When a couple decides to separate or divorce, it's a difficult decision that can quickly become emotionally charged – especially when there are children involved. In high-conflict break-ups, it is unfortunately common that one parent will try to turn their child against the other. So, what happens when a parent willfully encourages or manipulates their child into alienating the other parent?
This was the question before the BC Supreme Court in A.B. v C.D., 2023 BCSC 1578, a family law case centered on the complex issues of alienation and reunification between a Mother and her eldest daughter, X, who had not seen each other for almost two and a half years.
In this article, we summarize the pertinent issues faced by the court in this lengthy trial, including evidentiary issues of credibility and reliability of both parties, the Mother's claim for the admissibility of expert evidence, the weight to be given to the section 211 report, and finally, the appropriate parenting arrangements.
A.B. v. C.D. is a high-conflict family law case involving a husband and wife who were married for nearly 17 years and who had three children together (ages 9, 10 and 15).
On March 26, 2020, after having separated earlier that year, the wife and husband entered into a parenting agreement in which they agreed to share parental responsibilities and parenting time of the children pursuant to a "2-2-5-5 schedule" where the parents each alternated having 2 consecutive days with the children followed by 5 consecutive days.
However, soon after this agreement was made, problems emerged with the eldest daughter, X. In May 2020, X began to resist contact with her Mother. The resistant behavior worsened over the months and ceased entirely after an incident in December 2020. Following this incident, X had not seen her Mother in 2.5 years.
As part of the litigation process, a section 211 report was prepared. In essence, a section 211 report is a parenting assessment, with the objective of providing the court with useful information about guardianship and parenting issues, prepared by a qualified and neutral person. Notably, one of the recommendations made in the report was for reunification therapy for X and the Mother.
The court was faced with a dilemma created by the Father who was the "favoured parent" of the children as a result of his alienation conduct. Over the course of the trial, the Father argued that the Mother was seeking revenge and sought to discredit her testimony and evidence put before the court. The court was further tasked with addressing the issue of family violence against the Mother, and how it impacted the children and the Father's ability to care for the children.
Establishing Credibility and Reliability
The court's fact-finding role requires an assessment of the credibility of witnesses and the reliability of their evidence. In assessing the evidence of a witness, the court must critically assess the credibility and reliability of their evidence in the context of the evidence as a whole. This feeds the court's determination of whether the testimony is implausible or improbable. The court has to ask itself, "is this person being truthful or honest?" and "is this evidence accurate?".
During the trial, the Father and Mother each testified and called several other witnesses. The parties challenged one another's credibility and reliability, and the Father also challenged the credibility of the Mother's friends and family members who testified.
Drawing from the principles and jurisprudence set out in R.C.T. v. A.K.T., 2023 BCSC 654, the court concluded that the Father's testimony suffered from credibility issues as it did not reflect a balanced perspective.
In contrast, the court found the Mother's evidence to be measured and consistent with the documentary evidence and oral testimony from third party witnesses. The court ultimately dismissed the Father's claim.
Admissibility of Expert Evidence
The next issue before the court was the admissibility of evidence put forward by the Mother from two medical professionals who had assisted in the reunification efforts.
To determine the evidentiary issue of admissibility, the court relied upon the Wigmore test, noting that the test applies when deciding whether to exclude otherwise relevant evidence from a medical professional.
The four-pronged Wigmore test requires the court to consider:
(a) Did the communication originate in confidence?
(b) Was the confidence essential to the relationship in which the communication arose?
(c) Was the relationship one that must be "sedulously fostered" in the public good? And
(d) If all the above are met, do the interests served in protecting the communications from disclosure outweigh the interest in getting at the truth and disposing correctly of the litigation?
In applying the Wigmore test, the court compared the present case to the analysis in Li v. Hung, 2022 BCSC 1130. As in Li, the court determined that the communications with both experts originated in confidence that was essential to the patient-psychologist relationship, and that it is in the public interest to foster the relationship between children and their counsellors through protecting this confidentiality thus satisfying parts (a) through (c) of the test.
Where this case was distinguishable from Li was in the weighting of part (d) of the Wigmore test. In particular:
- The deficiencies alleged in the section 211 report increase the importance of the truth-seeking interest relative to the interest in protecting confidentiality, as the information from these counselling sessions is not available elsewhere.
- The potential harm that non-disclosure may cause to the children would heighten the need to get at the truth (so as to avoid this harm) beyond that in Li.
