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Judge reverses parental alienation ruling

|Written By Heather Capannelli

In another case underscoring the controversy over parental alienation workshops, Justice Thea Herman of the Ontario Superior Court struck down part of an arbitrator’s award earlier this year that would have removed two teenage boys from the custody of their father and sent them to Texas.The decision follows a series of judgments in which Ontario courts have ordered a change in custody and sent the custodial parent along with the children to participate in the workshop.  

In S.G.B. v. S.J.L., the court set aside part of an award concluding that the workshop was in the best interest of the boys because the arbitrator relied too heavily on an assessment of them prepared by Richard Warshak, who admitted he hadn’t met them personally.

In his testimony and written evidence, the psychologist and author explicitly declined to make recommendations with respect to the children because he had never observed them before.

Yet the arbitrator ordered that the remedy was “necessary for the children in this case and completely consonant with their best interests.” Herman, however, decided that in making such a finding, the arbitrator’s order amounted to a “fundamental error.”

Another issue arose prior to the hearing when the father asked the arbitrator to order an assessment to determine the appropriateness of the workshop for the children.

The arbitrator declined to do so, instead relying on his own experience as a custody and access assessor. But Herman rebuked that decision, saying “the arbitrator’s experience can only be brought to bear on the evidence. The arbitrator cannot create evidence.”

In addition, Herman said the arbitrator failed to consider the psychological impact the workshop would have on the younger boy. He suffered from Klinefelter syndrome, a genetic disorder that, among other things, caused a language delay.

The facts of the case were as follows. The applicant, the father, and the respondent mother entered into the arbitration to help resolve issues surrounding their two sons L.B. and J.B., aged 17 and 14 respectively. The parents had been divorced since May 1999 and since then, the mother experienced an estranged relationship with both of her children.

After several attempts to resolve disputes about custody, access, and raising the children, both parents agreed to what turned out to be an unsuccessful arbitration in August 2007.

The proceedings were due to continue on Nov. 20, 2007, but the father brought a pre-hearing motion to prevent the arbitrator from making an order that might result in the children leaving the province given that the mother had been in consultation with Warshak for several years despite the fact that he had never met the boys. The motion was denied.

The arbitration took place in February and March 2008 and, based on Warshak’s report that the children were suffering irrational alienation towards their mother, the arbitrator awarded sole custody of both children to her and ordered that they participate in the workshop to help to restore their ties with her.

Logistically, this meant no contact with their father for the three months that the boys were in the program. Once the workshop concluded, communications could resume as long as those in charge authorized them.

The order also allowed the mother to use transporting agents to take her children to the workshop in Texas if they were unwilling to go on their own volition.

“The work of Dr. Warshak has been submitted for peer review so it’s not as controversial as the media hype may lead some to believe,” says Jaret Moldaver, counsel for the mother. “Dr. Warshak has successfully worked with children who have been alienated, and in cases where conventional approaches don’t work, it’s the only viable option to save the child from abuse.”

A larger issue, however, is that often these cases come down to a battle of costly expert evidence, says the father’s counsel, Jan Weir.

“My concern is that in most of these cases, it appears that one parent has the financial means to retain high-end counsel and experts like Dr. Warshak, but the other parent seems to have modest means and never retains an expert, meaning that they can’t lead evidence against the findings or methodology of Dr. Warshak.”

A week at the workshop costs about US$40,000.

According to Warshak, parental alienation syndrome is “a child’s unjustified campaign of denigration against, or rejection of, one parent, due to the influence of the other parent combined with the child’s own contributions.”

It is recognized as a form of emotional abuse that happens when parents get so caught up in their own problems that they lose sight of their children’s needs.

In an interview in 2008 with Maclean’s magazine, Warshak said the workshop “teaches children how to stay out of the middle of adult conflicts and how to maintain a compassionate view toward each parent” and that it helps the child “recapture a major part of his identity.

When the child no longer feels the need to pledge allegiance to one parent by rejecting the other, that’s enormously liberating.”

But Weir says the test in law for admissibility of expert evidence is whether it’s generally accepted by the profession. That’s because courts don’t interpret the evidence of experts on their own. “Is this a method that’s generally accepted by the profession at large?” says Weir.

