Alienation has become the “A” word in family law. Nobody likes alienation of a parent, least of all the Court. But as the concept of alienation becomes more and more familiar in family law, it is important to understand what alienation is – and isn’t.
The oft-quoted definition by Barbara Jo Fidler, a clinical psychologist specializing in parental alienation, and Professor Nicholas Bala is that parental alienation is “a child’s strong resistance or rejection of a parent that is disproportionate to that parent’s behaviour and out of sync with the previous parent-child relationship”.[1]
The key phrase, and the one that seems, in my experience, the most prone to be misunderstood is that the alienation behaviour is “out of sync with the previous parent-child relationship”. Children sometimes have a stronger relationship with one parent than the other and is it no surprise that a child would prefer to spend time with their preferred parent. When parents are together, this may simply be an unremarkable feature of day-to-day life. However, when parents are separated, the time that each of them spends with the child is often a source of conflict. Children, regrettably, often feel that they need to make a choice. It should come as little surprise that they choose to spend time with the parent whose company they prefer. But when their preference becomes the outright rejection of the non-preferred parent, the big question is: what is the reason that the child is rejecting their parent?
The possibilities have been described in various ways.
Rational vs Irrational Alienation
Dr. Warshak, a professor in clinical psychology, described two categories of parental alienation: rational and irrational. “In the case of rational alienation, it is the behavior of the alienated parent toward the children that is the cause of the alienation. However, in the case of irrational alienation, there is nothing in their history between the children and the alienated parent that explains the harsh behavior towards and rejection of that parent”.[2]
Justified Estrangement
The courts have also described the continuum of rejection in terms of either “parental alienation” or “justified estrangement”.[3] Justified estrangement occurs when the child's rejection of a parent results from the rejected parent’s own conduct. For example, the child may be experiencing the trauma of having witnessed or experienced abuse or neglect.
In cases of justified estrangement, as in cases of rational alienation, the child is being pushed away by the rejected parent’s own conduct, not pulled away by the preferred parent.
These are difficult distinctions for the court to make. If the child is, in fact, being alienated, then the alienating parent is effectively abusing the child. If however, the child’s rejection is justified, it may well be because the rejected parent is abusive. Naturally, the rejected parent often claims that the child is being alienated while the preferred parent typically argues that the estrangement is justified. These beliefs may be genuinely held, even if they are incorrect.
Unfortunately, these difficulties cannot always be resolved by hearing directly from the child. The courts typically weigh a child’s views and preferences by assessing their strength, consistency and independence. Unfortunately, the independence of the child’s viewpoint is often what is directly at issue in cases of parental alienation.
As a result of these evidentiary difficulties, the courts need to craft solutions that can assist alienated children whether the alienation is rational or irrational. In practice, this often means ordering therapy. While it clearly does not make sense to force a child to have a relationship that the child does not want to have with an abusive parent, reunification therapists can assist children in separating their own lived experiences from the parental alienation vs justified estrangement or irrational vs rational alienation continuums.
As family lawyers, we need to help our clients whose children may be experiencing alienation to navigate this difficult terrain without resorting to entrenched positions. For majority of cases, the goal should be to assist children to have the best relationship that they can with both parents. For cases where the child is experiencing rational alienation, every effort should be made to provide the child with an opportunity for their voice to be heard. In all cases, we need to remember that the child is almost certainly the victim, whether of the trauma of being alienated or of past or present abuse.
[1] Alfredo Ciarlariello v Annina luele-Ciarlariello, 2014 ONSC 5097 (CanLII).
[2] SGB v SJL, 2009 CanLII 4523 (ON SC).
[3] NS v CN, 2013 OJ No 566 (ON SC).
