Judge reverses parental alienation ruling

Controversial trend continues because opposing parents lack funds: lawyer

The Law Times, Canada, by Heather Capannelli, November 09, 2009

In another case underscoring the controversy over parental alienation workshops, Justice Thea Herman of the Ontario Superior Court struck down part of an arbitrator's award earlier this year that would have removed two teenage boys from the custody of their father and sent them to Texas. The decision follows a series of judgments in which Ontario courts have ordered a change in custody and sent the custodial parent along with the children to participate in the workshop.

In S.G.B. v. S.J.L., the court set aside part of an award concluding that the workshop was in the best interest of the boys because the arbitrator relied too heavily on an assessment of them prepared by Richard Warshak, who admitted he hadn't met them personally.

In his testimony and written evidence, the psychologist and author explicitly declined to make recommendations with respect to the children because he had never observed them before.

Yet the arbitrator ordered that the remedy was "necessary for the children in this case and completely consonant with their best interests." Herman, however, decided that in making such a finding, the arbitrator's order amounted to a "fundamental error."

Another issue arose prior to the hearing when the father asked the arbitrator to order an assessment to determine the appropriateness of the workshop for the children.

The arbitrator declined to do so, instead relying on his own experience as a custody and access assessor. But Herman rebuked that decision, saying "the arbitrator's experience can only be brought to bear on the evidence. The arbitrator cannot create evidence."

In addition, Herman said the arbitrator failed to consider the psychological impact the workshop would have on the younger boy. He suffered from Klinefelter syndrome, a genetic disorder that, among other things, caused a language delay.

The facts of the case were as follows. The applicant, the father, and the respondent mother entered into the arbitration to help resolve issues surrounding their two sons L.B. and J.B., aged 17 and 14 respectively. The parents had been divorced since May 1999 and since then, the mother experienced an estranged relationship with both of her children.

After several attempts to resolve disputes about custody, access, and raising the children, both parents agreed to what turned out to be an unsuccessful arbitration in August 2007.

The proceedings were due to continue on Nov. 20, 2007, but the father brought a pre-hearing motion to prevent the arbitrator from making an order that might result in the children leaving the province given that the mother had been in consultation with Warshak for several years despite the fact that he had never met the boys. The motion was denied.

The arbitration took place in February and March 2008 and, based on Warshak's report that the children were suffering irrational alienation towards their mother, the arbitrator awarded sole custody of both children to her and ordered that they participate in the workshop to help to restore their ties with her.

Logistically, this meant no contact with their father for the three months that the boys were in the program. Once the workshop concluded, communications could resume as long as those in charge authorized them.

The order also allowed the mother to use transporting agents to take her children to the workshop in Texas if they were unwilling to go on their own volition.

"The work of Dr. Warshak has been submitted for peer review so it's not as controversial as the media hype may lead some to believe," says Jaret Moldaver, counsel for the mother. "Dr. Warshak has successfully worked with children who have been alienated, and in cases where conventional approaches don't work, it's the only viable option to save the child from abuse."

A larger issue, however, is that often these cases come down to a battle of costly expert evidence, says the father's counsel, Jan Weir.

"My concern is that in most of these cases, it appears that one parent has the financial means to retain high-end counsel and experts like Dr. Warshak, but the other parent seems to have modest means and never retains an expert, meaning that they can't lead evidence against the findings or methodology of Dr. Warshak."

A week at the workshop costs about US$40,000.

According to Warshak, parental alienation syndrome is "a child's unjustified campaign of denigration against, or rejection of, one parent, due to the influence of the other parent combined with the child's own contributions."

It is recognized as a form of emotional abuse that happens when parents get so caught up in their own problems that they lose sight of their children's needs.

In an interview in 2008 with Maclean's magazine, Warshak said the workshop "teaches children how to stay out of the middle of adult conflicts and how to maintain a compassionate view toward each parent" and that it helps the child "recapture a major part of his identity.

When the child no longer feels the need to pledge allegiance to one parent by rejecting the other, that's enormously liberating."

But Weir says the test in law for admissibility of expert evidence is whether it's generally accepted by the profession. That's because courts don't interpret the evidence of experts on their own. "Is this a method that's generally accepted by the profession at large?" says Weir.

"This kind of evidence is getting in because the parents who are on the receiving end just don't have the funds to retain an expert to say that it's not, that it's untested."