A Different Approach to Parental Alienation Cases: It's Time to Try Something New

Family law cases involving sincere allegations of parental alienation are difficult, highly emotional and profoundly conflicted. Although a certain number of these cases were likely to be high-conflict anyway, adding allegations of alienation to the mix makes conflict a near certainty. I can, however, imagine an alternative, more child-centred approach to these cases that just might encourage negotiation and curb the usual headlong rush to trial.

Allegations of alienation are extraordinarily painful to all involved, and it seems to me that it is the intensity of our emotional response to such allegations which sparks the fight-or-flight response spurring conflict and inhibiting our capacity for rational judgment. Consider, for a moment, the context in which these allegations are raised for both parents.

Rejected parents are generally struggling with the achingly painful loss of a relationship with their children at the same time as they're dealing with the legal fallout from the end of their relationship with the other parent. The loss of a relationship with a child is not the loss of a relationship with a friend or adult family member, but the loss of an intimate nurturing relationship with thickly interwoven elements of caregiving, mentoring and vulnerability. It is also a relationship so heavily laden with social expectations, usually of the Norman Rockwell and Hallmark Cards varieties, that the personal loss is inevitably accompanied by significant narcissistic injury and feelings of failure, inadequacy and abandonment.

The sting of the loss is felt just as keenly whether the child’s rejection of a parent was a reasonable reaction to the personality and parenting traits of the rejected parent or arose from the malicious, willful efforts of the favoured parent. In my experience, parents whose behaviour had triggered the breakdown of their relationship with a child were generally oblivious of the fact. It is always easier, it seems to me, to blame someone else for one’s own failings, especially on matters so closely tied to ego and self-esteem.

Favoured parents, on the other hand, seem to react to allegations of alienation with the same degree of strident indignation whether they poisoned the child’s relationship with the rejected parent or not. They may characterize such allegations as spurious attacks on personality, desperate attempts to gain advantage, superficial pretexts for the pursuit of sole custody or nothing more than old school mud-slinging. Either way, it is rarely tactically possible for favoured parents to acknowledge the truth, or even partial truth, of allegations of alienation; such allegations must always be contested.

Of course, to round out this discussion of context, it must also be remembered that allegations of alienation do not occur in the same sort of dispassionate, arm’s-length relationship that exists between the parties to personal injury lawsuits or shareholders’ grievances. The parties involved in family law proceedings once (usually) trusted each other and loved each other deeply. They held hands together, broke bread together and, at least once, slept together. Now, however, they are adversaries opposed in interest, engaged in combative court proceedings, who nonetheless will maintain a lifelong relationship with one another.

As a result of this unpleasant emotional stew, unaffected allegations of alienations either trigger conflict, or take existing conflict to new heights, and raise the stakes such that the rejected parent cannot resile from his or her claims without a serious loss of face, or a potential admission of poor parenting skills, nor can the favoured parent concede even the partial accuracy of those claims.

In a previous post on Slaw, “Therapeutic Interventions and the Alienated Child: Whose Interests Are We Serving, and How Are We Serving Them?,” I suggested that the basic characteristic shared by all children who had become alienated from a parent is the child’s pathologically distorted views and feelings toward the rejected parent. I argued that if the best interests of the child is truly the primary consideration in all decisions affecting children, that the primary goal of all therapeutic interventions should be to transform the child’s distorted thinking into more realistic views and feelings that are based on the child’s actual experience of the rejected parent. I argued that that the restoration of the parent-child relationship should not be the primary goal of such interventions, although the repair of that relationship would obviously be a welcome incident of the repair of the child’s distorted views and feelings.

Of course, the even more fundamental characteristic shared by all children whose relationship with a parent has broken down, because of the actions of the favoured parent (alienation) or because of the parenting skills or past behaviour of the rejected parent (estrangement), is the loss of the parent-child relationship. Whether the cause of the breakdown can be agreed upon or not, the fact that the breakdown has happened is usually manifest and beyond dispute. This is what Alyson Jones, the noted Vancouver clinical counsellor, has described as “attachment disruption.”

