Parental alienation — one of the most heartbreaking issues that has bordered on family matters, law, and mental health. When one parent turns a child against the other, not only does the emotional damage last for years, but there can also be legal consequences.
In this article, we’ll shed light on what alienation is in its legal sense, and how it is addressed by the courts. This article can be used by the lawyers as an educational piece for their alienated clients, or by spouses who are being alienated from their children.
What does parental alienation mean?
Parental alienation is the act of "alienating" one parent by the other parent from their common child. It usually occurs when two spouses (or partners) who have a common child are separating or have already separated, and parenting time (previously called child custody) has been ordered.
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It is made up of a series of acts by the alienating parent (the favoured parent), which will eventually result in the child’s indifferent attitude towards the alienated parent (the rejected parent). These acts against the alienated parent, which may result in alienation, can include the following:
- forcing the child to hate the other parent
- limiting the other parent’s parenting time
- manipulating the child’s feelings
- restricting information about the child
- speaking badly about the other parent
Alienation may be tantamount to brainwashing or emotional abuse, where the goal is to retain (or even gain) the sole custody of the child/ren. Sometimes, the child is also used for getting "revenge" on the other parent, and it’s where the alienating acts come in.
Here’s a short video explaining what parental alienation is about:
If you think you’re becoming a victim of alienation, immediately reach out to the best family lawyers in Canada as ranked by Lexpert to learn about your options.
Parental alienation syndrome (PAS)
While parental alienation and parental alienation syndrome (PAS) are synonymous, it’s not entirely the same. One is a legal concept that has different standards when used in court, while the other is a psychological condition. Still, both are important when taking on the issue and raising it in court.
In parental alienation, the goal is to prove that the alienating spouse has committed certain acts, which justifies the intervention of the court. On the other hand, PAS looks at the effect of the alienating acts on the child/ren, who were programed by one spouse to feel or go against the other.
Who commits parental alienation
In parental alienation or PAS, the alienating spouse is usually the one who has significant parenting time (child custody) over the other. However, this is not to say that acts of alienation may not be committed by the alleged alienated spouse. Similarly, the alienated spouse cannot be said to be entirely blameless in such situations.
The issue transcends over different genders; it can be committed either by the mother or the father. Alienation may also be committed not just against the other parent, but also to that parent’s family and friends, or even to other family members (e.g. other siblings).
How is parental alienation established under Canadian laws?
Allegations of alienation are factual in nature, where the alleging parent must prove such treatment or abuse against the child. Expert witnesses are usually relied on, such as in the case of A.G.L. v. K. B. D., 2009 CanLII 943 (ON SC). Here, the expert witness used Richard Gardner’s definition as “a form of emotional child abuse almost exclusively seen in separated and divorced families in custody disputes.”
Case law can also be a reference on what pieces of evidence that courts consider proving alienation. In the A.G.L., it has a long list of the different “warning signs of behaviours exhibited by child, alienating parent and rejected parent.” This can be helpful to decide what red flags a parent and the court should investigate.
What are a parent’s remedies against parental alienation?
The rejected or alienated parent has various remedies against alienation, which may include legal or out-of-court proceedings. It must be stressed that before doing any of these, it’s important to consult a family lawyer so that every step taken is a guided one.
As an alienated parent, here are some steps that you take against parental alienation:
Our directory of the Lexpert-ranked best family law firms in Canada is another tool you can use when looking for help to address alienation.
Documenting signs of parental alienation
Whether it’s for the court or any other proceedings, if a parent thinks that they’re being alienated, it’s important to document its signs at once. These include the gradual (more so the sudden) changes of their child’s attitude toward them. Although these must be also considered in view of the changes that are happening to the child because of the separation.
The alienated parent can talk to the child’s teachers and other close persons with the child if they’ve noticed something. Consulting with a professional who understands parental alienation can also help. This professional, who knows the history of what happened, can then serve as an expert witness when court intervention becomes necessary.
Reach an agreement with the other parent
With the help of a family lawyer, the rejected parent may try to talk to the other spouse about these documented changes in their child and see how they can remain in the picture. They can also try other out-of-court processes (e.g. family mediation), in the hopes that it can bridge the rejected parent back to the child.
Apply for a reverse parenting order
Most cases of parental alienation happen when a parenting order is issued in favour of one parent, and the other parent is being alienated by violating the issued parenting order.
