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| Nicholas Bala |
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| Rachel Birnbaum |
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| Jessica Farshait |
However, the claim that courts “rarely” take account of family violence in cases of children resisting contact ignores the realities of family justice in this country, and disregards the value of the concept of alienation, properly understood, for promotion of the interests of children. NAWL’s position is inconsistent with a growing body of research, including our own studies about these contentious cases.
While some feminist legal scholars dismiss parental alienation as “junk science,” there is a large body of social science research which establishes that it is a valid and useful concept. Further, and most importantly, there is a substantial body of research establishing that children who experience parental alienation suffer psychological harm. Particularly in more serious cases, the parenting capacity of those who alienate their children is often compromised. The making of repeated, unfounded allegations of abuse or violence may itself be symptomatic of personality disorder and raises concerns about the capacity to be a child-focused parent.
Based on this research, Canadian courts recognize that there are a range of reasons for children to reject a parent post-separation, but a key distinction is between cases of parental alienation (PA), where a child is primarily influenced by a favoured parent to reject the other parent, and cases of realistic estrangement, where the child is rejecting a parent primarily because of their own experiences with that parent, due to abuse or poor parenting, or as a result of having witnessed one parent been violent towards the other. The courts recognize that it is challenging, but necessary, to make this distinction.
Although we share the concern of NAWL that abusive or inadequate parents often make unjustified claims of parental alienation (PA) to explain their rejection by their children, we also share the view of many family justice professionals, including Canadian judges, that PA is an important, useful concept.
We undertook an analysis of the 172 reported Ontario family cases in 2021-23 that raised alienation claims. Mothers as well as fathers can be victims of alienation. In cases where fathers are the alienating parent, they often were also intimate partner violence (IPV) perpetrators, resulting in children taking the side of the parent perceived as more powerful. The court found PA in only 63 cases (36 per cent), suggesting that judges carefully scrutinize these claims. Although more of the cases involved alienation mothers (43=68 per cent) than fathers (20=32 per cent), the court found alienation at higher rates against fathers (20/47=47 per cent) than against mothers (43/138=31 per cent).
Many cases with claims of both IPV and PA (n=103/172: 60 per cent), but there were also a substantial number of cases with only PA issues. More significantly, we found no evidence of courts focusing on only alienation if both issues were raised. The major challenge for the courts in these cases is assessing of the reliability of the evidence of the parties, especially if there is a lack of independent evidence from agencies like the police, child protection or a court-appointed assessor. More government resources for assessments and investigations would clearly help the courts and promote the interest of children.
A major focus of family judges (and family lawyers) in Canada is on the conferencing process, trying to encourage parents to settle their disputes whenever possible, perhaps by the using of community-based counseling for all family members. There is an effort to try avoiding labeling one parent as “good” and the other as “bad.” Some disputes, however, need to be resolved by a judge. Even when judges make a finding of alienation, they have a nuanced approach, focusing on the best interests of children, often ordering community-based counseling, or increasing the parenting time or decision-making role of the alienated parent.
In only nine of out 63 (14 per cent) of cases where the court found alienation did it order “custody reversal,” in seven cases removing the child from the primary care of an alienating mother, and in two from the alienating father. Custody reversal is clearly seen by the courts as a “last resort” (see S.v. A., 2021 ONSC 5976) response to cases where the alienating parent is significantly compromising the well-being of a child. In only one case (see Bors v. Bors, 2021 ONCA 585) was there a custody reversal despite a finding that an alienated father had committed an act of family violence. The father had attached a tracking device to his former partner’s car more than six years earlier, but subsequently the alienating mother made several unfounded claims of child abuse against the father to the child protection agency and she consistently defied orders for the father to have parenting time.
While the express wishes of children are important, and must always be known by the court, Canadian society does not allow children to make the decision to remain with abusive or neglecting parents, and recent cases (see Y.H.P. v. J.N., 2023 ONSC 5766) have held that serious alienating behaviour is a form of emotional abuse and family violence.
In another recent study, we attempted to contact the parents and children in every Ontario case decided between 2010 and early 2022 where the court found alienation and reversed custody. We were only able to interview six now older children and young adults. When the court dealt with their cases, all expressed the wish to remain with their alienating mothers, but by the time of the interview, all reported that they understood why the court made the decision that it did and were content their living with fathers.
Unfortunately, at the time of the interviews, none had a relationship with their mothers, but this was not because of their fathers. Often after custody reversal, an alienating parent lacks the judgment and resilience to deal with the new situation and have a relationship with the child. It is challenging to do this type of retrospective research, and there are also reports of individual children who found court-ordered custody reversal distressing and returned to their favoured parent.
Like so many issues related to parenting disputes and the best interests of children, a determination that there has been parental alienation requires an often-complex set of factual findings specific to a case. Despite the challenges in determining whether there has been parental alienation, and if so, deciding how to respond, Canadian courts and family justice professionals have been justified in using the concept. Individual cases are often multilayered and complex, but the simplistic banning of the use of parental alienation will not advance resolutions that promote the best interests of children.
Nicholas Bala is a distinguished professor of law at Queen’s University. Rachel Birnbaum is a distinguished university professor emerita, cross-appointed in social work and childhood and youth studies, King’s University College at Western. Jessica Farshait is a J.D. student at Queen’s University. A more detailed version of this article will be presented at the Law Society of Ontario Family Law Summit on March 20. This research is supported by the Social Sciences and Humanities Research Council and the Canadian Foundation for Legal Research.
The opinions expressed are those of the author and do not reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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