An Update on the Turnbull decision on Parental Alienation

The Law Times Parental alienation syndrome on the rise
Watch for ‘telltale signs’

By Glenn Kauth | Publication Date: Monday, 10 November 2008 In late November 2006, a mother wrote to her ex-husband to ask to spend time with the son she hadn’t seen in nearly six months.

Andrew Feldstein says the questions surrounding parental alienation syndrome aren’t simple.

Earlier that year, the father and son had moved from Toronto to another Ontario city, and despite an agreement that the mother would have regular access to the child, the only way she could see him was by going to his hockey games. The courts had also ordered the father to provide the mother with updates on the child’s health and on his progress at school and in sports, none of which happened. So, when the mother, identified as J.K.L., e-mailed her ex-husband to suggest the son spend time with her family at Christmas, she expected the father to reply. Instead, she got what Ontario Superior Court Justice James Turnbull called a “rather tragic” response: “No, I don’t want to see you and I never will want to see you ever again and who do you think you are to say that my dad makes my [decisions] . . . If I want to see your side of the family, I will call them.” The father clearly held the power at that point, and the son, identified as L.S., never ended up seeing his mother during the holidays. But earlier this year, the father’s actions came back to haunt him. Turnbull ruled in J.K.L. v. N.C.S. that through a “form of subtle emotional abuse,” he had been systematically alienating L.S. from his mother, a conclusion that led the courts to take away custody from the father. The case is a good example of what’s called parental alienation syndrome, an issue the courts are finding themselves increasingly dealing with. But the case of L.S. was particularly noteworthy for its consideration of the broader issues that the 13-year-old was facing. As the judge noted, it wasn’t necessarily enough to reverse the custody arrangements. Because the father’s actions had turned L.S. against his mother, simply returning him to her care wouldn’t resolve the issue. As a result, the judge agreed that sending L.S. to a special workshop for alienated children in Pennsylvania to repair the relationship between mother and son would be a useful step. “This particular case was a wonderful result (in) that they sent the child off to get the type of counselling that the child needed,” says Andrew Feldstein of Andrew Feldstein & Associates in Markham. “You may have success in court, but if the children are not going to get the skills they need to be reacquainted with the parent, and the parent doesn’t have the skills to deal with the particular issues that are going to arise, you may be doomed to failure.” But as Feldstein points out, the questions surrounding parental alienation syndrome aren’t simple. In L.S.’s case, for example, it was clear that he was hostile towards his mother and that the problem wasn’t just one of the father refusing access. The court decision noted, for example, that the father had been the primary caregiver for much of the 14-year marriage while the mother focused on her career. At the same time, the judge acknowledged that events in the marriage had likely traumatized the child, particularly the fact that he had to testify against his mother after police charged her with assaulting her husband (for which the courts found her not guilty). As a result, the degree to which the custodial parent is responsible for the child’s rejection of the other parent isn’t always clear. “The difficulty that we face as lawyers and judges is [that] when people make that type of allegation, is the reason that the child has a poor relationship with one parent because of parental alienation or is it for some other very good reason, i.e. that parent just wasn’t a good parent, wasn’t around or did things that bothered the children,” says Feldstein, who notes that having qualified experts such as a psychologist testify in court is key to proving parental alienation syndrome. Another challenge is the fact that the systematic alienation by one parent is often progressive. “You have cases where it starts off [after] people separate and all of a sudden . . . one parent isn’t seeing that child, and the other parent is throwing up roadblocks as excuses. That’s how it will typically start: ‘the child has programs, the child isn’t ready to see you this fresh after the separation.’ There’ll be excuse after excuse after excuse.” For Feldstein, such actions, which he calls the “telltale signs” of parental alienation syndrome, should prompt the other parent to try to stop it immediately. “That’s the best time to nip it in the bud and get proper access going,” he says. Typically, however, cases will drag through the courts for a long time, and judges will only turn to the drastic step of taking away custody as a last resort. “What you have to appreciate is you’re not going to go to court at the first instance and say this is a case of parental alienation [and] the child should be taken away from one parent and placed with the other parent. I don’t think any judge is going to take that radical step the first time you’re in court. There’s going to be a long sordid history where a judge is going to come to a clear realization that nothing but this dramatic step can work,” says Feldstein. Feldstein adds that as a lawyer, it’s his job to warn a client who is alienating a child to stop the behaviour, especially since the courts may eventually reverse the custody order. “These people who are doing it are putting their own anger and their desire to punish their spouse ahead of the best interests of the children and realizing it’s best for the kids to have a relationship with both parents,” he says. In L.S.’s case, meanwhile, the judge’s order to give custody to the mother has yet to resolve the problem. While she first reunited with her son in April, by August she and her ex-husband were back in court for a mandatory review of the order. At that point, the court heard that after learning his father was refusing to participate in counselling with him, L.S. started having angry outbursts that led to his admission to the mental health unit at the Toronto General Hospital. There were also reports that L.S. had denied to his counsellor that the father had been alienating him from his mother, something that prompted the ex-husband to request a variation of the judge’s order. The judge, however, refused. “It appears to me that [the father] simply cannot understand that the best interests of L.S. are not necessarily tied to L.S. living with him . . . despite what he and his son may think,” the judge wrote.