What if, instead of responding to the breakdown in parent-child relationships as alienation, casting blame on the favoured parent, or estrangement, casting blame on the rejected parent, we instead focused on the fact of the child’s attachment disruption, its impact on the child’s wellbeing and the means by which the child’s wellbeing might be revitalized and enhanced? What if rejected parents could not allege alienation at the hands of the favoured parent but only the fact of the child's attachment disruption?

There are, I suggest, a number of benefits to be gained from such an approach.

Firstly and most importantly, the disruption of a child’s relationship with a parent is a tangible, measurable fact that has nothing to do with blame. The fact of the child’s attachment disruption can be established without the need to pursue its cause; it ether exists or it does not.

Secondly, placing the focus of enquiry on the child’s attachment disruption minimizes conflict by discouraging the need to lay blame, whether on the favoured parent or the rejected parent. It allows the favoured parent to consider the breakdown of the child’s relationship with the other parent as primarily an issue of the child’s health and welfare, and eliminates the need to respond to hurtful allegations of misconduct. It likewise allows the rejected parent to focus on the issue as the child’s problem rather than the parent’s personal problem, and, in lessening the pain of the loss of the relationship, the need to find fault with the favoured parent is also lessened.

Thirdly, placing the focus of enquiry on the child’s attachment disruption encourages favoured parents, as well as rejected parents, to raise the breakdown in the parent-child relationship as an issue that must be resolved to promote the child’s wellbeing in the legal proceedings.

Fourthly, in avoiding the need to lay blame we avoid the need to identify a cause of the child’s attachment disruption. What is important is the fact of the disruption, not an investigation into fault. (Besides, my impression of these cases is that there are very few situations that are purely alienation or estrangement; most of the time, the breakdown of the parent-child relationship results from elements of each.) If we can avoid the need to lay blame, we reduce the intensity of emotions and conflict, increase the likelihood of settlement, reduce the cost of experts’ reports and decrease the length of trial.

Finally, this approach is child-centred and emphasizes the therapeutic goal of addressing the child’s attachment disruption. It allows parents’ behaviour to be criticized without incrimination and thereby promotes the constructive engagement of both parents in the therapeutic process.

It is important to recognize that this approach does not prevent the court from addressing the negative behaviours typically raised in proceedings alleging alienation or estrangement. A parent prone to disparaging the other parent in the presence of the children can be required to attend therapy or be restrained from making negative remarks merely upon proof of the impugned behaviour, without the need to also allege alienation. Similarly, a parent prone to the sort of harsh discipline that can result in estrangement can be sent to anger management or be restrained from hitting the children, without the need to allege alienation or counter with allegations of estrangement.

It is also possible to pursue the other remedies typically associated with parental alienation without making such allegations. It is not necessary to allege alienation to pursue contempt proceedings for failure to adhere to a parenting schedule, seek costs for a parent’s misbehaviour, or apply for case management or the appointment of a parenting coordinator. It is not necessary to allege alienation to pursue a switch in primary residence or severely truncate the favoured parent’s contact with the child, if that is what is needed to address the child’s attachment disruption.

Allegations of alienation are toxic and invariably exacerbate conflict between parents, whether the allegations are well-founded or not. The frequency of these allegations, albeit not their substantiation, is continuing to increase, as shown in recent work of the Canadian Research Institute for Law and the Family (PDF), and these cases are sucking up increasing amounts of judicial resources, not to mention litigating parents’ financial resources. They diminish or delay parents’ capacity to successfully cooperate in the raising of their children after trial and increase the likelihood that the parents’ legal dispute will have a lasting negative impact on their children, potentially impeding children’s relationship formation and social functioning as adults.

Approaching the breakdown of parent-child relationships from the lens of attachment disruption strikes me as likely to minimize parental conflict, increase the likelihood of settlement and successful co-parenting, and emphasize the overarching importance of supporting children’s wellbeing after separation. Without a doubt, research and much more thinking is necessary to support and more fully develop this concept, but in the meantime I encourage parents and counsel to refrain from the slings and arrows of alienation allegations and consider a more neutral approach focusing on the fact of the damaged parent-child relationship rather than the cause of the damage.

