QUESTIONS FOR LEGAL COUNCIL By Brian Ludmer
These are suggested questions for targeted parents to ask of potential attorneys for their case. Regarding questions for attorneys who may be dealing with child protection authorities, I would suggest that there is a tremendous overlap and that there is a role to play with child protective services in each one of these cases. Further, since false allegations of abuse are rampant in these cases, it is almost inevitable that one will be dealing with child protective services in the course of a case. Therefore, having knowledge of those matters is extremely important.
With respect to possible GAL Counsel or Minors Counsel for the child, to the extent that a targeted parent has any input into this process, it would generally be through, and with the assistance of, their lead attorney. Therefore, this would involve a subset of questions to be posed to the potential lead attorney for the case.
STRATEGIC APPROACH TO THE CASE
HOW CAN COUNSEL OTHERWISE ASSIST
QUESTIONS TO ASK THE EXPERTS
By: Karen Goodall
Here are some questions designed to ask the experts. These are questions to ask anyone who tells you that they work with Parental Alienation.
Speaker's Corner: Children hurt in divorce processMonday, 12 September 2016 09:00 | Written By Brian Ludmer | |
In litigation where custody or access to children is contested, courts are directed to canvass the views of the affected children, at least to the extent that the views can be ascertained. There are various means by which the voice of the child can be solicited. Each way has its relative advantages and disadvantages, but there are good reasons to proceed cautiously in this regard.
The process of asking children their opinions creates the risk of triangulating the child further into an inter-parental dispute, and it can potentially create or contribute to an alliance of one parent and child against the other parent or against other children.
Many studies and publications, including a study of 1,000 families published by the Family Law Section of the American Bar Association, suggest that parental lobbying and manipulation of children in custody disputes is a very common occurrence.
Canadian provinces, through their legislation and jurisprudence and procedural practices, have recognized many ways of enabling the voice of the child to be taken into account by the courts.
This can include a judicial interview, a custody/access forensic assessment, indirect testimony through a children’s therapist, parents or others or through counsel for the child.
However, in my opinion, the potentially most damaging option of all the methods is appointing counsel for a child.
Since the Strobridge decision of the Ontario Court of Appeal in 1994, it is clear that the role of counsel for a child is to be an advocate and not a guardian acting in the child’s best interests. This creates a difficult dynamic where children are elevated almost to the position of parties in their parents’ litigation, often becoming overempowered and triangulated into their parents’ disputes, with the result that the child’s relationship with one parent is damaged.
It is generally understood that counsel for a child cannot advance evidence based on his or her own interviews of the child. Further, because of the advocate role, the file of children’s counsel is not available to be reviewed by the parents. Interviewing skills and practices of children’s lawyers can, therefore, not be tested. Developing understanding of neuroscience suggests a substantial concern about the suggestibility of children, resulting from the parents’ actions or even by the very existence of counsel representing them in their parents’ dispute.
Through the appointment of counsel, a process meant to support a balanced inquiry into children’s needs and the ability and willingness of parents to meet those needs often gets diverted. Instead, it turns into a focus on the child’s wants, as opposed to the child’s needs.
While a child’s counsel may sometimes be assisted by the allocation of a social worker from a panel of eligible referrals, there is no ability to interview the practitioner for experience, potential biases and their approaches to the services to be provided. The file of the social worker assist is generally not provided prior to the children’s lawyer taking a trial position in the case and often only in the couple of weeks leading up to the trial itself. Disclosure from various third-party sources is often only provided to the assisting clinician and not to the parties themselves until close to trial.
While there are numerous published standards and expert texts (such as from psychiatry, psychology and social work regulators and organizations such as AFCC) about how to conduct forensic child custody/access assessments, there are no such standards generally practiced and consistently applied for the children’s counsel role.
In many situations, parents are told either by children’s counsel or by the clinical assist that records, documents and other materials they provide will not be read and that a list of collateral sources to be contacted for interviews will not be used or used only in part.
The experience of many parents in dealing with counsel for their own children who may be taking either an unknown position or position adverse in interest to them is generally quite upsetting and unfavourable.
These parents tell me they don’t feel heard by this process.
In cases where children are showing unhealthy levels of alignment or enmeshment with one parent or rejection of the other parent, the practice of vetting the independence of children’s views and preferences is again without consistent standards and training. Children’s counsel may not have a robust and up-to-date understanding of the extent of children’s suggestibility and risk of manipulation in the course of a contested custody dispute. It is incumbent upon children’s counsel to express to the court whether, in their view, the children’s statements are reliable. However, practices in this regard lack consistency.
