Parental Alienation: Putting a Child in the Middle

One of the most challenging issues in family law today is parental alienation. What is parental alienation? How does a parent avoid this? And how does a parent fight it if he or she is the victim?

Parental alienation is a term used when a child develops either justified or unjustified hatred or dislike for one of the parents. Most often, it is a result of either negative comments or actions by one parent toward the other or by the actions of the very parent who is claiming the other parent is alienating the child.

Parental alienation can be very confusing for a child. It can result in the child refusing to exercise access to the afflicted parent. This is not only detrimental to the relationship between the child and the afflicted parent, but can also be quite harmful to the relationship between the child and the alienating parent. There is an immense risk of "backlash" with parental alienation, which can result in anger and behavioral outbursts by the child.

Parental alienation removes a child's right to have a relationship with and feel loved by both parents. It also puts the child in the position where he or she must choose between the two parents. This is usually very confusing and upsetting to a child, who is already dealing with the reality of separation and divorce. Children in this situation need more than anything to be reassured that both parents still love them instead of being treated like prizes to be won in a custody war.

In order to avoid parental alienation, a parent must put the child's best interests first and foremost on the priority list, ahead of hurt feelings, disagreements with exes and anger over the separation and divorce.  Examples of things done to effect parental alienation can range from expressing negative or disparaging comments about the other parent in front of the child, speaking ill of the other parent in general, allowing others to disparage the other parent in front of the child, encouraging negative views about the other parent by the child, preventing meaningful access, not informing the other parent of the child's circumstances, bribing a child with gifts, trips, etc. during the access periods they would otherwise exercise with the other parent.

Custody and access are a child's right, not a parent's.  While this is a common misconception, mature parents generally accept that children have a right to have a relationship with both parents, which, if encouraged appropriately, can foster the child's relationship with BOTH parents.

Alienation only serves a selfish purpose, no matter how it is couched in the "alienator"'s mind.  A parent who seeks to alienate their child from the other parent, save the uncommon situation where safety is concerned, may appear to the outside world as though they are shielding their child from some form of harm, disruption, inconsistency, "unsavory" new partners, or any other reason which may be used to prevent the affection of the child to develop with the other parent.  But, too often, the nature of the alienation, however it is expressed, is to control the child and/or the other parent or prevent a loss of control over the child and/or the other parent.  And, in many occasions, it backfires, thereby creating a situation where the very parent who is trying to alienate the other parent actually ends up alienating the child from him or herself.

If you are the victim of parental alienation, and cannot discuss this issue with the other parent reasonably, it may be necessary to seek counsel. In certain cases, courts may order reports by mental health professionals to determine whether parental alienation has been taking place and, if so, where it originates from.  These professionals can include, if court ordered to do so, a psychological component to their reports meant to help uncover the origins of the alienation taking place.  A parent who consistently seeks to alienate the child from the other parent runs the risk of losing custody of the child as a Court's duty is to determine the child's best interests.

If you believe you are the victim of parental alienation, you should seek legal advice.

Thank you for reading

*This article is not to be construed as legal advice. If you require legal advice on this or any topic, please contact us at (506)849-0900 or another family law lawyer near you.

Written for Thibault Jones Law by Victoria Gregan and and J. Nathalie Thibault Jones

Mobility Rights: Children Moving To Another Jurisdiction

Below is a nice article researched and written by Lyla Coyle. Lyla is currently studying as a legal assistant and is working with Thibault Jones Law on a work term. We asked her to research a case we did and write about mobility rights. It is a very well written article and can be very helpful.

If you or someone you know has, or is, affected by the issue of a child moving away from a parent, please do not hesitate to contact us and discuss your particular situation. 

 Mobility Rights

 An important issue regarding Family Law is the concept of mobility rights. In most situations, both parents are allowed the right to shared custody and access of their children. The location of the child should be one which is accessible to both parents. However, on some occasions, one parent changes locations, and makes it difficult and/or impossible for the other parent to have child visitation. A fair agreement between parents is joint and shared custody, where there is ample opportunity for both parents to take part in child care and rearing. When couples separate or divorce, oftentimes there is a lack of cooperation for this to take place. The negative feelings accompanying a divorce or separation further complicate and challenge joint and shared custody.

There have been numerous cases which document this situation; a precedent was made in Gordon v. Goertz, [1996]. The Court of Appeal Judge Saunders established a set of criteria which should be used to determine the permanent residence of the child. They are as follows:  

1.      The parent seeking modification of custody or access must first demonstrate that it is a material change in the situation of the child.

2.      If this threshold is met, the judge hearing the application must again determine the interest of the child, taking into account all relevant circumstances relating to the child’s need, and the ability of each parent to fulfill these needs.

3.       This analysis is based on the conclusions drawn by the judge who made the previous order and evidence of the new situation.

4.      The analysis is not based on a legal presumption in favor of the custodial parent, although it should be given great respect for the opinion of the latter.

5.      Each case turns on its own circumstances. The only issue is the interest of the child in the circumstances of the case.

6.      Emphasis is placed on the interests of the child, and not the interests and rights of parents.

7.      Specifically, the judge should consider including the following:

a)      The custody agreement already reached, and the relationship between the child and the custodial parent;

b)      The existing agreement on the right of access, and the relationship between the child and the parent who exercises this right;

c)      The desirability of maximizing contact between the child and both parents;

d)      The views of the child;

e)      Why the custodial parent moves out, only in the exceptional case where it has to do with the parent’s ability to provide for the child;

f)       The disruption to the child a change of custody would bring; and

g)      The disruption to a child’s removal from family, schools, and the community to which he has become accustomed.