A version of this post was originally published in the online legal news magazine Slaw on 16 October 2015.

Reports on Justice Forums Released

The BC Ministry of Justice has just released its summary report (PDF) of the proceedings at the third justice summit, held on 4 and 5 May 2014 in Vancouver. The report offers no tidy synopsis, but the topics discussed at the summit included the early resolution of legal disputes, resolving legal disputes out of court, improving court processes, and assessing the outcomes of a reformed justice system.

These summits are mandated by s. 9 of the Justice Reform and Transparency Act. Reports on all three summits to date can be found on the Ministry's website.

Not to be outdone, Alberta Justice and Solicitor General has published its report (PDF) of the proceedings at the Joint Action Forum on civil and family justice held in Edmonton on 20 November 2013. The purposes of the forum were to discuss the current state of the justice system and what an improved, "citizen-centred" justice might look like, and discuss how movement toward a reformed system may be initiated.

Unified Family Court on the Table Again?

Yesterday, an article appeared in both the Edmonton Journal and the Calgary Herald announcing that the interim premier of Alberta, Dave Hancock, supports the idea of a unified family court in the province. This is welcome news indeed.

Each province in Canada has two trial courts, a provincial court, established by the provincial government, and a superior court, established by the federal government under s. 96 of the Constitution Act, 1867. Although the superior courts are capable of dealing with every legal issue, the provincial courts only have the jurisdiction given to them by federal and provincial governments. As a result, family law matters can be heard in both the Provincial Court of British Columbia and in the Supreme Court of British Columbia, but only the Supreme Court can make orders about:

• marriage, divorce and the validity of marriages,
• the division of family property and family debt under the provincial Family Law Act,
• the division of property under the common law,
• family trusts, 
• restraining orders about property and debt,
• adoption, and
• custody, access, child support and spousal support under the federal Divorce Act.

This leaves an overlapping jurisdiction between the Provincial Court and the Supreme Court under the Family Law Act on:

• the recognition, appointment and removal of guardians,
• parental responsibilities and parenting time,
• contact,
• child support and spousal support, and
• protection orders.

But there are other important differences too. The rules and forms of the Supreme Court are far more complicated and far less accessible than those of the Provincial Court. Proceedings in the Provincial Court are free, while the Supreme Court charges filing fees as well as fees for each day of trial. There are Provincial Court buildings in most parts of the province; the Supreme Court only has buildings in major urban centres. 

As a result of this arrangement, people often start proceedings in the Provincial Court, only to have them eventually kicked over to the Supreme Court; the same family can be in both levels of court at the same time, pursuing similar or different legal issues; both courts can make orders on the same issues; and, the justice system is even more confusing than it is already. It is hardly surprising that most of the reports and studies looking at the family justice system have encouraged the creation of a single court, with one set of rules and one set of forms to handle with all family matters that must go before a judge for resolution.

In A New Justice System for Children and Families (PDF), published in 2005 by the Family Justice Reform Working Group of the Justice Review Task Force, the Working Group wrote that:

The system we make available to them today is complicated, intimidating and costs a great deal of money just when the family’s income is being stretched beyond its limits. Increasing numbers of people find themselves forced, by financial circumstances, to make their way without legal representation through a process designed for lawyers. A small number of these people go to trial on their own. Many settle, whether or not they have the information and support they need; some walk away, their conflict unresolved and possibly giving up what they need or were entitled to. 

Accordingly, it "strongly urged" a move towards a single court for family law matters. In Meaningful Change for Family Justice: Beyond Wise Words (PDF), the final report of the National Action Committee's Family Justice Working Group published in 2012, the Working Group observed that:

· there is a built-in tendency for adversarial process to polarize spouses and exacerbate conflict;
· parental conflict can be very harmful to children;
· conflict tends to protract process, which already tends to be complex, costly, lengthy and unpredictable;
· justice systems need to do a better job of providing integrated services and multidisciplinary responses to the many “non-legal” dimensions to issues that arise when families are restructuring; and
· the complexity of family breakdown and the relative inaccessibility of the courts results in many family law problems remaining unaddressed and unresolved.

