A Case Study Analysis from Canada and the UK About The Dangers of Parental Alienation

A Case Study Analysis from Canada and the UK About The Dangers of Parental Alienation Presented by: Dr. Chapman Date: 22 November 2022 CASE STUDY – OM V SK, 2020 ONSC 3816 (ONSCJ) (JUNE 19, 2020) - Trigger warning for child sexual abuse and IPV - 2020 case out of Ottawa (Covid-19) - easy to criticize Madame Justice Bell - Couple - OM (father) and SK (mother) at the time of this case the daughter was 4½ years old named AM - Minutes of settlement (MOS) signed joint custody and equal parenting time signed May 2020 - High-conflict case, SK alleged physical, psychological and emotional abuse/coercive control against her, and physical and sexual abuse against their daughter AM - In June 2020, SK sought primary custody pending investigation CAS and the Ottawa police. - Instead of granting SK temporary custody - temporary custody was given to the father OM - Father signed the MOS on May 8, 2020, he was giving the daughter a bath on May 10, 2020 and SK said she was witness to sexual assault of her daughter by the father - When she confronted him she said he panicked, "pushed me to the wall and later he threaten [sic] to kill me. The next night he broke into my room at night with a knife and reminded me I have to finalize the documents (MOS) and leave." - She signed the MOS on May 13, 2020 agreeing to shared custody - SK said that her estranged husband "threatened to kill me with a chef knife left a scar on me, wanted to sign, pack, leave if I value my life and my daughter's safety if he doesn't get what he wants." - Without much explanation, the judge in this case found that "I do not believe SK; her claim is simply not credible. Her behaviour in the days following May 10, including signing minutes of settlement that provide for equal parenting time, is wholly inconsistent with her allegation that OM sexually abused AM on May 10." - No recognition of trauma of the party making the allegation - "Only reasonable inference to be drawn from this evidence is that SK's counsel did not raise the allegation of sexual abuse because the incident did not occur." - "Nothing more than a bald allegation and is not supported by the evidence in the record." - Two completely different accounts, no cross-examination on the affidavits and limited third party evidence with no expert evidence - Justice Bell concluded that findings of credibility at this early stage in litigation upon limited information "required" her to making findings of credibility. From this, the conclusion made is that "I do not find SK's evidence to be credible or reliable. I make this finding based on the internal inconsistencies in SK's evidence." - Criticized for turning the child over to her father after the incident - "Simply impossible to reconcile SK's behavior particularly leaving the child alone with OM after the alleged incident said to have occurred." - The February affidavits the mother did not mention financial abuse or that he punched her, but now she alleges that, "when I asked for a joint account, he would slap or punch me, claiming that he was the man of the house and owned everything, including me." - Justice Bell notes that "OM denies each and every allegation against him, and that he has "no internal inconsistencies in his evidence. His evidence is detailed and his explanations are reasonable. I find his evidence to be credible and reliable and I accept his version of events." - Child abuse • SK has five tapes of the child stating that "daddy... used his penis to pee on my body" and talks about a "penis dance." • Because of the lack of "real concern conveyed by SK in response" the recordings are deemed rehearsed and unreliable especially since the child answered "no" to the question about if her father had touched her. What these recordings are used for is as evidence of the mother engaging in 'alienating14 strategies." - Ontario Superior Court case of Hazelton υ Forchuk, 2017 ONSC 2282, the court finds that an allegation of parental alienation must be dealt with swiftly and at the pre-trial stage • i. there was a prior positive relationship with the targeted parent; • ii. there is an absence of abuse by the targeted parent; - • iii. the alienating parent uses many of the alienating strategies; and • iv. the child exhibits most of the alienated child behaviors. Despite a finding of all of these "alienating strategies" under the third arm of the test, the court then examines whether the child exhibits "alienated child behaviors" the court concludes that the child is not exhibiting these behaviors (4th arm of the test) - However, the court finds that SK is on a "campaign to deprive the child from having a relationship and thus "parental alienation by SK has been established." Because of this finding the court concludes that: • "SK's behavior evidences a disregard for the importance of AM maintaining a healthy relationship with both of her parents. SK has falsely accused OM of physically and sexually abusing their daughter. She has unilaterally withheld AM from her father. She has refused to adhere to the minutes of settlement from the moment she signed them. I am satisfied that it is in AM's best interests that OM have sole custody and primary parenting of AM on an interim basis, with access to SK. In my view, this order is necessary in the short term to limit SK's access to AM, to stop SK from pursuing her campaign to deprive AM of her relationship with her father, and to permit AM and her father to rebuild their bond." - August 10, 2020, Justice Bell also ordered full costs of OM in the amount of $40,000 payable by SK because of the bad faith that she engaged in during the course of this matter. When SK said that the $40,000 was beyond her means and would only be payable on a monthly payment plan because of her limited work hours "given the history of family violence" Justice Bell reiterated that "no such finding has been made by this court" and that SK should use the equalization settlement amount from her spousal support payment to pay the costs within 30 days in addition to the $1,250 in costs for the costs motion. - SK was again criticized for her unorganized 22-page affidavit and voluminous materials which she had prepared as a self-represented litigant. - SK alleged that she was unable to afford a parenting coordinator and a collaborative counsellor in addition to her own therapist, and the collaborative counsellor said that he was not able to continue working with the couple until the legal affairs had been rectified. - found that SK's housing situation was "unstable" at this time, and her returning the child when she was experiencing COVID symptoms was a "prime example of her inability to put [the child's] needs first." - The court found that this was not a situation for co-parenting "at least on a temporary basis" and found that temporary custody was to be