How Do Judges View Parental Alienation in Custody Disputes?

In last week’s Blog titled “How Do You Prove “Parental Alienation”?, we talked about the concept of “parental alienation”.  It’s the phenomenon where one parent – usually consciously –attempts to keep the child away from the other parent, or else orchestrate the deterioration of their relationship. In the context of an acrimonious divorce or separation, in most cases the parent’s goal is to have the other parent’s access to the child be terminated altogether.

Unfortunately, Canadian judges see this kind of misconduct often in the context of acrimonious divorce proceedings.  An important question arises:  How do judges view and deal with parental alienation, in when deciding on disputes between parents?

The short answer is this: Judges take a strong stance in response to established parental alienation by one parent against the other, and can address it through various court orders. This article will highlight some of those judicial responses, and will illustrate with a few real-life scenarios.

What Do Courts Recognize as Parental Alienation?

To understand how judges may react to parental alienation, it is necessary to first understand what the concept entails – because this is the conduct judges are tasked with addressing.

As some of our prior Blogs have noted, there is a long list of behavior by one parent that has been identified as resulting in parental alienation.  It can include the following:

• Verbal abuse, yelling, name calling and insults
• Making unsubstantiated allegations against the other parent
• Routinely changing plans (especially last minute) or changing court-ordered parenting time without justification
• Denying access to the child
• Placing unrealistic demands on the other parent
• Behaving in a way that actively undermines the other parent, or deliberately fails to support the other parent’s relationship with the child.

In short, courts recognize parental alienation as a form of emotional abuse, with potential long-term negative repercussions with for the child.

Parental Alienation Syndrome

The next thing to know, is that Ontario courts not only recognize parental alienation for the purposes of allocating parenting time and decision-making responsibility (formerly called “custody” and “access”), but they also recognize the impact it has on the child.  This is especially true in those cases where the child has adopted the negative views about the alienated parent that have been fostered and encouraged by the other one.

So much so, that courts even recognize it by name: “Parental Alienation Syndrome”.  In a case called S. (N.) v. N. (C.) this was defined as “the child’s campaign of denigration against a parent … [which] results from the combination of a programming (brainwashing) parent’s indoctrination and the child’s own contribution to the vilification of the target parent.”

This kind of “brainwashing” is taken into account by judges, when making court orders that address the parties’ legal issues.

For example, it can play into the importance that that a judge gives to the wishes of a child, when making decisions on parenting time and decision-making responsibility.  In the face of established parental alienation, the judge may discount the wishes of the brainwashed child, or even ignore them altogether.  This is to recognize that the child’s views may be a vicarious expression of the ones held by the parent doing the undermining – i.e. serving simply as a “mouthpiece” for that other parent.  This is a deviation from the customary legal approach where the preferences of a child – especially an older one – are normally given significant weight by the judge making the ruling.

Courts Will Intervene

This brings us to the key question:  What will judges do, when parental alienation is established?  Not surprisingly, they have various responses in their arsenal, that are designed to counteract this kind of misconduct through judicial means.

Tailoring the Order

The first option by the judge is to address it an early stage, by tailoring their order on parenting time / decision-making responsibility. The order can be crafted to best suit the situation, so that the one parent’s attempts to estrange the child from the other parent are specifically counteracted.

Furthermore, judges are careful not to “reward” the alienating parent for his or her destructive misconduct – and that often means the judge will tend to refuse to grant that parent’s requests for various orders. Judges routinely avoid reinforcing an alienating parent’s disparaging approach to the other parent.

Therapy, Treatment, or Counselling

Judges can also order therapy or other treatment, as part of their order-making authority.  This usually includes reunification therapy involving the child and one or more parents, which is aimed at re-establishing the relationship with the parent who has been alienated. Note that if the alienating parent refuses to attend such counselling when ordered to do so, the judge can reduce or deny his or her access to the child in appropriate circumstances.

Changing Parenting Time and Decision-Making Responsibility

Finally, if there is already a parenting time/decision-making responsibility order in place, its terms can be changed if a judge finds that parental alienation is taking place. The judge may even decide to reverse a prior order, and give parenting time/decision-making responsibility to the parent who is the target of the alienating efforts. Or, the judge may allow the alienated parent to relocate with the child, away from the other parent; this counteracts the risk that his or her access rights will be frustrated, or that there might be further damage to the parent-child relationship. A judge may even order the parent’s access to be terminated outright – though this will typically be invoked only as a last resort. As always, the guiding factor is what is in the best interests of the child.

Conclusion

When faced with parental alienation by one parent against the other, Ontario Family Court judges respond decisively.  That’s because they recognize the serious harm in can inflict on not only the alienated parent, but also on the child involved.

Judges will employ strategies that are tailored to each family’s circumstances, and will focus on achieving the legal result that best fosters the child’s best interests – which typically involves preserving and strengthening the relationship with both parents, not just one.

S. (N.) v. N. (C.) (2013), 34 R.F.L. (7th) 296, 2013 ONSC 556, 2013 CarswellOnt 3021 (Ont. S.C.J.) at para. 32.

See for example Thom v. Thom, 2013 ONSC 5398, 2013 CarswellOnt 11798, 37 R.F.L. (7th) 183 (Ont. S.C.J.), additional reasons 2014 CarswellOnt 1224, 37 R.F.L. (7th) 192 (Ont. S.C.J.).

See for example Leggatt v. Leggatt, 2015 ONSC 4502, 2015 CarswellOnt 10660 (Ont. S.C.J.), additional reasons 2015 CarswellOnt 12276 (Ont. S.C.J.).

See for example A.M. v. C.H., 2019 ONCA 764, 2019 CarswellOnt 15391 (Ont. C.A.).