Courts father unfairness
"Several recent court cases have focused on the serious problem of parental alienation," Justice Harvey P. Brownstone wrote Saturday in his Globe essay on what he described as "a prevalent concern in high-conflict custody litigation."
"In simple terms, 'parental alienation' refers to a parent's persistent campaign of denigrating the other parent to their child (sometimes called 'brainwashing' or 'poisoning' the child against the other parent), which causes the child to unjustifiably reject the other parent.
"Alienating conduct can take many forms: badmouthing the other parent's personality and conduct; portraying the other parent as dangerous, abusive or as having abandoned or not loving the child; withdrawing love and affection from a child who expresses positive feelings about the other parent; and denying the other parent contact with the child.
"While some mean by 'parental alienation' only the misconduct of custodial parents, we judges often see high-conflict cases where both parents badmouth each other to the children, cruelly placing them in conflicts of loyalty. Moreover, such conduct is not in the exclusive domain of mothers or fathers; both engage in it.
"In my view, the term 'parental alienation' incorrectly identifies the target parent as the victim.
"The true victims are the children, who are innocent in parental break-ups. Every child has a right to enjoy a loving relationship with both parents. Since it is the child's right that is being violated by a parent's alienating behaviour, it is the child who is being alienated from the other parent.
"However you name it, there is no doubt that children are at risk of emotional harm when they become weapons, pawns and spies for bitter, angry, vengeance-seeking parents who turn custody disputes into battles for power and control — battles that often focus entirely on the parents' needs and not at all on the children's."
"There is widespread dissatisfaction among parents with the family justice system. Among the most angry are non-custodial parents desperately seeking to enforce access to their children.
"Judges hear daily from heartbroken parents who say that the legal system vigorously enforces child support but does not care about enforcing access. I see their point, but it troubles me when people liken the enforcement of a parent-child relationship to the collection of a debt.
"Children are not pieces of property that can be 'seized' or 'garnisheed. They are vulnerable human beings.
"Decisions affecting a child's emotional well-being must be carefully made, always with a view to making a child's life better, not worse . . .
Justice Brownstone concludes: "Parents can have new partners, but no child gets a second childhood.
"Children learn about relationships and parenting from observing their own parents. No one should forget this."
Whether you agree or not, it's a provocative essay, so we at globeandmail.com are pleased that Justice Brownstone will be online Wednesday from noon to 1 p.m. ET.
Join the Conversation at that time or submit a question in advance.
Your questions and Justice Brownstone's answers will appear at the bottom of this page when the discussion begins.
When Justice Brownstone was appointed to the bench in Ontario in 1985, he came with a rich understanding of the family law area.
After graduating from Queen's University in 1980, he worked as a legal aid lawyer and later joined the Ontario Legal Aid research facility, where he focused on family law.
He later joined the Minister of the Attorney-General as director of the Family Support Plan, a branch which is responsible for administering child support and spousal custody orders.
Editor's Note: globeandmail.com editors will read and allow or reject each question/comment. Comments/questions may be edited for length or clarity. We will not publish questions/comments that include personal attacks on participants in these discussions, that make false or unsubstantiated allegations, that purport to quote people or reports where the purported quote or fact cannot be easily verified, or questions/comments that include vulgar language or libellous statements. Preference will be given to readers who submit questions/comments using their full name and home town, rather than a pseudonym.
Darren Yourk, editor, globeandmail.com: Thanks so much for joining us today Justice Brownstone. We have plenty of reader questions, so we'll get right to it.
John Dunn from Ottawa Canada writes: What can parents do when those engaging in parental alienation are the child protection authorities and/or their staff members as opposed to actual parents?
Justice Brownstone: Child protection agencies have a statutory mandate to intervene to protect children from abuse or neglect. It is not uncommon for parents against whom a children's aid society has commenced court action, to feel that the society is "taking sides" for against one parent or other relative. It is important for parents involved in such court proceedings to be represented by legal counsel, who can advocate on their behalf. In addition, the court in most jurisdictions can appoint legal counsel for the child. If alienation is truly occurring by reason of the society's actions (as opposed to one unhappy parent's subjective opinion that it is occurring), the child's lawyer will generally take appropriate steps to bring this concern to the attention of the court.