awarded to OM while allowing SK an overnight visit on her weekends and two evenings during the week. - Example of what can happen to a mother who alleges domestic violence, and is unable to present to the court as a credible witness - The child suffers? CASE STUDY – OM V SK, 2020 ONSC 3816 (ONSCJ) (JUNE 19, 2020) - SK "badmouthed" OM in front of the child saying things like "I don't like the way daddy is behaving, he is not being nice to me" and "daddy is being mean to me;" - SK withheld and limited FaceTime contact between the child and OM; - SK interfered with FaceTime contact when it did occur; - SK was unconcerned for the parenting time that OM lost with his daughter; - SK created the impression with the child that OM is dangerous, she is afraid, and she called the police with the child present; - SK "over-involved" the child in adult litigation matters (the audio evidence being proof); - SK "fabricated allegations of physical and sexual abuse," her claims of abuse to her child are not to be believed, and the audio recordings are suspicious. Given her execution of the minutes of settlement, "the only possible explanation is that SK has fabricated these allegations;" - SK withheld information that the child was enrolled in extracurricular activities and has unilaterally made medical appointments; and - SK has "cultivated dependency on herself" by sharing a bed with her daughter since separation. - No expert to define and make a finding of parental alienation - Not really recent case law (2017) - Judicial notice of parental alienation? - Disconnect between the research on IPV, child abuse and parental alienation and this case? - SK was denied an adjournment and had to be self- represented at a key moment in the litigation CASE STUDY – UK CASE - CULTS - RE S (PARENTAL ALIENATION: CULT) - Re S (Parental Alienation: Cult), [2020] EWCA Civ 568 (Appeal to Royal Courts of Justice, April 29, 2020) [Re S (Parental Alienation: Cult)]. - Contrast to the Canadian case the court tried to pursue every avenue before changing custody is seen in the Court of Appeal (Civil Division) from the Central Family Court in the United Kingdom at the end of April 2020. - The appeal courts grappled with the judgement from a lower family court that did not reverse the custody from the mother to the father after a finding of parental alienation inflicted by the mother on her nine-year-old daughter. - The mother was an active member of a cult out of Australia called "Universal Medicine" (UM) founded by the charismatic leader named Serge Benhayon (thinks his daughter is Winston Churchill reincarnated) - Justice Meston both parents were "devoted" to their daughter "Lara," their shared parenting was not occurring successfully within the confines of Universal Medicine and the required restrictive diet (including the diet of the child) and the adherence to UM's distinct belief system. - Father complained to local authorities since Lara was three-years-old and exhibited fatigue from restricted diet and the "influence of a 'healer/cult' upon the mother's idea of parenting and thinking" but these were found by a social worker not to "amount to a safeguarding concern." - Lara herself began to state principles of the cult including saying to her father that, "you're not love Daddy, Serge is love. You don't know anything daddy and Serge knows everything They won't reincarnate because they're eating gluten." Re S (Parental Alienation: Cult). Re S (Parental Alienation: Cult), supra note X at para 20. - The father instead believes that the Universal Medicine is a "form of brainwashing" - Appeal court also noted that the "manipulation of the child by the other parent need not be malicious or even deliberate. It is the process that matters, not the motive." - Mother had made complaints about abuse in the past after Lara's GP treated the girl for vaginitis and the mother blamed this condition on "co- sleeping" with her father - Independent social worker found that Lara was "at risk of becoming alienated" from her father - Mother made allegations of coercive control against the father including using the child to control her • Mother's lawyer said that the coercive control legislation was there to deal with "these cunning abusers" - The trial judge found that that there was no coercive controlling behavior - Court found that "Lara's exposure to Universal Medicine is harmful and if her mother remains involved with Universal Medicine or their practices, Lara is at risk of further harm." - Finding in Australia that UM is a cult "with some potentially harmful and sinister elements." - "I reject the criticisms of the father's motives and conduct. He is a good parent. I also find that, apart from the influences of Universal Medicine, the mother too is in all other respects a good parent." - BUT trial court kept the status quo of shared parenting - Court of appeal mother again alleges coercive control and cites the co-sleeping as causing the medical condition in her daughter, but no specific allegation of abuse - Court of appeal found that it was unacceptable to keep making allegations of some sort of vague sexual risk with the father - Mother and her counsel, "has continued to trail her coat on this point, with clear insinuations in counsel's submissions that something improper may have been going on. We agree that this submission is an unjustified slur that should never have appeared in professionally drafted documents." - UM is a cult - Is a risk of alienation - trial court took no firm steps to stop the alienation, relationship already damaged, mother had no intention to act on the recommendations of the social worker - No strategy for stopping the alienation - Unless "decisive counter-measures are taken the influence of the belief system and the distancing of Lara from her father are likely to become entrenched as she grows older." - BUT let's postpone the decision one last chance of mother to make changes - Next decision July 2020, mother self-represented - Social worker meeting with mother, AGAIN she raised allegations of sexual inappropriateness, social worker conclude that mother not going to change - Mother unwilling to say that she had exposed her child to a cult and caused harm to her family - Mother SAID she was no longer with UM, court not accept she had made a permanent break with the cult (saying the right things) - Court NOT accept allegations of coercive control - need the most extreme solution - Father is a "kind and sensitive parent" = REVERSAL of custody with a period of noncontact with her mother - Police had to find the child at her mother's house that day and the judge refused to reconsider but reinforced that the mother was to have no contact DIFFERENCES SIMILARITIES CASES? - One seemed to act quickly - One seemed to give every possible chance - Both the mother lost custody - Both problem with counsel - Child the last considered in both cases?