The parental alienation dilemma

By Gary Joseph

Law360 Canada (June 14, 2022, 11:07 AM EDT) --
Gary Joseph
Gary Joseph
The Superior Court decision in Ahluwalia v. Ahluwalia, 2022 ONSC 1303, has expanded the use of tort law in family law proceedings. I expect this ruling (presently under appeal), if left intact after appeal, will see an increase in the claims for damages in family law disputes.

I have no comment on the appropriateness of this award in this particular case but the decision (in addition to the Court of Appeal decision in the now well-known case of Leitch v. Novac, 2020 ONCA 257) caused me to once again consider the landmark decision of the Supreme Court of Canada in Frame v. Smith [1987] 2 S.C.R. 99 and its place in family law matters.

As noted in paragraph 1 of the decision in Frame v. Smith, “the issue in this case is whether the appellant has a right of action against his former spouse and her present husband for interfering with his access to his children.”

Justice Gérard Vincent La Forest, for the majority, held that there was no “possible basis for a cause of action.” The court noted that certain actions existing in the past had been abolished by the Family Law Reform Act, and also rejected that the tort of conspiracy, or an action for breach of a fiduciary obligation, should be applied to these circumstances (paras. 6, 8, 17). Ultimately, the majority found that the presence of legislation relating to custody and access, and remedies therein, were a “comprehensive scheme,” making civil action inappropriate (paras. 11-12, 14).

The facts of the case are quite well known. After the parties separated, a Manitoba court granted the wife custody of the children, with visitation for the husband. Subsequently, there were also orders from Ontario for the husband to have access to the children. The husband alleged that the wife frustrated his access to the children, including by moving them to different cities, changing their last names, and preventing them from communicating with the husband, among other steps. The husband further alleged that because of the wife’s actions, he faced financial expense and suffered “severe emotional and psychic distress.” He claimed damages from the wife and her new husband for “wrongful interference with the legal relationship he had with his children.”

Important quotes from the majority

The following quotes from the majority in Frame v. Smith make it quite clear that our highest court had no appetite for expanding the remedies available in high conflict parenting disputes:

But what really determines the matter, in my view, is that any possible judicial initiative has been overtaken by legislative action. In all the provinces (and at the federal level for that matter), legislation has been enacted to deal with the modern phenomenon of frequent family breakdowns …

It seems obvious to me that the Legislature intended to devise a comprehensive scheme for dealing with these issues. If it had contemplated additional support by civil action, it would have made provision for this …

The dissent

The dissent had a different view. The dissent held that a “cause of action for breach of fiduciary duty should be extended to this narrow but extremely important area of family law where the non‑custodial parent is completely at the mercy of the custodial parent by virtue of that parent’s position of power and authority over the children.”

The decision in Ahluwalia v. Ahluwalia

In this trial matter, the court considered several issues, including whether the father was “liable in damages for family violence?” Within that issue, the court addressed whether the mother’s tort claim could be “properly considered as part of the family law proceedings,” and whether there is a tort for family violence.

The holding

Justice Renu Mandhane recognized a “common law tort of family violence,” and found that the tort could be brought in a family law claim. Consistent with Frame v. Smith, she found that typically, “the family law statutory framework will be a complete code that allows for the fair, predictable, and efficient resolution of the parties’ financial issues post-separation.” In this case, however, the court recognized that the marriage was not typical, as the mother endured family violence from the father, and was subject to a pattern of coercion and control, circumstances that would not otherwise be compensated for through spousal support under the Divorce Act. Justice Mandhane therefore awarded the mother a total of $150,000 in damages for the tort of family violence. The court established stringent requirements for the establishment of entitlement and for damages for the newly found tort but nevertheless expanded the remedies available in circumstances involving family violence.

Justice Mandhane discussed Frame v. Smith in the context of the father’s arguments. The father had argued that the tort claim should not be considered as part of a family law claim, as it could “derail the trial process and make it more difficult for parties to co-parent into the future.” Justice Mandhane stated that this argument was “speculative on the facts before me,” given the father’s estrangement from the children.

