CHAPTER 5:
Complications of High-Conflict Divorces
Legal and mental health professionals recognize that divorce and separation are difficult for all parents and children. For the majority of families this is a difficult transition phase. Some families seem to get stuck at this point, however, with one parent or both intent on maintaining such a degree of conflict and tension that it becomes impossible to resolve parenting and property decisions without a great deal of intervention from legal and mental health professionals. The incidence of such divorces is estimated at between 10 and 20% of the divorcing population. Virtually everyone involved in family law agrees that the conflict between many of these couples is so intractable that there is never likely to be a legal remedy for their problems. These are couples who perpetuate their conflict regardless of developments in the lives of their children, their own remarriage and prohibitive legal expenses. They are clearly not in the majority, and a number of witnesses insisted that recommendations made to address high-conflict divorces should not have negative effects on the rest of the divorcing population.
High-conflict couples were described by lawyer Carole Curtis, representing the National Association of Women and the Law:
I describe a high-conflict family as a family that falls short of actual violence or assault but for whom, post-separation, a hostile relationship continues. Perhaps a therapist would call that a dysfunctional relationship. There are many separated families who cannot let go of the need to fight with each other one, two, five, and seven years post-separation. We certainly need to bear those families in mind, but we also need to have realistic expectations about the help the justice system or legislation can give to those families. (Meeting #8)
A number of witnesses included families who have experienced domestic violence in the category of high-conflict divorces.
The Committee was urged to concentrate on developing options to support parents who can make their own arrangements and reach co-operative solutions. However, these types of options, such as mediation, are clearly inappropriate for some high-conflict couples, and the system has to provide alternative remedies where necessary. The challenge for the Committee, and for governments, is to design a system that can accommodate different types of divorce, without penalizing couples in one category through options meant for another type of divorce. A large number of witnesses recognized that high-conflict families consume a disproportionate amount of legal and other resources.
On the other hand, the highly conflicted families are the ones that chew up the court time. In terms of the time that the judge and the personnel that are affiliated with the court put in, these highly conflicted cases do consume a lot of time, so it's important that the systems that are designed have a focus on how to deal with those families. (Thomas Darnton, Visiting Professor, Child Advocacy Clinic, University of Michigan Law School, Meeting #26)
The Committee's findings and recommendations reflect the desire of Members to improve the legal system's response to high-conflict divorces, without imposing any harmful restrictions on the co-operative majority. One of the options Members believe should be considered is a mechanism for screening out high-conflict divorces and treating them in a different stream. This would recognize the potential harm to children whose parents continue their conflict far beyond a reasonable adjustment period. The system should identify these families in order to provide protection for their children, who are at greater risk than most children of divorce. Once families are identified, their files should be "red tagged" or flagged in some other way, so that decision makers do not make determinations about parenting arrangements without knowing the full details of the case and the family's history.
Barbara Chisholm, of the Ontario Association of Social Workers, recommended that Special Masters be appointed to deal with high-conflict cases.
Such Special Masters should receive particular training in alternate dispute resolution techniques and be prepared to monitor the cases on a long-term basis. Restrictions on the number of adjournments allowed in custody/access disputes should be put in place, as well as restrictions on the number of returns to court. After these limits have been reached, the matter should then be routinely subject to referral to the special master. ... This is a program that has begun in the States and in Australia. It's the appointment of a judge-a qualified, experienced judge-to a special status. It would be a new status of judicial appointment for someone who would receive special training and be available to deal specifically with the high-conflict cases, the ones that come back and back, where people fire their lawyers because they don't like the advice they get and shop for another lawyer and fire that one. (Meeting #13, Toronto)
The Committee recommended creating this specialized judicial role as part of the services offered by unified family courts (see Recommendation 24).
The Committee agrees that the identification and streaming of high-conflict families would be beneficial both for those families and for others involved in the litigation process. These families require specialized services and generally consume more judicial resources than others, which can result in delays in the courts that may have a negative impact on other families. With a significant number of marriages ending in divorce, and the downward trend in the age of children at the time their parents divorce, such disruptions in family life will likely have more profound effects on children, especially in high-conflict cases. The younger age of the children affected has implications for all the therapeutic and other services offered divorcing families, including those offered through the child protection system.
One particularly alarming symptom of a high-conflict divorce is that a child may decide that he or she does not want to visit one parent or the other. Committee Members were profoundly concerned about such cases when they were described to us by witnesses, especially where children told the Committee that they wished to sever a relationship with a non-residential parent. In the view of Committee Members, such a desire on the part of a child is indicative of a serious problem and calls for immediate intervention. A child who acts on such a wish, with the support of the other parent or the judicial system, may in the long term come to regret the choice he or she has made.
Recommendations
32. This Committee recommends that federal, provincial and territorial governments work together to encourage the development of effective models for the early identification of high-conflict families seeking divorce. Such families should be streamed into a specialized, expedited process and offered services designed to improve outcomes for their children.
33. This Committee recommends that professionals who meet with children experiencing parental separation recognize that a child's wish not to have contact with a parent could reveal a significant problem and should result in the immediate referral of the family for therapeutic intervention.
Many witnesses made a connection between the degree of conflict between divorcing parents and the likelihood that those parents would require supervision of parenting time or become involved with the child protection system. The Committee considered evidence about the supervised parenting programs, or supervised access as it is currently referred to, in place in a number of Canadian jurisdictions. Members also were interested in the interaction between divorce actions affecting children and provincial child protection systems.
A. Supervised Parenting Programs
Where there is reason to believe that an access visit, or parenting time, with a non-residential parent would be in the best interests of a child, but safety or other concerns preclude unsupervised access, the solution is often ``supervised access'', or what this Committee would prefer to call ``supervised parenting''. A number of witnesses cautioned that visits that take place under supervision in a community centre or other public facility, with other families and supervisors present, might be awkward and uncomfortable for both parent and child. However, the Committee is convinced that such access is often better than no access, and that supervised parenting programs are an essential component of our response to divorce. Parent-child relationships should not suffer merely because we do not have the resources or capacity to provide supervised parenting. Sally Bleecker, co-ordinator of the Ottawa Supervised Access Program, spoke of the importance of supervised access in facilitating parent-child contact that might otherwise not take place.
