Parental Alienation – Family Law News Blog

Stephanie Seymour, the 41-year-old former supermodel is getting divorced
after 15 years of marriage and three children. Her marriage to wealthy
business tycoon, Peter Brant, appeared like something out of a fairy tale
back in 1995, when the two married in Paris and then settled into a lavished
mansion in Greenwich, Connecticut.

While the divorce is proving difficult for both Stephanie and Brant who
despite their separation continue to reside together, a greater impact
is being felt by the couple’s three children who are being subjected
to a custody battle. Brant Junior, 16; Harry, 13; and Lily Margaret, six,
have been forced to witness the conflict between their parents as the
two duel to determine custody and access provisions. Brant argues that
Stephanie is unfit to parent, accusing her of substance abuse. Stephanie
contends these allegations, arguing they are merely a ploy to distance
her from their children and claims that Brant is guilty of Parental Alienation.

Separation and/or divorce are processes involving many emotions ranging
from rage, to depression, to remorse. These feelings are shared by not
only the separating couple but also any children who may be involved.
Therefore, when a couple makes the difficult decision to separate, it
is crucial for them to recognize that their children’s fundamental
need for security remains the same as during the time that the parents
were married. In the course of a separation and/or divorce, children require
that their parents continue to provide them with the same level of emotional
support as they did when they were a family unit. In order for a child
to feel secure, their parents must demonstrate to them that they are able
to manage and get through the rollercoaster of emotions and changes that
come with divorce and separation.

When a parent impedes positive contact with the other parent during the
separation process they run the risk of alienating that parent. Parental
alienation is a significant legal issue and unfortunately, it remains
a prevalent matter in many family law cases. Parental alienation occurs
when a parent’s behaviour marginalizes the other parent’s involvement
with the children. As the void in the relationship between the children
and alienated parent continues to grow, the children tend to develop a
sense of animosity towards the so-called absentee parent. The alienated
parent often responds by lashing out on the alienating parent and thereby
creating a vicious cycle that indoctrinates a dislike for the alienated
parent in the children.

The late Richard Alan Gardner, a former clinical professor of psychiatry
in the Division of Child Psychiatry at Columbia University, described
cases of intense rejection of a parent by children after divorce as “parental
alienation syndrome” (PAS). He defined this syndrome as a disturbance
occurring in children who are preoccupied with depreciation and criticism
of a parent and denigration that is unjustified and/or exaggerated. Gardner
describes these children as becoming obsessed with harboring feelings
of hatred towards the alienated parent.

In view of the grave repercussions parental alienation may have on parties
involved in a matrimonial dispute, recently, Ontario courts have adopted
extreme measures when dealing with the issue. A growing number of judges
have ordered a change in custody from the alienating parent to the alienated
parent where alienated parents have been able to show the damaging effect
of estrangement on the children.

Further, in Ontario, the
Children’s Law Reform Act has recently been amended to reinforce the notion that in most cases,
it is in the best interest of the children to have maximum contact with
both parents. As such, the law now requires that parents have an obligation
not only to allow access, but to facilitate that access.

34 (2) If the court is satisfied that the responding party wrongfully denied
the moving party access to the child, the court may, by order,

1. require the responding party to give the moving party compensatory access
   to the child for the period agreed to by the parties, or for the period
   the court considers appropriate if the parties do not agree;
2. require supervision as described in section 34;
3. require the responding party to reimburse the moving party for any reasonable
   expenses actually incurred as a result of the wrongful denial of access;
4. appoint a mediator in accordance with section 31 as if the motion were
   an application for access. R.S.O. 1990, c. C.12, s. 83.

Period of compensatory access

(3) A period of compensatory access shall not be longer than the period
of access that was wrongfully denied. R.S.O. 1990, c. C.12, s. 83.

What constitutes wrongful denial of access

(4) A denial of access is wrongful unless it is justified by a legitimate
reason such as one of the following:

1. The responding party believed on reasonable grounds that the child might
   suffer physical or emotional harm if the right of access were exercised.
2. The responding party believed on reasonable grounds that he or she might
   suffer physical harm if the right of access were exercised.
3. The responding party believed on reasonable grounds that the moving party
   was impaired by alcohol or a drug at the time of access.
4. The moving party failed to present himself or herself to exercise the right
   of access within one hour of the time specified in the order or the time
   otherwise agreed on by the parties.
5. The responding party believed on reasonable grounds that the child was
   suffering from an illness of such a nature that it was not appropriate
   in the circumstances that the right of access be exercised.
6. The moving party did not satisfy written conditions concerning access that
   were agreed to by the parties or that form part of the order for access.
7. On numerous occasions during the preceding year, the moving party had,
   without reasonable notice and excuse, failed to exercise the right of access.
8. The moving party had informed the responding party that he or she would
   not seek to exercise the right of access on the occasion in question.
   R.S.O. 1990, c. C.12, s. 83.

Motion re failure to exercise of right of access, etc.

(5) A person in whose favour an order has been made for custody of a child
and who claims that a person in whose favour an order has been made for
access to the child has, without reasonable notice and excuse, failed
to exercise the right of access or to return the child as the order requires,
may make a motion for relief under subsection (6) to the court that made
the access order. R.S.O. 1990, c. C.12, s. 83.

Order for relief

(6) If the court is satisfied that the responding party, without reasonable
notice and excuse, failed to exercise the right of access or to return
the child as the order requires, the court may, by order,

1. require supervision as described in section 34;
2. require the responding party to reimburse the moving party for any reasonable
   expenses actually incurred as a result of the failure to exercise the
   right of access or to return the child as the order requires;
3. appoint a mediator in accordance with section 31 as if the motion were
   an application for access. R.S.O. 1990, c. C.12, s. 83.

There is a Kenyan proverb that states “when two elephants fight it
is the grass under their feet that suffers”. Likewise, as in the
Seymour and Brant divorce, the dispute over custody and access of the
children is proving most enduring on the children. The effect that such
conflict has on the children has been found to be tantamount to emotional
abuse of the children. As the judiciary becomes more cognizant about the
damaging effects had on children caught in the battle of alienation, the
Courts are being forced to take acute action to help prevent or remedy
the potentially scarring effects of separation. As such, in more and more
cases where the Court finds that one parent has conducted a consistent
and overwhelming campaign to alienate the other parent from the children,
granting the alienated parent sole custody is found to be an appropriate
and least harmful remedy to parental alienation.