For example, Spouse A and Spouse B were issued a parenting order where Spouse A has custody of the child, with Spouse B having weekends for parenting time. Over the succeeding months, Spouse A gradually limits Spouse B’s parenting time and access, eventually prohibiting Spouse B from seeing their child.
In such a case, a reverse parenting order may be applied by the alienated parent (Spouse B, in our example). In a reverse parenting order, the court may reverse, either totally or partially, the initial parenting order by:
- granting full or partial custody and access to the alienated parent; and/or
- removing full or partial custody and access against the alienating parent; plus
- imposing on the alienating parent certain conditions before the parenting arrangement is re-considered (e.g. to attend therapy)
Legal basis for changing a parenting order
Laws on divorce and separation in Canada are both federal and provincial in nature. While divorce is governed by the federal Divorce Act, all other matters on family law are found in provincial and territorial statutes.
The same goes for the grounds of changing a parenting order, which involves custody and/or support of the child. Under the Divorce Act, only if there is “change in the circumstances of the child” would the last parenting order be changed. Other grounds can also be found in provincial laws.
Reverse-parenting order is a drastic approach
However, it is well-recognized among the courts that a reverse parenting order is a drastic approach against parental alienation. First, it may not be the best answer in line with the best interests of child/ren. Second, it may further lead to family breakdown, rather than helping old wounds heal.
As such, case law has set certain standards before allowing a reverse parenting order. In the case of LS v. MK, 2023 ABKB 487, the Court cited the following factors in deciding whether to grant a reverse parenting order:
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Effects of the order: The change brought by a reverse parenting order must “result in the restoration of the child’s relationship with the rejected parent.” Otherwise, it may not repair the strained parent-child relationship, especially if “the child’s alienation is too deeply entrenched.”
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Benefits of the order: There must be long-term benefits for the child, which outweighs the short-term distress brought by the change after enforcing the reverse parenting order.
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Alienated parent’s capacity: The alienated parent must have the “parenting capacity and emotional health to provide a positive, nurturing environment for the child.” The parenting offered by the rejected parent must be at par, or be better, than the parenting offered by the favoured spouse.
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The child’s interests: The court will also look at into “the vigour” of child to resist the change if a reverse parenting order is done, including the possibility that the child “will engage in adverse behaviours such as running away, self-harm and substance abuse.”
In this case, the application for a reverse parenting order was denied because it was not in the best interests of the children. The Court noted “the children’s staunch opposition to having any contact with [the alienated parent].” It also considered the age of the children, who were already 13 and 14 years old at that time.
This contrasts with the A.G.L. case, where the Court said that if it “finds that there has been parental alienation, the child's views cannot be seen as their own.” As a result, the Court gave “little or no weight” to the views and preferences of the children.
Other legal remedies against parental alienation
In the case of Williamson v. Williamson, 2016 BCCA 87, the Court described some of the other legal responses in cases of alienation:
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Other court orders: The court can order a case management and parental conduct orders, with cost consequences for non-compliance. There can also be judicial exhortation to urge the parent to comply with a court order.
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Therapies, except reunification: Therapeutic intervention can be ordered if proper. However, “force-marching” a child to reunification may not be granted in some cases, since it’s “unrealistic and harmful” in some cases.
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Parenting time: Supervised access or parenting time can be ordered in favour of the alienated parent “to allay any child anxiety and possibly pave the way for further strategies to achieve positive relationships.”
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Imposing sanctions: Other sanctions can be imposed on the alienating parent, such as the suspension of child or spousal support to enforce more engagement with the alienated parent.
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Transfer of custody: The child’s custody can be transferred from the alienating parent to the rejected parent, but only if expert testimony can show that its long-term benefits outweigh any short-term emotional trauma to the child.
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Terminating access time: In worst cases, the access or parenting time of the alienated parent can be stopped “when the alienation is so entrenched.” This is in recognition that children may resume their relationship with the alienated parent “after a long period without contact, albeit perhaps only in later years.”
Parental alienation: an estranged spouse’s legal remedies
In separation and custody cases, parental alienation is framed as a worst-case scenario. As such, the law and courts have imposed drastic measures to address these situations. However, these legal remedies are not to be taken lightly; but with the right help from a family lawyer, alienation and rejection can be curbed, all for the sake and welfare of the children.
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