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Lorne MacLean, QC, MacLean Law, Vancouver

VANCOUVER PARENTAL ALIENATION – PART 2

Vancouver parental alienation lawyers continue a legal focus on the heartbreaking issue of Vancouver parental alienation. Lorne N MacLean, QC our founder was a regular guest on Family Matters TV and explained the concept of parental alienation in the show’s most popular episode and he has handled a number of these difficult cases.

Vancouver Parental Alienation Lawyers Act Across BC and In Calgary

MacLean Family Law is BC’s largest family law firm and our Vancouver parental alienation lawyers act across BC and In Calgary Alberta and out of our 4 offices in downtown Vancouver, South Surrey, Kelowna and Fort St John BC. Call our Vancouver parental alienation lawyers toll free at 1-877-602-9900.

Today’s blog by our top* Vancouver parental alienation lawyers, follows Part 1 in our series on parental alienation. In Part 1, we canvassed what parental alienation is. In Part 2, we are going to talk about the effect of parental alienation on the children and urgency in parental alienation cases.

Parental alienation disputes can involve situations where one parent intentionally separates a child from the other through negative comments about the other, or where a child breaks contact with a parent for no apparent reason. These situations have occurred in numerous cases our Vancouver parental alienation lawyers have handled or are handling, and we are here to help.

What Effect Does Parental Alienation Have On Children?

Our skilled Vancouver parental alienation lawyers explain to spouses and judges that The United Nation’s Convention on the Rights of the Child indicates that children have a right to build and maintain relationships with their parents, have appropriate directing and guidance from their parents, and have the right to have all decisions made for them with their best interests at heart.

Hire Experienced Vancouver Parental Alienation Lawyers Who Act Immediately Before The Situation Escalates

Our Vancouver parental alienation lawyers are multiple winners of Vancouver’s Top Choice Award for Family Law and led by one of Western Canada’s top* family lawyers Lorne N. MacLean, QC who has presented on parental alienation and been interviewed by Judge Harvey Brownstone on the topic on one of Family Matters TV Show’s most popular episodes.

You can meet with our Vancouver parental alienation lawyers with full confidence that we will accurately assess your case and prepare a powerful argument to maximize your chances of success. Our toll-free number is 1-877-602-9900. We have offices in Vancouver, St. John, Kelowna and Surrey.

In Gordon v Goertz, [1996] 2 SCR 27, the Supreme Court of Canada – the highest court in the nation, noted that contact with both parents has been expressly adopted as being in the child’s best interests:

24               The second factor which Parliament specifically chose to mention in assessing the best interests of the child is maximum contact between the child and both parents. Both ss. 16(10) and 17(9) of the [Divorce] Act require that “the court shall give effect to the principle that a child of the marriage should have as much contact with each former spouse as is consistent with the best interests of the child”. The sections go on to say that for this purpose, the court “shall take into consideration the willingness of [the applicant] to facilitate” the child’s contact with the non-custodial parent. The “maximum contact” principle, as it has been called, is mandatory, but not absolute. The Act only obliges the judge to respect it to the extent that such contact is consistent with the child’s best interests; if other factors show that it would not be in the child’s best interests, the court can and should restrict contact: Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3, at pp. 117-18, per McLachlin J. Lorne N MacLean, QC was the winning counsel on Young v Young, Canada’s most famous child custody case.

What Are The Rules For A Child’s Relationship With Both Parents?

Notwithstanding these rights, the assumption that the best interests of the child is in seeing both parents may be displaced.

In A.A. v. S.N.A., 2007 BCCA 363 (CanLII), a trial judge decided that a child of the marriage, referred to by the letter M, was to remain with the mother (Ms. A), despite Ms.A’s “intransigence and determination.” The trial judge acknowledged that M’s relationship with Ms. A may be damaged if M returned to her father, and that this was as a result of Ms. A. The Court of Appeal (the highest court in British Columbia) overturned this verdict:

[25]           The trial judge found it impossible to predict whether M would survive psychologically the “experiment” of changing custody in the only manner that would be available given Ms. A.’s “intransigence and determination”. Certainly, he noted, great damage would be done to M if the attempt failed or if she were unable to cope with the trauma of the “forcible rupture of her relationship with her mother and grandmother”. (Para. 85.) Considering that Ms. A. was not amenable to treatment and that she had “undermined and sabotaged” the attempts made during the course of the trial to re-establish the relationship between M and her father, the trial judge continued:

The court must focus carefully on M.’s best interests. The probable future damage to M. by leaving her in her mother’s care must be balanced against the danger to her of forcible removal from the strongest parental connections she has. I am cognizant of the inability of the court to control and manage the chaotic day-to-day results of a forcible removal of a child from a close parental bond. I conclude that the forcible removal of M. from her mother’s and her grandmother’s care has a high likelihood of failure, either because M. will psychologically buckle under the enormous strain or because she will successfully resist re-integration with her father.

