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July 2, 2015 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

This case isn’t new, but it provides a handy segue to tomorrow’s post and teaches us a lot about how parental alienation is — or isn’t — handled by family courts (Toronto Star, 1/24/09).  It’s presented as a victory for common sense and the well-being of children, but is it? It’s a clear case of egregious parental alienation of three girls by their mother against their father. And the judge, Justice Faye McWatt, clearly did the right thing when she simply transferred custody of the children to their father and prohibited contact with the mother.

So, if the diagnosis was correct and the response by the judge was as well, what could be wrong? Several things.

The girls are now aged nine through 14 years old. Their father, A.L. is a vascular surgeon and their mother, K.D. is a chiropodist. Although the article isn’t clear, they seem to have divorced at least eight years ago, but K.D.’s campaign of alienation apparently began even before that.

The mother's "consistent and overwhelming" campaign to brainwash the children into thinking their father was a bad person was nothing short of emotional abuse, Justice Faye McWatt of the Superior Court of Justice wrote in her decision.

McWatt went on to detail some of the ever-escalating tactics used by K.D. to ensure the girls couldn’t have contact with their father.

These include ignoring court orders, shutting the door in A.L.'s face when he came to collect the children and refusing to answer the phone when he called to say goodnight. (He was granted telephone access to say good night on Monday, Wednesday and Friday). At times, she also arranged for police to show up when her daughters had overnight visits with their father.

Eventually, K.D. cut off contact altogether, refusing to allow A.L. to see or speak with his daughters. He was reduced to shouting goodnight to them through the door of their home, often not knowing whether they were there.

So Justice McWatt took what numerous experts in parental alienation say can sometimes be the only approach to a family broken by an alienating parent.

In a stunning and unusual family law decision, a Toronto judge has stripped a mother of custody of her three children after the woman spent more than a decade trying to alienate them from their father.

That of course should only be done if all else has failed. Parental alienation expert Nicolas Bala explained:

In most cases, the problem is resolved through counselling, where parents are encouraged to accept they'll both always be in their children's lives, said Bala...

"Having said that, there are some people — and I think some of them are suffering from personality disorders — who will not respond to therapy and will not respond to directions from judges."

Transferring custody is a last resort, because "it can be quite dramatic and traumatic" — yet sometimes better than the alternative, said Bala.

"We often talk about the best interests of the child, but often it's the least detrimental alternative, really."

Obviously, K.D. was one of those intransigent parents who was dead set against her ex having any access to his daughters and they with him. Whether counselling was attempted to solve the problem in this case remains a mystery. If it was, it clearly didn’t have the desired effect.

As of now, K.D. is prohibited from having any contact with the girls except insofar as she might be needed in their psychotherapy. A.L. has sole custody of his daughters.

Lawyers are crowing about the salutary effect this case is likely to have on other parents who may be tempted to alienate their children from an ex.

Harold Niman, the father's lawyer, said the decision serves as a wake-up call to parents who, "for bitterness, anger or whatever reason," decide to use their children to punish their former partners.

"Maybe if they realize the courts will actually step in and do something and there is a risk of not only losing custody, but having no contact with their children, they'll think twice about it," Niman said in an interview.

I doubt it. My reasons are several.

First, as previously stated, K.D.’s campaign against A.L. lasted “more than a decade.” If courts truly want to put a stop to parental alienation, they need to respond to it a lot quicker than this one did. For the children’s sake, 10 years of alienation is far, far too long.

What was going on in court all that time? A.L. is a vascular surgeon. That probably means he’s got the money to litigate his ex-wife’s bad behavior. My guess is that he brought several motions over the years attempting to convince the judge that his wife was violating court orders, refusing him access and abusing the children. In all that time (literally a lifetime for the younger child) did the court respond? Or did it allow the alienation to go on and on? Was counselling tried? If so, it failed. When it did, what was the court’s next step? The judge who now calls K.D.’s behavior ‘abuse’ allowed it to continue for “over a decade.” That’s not a threat to alienating parents, it’s a message that they can continue the abuse.

Second, the decision by McWatt was apparently quite controversial among family lawyers.

McWatt's judgment was released Jan. 16 and published on legal databases this week. By yesterday, it was a hot topic within the family law bar.

In other words, transferring custody away from an alienating parent is apparently virtually unknown in Ontario family courts. As such, just how much of a “wake-up-call” is a single order by a judge likely to be? From here it looks like the furthest of outliers, a decision most lawyers will rightly ignore in advising their clients. Yes, it happened in one case, but that’s only a rare exception to the rule that alienators proceed without risk of judicial intervention.

Then there’s this little fact:

McWatt heard testimony from Barbara Fidler, a Toronto mediator and clinical psychologist who predicted eight years ago the three girls were at risk of becoming alienated from their father.

Yes, at least one mental health professional saw the writing on the wall eight years ago. And I don’t doubt that her opinion was brought to the judge’s attention by A.L.’s lawyer. Was anything done? Did the judge admonish K.D. and require her to attend counselling sessions? It’s not obvious either of those things occurred. It’s not apparent that anything happened apart from a continuation of the status quo. And that of course meant that the children suffered abuse for another eight years.

There’s an alienator here alright, but there’s also a judge who allowed it to happen. Both are at fault. Family court judges are charged with acting “in the best interests of children.” That includes recognizing parental alienation — that’s acknowledged to be child abuse - and putting a stop it. But in this case and time and again, we see judges refusing to lift a finger to address parental alienation. Child abuse is supposed to be taken seriously by those judges, but when it comes to parental alienation, cognitive dissonance reigns.

Finally, let’s remember that A.L. had the money to pursue this matter. The overwhelming majority of parents don’t. A.L. could pay his lawyer to file the necessary motions again and again and again. He could fund the costly experts who were necessary to prove his case. Few parents can do the same.

So the unmistakable message is that, to the vast majority of couples, family courts offer an open door to alienation of their children. If it takes 10 years for a court to respond, most alienated parents simply will not have the resources — financial or emotional — to do what’s necessary to wring from a judge an order that’s effective to stop it. In short, in the great majority of cases, parental alienation can proceed with complete impunity.

It doesn’t have to be that way. If judges were more attuned to the realities of parental alienation, there would be less of it because they’d deal with it promptly and effectively.

And that of course leads me to tomorrow’s post.

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