November 24th, 2009
When families break down, Canadian courts are often charged with the difficult and unenviable task of determining custodial and access arrangements in the “best interests” of an affected child. Ontario’s Child and Family Services Act, RSO 1990, c C 11, provides a number of relevant factors to be considered in making such determinations, one of which is “the child’s views and wishes, if they can be reasonably ascertained.”
Difficulties may arise, however, if a child is of a biological age suggestive of high emotional maturity in ordinary children of the same age, but due to the “alienating” influence of one parent undermining the child’s relationship with the other parent that child’s views on custody and access seem irrationally and unalterably skewed. Such a child may be said to suffer “parental alienation syndrome,” defined by clinical psychologists as “a form of emotional child abuse almost exclusively seen in separated and divorced families in custody disputes.” This abuse may render a child incapable of developing independent opinions about the alienated parent.
How should the courts determine the “best interests” of children, specifically with regard to their own “views and wishes,” in parental alienation syndrome cases? And at which point, if ever, should the courts disregard the seemingly irrational, immature, and/or dependent opinions of older child sufferers and defer to their biological ages as a trump, allowing these opinions to guide custodial and access arrangements?
The facts of a recent Ontario Superior Court case will provide us the means to explore these important questions, while an even more recent Supreme Court of Canada decision may provide us the answers.
Parental Alienation Syndrome Case Study: L(AG) v D(KB)
One controversial case which brought these issues national attention is L(AG) v D(KB), 93 OR (3d) 409 (ONSC). If I may attempt to summarize its facts, laid out quite painstakingly in eighty-four paragraphs of the Ontario Superior Court’s judgment, the applicant father sought full custody of his three children (aged 14, 11, and 9) from the allegedly “alienating” respondent mother. The parties met while treating patients in common at a Toronto hospital and eventually began dating in July in 1993. Their relationship was a tumultuous one, characterized more often by bitterness and discord than the brief periods of harmonious cohabitation which produced the couple’s three children.
There is little indication as to the initial reasons why the relationship fell apart. The respondent would seem to have expressed some displeasure when the applicant would not consent to marrying upon her initially becoming pregnant in March, 1994. She may also not have shared his concern that her over-protective parenting was hindering the children’s development, despite a child psychologist’s assessment that she infantilized all of them to the point that “D, at 5 years old, was not yet toilet trained. J., at 3 years old, still used a bottle to feed at night.” The respondent also maintained an unusually close and dependent relationship with her live-in mother, who believed the applicant to have shamed her family for having the child out of wedlock and consequently refused to speak to him.
Whatever the reason, it is also unclear why the respondent came to vilify the applicant so passionately that she took drastic steps to limit his access to their children. She would refuse consent to his spending any real time alone with them, often not answer his phone calls, ignore repeated court orders granting him increased access, and in the few years immediately preceding the trial judgment, arrange for a police presence during most of the applicant’s access visits. Considering that the respondent could bring no evidence that he represented a negative influence on their children – let alone any tenable risk – her degree of vigilance and concern were highly unusual.
Accompanying these measures was the respondent’s “unrelenting” campaign to indoctrinate their children with her own personal resentment and mistrust of their father. For example, even when very young, the children exhibited stark changes in behaviour towards their father when their mother was present. They would often quiet suddenly and obey their mother’s word as if fearing reprimand. One child would whisper to him so that she would not overhear, while on other occasions the children mentioned having to wear their “anti-dad coat.” Upon hugging her father, one child asked that he “don’t tell mummy I did this,” while another repeated her mother’s instructions that she must pack her bags and could never return home if she left for an access visit.
As the children grew older, their “views and wishes” toward their father became increasingly aligned with their mother’s. By the time of trial, the oldest child did not want any contact with her father (for no apparent justifiable reason) and the middle child did not want overnight access with her father (again, for no apparent reason), although the youngest stated that she still loves both parents and wants to spend a lot of time with each.
The applicant, by contrast, would seem by all accounts to be a model father. He has consistently advised the respondent that he wishes to have an active role in raising the children, ranging from domestic tasks like supervising mealtimes and putting the children to bed to providing meaningful input in health care, education, and other critical decisions affecting their development. As the respondent told him nothing of their children’s upbringing, the applicant resorted to joining their school councils to find out how they were doing. He would leave his children notes on the respondent’s garage door and yell “goodnight” loud enough that they might hear him in order to have some contact. He is well-educated, affluent, and sophisticated, had never been physically or emotionally abusive, had never abused drugs or alcohol, and seems to desire nothing more than to maintain an active, loving relationship with his three children.
