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Parental Alienation and the Best Interests of the Child

Divorce may be one of the greatest challenges in the modern human experience.  It is a hugely costly process, not only in money, but also in emotional toil.  It is emotionally disturbing not only for the adults involved, but also for the children.  It is entirely understandable that tempers may flare, and things may be said to or about the other which cannot be unsaid.  However, it is highly damaging to a child to hear one parent constantly deride the other.  Children are naturally inclined to love and listen to both parents, so hearing one parent speak ill of the other may cause intense feelings of dissonance, conflict, and grief.  Children also understand that they come from both parents, so having an entirely negative view of one parent also may affect how the child sees himself or herself.  This is known as “parental alienation syndrome” and it is considered a form of child abuse which has been linked to numerous deleterious outcomes for the mental health of children, up to and including child suicide in extreme cases.

Best Interests of the Child

Courts in custody cases focus on the question of “the best interests of the child”.  As judges are human beings who are not clairvoyant, this is an immensely challenging exercise involving the weight and credibility that must be assigned to a large number of competing and interconnected factors.  However, there is a trend in recent jurisprudence to treat the matter of parental alienation with increasing seriousness.  In Johnson v. Ross-Johnson, 2009 NSCA 129, the mother was found to be continually thwarting the father’s legitimate access based on unsubstantiated and illegitimate concerns, and demeaning him in the presence of their son.  The trial judge (who was ultimately affirmed by the appellate court) made a finding that the mother’s conscious effort to alienate the child from his father was a form of emotional abuse.  The court also found that the father did not retaliate in kind, which was very significant to the ultimate outcome.  The original order between the parents envisioned a cooperative approach to parenting, which was made unfeasible by the mother’s conduct.  Ultimately, the parenting arrangement had to be changed, and as a direct result of the mother’s attempts to alienate the son from his father, the court awarded the father sole custody.

Influenced Child Preference

While the views of older children are generally taken into account, the judges will assign their view little to no weight in circumstances where there is reason to believe that one parent is poisoning the child against the other.  In Zarconi v. Madhavi, 2010 ONSC 3294, the son expressed strong wishes to be in the father’s custody.  He spoke of his mother in highly negative terms and his father in only positive terms.  However, this was found by the court to be a result of a determined effort by the father to lure him away from his mother, rather than being founded in the child’s own views.  The court found that the father would influence the son in negative ways.  He would frequently discuss highly inappropriate topics such as the mother’s sex life, court proceedings, and financial affairs either with or in front of the son.  He would also berate and belittle the mother in front of the son.  This was determined by the court to be a form of emotional abuse.  It was also found that the son’s preference was a product of the father (who was quite wealthy) excessively spoiling him with lavish and expensive material gifts, creating an unfair advantage.  As a result of all of the above, it was the mother who was granted primary custody, notwithstanding the son’s clear objections to this arrangement.

Bottom Line

It is easy to see custody battles as a win/lose endeavor between you and your former spouse.  However, it is important to remember that children are not possessions.  They are human beings with dreams and feelings which are entirely their own.  It may be tempting for a parent with majority custody to drive a wedge between the child and the other parent, but this is not in the best interest of the child, and may carry a heavy cost for the offending parent in the ultimate custody battle as well.  Not unlike King Solomon, courts will often reward the parent most willing to set their own interests aside in favour of the child in the end.



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