BRIAN LUDMER, B.COM, LLB
Brian Ludmer is a Canadian attorney whose practice focuses on cases involving high conflict custody battles, denial of parenting time and parental alienation, as well as high net worth financial disputes. He is also a business and securities law attorney with over 32 years of experience.
Brian is the Legal Column Editor and Writer for the bi-monthly newsletter of the Parental Alienation Study Group, an organization of professionals and others interested in the area with members world-wide.
Brian is a frequent speaker for Family Access and is widely quoted in multiple media sources on family law issues. Brian has spoken at the first International Conference of the Parental Alienation Study Group in Washington in October 2017, for the Canadian PA Forum -a three-day conference – in 2009 and for PAAO, the Children’s Rights Council, the Canadian Equal Parenting Coalition and other organizations across Canada and the United States. Brian was also a featured speaker at the first Annual Conference of the European Association of PA Practitioners in London UK in August 2018. Brian has also been speaking to the Ontario Canada hospital network on PA Diagnosis and Therapy.
Brian works as special counsel with US and Canadian attorneys and mental health professionals to assist targeted parents and grandparents. He has assisted in cases across Canada, the US.and overseas.
Brian’s book: The High Conflict Custody Battle, which he co-wrote with Dr. Amy Baker and Dr. Michael Bone in 2015, is a resource that has been of assistance to countless families.
Brian’s cases often involve custody disputes over parenting time. Brian’s cases have set important jurisprudence on the field of family law disputes, equal parenting and parental alienation.
Brian has been an advocate for a rebuttable presumption of equal shared parenting as a solution to most high conflict parenting disputes. Brian is a co-founder of Lawyers for Shared Parenting, and an active member of several family rights organizations. He is the legal advisor to the Canadian Centre for Equality. In that capacity Brian drafted a detailed submission on a rebuttable presumption of equal shared parenting to the Justice Committee of the Canadian House of Commons and was an invited witness into its November 2018 hearings on Bill C-78, a current proposal to amend Canada’s Divorce laws. Brian anticipates making a similar presentation to the Canadian Senate when it considers the Bill in the Spring of 2019.
Previously, Brian was the principal drafter of Bill C-560, a 2014 private members’ Bill introduced in the Canadian Federal Parliament to reform family law, which made it to second reading at the time.
BRIAN LUDMER'S REMARKS TO THE HOUSE OF COMMONS ON EQUAL SHARED PARENTING NOVEMBER 2018
BRIAN LUDMER'S PRESENTATION TO THE HOUSE OF COMMONS SENATE COMMITTEE REGARDING BILL C-78 JUNE 6, 2019 ON EQUAL SHARED PARENTING
BRIAN LUDMER'S PRESENTATION TO THE HOUSE OF COMMONS SENATE COMMITTEE REGARDING BILL C-78 JUNE 6, 2019 ON EQUAL SHARED PARENTING
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With attribution to Mike Glover, why can't we get the Conservatives to adopt this well written policy?
Note the multi-generational impact of custody wars and lack of stability and love on children.
People benefitting from today's system are cognitively blind to its foundational problems. That was my experience from testifying twice in Ottawa re Bill C-78.
A great piece of rhetoric attributed to Upton Sinclair: It is difficult to get a man to understand something, when his salary depends upon his not understanding it.
CANADIAN FAMILY LAW REFORM & EQUAL SHARED PARENTING DEBATE -BRIAN LUDMER AND MARTHA MACCARTHY
February 21, 2019
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BRIAN LUDMER PASG CONFERENCE OCTOBER 2017
How to Deal With Interfering Grandparents https://parenting.nytimes.com/relationships/interfering-grandparents
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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Volume 3, Issue 3
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
PRESENTATION TO A COMMITTEE OF PARLIAMENT STUDYING CHANGES TO THE DIVORCE ACT OF CANADA
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The social changes outlined over the past 30 years are such that how we do family separation needs a complete re-think.
Far too many parents and kids being traumatized and such huge waste – time, money, energy, taxes, savings – with no discernible upside.
How to Deal With a Jerk Without Being a Jerk https://www.nytimes.com/2019/04/05/smarter-living/how-to-deal-with-a-jerk-without-being-a-jerk.html
Structured intervention trumps therapy in child estrangement casesReconciliation therapy is an intensive psycho-educational intervention that, when structured and delivered properly by specialists in the field, can be far more effective in cases of parental alienation than conventional therapeutic methods, says Toronto family lawyer Brian Ludmer.