All over the world, children have relationships with parents who are less than perfect. Children have a deep attachment, as we know, to parents who they hope will be better. They live often in the hope, as we all do in relationships, and I really think these children benefit from some support to see if those relationships can improve in their lives. (Meeting #24)
The Ontario supervised access program was described by its co-ordinator, Judy Newman:
Supervised access centres, as envisioned by the Ministry of the Attorney General, provide a safe, neutral, child-focused setting for visits and exchanges between children and their non-custodial family members, which can include grandparents as well as parents. Supervised access provides integrity to orders of the court by providing a place for these visits and exchanges to take place, and it supplies, when requested, factual observation notes or reports to lawyers and the court to assist them in making orders regarding custody and access. Supervised access centres are not an assessment setting and they do not make recommendations regarding custody and access. They only provide factual observations and the setting for visits and exchanges to take place. The Ministry currently funds 15 centres on a transfer payment basis across the province of Ontario. In 1997 and 1998 they served 9,000 families and conducted 24,000 visits and exchanges. (Meeting #24)
Two aspects of supervised access raised most often by witnesses were the types of cases appropriate for supervised access and the absence or inadequate capacity of supervised access programs across the country. A number of witnesses talked about how to handle supervised access and the exchange of the child between the parents in domestic violence cases or other cases where the safety of the child or the custodial parent may be at risk.
Supervised access, especially supervision of the exchange of the child between parents, and the use of a neutral location for access should be mandatory in cases where there has been abuse of the custodial parent by the parent exercising access. ... The cost of supervision and the cost for the use of a suitable access location that meets the child's needs should be paid by the parent who has abused the other spouse. These recommendations related to supervision have the additional benefit of protecting the spouse who has been the victim of abuse from being subjected to further threats, intimidation and abuse. (Elaine Teofilovici, YWCA, Meeting #8)
Claire McNeil, of Dalhousie Legal Aid, told the Committee that although judges are ordering supervised access appropriately, there is no way to provide it, as there is no funding for a supervised access program in Halifax. In some cases, access may be supervised by family members or mutually agreed friends, but such supervisors are likely not appropriate where there are concerns about violence, substance abuse or other safety issues. Even in Ontario, where there are supervised access programs in most major centres, witnesses expressed concerns about inadequate resources, limited availability and the need to expand the program.
Recommendations
34. This Committee recommends that the federal, provincial and territorial governments work together to ensure the availability of supervised parenting programs to serve Canadians in every part of Canada.
35. This Committee recommends that the Divorce Act be amended to make explicit provision for the granting of supervised parenting orders where necessary to ensure continuing contact between a parent and a child in situations of transition, or where there is clear evidence that the child requires protection.
B. Interaction with the Child Protection System
The Committee's hearings demonstrated the complex interaction that can arise between private parenting disputes and the child protection system. Provincial and territorial child protection statutes govern cases where the state is called upon to intervene in families to safeguard the well-being of children. Each jurisdiction's statute prescribes the conditions under which a child is deemed "in need of protection", thus justifying action by a child protection agency or children's aid society. All statutes specify that the best interests of the child is the governing criterion for decisions. Another universal feature of child protection systems, as the Committee heard from witnesses, is the overwhelming caseloads of child protection workers because of insufficient resources. Child protection clearly calls for increased government attention and resources.
When the Committee considered the interaction between child protection systems and parenting disputes, among the issues raised was how allegations of abuse of children by a parent are investigated. Such allegations are usually reported to a child protection agency, and the ensuing investigation generally has a direct impact on the parenting arrangements in place at the time the results are reported. A number of witnesses argued that false allegations of abuse can be made by one parent hoping to gain an unfair advantage over the other parent in a custody and access dispute. In such cases it is imperative that parent-child relationships be maintained through supervised parenting. Witnesses described the devastating impact of false allegations, maliciously made, on innocent parents; many witnesses reported having endured such experiences personally. The area of sexual abuse of children is extremely complex, and the problem of false allegations of abuse is discussed later in this chapter (see also Recommendation 35).
When a family is involved in both custody/access proceedings and an investigation or action by a children's aid society, the interaction between the two systems can be difficult, sometimes to the point that one interferes with the other. Given the prevalence of separation and divorce, it is inevitable that a significant proportion of situations coming to the attention of child protection authorities will relate to children whose parents are separated, with or without parenting arrangements.
Such jurisdictional difficulties must not obscure the presence of risk factors that would justify child protection action. The Committee hopes that mechanisms can be developed to ensure that children will not fall through the cracks, escaping the attention of child protection authorities and being denied positive interventions because they are the subject of parenting disputes. Establishing or expanding unified family courts - or courts of a similar nature - across Canada could contribute to resolving this problem, in that cases involving both parenting and child protection would be handled by the same court.
In some cases child protection concerns arise in the course of a custody or access dispute and a child protection agency undertakes an investigation of the family. Occasionally this is conducted before or simultaneously with a custody and access assessment by a psychologist or social worker. As psychologist Rosalyn Golfman indicated to the Committee, the results of the agency's investigation are not always made available to the assessor.
Sometimes they'll let us review how they interviewed the child and sometimes they won't, and we don't know what it depends on. Often we have to get a subpoena from the court, which is a costly, lengthy process. So we'd also like to see some changes in that. If we're doing a comprehensive evaluation, we should be able to review what the child has actually said. (Meeting #22, Winnipeg)
Another key point is that parents who engage in protracted custody or access proceedings may be putting their children at risk, even to the point where the children are in need of protection. Witnesses who recommended amending provincial child protection law, including Heidi Polowin, Counsel to the Ottawa-Carleton Children's Aid Society, advocated expanding the definition of "in need of protection" to include children whose parents are engaged in protracted disputes with respect to custody. This recommendation was also made to a coroner's jury in the Kasonde case, an inquest into the death of two Ottawa children killed by their father, following an acrimonious custody and access dispute between the parents.68
While the jury did not adopt that particular recommendation, it did recommend that the province of Ontario establish a bridging system between child welfare and child custody and access, to clarify the role of child protection agencies in situations like that of the Kasonde family. The jury also recommended that the grounds for finding a child in need of protection be expanded to include cases where the child is exposed to parental abuse, domestic violence, substance abuse, emotional abuse, or neglect that is likely to result in developmental delay or emotional or physical harm to the child.
Recommendation
36. This Committee recommends that the provincial and territorial governments require child protection agencies to provide disclosure of records of investigations to court-appointed assessors examining families who have been the subject of such investigations.
Throughout the course of this study, the Committee repeatedly encountered the problem of inadequate or non-existent research on a variety of areas related to divorce, its impact on children, and other questions. When some of Members of this Committee attended the May 1998 Conference of the Association of Family and Conciliation Courts in Washington, D.C., we were impressed that in many U.S. jurisdictions, research on many of these vital issues is being conducted and is widely available to guide policy makers, legislators, judges and parents. The contrast with the Canadian situation seemed stark to many of us.