“This kind of evidence is getting in because the parents who are on the receiving end just don’t have the funds to retain an expert to say that it’s not, that it’s untested.”

  • PAS

    Sylivia Ward
    A number of respondents have mentioned 'equal parenting' as a solution to prevent parental alienation or hostile parenting. Five years ago I entered and participated in an 'equal parenting' arrangement and ending up losing my son. After a visit or time with his dad he would come home so agitated and angry that he became verbally abusive with me. The one loving child that he was changed into a poisoned child whose reality of me and his extended family was completely skewed. He was 12 at the time and his dad took him from my home a month after he turned 13. I have hardly seen him in 5 years. He hasn't done well in school even though he was on the honour role before and quite athletic. He has dropped out of school, and struggles with depression. When I do see him he is uneasy and seems very anxious. He looks very thin and sleep deprived. It breaks my heart and I believe that he and I are suffering from long term Grief and sadness. It wasn't about money but about Power and Control. My son's dad wanted me to suffer and he saw no problem in using our son as a weapon. I personally don't believe that shared parenting works when their is an ALIENATOR in the mix. They want to WIN at all costs.
  • Absent Parent

    Lawrence Osahenk
    In my divorce, I was granted the "right" to telephone my children to see of they wished to see me.

    I was not their uncle, their brother or their friend. I was their father and I rejected the only role allowed to me by the judge.

    The principle is: If the state can dictate to me what my relationship is with my children, then it is clear that they are not "my" children but in fact, belong to the state.

    "My" children lost a father on that day because of the state's need to transfer wealth to whom they saw as the weaker parent, it is just that simple!

    The morals and ethics of everyone who facilitates that unprincipled conduct are not worth searching for.
  • Blather that is abuse

    Cold North Wind
    As long as abusers operate, there will probably be theories and ideas and charlatans to promote some idea or other that is favorable to abusers. Lawyers and judges cannot adequately judge the safety of children in a situation. That's when the "experts" are called in-to advise. However, for every "expert" who is honest-there is one who is NOT. One cannot legislate common sense or empathy. If one could, we would not have so many torn up ripped up children who grow into scrambled children.As for Australia- guess some commentators here just think- oh well- what's a few murdered children- as long as I-I- I. - - - get my way. Even an honest "expert" is useless if they lie- and many do.
  • lawyer

    Keith A.
    Regretfully, the intemperate comments by OttawaMensCentre have more merit than most of us would like to admit. And unfortunately, this problem is not restricted to Ontario. I no longer practice family law. I refuse to have my good name associated with such a mockery of justice where each judge can appoint himself/herself chief social engineer and systematically destroy peoples lifes for their own amusement and self-aggrandizement.
  • The long term

    An observer
    $40,000 a week for treatment is ridiculous. How can anyone but the very rich even consider it!

    I worry about the venom in some of the other comments to this case. Money is almost always the elephant in the room - there is always the possibility that a significant factor seeking custody is the parent's desire to obtain from, or avoid paying support to, the other parent. It can cloud everyone's judgement.

    I also think there is some parental alienation of children in many marital breakdown situations that does need to be recognized but isn't at a level that needs that kind of intervention. Bringing the issue out as something to watch for is good for social workers, lawyers and judges, but awarding that kind of treatment is just wrong.

    The non-custodial parent is in a difficult situation. The alienation is a matter of degree and I'm convinced is not always intentional. A devastated spouse may not be intending that their actions impact the children this way but are reckless in expressing their anger and criticism of the other parent and may be just looking for sympathy and attention.

    The light at the end of the tunnel is that when the kids hit 18 or 19 most start to realize that the custodial parent's world is a small place, and they start asking questions. Whatever roadblocks the judicial system puts in place (and the adversarial system itself is, in my view, the cause of most of the problems) a standoff can be worse than the abuse.

    If the non-custodial parent keeps up some effort to reach the children, without trying to force it or violating any court orders, and growing a very thick skin (because kids can be incredibly cruel on their own during adolescence) there is a good prospect of a positive outcome down the road.