The intervention technique is best suited for severe instances of family breakdown where one parent is almost or entirely rejected in favour of the other — much like a situation that recently played out in a Michigan case that made international headlines.
The case, which Oakland County Circuit Court Judge Lisa Gorcyca called one of the worst parental alienation scenarios she’d ever seen, made news after Gorcyca ordered the children, ages 15, 10 and 9, be sent to Oakland County Children's Village — a juvenile detention, residential treatment and shelter care facility — after they defied her order to have lunch with their dad.
The siblings spent about two weeks at the foster-care part of the facility before being released and sent to summer camp while a custody battle between their parents continued.
In mid-August, the judge awarded temporary sole custody to the children’s father and ordered that the family participate in an unnamed specialized program of reconciliation therapy. The case will resume Oct. 5 for an oral hearing and update on progress and a report on a psychological evaluation of the parents and the children, the Detroit Free Press reports.
Ludmer, of LudmerLaw, says this type of intervention is colloquially known as reconciliation therapy, though there are no specific professional standards for how it is to be conducted.
Where properly structured and conducted by a specialist practitioner, this type of psycho-educational intervention is much more effective in treating broken families, as opposed to traditional therapeutic methods, he says.
Failed interventions for broken family systems
“In conflicted families, an unfortunate dynamic will often develop where the children completely reject or almost completely reject one of the two parents. They enter into what’s called a cross-generational coalition of one parent and child or children against the other parent,” Ludmer tells AdvocateDaily.com. “It is that enmeshed cross-generational coalition that has long been recognized in the psychological literature as particularly harmful for child development in many ways. That family dynamic has, time after time, proven resistant to all kinds of conventional therapeutic interventions.”
Traditional methods fail for a variety of reasons, says Ludmer.
“First, conventional therapy is based on what’s called a therapeutic alliance, which is a trusting partnership between the therapist and the patient. It is meant to be a non-judgmental, supportive type of guidance where, through talking over time, therapist and patient will collectively come to a way to make the patient a better, happier person,” he says.
“However, when a child is resistant to doing something that is in their best interest, it’s ineffective, because what needs to take place is an intervention in a direct manner to reset all the family relationships and to break apart this coalition of parent and child and/or children against the other parent," he says. "The process also needs to reset the child in the proper role in the family hierarchy and protect the child’s relationship with the rejected parent from the influences of the favoured parent.”
Another important reason why conventional therapy will inevitably fail, says Ludmer, relates to whom the sessions are directed at.
“It’s often focused on individual patients — it’s all about you and your fears and your needs and your feelings, whereas the problem is a family problem. It is the entire family system that is broken,” says Ludmer.
“Thirdly, as there’s no stated goal, no milestones along the way to get to that goal and no timeline to get to the goal, it just degenerates into an endless process of positioning and justification of positions, with years of limited, if any, progress. Meanwhile, their whole childhood is being lost.”
Also concerning, says Ludmer, is that in conventional therapy, “it’s in the interest of the favoured parent that it fail.” These parents often view their role as that of a protective parent who is advocating for their child against the other parent, he says.
Leading clinical psychologist Dr. Craig Childress, says Ludmer, put the current failed attempts at helping these families this way:
“Current practices in reunification therapy may involve simply listening to the child’s litany of complaints against the targeted parent, having the targeted parent apologize to the child for supposed parental failures (often exaggerated, distorted, or even fabricated by the child), and encouraging the further disempowerment of the targeted parent who must seek to appease the child, continually, and without success in altering the child’s rejection. In other cases where the ‘reunification therapy’ employs approaches that may be effective, tactics of the alienating parent and child, who postpone, reschedule, and fail to attend appointments, will delay and frustrate the goals. In other cases, the child and alienating parent engage in tactics to remove therapists who challenge the child to behave more appropriately, in favor of therapists who enable the child’s over-empowerment and collude with the family psychopathology that is manifesting in the child’s rejection of the targeted parent.”
“Most conventional therapists will look at a child’s relationship with a parent as a continuum with love and closeness on one end and rejection and no relationship on the other end. This is incorrect, because one of the tasks of childhood is to grow and develop your own individual critical thinking skills — not just act as an extension of one parent,” says Ludmer.