The Committee has identified the following specific areas that will require further study in the near future in Canada:
Members of the Committee were impressed with the scope and potential usefulness of the National Longitudinal Study on Children and Youth, but felt that its data should be expanded and used to investigate a larger list of questions dealing with the impact of separation and divorce on children, including
One of the most dangerous complicating factors in separation and divorce is domestic violence. This was among the most controversial topics presented at the Committee's hearings, and one that Members find most troubling. Witnesses differed about the incidence and nature of such violence - about whether men are more often the perpetrators and women more often the victims, about the incidence of violence instigated by women, about the severity of domestic violence and its relevance to parenting/decisions. Several matters are clear, however. Children who witness violence between their parents are affected negatively. Where there is violence between the parents, the risk of escalation at the time of separation is high and poses real safety concerns for both parent and child. The presence or risk of violence is unarguably relevant to decisions about parenting arrangements. This is a problem that affects a minority of divorcing couples and unmarried separating couples.
Dr. Donald Dutton, a research psychologist who testified before the Committee in Vancouver, has studied violence in intimate relationships for a decade or more. He reminded the Committee that research shows that the majority, 75%, of men are not violent in intimate relationships. Some of his research findings relate to people not concerned with the Divorce Act (such as common-law couples), but he did present the following conclusions about violence linked to parenting disputes:
In terms of how this ties into issues around custody and divorce, I have from time to time served as an expert witness in custody matters, divorce matters, where there have been allegations of abuse. In my opinion, these cases really have to be taken on a case-by-case basis.
From looking at our research, the best model obviously is an intact family, but that's assuming two non-abusive parents. If you don't have that, if you have one abusive parent, then it seems to me that the child should then reside with the non-abusive parent. The issue then becomes whether the abusive parent's abusiveness will be played out on the child or is specific to the relationship with the spouse. The research seems to indicate that both can happen. For that reason, again, I think one has to adopt a case-by-case approach to these matters. Trying to be formulaic in terms of gender issues etc., really just does not work. (Meeting #27, Vancouver)
The controversies about domestic violence are many. There is debate about the definition of family violence, its extent, the usefulness of police assault statistics, the profiles of abusers and victims, and the validity of the key tools for measuring violence. While the focus is often on violence between the adult members of the family, there is also concern about abuse of children and elders. Custody and access law has always recognized the relevance of violence or other abuse of the child in decisions about custody and access. For a long time, however, violence between parents, such as one spouse physically assaulting the other, was assumed not to have a direct bearing on the parenting abilities of the assaultive spouse. It was not considered relevant, therefore, to custody and access decisions. With relatively recent mental health research establishing a clear link between spousal violence and child well-being, the courts have begun to recognize the relevance of such conduct for decisions about parenting.
The Committee heard contradictory messages from a variety of witnesses, including academics, mental health professionals, men's and women's advocates, and others. Many argued that family violence is a gendered problem, in that most perpetrators are male and most victims female. Supporting this argument are family violence data from Statistics Canada, including the controversial 1993 Survey on Violence Against Women; police statistics, including those from specialized family violence courts in Winnipeg and Ontario; and administrative data from shelters for women who have been victims of wife assault. In contrast, a number of witnesses argued, on the basis of recent general population surveys, including work by U.S. sociologist Murray Strauss, followed up in Canada by sociologist Reena Sommer, that men and women commit roughly equal numbers of violent acts in relationships.69
The evidence the Committee received reflected these competing schools of thought. For example, Jane Ursel, sociologist with the Winnipeg Family Violence Court, provided data on the caseload before that court:
In the three-year time period that I have the data for you today, there were 5,674 cases of spousal abuse. The court indicates that 92% of the convicted offenders were male and 89% of the victims of those offences were female. ... 562 convictions [for child abuse] in the same time period; 89% of the accused were male and 76% of the victims were female, with the [remaining victims being] male and female children. In the case of elder abuse, 91% of the accused were male and 81% of the victims were female. (Meeting #22, Winnipeg)
The latest data from Statistics Canada, which are based on police statistics, show that in 1996, 11% of victims of domestic violence were male, while the large majority (89%) were female.70 Men were also more likely than women to kill their spouses.71 The strongest predictors of wife assault are the young age of the couple, living in a common-law relationship, chronic unemployment of the male partner, parties who witnessed abuse as children, and the presence of emotional abuse in the relationship.
Witnesses from the shelter movement stressed the prevalence of abuse of women and the need to assure the safety of abused women and their children, particularly at the time of separation.
In woman abuse situations, the time of separation is particularly dangerous. As part of the abuser's pattern of control and domination, their victims have usually been told for years that if they ever dare to leave, they, their children, or their families will be seriously hurt or killed. The resulting fear for women is well-founded. (Bina Ostoff, Counsellor Advocate, London Battered Women Advisory Centre, London Coordinating Committee to End Women Abuse, Meeting #14, Toronto)
Most witnesses advocating appropriate responses to violence against women were not suggesting that all family violence is against women, or that men are never assaulted by their spouses. For example, Gary Austin of the London Family Court Clinic recognized the potential for men to be the victims of family violence, but he stressed that the problem of violence against women is more prevalent and serious, both in the nature of the violence and because women are more likely to be financially dependent on men.
Extensive research across North America indicates that 90% of family violence is directed at women and children. We do not condone violence against men and recognize that there are a number of divorces in which women have been the perpetrators of emotional and psychological abuse on men. This form of violence may be under-reported and should lead to comparable remedies [to those] described in this paper if found to be valid. However, violence against women is still a major problem in marital relationships, with significantly more women facing death and serious injury, and with violence by men representing an overall pattern of control and domination in the relationship. (Meeting #18)
Information about female violence is available in anecdotal form, as well as in the results of general population surveys using the Conflict Tactics Scale (CTS), developed by Murray Strauss.72 That scale was used in Statistics Canada's 1993 Violence Against Women Survey, which was cited by a number of witnesses. They quoted its major finding that 29% of currently or formerly married women had experienced some form of domestic violence. Some Committee Members noted that the same 1993 study reported that the vast majority of women - 97% - had not experienced abuse the year before. The study reported that "Three percent of women were assaulted by their partner in the 12 months prior to the survey."73 However, the Violence Against Women Survey has been criticized because it applied the CTS only to women and did not ask men about their experiences of violence perpetrated by women. Some Committee Members noted Dr. Murray Strauss's concern about inadequate use of his methodology, the CTS, in the 1993 Statistics Canada survey, quoting Dr. Strauss as having noted the omission of questions about women assaulting men:
That is what the Canadian National Survey of Violence Against Women did. They used the techniques which I developed, the Conflict Tactics Scale. But they left out the half of it which asks about violence by women, so they wouldn't be left with politically embarrassing data. (Meeting #14, Toronto)
Manitoba sociologist Reena Sommer told the Committee about her research focusing on perpetrators of spousal abuse in the general population. She emphasized that her data should not be confused or interchanged with data from the Family Violence Court or other police data. Her research includes types of abuse that might not appear in police statistics, such as emotional abuse.