In the more extreme cases of family dysfunction, issues arise as to whether counsel can actually assess whether the child has sufficient capacity to instruct counsel on issues involving the child’s parents. A child can be competent in many domains but not competent to give independent instructions to counsel on issues involving the parents’ litigation.
A child’s strong preference for one parent may actually be a function of an unhealthy enmeshment or parentification (role-reversal) relationship, rather than a healthy relationship. Psychologists and psychiatrists would generally be much more cognizant of this dynamic than an attorney might be.
The appointment of counsel for children and giving children a seat at the table of their own parents’ divorce triangulates them as opposed to insulating them from the effect of divorce. There are better methods to determine children’s needs and an understanding of their parents’ ability and willingness to meet those needs.
Brian Ludmer is a family law and business law practitioner in Toronto.
Contempt Law in a Nutshell - Court Procedures for Breaches of Court Orders: Part 1
By Brian Ludmer, B.Com., L.L.B., LudmerLaw, Toronto, Ontario, Canada Brian@ludmerlaw.com; 416-781-0334
A COMMON EXPERIENCE FOR PARENTS, and for professionals assisting them, is that of the alienating parent not complying with Court Orders for parenting time, joint decision-making and other matters.
There are practical and therapeutic/intervention responses that should be part of a thorough strategic plan. However, it is also typical and advisable to seek the assistance of the Court.
Most jurisdictions provide various enforcement mechanisms in their Rules of Civil Procedure. The most common is variously phrased as a “Motion for Compliance,” which seeks the assistance of the Court in enforcing existing Orders. (While this article is based on Canadian law, the laws of most other countries are similar.)
However, some Courts have, where this procedure is not fully articulated in the appropriate Rules of Civil Procedure, refused to make a further Order, stating that Courts should not “make an Order to comply with an existing Order” as it is redundant and adds nothing. Accordingly, it is important to ensure that additional remedies to support future compliance, and to deal with the asserted reasons for noncompliance, are sought in the proceeding.
Examples of additional remedies include:
- asking for a mandatory contribution to a registered educational savings plan (or other
vehicle to save for the children’s university expense) for each missed visit;
- asking for the withholding parent to deliver the children at each exchange (which forces
them to get the children in the car and out of the house);
- a police enforcement clause;
- additional positive and negative parenting covenants; as well as
- asking for full recovery costs for having to bring the Motion.
However, in many jurisdictions there are specific directives (either in the statute or jurisprudence) for a Contempt proceeding to be a remedy of the last resort. This is interpreted as a specific directive to bring a Compliance Motion first.
In appropriate circumstances, however, particularly where there has been a longstanding pattern of non-compliance with sequential Court Orders, Courts may accept that the time has come for a
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Contempt proceeding. Some well-known rhetoric from an Ontario, Canada, case, where a Contempt finding was made on a Motion and upheld by the Court of Appeal, reads as follows: “Child custody and access orders are not like a game of baseball, where it takes three strikes before you are ‘out.’ Courts must take a first firm step at the earliest sign of non-compliance to prevent future breaches of their orders.”
Contempt Proceedings Differ in Many Aspects
Essentially, the difference in the two procedures in most jurisdictions is that fines and penalties (as opposed to costs awards and payments for the children) can only be awarded on a Motion for Contempt. In most jurisdictions, such fines and penalties are not payable to the complaining parent, but rather must be paid to the government/state.
Further, the Contempt finding in most jurisdictions is considered a quasi-criminal finding, since the potential remedies include incarceration. As such, specialized procedures often apply and the standard of proof requires a finding of willful or reckless disregard for the Court Orders beyond a reasonable doubt (essentially a criminal law standard).
The procedural differences in a Contempt proceeding include the fact that the defendant is entitled to an oral hearing, as opposed to merely defending a Motion brought on Affidavit evidence. This creates scheduling difficulties and longer lead times and adds to cost.
It is possible, however, with a view to controlling cost and minimizing delays, for the Affidavit evidence supporting the Motion for Contempt to be accepted as the deponent’s evidence-in- chief, with the complaining party being cross-examined on their Affidavits. Similarly, the issue can be addressed by having a pre-motion examination for discovery on the Affidavits and then a proceeding using Affidavit evidence and those transcripts.
