When it comes to parental alienation cases – arguably the toughest type of high-conflict custody dispute – case law proves attending lawyers must be sensitive, focused, detail-oriented and well informed on mental health literature, Toronto family lawyer Jennifer Samara Shuber writes in a paper for the Law Society of Upper Canada.
The paper, titled Alienation Update: What Are The Courts Doing With These Cases?, was written for the Law Society’s Six Minute Family Lawyer Program, held last month, and summarizes the case law and judicial responses to alienation in decisions from across the province in the past 12 months.
“Having reared its ugly head for the first time in or around 1985 when the term ‘parental alienation syndrome’ was coined by Dr. Richard Gardiner, sadly, this pathology is here to stay,” writes Shuber, partner with Basman Smith LLP, noting the term has been defined as attempts by one parent to undermine the relationship a child has with the other parent.
“That being the case, how are our courts dealing with these most extreme of high conflict cases? How are judges handling this behaviour, which some have gone so far as to label as child abuse?”
Judicial responses to parental alienation include: ordering an assessment; ordering supervised access on a permanent basis; intervention in the early stages of the dispute, before the problem has had time to become “true” alienation, or in the early years of a child’s development; changing custody on a temporary basis; determining whether “pure” or “mixed” alienation is taking place; keeping the courts involved; suggesting counselling; making a finding of contempt; making a no-contact order; involving the Children’s Aid Society; not making a parallel parenting order; meeting with the children; and in extreme cases, putting the alienating parent’s actions on court record, in hopes that if the child revisits the issue as an adult, they may be able to see what actually took place.
Most of the time in alienation cases, writes Shuber, “the children’s circumstances get worse before they get better if, in fact, they ever improve at all. Alienation cases extract a significant emotional toll on everyone involved: the parties, the children and even the professionals working with the family.”
Such cases are not for everyone, she adds, and staying up to date on alienation research is essential for the lawyer.
“New developments in this area could play a role in how the file is managed. No one – lawyer, judge or mental health professional – has yet found a foolproof way to resolve alienation cases and protect these most vulnerable of children. New and creative approaches are helpful and, arguably, even necessary,” she writes.
“Alienation cases take ongoing attention and the active involvement of counsel every step of the way,” she adds, noting working with co-counsel can be helpful in such situations.
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