It tends not to be physical, but when it is, it also tends to be reciprocal, and it is not serious enough to require medical attention. That is why most of the people who report to the general population surveys do not show up in the crime statistics: they don't seek help. (Meeting #22)
Including this expanded range of abusive conduct, which goes beyond that generally found in criminal courts and women's shelters, Reena Sommer concludes:
The results of my research have found there are no significant differences between the rates of abuse perpetrated by males and females. They're basically equivalent. That's not to say one is more injured or less injured than the other. I'm just saying there are as many men as there are women who perpetrate abuse against their partners. (Meeting #22)
Jane Ursel offered this explanation for differences between data from the Family Violence Court and data provided by Reena Sommer:
I think that where the difference might lie is that Dr. Sommer is dealing with conflict in a relationship. Studies have been done-I know this has been much discussed at this particular table in another city-such as the Canadian study on violence against women that was done in 1993, where there was an attempt to measure degrees of violence. I would certainly agree that many couples, both members, may have difficulty resolving conflict and may choose strategies that are certainly [less than] optimal. But I believe that when we come to measuring the actual degree of physical harm, there is a difference in assaults of men against women. The magnitude of harm that can be caused typically is greater when it is a male assailant upon a female victim. (Meeting #22)
This distinction between conflict in relationships and domestic violence of a criminal nature is likely the key to understanding the different patterns detected in the data cited. More empirical research would permit a better understanding of the problem of violence in relationships, but Members nevertheless underline their view that when violence in the home puts children at risk, action is called for, regardless of which parent is the aggressor.
Violence against men clearly does occur. The Committee heard testimony from several male witnesses alleging abuse by a spouse. Lyn Barrett, of the Cumberland County Transition House Association, indicated that the transition house offers programs for men as well as women. In the last year, she stated, 110 women had sought help, while only 5 men had done so, 2 of whom were in same-sex relationships. She explained:
We don't ever see men who are suffering the same degree of violence that we see women suffering, and we never see the numbers. That isn't to say that the numbers of men out there who have never come forward because they're embarrassed or whatever don't exist, but we also know that we only touch the tip of the iceberg for women. There's this long history where women could not get help, and that's what we are all here to recognize and support. (Meeting #30, Halifax)
Because of the existence of violence against men, the Committee would not recommend that family law or divorce legislation employ a gender-specific definition of family violence.
Having heard and considered carefully witnesses' evidence on domestic violence, the Committee recognizes that there are compelling reasons for further research into family violence, its incidence, causes, potential preventive measures, and measures to reduce negative effects and protect family members. Some Committee Members noted that insufficient testimony had been presented to the Committee about the actual incidence and role of domestic violence in separation and divorce proceedings. For purposes of this study, however, the most important is research into the effects on children of witnessing violence. This evidence is less equivocal, and the Committee urges all governments to consider it carefully and ensure that the legislation requires that legal and mental health professionals participating in the development of parenting plans do so as well in relevant cases.
Reporting on the work of Peter Jaffe and others at the London Family Court Clinic, psychologist Gary Austin told the Committee that the vast majority of children living in households where there is domestic violence are aware of the violence and are affected negatively by it. There is a link between spousal abuse and child abuse, in that children who live with a violent parent are at greater than average risk of being the direct targets of abuse. Even when there is no direct abuse, witnessing a parent being abused is as harmful to the child as direct abuse.74
One of the most significant developments in recent years in the field of family violence is the recognition that children who witness or are exposed to domestic violence are affected in a variety of ways. In fact witnessing violence is a form of psychological or emotional abuse that can leave the same adjustment problems as the direct experience of physical or sexual abuse. (Meeting #18)
Several witnesses, including Dr. Austin, recommended legislative action based on the literature establishing the harmful impact on children of witnessing domestic violence. Most of these witnesses advocated amendments to the Divorce Act and provincial family law to make domestic violence expressly relevant to custody/access decisions and a matter that must be considered by the judge. In addition, there should be a presumption that parents who have abused their spouses should not be considered for custody, joint custody, or liberal or unsupervised access. Gary Austin cited a model code developed by the U.S. National Council of Juvenile and Family Court Judges in 1994:
In every proceeding where there is at issue a dispute as to the custody of a child, a determination by the court that domestic or family violence has occurred raises a rebuttable presumption that it is detrimental to the child and not in the best interest of the child to be placed in sole custody, joint legal custody, or joint physical custody with the perpetrator of the family violence. (Meeting #18)
As Dr. Austin pointed out, "No gender is implied."
Abduction of a child by a parent is frightening for both the child and the other parent. Where return of the child does not occur, the impact can be devastating.
In 1988 the federal government established the RCMP Missing Children's Registry. As described by Sgt. John Oliver, the Registry is "an internationally recognized law enforcement program devoted to the search and recovery of children." (Meeting #24) The Registry handles approximately 60 new cases each month, a proportion of which are suspected abductions by parents. Sgt. Oliver stressed the danger to abducted children, reminding the Committee that even children in the care of a parent may be at grave risk. He argued that a crucial tool to deal with both international and domestic child abduction is a national registry of custody and access orders. This is one reason for the Committee's recommendation for a registry of shared parenting orders (see Recommendation 20).
Sections 282 and 283 of the Criminal Code are available to prosecute parents who abduct children within Canada in contravention of a custody order. However, there is no similar provision dealing with access orders. For the civil enforcement of custody or access orders, parents must rely on the provinces' reciprocal enforcement legislation, and the process can be cumbersome, expensive and awkward for parents living far from the province to which the abducting parent has fled with the child. Alex Weir, of Child Find Alberta, told the Committee that obtaining the return of a child abducted within Canada is more difficult that securing the return of a child taken to a Hague-signatory country; he recommended that the provinces adopt provisions similar to the Hague Convention to facilitate and expedite the return of children to the province from which they were abducted. The definition of and appropriate response to parental child abduction within Canada require further study. With the recommended transition to a shared parenting regime, the distinction between custody and access should be softened, and sections 282 and 283 of the Criminal Code may have to be modified accordingly.
