More than 250 organizations want the federal government to change the Divorce Act to make claims about parental alienation inadmissible in family court.
An open letter written by the National Association of Women and the Law (NAWL) was sent to Justice Minister Arif Virani, the prime minister and leaders of the Conservatives, NDP and Bloc Quebecois on Tuesday.
The letter’s signatories, most of which are women’s shelters and feminist groups, call the use of parental alienation claims against victims of domestic violence “a crisis of dramatic proportions in our family justice system.”
Parental alienation is a controversial topic among family lawyers and legal experts. Parental alienation claims are generally used when one parent says the other parent is keeping the children from them. However, there is no legal definition of the term, even though it is used in legal decisions and scholarly research.
Many women are told by their lawyers that if they raise concerns about domestic violence they will be accused of being alienating parents who are keeping children from seeing their fathers, NAWL’s letter says.
The letter urges the government to change the Divorce Act to “prohibit the use of parental alienation or related pseudo-concepts in family law cases.”
“Pressure is really mounting to address this issue,” said Suzanne Zaccour, director of legal affairs at NAWL, an advocacy organization. A petition containing the same request, which closed in November, garnered 1,140 signatures. According to the online database of petitions to the federal government, that petition has not been presented in the House of Commons.
‘Extremely controversial’
Lawyers and legal experts interviewed for this story say most separated or divorced couples are able to agree on a parenting plan outside of court. Claims of parental alienation are most often used in cases where there is a lot of conflict between the parents. These are the cases that end up in court.
Parental alienation is an “extremely controversial” topic, said Linda Neilson, a professor emerita and researcher at the University of New Brunswick’s Muriel McQueen Fergusson Centre, which signed the open letter.
There have been “disturbing cases” where parental alienation allegations were used to “silence” parents, often mothers, who wanted to protect children from abuse and violence, she says.
The Divorce Act says that judges must consider the impact of family violence on children when making parenting plans after a divorce. According to the law, family violence includes physical, sexual, psychological and financial abuse. It also includes coercive and controlling behaviours, such as limiting a spouse’s contact with family or friends.
But this does not do enough to help parents who want to protect their children from abuse, says Zaccour.
“Saying that domestic violence must be taken into account is useless if the mother is not raising domestic violence because she’s scared of being called alienating,” she said.
The law says judges shall consider “the best interests of the child” when making orders about parental arrangements. Judges also need to consider “each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse.”
This section can be “used in a similar way as a parental alienation claim,” said Neilson.
In a statement to Canadian Affairs, a spokesperson for Minister Virani said the government prioritizes “ensuring the safety and well-being of women and children who have experienced family violence and preventing their re-victimization and secondary traumatization.”
“The best interests of the children are the paramount consideration for all decisions that concern children,” the statement says.
‘People are complex’
Labels such as parental alienation are not very helpful when trying to understand complex family relationships, says Shelley Hounsell-Gray, K.C., a family lawyer in Nova Scotia with 25 years’ experience.
There are many reasons why parenting plans may not work well, or why children may not want contact with a parent, she says. As a lawyer, her job is to consider what a child’s relationship with a parent was like before the separation, and the reasons why a child does not want contact with a parent.
“People are complex,” she said. “Their relationships with children are equally complex.”
“How children relate with their parents is based on their history with their parents,” she said, adding she would like to see the legal profession focus more on that history.
Banning discussion of parental alienation in court altogether may not be helpful, says Nicholas Bala, a law professor at Queen’s University in Kingston, Ont. who studies parental alienation in family law cases.
Bala defines parental alienation as a parent influencing a child to “reject or resist” contact with the other parent after a separation in a way that is based on the parent’s concerns and not the child’s experience, he said.
In 2023, he found that parental alienation appeared in 48 cases that went to trial in Ontario. Most of the time, fathers were claiming mothers were alienating them from their children. Parental alienation was found in 11 of the 48 cases, Bala said. In three of those cases, the judge ordered custody be reversed, he said.
Most family law judges are very experienced, Bala says. Sometimes, judges do make bad decisions. But the solution to that is not to say the issue of parental alienation should never be considered. Instead, there needs to be proper inquiries into the family dynamics, with properly trained professionals involved, he says.
The family justice system needs improvement, Bala says. “But I would not go so far to say that we should prevent judges from hearing about parental alienation,” he said.
The National Association of Women and the Law is not saying that mothers should automatically have custody, says Zaccour. But claims of parental alienation should be ruled inadmissible in court, she says.
Stopping the use of claims of parental alienation will not stop judges from looking at all the relevant factors in determining what is in a child’s best interest, said Neilson, the professor emerita at the University of New Brunswick.
Family law needs to focus on the children’s best interests, she says. Claims of parental alienation can shift the focus to the parents, and make family law about punishment. But punishment is not the goal of family law, she says.
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