Parental Alienation

Draft version February 17, 2009

Introduction

Parental alienation has been recognized by Canadian courts in their rulings. The cases used in this study are examples of 236 alienation claims made by litigants in Ontario family law cases from the Canlii legal database.. The large number of claims would indicate it is a common complaint in divorce actions. From a comparative standpoint, alienation claims were found to be as common as claims of domestic violence and orders for income imputation. Complaints are primarily by fathers but mothers were also affected. The response by the courts is not consistent. Sometimes offending litigants are penalized, or measures to enhance access are ordered. Sometimes not. Police enforcement may be included in the access order to reinforce it. Psychological counselling may be ordered for the children and parents. Parenting or anger management courses are also common measures used to deal with alienation. Both alienators and alienated parents are sometimes required to undergo supervised access. Supervision is most often a transitional measure to reintroduce parents and children. It may also be precautionary to evaluate allegations of risk to the children. Or to try to stem alienating behaviours. Supervised access can also be used as a last resort to maintain contact for parents deemed as unfit. Custody assessments are yet another measure that may be requested or imposed by the court. They are more commonly required for pretrial evaluations, but may also be used for variations, and to diagnose problems such as alienation. In a small number of cases custody reversals were made in an attempt to provide a solution. Courts are very often hesitant to penalize a custodial parent as discussed below by the Supreme Court of Canada in the case of Frame v. Smith, [1987] 2 S.C.R. 99.

Frame v. Smith, [1987] 2 S.C.R. 99

After their separation, the wife was granted custody, with generous visiting privileges to the husband, and more specific orders of access were later issued. The husband maintains that his former wife did everything in her power to frustrate his access to the children: she moved to distant cities without notification, changed the children's surname and religion, told them that the appellant was not their father, forbade telephone conversation with him, and intercepted his letters to them. The husband alleges he has undergone considerable expense and has suffered severe emotional and psychic distress because of this conduct and claims damages from respondents flowing from their wrongful interference with the legal relationship he had with his children.

Permitting civil actions against the custodial parents cannot be said with any certainty to be in the best interests of the child, whether this be by creating a tort or by recognizing a fiduciary relationship arising out of a court order. Like the resort to fines and imprisonment permitted by the Act, these proposed remedies could encroach on the resources of the custodial parent and could cause the child to suffer from the knowledge that one parent has taken such drastic action against the other

The torts of conspiracy, intentional infliction of mental suffering and of unlawful interference with another's relationship should not extend to the family law situation, notwithstanding the fact that the threshold circumstances necessary to them existed.

Summary of Data

To help examine the court ordered results of alienation claims, they have been divided into 9 categories as follows :

1 – Custody Reversal and Denied Access to Alienator

2 – Custody Reversal with Access

3 – Sole to Joint Custody Change

4 – Joint Custody Changed to Sole Custody

5 – No Remedy Ordered

6 – Increased Access

7 – Termination of Access to Alienated

8 – Return of Abducted Child Ordered

9 – Return of Abducted Child Not Ordered

Summarized in Percent

Overview

Men comprised 87.3 % of all parental alienation claims. Categories # 5, # 7 and # 9, depict situations where the alienated got no relief. Men got no relief in 59.3 % of cases. Women got no relief in 39.9 % of cases. Men made 74.6 % more claims than women and women got 19.4 % more relief. Child abduction cases are listed in categories # 8 and # 9.They include international Hague Convention cases, and domestic cases where the Ontario court has declined jurisdiction in favor of another locale. Child abduction cases typically do not include full rulings on the case so cannot provide full data on relief. For the purposes of this study Hague convention cases and domestic declined jurisdiction cases have been separated so a closer examination of remedies ordered by the Ontario courts can be made.

Parental Alienation Cases Excluding Child Abduction

Summarized in Percent

Discussion

Non child abduction cases comprised 83.5 % of cases. Men made 87.9 % of non abduction alienation claims. Categories # 5 and # 7 depict situations where the alienated got no relief. Men got no relief in 64.0 % of cases and women got no relief in 50.0 % of cases. Men made 75.8 % more claims than women, and women got 14.0 % more relief. When relief is adjusted for actual custody changes, men got 33.3 % relief and women got 62.1 % relief. Women actually got 28.8 % more relief than men.