Gar Pardy, the official at Foreign Affairs and International Trade Canada responsible for helping families whose children have been abducted and removed from Canada, made a practical suggestion to facilitate the interprovincial return of abducted children:
When warrants are issued, one thing we would encourage is police jurisdiction to make them national. In many instances, when a warrant is issued for somebody's arrest they are very limited geographically. Sometimes it's very frustrating, because you try to take the fact of a warrant and use it but it doesn't necessarily have any application in a foreign jurisdiction. In a foreign jurisdiction they look at an arrest warrant and say, well, it's only valid for the city of Mississauga. So it's not very influential. (Meeting #24)
Related to the problem of parental child abduction is the unilateral removal of a child from the family home by one parent. Such a move is not considered child abduction in the criminal sense if the parent left behind had no court-imposed custodial rights. In most provinces, current family law provides that such a move disrupts the statutory right of parents prior to separation to shared custodial rights in respect of their children. Nonetheless, unilateral moves of this nature by parents have not generally given rise to remedies in favour of the parent left behind, unless that parent has acted extremely quickly to secure the return of the child through the courts. In some cases, the fleeing parent has been able to rely on the ensuing period of sole care and control of the child as a basis for a sole custody order in his or her favour. The Committee is agreed that this practice, and any resulting litigation advantage, ought to be severely curtailed and discouraged.
The problem of international child abduction was studied recently by the Sub-Committee on Human Rights and International Development of the House of Commons Standing Committee on Foreign Affairs and International Trade. That Committee's report, International Child Abduction: Issues for Reform responds to many of the issues raised by witnesses before this Committee. In November 1998, the Government's Response to the Fourth Report of the Standing Committee on Foreign Affairs and International Trade was released. In that report, all but three of the Sub-Committee's recommendations were accepted. The Government Response provides the Sub-Committee with a detailed response to the recommendations they made, and was very helpful to this Committee as well. This Committee did not restrict its inquiry to international child abduction, however.
International child abductions are dealt with mainly under the Hague Convention on the Civil Aspects of Child Abduction. This Convention sets out straightforward procedures for securing the return of a child abducted from one Hague-signatory country to another. The custody and access order of the original jurisdiction is enforced. Gar Pardy told the Committee that marital breakdown and close family ties in another country are two of the characteristics of cases in which he is involved. He discussed the operation of the Hague Convention and recommended that Canada initiate negotiations to revise the Convention to encourage more countries to sign on. Currently, abductions to non-Hague countries are virtually impossible to resolve, although officials are often able to secure the co-operation of the other country in providing information about the child's location and well-being.
International Social Services Canada offers some assistance to abducted children and their families, even where the child is taken to a non-Hague country. Using a large international network, ISS social workers attempt to facilitate assessment of a child's well-being in the new location, or mediation between the parents. The agency is present in approximately 120 countries. They also provide assistance in custody and access cases that cross international borders.
The Sub-Committee on Human Rights and International Development made a number of recommendations related to passports and travel documents. They asked the Passport Office to review existing measures for processing passport applications for children and examine options to strengthen such measures. In the Government Response, it is pointed out that currently parents can apply either to have a separate passport issued to a child, or to have a child's name added to the passport of either parent. If the parents have separated, only the custodial parent can apply for passport services for a child, and in all cases, the consent of both parents is required. The government indicates that it does not currently plan to require all applicants to obtain individual passports for their children: indeed, such a passport could make abduction easier, if an abducting parent were to obtain possession of it.
Canada has indicated to the International Civil Aviation Organization (ICAO) that it is looking into technology that would allow a dependent child's identifying information and photograph to be printed onto a parent's passport. This type of measure could ensure that children being taken across international boundaries where passports are required are correctly identified. Such passport photographs, should they come to be required, should be updated more regularly than the five-year cycle required for adults, as children's physical appearance changes more rapidly than that of adults. It is the Committee's view that measures to improve the identification of children in passports should be pursued, and that the possibility of insisting on individual passports for all children should be considered further.
Recommendations
37. This Committee recommends that the attorneys general of Canada and the provinces, along with police forces and police organizations, ensure that all warrants in child abduction matters provide expressly that their application and enforcement are national.
38. This Committee recommends that the Attorney General of Canada work to develop a co-ordinated national response to the problem of child abduction within Canada.
39. This Committee recommends that the unilateral removal of a child from the family home without suitable arrangements for contact between the child and the other parent be recognized as contrary to the best interests of the child, except in an emergency.
40. This Committee recommends that a parent who has unilaterally removed a child not be permitted to rely on the resulting period of sole care and control of the child, of whatever duration, as the basis for a sole parenting order.
41. This Committee recommends that the federal government implement the recommendations of the Sub-Committee on Human Rights and International Development of the House of Commons Standing Committee on Foreign Affairs and International Trade entitled International Child Abduction: Issues for Reform.
42. This Committee recommends that the Minister of Foreign Affairs and the Passport Office continue to examine ways to improve the identification of minor children in travel documents and consider further the advisability of requiring that all children be issued individual passports.
F. False Allegations of Abuse or Neglect
At the last appeal, the judge apologized to me, saying `This poor father. What have we done to him?' What did they do? What did this justice system do to me? I haven't seen my children for now going on nine years... these false allegations do a lot of things to you. The hurt's there. It's like someone ripping your heart out. It will never go away, as some people have told you. You can make as many recommendations as you want, but the scars are here. They're with me until the day I die. My kids? I have to ask friends what they look like. (Kim Cummins, Meeting #20, Calgary)
Individual fathers relating their personal experiences and men's groups from across Canada testified that a tactic used by some parents and their lawyers, in an effort to deny parenting time to the non-residential parent (usually the father), is false allegations of physical or sexual abuse or neglect. These witnesses testified that this is a major problem that not only leads to denial of parenting time but also contributes to estrangement and alienation between fathers and their children. In some cases this estrangement becomes permanent. Estrangement may be avoided by maintaining contact between parent and child through supervised parenting (see Recommendation 35).
Several witnesses referred to the court decision in the case of Reverend Dorian Baxter, who appeared before this Committee in Toronto. The decision quoted the trial testimony of Barbara Chisholm, an experienced professional in the field of child abuse, who also appeared before the Committee in Toronto:
Ms Chisholm indicated that the experience has been for some time that sexual assault allegations made by the mother against a father in custody disputes are prevalent nowadays and indeed have become what she called the "weapon of choice."75
In situations where allegations are made, the father faces the difficult if not impossible task of trying to disprove something that may not have happened.
The problem is that it's never disproven. It's very difficult. That's the Catch-22. It's not provable, but it really stays on the record as something that happened. It's like where there's smoke, there's fire, so something must be happening. (Dory Gospodaric, Second Spouses of Canada, Meeting #13, Toronto)
This takes time and money, and the Committee heard many painful stories from fathers who had lost contact with their children for extended periods of time. In several cases, contact was never restored.