At least partly as a result, two of the Working Group's recommendations are:

Recognizing that each jurisdiction would have its own version of the unified court model, to meet the needs of families and children in each jurisdiction, that the two levels of government cooperate in the completion of unified family courts for all of Canada.

That a unified family court retain the benefits of provincial family courts, including their distinctive and simplified procedures, and that it have its own simplified rules, forms and dispute resolution processes that are attuned to the distinctive needs and limited means of family law participants.

In support of these recommendations, the Working Group observed that:

Modern family law requires specialized knowledge, interpersonal skills and dispute resolution methods. A unified family court consists of judges, professionals and staff who have the experience, aptitude and commitment to work with families and children. A specialized court is best suited to handle the volume and complexity of the work, while at the same time experimenting and innovating with new services and methods of dispute resolution.

(The Canadian Bar Association's 2013 paper, Reaching Equal Justice Report (PDF), noted that "specialized courts, both by problem type and target group, have been demonstrated to contribute to access to justice and quality of decision making" and "generally enhance efficiency.")

Likewise, Alberta's 2001 report of the Unified Family Court Task Force recommended that:

... a unified family court should be established in Alberta expeditiously: 

· to exercise all family-law jurisdictions and powers  

· to provide essential services to people involved in family-law disputes. 

The unified family court should be a division of the Court of Queen's Bench of Alberta.

Interestingly, the government of the day actually accepted these recommendations (PDF), although only "in principle." (The Court of Queen's Bench is, by the way, the province's superior court.)

Anyhow, according to the article, Mr. Hancock, leader of the current government, told the Journal's editorial board:

"It would be more efficient if we had — I'm going to say this out loud and get in trouble — a unified family court, so that there was one court that dealt with all of the issues with respect to child, family, divorce, and property. ... It would be more effective and efficient, and it would be better justice."

Damn right it would. Family law is not like other species of civil law. Family law proceedings involve people in a continuing close relationship, not people whose business relationship terminated long ago. Family law proceedings don't seek remedies for things that happened in the past, they try to make the best possible arrangements for the family's future. Family law proceedings don't end once all appeals have been exhausted, they keep going until the children leave home and finish school. There are few hard-and-fast rules in family law, unlike other areas of the civil law; virtually all decisions are made based on the unique circumstances of the particular family before the court.

Having a specialized bench with the training, experience and skills to deal with the multidimensional — and multidisciplinary — nature of family law disputes, offering one-stop shopping for litigants, is an idea whose time has long since come and needs to be adopted in the remaining provinces without unified family courts, including Alberta and British Columbia. This is not the silver bullet to cure access to family justice. as the courts are only one small part of family justice and are not the sole means by which family law problems are resolved, but it would be a significant improvement from what we have now.

British Columbia established a unified family court for a brief period between 1974 and 1976. It's time to get back on the agendum.

Update: 2 June 2014

According to a recent article in the Calgary Herald, the chiefs of both the Alberta Court of Queen's Bench and the Alberta Provincial Court are interested in having fresh discussions about establishing a unified family court in the province to improve access to justice. The author of the article, Jason van Rassel, also notes that:

"Establishing a family division within Court of Queen's Bench could also allow judges with more experience in family law to specialize."

This is true, and very important. Family law cases cannot be treated like any other sort of civil case. They demand an extraordinary sensitivity and a knowledge that goes far beyond the legislation to appreciate the nuances of age-appropriate parenting plans, the psychology of separation and the effects of parental conflict on children. A specialist bench would be a boon to separating Albertans.

National Action Committee Releases Final Report

Yesterday, the national Action Committee on Access to Justice in Civil and Family Matters released its final report, "Access to Civil and Family Justice: A Roadmap for Change."