Because of the potential remedies in a Contempt proceeding, compliance with the applicable Rules of Civil Procedure is often strictly construed and much more rigorous. There is an enhanced level of clarity and specificity as to the alleged breaches (who, what, when, where, why) that must be contained in the Notice of the proceeding (although there is some case law stating that you can look to the combined presentation in the Notice of the proceeding and the supporting affidavits). Hearsay evidence, unless not challenged or not central to the issues, is generally prohibited. The Court Orders in question need to be specifically clear as to the actions necessary to comply, or to avoid breaching, though there is some jurisprudence that states that one must comply with the spirit and intent of a Court Order.
Therefore, in most circumstances, there is not much to be gained by pursuing a Contempt procedure as opposed to a Compliance Motion, unless previous Compliance Motions have proven to be futile.
Satisfying the Burden of Proof
In a Contempt proceeding, proof to a standard of beyond a reasonable doubt is often enhanced by third-party evidence and showing a persistent pattern of behavior, despite communications about the prior breaches. In Canada, it is not necessary to prove any intent to interfere with the administration of justice, but merely intent or recklessness regarding a known requirement of the Court Order. The proof required is not that the alleged contemnor knowingly chose to disobey a Court Order, but merely that the offending parent committed an intentional act or omission that itself involves a breach of the Order.
There is a difference between the complaining parent’s legal burden of proof, however, and the
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evidential burden of proof. Once the complaining parent has demonstrated a clear Court Order and an intentional act or omission (or reckless act or omission) that involves a non-compliance with that Order, the defendant must respond with evidence to demonstrate sufficient legal justification for the non-compliance in the circumstances. This is a shift of the “evidential burden,” not a shift in the burden of proof.
Defenses in such circumstances involve proving mitigating factors or having purged the Contempt and offering compensation, such as makeup time.
Older case law struggled with describing the expected exercise of parental authority and the expected effectiveness of a parent, when examining the asserted defenses of the defendant. In almost all cases the offending parent states that they were “encouraging” the child to attend for their parenting time with the other parent and had told the child that going to the other parent was acceptable to them, but that they “couldn’t get the child to go.” This rather facile defence was in some cases actually considered satisfactory.
More modern case law, however, is clear on the necessity to demonstrate good faith and effective parenting, as if the issue was the child’s refusal to go to school or refusal to go to a doctor. Parents must demonstrate compliance with parenting Orders by indicating what guidance, boundaries, incentives and consequences they are deploying in their parenting and how those have been escalated over time if the children nonetheless continue to refuse to obey their parental directives.
The jurisprudence is clear that “leaving it up to the child” to decide whether or not to attend parenting time with the other parent can be Contempt of Court, since it results in an abdication of parental authority on the issue of parenting time. Passively permitting Court Orders to be undermined, without taking all reasonable steps to cause the children to comply, is generally held to be Contempt. The typical permissiveness and submissiveness betrayed by alienating parents results in overpowered children who act in dysfunctional and antisocial ways.
Contempt Law in a Nutshell - Court Procedures for Breaches of Court Orders: Part 2
By Brian Ludmer, B.Com., L.L.B., LudmerLaw, Toronto, Ontario, Canada Brian@ludmerlaw.com; 416-781-0334
PARENTS FACING A CONTEMPT PROCEEDING would be well advised to have sufficient third-party evidence of the exercise of their parental authority and why it had, to that point in time, been ineffective.
Of note, the subjective good faith of the alleged contemnor -- even if their intention is to act as a “protective” parent in their self-perceived best interests of the child -- is insufficient to justify non-compliance with a Court Order. Therefore, in the event of true emergencies and palpable risk of harm, the recommendation is to immediately contact the local child protection authority and indicate why a child is being withheld and what the risk is and seek a directive from the child protection authority for the concerned parent to retain the child in his/her care while an investigation is being conducted. The child protection authority may therefore contact the other parent and ask them to voluntarily suspend their access while the investigation is conducted, failing which they may have to bring formal proceedings. In addition, the withholding parent, even if following a directive of the child protection authority, needs to immediately return the matter to Court for authorization by the Court to retain physical custody of the child.
The obligation to ensure access to the non-residential parent applies to telephone and electronic access as well. Where phone calls to the non-residential parent are not taking place, merely passing along a message that the other parent has called falls short of the clear requirement, if appropriately drafted into the Court Order, to “ensure" that calls take place.
