By C. Gwendolyn Landolt
National Vice President
REAL Women of Canada
The death of a marriage gives rise to intense stress comparable to the death of a family member. However, the grief and stress experienced by a parent when his/her beloved child becomes alienated and who, as a consequence, refuses to be a part of that parent’s life, creates similar grief and stress. Until recently, this pain and desolation were seldom recognized and understood. The aching wound caused by a child’s withdrawal physically, emotionally and spiritually from a caring parent is deepened when the alienation is deliberately instilled in that child by a custodial parent after the marriage has broken down. In many cases, it is used as a tool to acquire sole custody of the child.
Unfortunately, legislation, policies and judicial decisions, unintentionally, encourage one parent to alienate a child from the other parent. Usually this occurs in regard to the father, but this is not always the case. This alienation from a parent leads to permanent harm to that child and quite properly can be described as child abuse.
Examples of legislation contributing to PAS include the following:
1. Federal Legislation
No-fault Divorce
No-fault divorce, which became law in Canada in 1986, permits a spouse to walk away with ease from a marriage. (See REALity, March/April 2009, page 1, “The Tragedy of No-fault Divorce.”) Unfortunately, this permissive law can also separate the child from the other parent. This is because the divorce industry has put machinery in place to “facilitate” the fall-out from these divorces and it is this machinery which facilitates parental alienation syndrome (PAS) by enabling one parent to use the child to harm the other parent. This divorce “machinery” includes the following:
(a) Criminal Code of Canada Allows PAS
PAS is allowed because it is the policy of most provincial Attorneys General that an accusation of domestic violence requires both police and Crown lawyers to prosecute, under the Criminal Code, with vigour any spouse alleged to have engaged in domestic violence, even though it is based only on the accusation of one of the partners. Thus, under this criminal process, the complainant can achieve, by court order, total custody of the matrimonial home and custody of the children, just by alleging violence on the part of the other partner. This criminal charge of violence, therefore, can wreak havoc on the family unit and, in particular, on the children, since the criminal justice system pays no attention to the best interests of the child. There is no remedy, short of a bail review for the accused. This places one party in a position of immediate superiority over the other party for as long as it takes (perhaps a year) for the criminal charges to be resolved. During this period, the child of the marriage usually has no contact with the accused parent. The period of incarceration also provides the uninterrupted opportunity for the custodial parent to encourage alienation of the child from the other parent. The stigma attached to the alleged domestic violence and the resulting charges also exacerbate the alienation of that child.
No Evidence Required
It is deeply troubling that an accused parent can be arrested for domestic violence and child abuse, even if no evidence is provided – a mere accusation by the complainant is sufficient. In fact, a custody order can be put in place, plus child support payments ordered, again, with no evidence required – just the accusation of a spouse. The latter, of course, often uses these accusations of domestic violence and child abuse for a tactical advantage in the struggle for custody and support. This tactical advantage, however, is not usually as available to men as to women, given the fact that, when domestic violence is instigated, it is presumed, often incorrectly, by police and the justice system, that the male is responsible and should be removed from the home. In fact, studies indicate that women instigate domestic violence as frequently as men. (See REALity, March/April, 2008, “Violence Against Women: A Money Grabber,” page 1.)
(b) Federal Child Support Guidelines Upon Marital Separation
The intent of the Federal Support Guidelines, which came into effect in 1996, was to promote objectivity and consistency in child support awards in order to lessen conflict and tension between the separated partners. Before the implementation of these Guidelines, however, courts were able to take into account the level of access by a parent who may have been alienated from his child by the other parent. This had an ameliorating effect on the custodial parent, and prevented him/her from denying access to the separated or divorced spouse. Under the present Support Guidelines, however, the support must continue to be paid, even in circumstances where court-ordered access is not being honoured by a parent. The reality is that court-ordered access is seldom enforced and the parent who has been alienated from his/her child has no practical remedy, except by way of costly litigation for a court order to enforce the access order. This option, however, is often out of reach for parents financially struggling to maintain two residences and child support as a result of the separation.