Let me tell you the story of this necklace. Ten years ago I made a commitment to my daughter that on her twenty-first birthday I would give her a pearl necklace. About a month ago I went shopping for this necklace. The sales assistant inquired who it was for and what she liked to wear. I told it was for my daughter's twenty-first birthday but I couldn't tell her what she generally wore or how she liked to dress. After selecting the necklace, the sales assistant stated that it was very beautiful and that my daughter was very lucky, and that she was sure my daughter would like it very much. I just said, `I probably will never know. I haven't had any communication with her in over seven years.' (Stan Gal, Meeting #13, Toronto)
Witnesses, including individuals, lawyers and other professionals, identified several ways that false allegations can be introduced into the legal system when parents are in conflict over their children. Allegations of abuse or neglect are often made to a child protection agency, or they are introduced through affidavits and pleadings submitted by the lawyer of the parent making the allegation. False allegations can also take the form of perjury in sworn written and oral testimony.
In a submission to the Committee from Parents Helping Parents, a Winnipeg organization established by Louise Malenfant to help parents experiencing family law problems, she reported that there has been a problem with the over-validation of false allegations of sexual abuse arising in divorce cases in Manitoba.
The problem of false allegations during divorce proceedings was extensive in Manitoba, as it was acknowledged by the CEO of the Child and Family Services in Manitoba that 25% of all investigations arose during divorce proceedings. In June of 1996, executive at Winnipeg CFS also admitted that only 15% of allegations made in divorce cases were likely true. (Meeting #22)
Heidi Polowin, Director of Legal Services for the Children's Aid Society (CAS) of Ottawa-Carleton gave the Committee the "rough statistic" that three of every five cases of alleged abuse the CAS investigates involve custody and access, and of those three, two are found to be unsubstantiated. Ms. Polowin noted that reports to the CAS are made by neighours, doctors, teachers, and other relatives, as well as parents, and she was careful to note that "unsubstantiated" does not necessarily mean that an allegation is false: it means that the CAS was unable to verify the claim for any one of a variety of reasons.
I wouldn't want to suggest that when we say two out of the three allegations are not substantiated, we're saying they're false allegations. We're saying that we can't substantiate the allegations. They are two different things. I think that when you use the words "false allegations", there's an intentional element there. And that isn't always there. Sometimes the allegations just cannot be substantiated by us. (Meeting #24)
Following on Ms. Polowin's point that not all unsubstantiated allegations are false, the mental health literature contains many articles providing conflicting data about rates of false allegations in cases reported to child welfare and protection agencies.
The complexity of investigating and proving allegations of child sexual abuse was alluded to by Rosalyn Golfman, a psychologist who testified on behalf of a group of psychologists and social workers who do private custody/access assessments and specialize in cases involving allegations of child sexual abuse.
With regard to allegations of sexual abuse, particularly in young children under the age of five, we have found a relatively small but significant number of false allegations of sexual abuse following the dissolution of a relationship. False allegations may occur in highly conflictual separating couples. It is our collective experience that parents and children may misinterpret or may have distorted or misinformed perceptions of the child's relationship to the ex-partner. Young children are highly susceptible to false memories and inaccurate reporting when they are asked repeated questions and when they are retelling the story many times, when they're asked leading questions. Also, one parent's anxiety regarding the abuse may subtly affect the child's accurate reporting abilities. That's the most significant point, really. It's quite subtle. Parents may observe behaviours in their children that could indicate sexual abuse, but frequently these same behaviours could also be explained by the aspects of a conflictual relationship or the trauma of separation. Often these resemble post-traumatic stress disorder. (Meeting #22, Winnipeg)
Some of the debate focuses on the question of children's ability and tendency to lie about such serious matters. For a long time, many practitioners argued that children were incapable of lying in these situations, or at least that it was unlikely that they would lie about abuse. Therefore, any comment suggesting that abuse had occurred could be seen as sufficient reason to justify reporting suspected abuse.
In 1984, Berliner and Barbieri reported that "there is little or no evidence indicating that children's reports are unreliable, and none at all to support fear that children often make false accusations of sexual assault or misunderstand innocent behavior by adults."76 In another study, Dziech and Schudson concluded: "Children do not commonly make false claims of being sexually abused. Underreporting and denial are far more common... The adult notion that children lie about sexual abuse is illogical to those who have studied them."77
More recently, however, other studies have concluded that children may say whatever is expected of them by people they love, especially when asked repeatedly to talk about a difficult problem. Ceci and Bruck wrote in 1993, "children can be led to make false or inaccurate reports about very crucial, personally experienced, central events."78 The factors that might influence children's reporting of difficult experiences are complex, contributing to the inherent difficulty of investigating reported child abuse, especially sexual abuse.
In a comprehensive review of research studies investigating the frequency of allegations of sexual abuse, Judith Adams reported: "The context in which the allegations arose appears to be critical. Call (1994) reviewed 7 studies of the rate of allegations of sexual abuse arising in divorce cases and found that the rates ranged from 15% to 79%. Ceci and Bruck (1995) cite several studies of allegations of sexual abuse arising in divorce cases, in which rates fall conservatively in the range of from 23% to 35%."79 Allegations made by children are often made to custodial parents, who are responsible for determining whether to report the matter, ask that it be investigated, or otherwise intervene to protect the child. Not surprisingly, this area becomes even more difficult during separation or divorce proceedings.
In a 1994 article about alleged child sexual abuse in custody and access disputes, lawyer Lise Helene Zarb reported that child sexual abuse is pervasive in Canadian society, while its exact extent is unknown.80 She discussed the disadvantages to the parent who makes a false allegation of abuse, including potential liability for failing to protect the child and the risk of jeopardizing custodial rights if found to be an "unfriendly parent", in addition to extra hassle and legal expense. Problems for the courts are also serious, Zarb concluded, in that there are no guidelines for judges assessing such allegations or legislative guidance about the amount or type of access that should be given.
In a paper submitted to the Committee in June 1998, Professor Nick Bala reviewed the difficulties inherent in researching false allegations of abuse.81 The proportion of abuse allegations that are false varies over time and is exceedingly difficult to quantify in a useful way. As Professor Bala points out, a common defence of genuinely abusive men is to dismiss their partners' allegations as deliberate fabrications, or to attribute children's expressed fears about access visits to their mothers' alienating behaviour. Most important, the societal problem of male abusers denying abuse is more serious than the problem of women exaggerating or falsifying claims of abuse. Each case must be dealt with on its own facts, and judges will often be assisted by expert evidence to distinguish between false allegations and those with some foundation.
Whatever the actual number, false allegations cause grief and pain for the accused parent. The Committee heard testimony from many fathers who had been the subject of accusations that were not substantiated and who had been ruined financially, socially, and emotionally.