One Court recently stated that a primary care parent who argued that they tried to "force" the child to go did not have an adequate defense when those efforts constituted out-of-context singular demands made in an intense circumstance that focused all of the pressure on the child, who had become embroiled in the parental conflict. There needs to be a consistency of the messaging of expectations, incentives and consequences and rationales, which is apt to be much more effective.
A good question in cross-examining a withholding parent is whether they have any difficulty getting the children to do anything in any of the domains of their parental responsibility or the child’s life (school, bedtime, homework, music instrument practice, chores, etc.) and, if so, what modalities do they use to ensure compliance with their directives. The same communications, directives and strategies should then be applied to the child spending time with the other parent, and behaving respectfully towards them.
In terms of alienation cases where sometimes the children are in fact compelled to go, but they are cold, rude, disrespectful, angry, withdrawn, and take their meals alone in their rooms behind closed doors, some Courts have held that simple contact is not a sufficient discharge of parental authority if the parent is otherwise undermining the relationship directly or indirectly and, by their silent acquaintance, permitting such unacceptable behavior in the other parent's house.
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Remedies/Penalties for contempt
Contempt proceedings are usually held in two stages. The first stage would involve the determination of whether a Contempt finding is made. Due to the seriousness of the finding, the offending parent is then given an opportunity to purge the Contempt by bringing himself into compliance prior to a second stage proceeding (which is often simply conducted based on submissions and affidavit evidence) where the remedies and penalties are to be determined.
At that time, compensatory access and all the other remedies would be contemplated, even if the Contempt has been purged by compliance (i.e. there is a compensatory aspect as well). If the Contempt has not been
purged, the Court may consider stronger remedies.
Where, however, there has been a denial of parenting time for an extended time, requests for makeup access (or double makeup
access) necessitate a broader inquiry into the best interests of the children, as fundamentally imposing that much make-up time
would constitute a fundamental change in the then Court-Ordered parenting plan. A “best interest hearing" and some method of
introducing the children's views and preferences (discounted for any manipulation or coercion) is called for in such circumstances. That more robust examination of the best interests of the children may nonetheless be of assistance to the parent who brought the Motion as well, since it may prove clearly that there is emotional abuse (coercive control and alienating behaviors) going on and a thorough response, including a time-out for the offending parent, required to protect the children from the dynamic.
Attorneys, mental health practitioners, and targeted parents must fully understand the advantages and disadvantages and potential relief and procedural aspects of Compliance Motions and Contempt Motions, so that the strategy deployed can be well thought out and appropriate for the particular circumstances.
Some Courts have held that simple contact is not a sufficient discharge of parental authority if the parent is otherwise undermining the relationship directly or indirectly and, by their silent acquaintance, permitting such unacceptable behavior in the other parent's house.
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THIS ARTICLE WAS PUBLISHED IN THE PARENTAL ALIENATION INTERNATIONAL NEWSLETTER FOR MARCH AND MAY 2018. PUBLISHED WITH PERMISSION FROM PASG
Understanding Ethical Issues in a Parental Alienation Case
By Brian Ludmer, B.Com., L.L.B., LudmerLaw, Toronto, Ontario, Canada Brian@ludmerlaw.com; 416-781-0334
TARGETED PARENTS, AND THOSE ADVISING THEM, need to be cognizant of the frequent occurrence of ethical issues relating to various participants in the case in order to ensure a successful outcome.
Errors, through inadvertence or misinformation or lack of competence and experience or ethical breaches, can have a material impact on the result of the case. Ethical violations including lack of competence arise on the part of therapists, custody evaluators, child protection workers, schools, activity providers, family/children's doctors, dentists and other medical providers, children's counsel and guardians and extended family members and friends.
Ethical issues are prevalent in PA cases because PA is counterintuitive, generally misunderstood, and there is a lack of training and centralized accessible experience for the various third parties involved with these families.
The legal response is, first, to be cognizant of these typical ethical/competency errors and to spot them as they begin to occur. Second, to intervene by communication and escalation internally within the particular third-party organization. Most have supervision and internal escalation protocols and this can often correct the behavior.
Thereafter, if necessary, counsel can bring a proceeding for relief within the case or as an additional procedure. Complaints to supervising bodies and governmental authorities can also be considered. The latter tend to take too long and are not a practical remedy in the moment.
