Children are generally the most vulnerable group involved in matrimonial proceedings. When parenting of children is an issue, one or both parents may begin to alienate a child against the other parent in order to gain an advantage in the litigation. This manipulation results in the child rejecting the other parent and expressing a strong dislike for them.
In M.A.N.R. v. D.J.S., 2018 BCSC 6789, the Court made the following comments regarding parental alienation and estrangement:
- [13] The label of “parental alienation” is blame-laden. It suggests that a favoured parent has campaigned against the rejected parent and altered the child’s perception of that parent. In a case of true alienation, there will be little objectively reasonable cause for the child’s rejection of the parent: N.R.G. v. G.R.G., 2015 BCSC 1062 at paras. 277-278.
- [14] Estrangement, on the other hand, occurs when the child understandably refuses contact with a parent because of that parent’s behaviour. In other words, there is a logical and rational reason for the child’s rejection of the parent.
- [15] I accept the premise that in many cases, elements of alienation and estrangement may coexist.
- [16] In Williamson v. Williamson, 2016 BCCA 87 [Williamson], the Court of Appeal adopted Justice Barrow’s description of parental alienation in D.S.W. v. D.A.W., 2012 BCSC 1522. Barrow J. stated that at the core of parental alienation is:
- … the notion that the child’s decision to refuse to have a relationship with the targeted parent is without justification or without convincing reason. If there is a reason given by the child for taking the extreme step of refusing to have a relationship with a parent, it will often be out of all proportion to the decision taken. The reasons for such decisions need to be assessed with the particular personality and experience of the child involved. What may seem a thin or unconvincing rationale for one child may have a much more convincing force in the context of the personality and experience of another child.
Expert Evidence
In Williamson the court held that parental alienation must be supported by expert evidence:
- [47] Alienation is a serious allegation. In this case, its existence and its root cause were hotly disputed by the parties. Further, as described above, there is a range of mechanisms available to a court to address alienation. Some of these responses could have a long term impact on the child involved. Therefore, in a case such as this, alienation should be proved. Proposed responses should be supported with admissible expert evidence. In determining whether the particular evidence is admissible a court must follow the steps outlined in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 at paras. 22-23. First, a court must examine the threshold admissibility of such evidence in accordance with the well-established factors in R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9 (relevance, necessity, absence of an exclusionary rule and a properly qualified expert). Then, if the evidence meets the threshold requirements of admissibility, the court must exercise its gatekeeper function and balance the potential risks and benefits of admitting the evidence.
- [48] Proof of such a serious allegation requires proper expert evidence to support a finding of alienation on the part of either party and to support that the FRRP was in the best interests of the children.
In M.S.R. v. D.M.R., 2022 BCSC 1398, a recent decision of the BC Supreme Court, the Court affirmed the need for expert evidence:
- [271] Finally, given the serious nature of an allegation of alienation, proof requires proper expert evidence such that the court considers the threshold requirements of admissibility and then its gatekeeper function and balance the potential risks and benefits of admitting the evidence.
In that case, the Court used the expert’s four factor model to assess alienation, which involved scrutiny of the following four factors:
- The child’s relationship with the alienated parent prior to disruption;
- Abuse or neglect on the part of the alienated parent;
- Behaviour consistent with alienation on behalf of the alienating parent, including:
- Limiting contact and interfering with communication
- Confiding in the child
- Badmouthing
- Polarization and/or allowing the child to choose
- Withholding information
- Behaviours consistent with alienation on behalf of the child, including:
- Campaign of denigration
- Weak, frivolous and absurd reasons for the denigration
- Lack of ambivalence towards both parents
- Independent thinker phenomenon
- Lack of guilt regarding poor treatment of the disfavoured parent
- Spread of the animosity to friends and family of the disfavored parent
Intervention
In cases where allegations of alienation are substantiated, the court has a number of tools at its disposal. In N.R.G. v. G.R.G., 2015 BCSC 1062, the Court describes some of the legal responses to alienation:
- Detailed case management and parental conduct orders with cost consequences for non-compliance;
- Judicial exhortation urging compliance and emphasizing the emotional harm caused to the children (generally only effective in less severe cases of alienation);
- Court-ordered therapeutic intervention where appropriate, while recognizing “force-marching” a child to reunification may in some cases be unrealistic and harmful;
- Ordering supervised access/parenting time to allay any child anxiety and possibly pave the way for further strategies to achieve positive relationships;
- Suspension of child or spousal support as a sanction to enforce more engagement with the other parent;
- Transferring custody from the alienating parent to the rejected parent where expert testimony establishes the long-term benefits will outweigh any short-term emotional trauma to the child;
- Terminating access by/parenting time of the alienated parent when the alienation is so entrenched that the “cure is worse than the illness”, recognizing that children do sometimes resume a relationship with a rejected non-custodial parent after a long period without contact, albeit perhaps only in later years.
With respect to counselling and reunification programs, in most cases where one parent had campaigned against the rejected parent and altered the child’s perception of that parent, courts awarded that the costs of reunification counselling be split. The court may be inclined to order the parent participating in alienation to pay the full costs when the parent has caused a severe and significant negative impact on the child.
To learn more or for any other family law questions, please contact any member of our family law group.
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Jasmin Chohan Lawyer | Family Law Vancouver |
This article is intended to be an overview of the law and is for informational purposes only. Readers are cautioned that this article does not constitute legal or professional advice and should not be relied on as such. Rather, readers should obtain specific legal advice in relation to the issues they are facing