R. High Conflict: Parental Alienation

Author:Julien D. Payne - Marilyn A. Payne

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Legal and mental health professionals are in general agreement that high-conflict parenting disputes, especially those involving parental alienation, require constructive institutional responses to ensure early intervention and assessment, the management of ongoing disputes by a single judge, and the

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expedition of any trial.354The Alberta Court of Appeal in VMB v KRB355has stated that section 16(10) of the Divorce Act makes parental alienation a relevant consideration in high conflict custody disputes and "[t]here is no rule of law that a finding of alienation can only be made based on expert evidence." It must be recognized, however, that the adversarial litigation system provides a forum that is ill-equipped to ensure the counselling that is so frequently necessary to address the deep-rooted and ingrained levels of distrust and animosity that exists between the parents. As Germain J, of the Alberta Court of Queen’s Bench, has observed, "[b]adly needed court resources are committed to proceedings where the opportunity to create meaningful, responsive, and useful solutions is very limited, as there is no ability on the part of the courts to collect and gather evidence, or order the expenditure of state resources to assist the family in chronic distress.356A finding that a custodial parent is guilty of parental alienation does not predetermine any one particular judicial remedy.357The law provides a veritable arsenal of sanctions that can be imposed to deter custodial and non-custodial parents from engaging in parental alienation. They include injunctions to restrain vexatious litigants, imprisonment,358fines and financial penalties for civil contempt,359costs against recalcitrant parents, and, depending on which parent is at fault, orders for a change of custody or for supervised access. Each of these sanctions may be found wanting. Judicial restraints on vexatious litigants do not preclude ongoing parental warfare outside the courtroom. Imprisonment may deprive the children of their primary caregiving parent, although this deprivation may be mitigated in some cases by the strategic use of intermittent periods of imprisonment while the non-custodial parent exercises court-ordered access, including compensatory

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access to the children. Orders for fines, financial penalties, and costs may operate to the economic prejudice of the children. A change of custody may not reflect the best interests of the children.


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