Parents Asked to Keep Mum About Historical Abuse in Family Law Proceedings

Just recently, we wrote a post about the family law concept of ‘parental alienation’. This is when one parent deliberately attempts to manipulate their child or children in order to engender negative feelings towards their other parent.

While parents going through a divorce (or even years afterward) may occasionally express frustration with their former spouse, alienation is a deliberate and ongoing process. It occurs when a parent repeatedly denigrates the other parent to their child, guilts them for visiting the other parent, interferes with the other parent’s access to their child, and paints the other parent as dangerous. Unfortunately, this behaviour occurs sometimes in family law disputes to try to ‘win’ a custody battle. However, courts are increasingly aware of the practice and will not hesitate to vary access and support decisions to combat these attempts.

In a recent CBC article, however, there are indications that parental alienation is being used by some parents against spouses who accuse them of abuse. Even more alarming, some judges and lawyers may be complicit in allowing this to happen. As a result, some parents who have suffered historical, documented abuse by their former partner now feel silenced on the issue, for fear of being painted as a bitter parent using claims of abuse as a tactic.

As stated by Kim Hawkins, executive director of Vancouver’s Rise Women’s Legal Centre: 

What we’re seeing in practice is that parental alienation claims are being brought by parents who’ve been accused of family violence…Once that kicks in, any kind of protective behaviours that [the victim] engages in, any further disclosures of violence, even including any further disclosures of violence by the children, can then be used to support claims of alienation.

Evidence of Abuse Met With an Eye Roll

One mother, known only as Amanda, spoke with the CBC and detailed her experience in a British Columbia family court, trying to prevent her former partner from getting unsupervised access to their child.

At the hearing, Amanda presented evidence of the abuse including a log of two years worth of calls to the local police department’s domestic violence unit, photos of injuries to herself and her son, and a diary detailing the abuse. She further provided a letter from B.C.’s Crime Victim Assistance Program which said her file was deemed to be the highest risk, as it had “a substantial likelihood of grievous bodily harm or death”.

Before completing her first sentence to the judge about her abuse, Amanda said the judge scoffed and rolled his eyes, telling her she was at risk of losing access to her son if she continued to alienate her former partner. She said the emotional toll of the process was overwhelming, due to the fear she might lose access to her son completely to her former abuser:

It stripped me of any kind of strength that I had or courage that I had and put me back into that weak position that I was in when I was in the heart of a very abusive relationship…Instead of being put in a place of strength and feeling supported, I was getting abused all over again. And this time it was legal. And this time my ex was able to sit in the chair opposite me and watch it happen.

Upcoming Report: Silencing Abuse Claims is Prevalent

Rise Women’s Legal Centre conducted an in-depth study of the issue, speaking with 160 abuse victims throughout British Columbia who had also been involved in family court matters. Just over half of the people they spoke with had been accused of parental alienation for simply talking about their abuse. Just under half of the respondents said they had been advised by their family lawyer to keep silent on the issue for fear it would prejudice them in court.

This places these parents between a rock and a hard place. By speaking out, they may be punished by having their access restricted or taken away completely. On the other hand, if they stay silent, their children could end up in the care of a parent with abusive tendencies.

A separate study of 357 family court cases involving claims of parental alienation was conducted by the University of New Brunswick professor Linda Neilson. Professor Neilson found that more than half of the cases involved allegations of abuse. In over 75% of those cases, the parent accused of abuse raised the idea of alienation.

The study also found that while judges found instances of alienation equally against both mothers and fathers, mothers were punished more significantly. They were twice as likely to lose access or have their access reduced, compared with fathers who were found to have engaged in alienating behaviour.

Psychological Reports Play a Role

As we have previously discussed, many questions have been raised about whether psychological reports in custody cases are actually helpful. In this case, one mother in B.C. said that a report obtained for her custody matter accused her of alienating her children from their father and recommended her access be limited. Her lawyer eventually quit out of fear they were not prepared to defend against a claim of alienation. She represented herself after that and was eventually successful.

B.C. Attorney General David Eby spoke about this issue recently, saying that more education about abuse and family alienation is needed:

I’m concerned that maybe this is an area where we need to expand that training in order to be able to provide more supports and ensure that the people who are interacting with victims of violence have that background to be able to do it properly.

The family law lawyers at Mincher Koeman are exceptionally experienced with respect to child custody and access disputes following the breakdown of a relationship. We will work with you to ensure a custody and access arrangement that fits your family’s specific circumstances. Contact our office today by calling us at 403-910-3000 or contact us online.