• by Ainsley Doell
Originally published in the OFLM 2023-11 edition
In the recently released decision Y.H.P. v. J.N. (2023 ONSC 5766), Justice Kraft significantly varies a final parenting order to respond to a mother’s “campaign of alienation” against a father. This article will discuss the drastic and rare outcome of this case as a thoughtful addition to the case law on parental alienation.
The October 2023 edition of the OFLM discussed reunification therapy as a remedy for parental alienation by looking at C.B. v. E.G. (2023 ONSC 1571). In that case, Justice Bale found that it was not in the best interests of a mature minor to be ordered to attend reunification therapy aimed at mending her relationship with her father. It was noted that such orders ought to be rare.
On October 16, 2023, one of these ‘rare’ orders was made by Justice Kraft in Y.H.P. v. J.N. (2023 ONSC 5766). Not only was an intensive reunification therapy program ordered, but the primary residence of the child was reversed, and a 120-day black out period was instituted, preventing contact between a mother and her 12-year-old daughter, “S.”
While this result may seem drastic, Justice Kraft’s thorough and thoughtful decision responds to an extreme “campaign of alienation”. She also sets out the urgent intervention that is needed to remove the child from long-term harm.
The decision in Y.H.P. v. J.N. acts as a counterbalance to C.B. v. E.G., providing an example of the circumstances in which such an invasive order may in fact be in a child’s best interests.
Y.H.P. v. J.N. was a motion to change proceeding, within which the applicant father brought a motion seeking temporary variation of a final parenting order.
The final order, made on consent in 2017, provided for joint custody (now, decision-making responsibility). However, at the time of the motion to change, the father had not had any in-person parenting time with S. since the beginning of the Covid pandemic. He had agreed to this arrangement on a temporary basis to protect his daughter’s health, as he continued to work in-person at his dental practice.
When the father began requesting in person parenting at the beginning of 2022 as Covid restrictions were being lifted, the mother refused. When he began his motion to change, the mother began making various allegations that the father had abused S. Some of these allegations had been raised before the final parenting order was made in 2017, but they had been investigated and not verified. Regardless, her position on the motion was that S. did not want to see her father, and that she was mature enough to make this decision herself.
On the basis that the mother was engaging in parental alienation, the father sought a variation for S. to have primary residence with him and for a 120-day black out period during which he and his daughter would attend Building Family Bridges: a four-day intensive program designed to address fractured parent-child relationships.
Justice Kraft set out three issues that needed to be decided in dealing with the motion:
In what circumstances can a Court make a temporary variation of a final parenting order?
Do the facts of the case meet the more stringent test applicable when a parent seeks a temporary variation of a final parenting order, such that the circumstances are so compelling and of an exceptional nature that they require an immediate change?
If the answer to b. is yes, it is in S.’s best interests for her primary care to be changed to the primary care of her father, with an order that the mother have no contact with her for at least 120 days to address the parental alienation experienced by S (at para. 6).
Ultimately, the father was successful. Justice Kraft found that the facts were so compelling and exceptional in nature, and the alienation was so severe, that not making the temporary order sought by the father would cause S. emotional harm (at para. 7). There was significant evidence contradicting the mother’s accounting of events and suggesting that the daughter’s perception of reality was being manipulated. The matter’s litigation history was also reviewed, revealing that the mother has a history of non-compliance with orders and interfering with the father’s parenting time.
This article will be focusing on Justice Kraft’s analysis of issues b. and c.
Circumstances of a compelling and exceptional nature
The test to be met for varying a final parenting order is:
There must be a material change in circumstances since the last order was made…
If a material change in circumstances has been established, the court then embarks on a fresh inquiry into the best interests of the child (Y.H.P. v. J.N. at para 22, citing F.K. v. A.K., 2020 ONSC 3726 at paras. 48-58).
If the change sought is temporary in nature, the test is even more “stringent,” requiring the circumstances to be so compelling and exceptional in nature that an immediate change is required in order to respond to a “situation of actual or potential harm, danger, or prejudice for the child; of such nature or magnitude that immediate rectification or correction are required to safeguard the child’s best interests”? (F.K. v. A.K., 2020 ONSC 3726 at para. 52).
These “exceptional circumstances” may extend beyond risks to the child’s physical and emotional well-being, but ought to be rare (Y.H.P. v. J.N. at para. 23, citing S.H. v. D.K., 2022 ONSC 1203 at para. 40).