How to Divorce and Not Wreck the Kids ~ CBC January 8, 2009, 9:00 PM EST

CBC doc examines How to Divorce and Not Wreck the Kids

Maria Kubacki, Canwest News Service Published: Wednesday, January 07, 2009

It's like Christmas for divorce lawyers. Now that the holidays are over and done with, the professionals who make a living helping families split up are gearing up for the most acrimonious time of the year.

The New Year is divorce season -- parents who toughed it out together so the kids could have a nice Christmas are finally throwing in the towel, and those who've endured miserable marriages are making New Year's resolutions they won't suffer through another year of unhappiness.

In Britain, Jan. 8 is actually known as "Divorce Day" -- which is why CBC chose that date to air their new documentary, How to Divorce and Not Wreck the Kids.

The documentary offers a gut-wrenching glimpse into the lives of three couples in the midst of separating, complete with a torrent of tears -- especially from Sally, a part-time teacher whose husband Lionel is ending their 17-year marriage, leaving her and their three young sons to live in the family home while he pursues a promising career in textbook publishing. She's devastated and keeps breaking down on camera as they hammer out the details of dividing the family assets.

There is anguish and angry words. Carolye, a young graduate student, says rather dramatically, "I didn't think that I was going to survive if I stayed married." It's not that her husband, Roland, is a bad person, she's quick to add. And he's a good father to their two children, aged 6 and 9. But, she says, "For me, the relationship forced me to compromise so much that I felt I was going to die." (What exactly those compromises involved we're never told).

There are also plenty of power struggles. Mel, in the process of completing an MBA, became desperately unhappy after the birth of her twins and chose to leave her husband, Mike. But although she was the one who wanted to leave, she's also the one pushing to have things her way after the split, demanding permission to drop in to see the kids even when it's Mike's turn to have them.

Yet the film doesn't only document pain, bitterness and loss. It's also a manifesto of sorts, advocating a more collaborative approach to divorce -- one that puts children first despite the conflict between their parents.

In old-style adversarial divorces, couples fought each other in court, using the kids as collateral and racking up massive lawyer's fees while devastating each other and their offspring. As divorce lawyer Danny Zack explains in the documentary, "if your client congratulated you at the end of the day on annihilating their spouse, your job was well done."

But there's a grassroots divorce revolution underway in Canada, according to the filmmakers. There were only 75 lawyers practising collaborative law in 2000. But by 2008, that number soared to 2,800, with lawyers like Zack switching to what they feel is a more positive way of resolving problems.

Whether couples do it on the cheap via a do-it-yourself divorce kit (like Roland and Carolye), through a mediator (as Mel and Mike did), or in a full-blown collaborative divorce in which both parties hire their own lawyers but agree not to fight it out in court (Sally and Lionel's route) -- the idea is to minimize conflict and try to make the family work even if the marriage has fallen apart.

The stakes are high. According to Joan Kelly, an expert on kids and divorce who appears in the film, children of unhappy divorces can experience depression, anxiety, problems with authority and are more likely to drop out of school. On the other hand, kids whose parents put aside their differences and manage to work together grow up to be just as well adjusted as children of intact families.

The film's Vancouver-based director, Maureen Palmer, has had firsthand experience with this type of approach, having lived through her own amicable split about 12 years ago when it was practically unheard of. For the first six months after they separated, she and her husband rented a house kitty corner from the family home in Edmonton so they could take turns staying with their daughters, then aged 15 and 11.

When she got a job in Vancouver but her husband was unable to move, they decided he would be the main caregiver for their daughters in the family home, and she would come and sleep on his couch every other weekend. (Eventually she got a room in the basement).

"We stumbled sometimes," she says, adding that they would both occasionally get petty or give in to self-pity. But they managed to rise above for the sake of the kids. It's a matter of Òleading with your better self," says Palmer, explaining she tried to do things in a way she would feel good about when she was 60 and looking back at the impact their decisions had on their daughters.

Apparently it worked, because as adults her daughters told her and her husband they should write a book called How to Divorce and Not Wreck the Kids -- hence the film's title.

But she is not without regrets. She wishes she had been able to spend more time with her girls when they were growing up: "I can't get those years back."

There is no simple happy ending for the couples featured in the documentary, either. As in Palmer's case, it's a question of making the best of a bad situation.

Each couple comes to an understanding, but there's still plenty of pain.