These false allegations place all the onus on the accused, whose life instantly becomes destroyed psychologically, economically and socially, and creates an immediate severance of the accused parent from further contact with their children, and that was the purpose of the false allegation in the first place. It allows the game to be played and the game is very effective. I want again to play a positive part in the lives of our children. One false allegation has destroyed that possibility and I'm not hopeful that I'll be re-united with our children. (Larry Shaak, Meeting #21, Regina)
Other fathers who testified added their own observations about the painful consequences of false allegations made deliberately or maliciously by their former spouses. Tony McIntyre, of Men Supporting Men Inc., described his experiences helping such men in British Columbia.
We have heard accounts of men who feel helpless in the face of unproven allegations made against them. It appears that the simple fact these allegations are made by a woman against a man is enough for social service workers and legal professionals to give the benefit of the doubt to the woman and act against the man as if the allegations were already proven. This kind of frustration coming on the heels of grief and loss of close relationships and the pain of being separated from children often leads to the rapid unravelling of many areas of a man's life. They cannot function properly at work and so may lose their jobs. Without money they lose much of their ability to access the legal system. They then approach the agencies as a last resort, agencies designed to help people in this predicament, only to be met with closed doors and cold shoulders. ... There is no greater violence to a decent person's character than false allegations of sex abuse against children. Consequences for the individual can be devastating while they set out to prove their innocence. (Meeting #19, Vancouver)
Witnesses who raised the problem of malicious allegations of abuse suggested that the current system of investigating such complaints is inadequate and adds to the severity of the problem. These witnesses were concerned that in some extreme situations, some parents might be counselled by lawyers or other professionals to make a false allegation as a way of promoting their case for restrictions on the other parent.
My position is that assessments are being used to deprive children of meaningful relationships with both parents. They're being misused. They're being informed by a political attitude that sees a woman's word as much stronger than a man's; that on the basis of an accusation a man cannot clear himself. It doesn't matter if he passes a psychological assessment, a lie detector test, or even a penile measure for child abuse. He could still be on a child abuse register and prevented from seeing his children, except under the most rigorously supervised conditions, when he has done nothing wrong. I'm well aware that abuse exists. In 15 years of consulting with the Children's Aid Society, I know that children are abused sexually, physically, emotionally. That's why I feel it is so important not to give credence to false allegations, especially when children's lives and futures are at stake. (Marty McKay, Clinical Psychologist, Meeting #13, Toronto)
Other witnesses suggested creating a criminal offence of making intentional false allegations of child abuse. Reverend Dorian Baxter, of the National Association for Public and Private Accountability, offered the following recommendation:
[Because of the devastating personal and financial repercussions for the falsely accused] I think there needs to be some way of checking and balancing what the present social services have to offer. I see that as being a civilian child protection or welfare review board made up of well-to-do people, professional people, who are well respected and are prepared to give of their time to determine whether this has any merit. (Meeting #14, Toronto)
Unwarranted allegations by one parent against another must be discouraged. At the same time however, many Committee Members were concerned that any changes introduced to discourage false allegations must not limit, interfere with or restrict the voicing of legitimate concerns for a child's safety, even if they were subsequently shown to be unsubstantiated. Members of this Committee hope that reducing conflict in divorce will reduce the incidence of intentional false allegations. Among the most promising mechanisms for reducing conflict is parenting education during the divorce process. Such programs offer parents concrete skills for use in post-separation negotiations about the children and ensure that all are fully informed about the harm caused by unwarranted allegation of abuse.
While the Committee is convinced that the safety of children must be the principal consideration, Members believe that a legal remedy should also be available to deal with false allegations of abuse. Some members also suggested that the incidence of false allegations in custody/access conflicts warrants a thorough exploration of how affidavits are taken in family law, how pleadings are made, and how solicitor-client privilege may let counselling to make false allegations go undetected.
A number of governments in the United States have enacted legal prohibitions on the false reporting of child abuse or neglect. Statutes in 22 states and the District of Columbia set out penalties for false reports, usually false reports made "knowingly" or "willfully".82 Penalties take the form of fines or imprisonment in most cases. Similar penalties can be imposed in all states on those who knowingly or intentionally fail to report suspected child abuse or neglect.
G. Action on Perjury in Civil Courts
In describing their personal custody and access experiences, a number of witnesses alleged that the other party to their dispute had either sworn a false affidavit or been untruthful in giving evidence. Family law disputes, particularly those related to custody and access, tend to turn on the credibility of the parties, who are often the key witnesses. Even the most truthful parties have their own unique perception of events during and after a marriage. Judges often have a difficult time sorting out which version of events to accept, especially if all the evidence is in the form of affidavits. Often judges will be unable or unwilling to make precise determinations about which party is telling the truth about each and every matter raised, but will draw general conclusions about which evidence is preferred.
Witnesses stressed the damage inflicted on already strained family relationships in cases where the parties' evidence contains inflammatory untruths about each other. To the extent that there is a public perception that lying in family law matters is accepted, or at least not challenged, there is damage to the credibility and reputation of the family law system and the courts. Deborah Powell, representing Fathers Are Capable Too, cited a speech by Justice Mary Lou Benotto on ethics and family law, in which she referred to a comment in the first report of the Ontario Civil Justice Review, to the effect that
the single greatest complaint about lawyers by members of the public was with respect to the damage to family relationships caused by the allegations in these affidavits - where, it is widely acknowledged, perjury is rampant and, moreover, goes unpunished. (Meeting #7)
Indeed, there may be family law cases in which false testimony should be challenged. The Committee recognizes that knowingly making a false statement under oath or by affidavit is an indictable offence under the Criminal Code.83 The elements of the offence include the falseness of the statement, that the accused person knew it was false, and that the accused person intended to mislead. These elements demonstrate that only very deliberate, clear falsehoods are susceptible to challenge using the Criminal Code offence of perjury. One party's perception of dishonesty will not always justify a finding of perjury, however. Indeed, differing versions of events are the rule, not the exception, in family law, given the nature of the proceedings, the degree of acrimony between the parties, and the fact that most incidents were observed only by the parties to the action.
In addition to the Criminal Code offence of perjury, two other Code provisions have potential application to false allegations of abuse or neglect. These are the sections dealing with public mischief and obstruction of justice. Section 140 of the Code provides that the offence of public mischief is committed when someone causes a police officer to initiate or continue an investigation by making a false statement accusing another person of committing an offence. Section 139 makes it an offence to attempt wilfully to obstruct justice in any manner.
Both offences might have application to deliberate false allegations of abuse or neglect, as might sections 131 and 132 dealing with perjury. In the Committee's view, the efficacy of these provisions in dealing with false allegations should be studied by the Minister of Justice. This examination should determine whether the three current provisions are sufficient to deal with the problem of false allegations of abuse or neglect, whether their effectiveness might be enhanced by adopting a new charging policy, or whether a new, more specific provision is required.