Denis Pakkala from St. Catharines Canada writes: As a Professional Engineer providing services to the Public in Ontario, I understand full well the importance of Public Accountability and Transparency in serving the public. Much of the criticism of the Family Law Courts, Judges and Lawyers is often anecdotal and a result of public debate. Public Accountability and Transparency of the Law Society is severely lacking and for Judges it is essentially non-existent. How do you propose to maintain public confidence in the Family Law Courts without any real improvements in public accountability or transparency?
Justice Brownstone: I am not clear on why you believe that the justice system is not accountable or transparent? Court proceedings (except child protection proceedings) are open to the public, and transcripts of all court proceedings are available. Judges' decisions are all appealable. The Judicial Council receives and adjudicates all complaints of judicial misconduct. What more do you want?
A Germain from Halifax Canada writes: My question has to do with unrepresented (as opposed to self-represented) litigants. Two years ago after leaving an emotionally abusive marriage I won the right to move with our infant son to a different province. Since then my ex-husband has taken every opportunity to go to court and bring legal actions against me. My financial resources are exhausted and I am faced with the prospect of representing myself in a possible trial that will finalize our divorce and come to some sort of access arrangement. I earn a decent living and am able to provide for my son without his father contributing child support (I have not asked for it because he must pay to come visit our son, which he now does on a fairly regular basis after disappearing from our lives for a number of months). However I can no longer afford the crippling costs of litigation. I would like to make access arrangements between ourselves but if I do not agree to every single thing my ex demands, he insists on running to the courts - and he appears to have unlimited funds to pay his lawyer's fees. This all takes place in the province of my ex's residence, on the opposite side of the country, which makes things that much more difficult for me. My question is two-fold: Is it possible for me to get a fair hearing at any upcoming trial if I represent myself opposite my ex's lawyer, and is there anything that is being done about the larger problem of people not being able to afford legal advice and access justice? I must say right now it seems to me that justice is only available to those who are able to pay for it.
Justice Brownstone: You are absolutely correct that the unaffordability of legal counsel is a major crisis. Every day the courts are flooded with people who sincerely want a lawyer to represent them, but genuinely cannot afford it, and they are not eligible for Legal Aid. In your situation, where you are conducting litigation in a different jurisdiction from where you live, this can be extremely challenging if not impossible without a lawyer. Can you get a fair hearing without a lawyer when the other side has a lawyer? Absolutely yes. Fairness is the hallmark of every judge's conduct and decision-making, and does not depend on whether or not a party is represented by counsel. In fact, judges are regularly told by represented litigants (and even sometimes by lawyers) that we bend over too far backwards to ensure that unrepresented litigants receive a fair hearing. But remember: the court's decisions are based on the EVIDENCE - and if you don't have a lawyer to guide you in terms of collecting and presenting the necessary evidence to support your position, the judge will not be in a position to make the best possible decision. So it is very important to AT LEAST have a consultation with a family law lawyer, even if you can't afford a lawyer to handle your entire case. You should also consider out-of-court resolutions such as mediation, and a family law lawyer will be able to tell you whether your situation is suitable for mediation. In the end, you're going to have to take a good hard look at the changes your child's father is asking for, and decide whether they're worth the battle. As I tell parents all the time, not every battle is worth waging.
M. Gayle from Canada writes: What are your views in cases where domestic violence is present and the abusive parent uses the legal process parental alienation syndrome against the responsible parent? Do you believe in cases where domestic violence is present that the 'friendly parent' rule should apply?