The Action Committee was convened at the request of Canada's Chief Justice, Beverley McLachlin, in 2008 to consider how the problem of declining access to justice might be addressed. Justice Thomas Cromwell, also of the Supreme Court of Canada, described the purpose of the Action Committee in these terms:

"The Action Committee…sees itself as a broadly representative group of leaders in the field of civil and family justice which can develop consensus about priorities, encourage organizations and groups to take the lead with respect to them and provide ongoing consultation, coordination and advice."

Four working groups were struck, the Court Processes Simplification Working Group, the Report of the Access to Legal Services Working Group, the Prevention, Triage and Referral Working Group and the Family Justice Working Group, each composed of leading judges, lawyers, academics and government representatives from across Canada. These groups released their final reports in 2012 and 2013; they are available on the website of the Canadian Forum on Civil Justice. All worth are reading, especially, in my view, the report of the Family Justice group, "Meaningful Change for Family Justice: Beyond Wise Words."

The Action Committee's final report synthesizes the lessons and recommendations of the four working groups, but, as is the way with all committees and working groups, leaves these things for implementation by government and justice system stakeholders. These are the somewhat sobering words of the Chief Justice in her foreword to the final report:

"Under the leadership of the Honourable Thomas A. Cromwell and each working group’s chair, the working groups have produced reports that outline the concrete challenges and provide a rational, coherent and imaginative vision for meeting those challenges. They focus not only on good ideas, but on concrete actions to change the status quo. The Action Committee’s final report bridges the work of the four working groups and identifies a national roadmap for improving the ability of every Canadian to access the justice system.  

"Our task is far from complete. The next step is implementation – to put the Action Committee’s vision into action. But it is not amiss to celebrate what we have achieved thus far: a plan for practical and achievable actions that will improve access to family and civil justice across Canada. ..."

Or, as the Action Committee itself observed:

"The report does not set out to provide detailed guidance on how to improve all aspects of the civil and family justice system across Canada’s ten provinces and three territories. That needs to come largely from the ground up, through strong mechanisms and institutions developed locally. Local service providers, justice system stakeholders and individual champions must be the change makers. ... 

"Access to justice is at a critical stage in Canada. What is needed is major, sustained and collaborative system-wide change – in the form of cultural and institutional innovation, research and funding-based reform."

I won't try to summarize the report, although at 24 pages of primary content it is a model of brevity in a legal landscape inclined to the prolix. You really should read the report yourself. Here, however, are the Action Committee's "nine-point access to justice roadmap designed to bridge the implementation gap between ideas and action" under the three main areas it sees as needing reform:

A. Innovation Goals 

1. Refocus the justice system to reflect and address everyday legal problems 

2. Make essential legal services available to everyone 

3. Make courts and tribunals fully accessible multi-service centres for public dispute resolution 

4. Make coordinated and appropriate multidisciplinary family services easily accessible 

B. Institutional and Structural Goals 

5. Create local and national access to justice implementation mechanisms 

6. Promote a sustainable, accessible and integrated justice agenda through legal education 

7. Enhance the innovation capacity of the civil and family justice system  

C. Research and Funding Goals 

8. Support access to justice research to promote evidence-based policy making 

9. Promote coherent, integrated and sustained funding strategies

Much thanks are due to Professor Trevor Farrow, Chair of the Canadian Forum on Civil Justice, who I understand is the uncredited author of the final report.

Law Commission of Ontario Releases Report on Access to Justice

Today the Law Commission of Ontario has released an important new report, "Increasing Access to Family Justice through Comprehensive Entry Points and Inclusivity." The report provides an important assessment of the strengths and weaknesses of the family law justice system in Ontario and the barriers faced by those who must proceed in court without the benefit of counsel, and makes a number of recommendations as to how the system could be reformed, including an multidisciplinary, holistic approach to family law problems.

Here's the summary from the Commission's press release on the report.

The family law system has been the subject of much comment in recent years and many reports recommending changes to the system. Since 2010, there have been reforms in relation to procedures to address domestic violence against women, provision of information, methods of resolving disputes other than the courts, changes in the courts and other efforts to improve the system. Yet persons facing family disputes still find the system complex and difficult to navigate. The LCO’s Final Report focuses on the initial stages of the system, notably the provision of information, ways of providing initial advice and the interrelationship of legal problems with other kinds of problems.  

