Although it is possible to reduce support in cases involving parental alienation, it is not always a slam dunk case, says our Vancouver Family Lawyer, Nassim Nasser. Depending on the parental alienation case, the court may order to reduce support due to alienation, may find other ways to reduce support such as finding that a child is no longer a child of marriage, or may flat out refuse to reduce support. In this post our Vancouver Parental Alienation lawyer provides you with a brief case law summary where the courts have reduced support in cases involving parental alienation. Keep in mind each case is unique and it is best to discuss your case with a family lawyer to come up with the best strategy to navigate through parental alienation and achieve the desired outcome.
What is Parental Alienation?
Parental alienation is a term used in the context of divorce and separation cases to describe a breakdown in the relationship between a child and one of the parents, which some courts have found can occur because of deliberate actions, both direct and indirect, on the part of the other parent (Williamson v. Williamson, 2016 BCCA 87 at para. 39).
The core of parental alienation is the notion that the child’s decision to refuse to have a relationship with a parent is without justification or without a convincing reason. If the child provides a reason for refusing to have a relationship with a parent, it will often be out of all proportion to the decision taken (Williamson at para. 40, citing W. (D.S.) v. W. (D.A.),2012 BCSC 1522).
Parental alienation may constitute a material change in circumstances under either s. 17(5) of the Divorce Act or s. 47 of the Family Law Act (J. (C.J.) v. J. (A.),2016 BCSC 676 at para. 395).
How to Prove Parental Alienation
Proper expert evidence must support a finding of alienation. Proposed responses to alienation should also be supported with admissible expert evidence. In determining whether the particular evidence is admissible, the court should follow the usual rules regarding the admissibility of expert evidence in White Burgess Langille Inman v. Abbott and Haliburton Co.,  2 SCR 182, 2015 SCC 23 at paras. 22 and 23 (Williamson at paras. 47 and 48).
The following is a non-exhaustive list of factors considered in past cases, which may assist in identifying the possibility that alienation is present:
1. Biological factors, including the parents, mental health issues and potentially inherited predisposition of the child towards emotional and mental health issues;
2. Marital conflict, including how the conflict is perceived by the child and how the child relates to the conflict;
3. Differences in parenting styles and parenting history, including whether the parental conflict causes the parents to become more entrenched in their respective parenting styles and polarized, and how the child relates to the polarized parenting styles;
4. Enmeshment, which is described as a dynamic where the nature of a bond between a parent and child becomes diffuse such that the child may suffer a loss of individual autonomous development. Enmeshment is an abstract concept, but indicators include the child continuing to sleep with a parent when they are capable of sleeping alone; the parent electing to continue sleeping with the child rather than an intimate partner; the language a parent uses when she/he links her/his experience to the children, and a child’s attentiveness to a parent’s emotional state;
5. Transitions, and the manner in which transitions have been handled, including prolonged goodbyes and unnecessary contact with the alienating parent, which make transitions even more difficult for the child;
6. Empowerment of the children to make choices beyond those normally available to a child of similar age, including whether the child is lead to believe that they can chose whether or not they have parenting time with the alienated parent;
7. New partners, which may create a loyalty conflict for the child between the alienated parent and the new partner of the alienating parent;
8. Strong sibling relationship between children;
9. How the child relates to the alienated parent, including consideration of whether the child remains distant from the alienated parent even though they are spending more time with that parent;
10. Limitation of contact between the child and the alienated parent;
11. Interfering with communication, including the alienating parent directing that communications between the child and the alienated parent go through the alienating parent;
12. Confiding in the child;
13. Sharing inappropriate information, including telling the child about financial and other details of the litigation;
14. Withholding of medical, academic or other important information from the alienated parent;
15. Goading the alienated parent into arguments about the child in the presence of the child;
16. Assertion of control over the child by one parent to the detriment of the other;
17. Fostering by one parent in the child’s belief that the other parent is unnecessary; and
18. One parent believing that the child’s rejection of the other parent is justified.
Factors 1 – 8 were identified by the s. 211 author in J.C.W. v. J.K.R.W., 2014 BCSC 488 at para. 33. Factor 9 was a factor considered by Madam Justice Loo in J.C.W., at para. 75. 66. Factors 10-15 were considered by Mr. Justice Harvey in L.D.K., at paras. 89-91 and 93. 67 Factors 16-17 were identified by Harvey J. in L.D.K. v. M.A.K., 2015 BCSC 226 at paras. 103-105.
