logo
Print Share This Page
The Stream - Courthouse Libraries BC Blog

Welcome to the Stream.

Stay current with the latest news and views from Courthouse Libraries BC.  

  • Have We Been Mishandling Our Alienation Cases?: Let’s Try a Different Approach

    by John-Paul E. Boyd | Oct 19, 2015

    This post first appeared on Slaw on October 16, 2015 and has been reposted for the benefit of Courthouse Libraries BC readers.

    Family law cases involving sincere allegations of parental alienation are difficult, highly emotional and profoundly conflicted. Although a certain number of these cases were likely to be high-conflict anyway, adding allegations of alienation to the mix makes conflict a near certainty. I can, however, imagine an alternative, more child-centred approach to these cases that might encourage negotiation and curb the usual rush to trial.

    Allegations of alienation are extraordinarily painful to all involved, and it seems to me that it is the intensity of our emotional responses to such allegations which sparks the fight-or-flight response spurring conflict and inhibiting our capacity for rational judgment. Consider, for a moment, the context in which these allegations are raised for both parents.

    Rejected parents are generally struggling with the aching loss of a relationship with their children while they deal with the legal fallout from the end of their relationship with the other parent. The loss of a relationship with a child is not the loss of a relationship with a friend or adult family member, but the loss of an intimate nurturing relationship with thickly interwoven elements of caregiving, mentoring and vulnerability. It is also a relationship so heavily laden with social expectations, usually of the Norman Rockwell and Hallmark Cards varieties, that the personal loss is inevitably accompanied by significant narcissistic injury and feelings of failure, inadequacy and abandonment.

    The sting of the loss is felt just as keenly whether the child’s rejection of a parent was a reasonable reaction to the personality and parenting traits of the rejected parent or arose from the malicious, willful efforts of the favoured parent. In my experience, parents whose behaviour had triggered the breakdown of their relationship with a child were generally oblivious of the fact. It is always easier, it seems to me, to blame someone else for one’s own failings, especially on matters so closely tied to ego and self-esteem.

    Favoured parents, on the other hand, seem to react to allegations of alienation with the same strident indignation whether they poisoned the child’s relationship with the rejected parent or not. They may characterize such allegations as spurious attacks on personality, desperate attempts to gain advantage, superficial pretexts for the pursuit of sole custody or nothing more than old school mud-slinging. Either way, it is rarely tactically possible for favoured parents to acknowledge the truth, or even partial truth, of allegations of alienation; such allegations must always be contested.

    Of course, to round out this discussion of context, it must also be remembered that allegations of alienation do not occur in the same sort of dispassionate, arm’s-length relationship that exists between the parties to personal injury claims or shareholders’ grievances. The parties involved in family law proceedings once, usually, trusted each other and loved each other deeply. They held hands together, broke bread together and, at least once, slept together. Now, however, they are adversaries opposed in interest, engaged in combative court proceedings, who nonetheless will maintain a lifelong relationship with one another.

    As a result of this unpleasant emotional stew, unaffected allegations of alienations either trigger conflict, or take existing conflict to new heights, and raise the stakes such that the rejected parent cannot resile from his or her claims without a serious loss of face, or a potential admission of poor parenting skills, nor can the favoured parent concede the accuracy of those claims.

    In a previous post, “Therapeutic Interventions and the Alienated Child: Whose Interests Are We Serving, and How Are We Serving Them?,” I suggested that the basic characteristic shared by all children who had become alienated from a parent is the child’s pathologically distorted views and feelings toward the rejected parent. I argued that if the best interests of the child is truly the primary consideration in all decisions affecting children, that the primary goal of all therapeutic interventions should be to transform the child’s distorted thinking into more realistic views and feelings that are based on the child’s actual experience of the rejected parent. I argued that that the restoration of the parent-child relationship should not be the primary goal of such interventions, although the repair of that relationship would obviously be a welcome incident of the repair of the child’s distorted views and feelings.

    Of course, the even more fundamental characteristic shared by children whose relationship with a parent has broken down, because of the actions of the favoured parent (alienation) or because of the parenting skills or past behaviour of the rejected parent (estrangement), is the loss of the parent-child relationship. Whether the cause of the breakdown can be agreed upon or not, the fact that the breakdown has happened is usually manifest and beyond dispute. This is what Alyson Jones, the noted Vancouver clinical counsellor, has described as “attachment disruption.”