Recommendation
43. This Committee recommends that, to deal with intentional false accusations of abuse or neglect, the federal government assess the adequacy of the Criminal Code in dealing with false statements in family law matters and develop policies to promote action on clear cases of mischief, obstruction of justice or perjury.
H. Parental Estrangement and Parental Alienation
A number of witnesses testified about how they became estranged from their children after divorce. Most of these situations were described by fathers, but some grandparents and a few mothers gave details about how a relationship with a child had been interfered with in the course of a dispute between the parents after divorce. One young woman from Vancouver told the Committee a wrenching story about how she and her brother had become estranged from their mother after their father removed them from her care. This young adult described how negative stories about her mother were told over and over again until she and her brother began to believe them.
In some of the situations, one parent made false allegations to police, child protection agencies, or the courts as a way to keep the other parent from having time with a child. In other situations, one parent poisoned the child's mind against the other parent by implying that the other parent was dangerous. In such cases, the child often becomes distrustful of the other parent and asks that time with that parent be restricted or even that all contact cease. Members of the Committee were struck by the pain created by these situations for both the child and the estranged parent.
Other witnesses who described estrangement from their children suggested that they were struggling against parental alienation syndrome. These witnesses referred the Committee to research by a U.S. child psychiatrist, Dr. Richard Gardner, who defines parental alienation syndrome as a pattern in which one parent, deliberately or otherwise, alienates the children from the other parent. Some witnesses referred to this as a psychological syndrome; others called it a symptom or disorder.
Mental health professionals have used the term parental alienation for many years, but it was Dr. Richard Gardner who brought the term to public attention and proposed that it be considered a syndrome. In his book, The Parental Alienation Syndrome, Gardner defines parental alienation as "a relationship disturbance in which the children are not merely systematically and consciously brainwashed, but are also subconsciously and unconsciously programmed by one parent against the other."84 Gardner claimed further that this syndrome occurs to some degree in 90% of custody conflicts.85
This statistic, in particular, has resulted in a great deal of debate in the legal and mental health communities. Few question that parents may attempt to alienate their children from the other parent, but many professionals doubt that it occurs as aften as Gardner suggests. Other critics believe that Gardner's work is being used to argue that any child who wishes to sever a relationship with a non-residential parent, or at least reduce contact time, must have been alienated deliberately by the custodial parent. These critics argue that there may be other valid explanations for the estrangement of a child from a parent that could be obscured by misapplying Gardner's theories.
As Peter Jaffe and Robert Geffner caution, professional recognition of a `parental alienation syndrome' could prevent the evaluation of each case on its own merits, obscuring the real problem between a parent and child, possibly to the detriment of the child.86 This is particularly worrisome in the light of research demonstrating that.
Many judges, police officers, social workers and mental health professionals who do not have much specific training in the area of domestic violence and child maltreatment are more likely than those with such training to believe that many false allegations of sexual abuse are made in divorce cases.87
If a child discloses abuse by the non-residential parent, the parent who acts on this information risks being seen as raising the allegation in an attempt to alienate the child from the other parent. Jaffe and Geffner point out that Richard Gardner raised this same caution himself:
Even Gardner (1996), who coined the term parental alienation syndrome, has raised concerns about the abuse of this diagnosis and the danger of professionals being premature in their assessment and custody plans.88
There is a link between the issues of false allegations of abuse and parental alienation. Some argue that false allegations against a non-residential parent indicate that the other parent is engaging in parental alienation. The incidence of false allegations made willfully in the context of custody and access conflicts is widely disputed. Many witnesses testified that it was a common occurrence. The social science literature largely fails to support that contention. Thoennes and Tjaden investigated 9,000 divorce cases and found that less than 2% involved allegations of abuse. Interestingly, this study also showed that of these allegations, 48% were brought by mothers against fathers, 30% were brought by fathers against mothers and their new partners, and 22% were brought by third parties against mothers or fathers.89
Witnesses argued that false allegations of abuse are a symptom of high-conflict divorces, but it is not clear from the literature that such allegations are made more frequently in the context of custody and access disputes than at other times. Jon Conte wrote in 1992: "As of the writing of this article, I am not aware of a single empirical study that has documented that in fact false cases of sexual abuse are more likely to arise in divorce/custody cases."90
As a result of criticism of his research and the possible over-application of parental alienation syndrome in the United States, Dr. Gardner published an Addendum to his book in 1996.
I have seen reports of mental health professionals dealing with mild and moderate cases of PAS as if they were severe, injudiciously and erroneously, then transferring custody to the father, and even putting the mother in jail whose levels of indoctrination are minimal and might even be reversed once they had the reassurance that they would remain the primary custodial parent. I have seen cases in which the courts and mental health professionals have assessed PAS on the basis of the mother's indoctrination, and not the degree to which the programming process has been successful in the child. In such cases the children may have exhibited only mild PAS manifestations, but the mother was treated as if the children were in the severe category and therefore deprived of custody.91
In addition to the personal stories of fathers, the Committee heard testimony from two Canadian researchers on the subject of parental alienation. Professor Glenn Cartwright of McGill University argued that Dr. Gardner's statistics provide an accurate picture of what happens in many divorced families.
Parental alienation syndrome is extremely serious, and I'm using very strong language here. It's nothing less that the symbolic killing of the non-custodial parent in the life of the child. It not only kills the non-custodial parent; it kills the grandparents and the aunts, the uncles, the friends and so on. One half of the child's family disappears from view and the child is not able to grieve that loss. (Glenn Cartwright, McGill University, Meeting #16, Montréal)
Pamela Stuart-Mills, of the Parental Alienation Information Network, referred to children who are alienated from a parent as "children of the lie", because they are prevented from understanding the real reason for the excluded parent's absence from their lives. Ms. Stuart-Mills also pointed out that parental alienation does not happen only to fathers.
I would also remind you that everything you hear from the men's groups applies to women too, except that the women are too ashamed of the rejection and the separation from their children that many of them are afraid to come forward because of the social stigma attached. We have such an apple pie picture of motherhood that many women have failed to come forward and have failed to contest their rights before the courts simply because of the social stigma. (Pamela Stuart-Mills, Parental Alienation Information Network, Meeting #16, Montréal)
Members of this Committee took the evidence about parental alienation very seriously but are also conscious of concerns about the preliminary state of research on this problem. The main recommendations advanced by witnesses would encourage more research, more education about the dangers of parental behaviour that could cause alienation, and training for professionals working with separating and divorced families.
Recommendation
44. This Committee recommends that the federal government work with the provinces and territories to encourage child welfare agencies to track investigations of allegations of abuse made in the context of parenting disputes, in order to provide a statistical basis for a better understanding of this problem.