- The expectation of confidence is low as the counselling sessions occurred in an open environment with many professionals sharing information and working towards a common goal: the reunification of X and claimant.
- The information necessary to resolve this case was not necessarily readily available.
The court ultimately ruled that the evidence of both experts was admissible and was to be considered as part of the proceedings.
Assessment of Section 211 Report
The claimant mother had submitted that the court should approach the section 211 report with caution on the basis that the court has jurisdiction to decline to follow the recommendation in that report or to decline to attribute significant weight to an author's conclusion. Her reasons were as follows:
- the report was outdated (19 months had since passed);
- the information provided by the Father to the author was false;
- key witnesses were not interviewed, the author failed to adequately consider the role of family violence despite its central importance in parenting arrangements, as stated in Barendregt v. Grebliunas, 2022 SCC 22; and
- the author's recommendations did not sufficiently address the reunification process despite the conclusion of moderate to severe "child resisting contact" (i.e., the child's refusal of contact due to the alienating behavior of the favoured parent).
The court agreed with the Mother's points that it should approach the section 211 report with care. It further commented that the report is a snapshot in time, and many events had occurred since it was prepared. Lastly, the court noted that the Father was not truthful about an important matter in the section 211 process, and that the author did not consider the comments in Barendregt with respect to the impact of family violence.
What Parenting Arrangements are in the Children's Best Interests?
Since March 26, 2020, the parties had followed a 2-2-5-5 parenting schedule pursuant to the parenting agreement save their eldest daughter X who resided primarily with the Father.
In this case, the Mother sought specific orders for reunification counselling on the basis that the Father had alienated their daughter X from her.
The Father denied any alienation conduct and maintained that the current parenting arrangements should remain in place or that X should live full time with him. He also argued that a material change in the needs or circumstances of the child is required before any change can be made to the parenting agreement per section 47 of the Family Law Act ("FLA"). In response, the Mother pointed out that an agreement when filed with the court is only an order for enforcement pursuant to the Supreme Court Family Rules 2-1(3), and thus, section 47 is not applicable in the circumstances.
In reality, due to X's resistance of contact with her Mother, X had been residing primarily with her Father contrary to the terms of the parenting agreement. Therefore, the court noted that it is only required to find a change in this instance, and the Mother bears the onus of demonstrating different terms are in the child's best interest.
The court set out the legal principles governing the best interests of the children and parenting arrangements pursuant to sections 1, 37, 38 and 40 of the FLA. In brief, these provisions require the court and the parties to consider the best interests of the children only with respect to guardianship and parenting arrangements and provide further guidance on how family violence must be considered within the parameters of the best interests of the child.
Based on the evidence, the court concluded that the children's health and emotional well-being had been adversely affected by the parties' separation and, in particular, their Father's involvement of X in the legal proceedings. The court further stated it was evident that X is a child alienated from her Mother by her Father.
The court shared the Mother's concern that the younger two children were very much influenced by X, and commented that it lends further support to the need for reunification therapy for X and her Mother.
A History of Family Violence
The Mother provided detailed testimony about the Father's acts of family violence against her during the relationship.
The Father maintained that all allegations of family violence were fabricated by the Mother and her corroborating witnesses. The court concluded the Father had engaged in acts of family violence that included physical, emotional and sexual abuse of the Mother, which had lasting adverse effects on her. While the violence was not directed at the children, it reflects an overall pattern of coercive and controlling behavior to the Mother and ultimately impacts the children's sense of safety, security, and well-being.
The court determined that the Father's ability to care for the children was compromised.
How the Court Determined Parenting Arrangements and Remedy
The court characterized the daughter X as an alienated child and concluded that the Father significantly contributed to the alienation and had been interfering in the family's reunification efforts. Accordingly, it was determined that the REACH reunification program, which involves therapeutic intervention for families experiencing high conflict and alienation, in conjunction with other professionals, is the appropriate program for the family.
With respect to parenting arrangements and reunification, the court ordered as follows:
- a parenting schedule on a week on, week off, basis;
- participation in the REACH reunification program for the purpose of reunification between the Mother and X, and the parties follow their recommendations regarding parenting arrangements, which may include suspension of the Father's parenting time with the children, changes to parenting schedule and counselling;
- if it is concluded that the Father is interfering with this process by refusing to follow directions, the parenting coordinator can make determinations as to further conduct orders against the Father.
Overall, the court was satisfied that the Mother had proved that different parenting arrangements were in the children's best interest and thus granted orders for reunification therapy between the Mother and X and changes to the parenting arrangements.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.