Law Times

Law Times • November 10, 2008 Estate Planning Professional Appraisal Opinions - Trusted Values Find a professional real estate appraiser www.oaaic.on.ca 416-695-9333 Focus On FAMILY LAW n late November 2006, a mother wrote to her ex-hus- band to ask to spend time with the son she hadn't seen in nearly six months. Earlier that year, the father and son had moved from To- ronto to another Ontario city, and despite an agreement that the mother would have regular access to the child, the only way she could see him was by going to his hockey games. The courts had also ordered the father to provide the mother with updates on the child's health and on his progress at school and in sports, none of which happened. So, when the mother, identi- fied as J.K.L., e-mailed her ex- husband to suggest the son spend time with her family at Christmas, she expected the father to reply. In- stead, she got what Ontario Supe- rior Court Justice James Turnbull called a "rather tragic" response: "No, I don't want to see you and I never will want to see you ever again and who do you think you are to say that my dad makes my [decisions] . . . If I want to see your side of the family, I will call them." The father clearly held the power at that point, and the son, identified as L.S., never ended up seeing his mother during the holi- days. But earlier this year, the fa- ther's actions came back to haunt him. Turnbull ruled in J.K.L. v. N.C.S. that through a "form of subtle emotional abuse," he had been systematically alienating L.S. from his mother, a conclu- sion that led the courts to take away custody from the father. The case is a good example of what's called parental alienation syndrome, an issue the courts are finding themselves increasingly dealing with. But the case of L.S. was particularly noteworthy for its consideration of the broader issues that the 13-year-old was facing. As the judge noted, it wasn't necessarily enough to re- verse the custody arrangements. Because the father's actions had turned L.S. against his mother, simply returning him to her care wouldn't resolve the issue. As a result, the judge agreed that sending L.S. to a special work- shop for alienated children in Parental alienation syndrome on the rise I Watch for 'telltale signs' BY GLENN KAUTH Law Times Pennsylvania to repair the rela- tionship between mother and son would be a useful step. "This particular case was a wonderful result (in) that they sent the child off to get the type of counselling that the child needed," says Andrew Feldstein of Andrew Feldstein & Associ- ates in Markham. "You may have success in court, but if the children are not going to get the skills they need to be reac- quainted with the parent, and the parent doesn't have the skills to deal with the particular issues that are going to arise, you may be doomed to failure." But as Feldstein points out, the questions surround- ing parental alienation syn- drome aren't simple. In L.S.'s case, for example, it was clear that he was hostile towards his mother and that the problem wasn't just one of the father refusing access. The court de- cision noted, for example, that the father had been the primary caregiver for much of the 14- year marriage while the mother focused on her career. At the same time, the judge acknowl- edged that events in the marriage had likely traumatized the child, particularly the fact that he had to testify against his mother after police charged her with assault- ing her husband (for which the courts found her not guilty). As a result, the degree to which the custodial parent is responsible for the child's rejection of the oth- er parent isn't always clear. "The difficulty that we face as lawyers and judges is [that] when people make that type of allegation, is the reason that the child has a poor relationship with one parent because of parental alienation or is it for some other very good reason, i.e. that parent just wasn't a good parent, wasn't around or did things that bothered the chil- dren," says Feldstein, who notes that having qualified experts such as a psychologist testify in court is key to proving parental alienation syndrome. Another challenge is the fact that the systematic alienation by one parent is often progressive. "You have cases where it starts off [after] people separate and all of a sudden . . . one parent isn't seeing that child, and the other Andrew Feldstein says the questions surrounding parental alienation syn- drome aren't simple. parent is throwing up road- blocks as excuses. That's how it will typically start: 'the child has programs, the child isn't ready to see you this fresh after the sepa- ration.' There'll be excuse after excuse after excuse." For Feldstein, such actions, which he calls the "telltale signs" of parental alienation syndrome, should prompt the other parent to try to stop it immediately. "That's the best time to nip it in the bud and get proper access going," he says. Typically, however, cases will drag through the courts for a long time, and judges will only turn to the drastic step of taking away custody as a last resort. "What you have to ap- preciate is you're not going to go to court at the first instance and say this is a case of paren- tal alienation [and] the child should be taken away from one parent and placed with the other parent. I don't think any judge is going to take that radical step the first time you're in court. There's going to be a long sordid history where a judge is going to come to a clear realization that noth- ing but this dramatic step can work," says Feldstein. Feldstein adds that as a law- yer, it's his job to warn a client who is alienating a child to stop the behaviour, especially since the courts may eventually reverse the custody order. "These peo- ple who are doing it are putting their own anger and their desire to punish their spouse ahead of the best interests of the children and realizing it's best for the kids to have a relationship with both parents," he says. In L.S.'s case, meanwhile, the judge's order to give custody to the mother has yet to resolve the problem. While she first reunited with her son in April, by August she and her ex-husband were back in court for a mandatory review of the order. At that point, the court heard that after learning his father was refusing to participate in counselling with him, L.S. started having angry outbursts that led to his admission to the mental health unit at the Toronto General Hospital. There were also reports that L.S. had denied to his counsellor that the father had been alienat- ing him from his mother, some- thing that prompted the ex-hus- band to request a variation of the judge's order. The judge, however, refused. "It appears to me that [the fa- ther] simply cannot understand that the best interests of L.S. are not necessarily tied to L.S. liv- ing with him . . . despite what he and his son may think," the judge wrote. LT PAGE 9 What do 100%of Ontario's "Certified Family Law Practitioners"have in common? They have all entrusted DIVORCEmate One to process their family law practice needs, using Forms One for intricate court forms, Precedents One for comprehensive separation agreements and Tools One for sophisticated financial and cash flow a product of Untitled-2 1www.lawtimesnews.com analysis. Visit www.divorcemate.com today to download your 30-day trial version of DIVORCEmate One! NOW AVAILABLE: "Pay Per Use" or "Annual Subscription". Toll Free: 1-800-653-0925 or 416-718-3461 x446 e: sales@divorcemate.com www.divorcemate.com 11/6/08 4:21:58 PM

• Cover
• Fatboys Running
• Avoiding Equalization
• Focus On Family Law