Custody and Access: Parental Alienation

One problem that clients often come to me with is that they feel that the other parent is alienating them from their child.  This is a serious allegation and one that usually occurs during high conflict circumstances. Clients often describe this alienation as “she’s telling the kids that I hate them” or “he’s telling the kids all about our case and that I don’t care about them.”  Statements like these could potentially fall under the category of parental alienation (to learn more about custody and access and the differences between them, see our previous post on Custody and Access for more information).

Parental alienation has been legally described by Justice Zuker as follows:

[I]n some cases a custodial parent will make unfounded allegations and alienate the children from the other parent by inducing unfounded fears about the access parent in the child’s mind. This has been referred to by some mental health professionals and lawyers as “parental alienation syndrome” or “malicious mother syndrome,” though these are not clinical “diagnoses” that a mental health professional can make, but rather are a conclusion about a particular state of facts….[1]

 

It has also been described by Dr. Janet R. Johnston as a child that:

“expresses freely and persistently, unreasonable negative feelings and beliefs (such as anger, hatred, rejection and/or fear) toward a parent that are significantly disproportionate to the child’s actual experience with that parent. Entrenched alienated children are marked by unambivalent, strident rejection of the parent with no apparent guilt or conflict.”[2]

What we’re seeing here is that alienation is set out heavily in the facts of the case.  A set of core elements to determine parental alienation is described in L.R.H. v. A.K.H., 2003 BCSC 1201, [2003] B.C.J. No. 1820 at para 48 as follows:

  1. a campaign of denigration by the children where they continuously profess hatred of the alienated parent;
  2. the children give weak, absurd or frivolous rationalizations for the deprecation of the alienated parent;
  3. the children show no ambivalence about their parents: one is entirely “good” and the other only “bad”;
  4. the independent thinker phenomenon;
  5. the children offer reflexive and complete support of the “good” parent in the parental conflict;
  6. the children do not appear to feel guilty over cruelty to and/or exploitation of the alienated parent;
  7. the children’s descriptions of the alienated parent sound rehearsed, coached or borrowed; and
  8. the children’s animosity spreads to the friends or extended family of the alienated parent.

This case goes further to describe the alienation as an extreme where one parent essentially coaches the children to promote hatred against the other parent.

What these legal precedents show us that in order to prove this alienation, the parent will have to clearly demonstrate deliberate action on the part of one parent to turn the children away from the other.

If this can be proved, it is a very real consideration regarding custody and access decisions in court.  For example, take a look at s. 16(10) of the Divorce Act (“DA”):

 

Maximum contact

(10) In making an order under this section, 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 means that BOTH parents are obligated to ensure that the child has a relationship with the other parent and to help facilitate access to that parent so long as it’s in the best interests of the child.  A general way of looking at this is that even if you don’t happen to get along with the other parent, so long as the child is safe with the other parent, you are basically required to ensure that your child sees them.  This will of course have to be determined in a case by case basis factoring in the best interests of the child under s. 24(2) of the Children’s Law Reform Act.

 

See the cases below for an idea of how custody and access could be arranged or changed due to parental alienation:

DeSilva v. DeSilva, [1997] O.J. No. 330 (Gen.Div.),

  • father had seriously hampered older daughter’s relationship with mother
  • court found that significant damage had already been done to the relationship
  • factoring in the child’s age and wishes, making a change in custody at that time was unrealistic and unworkable

Rogerson v. Tessaro, 2006 CanLII 15126, [2006] O.J. No. 1825 (C.A.),

  • custody was varied from mother to father
  • mother’s alienation of the children from the father was not in children’s best interests
  • mother’s conduct included:
    • not telling father about nor giving him medications prescribed for children
    • mother moved towns and uprooted the children, indicated to father she would move again if he moved to her new town
    • mother’s behaviour persisted even in the face of assessments and court orders
    • father had shown himself to be a caring and capable parent who understood the importance of the children’s relationship with the mother

Fiorito v. Wiggins, 2013 ONSC 4272, [2013] O.J. No. 3153,

  • custody was granted to father
  • three children had lived primarily with mother after separation
  • court order in 2008 provided detailed and generous access to father that mother was not following
  • mother found to be continually obstructing and undermining children’s access to the father
  • court also found that since separation, the children’s relationship with father transformed into one based on fear and an intense dislike which was found to be primarily caused by the mother
  • court ultimately found that the mother could no longer have custody of the children as she was inflicting harm and emotional abuse upon the children

This blog is intended for legal information purposes only and is not to be construed as legal advice.

[1] Dixon v. Hinsley, [2001] O.J. No. 3707, 22 R.F.L.(5th) 55

[2] Dr. Janet R. Johnston, “Children of Divorce who Reject a Parent and Refuse Visitation: Recent Research and Social Policy Implications for the Alienated Child”, Family Law Quarterly, Vol. 38, No. 4; Winter (2005) at 757-775