    I know that it isn't an answer to the injustice that can occur, but life's not always fair. Make the best of it - for the sake of your self and your children.
  • PAS is real but this therapy may not work

    Kathleen Walker
    PAS is real but this therapy may not work
  • United States Judges warned against accepting PAS

    Nancy Carroll
    2009: A Judicial Guide to Child Safety in Custody Cases
    National Council of Juvenile and Family Court Judges Family Violence Department

    Page 12:

    C. [§3.3] A Word of Caution about Parental Alienation34

    Under relevant evidentiary standards, the court should not accept testimony regarding parental alienation syndrome, or
  • PAS

    Mark Bogan
    My first born son rejected me and members of my family when he was ten. He has continued to reject us since. He has spent under 101 face to face days with me and under three face to face days with my family since birth. He is eighteen. My second born son is about to follow that path. Same dynamics, under 101 days with me and under three dyas with my family. This epedemic is wide spread across Canada and the world. Any parent whose sole focus is to underscore a target parent is a child abuser. Kids fair much better equally loving and knowing both ther parents and members of their families. It is their god given right from birth.
  • Obvious Solutions

    Ottawa Mens Centre
    The most obvious solution is a legal presumption of equal parenting, it is the goal of the alienating parent to gain total control. Parental Alienation is minimized when the the issue of custody and or access is removed from the equation.

    A legal presumption of equal parenting will never be a solution for mental illness and or personality disorders which most family courts in most jurisdictions don't want to hear about and refuse to order disclosure of when they know that the disclosure just might not be favourable for the mother.

    Ontario treats any suggestion of mental health problems about a father as gospel however its heresy and highly improper not to mention offensive to the feminist judiciary to suggest that mother just might have a mental health problem and or a personality disorder.

    It's that failure of the judiciary to make those recognitions that raises serious questions as to why they ware so willfully blind to those particular subjects and one very obvious conclusion is that their decision is based on thinking of that of a person with a mental health problem or more likely a personality disorder whose key symptoms are a lack of empathy, a propensity to abuse and inflict suffering.

    Their names are very well known in any Ontario legal community.

    That of course, is another taboo subject.

    www.OttawaMensCentre.com
  • Parental Alienation

    mike jeffries
    I am not familar with the specifics of this case so I won't speculate on the outcome. However, as the author of A Family's Heartbreak: A Parent's Introduction to Parental Alienation (http://www.afamilysheartbreak.com), I hear from countless mothers and fathers who are estranged from their children due to the unhealthy and destructive actions of the childrens' other parent.

    These cases are not about anger, revenge and having the money to outspend the other parent in court; although sadly that's what the world gets to see. Parental alienation occurs when one parent pulls a child into the marital conflict to offset long-standing and unresolved emotional issues related to real or perceived abandonment. Only when legal and mental health professionals look past the symptoms to the cause of the behavior will they be able to truly represent the best interests of the children involved in these horrific cases.

    Sincerely,

    mike jeffries
    Author, A Family's Heartbreak: A Parent's Introduction to Parental Alienation
  • Cure the cause, not the effect

    Ottawa Mens Centre
    Parental Alienation is encouraged by our Family Court Judiciary who have evolved the encouragement of mothers to firstly abduct children upon separation to establish status quo. The courts refuse to hear "urgent motions" regarding access after separation, there is no legal presumption of equal parenting, quite the reverse, there is an assumption that fathers are unfit parents and criminals unless they prove otherwise and in any contested case, odds are the father will have his pleadings struck, summary judgment issued and only a very small percentage of applications filed in contentious custody matters ever reach trial.

    Ontario's Family Court Judges habitually flagrantly abuse their judicial discretion to the point that most men realize there is almost no point in litigating.

    The Judicial Child Abuse is systematic and widespread with
    "Power Orders" and "Sheffield Orders" effectively that terminate children's relationships with their father for no other reason that a judges court rage, that is, a pathological hatred of fathers and in particular self represented fathers.

    The worst of the worst, the very worst child abusers, the worst examples of Parental Alienation are caused by the underbelly of the judiciary who do so with impunity and immunity.