What Are the Courts Responses to Parental Alienation? Is Reducing Support an Option?
If the court finds a parent guilty of alienation, there is no one particular remedy (Williamson at para. 42). The only consideration of what remedy is appropriate is the best interests of the child in both the short and long term (Williamson at para. 45). In Williamson at para. 43, the court listed the potential legal responses to alienation from G. (N.R.) v. G. (R.G.), 2015 BCSC 1062 at para. 288, as follows:
- Detailed case management and parental conduct orders with consequences for non-compliance.
- Judicial exhortation urging compliance and emphasizing the emotional harm caused to the children (generally only effective in less severe cases of alienation).
- Court-ordered therapeutic intervention where appropriate, while recognizing that force-marching a child to reunification may in some cases be unrealistic and harmful.
- Ordering supervised access/parenting time to allay any child anxiety and possibly pave the way for further strategies to achieve positive relationships;
- Suspension of child or spousal support as a sanction to enforce more engagement with the other parent.
- Transferring custody from the alienating parent to the rejected parent where expert testimony establishes the long-term benefits will outweigh any short-term emotional trauma to the child.
- Terminating access by/parenting time of the alienated parent when the alienation is so entrenched that the cure is worse than the illness.
Can I Reduce Support in Parental Alienation Cases?
The nature of the relationship is a factor when considering support for a child who has reached the age of majority: Farden v. Farden (1993), 1993 CanLII 2570 (BC SC). So, it may be possible to reduce support in parental alienation cases. However, there is very little authority for the court to reduce child support in parental alienation cases when the child is still a minor. The following cases support the conclusion that you may be to reduce support in cases involving parental alienation:
Cases where the courts have made an order to reduce support
In Maclean v Maclean, 2014 ABQB 93 where Gates J took into account Father and son estrangement to reduce the amount of child support payable. Similarly, in Smith v. Smith (2010), 2010 SKQB 2 (CanLII), 79 RFL (6th) 166, at para 26, the court stated that if child unilaterally terminated relationship, support may not be payable. In Paynter v. Reynolds (1997), 1997 CanLII 24531 (PE SCAD), 157 Nfld. & P.E.I.R. 336, 486 A.P.R. 336, 34 R.F.L. (4th) 272,  P.E.I.J. No. 114, 1997 Carswell PEI 110, the Court commented:
The court is not without recourse in cases like this where the custodial parent does not take all the necessary steps to see that the terms of an order are complied with properly. Such remedies as contempt, cancellation of child support, a change in the custodial parent are some of the real possibilities.
A similar viewpoint was expressed in Harrison v. Harrison (1987), 1987 CanLII 6969 (MB QB), 51 Man. R. (2d) 16, 10 R.F.L. (3d) 1,  M.J. No. 447, 1987 Carswell Man 77 (Man. Q.B., Fam. Div.), where the Manitoba court of Queen’s Bench made the following order:
In the event the children are not delivered to the father on any occasion when access is to take place… Mr. Harrison will be forgiven payment on the maintenance payment next following due. While it is unusual to tie maintenance and access together in this way, I feel it is necessary in order to provide sufficient motivation to Mrs. Harrison, and I am satisfied from the evidence… that the children will suffer no deprivation if maintenance is not paid by the father.
