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CLARIFYING GENDER DIFFERNCES IN ALIENTATION
By Nicholas Bala and Suzanne Hunt

Parental alienation cases have been receiving a great deal of public and professional attention in the past few months in Canada. As with so many issues in family law, there are two competing, gendered narratives offered to explain these cases.

Men’s rights activists claim that mothers alienate children from their fathers as a way of seeking revenge for separation, and they argue that judges are gender-biased against fathers in these cases. Feminists tend to dismiss alienation as a fabrication of abusive fathers who are trying to force contact with children who are frightened of them and to control the lives of their abused former partners.

While there is some validity to both of these narratives, each also has significant mythical elements. The reality of these cases is often highly complex, with both fathers and mothers bearing significant responsibility for the situation.

Many high-conflict separations are characterized by both parents denigrating their former partners and failing to support their children’s relationships with the other parent. While all children suffer from such parental behaviour, only a minority of children become “alienated” from a parent as a result of it.

When a child resists visits with a parent, all children in the family and both parents must be assessed. Some cases involve emotionally abusive “pathological alienation” caused by the conduct of an alienating parent and resulting in a child having negative beliefs and feelings (such as anger, hatred or fear) that are not consistent with the child’s actual experience with the rejected parent. In other cases, however, the child may be “justifiably estranged” due to conduct of the rejected parent, such as abuse or poor parenting. In some case, a child independently decides to disengage with a parent, perhaps due to tensions with a stepparent.

We are undertaking a study of reported Canadian cases between 1989 and 2008 dealing with claims of parental alienation. Key findings include the following:

• There were 145 cases where the court made a decision about “parental alienation”. Comparing 1989 to 1998 with the 1999 to 2008 period, there has been a significant increase in cases raising the issue of parental alienation (from 34 to 111) and in cases where the court found alienation (from 18 to 71);

• Although courts continue to use the concept of “parental alienation” in 2005 judges began to comment on the controversy about whether this is a “syndrome” and to recognize that mental health professionals should resolve this issue;

• Mothers are twice as likely as fathers to be found to have alienated children from the other parent, but this reflects the fact that mothers are more likely to have custody or primary care of their children. In only two out of 89 cases did a parent with access alone alienate a child from the other parent;

• Fathers made more than three times as many unsubstantiated claims of parental alienation as mothers, but this too reflects the fact that claims of alienation as mothers, but this too reflects the fact that claims of alienation (substantiated and unsubstantiated) are usually made by access parents, who are usually fathers;

• In close to half the cases in which the court declined to make a finding of alienation, the child was justifiably estranged from the rejected parent due to abuse or poor parenting. In about one quarter of the unsubstantiated cases, the court found that the child was not “alienated” from the other parent, but simply wanted less contact. In some of these cases the court declined to order any access;

• Court-appointed mental health experts testified in 83 percent of these cases, and if they expressed an opinion on whether there was alienation, the court came to the same conclusion in over 90 percent of the cases;

• Party-retained experts testified in less than a fifth of cases, and judges were much less likely to agree with these experts. In only two cases did the court prefer the opinion of a privately retained expert to that of a court-appointed expert;

• Where the court found parental alienation, the most common response was to vary custody to either give the rejected parent sole or joint custody. Whether the father or the mother was found to be the alienating parent, there was no statistically significant difference in the rate of variation of custody;

• The courts sometimes both changed custody and suspended contact with the alienating parent;

• Courts ordered counselling or therapeutic intervention in about one-quarter of the cases. These included both cases where alienation was found and where the court rejected the claim of alienation. The most common orders were for counselling for the children or counselling for the entire family.

Thus, while there are gender differences in both rates of alienating children (mainly by mothers) and in making unsubstantiated claims of alienation (mainly by fathers), this reflects the fact that alienation is almost always done by the parent with custody or primary care. There is no evidence of gender bias in judicial responses to these cases.

Changes should be made in the family justice system to ensure that alienation cases are addressed in a way that better meets the needs of children including:

• Education programs for parents on the effects of separation on children;
• Early assessment by a court-appointed mental health professional;
• Detailed court orders that are effectively enforced;
• Prevention of delay in resolving cases where alienation is alleged; and
• Provision of effective counselling and support services.

Although there is clearly a need for more research on the best methods of intervention in alienation cases, there is a growing body of literature that documents the long term emotional harm caused to a child by alienation from a parent.

This Article appeared in The Lawyers Weekly dated May 29, 2009, Vol. 29, No. 4 Written by Nicholas Bala and Suzanne Hunt. Nicholas Bala is a professor at Queen’s University specializing in family and children’s law. Suzanne Hunt is an articling student at Templeman Menninga in Belleville, Ontario.

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