    It is this same underbelly who encourage an underbelly of the legal profession to personally fabricate evidence and obstruct justice, all with impunity and immunity provided by their counterparts with similar ethics in the Judiciary.

    www.OttawaMensCentre.com
  • Shared Parenting in OZ

    Mike Murphy
    Much is made of the shared parenting laws in OZ and there is a hysterical fringe of people who claim these laws are responsible for the deaths of children when there is no such correlation let alone causation.

    Mr. Jones is quite correct in his observation the Family Law system is one where justice comes at a steep price. In one case (McWatt) involving a surgeon his costs were over $300,000.00 to prove his children were alienated over a 10 year period.

    Structural changes are necessary and presumptive shared parenting for fit parents as a default will be a good starting point. This would cover 100% of the population not 2%.
  • First hand experience - PA is real!

    Paulette MacDonald
    I speak from first hand experience when I say that PA is real, it is happening and it is a devastating form of emotional and mental child abuse!
    Those that have not experienced PA personally, have a difficult time comprehending the reality of its existence and the devastating consequences of this
  • Warshak Making $40,000/Week/Victim? LOL

    Nancy Carroll
    Well that in itself should say a lot.

    I have followed this case for a long time. The 18 year-old brother was not kind to the "experts" interviews. Or the court. He said once someone brought up so-called "PAS" the kids were no longer listened to. To the "experts" that were involved in the case, it was all about them and the theories they had to push. It was not about the boys.

    PAS has been debunked by professional organizations and top psychologists, who referred to Warshak's treatment center as "quackery" dangerous to children.
  • Distance Counselling

    Chris Jones
    I think the cost issue is another example of the courts putting justice out of reach for the average litigant. The Alberta government does not see the problem with families being restricted to only interacting online for the duration of pre-trial incarceration, so why could a Psychologist not conduct an interview via distance technology's? It seems to me that many Child Assessments could be done effectively online (with good equipment and record features). Certainly it makes sense to carryout the "intervention" in person. Using such technology will reduce costs and open up many other treatment options. Why not use it?

    How do we stop the child abuse of PAS when courts are hindering its treatment. crj
    crj
  • further-

    Cold North Wind
    It is EXACTLY the definition of "fit" parents -and also only in the 2% or so of highly contested cases, where abused children become re-victimized.

    Social services and other "players" who enter into the fray- are inadequately trained and do not recognize abuse.They are easily manipulated by abusers and their supporters.
  • re: Judge Herman\'s ruling

    Cold North Wind
    Commendations to the judge and other parties involved in resolving this highly questionable case. Mr.Murphy- as you undoubtedly know-the Australian government is reviewing their past practice of presumption of shared/equal parenting. It has been an unmitigated disaster,resulting in deaths of children. Canada does NOT need to follow suit, and expose even more hapless children to increased victimization.
  • Parental Alienation

    Mike Murphy
    I have followed this case for some time and it has always amazed me how dysfunctional child disputes with this form of emotional abuse (PA) can get. I have also always been curious where this dad seems to get the money for counsel if he is on welfare as has been reported in the media in the past?

    I have no doubt Parental Alienation exists and I have observed its impact on the children and target parent first hand. I have also observed the clear gender bias of Family Courts in Canada when it comes to physical custody whereby mom gets it in over 90% of cases. Judges and indeed lawyers for men, based on anecdotal stories by these men, seem predisposed to ensuring maternal custody takes place and it is usually only a dad of means who can afford the "experts" to obtain even a remote chance of obtaining custody or shared parenting at the least. These men report they are advised by their counsel that judges don't award dads custody so take what you can get and save some money.

    The arbitrator in this case seems to have gone overboard with the recommendation for attending Dr. Dr. Warshak's workshop without the good Doctor having even seen the boys. This gives him and the notion of Parental Alienation a bad name given the cost of attending for a week. It sounds like a good decision on the surface without knowing more details. It may sully Warshak's reputation without him even being officially involved.

    Why don't the legal profession support changing the Divorce Act to one with a presumption of equal/shared parenting for fit parents. If the playing field is equal to start with perhaps a lot of this grief can be resolved, particularly if mediation and counselling are made mandatory before a court appearance. Don't use the pl;-) stand by canar of abuse. Both men and women are equally capable of it according to Stats Can and very few situations involve actual abuse. Sometimes its even manufactured I'm told.
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