Posts

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

Child Custody and Access Introduction

One of the most significant concerns for parents, if not THE most significant concern, on separation is what will happen with the children.  Where will the child live? Who is going to make decisions for the child regarding their education, religion, or medical care? How much time will each partner spend with the children?

These questions are related to custody and access and this post will focus on those issues alone.  Child support issues are covered in our previous post here.

There are two different statutes dealing with custody and access in Ontario: the Divorce Act for married spouses, and the Children’s Law Reform Act (“CLRA”) for non-married and married spouses (see our post on married vs. Common law spouses for details on the difference between both types of relationships).

But what is the difference between custody and access? Are they not the same thing?

The person who is responsible for the child on a daily basis and makes daily decisions for the child is said to have custody of the child.  This can include decisions on things like: education, religion, and health care.  It does NOT automatically mean which parent the child will live with, although generally the person with sole custody is the parent with whom the child resides.

Access on the other hand is the ability to visit and ask for information regarding the child’s health, education, religion and general welfare.

When making a decision regarding custody and access, the courts will consider the “Best interests of the Child”, see s. 24(2) of the CLRA.  These include:

(a) the love, affection and emotional ties between the child and,

(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

(b) the child’s views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) any familial relationship between the child and each person who is a party to the application.

With these two terms defined and a background on the best interests of the child, we can approach what types of custody and access there are.

 

Custody

S.20(1)  of the CLRA provides that both parents have equal entitlement to custody of the children. However this entitlement is limited by s.20(4) of the CLRA.  What this means is that if the child resides with one spouse and you decide to move out, you could effectively be giving away custody rights to your child.  However you do not lose access rights.

Parenting decisions post separation can be approached in multiple ways.  These can include the following:

Joint Custody
With this, both parents must agree on major decisions regarding the child.  This arrangement requires that both parents co-operate well together to ensure the children are raised well and it works best when both parents have the same values and ideals on how to raise the children.  The parents may even choose to divide the decision making responsibilities.  For example, one parent may take the responsibility regarding education decisions while the other makes decisions regarding health care.

Sole Custody
One parent makes all the important decisions regarding the child.  They may have to communicate with the other parent about the decisions, but ultimately the parent with sole custody does not need the consent of the other parent.  Usually, if there is sole custody the other parent has access.

Split Custody
Each parent has sole custody of one or more children.  This is a rare solution for custody as courts generally do not like to separate siblings.  This type of custody is usually provided where the children are older and can express their opinions about which parent they want to live with.  With that, if the court determines that this opinion of the child should be given considerable weight, they may then grant split custody.

Shared Custody
This term is usually confused with joint custody.  This type of custody is actually an access arrangement and does not indicate which parent has legal decision making power, although custody arrangements can be included here (which helps contribute to the confusion).  You can have shared custody whether or not you have joint custody.  With shared custody, both parents have the child for at least 40% of the time.  Essentially, the child’s time is split evenly between the parents.  This type of arrangement can also impact how much child support is to be paid (see child support post for more details).

Access

Under the s. 20(5) of the CLRA parents are entitled to visit and be visited by the child.  This also includes the right to make inquiries and be given information about the child’s health, education, and welfare.

Types of access include the following.

Reasonable Access – sometimes called liberal or generous
If parents are able to co-operate, then access can be left open and flexible.  This type of access is heavily customizable as both parents simply communicate and negotiate access on an on-going basis as they see fit.

Fixed or specified Access
This will include a detailed access schedule with dates and times for access to be exercised.  This can cover things such as: holidays, long weekends, birthdays and so on.  You can also identify where access will take place and who will pick up and drop off the children.

Supervised Access
This may be required if one of the parents demonstrates the following behaviour:

  1. Substance Abuse;
  2. Domestic Violence;
  3. Parental Alienation.

The person supervising the access can be a relative, friend, social worker, worker at a supervised access centre, or even a Children’s Aid worker.  This kind of access is generally only done on a temporary basis.  If it’s determined that the visits are benefiting the child and the parents respect the terms of the access orders, the access can progress to unsupervised access and can also gradually increase over time.

No Access
This is an extreme result where a parent might not be able to access the child at all.  An order for no access can result where there is serious neglect of the child, abuse, or if the child’s safety cannot be protected even if supervised.

Other custody and access issues

A parent cannot refuse access to the other parent unless there is a court order to that effect.  If a parent does refuse access to another without proper justification, that parent may be found in contempt of court.  If that behaviour continues, the parent refusing access could suffer serious ramifications.

Child support and access are two different things.  A parent cannot be denied access if support is not paid, and support would likely still need to be paid even if there is no access.  It is also possible for a non-parent to be given custody or access, but this must be determined in accordance with the Best Interests of the Child.

Parents have the ability to outline their desires in a Parenting Plan which can be included in a separation agreement.  See our post on separation agreements to learn more.