Law Times

PAGE 10 FOCUS February 7, 2011 • Law Times Parental alienation orders: academics weigh in Theory comes under scrutiny as courts continue to face tricky cases BY JUDY VAN RHIJN For Law Times sometimes end up with children going to controversial work- shops, parental alienation theory is coming under scrutiny. Academics and practitioners W ith a body of deci- sions dealing with child custody that are beginning to voice strong opinions on the appropriate- ness of the diagnosis and the effectiveness of actions taken by the court. The existence of alien- ation in family breakups isn't a new phenomenon, of course, but the legal community has been considerably stirred up by advocates of the theory of pa- rental alienation syndrome and MARMER PENNER INC. BUSINESS VALUATORS & LITIGATION ACCOUNTANTS BUSINESS VALUATION MATRIMONIAL & OTHER LITIGATION SUPPORT FORENSIC ACCOUNTING QUANTIFICATION OF DAMAGES SHAREHOLDER/PARTNERSHIP DISPUTES GOODWILL IMPAIRMENT TRANSFER PRICING 94 Cumberland Street, Suite 200 Toronto, Ontario M5R 1A3 Tel: (416) 961-5612 Fax: (416) 961-6158 2 Bloor Street West, Suite 2603 Toronto, Ontario M4W 3E2 Tel: (416) 961-5612 Fax: (416) 961-6158 Email our partners at: sranot@marmerpenner.com jdebresser@marmerpenner.com Email our partners at: sranot@marmerpenner.com jdebresser@marmerpenner.com the measures the courts some- times take to address it. Family lawyer Jan Weir of Toronto has great concern with the notion that the syn- drome reverses other theories that there's a real issue with the rejected parent. Parental alienation syndrome "says it's the fault of the accepted parent and there's no true is- sue with the rejected parent," Weir notes. This concern has reached the ears of the academic com- munity, which has started scrutinizing the theory and practice surrounding parental alienation syndrome. The last year saw several papers address- ing the phenomenon that fol- lowed the progress of cases in which the stakes were particu- larly high in terms of potential damage to the children in- volved. For example, Nicholas Bala, Suzanne Hunt, and Caro- lyn McCarney studied all of the reported Canadian cases that re- ferred to alienation between 1989 and 2008 and concluded that this is a complex problem the courts are facing with increasing fre- quency. They found that where parental alienation is found to exist, the most common judicial response is to vary the custody regime. But there's much de- bate as to whether this dramatic change does children more harm than good. armer_LT_June_10.indd 1 ANNOUNCEMENT 6/14/10 3:25:19 PM CHAIR William M. Trudell (Toronto, Ontario) VICE CHAIR Isabel J. Schurman (Montréal, Québec) Mark Brayford, Q.C. (Saskatoon, Saskatchewan) TREASURER Andre J. Rady (London, Ontario) SECRETARY John M. Williams (Regina, Saskatchewan) DIRECTORS David J. Bright Q.C. (Halifax, Nova Scotia) Gregory P. DelBigio (Vancouver, British Columbia) Richard S. Fowler (Vancouver, British Columbia) Peter J. Harte (Cambridge Bay, Nunavut) Emily R. Hill (Whitehorse, Yukon Territory) Lucie Joncas (Montréal, Québec) Lisanne O.Maurice (Moncton, New Brunswick) Jamie Merrigan (Corner Brook, Newfoundland and Labrador) Evan J. Roitenberg (Winnipeg, Manitoba) Robert E. Simmonds, Q.C. (St. John's, Newfoundland and Labrador) FOUNDING CHAIR Brian H. Greenspan (Toronto, Ontario) PAST CHAIR Marvin R. Bloos, Q.C. (Edmonton, Alberta) Canadian Council of Criminal Defence Lawyers CCCDL/CCAD CCCDL_LT_Feb7_11.indd 1 www.lawtimesnews.com 2/2/11 1:20:17 PM We hope that the conversation continues and we urge all our colleagues in the Profession and all levels of Government to join in. We salute and thank Bell Canada for its remarkable "Let's Talk" campaign on Mental Health. 