The court did agree with the father, that generally the Divorce Act “creates a complete statutory scheme when it comes to resolving financial issues post-separation, and that Court must be careful not to arm family law litigants to overly complicate the litigation through speculative and spurious tort claims.” However, Justice Mandhane also stated that because the Divorce Act had been amended to include the relevance of family violence to parenting issues, the father’s concerns were less persuasive. Justice Mandhane went on to explain that the Act did not “create a complete statutory scheme to address all the legal issues that arise in a situation of alleged family violence,” and that in unusual cases like this one, “only an award in tort can properly compensate” for the harms of family violence.

Leitch v. Novac

The Court of Appeal in Leitch v. Novac dealt with several issues on appeal from the decision of the motions judge (Superior Court of Justice), including whether the motions judge erred by granting partial summary judgment, and whether she erred in her analysis of the tort of conspiracy.

The Court of Appeal allowed the appeal, noting summary judgment was inappropriate, and that the motions judge had erred in law by allowing the bifurcation of proceedings, without considering the risk of inconsistent results. The motions judge, “motivated by the view that the family law statutory scheme creates a complete code,” also erred by finding that the tort of conspiracy was not available in the family law context. Instead, Justice William Hourigan, writing for the Appeal Court, held that the tort of conspiracy could be applied in family law claims, noting that it is a “valuable tool in the judicial toolbox to ensure fairness in the process and achieve justice,” including as a consequence for co-conspirators who might try to facilitate nondisclosure.

Parental alienation

Parental alienation was originally defined by the psychologist Richard Warshak in a paper published in the Family Law Quarterly, as “a disturbance in which children usually in the context of sharing a parent’s negative attitudes, suffer an unreasonable aversion to a person, or persons, with whom they formerly enjoyed normal relations or with whom they would normally develop affectionate relations.” (Emphasis added.) An “alienated child” is said to be one “who freely and persistently expresses unreasonable negative feelings and beliefs (such as anger, hatred, rejection, and/or fear) towards a parent that are disproportionate to their actual experience of that parent.”

While early cases and many writers in the field dismissed the concept of parental alienation, Justice Douglas Gray in Hazelton v. Forchuk, 2017 ONSC 2282 had the following comments: “[t]here is now a considerable body of caselaw that discusses the issue of parental alienation. It is unnecessary to discuss any of the jurisprudence, because it is now well understood that parental alienation is a real phenomenon, and the courts must take decisive action where it found to exist.”

Concluding comments

Recently, we have seen tort claims resurface in family law proceedings. While lower courts continue to be respectful of the Supreme Court’s views in Frame v. Smith, there may be an increasing willingness to address conduct issues in family law by way of tort law. Perhaps it is time to reconsider whether a damages claim should exist for wilful and persistent interference with parenting time (formerly called access). If parental alienation is indeed recognized as a “real phenomenon,” perhaps it is time to consider a tort to deal with same. While many would argue that remedies already exist, many a “rejected” parent would beg to differ.

Rule 1(8) of the Family Law Rules creates serious sanctions for breach of court orders. “Custodial reversal,” the formerly recognized “atomic bomb” of parenting disputes and reintegration therapy are all available “tools in the toolbox” of family law judges. However, there are indeed cases where these remedies do not reverse the damage done by alienation. The long-term negative impact of severe alienation does not appear to have been directly addressed by statute, regulation or common law.

Perhaps it’s time to consider a tort remedy for severe cases of parental alienation.

Gary S. Joseph is the managing partner at MacDonald & Partners LLP. A certified specialist in family law, he has been reported in over 350 family law decisions at all court levels in Ontario and Alberta. He has also appeared as counsel in the Supreme Court of Canada. He is a past family law instructor for the Law Society Bar Admission Course and the winner of the 2021 OBA Award for Excellence in Family Law.

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