B. (S.G.) v. L. (S.J.): Evidence, Age and Parental Alienation

This case is an appeal of an arbitration decision. The parties have two children, aged 15 and almost 18 at the time of this appeal. In July of 2008, the arbitrator decided that the father intentionally alienated the children from the mother, who had not seen the children in 10 years. The arbitrator's decision gave the mother full custody of the children and the ability to force the younger child and the father to participate in a Family Workshop. It also forbid the father from having contact with the younger child, outside of therapy, for three months after the completion of the Workshop, and forbid the older child from having contact, outside of therapy, with the younger child if he decided not to participate in the Workshop.

Justice Herman decided that the arbitrator's finding of parental alienation would stand, but that the remedy could not because it was based upon the evidence of a psychologist, who although experienced in parental alienation therapy, did not meet with the children or take their particular circumstances into account.

Justice Herman ordered an expedited trial because (a) time was of the essence because of the age of the children, (b) she had no evidence upon which to make a proper decision because the expert evidence did not take the child's particular interests into account, and (c) she could not simply allow an assessment because that would allow the assessor to decide the case instead of the courts and would likely lead to a trial where the assessor could be cross-examined. She also decided that this expedited trial could not address the mother's relationship with the older child because he was almost 18.

This case highlights the importance of child specific evidence because the child's best interests cannot be determined on general expert evidence that does not take the child's special needs and circumstances into account. It also shows the importance of the age of the children because it is far more difficult to ensure that teenagers, especially those 18 and older, participate in therapy than it is to ensure that younger children attend therapy sessions.

As Justice Herman noted, it is a shame that after 10 years of alienation, an arbitration, an appeal, and several court appearances, the mother is no closer to re-establishing a relationship with her youngest child and that she may never have the chance to re-establish her relationship with her eldest child.

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