Roland and Carolye -- a model of an amicable split -- can't quite put their nine-year-old son's anxieties to rest. Despite their friendly relations and Roland's assurances that he still loves Carolye as a friend, Max worries that his parents may stop being friends one day.

And even though Sally and Lionel come to an agreement in a way that works for their sons, Sally's eyes are still filled with tears when she says, "I'm proud of Lionel and me."

Another Family Law Atrocity ~ Man who didn't father twins must pay child support ~ Anciolina Cornelio the cheating wife wins

This decision, as reported in the Canadian Globe & Mail newspaper has received over 450 comments at this writing. Most are outraged but not surprised at the tone by the enormously incompetent feminist judge, who in my boyhood neighbourhood we would say has no balls, and who has continued the imbalance in the arc of the pendulum for family law in Ontario, Canada in bleeding men dry even when the ex is found to be a lying, cheating, alienating, paternity fraudster. My comments on the Globe site are as follows.

Another blatant and biased decision against a dad. Many are imputing his challenge to not pay money as somehow abandoning his children. He pays money to his ex - not his children. The ex is the fraudster. Any human on the planet - male or female - would feel "used".

This man no doubt developed a bond with the twins and he no doubt loves them. He is fighting to continue to see them - she is fighting to reduce his time and increase his financial burden. Don't you see this?

For those of you who love to interpret the law - do so - but don't impute into it his motives of not loving his children. Trust me - he thinks of them as his children - but who would want to pay money to a lying, cheating, fraudster wife who does not pay tax on it and spends it without any accountability.

The family law area is clearly a big gluteus maximus beyond contempt. This judge is a reprehensible representative of a system of law that is in great disrepute. What happens when citizens disrespect the law and its administrators? Look at the UK as the canary in the coal mine of family law jurisprudence. Look at Australia as a progressive country trying to find some balance by introducing shared parenting as a presumption and pay back for paternity fraud but the radfems are fighting tooth and nail to maintain their entitlements.

Australia is now allowing dads to sue for wrongful payments made to fraudster wives. Its time for Canada is now.

Mike Murphy FRA Canada

Man who didn't father twins must pay child support

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KIRK MAKIN

From Thursday's Globe and Mail

January 7, 2009 at 7:14 PM EST

A Toronto man is on the hook to pay child support, notwithstanding a DNA test that proved he is not the biological father of his ex-wife's twins, an Ontario Superior Court judge has ruled.

Madam Justice Katherine van Rensburg ordered Pasqualino Cornelio to continue paying child support to the 16-year-old twins – regardless of whether he was bamboozled by a philandering wife.

"While the failure of Anciolina Cornelio to disclose to her husband the fact that she had an extramarital affair – and that the twins might not be his biological children – may have been a moral wrong against Mr. Cornelio, it is a wrong that does not afford him a legal remedy to recover child support he has already paid, and that does not permit him to stop paying child support," Judge van Rensburg said.

Mr. Cornelio began making support payments soon after he separated from his wife in 1998. He had the DNA test after his former spouse recently sought an increase in the payments and a reduction in his time with the twins. Upon learning that he was not the biological father, Mr. Cornelio claimed to be a victim of misrepresentation or fraud.

He asked to be excused from paying child support and demanded reimbursement of tens of thousands of dollars he has paid over the years.

Ms. Cornelio was unable to shed light on the mystery of the twins' parentage. "Ms. Cornelio denies knowledge of who the twins' biological father might be," Judge van Rensburg said. "In fact, she claims to have no memory of an extramarital affair preceding their birth, which she attributes to the medication she was taking at the time."

The judge noted that Mr. Cornelio wondered at the time of his separation whether a man named Tony with whom his wife had had an affair might be the father of the children.

"It was not until access was interrupted and Ms. Cornelio commenced proceedings seeking increased child support that the respondent began pursuing this issue," the judge remarked.

In any event, she said that it would be wrong for the children to suffer for events over which they had no control.

"Mr. Cornelio was the only father the twins knew during the course of the marriage," Judge van Rensburg said. "The relationship that developed from the time of their birth was the natural relationship between a parent and his children.

"The fact of that relationship – even if it has now become strained – is sufficient to require Mr. Cornelio to continue to contribute toward the children's material needs."

Child support, Judge van Rensburg said, is the right of a child even if a parent behaves poorly, "whether it be delay in pursuing support, an attempt to contract out of support, or the failure to disclose an extramarital affair that may have led to the conception of the child."

Judge van Rensburg noted that two separate lines of jurisprudence have developed in comparable cases. One focuses on being fair to an individual who discovers that he is not a biological parent. The other concentrates on the best interests of the child.

She pointed to an expansive definition of "parent" under the Family Law Act under which Mr. Cornelio can be seen as "a person who has demonstrated a settled intention to treat a child as a child of his or her family."

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