Characterizing the Children’s “Views and Wishes” in this Case
The task of assessing how much weight should be accorded these children’s views and wishes – and especially the older children’s expressed desire to have little to no access with their father – in determining their “best interests” with regard to custody and access is difficult because of their extraordinary family circumstances.
Dr. Barbara Fidler is qualified as an expert in areas of clinical psychology, custody and access assessments, and high conflict custody disputes, including pathological alienation cases. She testified at trial that the two older children, but particularly the oldest child, have feelings and reactions “not independent of Mother’s.” The oldest “cannot possibly feel comfortable relating to her father freely and positively given her mother’s negative and angry feelings towards him.” Her professional opinion appears to be substantiated by the facts, and is relied upon unequivocally and seemingly without objection by the trial judge to summarily dismiss the two older children’s views regarding custody and access. Those views were entirely informed by their mother’s influences and behaviours to the point that they were deemed to not even be their own.
This characterization of the two older children as essentially incapable of independent judgment runs contrary to the case law which generally supports placing a great deal of weight on the views and preferences of children over 12 years old in such “best interests” cases. However, while the two older children may be 14 and 11, (biological ages suggestive of elevated levels of maturity and intelligence present in most children of those ages) their emotional ages, at least in this context, are not suggestive of such maturity. It was fortunate, then, that the attendant professionals who assessed the children’s autonomous decision-making capacity did so by monitoring several emotional maturity indicators rather than simply by deferring to their biological ages.
The court went on to find that the respondent’s pattern of behaviour toward her children was tantamount to emotional abuse inducing parental alienation, and that it was remarkable the applicant had not conceded to her persistence in keeping his children from him for so many years and surrendered himself to a life without them. The court concluded that “[i]t is now time for [the applicant] and the children’s fates to be free from [the respondent’s] control,” and the best interests of the children dictate that the applicant must have sole custody of them, with the transfer to be facilitated by significant therapeutic intervention for all parties involved.
Applying AC v Manitoba’s “Best Interests” Framework in this Context
L(AG) v D(KB) helps to demonstrate the complicated interplay of factors that are considered when assessing the relative weight of alienated children’s “views and wishes” in custody and access disputes. The facts of the case are so extreme, however, that questions still persist about how to strike an appropriate balance between meeting the state’s imperative to apprehend children in need of protection and according children’s views the respect and deference they deserve in determining their “best interests.” What if the respondent’s campaign of exclusion had not been so “unrelenting,” or if the applicant’s conduct suggested that he was not a model father? Perhaps most importantly for our purposes, what if the three children had been much older, suggesting some capacity to make autonomous decisions?
Earlier this year in AC v Manitoba (Director of Child and Family Services),  2 SCR 181 [AC v Manitoba], the Supreme Court of Canada endorsed the use of an individualistic approach to determining the “best interests” of mature minors in the vital health context where a minor’s own opinion as to his or her future course of treatment differs from the views of attendant medical professionals. In my view, the courts would be well-advised to adopt a similar approach in determining custody and access arrangements in parental alienation syndrome cases, especially those where the affected children are of biological ages suggestive of elevated maturity.
Following AC v Manitoba, in order to determine when a professional’s characterization of a child’s “best interests” (including both clinical psychologists’ and judges’ assessments) should give way to the child’s own expression of “best interests,” the courts must regard an individual’s transition from emotional immaturity (in pathological alienation cases, read: dependent decision-making) to emotional maturity (read: independent decision-making) to be a continuous one. The professional’s prerogative would gradually yield to the individual’s right to autonomy over the course of his or her development. Thus, the “best interests” standard may operate on a sliding scale of scrutiny, with the individual’s views becoming increasingly persuasive as that individual achieves the intelligence and awareness required to form a mature opinion based on independent assessment of the personalities of his or her parents, the parents’ positions vis-à-vis custody and access arrangements, and their relative fitness as primary caregivers.
Such a framework would allow for the potentiality that, in some cases, a professional will be so convinced of a child’s emotional maturity that principles of welfare and maturity will collapse together and his or her wishes become the controlling factor, even where the child is under 12 years of age. Conversely, this framework would allow that in other cases, a professional will be so convinced of a child’s emotional immaturity that his or her wishes are not honoured and principles of welfare become controlling, even where that child is well over 12.
Whatever approach the courts ultimately adopt in future pathological alienation cases, more definitively articulating how lawyers and courts should assess children’s views in this unique “best interests” context would add some much needed clarity to an emerging line of family law jurisprudence. Until more jurisprudence emerges, this seems an area where the input of interested academics and thoughful practitioners might make an important difference.[filed: A.C. (2009) A.C. v. Manitoba Family Law Health and Welfare L.(A.G.) v. D.(K.B.)]