Justice Brownstone: don't know what you mean by the "friendly parent" rule. The only rule that applies in custody and access cases is "the best interests of the child". Domestic violence presents a difficult challenge for separated parents, because even though in most cases the violence has come to an end when the parties ceased cohabitation, there is generally a restraining order in place for some time following separation — and this makes it sometimes impossible for the parties to communicate (even about the children) without a third party intermediary. A parent who has been victimized by domestic violence may believe that the abusive parent should have nothing to do with the child, especially if the child witnessed the violence. However, as I discuss in Tug of War, it is not always the case that a parent who has been abusive will be denied access. Many people who have been abusive towards a partner have actually demonstrated good parenting skills once cohabitation ceased. Every parent who is being denied access will be inclined to accuse the custodial parent of engaging in parental alienation. Some parents who are filled with hatred for the other parent (whether there was abuse or not) are not even aware of how their conduct in front of the child can convey a clear message to the child that he/she should not have a relationship with the other parent. That's why counselling is so important. A parent who has suffered abuse at the hands of his/her ex-partner, needs to distinguish between the ex-partner as a partner and the ex-partner as a parent.
Kris Zegota from Cookstown Canada writes: Why doesn't the judicial system look at the whole picture. No money = no kids? There is no onus on the party that receives the support, to obey the court order, as she/he knows that it takes a tremendous amount of time and money to process contempt of court order. Why can't a judge make precedent, and say no money needs to be paid, if the children are alienated by a parent. That would be fair, and I know that we do not live in a common sense world.
Justice Brownstone: Take a look at my article in last Saturday's Globe and Mail. Since you're such a fan of using common sense, here's some for you: It's the CHILD'S right to be supported financially. It's the CHILD'S right to have a relationship with both parents. If one of those rights is being denied (the right to see a parent), it is NOT fair to the child to deprive him/her of another right (the right to be supported). Two wrongs don't make a right. Children are not at fault when a parent alienates them from the other parent. So we don't punish them by cutting them off financially. BUT… once a child becomes a legal adult, the situation could be different. An adult child seeking to be supported through university may find him/herself cut off if he/she refuses to be in contact with a parent who has been wrongly alienated.
Heather Reynolds from Kitchener Canada writes: Thank you for providing the stimulus for discussion in this important area. Your comment, suggesting that children learn 'relationship' from their parents, is true to the 'nth degree! To this end, it is my hope that powerful educators and people developing and implementing family law policies, like yourself, will be always mindful of the emotional needs of the child. We should also remember that childhood emotions fuel adult behaviour and unresolved and misdirected anger is a bad thing all around. Does the court system have any method for openly dealing with this issue? Parental alienation operates within the context of our (Canadian) system of law and governance and we have voted for a certain moral standard based on our values. That being said, we are a multi-cultural society and some recent immigrants are leaving countries with corrupt governing, a wretchedly poor standard of living where children and women are literally seen as property. With this is mind, we add another layer to understanding how to address this issue. Do you think the court provides enough cultural interpretation support to law makers and implementers?
Justice Brownstone: You've raised some excellent concerns, which most people working in the family justice system share. Many of our litigants are new to Canada, and come from countries with different customs and family values. The diversity of our population is one of our great strengths as a nation, and we all have much to learn from each other as we come together as a community. The law in this country must be respected by all who come here, and by and large I have found that most new Canadians I have had the pleasure of welcoming to my courtroom have been willing and eager to learn what their rights and obligations are. In determining the best interests of children, courts are mindful of the importance that language, culture, religion and family traditions play in keeping children connected to their heritage. There is room for all of that, and more, when separated parents put their personal differences and hostilities aside to give their children two loving and peaceful homes.
Colin Smith from Toronto Canada writes: You mention in your book that physical, emotional and economic stability are important factors in deciding the future care of the children. How does the Court ascertain the emotional aspects of each parent - such as maturity - since the financial and physical aspects are more easily measured? How does that influence the Court in making its decisions?
Justice Brownstone: Believe me, maturity (or the lack of it) is easy to recognize in a person. You can tell someone's maturity level pretty quickly once they open their mouth!
Dennis Gerard from Whitehorse Canada writes: For the sake of the children, can the court not enforce counselling for both parents? It seems like that would provide some protection to the children.
Justice Brownstone: I have generally found that people only benefit from counselling if they genuinely want it. You can force a person to go to counselling, but if he/she isn't open to gaining some valuable insight into him/herself, it will probably not work. It is more common In child protection cases than in custody/access cases, for parents to be ordered to participate in counselling programs.
Robert Samery from Toronto writes: Parental Alienation is now considered to be a common form of abuse predominantly used in separation/divorce cases. What kind of training is currently being provided to judges and lawyers on ways to identify and remedy the causes and consequences of that abuse?