With respect to counsel for the favored parent, professional standards provide only weak guidance in terms of departures from the strictly adversarial role of the counsel in a custody litigation system. Of course, misrepresenting established facts to the Court or raising issues or narratives that are prohibited res-judicata/issue estoppel before another Judge in the hopes of getting a different answer are ethical breaches. Any statements which could be directly or indirectly undermining of the necessity to comply with current Court Orders would also constitute an ethical violation.
Unfortunately, aligned parents tend to terminate counsel who push back in the best interests of children.
Children's counsel must stay “in-bounds” of the different rules and mandates and restrain their assertions and submissions to that appropriate to their role. If it is a simple advocacy role, best interest arguments should not be asserted. If it is a mere “voice of the child” role, there is nonetheless an obligation not to make evaluative judgments and to bring any concerns about lack of independence of those views to the Court's attention.
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Issues of concern
Common issues of concern in the helping professions include bias, transference, errors of logical reasoning, dual role prohibition breaches (such as being doctor for parent and children, a marriage counsellor who subsequently becomes one party's therapist, or an assessor who then purports to provide therapy or parental coordination services or vice versa). In addition, mental health practitioners need to avoid deliberately or inadvertently becoming an advocate for one of the parties and taking on assignments that are out of their specific experience/expertise. PA and related matters such as false allegations of sexual abuse or physical abuse require specialized expertise and experience and such professionals should be chosen carefully and avoid taking on assignments for which they are not qualified.
Therapists and custody evaluators must be cognizant of all professional standards that apply to their designation, the state-of-the-art science in conducting custody evaluations and therapeutic services for families in crisis. Professional Standards may require specialized training and experience to deal with this “special population.”
Therapists and custody evaluators need to understand procedural fairness including proper communications about what documents and material provided to them they are going to read and why and which third-party collaterals they are requested to interview they are going to speak with and why. They need to maintain a perception and reality of independence at all times.
Therapists need to understand their role and whether they are engaged in a directive manner to fix a broken family system or merely to provide typical therapy. They must understand how the “therapeutic alliance” would taint their services that are meant to be directive or to produce a result and they must be cognizant of the need to resign under professional standards if their services are not effective. The scenario of a therapist causing perpetual delay and stagnation in the family system is an unfortunate occurrence in a typical PA case. Therapists must avoid making evaluative judgement on the parent with which they are not engaged in therapy and avoid becoming an advocate.
Child protection role
A common problem is the role of child protection authorities. They are often involved in situations when they ought not to be and refuse to get involved when therapists and others are begging them to be involved because there is still an underappreciation of the impact of and diagnosis of emotional harm. In a PA case, there is a very fine line between what is a custody and access issue and what is a child protection issue and there is a lack of training in that regard. Child protection workers often stray into what are strictly custody and access matters and refuse to intervene in clear child protection matters because the case is otherwise before the Family Courts, even though that process can be ponderously slow, with the result that relationships are irreparably damaged before there is an intervention.
Neither therapists nor custody evaluators nor child protection authorities nor police officers or other third parties should ever advocate or authorize breach of Court Orders just because a child does not want to see the other parent and yet we see this frequently.
Police forces need training to deal with cases where they are called to enforce Court-Ordered parenting time in the face of refusal by the child. Often having the favored parent remove themselves from the scene and then just give the guidance and insistence to the child that the favored parent refuses to give will suffice.
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Friends and family members need to avoid aiding and abetting a breach of Court Order and/or participating in the alienation. All of these can subject them to claims for defamation and wrongful withholding. Traditional torts (interference, alienation of affection) are limited in most jurisdictions regarding claims for damages. However Restraining Orders and associated Court costs and non-disparagement Orders as well as directions to avoid interfering with Court Orders can be readily obtained.
Schools and activity providers can, if they uphold their core principles, act as a stabilizing force and a “safe harbor" for children's relationships with both parents. Unfortunately, all too frequently the alienating parent co-opts such third parties and creates such a ruckus that the targeted parent either feels completely uncomfortable and unaccepted in those forums or a Court Orders that only one parent can be at an activity at a time, which results in significant loss to the children. A frequent and necessary clause in parenting plans is that both parents and extended families are eligible to attend children's events, are welcome to do so, and all are expected to put the children's needs first and avoid any controversy that would spoil the experience for the children.
THIS ARTICLE WAS PUBLISHED IN THE PARENTAL ALIENATION INTERNATIONAL NEWSLETTER FOR JULY 2018. PUBLISHED WITH PERMISSION FROM PASG