    What if, instead of responding to the breakdown in parent-child relationships as alienation, casting blame on the favoured parent, or estrangement, casting blame on the rejected parent, we instead focused on the fact of the child’s attachment disruption, its impact on the child’s wellbeing and the means by which the child’s wellbeing might be promoted? What if rejected parents could not allege alienation at the hands of the favoured parent but only the fact of attachment disruption?

    There are, I suggest, a number of benefits to be gained from such an approach.

    Firstly and most importantly, the disruption of a child’s relationship with a parent is a tangible, measurable fact that has nothing to do with blame. The fact of the child’s attachment disruption can be established without the need to pursue its cause; it ether exists or it does not.

    Secondly, placing the focus of enquiry on the child’s attachment disruption minimizes conflict by discouraging the need to lay blame, whether on the favoured parent or the rejected parent. It allows the favoured parent to consider the breakdown of the child’s relationship with the other parent as primarily an issue of the child’s health and welfare, and eliminates the need to respond to hurtful allegations of misconduct. It likewise allows the rejected parent to focus on the issue as the child’s problem rather than the parent’s problem, and in lessening the pain of the loss of the relationship, the need to find fault with the favoured parent is also lessened.

    Thirdly, placing the focus of enquiry on the child’s attachment disruption encourages favoured parents as well as rejected parents to raise the breakdown in the parent-child relationship as an issue that must be resolved to benefit the child’s wellbeing in the legal proceedings.

    Fourthly, in avoiding the need to lay blame we avoid the need to identify a cause of the child’s attachment disruption. What is important is the fact of the disruption, not an investigation into fault. (Besides, my impression of these cases is that there are very few cases that are purely alienation or estrangement; most of the time, the breakdown of the parent-child relationship results from elements of each.) If we can avoid the need to lay blame, we reduce the intensity of emotions and conflict, increase the likelihood of settlement, reduce the cost of experts’ reports and decrease the length of trial.

    Finally, this approach is child-centred and emphasizes the therapeutic goal of addressing the child’s attachment disruption. It allows parents’ behaviour to be criticized without incrimination and thereby promotes the constructive engagement of both parents in the therapeutic process.

    It is important to recognize that this approach does not prevent counsel or the court from addressing the negative behaviours typically raised in proceedings alleging alienation or estrangement. A parent prone to disparaging the other parent in the presence of the children can be required to attend therapy or be restrained from making negative remarks merely upon proof of the impugned behaviour, without the need to also allege alienation. Similarly, a parent prone to the sort of harsh discipline that can result in estrangement can be sent to anger management or be restrained from hitting the children without the need to allege alienation or counter with allegations of estrangement.

    It is also possible to pursue the other remedies typically associated with allegations of alienation without making such allegations. It is not necessary to allege alienation to pursue contempt proceedings for failure to adhere to a parenting schedule, seek costs for a parent’s misbehaviour or apply for case management or the appointment of a parenting coordinator. It is not necessary to allege alienation to pursue a switch in custody or truncate the favoured parent’s contact with the child, if that is what is needed to address the child’s attachment disruption.

    Allegations of alienation are toxic and invariably exacerbate conflict between parents, whether the allegations are well-founded or not. The frequency of these allegations, albeit not their substantiation, is continuing to increase, as shown in recent work of the Canadian Research Institute for Law and the Family (PDF), and these cases are sucking up increasing amounts of judicial resources, not to mention litigating parents’ financial resources. They diminish or delay parents’ capacity to successfully cooperate in the raising of their children after trial and increase the likelihood that the parents’ legal dispute will have a lasting negative impact on their children, potentially impeding children’s relationship formation and social functioning as adults.

    Approaching the breakdown of parent-child relationships from the lens of attachment disruption strikes me as likely to minimize parental conflict, increase the likelihood of settlement and successful co-parenting, and emphasize the overarching importance of supporting children’s wellbeing after separation. Without a doubt, research and much more thinking is necessary to support and more fully develop this concept, but in the meantime I encourage parents and counsel to refrain from the slings and arrows of alienation and consider a more neutral approach focusing on the fact of the damaged parent-child relationship rather than the cause of the damage.