Again, in Brownell v. Brownell (1987),1987 CanLII 7635 (NB QB), 82 N.B.R. (2d) 91, 208 A.P.R. 91, 9 R.F.L. (3d) 31,  N.B.J. No. 603, 1987 Carswell NB 47 (N.B.Q.B., Fam. Div.), the New Brunswick Court of Queen’s Bench also suspended child support when access was denied by the custodial parent:
There is no serious dispute that the legal system must retain its integrity. The respondent’s open defiance must be met with appropriate action. The one readily available option is to terminate the maintenance payments – an altogether appropriate measure in certain circumstances.
A similar remedy was found to be appropriate by the British Columbia Court of Appeal in Jones v. Anhorn (Stuparyk), 2000 BCCA 213, 136 B.C.A.C. 129, 73 B.C.L.R. (3d) 358, 222 W.A.C. 129, 184 D.L.R. (4th) 522, 6 R.F.L. (5th) 258,  B.C.J. No. 614, 2000 Carswell BC 614. At paragraph 14, the court quoted from the trial judge:
In the case at bar, [the mother’s actions] were done with the intention of denying Mr. Jones reasonable access to Jessica to which he was entitled by court order. This was inequitable conduct that would meet the test of gross unfairness  not to cancel or reduce arrears of maintenance.
In Oleksiewicz v. Oleksiewicz, 2017 BCSC 228, the court ordered termination of child support for an adult child who unilaterally terminated her relationship with her father.
In D.M.H.P. v R.J.C.P, 2018 BCSC 1755 (CanLII), the court also ordered termination of child support for children who did not have a relationship with their father on the basis that the mother had failed to establish that the children are a child of the marriage.
In Bruni v. Bruni, 2010 ONSC 6568 (CanLII),  O.J. No. 5148, 104 O.R. (3rd) 254, 100 R.F.L. (6th) 213, 2010 Carswell ONT 8992 (Ont. Fam. Court), Justice Quinn found that the parental alienation reflected a deliberate, evil and systematic intent by the mother to destroy the relationship between the father and daughter and that the conduct was shocking, amounting to a hideous repudiation of the relationship between the spouses as co-parents of the daughter. Accordingly, he found that the conduct in that case satisfied the requirements of sub-section 33(10) and that it was one of the rare cases that met the test of unconscionability. He therefore reduced the spousal support to which the mother would otherwise be entitled to $1.00 monthly.
In Ungerer v. Ungerer (1998), 1998 CanLII 4394 (BC CA), 37 R.F.L. (4th) 41 (B.C. C.A.) At p.50 (regarding an application to terminate spousal support) the court stated that:
“I think the question to be asked where misconduct is alleged as a reason to terminate post-divorce spousal support is whether that conduct is of such a morally repugnant nature as would cause right thinking persons to say the spouse is no longer entitled to the support… or to the assistance of the court”
In Colford v Colford, 2005 Canlii 13032, the court reduced support for an adult child and stated:
 Tyler will be 21 soon. It is time that he appreciate that there is a need for him to deal with his father directly and in a more mature manner when it now comes to requests for financial assistance with his future education. At least for Tyler’s third (and fourth, if applicable) years of his undergraduate programme, Mr. Coldford shall pay either to the institution, service-provider or to Tyler Coldford (at Tyler’s discretion) one-half of: Tyler’s tuition, miscellaneous university fees and levies, and accommodation and food costs (to a maximum contribution of $4,500 to those two costs). In making this order, I have taken into consideration that Tyler will contribute about $3,000 toward his university costs annually and that his mother will contribute about the same amount as Mr. Colford is contributing. Any decision to apply for student loans for the 2005/06 and 2006/07 years shall be a matter between Tyler and his mother in the future. Mr. Colford shall make the payments referred to in this paragraph, whether or not Tyler and his mother decide that he will apply for student loans. Mr. Colford shall pay or reimburse Tyler for the amounts that he owes under this paragraph immediately upon production to him of proof of these expenses. As soon as information about anticipated costs to which Mr. Colford must contribute becomes available, Tyler shall provide to Mr. Coldford details of such expenses. Once the school term starts, these payments are also conditional on Tyler’s providing his father, twice a term, with pertinent information about his courses of study, his marks, any awards received or applications made for bursaries or student loans. If he does not provide the required information or withdraws from full-time attendance at Queen’s University, the contributions shall cease. These are not uncommon stipulations: See Rosenberg, supra, and Nadeau v. Mitchell,  O.J. No. 2833. While Tyler is not a party to this case, I have no doubt that Mrs. Coldford will, and I hereby direct her to provide Tyler with the details of my decision regarding Mr. Coldford’s obligations in respect of Tyler’s university education. Mr. Colford shall immediately provide to Mrs. Colford e-mail and home address at which Tyler may contact Mr. Coldford for the purpose of providing information to him. At this point, then, Tyler will also have obligations regarding his continued receipt of financial assistance from his father while he is completing at least his undergraduate degree.
