Law Times

PAGE 10 FOCUS June 22, 2009 • Law Times the recent parental alienation case law and reconciling it with the practical realties of dealing with the people involved — most importantly the children, says Katherine Cooligan. "We're finding that in the alienation parental situation there is this constant struggle, whether you are representing the allegedly alienating par- ent or the other parent. What is the practical reality of the advice you give? On the one side there's the law and on the other side is a real human being," says Cooligan, a part- ner at Borden Ladner Gervais LLP's Ottawa office, and the firm's regional leader of the family law group. "And, there's the struggle of taking a position that will end up in litigation potentially forc- ing the child to do something that is against their expressed wishes, whether those wishes are the result of parental alien- ation or not, and the impact that there is on the relationship between parent and child by forcing this event," Cooligan tells Law Times in an interview. She says the situation is fur- ther compounded by the po- tential for a contempt motion against a parent when the child refuses to go for the forced ac- cess. "If there's a finding of alienation, and there's an order that the child change custody, [but] you've got a 15-year-old who doesn't go, who runs away, Parental alienation: tough balance of practical realities F BY GRETCHEN DRUMMIE Law Times amily law lawyers are faced with a dilemma in advis- ing clients with respect to who chains himself with his bicycle lock to the front tree, who makes it impossible for the second family that exists in the other parent's home to live with him, then the rem- edy that the parent has who is not getting the change in cus- tody or the access that they've been ordered, is to go to court for a finding of contempt against the other parent. "So, if you're represent- ing the parent who is having to defend a contempt mo- tion, there are other practi- cal realities there," she says. "The parent can be found in contempt and could be sub- ject to imprisonment, fine, suspension of child support. Various different remedies are sought on these con- tempt motions because the child is refusing to go." It can be a situation where it's not as crystal clear as an exact finding of parental alienation. There are degrees, says Cooli- gan. But "how do you differen- tiate for this 14- or 15-year-old child who says, 'I don't want to see my father.' That expression may come from the fact that he has been alienated. But, to him it's the view that he holds. It's his choice and he could be as many teenagers are, very adamant in pushing his point not only on seeing his father, but teenagers are rebellious in many ways and are very force- ful in their views." Cooligan says the cases where you see treatment options, such as the program in the U.S., or ordered counselling, are where there are very significant find- ings of parental alienation. So, as a lawyer for the party that's facing contempt because the child won't leave, Cooligan has some advice: "You have to make sure you have shown that you have done everything possible to ensure that the access or the change in custody or what- ever has happened." She adds if a lawyer is rep- 'On the one side there's the law and on the other side is a real human being,' says Katherine Cooligan. That's where the court will go far enough to impose treatment requirements. But, Cooligan notes, "the practical reality we're dealing with is that we don't always have the most extreme finding of parental alienation. You may just have a finding where there are signs and there are lists of conduct that are in- dicative of alienation, where the child is given the choice about whether or not to go for the ac- cess, the nature of the comments made by the parent to the child, derogatory comments about the other parent. You can have it on a mild level, and you can have it on a very serious level, but put yourself in the head of the child. What do you do? That child, their opinion might be the result of alienation — but they believe it." resenting a parent that is al- legedly in contempt, "make sure you know how far they have to go, and that they have done that. I don't think they have to go as far as locking the child out of the house but you better be sure that you've shown that they've done something whether it's gone and talked to the school with the child; whether it's gone through counselling with the child; writing to the other lawyer and suggesting that you have a meeting together; some kind of transitionary pe- riod recommendations; treat- ment; whatever will show that your client has facilitated it." Cooligan advises keeping a record of trying to address the problem. "The important point to be made is that you've made the effort," she says. "Un- derstand that there's already evidence of alienation by your parent, again it's a question of degree, but there's already evidence that this parent has in some way influenced the child. That puts a higher burden on the parent who's allegedly in contempt to show that there's been a change in their ways." She says it isn't harder to represent that type of client "if they take your advice. If they're not going to take my advice my practice is I don't continue to represent them. But if they take my advice, they're not harder to deal with because I think I'm able to advise them on what to do to ensure that they don't prejudice themselves; if they'll work with me." Another hint Cooligan pass- es on is that when you take on a client with kids, one of the first things to tell them is not to grumble about the other side, however tempting. And e-mail usage is addressed. "In a partic- ularly adversarial custody case, I think it's important that the lawyer is vetting the commu- nications and explaining to the client the consequences of cer- tain types of communications." If you're the lawyer on the other side of the issue, Cooli- gan says the biggest difficulty is knowing how far to push. "I think the toughest posi- tion for family law lawyers to be in with these cases, is what do you tell your client to do because you may succeed on the law and on the evidence that you will have before the court, but how does that suc- cess translate into reality with the child? And how far do you go, how much money is spent, how much damage do you cause just by being in litiga- tion. Are you perpetuating or facilitating the other parent's ability to alienate because you keep pushing? It shouldn't be that way, you're not doing anything if you're the alien- ated parent but you can see where these are practical reali- ties that we have to face." While parental alienation is not a new phenomenon, at- tention to it has increased re- cently. Cooligan attributes that to the mental health focus and treatment options that are out there. She also thinks the courts are less tolerant of it, and that there's more education with judges of the psychological im- pact of separation and break- downs in families on children. She adds that having re- cent reported decisions where lawyers can point a new client specifically to what judges have ruled is important early on in cases like this. But she notes this is "not the norm. There are only certain types of families that get into this situation." LT Childview_LT_June22_09.indd 1 www.lawtimesnews.com 6/17/09 12:08:32 PM

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• Review Process
• A Criminal Mind
• Focus On Family Law