'What happens to children that you leave with an alienating parent? The literature is not encouraging,' says Nicholas Bala. A warning that appears fre- quently in cases and research is that many such matters aren't parental alienation cases at all. In a 2010 study by U.S. researchers Janet Johnston and Judith Roth Goldman, the authors found that a large portion of children who reject a parent aren't singu- larly alienated but are often real- istically estranged by inadequate, problematic or abusive parenting by the rejected parent. This finding has been endorsed by Barbara Jo Fidler and Bala, a professor at the Queen's Univer- sity Faculty of Law, in their 2010 paper "Children Resisting Post- separation Contact with a Parent: Concepts, Controversies, and Conundrums." In it, they say: "There is too much focus on the conduct of the alienation parent with insufficient consideration to many other contributing factors, including the role of the rejected parent." Where alienation does ap- pear, it's still not clear-cut. Fidler and Bala say that most cases are "hybrids" with varying degrees of enmeshment with one parent and a degree of ineptness by the other parent. There also are the dynamics of alignments, affini- ties, and gender identification that occur normally in non- divorced families but take on a threatening aspect in divorced families. "This makes proper diagnosis and intervention plan- ning extremely challenging," the authors warn. A telling indicator that there has been alienation occurs when the child's reaction is out of pro- portion to the complaints with anxious, phobic-like responses, and all-or-none thinking. Even when this is apparent, many people question the application of the parental alienation diagno- sis. Another study co-authored by Johnston concluded that the diagnosis isn't effective and is in fact harmful because it's polar- izing. Fidler and Bala agree that the parental alienation diagnosis is "not useful, not valid clinically, and doesn't meet criteria for a syndrome from an evidentiary perspective." The conclusion that the diagnosis isn't scientifically sound is endorsed in a U.S. family court manual for judges that advises that they shouldn't accept this testimony. Weir is concerned that Canadian courts are opening the door to parental alienation syndrome at a time when the U.S. justice system is shutting the door. "U.S. judges are refusing to admit it based on 20 years' ex- perience with it," he says. However, no matter what name or description is given to the problem, something has to be done. Or is that re- ally so? Some academics con- tend that the system should do nothing because of the effect on children's stability and the potentially serious short-term negative ramifications. Peter Jaffe, Alf Mamo, and Dan Ashbourne authored a pa- per in Family Court Review last year in which they said: "We would consider the disruption of an otherwise well-adjusted child from their primary home, school, and social networks as a potential form of system abuse." They recommended that courts consider another extreme re- sponse to "leave it as it is and not intervene to protect the children from ongoing litigation and un- certainty. Terminate the role of the parent, at least temporarily, as a ceasefire plan. There can be spontaneous child-initiated re- unification later." In fact, Johnston found that all of the children she inter- viewed had negative views about being forced to participate in re- unification therapy yet nearly all had initiated contact with the re- jected parent between the ages of 18 and 21 (although two-thirds of them hadn't sustained the contact). Johnston suggested a "strategy of voluntary supportive counselling and/or backing off and allowing the youth to mature and time to heal the breach." Academics grapple with the question of which harm is greater: a separation from an un- healthy relationship that may put a child at risk of running away or remaining in it? In a letter ten- dered in the recent case of S.G.B. v S.J.L., Dr. Marshall Korenblum of the department of psychiatry at the University of Toronto found that in the Canadian cases of cus- tody reversal and attendance at a parental alienation workshop, 50 per cent had no change in the lev- el of disturbance within the fam- ily; 25 per cent showed modest improvement; and in the other 25 per cent, the child became demonstrably worse with signs of new suicidal ideation and intent. However, a growing body of research into the long-term harmful effects of alienation is described by Fidler and Bala as "sobering." "In some cases of apparent alienating, there is a personality disorder, and the aligned parent is not parenting the child well See Kids, page 11

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