby to sleep, hold the baby. She accused the father of being controlling and abusive towards her and her mother, and made police complaints against the father. She was simply out of control until Harris stepped in and completely reversed custody. Harris ordered that the child's primary residence be with the father and that the mother have access on some alternating holidays and in the summer. All other decisions, including any additional access, would remain the sole decision of the father, again, given his ability to be co-operative and act in the child's best interests.
Although the process is still lengthy and emotionally trying, to say the least, these and other recent cases are a clear sign that the judiciary is recognizing that problem parents cannot be permitted to continue taking advantage of status quo situations, and that the best interests of the child clearly include long-term, well-adjusted relationships with both parents.
Marta Siemiarczuk is a lawyer practising family law litigation and collaborative family law at Nelligan O'Brien Payne LLP LLP in Ottawa. She can be reached at firstname.lastname@example.org
[This article is reprinted with permission and first appeared in the September 2008 issue of The Law Times.]