L.(J.K.) v. S.(N.C.): The Hot New Topic in Family Law Courts: Parental Alienation

The case of L.(J.K.) v. S.(N.C.) canvasses the difficult issue of parental alienation and what in the court’s view seems to be an effective means to deal with such an issue. Parental alienation, according to an accepted expert witness in the aforementioned case, essentially occurs when a parent’s behaviour, whether conscious or unconscious, serves to mitigate the relationship between the child and other parent. This alienation is often executed by one parent in an attempt to penalize the other parent for any misfortunes experienced in his/her marriage or life. With the growing body of scientific research on the topic essentially pointing to alienation as a form of child abuse and positing that the psychological long-term effects of it can be most damaging to a child’s wellbeing, it is no wonder why the courts have become increasingly sensitive to the phenomena.

In L.(J.K.) v. S.(N.C.), the applicant mother alleged that her 13-year-old son had been completely alienated from her by the actions of the respondent father, and as a result, she brought an action for an order giving her sole custody over the child. After the applicant and respondent separated in March 2005, a court ordered the said child to spend eight days with the respondent and six days with the applicant. On January 16, 2006, the applicant and respondent consented to the issue of a divorce order, which granted the applicant regular access to her child and to information pertaining to her child. However, the arrangements in both orders were not adhered to, and resultantly access became increasingly more difficult for the applicant.

According to an accepted expert witness, the respondent was successful in alienating the child from the applicant for a variety of reasons. First, the expert concluded and the court accepted that the respondent was able to utilize the close relationship he shared with his son to subtly affect the choices his son made regarding his desire (or lack thereof) to visit the applicant. According to the expert, the child undoubtedly sensed the severe hostility and anger the respondent felt towards the applicant, and resultantly felt pressured to mimic his father’s negative sentiments toward the applicant in an attempt to please him. The respondent made his ill feelings toward the applicant known to the child, when, for example, he removed a picture of the applicant from the child’s bedroom. Second, the expert posited that the alienation was successful partially because the respondent failed to keep the applicant apprised of information concerning her son, and as mentioned previously, failed to follow court orders concerning access arrangements. Lastly, the court was particularly dismayed at the respondent’s lack of attempt to encourage or foster a loving relationship between his son and the applicant.

When the court examined the various factors alluded to by the experts and all other evidence, it ultimately ruled that the applicant had in fact been alienated unjustifiably from the applicant by the words and conduct (or lack thereof) of the respondent. It is interesting to note in this case that although the respondent father did not physically abuse or threaten his son in an attempt to ward off the applicant mother, the court found it sufficient to come to its decision based on the respondent’s more ‘subtle’ attempts at alienation. `Emotional abuse`, in other words, is enough to find an individual guilty of parental alienation.

The court then goes on at length to discuss the appropriate means to salvage the applicant and child’s relationship and remedy the harm that had already been created. One of the remedial options the court canvasses and is clearly impressed with is the Family Workshop for Alienated Children in the United States as described by child psychologist Dr. Richard Warshak. One of the central goals of this extensive workshop program is essentially to facilitate, repair and strengthen the child’s relationships with both parents. Experience with this program has underscored the importance of the court enforcing its order of no contact between the child and parent who has influenced or supported the child’s rejection of the alienated parent. Thus, experience dictates that this no contact principle is an essential ingredient of the program. Warshak recommended that in the case at bar, sole custody should be given to the applicant with no access to the respondent for at least six moths. In the meantime, Warshak thought it would be most helpful for the respondent to seek counseling. Warshak’s evidence on the success of the program demonstrates it to be an extremely effective way of reestablishing the relationship between the child and alienated parent. The program, however, has been less successful in helping the favoured parent deal directly with the child in a more appropriate manner. Therefore, the ultimate success of the program may lie in the respondent’s own hands, as his willingness to participate in the normalization of the child is of utmost importance.

The court ultimately decides, after canvassing the various remedial options, that an order granting the applicant sole custody is the most appropriate remedy in such a situation. The court is granted the authority to make a custody variation order by way of s.17(1)(b) of the Divorce Act, which reads that ‘a court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively a custody order or any provision thereof on application by either or both former spouses or by any other person’. According to s.17(5) and 17(9) of the Divorce Act, before a court can make a variation order in respect of custody, it must satisfy itself of three critical factors. First, there must have been a material change in the condition, means, needs or circumstances of the child since the making of the initial parental arrangement order. Second, the court must take into consideration only the best interests of the child when making a decision whether to grant a variation order. Lastly, the court must take into account the parent’s willingness to facilitate contact between the child and other parent. The court in this case decided that all three hurdles of the test had easily been met and thus the variation order for custody was granted.

In addition to the grant of the applicant’s sole custody order, the court also instructs that the respondent be given no access to the child pending review of the matter in four months. As a result of the respondent’s uncooperative behaviour with the court and applicant up until the date of trial, the court was satisfied that the respondent could only hinder the healing process between the applicant and child if access were to be given to him. Therefore, the respondent’s reinstitution of access to the child would only be considered by the court once the respondent demonstrated his willingness to change his unacceptable behaviour. Thus, ironically, the child was temporarily alienated from the problem parent in an attempt to repair the damage created as a result of the original alienation.

Andrew Feldstein

The Feldstein Family Law Group (FFLG) is one the largest family law firms that practices Family Law exclusively in Greater Toronto, with ten lawyers and counting. The boutique law firm has won the Top Choice Award for Family Law™ in Toronto for the past twelve years (2007 to 2018 inclusive).

Managing Partner Andrew Feldstein has been practicing family law for more than 20 years and frequently comments on Family Law issues through the media. The Feldstein Family Law Group offers vast written, video, and media resources on its website to those who find that they need to end their relationship.

This Post Has 4 Comments
  1. This case is a good lesson for parents dealing with separation and their children. It demonstrates that parents need to be able to separate the best interests of their children from their own relationship with their ex-spouse. Although sometimes this may be difficult, parents must learn to control their anger and frustration with their ex-spouse and avoid speaking ill of their ex-spouse or their family in the presence or hearing of the children, discussing with the children the dispute between the parties and exposing the children to adult conflict. If not, their actions may cause severe consequences with respect to custody.

  2. More judges need the courage to stop parental alienation, as too often the alienated parent is written out of a child’s life, which is obviously not in the best interest of the child.

  3. Are there any Canadian cases on this topic and what the judgment has been? How do Canadian family judges view this topic? Are there any workshops that deal with this topic in Toronto?


  4. I understand that there was a successful Mohan hearing in Canada on this topic – can someone elaborate?


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