Considering all of the circumstances, I cannot find that it would be in M.’s best interest to be forcibly removed from her mother’s care. [At paras. 87-8.]

In the result, he ordered that sole custody and guardianship of M be granted to Ms. A., that the child attend regular counselling sessions until reaching age 18, and that Mr. A. have access only if M “voluntarily expresses the desire to have him exercise access.”

[26]           The trial judge was indeed faced with a “stark dilemma” – albeit one created largely by the custodial parent. He was obviously aware that he was required to “focus” on M’s best interests. He carefully reviewed the evidence and made clear findings of fact. As has been seen, these findings militated almost exclusively against the mother’s continuing as the custodial parent. Yet at the end of the day, the trial judge chose to leave M in a situation that he said would be detrimental to her in the long run and indeed had “already been detrimental to her”. He found that this damage, which would almost surely continue, was preferable to making the “fundamental change” that Dr. Krywaniuk had stated was necessary. Expressing regret regarding the “inability” of the Court to manage the results of the forcible removal of the child from her mother. The trial judge deferred to a “highly manipulative” and “intransigent” parent who would clearly never permit her child to have any sort of relationship with her father.

[27]           We are of the view that in so concluding, the trial judge erred in law. We agree with counsel for the appellant that the trial judge wrongly focused on the likely difficulties of a change in custody – which the only evidence on the subject indicates will be short-term and not“devastating” – and failed to give paramountcy to M.’s long-term interests. Instead, damage which is long-term and almost certain was preferred over what may be a risk, but a risk that seems necessary if M is to have a chance to develop normally in her adolescent years. As Ms. Label argued, it was a contradiction in terms, and legal error, for the trial judge to state that M will be damaged by continuing in her mother’s custody, but to order that she remain in exactly that situation. The obligation of the Court to make the order it determines best represents the child’s interests cannot be ousted by the insistence of an intransigent parent who is “blind” to her child’s interests.

[28]           While it is obvious that no court should gamble with a child’s long-term psychological and emotional well-being, the trial judge’s findings show that the status quo is so detrimental to M that a change must be made in this case. Although M has not been permitted to have a normal relationship with her father for two years, the expert opinion suggests she will succeed in adjusting, although the process will be difficult. In this regard, it is important to note that Mr. A. has shown sensitivity to the feelings of insecurity and anxiety M is likely to experience should he be given custody of the child. He has arranged to take a semester off work and for the two of them to become reacquainted gradually, while residing with his sister and her family for a time; for M to have a full-time female caregiver thereafter; for M to continue at the same school; and for M to have regular counselling as long as necessary. We also note that M is by all accounts a bright girl who has shown a “desire to connect with others” when she is out of her mother’s control, and that the chances she will weather this change, if it is properly carried out, seem good.

[29]           Ms. Basran in her able argument on behalf of Ms. A. has referred us to the report of Dr. Krywaniuk of February 23 of this year in which he suggested that he felt Ms. A. was developing some insight into her effect on M’s relationship with her father and that “there was a little bit of ‘softening’ of the situation all the way around and I wouldn’t describe the possibility of M and her father establishing a relationship as bleak”. One wonders, however, whether Dr. Krywaniuk was falling prey to Ms. A.’s manipulative behaviour when he reached this opinion. Furthermore, Dr. Krywaniuk offered no concrete recommendations other than that the parents “try to keep an open mind and that M continue to be encouraged to see her father in a more positive manner.” The evidence establishes beyond any doubt that this will not happen as long as M is in her mother’s custody.

[30]           In all of the circumstances, we have concluded that, accepting all the trial judge’s findings of fact, the appeal must be allowed in the child’s best interests. This result was announced in court on the morning of June 29, 2007. At that time, we obtained counsel’s submissions on the terms of our proposed order, and provided the entered order to counsel.

[31]           The appeal is allowed on the terms set forth in the said order.

What Remedies Can The Court Try?

Unfortunately, what the court should do in cases with prolonged alienation and older children is unclear. Sometimes, as in A.A v S.N.A., the court may choose to leave the children in the hands of the parent who is doing the alienation. What is clear, is that it is the best interests of the child that is the sole relevant consideration, and that the courts will do their best to ensure the child is well taken care of.

