Law Times

PAGE 10 NEW An online resource tool 1.800.263.3269 Bestcase earlug.indd 1 3/26/08 11:52:01 AM Focus On FAMILY LAW/TRUSTS & ESTATES Recognition of parental alienation growing is leading to a new dilemma: can judicial intervention undo the damage and when should the system intervene? The answers raise some chal- Syndrome is 'grave' danger to kids T BY IAN HARVEY For Law Times he growing recognition of parental alienation syndrome by the courts order such a teen to undergo treatment if they've already expressed an unwillingness or no interest, without violating those rights? "In that respect it's very lenges for society as a whole, says Dr. Richard A. Warshak, of the Department of Psychiatry, Uni- versity of Texas Southwestern Medical Center in Dallas, Texas. And the subject hit the head- lines recently arising from Justice Faye McWatt's ruling that stripped a mother, identifi ed as chiropodist K.D., of custody of her three girls, aged nine to 14, and turned them over to their father, a vascular sur- geon identifi ed only as A.L. Mc- Watt also barred K.D. from any access to the children unless it was in relation to counselling and or- dered her to pay for a special pro- gram offered by Warshak. The profi le of PAS is fast grow- ing in mainstream media — Dr. Phil featured a segment in De- cember on it — and it's starting to garner support in the courts and with clinicians, says Warshak. He says he's worked with chil- dren as young as fi ve and up to teens and even beyond, though most are in between. "The myth is that at the teen years there's nothing that can be done, that the alienation is per- manent," he says. "But that's not true. We've had good success and we're in the process of following teens who have been through the program over the long term." The sticky issue comes when the child is in fact 16 years or older, with inherent rights, he says. At what point does a court much ordering someone into a substance abuse program for treatment," he says. "But these are questions that society and the law will have to make for themselves. But I think the overall positive is that the courts have shown that they are not helpless in these cases." Warshak is considered the leading authority on the issue of reunifi cation and parental alienation syndrome and has been involved in recent land- mark cases in Ontario. He said the fact that Ontario courts are not only recognizing the syndrome and are prepared to take defi nitive action such as changing a custody order or mandating treatment is a posi- tive step in the right direction. As it stands, however, there are still too few programs and profes- sionals trained in how to handle children and adolescents who have been poisoned by one par- ent against the other. There have been a number of cases dating back to 1987's Tremblay v. Tremblay, followed by the ruling of Quebec Justice John Gomery in P.S.M. v. A.J.C. involving four children caught between warring parents. While Gomery is best known for his investigation into the Liberal government sponsorship scandal, he is widely quoted on the lead web pages of parental rights lobby groups: "Hatred is not an emotion that comes naturally to a child. It has to be taught. "A parent who would teach "I do think there's been a shift," says Jeffrey H. Wilson, founding partner of Wilson Christen LLP. "There was a time when a court felt that if a young person was internal- izing hostile feelings against a parent there wasn't much you could do about it." Today, he says, the bench is much more aware of the issue and seized on family law in a way they may not have a decade or more ago, and that's led to a will- ingness to be more proactive. "They're active in case man- 'The myth is that at the teen years there's nothing that can be done, that the alienation is permanent,' says Dr. Richard A. Warshak. 'But that's not true.' a child to hate the other parent represents a grave and persistent danger to the mental and emo- tional health of that child." Other cases followed and in the last two years there has been a steady stream of cases in which cus- tody was ordered and changed in the light of evidence of alienation, including A.A. v. S.N.A. and the fall 2008 decision in Jamieson v. Ja- mieson from the Court of Appeal. Another case is also making its way through the Ontario Court of Appeal, CCAS v. H. and H., in which Justice Marvin Zuker last year reversed a custody order after the Catholic Children's Aid Society identifi ed two children of the marriage as being in need or protection and asked the court to give the father custody on the ground that the mother was alienating them from him. agement, and they're more involved generally," he says. "I don't want to use the word bold but they certainly are more predicated to intervene and take charge of a case than they were in the old days when perhaps they could be more passive." With joint custody being the default position in the ab- sence of evidence to the con- trary there's also greater attention being paid to the Divorce Act, which makes it clear there is a duty to maximize contact with both parents, he added. Wilson brought in Warshak in the case of J.K.L. v. N.C.S. in which the court ruled last De- cember that the 13-year-old On- tario son had been brainwashed by his dominant father and turned against his mother. The court ordered the child, L.S., be turned over to the cus- tody of the mother with the suggestion the child be treated at Warshak's Family Work- shop for Alienated Children. Justice James Turnbull singled out the FWAC and urged the Ontario government to encour- age similar programs, something Wilson, who acted for the moth- er, agrees is sorely needed. February Specials Visit our Web site and save 20% Mediating Estate Disputes Susan A. Easterbrook and Francine A. Herlehy Preparation of Wills and Powers of Attorney: First Interview to Final Report, Third Edition Mary L. MacGregor Guide to Powers of Attorney M. Jasmine Sweatman Ontario Estates and Trusts Legislation, 2008-2009 edition Consulting Editor: Ed Esposto (on Standing Order only) "There just aren't the re- sources," he said. "We need more people trained to deal with this." But advising clients seeking to make an accusation of alienation is no easy matter, says Wilson. "It's a lot of work," he says. "You can't let the client see you as Cam- elot and that you're going to go out and solve it. They have a lot [of] work to do to make it work as well. It doesn't stop with the decision." Given the emotional strain on both the child or children and the non-favoured parent to work through the estrangement, it's not a journey to be undertaken lightly, he says. It's the aftercare which is criti- cal, he says, echoing Warshak. There needs to be some kind of funded family recovery program in Ontario, he says, with more clinicians trained in therapy. Once launched, getting such cases fast-tracked is important, says Dr. Warshak, noting that the longer the litigation drags on the more it aggravates the actions of the favoured parent in denigrating the estranged parent and the more damaging it is for the children. He says there's emergent re- search that suggests children exposed to such manipulation are more likely to suffer from depression and have confl icts with authority. "They learn to ignore au- thority and the courts, and do whatever they want," he says. Simply taking the child from one parent and transferring custody is no panacea; there's a high likelihood of failure since the child may simply rebel, run away, or refuse to integrate. In some cases placing the child in a neutral setting during tran- sition may work better, such as a See Many, page 11 February 2, 2009 • Law Times www.lawtimesnews.com

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