The Report emphasizes the need for the system to respond to the evolving pluralist nature of Ontario’s population, and addresses how factors such as literacy levels, cognitive disabilities and, geographic location, among other characteristics, affect how easily people can access and use information, the affordability of legal representation and the degree to which legal problems are affected by other kinds of problems. It recommends the creation or enhancement of multidisciplinary, multifunctional centres or networks that link with “trusted intermediaries” such as cultural centres. “Tinkering with the family law system is not sufficient,” says LCO Board Chair Bruce Elman, “There needs to be comprehensive reform if it is to be made more accessible and effective for those who need it”.

This report adds to the growing number of reports calling for fundamental reform of the family law justice system and is well worth a read.

Law Society Approves Practice Guidelines for Family Law

The Law Society of British Columbia has endorsed a package of best practice guidelines (PDF) recommended by its family law task force with much input from a working group established by the Canadian Bar Association British Columbia. The impetus for these guidelines stems from the Family Justice Reform Working Group's 2006 report, A New Justice System for Children and Families (PDF), which recommended that:

"... the Law Society of BC recognize the changing roles and duties of family law lawyers and develop a Code of Practice for Family Lawyers to give guidance in the balancing of a lawyer’s partisan role with the potential harm it may cause to other family members, especially children."

The guidelines are true guidelines, in the sense that they set out practice standards to be aspired toward rather than a compulsory code of conduct, and what's most interesting about them is that they could easily apply to all participants in the justice system, not just lawyers.

BEST PRACTICE GUIDELINES FOR
LAWYERS PRACTICING FAMILY LAW

1. Lawyers should conduct themselves in a manner that is constructive, respectful and seeks to minimize conflict and should encourage their clients to do likewise. (Lawyers are not obliged to assist persons who are being disrespectful or abusive.)

2. Lawyers should strive to remain objective at all times, and not to over-identify with their clients or be unduly influenced by the emotions of the moment.

3. Lawyers should avoid using inflammatory language in spoken or written communications, and should encourage their clients to do likewise.

4. Lawyers should caution their clients about the limited relevance of allegations or evidence of conduct.

5. Lawyers should avoid actions that have the sole or predominant purpose of hindering, delaying or bullying an opposing party, and should encourage their clients to do likewise.

6. Lawyers cannot participate in, and should caution their clients against, any actions that are dishonest, misleading or undertaken for an improper purpose.

7. Lawyers should keep their clients advised of, and encourage their clients to consider, at all stages of the dispute:

a. the risks and costs of any proposed actions or communications;

b. both short and long term consequences;

c. the consequences for any children involved; and

d. the importance of court orders or agreements.

8. Lawyers should advise their clients that their clients are in a position of trust in relation to their children, and that

a. it is important for the client to put the children’s interests before their own; and

b. failing to do so may have a significant impact on both the children’s wellbeing and the client’s case.

9. Lawyers should advise their clients of and encourage them to consider, at all stages of the dispute, all available and suitable resources for resolving the dispute, in or out of court.

These principles all strike me as reasonable. They reflect how I practice family law and how I would like all lawyers to practice family law.

BC Announces Domestic Violence Policy

On Monday the provincial Solicitor General's office announced the government's policy response to the coroner's inquest into the 2007 deaths of Yong Sun Park, her son Christian Lee and her parents Kum Lea Chun and Moon Kyu Park at the hands of Park's husband, Peter Lee. The deaths sparked broad public concern into handling of domestic violence cases by the government and police.

According to the press release issued by the Ministry of Public Safety and Solicitor General, the government will:

• establish a uniform policy on the investigation of domestic violence complaints, and flag such complaints so that all officials involved are aware the case involves an allegation of domestic violence;
  
• establish a specialized domestic violence unit in the capital district, where the murders took place;
• review deaths relating to domestic violence between 1995 and 2009; and,
• establish a standard set of bail conditions to be requested when an accused is identified as high risk.