In L.G. v R.G., 2012 BCSC 1365 (CanLII):

[212]   In O’Connell, a 13-year-old boy refused to accept a decision that had transferred his custody from the father to the mother. The boy was opposed to the transfer and wished to remain with his father and his older brother. Five times he had run away from his mother’s home.

[213]     The trial judge found the father had turned the children against the mother. The Court of Appeal reversed the lower court decision granting the mother sole custody. The section 15 report concluded the father’s anger and resentment had created an unhealthy psychological environment for the boys, who sided with their father in the conflict, and under his influence had treated the mother with hostility and contempt, ultimately cutting her out of their lives. The section 15 report concluded that nothing could repair the damage with the older son, but on the younger found reason for slightly more optimism, an optimism that apparently led to an order granting sole custody to the mother with limited supervised access for the father.

[214]     The Court of Appeal did not disagree with the trial judge’s appreciation of the family dynamics in the case, but Justice Donald noted at paras. 10-15 that given the boys age and strong feelings, whatever their origin, the remedy was wrong:

[13]     In order for custody orders relating to children in their teens to be practical, they must reasonably conform with the wishes of the child. See Shapiro vs. Schapiro (1973), 33 D.L R. (3d) 764 (BCCA.) and [Alexander].

[15]     This decision will be profoundly disappointing to the mother. It may appear to her that the father triumphed in his program to alienate her sons from her and a 13-year-old is allowed to make decisions about his own life which are not in his best interests. It must be recognized, however, that the damage to the relationship with her sons, however it has been caused, cannot be repaired, indeed will probably be exacerbated, by forcing teenagers to act against their will.

[215]    It is worth commenting here that the professional literature indicates that professionals studying parental alienation have been considering the appropriate response to cases where the level of parental alienation is most serious. In some cases, especially once the child becomes a teenager, remedial options become increasingly limited, which is what the court in O’Connell had effectively concluded.

[216]     Ultimately, the court made no order on custody and access and left it to the child.

[220]     A finding that a custodial parent is guilty of parental alienation does not pre-determine any one particular judicial remedy. The father submits the only way to undo the emotional damage the children have suffered is to order sole custody to him; or alternatively, regular and extended periods of parenting time. He also asks the court to find the mother guilty of contempt of court and to impose sanctions that would deter the mother from further contemptuous conduct.

[221]     The evidence relating to access issues in this case plays out a perplexingly mixed cast of conduct: examples of accommodation along with intransigence; compliance with court orders and non-compliance with them, outrageous behaviour and expressions of regret for it; manipulative behaviour as well as examples of trying to act in the children’s best interests. This case does not fall squarely within the two general types of fact patterns Justice Arnold Bailey noticed. There are no straightforward answers in this case.

[222]     In deciding this custody and access, I must take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child, DA. s.16(8). As Justice Pitfield stated in Abbott v. Abbott,2001 BCSC 323 (CanLII) at para 23:

[23]     What must not be forgotten is that whatever words, phrases, or concepts are employed, and howsoever the rights and obligations of child-rearing may be assigned, it is the best interests of the children, rather than the parents, that the court and the parties must work to promote and protect.

[223]     Section 16(10) of the DA emphasizes the importance of maximizing contact with both parents:

(10)     In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

[224]     Section 16(6) of the DA gives a judge making a custody or access order considerable flexibility:

(6)       The court may make an order under this section for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just.

[225]     As noted in I.S., at para. 143, citing Sahrmann v. Otto, [1994] B.C.J. No. 1711 (S.C.), “Custody orders can be reviewable or varied after a specific period of time. A court may try to help a non-custodial parent to build a relationship with the child by making an existing sole custody order reviewable after a period on application by that parent for joint custody”.

Our Vancouver Parental Alienation Lawyers Can Help

Our Vancouver parental alienation lawyers handle dozens of cases involving situations where children cease contact with one of their parents, either as a result of the conduct of the other parent, or on their own.. Our Vancouver parental alienation lawyers act for parents with sole and shared custody who are seeking to stop the other parent’s attempts at alienation, or to stop the other party from falsely alleging alienation.

Our top rated* child custody and parenting arrangement lawyers are here to help you make sure that your children are well cared for, in a happy, healthy environment. Remember, parents are forever.

Call us toll free across BC at 1-877-602-9900 to meet with our highly experienced lawyers in Vancouver, Kelowna, Surrey and Fort St John, BC, led by one of the Province’s most successful and storied family lawyers, Lorne MacLean, QC (Queen’s Counsel).

*Top Choice Award (2014, 2016, 2017 2018, 2019), Top rated reviews on Google, Yelp, threebestrated, lawerratingz.com. Read more about our awards.