Family Law

I wanted to analyze how the courts of Canada were addressing the challenge of parental alienation.  With the assistance of some students, we looked into the two major case data bases:  Quicklaw and E-Carswell (up to January 31, 2009).  We endeavoured to summarize all of the cases where the court made a finding that Parental Alienation existed based on the facts of the particular case.

SAMPLE: We found a total of 74 cases where parental alienation was found to exist.  The time frame was from 1987 to Jan. 31/09.  The division by gender was:

• Mother alienator: 50
• Father alienator:  24

FREQUENCY OF RESIDENCE CHANGE

I wondered how frequently the court had changed custody from the alienator parent to the target parent.  Here is what we found: 

• Of the 50 mother alienator cases, the courts changed residence to the father target parent in 31 of them (62.0%).
• Of the 24 father alienator cases, the courts changed residence to the mother target parent in 19 of them (79.2%).

I wondered if there was any difference in the more recent cases.  From 2001 to Jan. ’09, here is what the data showed re residence change:

• Mother alienators have had residence changed 25/35 = 71.4% of the time.
• Father alienators have had residence changed 14/18 = 77.8% of the time.

FREQUENCY OF ACCESS BEING GRANTED TO ALIENATOR PARENT

When the court changes custody, the court can either grant access to the alienator parent or the court can deny all access to the alienator.  All access is denied (at least for a period of time) to enable the target parent to re-establish a relationship with the child free from the alienator parent continuing to undermine that relationship.  I wondered how frequently access was being granted or denied to the alienator parent when the child’s residence is changed to the target parent.  Here is what we found:

• Recall from above that of  the 50 mother alienator cases, the courts changed residence to the father target parent in 31 of them (62.0%). Of those 31 cases, the court granted access to the mother alienator in 26 of them (83.9%) and denied access to the mother alienator in only 5 of those 31 cases (16.1%).
• Recall from above that of  the 24 father alienator cases, the courts changed residence to the mother target parent in 19 of those 24 cases (79.2%).  Of those 19 cases, the court granted access to the father alienator in 12 cases (63.2%) and denied access to the father alienator in 7 (36.8%) of those 19 cases.

FREQUENCY OF COUNSELING BEING ORDERED

Counseling can be an effective means to begin to repair relationships and educate parents.  (Of course, much depends on the skill of the counselor and the willingness of a parent to receive guidance.)  I wondered to what extent the courts were requiring the children and parents to participate in counseling.  Here is what we found:

• Of the 50 mother alienator cases, the courts ordered counseling in 12 cases (24.0%).
• Of the 24 father alienator cases, the courts ordered counseling in 13 cases (54.2%).
• Where the mother was the alienator, she was ordered into some form of counseling on 7 of the 50 occasions, or 14%.
• Where the father was the alienator, he was ordered into some form of counseling on 7 of the 24 occasions, or 29.2%.
• Of the 16 cases during 2008 plus the one case reported in January 2009, the court ordered counseling in nine of them.  Within those nine cases, the alienator was ordered into counseling in four of them and it was "suggested" that counseling be undertaken in two additional cases.

I am happy to report that there is some reason to be optimistic with respect to how the law is developing in Canada. It would appear to me that the courts of Canada are increasingly taking more drastic measures to ameliorate the effects of parental alienation.  From changing residence, to counseling for all concerned, to making contempt findings (not discussed in the above summary) -  the tendency appears to be in favour of proactively addressing the problem.  The conventional wisdom years ago was that "time heals".  It is my view (and that of many other professionals who have expertise in this area) that time often does not heal.  Resolute action is required.  Judges seem to be  increasingly aware how important it is to ensure that children are enabled to have a relationship with both parents.

Issues that still need to be proactively addressed include:

• Obtaining a speedy remedy from the court (many P.A. cases take years to come to trial);
• Obtaining a cost effective remedy from the court (legal fees tend to be quite high in P.A. cases); 
• Encouraging the court to enforce its own orders immediately upon learning of a violation (courts historically would warn misbehaving parents numerous times before any action would be taken);
• Instituting procedural reforms in family courts so that high conflict cases such as P.A. cases are managed by one judge (case management exists on paper in some jurisdictions but it is rare for one particular judge to take full control of a case).

I presented my research findings at the First International Symposium for Parental Alienation Syndrome in Toronto on March 27, 2009.  A more comprehensive report is currently being prepared for publication.

Gene C. Colman

March 31, 2009