YHP provides a comprehensive overview of the above test and the different factors at play, such as the “gravitational pull” of the parenting status quo and evidentiary issues arising from untested affidavit material.
Justice Kraft finds that this heavy onus is met in this case on the basis of the following material changes:
it was not contemplated, at the time of the final order, that a pandemic would occur and interfere with the parenting plan;
it was not foreseeable that S. would refuse to spend time with her father, given the loving and affectionate relationship that they shared at the time the order was made; and
it was not contemplated that the mother would exclude the father from decision-making (for example, unilaterally terminating S.’s therapy).
The urgency of the matter came from Justice Kraft’s finding of parental alienation, and that if change was not made now, S. would likely lose her ability to have a meaningful relationship with her father.
This finding of alienation is supported by a host of alienating behaviours on the part of the mother and alienated behaviours exhibited by S.
The list of the mother’s ‘alienating behaviours’ was lengthy, and included:
insisting that S. ought to be able to make her own decisions regarding contact with her father and refusing to facilitate parenting time or comply with orders on that basis;
a lack of concern about the severe deterioration of S.’s once-close relationship with her father. The mother maintains that the father abandoned S., despite clear evidence to the contrary;
actively encouraging her daughter to report abuse that had not been verified in the past. When investigations were closed, she would bring the same complaints to different child protection organizations. She has done this to such an extent that S. now believes that she was abused. Particularly disturbing was Justice Kraft’s note that the mother’s encouragement of abuse allegations led to S. undergoing multiple invasive medical examinations. These allegations were often made immediately prior to the father’s scheduled parenting time and cited as an excuse to withhold S.;
isolating S. by keeping her from in-person learning with limited opportunities for socialization, which was in part due to the mother’s paranoia surrounding S.’s allergies. The precautions she took were unsupported by the evidence of her daughter’s medical professionals;
unilaterally terminating S.’s therapy when her therapist seemed encouraging of the resumption of in-person parenting time with her father; and
sabotaging reunification therapy and portraying the father as a dangerous individual in front of S.
S.’s notable ‘alienated behaviours’ included:
a one-sided view of her parents where her father has been vilified;
rude, aggressive, hostile behaviour toward her father without feelings of guilt;
the false belief that she was abused by her father, resulting from her mother’s manipulation;
her allegations of abuse revealed a “manipulated perception of reality”: her recounting of ‘abusive’ events was at times contradicted by evidence; and
her interviews with Children’s Aid workers and therapists appeared “artificial” and “coached”. She was unable to recall the context of her allegations. The reunification therapist reported that during a meeting, S. read her complaints about her father directly off of a paper, but could not recall what was written there once that paper was taken away.
Justice Kraft noted that the case law recognizes four possible orders once a finding of parental alienation has been made, per the guidance of expert Dr. Fidler:
Do nothing and leave the child with the alienating parent;
Do a custody reversal by placing the child with the rejected parent;
Leave the child with the favoured parent and provide therapy; or
Provide a transitional placement where the child is placed with a neutral party and therapy is provided so that eventually the child can be placed with the rejected parent.
While reunification therapy was part of the order made, in this case, that was not sufficient to undo the risk harm faced by S.
It was noted that in this case, the mother had demonstrated that she was not going to comply with orders and had already sabotaged reunification therapy while S. remained in her care.
Justice Kraft looked at case law where a change in “custody” was granted and case law where it was declined. Through this careful consideration of the case law, Justice Kraft notes that the court has found parental alienation to rise to the level of emotional abuse. In one such case, the mother would not help “rectify” the situation and instead used the police to “thwart the father’s access” – facts which are more than a little similar to those at hand. The mother was granted no access outside of that necessary to attend counselling (at para. 51).
Justice Kraft suggests that this interference with the father and daughter’s relationship post-separation may constitute “family violence”, and that the impact of this violence ought to be considered in assessing the mother’s ability to meet S.’s needs. She also finds it appropriate to consider the mother’s past conduct, as it is directly relevant to this assessment (at paras. 55-61).
The court had the benefit of the clinical analysis of a reunification therapist, who stated that the mother “appears to dismiss information provided by professionals that do not verify her fears of physical, sexual, and emotional abuse” (at para. 29 j.). The impact that this behaviour had on S. calls into question the mother’s ability to act in her daughter’s best interests.