“It’s a logical error to equate closeness with health because many of those relationships are enmeshed, where a child’s critical thinking skills are impaired and they don’t have individuality of action or thought. You have to look at it as a continuum where health is in the middle and extreme enmeshment is at one end and dysfunction and complete rejection at the other end, and the job of the reconciliation therapy is to get the child in the middle. You have to break the enmeshed dynamic as much as you have to break the rejection dynamic.”
Needed interventions for broken family systems
In contrast to conventional therapy, “reconciliation therapy,” if properly conducted, he says, is meant to quickly break the enmeshed cross-generational coalition and help the family restructure appropriately. Examples of these programs include Family Bridges (Texas, with locally-trained practitioners in many cities, including Toronto), Family Reflections (British Columbia), Transitioning Families (California), Conscious Co-Parenting Institute (California), Families Moving Forward (Toronto) and The Family Separation Clinic (London, UK).
“For the process to be successful, it takes a very skilled therapist who understands the sometimes brutally overt, but usually quite subtle, manipulation that goes on and who is prepared to take a stand – to be directive and demanding of good faith progress and openness from all members of the family, including the children,” says Ludmer. “There needs to be stated goals, timelines and milestones, with the authority to return the matter to court if progress stalls.”
In fact, says Ludmer, the process has no room for the traditional “therapeutic alliance,” as the “patient” is the entire family system.
“The therapist is there to open the children’s minds, repair their critical thinking skills and their ability to think independently of what they’ve been told and to explore the possibility that maybe they are not being fair and objective when it comes to the rejected parent,” he says.
Most programs have a requirement for a supportive temporary structural change in the family system. The process often involves a period of court-ordered separation from the favoured parent, says Ludmer, along with the intensive psychological and educational work.
Ongoing care by a specially-trained mental health expert will likely follow, he adds.
During this period, the children receive caregiving only from the rejected parent, says Ludmer, “enabling them to re-acquire the knowledge and understanding that this parent is a competent, loving and available caregiver.” The ongoing Michigan case is currently following this model.
Some of the leading specialized programs outlined above do have a developing record of success in reuniting children with their lost parents and helping the family to restructure in a more healthy manner, says Ludmer. There is an almost unlimited demand for these specialized services, he says, given the scope and magnitude of the problems being tackled.
Published in Advocate Daily
How to deal with 'toxic' parents
By Susan Pigg Business Reporter
Sat., March 14, 2009
When Toronto lawyer Brian Ludmer speaks about the suffering caused by parental alienation, the words come from his head and his heart.He's seen the devastation of a mother's orchestrated campaign to make her children hate their father, or how a dad can use a 4-year-old as a weapon against his mother in the ugly aftermath of divorce.
Ludmer is, by training, a corporate lawyer. But he's being "swamped" by desperate parents looking for help reconnecting with their children. "Experts in this field will tell you that they've never met a lawyer who understands this the way that I do," says Ludmer.
That's because he's also lived it.
"Parental alienation is a plague. It's rampant out there," says Ludmer, 48, who declined to talk about his own case for fear of upsetting his children. "This stuff has been going on for a hundred years. It's just that now it has a name."
Later this month, Ludmer will address the first international conference on parental alienation in Toronto. He'll join the growing chorus of parents, judges, lawyers, social workers and mental health professionals who believe the courts are ill-equipped to deal with "toxic" parents.
"Canada seems to be a hotbed of parental alienation court activity," says Amy Baker, a New York-based researcher who's written two books, one chronicling the emotional suffering that travels in parental alienation's wake.
"I think there are some very brave judges who are willing to really think through the implications of alienation and really try to deal with it.
"The bottom line is that to turn a child against a parent is to turn a child against himself."
Two months ago, a Toronto judge stripped a mother of custody of her three daughters after a decade-long campaign to keep the kids from their father. She was ordered to pick up the tab for a U.S. program aimed at helping the girls, ages 9 to 14, reconnect with their dad.
This week, an 18-year-old from Mississauga asked to be awarded custody of his two younger brothers caught up in a decade of family "warfare." He also asked that parental alienation experts, such as psychologists Randy Rand and Richard Warshak, be forbidden from further contact with the boys. He called programs, such as their controversial Family Workshop for Alienated Children, "voodoo science."
But there's so much concern about the snail's pace of the overloaded family court system and the lack of treatment facilities in Canada that Ludmer has been working with a group of professionals on plans for Toronto's first Family Reunification Clinic. They hope to have the facility open within a year, offering treatment based on the work of Rand and Warshak.
