Parental alienation can occur when a parent negatively influences their child’s relationship with their other parent. The impact on the parent-child relationship can result in the unjustified rejection of the parent, further damaging the relationship. Courts recognize that maintaining a relationship with both parents is often in a child’s best interests. Therefore, parental alienation can harm children by limiting their growth and negatively impacting future opportunities for fostering meaningful relationships. Parents who participate in alienating behaviour may be found to be acting in bad faith, which can have significant costs consequences.
The term “parental alienation” describes different types of control and manipulation by one parent to strain or “alienate” the other parent from the child. With parental alienation becoming a more common issue in Canadian family law disputes, courts have taken a stronger approach to dealing with these occurrences.
Attempts have been made by the courts to heal the strained relationship, for example, by amending parenting schedules to give the “alienated” parent more parenting time (access) with the alienated children. However, these efforts alone have not always been found to adequately deter this detrimental and abusive behaviour. For these reasons, courts across the country are now sanctioning parents who are found to have alienated their children from the other parent. A common sanction ordered by the courts includes significant costs awards.
In the case of S. v. A., the Ontario Superior Court of Justice reversed the parties’ parenting schedule, resulting in the alienated father being granted primary care of his two children. In this case, the Court also had to determine the amount of costs that the alienated father could recover.
The Court found that the mother acted in bad faith by intentionally acting to harm their sons’ “affection, sense of safety and self while with their father,” which caused both children to suffer substantial emotional harm. This was a “win at all costs” approach where the father was not just to be “removed as a competitor for the children’s time and affection, he was to be expunged from the family.” The mother participated in processes to create a post-separation parenting relationship. However, she used family therapists for her own litigation purposes and worked intending to sabotage her sons’ relationship with their father. There were several examples of bad faith engagement by the mother, including:
- Breaching court orders;
- False allegations of abuse to child protection agencies; and
- Frightening the children so they would resist contact with their father.
This case involved a lengthy trial, and the parties incurred significant legal costs. Following a finding of parental alienation, it was clear to the Court that the father was entitled to a costs award as his total costs amounted to $886,389. Yet, the mother suggested that she was of limited means and should not be ordered to pay more than $50,000.
After evaluating the father’s offer to settle, the judge noted that these settlement offers were child-centred and reasonable in the circumstances. Ultimately, he succeeded at trial and obtained parenting terms that were much more favourable than those in his offers made throughout the litigation. While both parties were cautioned that their litigation conduct would come with consequences, the mother’s actions showed a pattern of unreasonable behaviour.
Justice McGee explained that further analysis was needed beyond simply assessing the parties’ success at trial. Instead, the Court stressed that:
“… in parenting decisions, success alone is not a sufficient basis for an award of costs because the measure of success belongs to the child. It is the child’s success that is the object of the proceeding.”
Justice McGee also added that a “successful litigant is a parent who respects a child’s ongoing attachment to his or her other parent while uncoupling from that parent as a former partner.” Here, the father did not just succeed in obtaining a result better than his settlement offer. He was also the parent who was willing to promote his sons’ needs. After all factors were considered, the Court awarded the father over $675,000 in costs.
In Ontario, the Family Law Rules state that when a party has acted in bad faith, the court shall order costs on a full recovery basis. Bad faith has been described by the Ontario Superior Court of Justice as “not simply bad judgment or negligence but rather it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity.”
In the case of S.(C.) v. S.(M.), the Court stated that a finding of bad faith under the Rules requires the behaviour to be carried out with the intent to inflict financial or emotional harm on the other party or to deceive the other party or the court. Importantly, the intent to inflict harm does not have to have been the person’s sole intent but only a significant part of the person’s intent. Therefore, conduct by a parent that is intended to alienate a child from the other parent amounts to a finding of bad faith. In S.(C.) v. S.(M.), the Court found that the father’s efforts to alienate the children from the mother were done in bad faith as his actions were intended to harm the parent-child bond and ultimately caused the children to suffer from emotional harm.
As set out in the case of Mattina v. Mattina, costs awards have four essential purposes, namely:
- To partially indemnify successful litigants;
- To encourage settlement;
- To discourage and sanction inappropriate behaviour by litigants; and
- To ensure that cases are dealt with justly.
However, case law shows that an award of costs is discretionary. Generally, courts will consider the principles of proportionality and reasonableness before awarding costs, as there is a high threshold to meet for a finding of bad faith.
A parent’s attempts to alienate their children from the other parent constitute bad faith by harming existing parent-child relationships. Those actions may be part of a “win at all costs” approach that is obstructive and can result in substantial costs sanctioned by the courts. Therefore, courts remind parties that the object of parenting proceedings is to ensure stability and success for the child, so parents will be responsible for the consequences of their actions. Courts have repeatedly explained that this behaviour is harmful and will not go unsanctioned.
The Family Lawyers at Bortolussi Family Law in Vaughan Provide Trusted Advice on Parenting Disputes and Parenting Plans
The experienced divorce and separation lawyers at Bortolussi Family Law have over 120 years of combined experience assisting clients with various parenting disputes, including parenting time and access issues. Our compassionate lawyers work to find the best solution tailored to each client’s unique family circumstances. We help clients ensure they are in the best position to move forward post-separation while keeping their child’s best interests in mind.
From our office in Woodbridge, our family lawyers work with clients across the Greater Toronto Area and guide clients through the complex issues associated with divorce and separation, including parenting time and parental decision-making. If you have questions, please contact us online or by phone at 416-987-3300.