In this context, it appears clear that S. was not thriving in her mother’s care and that the court could not be content doing nothing.
The role of the views of the child in cases of parental alienation
As part of the proceedings, the mother brought a cross-motion seeking an updated section 112 assessment and/or a Voice of the Child Report. This was not the first time that the mother raised this issue. Earlier this year, Justice Akazaki presided over a contempt motion brought against the mother for failing to comply with the parenting terms that were in place at that time.
In response to the mother’s cross-motion, Justice Akazaki stated that “there is no place for a child advocate if the purpose of the referral is to help the child continue an unhealthy course of behaviour” (at para. 19).
As was discussed in OFLM 2023-10., the views of a child and their “claims to autonomy”, especially as they get older, may be at odds with the court’s duty to “act protectively” (C.B. v. E.G. at para. 22; discussing A.M. v. C.H).
In C.B. v. E.G., the views and preferences of the child carried considerable weight: She was ‘mature minor,’ and while it was clear that the parent-child relationship had been fractured, there was no finding of parental alienation made (despite the fact that neither parent was ‘blameless’).
The facts of Y.H.P. v. J.N. are different: S. is considerably younger, and there was a clear finding of parental alienation made.
Both the Divorce Act and the Children’s Law Reform Act call for a child’s views and preferences to be taken into account in determining their best interests, in accordance with their age and maturity. However, the fact that S. clearly expressed that she did not want to see her father was not decisive here because it was clear that S.’s views and preferences were not her own, but rather were a product of the manipulative actions of her mother.
Perhaps the most impressive part of the decision in this case is the level of attention to detail in the order that was made by Justice Kraft.
The shortest terms are those that place S. in her father’s primary care and grant him sole decision-making.
There are many additional terms providing specifics for therapies (including requiring therapy for the father and mother individually) and enforceability.
Given the mother’s history of disregarding court orders, it is clear that attention was paid to introducing terms that would encourage compliance. The order provides that if the mother breaches the 120-day no-contact order, the 120-day period restarts. Further, it provides that the court will not revisit the parenting arrangements until the mother “engages and meaningfully participates in therapy to gain insight in her alienating behaviour”.
Not without any leniency, the order also provides for flexibility so that the father can arrange parenting time for S. and her mother before the black out period has elapsed if it is determined, in consultation with S.’s care providers, that doing so is in her best interests.
As seen in C.B. v. E.G., the fact that a parent-child relationship has been fractured is not the only factor at play in deciding whether to order reunification therapy.
In analyzing S.’s best interests, Justice Kraft focused on the mother’s ability to meet her needs, rather than on the state of S.’s relationship with her father. The impact that her behaviours had on the parent-child relationship was just one element; also significant was the impact that her behaviours had on S herself— for instance, the repeated exposure to invasive medical examinations for the purpose of thwarting court-ordered parenting time. Justice Kraft noted the long-term detrimental impact of being exposed to the mother’s “destructive” parenting (at para. 66).
This case makes it clear that reunification therapy is just one piece of the puzzle in addressing parental alienation: these orders are useless if they are not enforceable. In C.B. v. E.G, Justice Bale made this point with respect to a mature minor’s willingness to cooperate. In Y.H.P. v. J.N., this point is made again, but this time with respect to the parents’ willingness to facilitate the process.
Litigants and litigators alike would do well to consider the feasibility of these orders in their particular cases, and whether there are any additional provisions necessary to facilitate them. They would also do well to remember that these orders are intended to be reserved for rare circumstances and made “sparingly” (Testani v. Haughton, 2016 ONSC 5827).
It is clear that there is no easy decision to make in circumstances such as these. As Justice Kraft highlights, there is no question that the order that was made will be extremely difficult for mother and daughter in the short-term. However, the courts adopt a protective role over vulnerable individuals such as children. Not allowing a variation of the parenting order would have run contrary to this responsibility: the short-term difficulties faced by the daughter pale in comparison to the long-term harm that she was facing.
A decision of this magnitude is not made lightly, and it is clear that Justice Kraft took care in crafting a judgement with enough caveats that it would be enforceable and workable. It was firm given the mother’s history of disregarding orders, but left room for the mother to be incorporated back into S.’s parenting under the right circumstances.