Cases where custody arrangements were changed can be found in categories # 1, # 2, # 3, and # 4. In total 17.8 % of non abduction alienation cases resulted in custody changes. To find which sex actually got relief from custody changes, it must be examined exactly who had custody, and who it was changed to, in each category. In category # 1 four men got custody changed to them. Two woman had custody changed to them. In category # 2, four men had custody changed to them, and 2 men had custody changed to their spouses.. One woman had custody changed to her. In category # 3, eight non custodial men were given joint custody, and one man had his sole custody changed to joint. One woman also had her sole custody changed to joint. In category # 4, six men had their joint custodies changed to sole custody to their ex wives, and two men had their joint custodies changed to sole custody to them.. Three women had their joint custodies changed to sole custody to them, and one woman had her joint custody changed to sole custody to her ex husband. In total 20 custody changes favored men and 15 favored women. Women were custodial or joint custodial parents in 90 % of these cases and received 42.9 % of favorable custody changes.

Cases where access was terminated by the court can be found in categories # 1 and # 7. Another woman who originally had joint custody also had her access terminated ( category # 4 ). 17.8 % of non abduction cases resulted in termination of a parents access. In the category # 1 cases where a man claimed alienation, a womans access was terminated, and vice versa. So in total, the access of 31 men and 5 women was terminated. Men made 87 9 % of alienation claims and recieved 86.1 % of court ordered access terminations. More examples of full alienation can be found in category # 5, in cases where access was being denied and no remedy was offered. In this category the most common total alienations were children who refused to see a parent, and the court would not force them to do so. It was often deemed by that children in such situations had been improperly influenced by the other parent.. As well there were cases where access was not requested, meaning the parent had either rejected the child or acquiesed to the fractured relationship. There were 47 cases where a non custodial male had no access and no remedy was offered. More than half the male no remedy cases resulted in the father having no access at all. Many of the rest involved severely limited access, or were mobility cases where a move was allowed and access would otherwise be very restricted. A small number of the remainder also allowed no access and counselling or assessment was ordered in the hopes of facilitating access in the future. There were 7 cases where a non custodial mother had no access and no remedy was offered. That’s almost 2/3 of female no remedy cases. Combined with the termination cases, 45.7 % of all alienation cases left a parent with no access to their children. 86.7 % were of those parents were men. The court failed to provide a solution to full alienation in almost half of all the cases. Mostly for fathers. In almost 1/5 of the cases termination was directly ordered by the court itself.

For many cases supervised access or counselling was either ordered or voluntarily engaged in by the parents. Their were 36 cases where a male parent was made to have supervised visits with their children, and 4 cases where a female parent was required to be supervised. Fathers were 88.9 % of parents ordered supervised. Counselling for parents and children was ordered in 27, or 13.7 % of cases. A much higher proportion were actually involved in some sort of counselling or therapy due to the private efforts of parents. Only 5 full custody type assessments were noted. A much larger percentage recieved partial evaluations due to allegations of impropriety to the police, Chilrens Aid, or other government agencies. There were 6 non abduction cases where police enforcement orders were attached. Courts are typically loathe to order police enforcement and risk subjecting children to potentially traumatic police apprehension and transfers. Most of those were custody transfer cases.

Cases where access was changed include all categories except #5. Access was altered in almost 50 % of cases for both men and women. That is an extremely high rate of variation for the courts which more typically do not wish to alter the existing status quo in divorced families. Judges are clearly aware of the alienation problem of alienation and are trying to find the means to deal with it.

Child Abduction Cases

Summarized in Percent

Discussion

Child abduction cases were 14.6 % of all alienation claims. 85.3 % of claims of alienation by child abduction were made by men. For the purpose of this study relief has been defined as having the court order the return of the child to the jurisdiction they were wrongfully retained from. 73.5 % of abduction alienation claims received relief. Men received 67.7 % relief, and women received 87.5 % relief. Men made 79.5 % more abduction claims than women and women received 19.8 % more relief.

Conclusions

Parental alienation is clearly a major problem associated with divorce that the courts have sought to address by a variety of methods. It would appear with a 45.7 % full alienation rate that these efforts have not been overly successful. In fact a large number of remedies prescribed may be ineffectual as no means of enforcement was included. The results of this study shows almost 50 % of the claims recieving variations of access and custody. 18.3 % of claims were monitored through supervised access. In 13.7 % of claims there was counselling ordered. In 2 % of claims an assessment was ordered. In 17.8 % of cases the access of a parent was ordered terminated. Men made 87.9 % of non abduction alienation claims. Men made 75.8 % more claims than women, and women got 14.0 % more relief. 86.7% of full alienation results were fathers who no longer had contact with their children. Fathers were also 88.9 % of those deemed to need supervision in their access. Child abduction cases were 14.6 % of all alienation claims. Men made 85.3 % of claims of alienation by child abduction. Men made 79.5 % more abduction claims than women and women received 19.8 % more relief. It must be concluded that parental alienation is a common divorce problem that primarily affects men. Higher rates of relief granted to females brings into question the value the courts place on father child relationships, as well as the effectiveness of any measures put in place to secure them.