This was the basis for future decisions in this matter. She stressed the importance of the existing agreement and /or judgment of custody and access, as well as the child’s preference and opinions. Additionally, the ideal situation is one in which both parents have access to the child.

These detailed criteria have become a precedent for cases relating to custody and access rights, with respect to the mobility rights of the parents. As noted above, a significant change in lifestyle must be established. If the change in the parent’s lifestyle does not affect the child, then it would not be considered a significant change in the child’s life. For example, a minor change in the parent’s lifestyle, such as a different car, or furniture, would not constitute a significant change in the child’s lifestyle.

The Family Services Act of Canada ensures that the best interests of the child are the criteria for which custody and access should be based upon. The child’s welfare must be the most important concern in determining custody and access. The child’s opinion should also be taken into account; which parent would he/she like to live with? What region in which does the child prefer to live? The best interests of the child also include the present and future opportunities for which the location will bring, such as stability of home environment, education, and extra-curricular activities. 

Furthermore, it is to be emphasized that each case is individual, and unique to any other. While sometimes it is beneficial to remain in the same environment, there are cases in which a move is beneficial, to provide income and/or security. A better job or more secure surroundings may require a change of location; in these cases, a move may be favorable to the child’s well being and happiness.   Each situation must be judged and assessed individually, with the greatest concern as the child’s welfare. Safety, love, and prosperity need to be of paramount importance in this decision. The child must be in a happy, healthy, and safe home environment, with stability, and opportunities for success and fulfillment. 

Lyla Coyle is a graduate from the University of New Brunswick, with a Bachelor of Arts in Psychology. Presently, she is completing a diploma in Legal Administration from Eastern College.

For more information on the Mobility Rights of a child, please contact our office at (506)849-0900 r visit our website at www.thibaultjones.com.

Thibault Jones Collaborative Law

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Tax Tweet - Are you Divorced or Separated?

Tax Tweets:  Tidbits of Canadian Tax Info

Recently I met a gentleman who has been divorced for some time. He is a seemingly kind and considerate person who has prepared his own tax returns for several years. Being divorced with three children, he shared custody with his ex-spouse.   Early in our conversation, I became aware that he did not utilize deductions and/or tax credits available to his situation. For several years, he has not benefited from the tax laws available to his situation.

Sometimes as a tax accountant, I take for granted the level of knowledge that the average Canadian has for our complex tax system. At times I can get wrapped up in the complexities of tax planning and laws that I assume the basics are known by all. It is a shortfall on my part, for sure. So I decided to start a series of Tax Tweets that cover some basic tax information, partly to educate or remind us of some important aspects of our tax system, and partly to ensure I do not overlook the obvious. So I welcome you to read, participate and invite others. I look forward to learning more about you.

The very first Tax Tweet is on the topic of separated of divorced individuals who may not be aware of some benefits to them in our tax laws. Why this topic? Well, I am not sure exactly. Perhaps it is because it relates to the gentleman I recently met or maybe it is because my wife is a Collaborative Law Lawyer and she has many clients that may use this knowledge. Regardless, I have to start somewhere, so why not here…

Tax Tweet #1: Amount for Eligible Dependent

For some situations, separated or divorced parents who have not lived common law over the previous tax year may be eligible to claim the amount for an eligible dependent. This claim can be huge. In 2011, the non-refundable tax credit was $10, 527 which would result in a reduction of federal tax payable of $1579 as well as an additional provincial tax credit, depending on your province or territory. In New Brunswick the provincial tax credit is about $958 for a combined tax reduction of $2537.

There are certain criteria to qualify for this claim such as the custody and living arrangements, any child support involved, is the child claimed by another parent, ect. So please consult a tax professional to find out if you are eligible for this credit. More details can be found on CRA website entitled “Can You Claim the Amount for An Eligible Dependent?” and What are the situations in which you cannot claim the amount for an eligible dependant?

Tax Tweet #2: Children born after 1994 (for Tax Year 2011)

Parents of children born after 1994 receive a federal tax credit of $2131 in the tax year 2011. This results in a federal tax reduction of $320. Although your children may not live with you full time, you may still be eligible to receive this federal tax credit, assuming no one else is claiming it for the child.

Tax Tweet # 3: Ensure only one Person is Claiming the Child

One main criteria of Tax Tweet #1 and #2 is that only one parent can claim the tax credit for the child. If you are separated and have only one child together, this could be difficult as both parents may want to claim the tax credit. In this case, CRA will revert to the court ordered divorce or separation agreement to see if it is stipulated in the agreement. If a determination is not provided for in the agreement, and the parties cannot agree on who claims the child, then CRA has ruled that neither party can use the deduction. It would be a shame if this was to happen so please ensure you and your ex-spouse discuss this and come to an agreement.

These tax tweets are meant to promote alerts that may potentially affect the reader’s situation. It is not meant as tax advice and should not be taken as such.

Gerard is an experienced accountant located in Rothesay, just outside Saint John, NB. He established CG Jones CGA in 2011 to offer expert services in Tax, Finance, Project Management and Consulting. His intention is to provide these expert services, usually affordable only to large corporations, to small and medium businesses as well as Professionals and business owners at rates more in line to what this group can manage. Gerard is just a call or email away if you would like to discuss ways your firm can look at tax savings, finance options, or project management needs. He can be reached at (506) 849-0913 or by email.