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Parental Alienation and Court Costs

Parental alienation and court costs lawyers explain what the financial consequences can be in cases of parental alienation.

Parental Alienation is becoming a huge issue in Canadian family law. For a long time it has been known that Parental Alienation Syndrome (PAS) can often lead to long-term damage to the personal growth, mental health and future relationships of children. PAS has recently been added by the World Health Organization (WHO) to its list of international diseases and health related problems. 

Parental Alienation and Court Costs 1 877 602 9900

Recently, Canadian Courts have begun to take a stronger approach regarding how to deal with the negative effects of Parental Alienation on children. But even more recently, Canadian Courts have started to sanction parents who have been found to have exercised Parental Alienation on their children with severe cost consequences for such action. In today’s blog Peter Graburn, senior family lawyer, explains costs consequences in parental alienation disputes.

Parental Alienation and Court Costs
Peter Graburn senior family lawyer MacLean Law

What is Parental Alienation? 1 877 602 9900

In previous articles see: Best Parental Alienation Lawyer Tips, we have discussed some of the indicators and behaviours (by both alienating parents and alienated children) of Parental Alienation. Basically, Parental Alienation Syndrome (PAS) is when a parent intentionally and systematically attempts (often during high conflict child custody disputes) to negatively influence the child’s relationship with the other parent, often leading to the complete breakdown of that relationship. 

In other articles see: Best Ways to Stop Parental Alienation, we have discussed how the Courts have attempted to heal the breakdown of the parent / child relationship caused by that Parental Alienation, including by sometimes totally reversing the parenting arrangement and giving primary parenting of the alienated child(ren) to the alienated parent (often with extremely limited parenting time to the alienating parent).

But Courts are sometimes now finding that reversing parenting and limiting parenting time of alienating parents (often together with counselling) may not be enough to discourage this abusive and damaging behaviour.  In this situation, Courts are increasingly willing to impose severe cost consequences when the parental alienation has led to prolonged Court proceedings.  Three (3) recent cases in Ontario and Alberta highlight this parental alienation and court costs trend.    

Reversing Parenting 1 877 602 9900

The first case to boldly apply the “reversing parenting” principle to attempt to address the negative effects of parenting alienation on children was the Ontario Supreme Court of Justice case of A.M. v. C.H. (2018 ONSC 6472; upheld on appeal 2019 ONCA 764), a case presiding Justice P. Nicholson described as a “sad case about a mother successfully alienating three children from their father” (at para. 1). Here, Justice Nicholson placed the parent’s 14-year old son in the primary care of the father, with limited access to the alienating mother (the 2 other daughters were no longer children at the time of trial). More specifically, Justice Nicholson ordered the alienating mother to pay the alienated father’s legal costs of the Trial on a full recovery basis in the amount of $200,000 (notwithstanding the mother earned only approx. $40,000 / year). 

In the recent Alberta Court of Queen’s Bench case of JWS vs. CJS (2021 ABQB 411; upheld on appeal 2021 ABCA 375), following a long, protracted custody battle (which the Trial Justice described as “one of the most difficult cases I have had to deal with in my over 22 years on the bench”), Mdme Justice C.L. Kenny awarded solicitor-client costs (usually awarded in only the most “rare and exceptional” circumstances) in favour of the alienated mother in amount of $424,000, noting in her decision (at para.’s 47-48): 

“If ever there was a custody case in which it is proper and necessary to award solicitor-client costs, this is it… It started with an ex parte order removing the mother from the home and preventing any contact with the 5 children where she had been the primary parent to the children. She had no job and virtually no financial resources to fight the litigation. Years of coaching of his own children prolonged the proceedings. Two expert reports, children’s counsel, 2 meetings between the judge and the children and 19 days of evidence at trial proved most of the father’s allegations to be false. Six years after the litigation started, the mother received the decision of the court in her favour. That decision was what had been recommended by Ms. Ailon in 2013 in the PN 8 report.”

Finally, in the recent parental alienation and court costs Ontario Superior Court of Justice case of S. v. A. (2022 ONSC 55) which [following one of the longest (9-weeks) and most expensive ($1.7M total legal costs) parenting trials in OSCJ history] resulted in the reversal of primary care of the parties’ two children to the alienated father, Justice H. McGee awarded full indemnity costs in favour of the alienated father in amount of $677,610, noting (at para.’s 39 and 40):  

“Costs rules are designed to indemnify successful litigants; to encourage settlement; and to discourage and sanction inappropriate litigation behaviour by litigants… In high conflict parenting cases, the critical purpose of an award of costs is to curb litigation behaviour by providing a sanction for unreasonable litigation conduct. Unless costs are consistently and predictably awarded in accordance with the Family Law Rules there is no downside to saying one thing and doing another.

In this case, however, Justice McGee went beyond merely determining relative degrees of the parties’ success in litigation (relative to their respective Offers to Settle) in the awarding of costs.  Here, in addressing Rule 24(8) of the Ontario Family Law Rules (which requires the Court to consider if a party has acted in bad faith in applying costs on a full recovery basis), Justice McGee stated (at para.’s 49 – 54):

“The essence of bad faith is that a party claims to be acting with one purpose, when in reality, they are motivated by another purpose… Fabricated allegations of physical and sexual abuse of a child and depriving a child of a relationship with a parent is bad faith… 

The evidence before me during this Trial was replete with actions of bad faith by Ms. A: a surreptitious baptism, a pattern of sabotaging Court Orders, a contemptuous breach of the Order of November 2, 2018, a series of false allegations of physical, sexual and emotional abuse to child protection agencies, and the deliberate and sustained frightening of the boys, particularly the oldest, so that they would reject their father and resist any contact.

Throughout, Ms. A was represented by able counsel and repeatedly cautioned by the court – as was the father – that litigation conduct had consequences. She was ordered to pay prior costs awards for unreasonable litigation conduct in detailed reasons that set out the basis for an award of costs… Nonetheless, and buoyed by the financial assistance and litigation enthusiasm of her brothers, she took a “win-at-all-costs” approach to the litigation.”

Parental Alienation and Court Costs

As we have repeatedly said before, Parental Alienation is perhaps one of the most serious (together with abuse) situations in the breakdown of family relationships.  It can lead to long-term emotional and relationship damage in children. It’s serious. It’s toxic. It’s abuse.

And now, it’s becoming increasingly costly.  

For years, the Courts were hesitant to take strong action against parents found to have committed alienating behaviour against their children (often concerned the children were too old and the alienating parent too set in their ways to change).

Now, the Courts are more willing to take that strong action to address the negative consequences of parental alienation on the parent / child relationship by (in certain extreme circumstances) going as far as reversing parenting in favour of the alienated parent, and financially sanctioning alienating parents for their ‘inappropriate litigation behaviour”.

Alienating parents cannot claim they have not been warned. As Justice McGee clearly stated: ‘litigation conduct has consequences’.