A recent Ontario Court of Appeal decision - which the appellant’s lawyer calls unprecedented - highlights the gravity the court attaches to cases of parental alienation syndrome.
On top of that, Perkins barred three other children of the marriage from having access to M.; issued a restraining order keeping the father from contacting his ex-wife or M.; and awarded the mother costs of more than $320,000.
Perkins’ ruling followed what the appeal court described as a “long (18 days) and contentious trial with many witnesses and a mountain of documentary evidence.”
The appeal decision - from a panel including justices Stephen Goudge, James MacPherson, and Jean MacFarland - found that M.S.’ argument focusing on parental alienation syndrome was “misconceived.” However, the decision appears to have been based on an overwhelming concern that M. would become a victim of the syndrome.
The judges found that, while the three oldest and now adult children of the marriage were alienated from their mother, M. wasn’t a victim of alienation. The panel noted as well that the focus of the trial was on M.’s best interests.
“The father had taken aggressive and persistent steps to alienate his other children from their mother,” the panel wrote. “The likelihood of this continuing with M. if the father had access to her was virtually certain.” Therefore, the appeal court pointed out, the trial judge found the risks to M., if the father had access to the child, were too great.
Perkins also found that the father and two oldest children disobeyed a court order placing the third child in foster care while “very serious protection concerns” were handled, according to the appeal court’s summary of his findings.
“I have no reason to have confidence that the father or the older children would respect terms of a new access order, such as terms prohibiting negative comments about the mother or pressure on the child to move to the father’s home any more than they have respected previous court orders on various subjects,” said Perkins. The trial judge went on to express his doubt in the father’s willingness to help the three oldest children reconcile with the mother.
The Court of Appeal panel agreed with Perkins’ analysis, concluding that barring access to the father and siblings was in M.’s best interests: “The inclusion in the access order of the other children who are alienated from their mother is justified by the finding that the father has engaged them in his cause and that they operate as a single camp.”
The panel went on to back what it called a “very large award” of costs to the mother. It again supported the trial judge’s analysis of the factors prompting the significant award. Perkins wrote: “In this case, the father has acted in bad faith over a long period of time, in relation to more than one issue, and on many occasions.
The consequences of his bad faith have been a vastly prolonged and more expensive court case and vastly increased emotional damage.”
For his part, M.S.’s lawyer, George Callahan, says the case remains “anomalous” in Canadian jurisprudence.
“There is no other case in the country where access to a child from the age of 10 to 18 has been terminated,” he says.
“This was a case of high conflict, but there are cases where the conflict was equally severe and a completely different remedy, a therapeutic remedy, was imposed. It’s my view that the therapeutic remedy should have been imposed.”
Callahan notes it’s also unprecedented for a Canadian court to prevent one sibling from contacting another sibling when they’re not parties to the application.
For her part, C.S.’ lawyer, Sheilagh O’Connell of Legal Aid Ontario’s family law office in Toronto, says the case demonstrates the need for courts to identify high-conflict family law cases early on. Doing so is particularly important where parental alienation could become a factor, she notes.
“In this case, the assessment of the family situation occurred a little too late and it was quite a lengthy assessment. I wonder, if there had been a very early identification at the outset that this was a high-conflict situation and there had been an immediate assessment and recommendations by the appropriate mental-health professionals, [whether] it may have assisted this family.”
Both parties consented to an assessment in April 2003, but it was delayed until the winter of 2004 and finally took place on Feb. 17 of that year.
“By that point, the parties were very embroiled in a really difficult, high-conflict case,” says O’Connell, who notes poor case management in which various judges handled the matter at different points may also have thwarted quick identification of the heightened stakes.
In the meantime, Callahan says the cost award is likely to force M.S. into bankruptcy.
Callahan, who says leave to appeal to the Supreme Court of Canada won’t be sought, calls this case one of the most difficult of his career.
“This had been, from my perspective, an extraordinarily complex, very difficult appeal to perfect and to get access to the exhibits and what was necessary to perfect.”