2. Provincial Legislation
(a) The Provincial Family Law Acts
Provincial family law legislation creates a double jeopardy scenario in regard to Parental Alienation Syndrome (PAS), in that not only does the federal Criminal Code provide an opportunity to exclude a parent by PAS, but provincial legislation also provides this threat. For example, the Family Law Act of Ontario, which has been the flagship for family law in Canada, since most family law acts in Canada pattern themselves after it, includes provisions that easily provide the opportunity for PAS.
The preamble to such legislation usually provides for the “equitable sharing by parents of responsibility for their children”, but the devil appears to be in the details, since these acts also include provisions that work against the preamble. For example, most provincial family law acts permit a spouse to have the other partner removed from the home if there is “evidence” of abuse. Again, it is not necessary to provide substantive evidence of such alleged abuse – only the complainant’s statement of abuse.
(b) Abuse Allegations
False allegations of abuse have been described by Senator Anne Cools, an expert on family law, as the “heart of darkness.” That is, falsely accusing the other party (usually the father) of sexual or physical abuse is a lethal weapon in the business of parental alienation and achieving sole custody of a child. Countless accusations of child sexual or physical abuse (over 50 cases in recent years) have been proven to be false.
The 1996 Manitoba Civil Justice Provincial Task Force reviewing false allegations for reasons of obtaining sole custody of a child, reported as follows:
The task force heard horror stories about the traumatic impact on the accused person, on the immediate family and children affected by malicious false allegations designed to achieve sole custody, prohibit or restrict visiting privileges, and to punish the other parent.
3. The Courts
The courts have recently become much more aware of the problems created by PAS, and are now making a genuine effort to remedy the situation. In January 2009 in the case A.L. and K.D., (Ontario Superior Court), the court found that a mother had deliberately turned the children against the father and, as a result, the children refused all contact with their father. The court ordered the children removed from the mother’s custody and placed in the custody of the father instead, denying the mother visitation rights until she had received counselling.
It doesn’t always work out this way. In another recent case, the court found that the mother had deliberately alienated the child from her father and had taken the child out of the jurisdiction to Saudi Arabia, where she remarried. The court concluded that even though the mother was “a mischief maker, a liar and a manipulator, who had ignored the court and common decency”, the child’s “best interests” required she remain with her mother in Saudi Arabia. This decision indicates that PAS can still be a successful tactic.
Another example of insensitivity by the courts to the non-custodial parents was the Supreme Court of Canada decision in 1998 when Madame Justice Claire L’Heureux Dubé, who, from her many decisions, can be accurately described as a feminist judge, wrote a lengthy judgment in Young v Young [1993] 4 S.C.R. 3 in which she asserted (p.58) that a child’s best interests were best served by protecting the position of the custodial parent. According to her, “the role of the access parent is that of a very interested observer, giving love and support to the child in the background.” This is scarcely reassuring to a parent alienated from a child. For a parent to be defined as merely “an interested observer” is an insult and a denial of the important role both parents play in the raising of a child.
What Can Be Done to Protect a Parent from PAS
It seems apparent that the legislation relating to families should be amended to include a specific provision to the effect that, if it is shown that a parent has alienated a child from his/her other parent, then custody and access should be denied that parent, since PAS is not in the child’s “best interest.” That is, it is not sufficient that protection from PAS be left to the discretion of the judge: it must be a requirement written directly into the legislation and if PAS is present, the parent responsible for it should not be given custody of the child.
In addition, it is important that allegations of abuse under the Criminal Code or provincial legislation be supported by evidence before charges are laid. That is, statements by a spouse of abuse should no longer be regarded as sufficient to support the laying of a charge. It is realized that such evidence is not always easy to obtain since domestic disputes occur, frequently, when there are no other witnesses present.
Perhaps the answer may be to provide penalties for those proven to have made false allegations. This may serve as a deterrent for those who now so readily and easily make such allegations to serve their own ends.
Attempts to protect a child from alienation of a parent and to recognize the importance of both parents in a child’s life have not been easy. However, for the sake of the children, we must never give up on this goal. We must persevere until children are safe from PAS.
REAL Women of Canada
News publication REALity
November December issue
December 1, 2009 |