  • JP Boyd: Adapting Joyce and Horn Models for Divorce Act and Family Relations Act

    by CLBC Administrator | Aug 01, 2014

    Under the regime just past, the overlapping concepts of custody under the Divorce Act and custody and guardianship under the Family Relations Act allowed us to think of custody as a somewhat empty concept, largely valued by our clients for the perception of power and control it implied, and guardianship as the repository of the real nuts and bolts of parenting. As joint custody became increasingly prevalent, guardianship often became the flash point for conflict among our clients and we typically managed that conflict in one of two ways, by defining the rights and obligations involved in joint guardianship or by dividing the various aspects of parenting into separate spheres of authority exercised by each client. The former solution was often more practical, and resulted in the creation of the widely used Joyce and Horn models of joint guardianship as well as the Pothecary and Charleton models of joint guardianship.

    The regime adopted by the Family Law Act robs us of the convenient, but likely legally incorrect, distinctions we drew between the rights involved in custody and those involved in guardianship; guardianship under the new act is certainly not synonymous with guardianship under the old act. Moreover, because the rules for the post-separation care of children under the Divorce Act and the Family Law Act are seemingly incompatible, advancing simultaneous claims under both acts strikes me as unwise and imprudent.

    However, this new state of affairs needn't deprive us of the extraordinary utility of the Joyce and Horn models. The old sense of guardianship under the Family Law Act is largely reflected in the new concept of parental responsibilities, and custody under the Divorce Act has always included the rights and responsibilities of parenthood; see the discussion of this subject in Huddart J.A.’s excellent reasons in Anson v. Anson (1987), 10 BCLR (2d) 357. Let me then suggest the following reformulations adapted to each act.

    Joint Custody under the Divorce Act

    The Joyce Model

    The spouses will have joint custody of the child on the following terms:
    1. in the event of the death of a spouse, the surviving spouse will have sole custody of the child;
    2. each spouse will have the obligation to advise the other spouse of any matters of a significant nature affecting the child;
    3. each spouse will have the obligation to discuss with the other spouse any significant decisions that have to be made concerning the child, including significant decisions about the health (except emergency decisions), education, religious instruction and general welfare;
    4. the spouses will have the obligation to discuss significant decisions with each other and the obligation to try to reach agreement on those decisions;
    5. in the event that the spouses cannot reach agreement on a significant decision despite their best efforts, the spouse with the primary residence of the child will be entitled to make those decisions and the other spouse will have the right to apply for an order respecting any decision the spouse considers contrary to the best interests of the child, under s. 16(1) of the Divorce Act; and,
    6. each spouse will have the right to obtain information concerning the child directly from third parties, including but not limited to teachers, counsellors, medical professionals, and third party care givers.

    Paragraph five can of course be adapted to remove the reference to “primary residence” or to require alternate modes of dispute resolution if allowing a spouse final decision-making authority would be inappropriate.

    The Horne Model

    The spouses will have joint custody of the child and the spouse without the child’s primary residence will have the right:
    1. to be informed of the child's medical and dental practitioners;
    2. to contact the child's medical and dental practitioners and obtain the child's medical and dental records;
    3. to be consulted with respect to the selection of the child's alternative caregivers, such as daycare and preschool;
    4. to consult with the children's alternative caregivers and teachers;
    5. to be informed of events at the child's schools or daycare so that the parent without primary care may attend;
    6. to be informed of parent/teacher nights so that the spouse may attend;
    7. to be consulted with respect to any significant health issues relating to the child; and,
    8. to be consulted with respect to any significant change in the child's social environment.

    Parental Responsibilities under the Family Law Act

    The Joyce Model

    The guardians will exercise all parental responsibilities with respect to the child on the following terms:
    1. in the event of the death of a guardian, the surviving guardian(s) will be the only guardian(s) of the child;
    2. each guardian will have the obligation to advise the other guardian(s) of any matters of a significant nature affecting the child;
    3. each guardian will have the obligation to discuss with the other guardians any significant decisions that have to be made concerning the child, including significant decisions about the health (except emergency decisions), education, religious instruction and general welfare;
    4. the guardians will have the obligation to discuss significant decisions with each other and the obligation to try to reach agreement on those decisions;
    5. in the event that the guardians cannot reach agreement on a significant decision despite their best efforts, the guardian with the majority of parenting time with the child will be entitled to make those decisions and the other guardian(s) will have the right to apply for directions on any decision the guardian(s) consider(s) contrary to the best interests of the child, under s. 49 of the Family Law Act; and,
    6. each guardian will have the right to obtain information concerning the child directly from third parties, including but not limited to teachers, counsellors, medical professionals, and third party care givers.
    The Horn Model
    The guardian with the majority of parenting time with the child will exercise all parental responsibilities in respect of the child and the other guardian(s) will have the right:
    1. to be informed of the child's medical and dental practitioners;
    2. to contact the child's medical and dental practitioners and obtain the child's medical and dental records;
    3. to be consulted with respect to the selection of the child's alternative caregivers, such as daycare and preschool;
    4. to consult with the children's alternative caregivers and teachers;
    5. to be informed of events at the child's schools or daycare so that the parent without primary care may attend;
    6. to be informed of parent/teacher nights so that the other guardian(s) may attend;
    7. to be consulted with respect to any significant health issues relating to the child; and,
    8. to be consulted with respect to any significant change in the child's social environment.