"The most important part (of undoing alienation) is the after care," says Ludmer, who's handled more than 50 parental alienation cases in the last four years. "We don't want to be bundling kids on a plane and sending them off to the United States. This will make it easier and less disruptive to get the whole family the help they need."
The planned centre is sure to set off a storm of controversy among those who consider Warshak and Rand's work cult-like "deprogramming" and question whether Parental Alienation Syndrome isn't just an excuse for bad, or even abusive, parents.
"I think the therapy often does way more harm than any so-called parental alienation could do. It demoralizes kids, it makes them feel like they're not being listened to and involved. It demeans them," says Joyanna Silberg of the U.S.-based Leadership Council on Child Abuse & Interpersonal Violence, a group of health professionals.
"One of the reasons this is so controversial is because it's become an industry – a money-making industry – where purveyors of these so-called therapies and evaluation procedures are using things that the scientific community doesn't automatically accept, but know that judges are accepting in court to affect children's lives in an extreme way."
Veteran family court judge Harvey Brownstone sums up the growing debate best: "The jury is still out on the whole issue of parental alienation. When a child adamantly refuses to see a parent, it is not easy to know why. It could be they're bored, or that they don't like the parent's new partner. The situation is usually layered and complex."
If there is a growing certainty about one thing, it's that these cases need to be dealt with quickly.
"Time is the enemy of the alienated parent," says Baker, whose book Breaking the Ties that Bind, chronicles the difficult lives of 40 adults who were alienated as children. Since the books, she's met hundreds of others, including one who went as far as plastic surgery to wipe out the shame of looking like his father. "These cases should be fast-tracked because alienating parents exploit the ability for the courts to delay things to their benefit. The more time they have with the kid, the more time that kid is going to resist reconciliation."
Veteran family law lawyer Jeffery Wilson – who was involved in Ontario's first court case around alienation in 1981 and is representing the Mississauga teen fighting for his brothers – believes it's time for more drastic measures. It's been estimated that some 60 per cent of litigants in "high-conflict" divorces suffer from personality disorders that can turn a discussion of "Who gets the kids for Christmas?" into a months-long power struggle marked by what Ludmer calls "bad messaging and bad-mouthing."
Wilson is calling for a government-funded "High-Conflict Response Team" that could step in before these cases hit the courts. They would have the power to sort out complex disputes, impose binding judgments and get the kids – and their parents – counselling and treatment.
Family Solutions is a North York-based team of well-respected psychologists and social workers who started meeting five years ago to compare notes on difficult cases. Now they offer everything from mediation to intensive counselling in high-conflict divorces. They've seen a significant growth in parental alienation and have had some success with clients who've worked with Rand and Warshak.
"There's a lot of work we still need to do," acknowledges Linda Chodos, a social worker with Family Solutions. "We don't yet have a lot of evidence-based research that shows what kind of intervention works best."
Rand and Warshak are based in California and Texas respectively and, in the first phase of their workshop, meet the children and the alienated parent for "educational" sessions that can include simple outings where they start to get reacquainted. (Rand apparently travelled to meet the siblings of the 18-year-old in a Montreal hotel room, but their mother, who claims to have been alienated by the father, gave up a day later when they refused to participate in the four-day session.)
"It's to give the child a break – a chance to catch his or her breath and to give them just a few days not to be torn between the two parents," says Ted Horowitz, a veteran social worker with Family Solutions.
The alienator is brought in as part of the second part of the program, all of which is aimed at making them aware of the damage they are doing and the need to form a new partnership around parenting.
"There is no deprogramming and never has been," says Jacqueline Vanbetlehem, a mental health therapist with Family Solutions. "You have to really look at the circumstances of the family before you even recommend such a program. Sometimes the court intervention is a relief to these children because they don't have to choose (between parents) anymore."
Warshak told the Ontario Bar Association's annual meeting last month that 17 out of 21 children who have completed the "expensive" program have forged good relationships with the other parent that continue more than two years later. The results are currently undergoing peer review.
"One of the misperceptions around this is that it's meant to shift allegiances from one parent to the other," says Horowitz. "The idea is to balance the family – to pull them together. Both parents need to be part of the treatment, and the children need to see their parents working together."
BY MATT ALLEN / IN UNCATEGORIZED How To Fight Parental Alienation
If you’ve been systematically pushed out of your child’s life by a former partner who repeatedly criticizes and deprecates you in front of your child, then you are all too familiar with parental alienation.
