In late November 2006, a mother wrote to her ex-husband to ask to spend time with the son she hadn’t seen in nearly six months.
Earlier that year, the father and son had moved from Toronto to another Ontario city, and despite an agreement that the mother would have regular access to the child, the only way she could see him was by going to his hockey games. The courts had also ordered the father to provide the mother with updates on the child’s health and on his progress at school and in sports, none of which happened.
So, when the mother, identified as J.K.L., e-mailed her ex-husband to suggest the son spend time with her family at Christmas, she expected the father to reply. Instead, she got what Ontario Superior Court Justice James Turnbull called a “rather tragic” response:
“No, I don’t want to see you and I never will want to see you ever again and who do you think you are to say that my dad makes my [decisions] . . . If I want to see your side of the family, I will call them.”
The father clearly held the power at that point, and the son, identified as L.S., never ended up seeing his mother during the holidays. But earlier this year, the father’s actions came back to haunt him. Turnbull ruled in J.K.L. v. N.C.S. that through a “form of subtle emotional abuse,” he had been systematically alienating L.S. from his mother, a conclusion that led the courts to take away custody from the father.
The case is a good example of what’s called parental alienation syndrome, an issue the courts are finding themselves increasingly dealing with. But the case of L.S. was particularly noteworthy for its consideration of the broader issues that the 13-year-old was facing.
As the judge noted, it wasn’t necessarily enough to reverse the custody arrangements. Because the father’s actions had turned L.S. against his mother, simply returning him to her care wouldn’t resolve the issue. As a result, the judge agreed that sending L.S. to a special workshop for alienated children in Pennsylvania to repair the relationship between mother and son would be a useful step.
“This particular case was a wonderful result (in) that they sent the child off to get the type of counselling that the child needed,” says Andrew Feldstein of Andrew Feldstein & Associates in Markham.
“You may have success in court, but if the children are not going to get the skills they need to be reacquainted with the parent, and the parent doesn’t have the skills to deal with the particular issues that are going to arise, you may be doomed to failure.”
But as Feldstein points out, the questions surrounding parental alienation syndrome aren’t simple. In L.S.’s case, for example, it was clear that he was hostile towards his mother and that the problem wasn’t just one of the father refusing access.
The court decision noted, for example, that the father had been the primary caregiver for much of the 14-year marriage while the mother focused on her career. At the same time, the judge acknowledged that events in the marriage had likely traumatized the child, particularly the fact that he had to testify against his mother after police charged her with assaulting her husband (for which the courts found her not guilty).
As a result, the degree to which the custodial parent is responsible for the child’s rejection of the other parent isn’t always clear.
“The difficulty that we face as lawyers and judges is [that] when people make that type of allegation, is the reason that the child has a poor relationship with one parent because of parental alienation or is it for some other very good reason, i.e. that parent just wasn’t a good parent, wasn’t around or did things that bothered the children,” says Feldstein, who notes that having qualified experts such as a psychologist testify in court is key to proving parental alienation syndrome.
Another challenge is the fact that the systematic alienation by one parent is often progressive. “You have cases where it starts off [after] people separate and all of a sudden . . . one parent isn’t seeing that child, and the other parent is throwing up roadblocks as excuses.
That’s how it will typically start: ‘the child has programs, the child isn’t ready to see you this fresh after the separation.’ There’ll be excuse after excuse after excuse.”
For Feldstein, such actions, which he calls the “telltale signs” of parental alienation syndrome, should prompt the other parent to try to stop it immediately. “That’s the best time to nip it in the bud and get proper access going,” he says.
Typically, however, cases will drag through the courts for a long time, and judges will only turn to the drastic step of taking away custody as a last resort. “What you have to appreciate is you’re not going to go to court at the first instance and say this is a case of parental alienation [and] the child should be taken away from one parent and placed with the other parent.
I don’t think any judge is going to take that radical step the first time you’re in court. There’s going to be a long sordid history where a judge is going to come to a clear realization that nothing but this dramatic step can work,” says Feldstein.
Feldstein adds that as a lawyer, it’s his job to warn a client who is alienating a child to stop the behaviour, especially since the courts may eventually reverse the custody order.
“These people who are doing it are putting their own anger and their desire to punish their spouse ahead of the best interests of the children and realizing it’s best for the kids to have a relationship with both parents,” he says.
In L.S.’s case, meanwhile, the judge’s order to give custody to the mother has yet to resolve the problem. While she first reunited with her son in April, by August she and her ex-husband were back in court for a mandatory review of the order.
At that point, the court heard that after learning his father was refusing to participate in counselling with him, L.S. started having angry outbursts that led to his admission to the mental health unit at the Toronto General Hospital.
There were also reports that L.S. had denied to his counsellor that the father had been alienating him from his mother, something that prompted the ex-husband to request a variation of the judge’s order. The judge, however, refused.
“It appears to me that [the father] simply cannot understand that the best interests of L.S. are not necessarily tied to L.S. living with him . . . despite what he and his son may think,” the judge wrote.