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| Amanda Therrien |
A concept that, from root to branch, is premised on the sexist assumption that women fabricate allegations of abuse to turn children against the other parent and gain a litigation advantage. It’s a concept that has been denounced by the United Nations’ Special Rapporteur on Violence Against Women and Girls as an unscientific tool that allows abusers to continue their abuse post-separation, but which nevertheless continues to shape parenting orders across the country. Would we not, as lawyers and advocates, have the responsibility to weed out such a concept?
As survivors of family violence know all too well, the above is not hypothetical. Accusations of parental alienation have become routine against women who disclose family violence in custody and divorce proceedings. For the past two years, the National Association of Women and the Law has heard from survivors, women’s shelters and advocates about the devastating consequences these accusations have had on women and children.
As one mother wrote on NAWL’s interactive map of testimonials:
My experience of being forced to send my daughter to her abuser while she resisted has been one of the greatest forms of torture I’ve ever experienced. It is an unbearable pain to not be free to protect your child.
The above is just one example among hundreds from across Canada and illustrates that the family law system is consistently failing to protect survivors of family violence and their children. The result is that victims feel that the price of leaving a violent home is even higher than the price of staying. Our legal system dissuades survivors from leaving a violent relationship; no lawyer can tolerate such a fact.
The recently tabled Keeping Children Safe Act (Bill C-223) provides us with an opportunity to reverse this trend by strengthening the Divorce Act. This bill responds to the calls for reform from over 300 women’s organizations from across Canada and the UN Committee on the Elimination of Discrimination Against Women (CEDAW)’s recommendation that Canada prevent the use of parental alienation syndrome, or parallel legal manoeuvres, in its legal system.
A long line of unfinished reform
In 2021, amendments to the Divorce Act introduced family violence as a key factor in determining the best interests of the child. While the 2021 amendments were a step forward, feminist advocates warned that they did not go far enough. The Senate Standing Committee on Legal and Constitutional Affairs agreed but, given the urgent need to pass the bill before the dissolution of Parliament, opted to make several “Observations” rather than further amendments.
These Observations included recommendations that Parliament review the Divorce Act within five years and monitor the application of provisions like the “friendly parent rule” to ensure that the focus remained on the best interests of the child rather than on unwarranted presumptions of equal parenting.
Bill C-223 builds directly on those recommendations and codifies the Supreme Court of Canada’s ruling in Barendregt v. Grebliunas, 2022 SCC 22, which emphasized that courts must consider family violence and its impact on the perpetrator’s ability and willingness to care for and meet the needs of the child (para. 146) and confirmed that there is no presumption of shared parenting (para. 134).
Addressing parental alienation accusations
One of the bill’s most transformative features is a prohibition on allegations that a spouse is trying to manipulate the child into becoming estranged from/resisting contact with the other spouse. Courts may still consider evidence of concrete behaviours, such as denigration or failing to bring a child to visits, but are prohibited from making the problematic inference that the child is (or is at risk of becoming) “alienated” as a result.
This distinction matters because parental alienation claims reinforce a manipulation tactic known as DARVO — Deny, Attack, and Reverse Victim and Offender — where the abuser portrays the victim as the true perpetrator of the abuse. In recent years, some courts have classified parental alienation as a form of family violence (see Y.H.P. v. J.N., 2023 ONSC 5766, para. 59), making it easier for abusers to portray the protective parent as the aggressor, resulting in abusers obtaining full or shared parenting.
Judicial education cannot solve this issue because the concept has become thoroughly entrenched in case law, including at the appellate level (see A.M. v. C.H., 2019 ONCA 764). It is therefore not a situation where judges are misapplying the law; judges are applying the law as it currently stands even though it is rooted in a concept that is fundamentally flawed.
However, the bill recognizes that some abusers may attempt to interfere with the other parent’s relationship with the children as part of their pattern of coercive control. Section 3.2 therefore allows courts to consider evidence of deliberate and repeated attempts to damage that relationship where the interfering parent has also engaged in family violence. This nuanced approach allows courts to make evidence-based findings about coercive behaviours, without concluding that the child has been brainwashed.
Centering the rights and best interests of children
As MP Lisa Hepfner outlined when introducing the bill, family law often treats children as property to be divided rather than as full rights-holders. This stands in contrast to the UN Convention on the Rights of the Child, which mandates that children’s views be given due weight in matters that affect them.
Once accusations of parental alienation are made, the rights and views of children are often disregarded (see Burns v. Kendall, 2020 ONSC 5597, para. 113), even in cases involving mature minors and proven child abuse. In Burns v. Kendall, the father accused the mother of alienating the couple’s three children (ages 16,14 and 8) and was awarded sole custody despite an admitted history of child abuse that included leaving one child hogtied in a field and killing the family cat in front of the children as a means of disciplining them (para. 24). The children’s feelings of fear were characterized as “unreasonable” (para. 112), the eldest child was ordered to attend reunification therapy (para. 12) and the 14-year-old’s claim that he would run away or commit suicide if the order was changed was disbelieved (para. 86).
By treating a child’s resistance as pathology, the family law system silences their voices and revictimizes children who are seeking safety. The consequences can be tragic, with documented examples of children who were killed by their father after being removed from a protective figure seen as “alienating.”
The Keeping Children Safe Act will therefore re-centre the best interest and views of children by:
- Prohibiting courts from restricting time with the parent the child is connected with to improve the child’s relationship with the other parent.
- Prohibiting the use of reunification therapy, which, like conversion therapy, has no therapeutic value and is predicated on gaslighting the child.
- Providing children with the right to speak directly with a judge about their views and preferences.
A needed course correction
The Keeping Children Safe Act seeks to modernize family law by realigning the Divorce Act with the Supreme Court’s direction and with Canada’s international obligations under CEDAW and the Convention on the Rights of the Child. The bill offers a pragmatic, evidence-based path forward — one that grounds judicial decision-making in observable behaviours rather than myths and stereotypes.
For survivors of family violence and their children, these reforms are not abstract. They determine whether the law protects them or enables continued abuse through the courtroom. The bill offers a path forward for survivors by pruning dangerous concepts like parental alienation so that the rest of Canada’s family law ecosystem can thrive.
Amanda Therrien is a staff lawyer at the National Association of Women and the Law (NAWL), where she works on feminist law reform initiatives to end gender-based violence and strengthen women’s economic security and prosperity. She obtained her juris doctor from Osgoode Hall Law School and previously practised in employment and housing law, advancing the rights of workers and tenants.
The opinions expressed are those of the author and do not reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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