Law Times

Law Times • November 9, 2009 FOCUS PAGE 11 Judge reverses parental alienation ruling Controversial trend continues because opposing parents lack funds: lawyer BY HEATHER CAPANNELLI For Law Times I n another case underscoring the controversy over parental alienation workshops, Jus- tice Th ea Herman of the Ontar- io Superior Court struck down part of an arbitrator's award earlier this year that would have removed two teenage boys from the custody of their father and sent them to Texas. Th e decision follows a series of judgments in which Ontario courts have ordered a change in custody and sent the custodial parent along with the children to participate in the workshop. In S.G.B. v. S.J.L., the court set aside part of an award concluding that the workshop was in the best interest of the boys because the arbitrator relied too heavily on an assessment of them prepared by Richard Warshak, who admitted he hadn't met them personally. In his testimony and written evidence, the psychologist and author explicitly declined to make recommendations with respect to the children because he had never observed them before. Yet the ar- bitrator ordered that the remedy was "necessary for the children in this case and completely conso- nant with their best interests." Herman, however, decided that in making such a fi nding, the arbitrator's order amounted to a "fundamental error." Another issue arose prior to the hearing when the father asked the arbitrator to order an assessment to determine the appropriateness of the workshop for the children. Th e arbitrator declined to do so, instead relying on his own experi- ence as a custody and access as- sessor. But Herman rebuked that decision, saying "the arbitrator's experience can only be brought to bear on the evidence. Th e arbi- trator cannot create evidence." In addition, Herman said the arbitrator failed to consider the psychological impact the work- shop would have on the younger boy. He suff ered from Klinefelter syndrome, a genetic disorder that, among other things, caused a language delay. Th e facts of the case were as follows. Th e applicant, the father, and the respondent mother en- tered into the arbitration to help resolve issues surrounding their two sons L.B. and J.B., aged 17 and 14 respectively. Th e parents CLARIFICATION An Oct. 19 story entitled "When is a request for an insurance exam 'reason- ably necessary?'" incorrectly identifi ed a psychiatrist who gave an opinion about an accident victim's functional impairment in the case of H.T. v. Security National. The story ascribed the assess- ment to Dr. L. Jerome when it in fact came from Dr. Ta- mara Biederman. had been divorced since May 1999 and since then, the mother experienced an estranged relation- ship with both of her children. After several attempts to re- solve disputes about custody, access, and raising the children, both parents agreed to what turned out to be an unsuccessful arbitration in August 2007. Th e proceedings were due to continue on Nov. 20, 2007, but the father brought a pre-hearing motion to prevent the arbitrator from mak- ing an order that might result in the children leaving the province given that the mother had been in consultation with Warshak for several years despite the fact that he had never met the boys. Th e motion was denied. Th e arbitration took place in February and March 2008 and, based on Warshak's report that the children were suff ering irrational alienation towards their mother, the arbitrator awarded sole cus- tody of both children to her and ordered that they participate in the workshop to help to restore their ties with her. Logistically, this meant no contact with their father for the three months that the boys were in the program. Once the workshop conclud- ed, communications could re- sume as long as those in charge authorized them. Th e order also allowed the mother to use transporting agents to take her children to the work- shop in Texas if they were unwill- ing to go on their own volition. "Th e work of Dr. Warshak has been submitted for peer re- view so it's not as controversial as the media hype may lead some to believe," says Jaret Moldaver, counsel for the mother. "Dr. Warshak has successfully worked with children who have been alienated, and in cases where conventional approaches don't work, it's the only viable option to save the child from abuse." A larger issue, however, is that often these cases come down to a battle of costly expert evidence, says the father's counsel, Jan Weir. "My concern is that in most of these cases, it appears that one parent has the fi nancial means to retain high-end counsel and experts like Dr. Warshak, but the other parent seems to have mod- est means and never retains an ex- pert, meaning that they can't lead evidence against the fi ndings or methodology of Dr. Warshak." A week at the workshop costs about US$40,000. According to Warshak, paren- tal alienation syndrome is "a child's unjustifi ed campaign of denigra- tion against, or rejection of, one parent, due to the infl uence of the other parent combined with the child's own contributions." It is recognized as a form of emo- tional abuse that happens when parents get so caught up in their own problems that they lose sight of their children's needs. In an interview in 2008 with Maclean's magazine, War- shak said the workshop "teach- es children how to stay out of the middle of adult confl icts and how to maintain a com- passionate view toward each parent" and that it helps the child "recapture a major part of his identity. When the child no longer feels the need to pledge allegiance to one parent by re- jecting the other, that's enor- mously liberating." But Weir says the test in law for admissibility of expert evidence is whether it's gener- ally accepted by the profession. Th at's because courts don't in- terpret the evidence of experts on their own. "Is this a method that's generally accepted by the profession at large?" says Weir. "Th is kind of evidence is get- ting in because the parents who are on the receiving end just don't have the funds to retain an expert to say that it's not, that it's untested." 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