Justice Brownstone: In most jurisdictions, family court judges receive up to 3 weeks of continuing education annually, and we frequently get presentations from mental health professionals about many issues, including the harmful effects caused to children by parental conflict. There are also many continuing education programs offered to lawyers by the Bar Association and the Law Society — and believe me, one of the most prevalent themes in those programs is how to deal with high-conflict parents.
John Magee from Burlington Canada writes: My husband is an alienated parent from his first marriage. We agree that lawyers and court battles are not what is best for the family unit. Most people don't have money for lawyers and court costs anyway. But the Alienating parent otherwise has no accountability for anything they say or do, short of causing bruises. J.Michael Bone & Michael R.Walsh wrote an article on the 4 criteria in assessing PA. One very relevant point made for our situation is the costly mistake of using a counsellor that is not properly educated, or even aware of PAS. Unwittingly, this counsellor made critical decisions that actually supported and encouraged his ex-wife's agenda and caused even more damage. CAS has made it very clear that despite their awareness of his ex-wife's intent to alienate (she has involved CAS 3 times), that they deal with physical abuse; that our only option is to see a lawyer. How hard would it be to change CAS format to start recognizing unhealthy animosity between parents as a reason for intervention. A counsellor specifically trained in PAS assesses each member of the family and makes recommendations for the child's best interest? Legally, my husband can only stand back and watch his daughters bear the emotional burden of their mothers' resentment and hostility and watch them systematically become detached and hostile towards him. Morally, to spare them from any more tug-of-war games, he has no option in even defending himself from any amount of denigration his ex-wife chooses to use to influence them. My husband has not seen his own daughters in almost 3 years despite his constant attempts to communicate. Your articles bring about necessary awareness, but WE need more relevant information that is going the help US regain access to our children. WE need a central hub where we can create one expansive voice to make changes that help our children. WE need help to do this. Is any of this happening?
Justice Brownstone: Your understanding of the role of CAS is mistaken. "Emotional harm" and "risk of emotional harm" are included in the statutory definition of "child in need of protection" in the Ontario Child and Family Services Act, and the CAS intervenes regularly in such cases. At the court where I preside in Toronto, we routinely refer cases to the CAS (on top of all of the cases referred to them by teachers, doctors, counsellors, and of course, parents). So you are definitely not correct in thinking that the CAS will only deal with cases of physical abuse. In my experience, when a parent complains to the CAS about a risk of emotional harm to children because of parental alienation, the CAS will investigate and determine whether the expressed concerns are valid. Where the CAS decides not to intervene, that is usually because they've determined that there are no protection concerns in the child's home. This of course is very upsetting to the complaining parent, but it should be reassuring to know that an objective professional (a trained social worker) employed by the government to ensure the safety of children, has made a determination that the child is not suffering harm. Your husband should consult a family law lawyer who can review all of the circumstances in his situation, and advise him as to whether court action would be appropriate.
Darren Yourk, editor, globeandmail.com: That's all the time we have for questions this afternoon. Thanks to Justice Brownstone for joining us, and thanks to all the readers who sent it questions. Any closing thoughts?
Justice Brownstone: I continue to be overjoyed and overwhelmed by the public response to Tug of War, which became a national best seller and went into second printing only six weeks after being released. I have received hundreds of letters from parents who were convinced by the book to shift their attitudes and behaviours towards each other, and adopt a non-adversarial approach to the task of devising post-separation parenting plans for their children. Many family law lawyers across the country are now routinely requiring clients to read Tug of War, to help them understand what to expect - and not expect - from the justice system. Although I remain firmly convinced that going to family court to resolve parenting disputes should be a last resort for most couples, I am also painfully aware that for many parents — for a variety of reasons — their only hope of getting any decisions made at all about their children's lives, is to go to court. It is indisputable that there is great dissatisfaction with the family justice system, which most people feel tends to aggravate and intensify hostilities rather than induce peace-making between parents. I am glad that Tug of War and the media attention it has engendered have helped to put family justice issues on the front burners of the public consciousness.