    There are doubtless other, and likely better, ways to reformulate these models and I would be glad to have your suggestions and alternatives, which I would ask you to consider providing as comments to this post.

  • JP Boyd: Varying orders and setting aside agreements under the FLA

    by User Not Found | Mar 18, 2013

    The Family Law Act prescribes a number of specific tests for the variation of orders and the setting aside of agreements which vary depending on the subject matter of the order or agreement sought to be set aside. Where no specific test applies to vary an order, the act provides a test of general application.

     

    Orders

    Agreements

    Appointment of Parent as Guardian

    Court may vary order if change in circumstances; no specific test prescribed (ss. 51(1)(b), 215(1)).

    No test prescribed.

    Appointment of Person other than Parent as Guardian

    Court may vary order if change in circumstances; no specific test prescribed (ss. 51(1)(b), 215(1)).

    Cannot be appointed by agreement.

    Parenting Arrangements

    Court may vary order if satisfied that there has been change in the needs or circumstances of child, including because of change in circumstances of another person (s. 47).

    Court may set aside agreement if satisfied not in best interests of child (s. 44(4)).

    Contact

    Court may vary order if satisfied that there has been change in the needs or circumstances of child, including because of change in circumstances of another person (s. 60).

    Court may set aside agreement if satisfied not in best interests of child (s. 58(4)).

    Appointment of Trustee of Child’s Property

    Court may remove, discharge or terminate trustee if satisfied it would be in the best interests of the child to do so (s. 180)

    Cannot be appointed by agreement other than trust instrument.

    Child Support

    Court may vary order if: change in circumstances as defined by Guidelines, s. 14; substantial evidence has become available since hearing; or, evidence of lack of financial disclosure was discovered after the last order (s. 152(2)).

    Court may set aside agreement if it would make a different order, considering factors to make child support order (s. 148(3)).

    Spousal Support

    Court may vary order if: change in needs or circumstances of spouse since last order; substantial evidence has become available since hearing; or, evidence of lack of financial disclosure was discovered after the last order (s. 167(2)).

    Court may set aside agreement if: lack of disclosure; lack of procedural fairness; or, defence to contract made out (s. 164(3)). Court may also set aside if significantly unfair, considering: length of time since agreement made; intention to achieve certainty; extent of reliance on agreement; change in needs or circumstances of spouse; and, extend to which agreement meets objectives of spousal support (s. 164(5)).

    Division of Property and Debt

    Cannot be varied.

    Court may set aside agreement if: lack of disclosure; lack of procedural fairness; or, defence to contract made out (s. 93(3)). Court may also set aside if significantly unfair considering: length of time since agreement made; intention to achieve certainty; and, extent of reliance on agreement (s. 93(5)).

    Protection Order

    Court may vary order if change in circumstances; no specific test prescribed (ss. 187(1), 215(1)).

    Cannot be addressed by agreement.

    Prohibition Order

    Court may vary order if change in circumstances; no specific test prescribed (ss. 221(1), 215(1)).

    Cannot be addressed by agreement.

    Conduct Order

    Court may vary order if change in circumstances; no specific test prescribed (ss. 215(1), 223-227).

    Cannot be addressed by agreement.

JOHN-PAUL BOYD

 

JP is a practicing lawyer with Aaron Gordon Daykin Nordlinger in Vancouver, BC and serves on the editorial board of CLE's Family Practice Manual, the Provincial Court's Family Law Rules Committee and the Attorney General's Family Law Act Advisory Group. He frequently writes and speaks on family law topics and is the founding author of JP Boyd on Family Law, a Clicklaw Wikibook, which is the successor to his popular website www.bcfamilylawresource.com.

Please Upgrade Your Browser

This site's design is only visible in a graphical browser that supports web standards, but its content is accessible to any browser or Internet device.