When trying to combat parental alienation, heed the advice of family law attorney Brian Ludmer, who has been a featured speaker at the Canadian Symposium for Parental Alienation Syndrome.
Ludmer has developed a legal, psychosocial and practical strategy for managing a parental alienation case. He consults as well in the area of child custody assessments for parents involved in cases with parental alienation syndrome.
Parental alienation occurs when one parent essentially “programs” a child to dislike and even hate the other parent, and according to psychiatrist Richard A. Gardner who first coined the phrase “parental alienation syndrome,” 90% of alienation cases were cases where the mother alienated the father.
Ludmer talked with MensRights.com editor Matt Allen about how to legally respond to parental alienation, what behaviors to avoid as the targeted parent, and how to deal with false allegations. If you are a victim of parental alienation, consult with the divorce lawyers for men at Cordell and Cordell Family Law.
Men’s Rights: In terms of legal responses, what can you do to combat an alienating parent?
Brian Ludmer: Well, the key thing is you need to strictly, frequently, and early on assert your right to the access you are supposed to have with your child.
Most of the problems result from people being too timid or delaying the problem thinking there is some therapeutic answer.
There is an undue emphasis on hoping that the aligned parent will somehow achieve some epiphany and change their behavior or that things will just work their way out. You need to tackle it early on and frequently.
It’s short-term pain for long-term gain in terms of cost. It’s much less costly to tackle it early on than after a dynamic develops.
Some of the other tools from a legal perspective would be to ask for a parental coordinator to be appointed. That would be someone who’s focused not so much on the children’s behavior and getting through to the children, as they are on the parent’s behavior, which is at the heart of this dynamic.
In addition, you can ask for a therapeutic intervention, but it needs to be a multi-client, fully open process. And by that I mean the therapist involves – and usually we like to see at least a psychologist if not psychiatrist – all the parties.
The difficulty with having a therapist just for the child is that they don’t actually have a mandate of demanding and fostering reconciliation, and they have some issues in terms of privacy and not sharing everything. So, it is the multi-client type of therapy that sometimes works.
Men’s Rights: Typically, in parental alienation cases there are lots of false allegations made and delay tactics in hopes of keeping the alienating parent even further away from their child. So, how do you deal with delay tactics being used or false allegations being made by the other side?
Brian Ludmer: Yes, this is certainly an unfortunate circumstance in many of these cases, and actually increasingly frequent.
You can’t really stop false allegations from being made, and quite often the fact they’re being made can be used to your advantage. But you want them dismissed quickly because while a child protective service is investigating, you’re typically frozen out of the child’s life.
There’s a process of intervention with them to make sure that they see the big picture and they know that it is happening within the context of a high-conflict divorce so that their investigative protocol is much more forensic and they’re looking for indicators of manipulation.
Then after it’s done, you want to get the clinical notes of the investigator and, quite often there are some very telling comments, such as when ‘I interviewed the children, their language appeared scripted and adult-like.’
Then you can turn a false allegation into an amazing tool to fight back against the aligned parent. So you always want to suggest to the investigator that they look for those signs, and make sure to also get the clinical notes from them.
Men’s Rights: In these types of cases, what must be avoided?
Brian Ludmer: You already mentioned delay. Delay is the number one mistake that gets made and delay is the number one tactic of the aligned parent and their attorneys.
The system itself is quite ponderous and there’s a series of tools attorneys do to try and move the case along as fast as possible towards the eve of trial. Most alienators will fold rather than actually go on the stand at a trial.
For the same reason, if you can get some questioning or examination for discovery where you question the aligned parent under oath during the case, you can get some amazing admissions that then inform the custody assessment and the judge.
So, the idea is to expose them — not allow them to hide behind false affidavits and lawyer’s letters — and that typically will force their hand.
Men’s Rights: We have many resources available to alienated parents on MensRights.com and also at our affiliated website DadsDivorce.com, but are there other resources out there available for those parents being targeted?
Brian Ludmer: Certainly. I frequently visit your sites, as well as the Parental Alienation Awareness Organization, and other national organizations that have an amazing collection of materials.
In addition, there are some great, cheap, soft-cover books written by some of the leading experts where you get all their insight for $20 instead of paying them hundreds and hundreds of dollars an hour.
There are also support groups for estranged parents where everybody exchanges notes, names of experts, and that kind of things.
The targeted parent is the “general” of this war that they’ve unfortunately been dragged into, and they need to be an informed consumer of mental health services, legal services, and in terms of managing their own financial budget for this.