Cases where the courts have refused to reduce support
Having said that there are a number of cases that do not support termination or reduction of support when the child terminates relationship with a parent. For example, in Ferguson v. Charlton, 2008 ONCJ 1 (CanLII), an Ontario decision, the court stated that:
In the absence of binding authority, I am unable to accede to the proposition advanced by some courts that the child should be penalized for the improper conduct of his or her custodial parent. Although it is doubtful that anycourt in Canada would make an order that would have the effect of depriving a child of the most basic necessities of life food, shelter and clothing it takes much more than those basic necessities to enable a child to thrive and to fully develop to his or her potential. The soul requires nourishment beyond simply three squares a day. And by making orders for reduced child support owing to the improper conduct of a parent, no matter how well-intentioned the court may be, no matter how well-grounded in fairness that order may sound, it is the child who will bear much of the brunt of the diminished child support.
Finally, even if another court were to decide that the obligation to pay support for children under the age of sixteen years is not absolute, in the circumstances of this case, I would not deprive these children of their support entitlement. The mother did not file a financial statement in this proceeding. However, father’s counsel stated during argument that the mother’s income was in the 40’s on an annual basis. For a parent living in Toronto, with two children to support, it can hardly be said that she is sufficiently well-off to assume the entire burden of supporting her children on an annual income in the 40’s.
In Shaw v. Arndt, 2016 BCCA 78, the court refused to reduce support on the basis that the step son did not want to have a relationship with the step father. The court stated that only truly egregious cases of misconduct by a child against a parent would make the conduct relevant in addressing child support. Note Shaw was not a parental alienation case and the court of appeal that the step father was also responsible in his step son not wanting to have a relationship with him.
In Athwal v. Athwal 2007 BCSC 221, the Court was dealing with a breakdown in the father-child relationship that had continued for over a decade. Mr. Justice Ralph ruled that the child was nevertheless a child of the marriage and observed:
What makes the present application to continue child support difficult to assess is the origin of deeply rooted and long-standing alienation of Ramonique from her father. It was the subject of extensive diagnosis and counselling when she was a young child, but the professional assistance and Ramonique’s maturing have not overcome the problem. While I recognize that, as a result, Mr. Athwal has remained removed from his daughter’s life for ten years, there is an absence of evidence that Ramonique’s continuing alienation from her father reflects a considered decision, as in the Marsland case, rather than the remains of a long-standing alienation which has not been overcome.
I have concluded that, in all the circumstances of this application, Ramonique remains a child of the marriage and despite the absence of a relationship between Mr. Athwal and Ramonique, Mr. Athwal has a continuing obligation to pay child support to his daughter. She has a continuing need for support; she has only recently reached the age of majority, her educational program appears to be sound and she is not self-supporting. [At paras. 52-3; emphasis added.]
Just to conclude, there are conflicting case law on whether to reduce support in parental alienation cases. Our best advice to you is to find a lawyer who is well familiar with the concept of parental alienation and does not shy away from going to court. Often times, the only way to address parental alienation is to pressure court hearings or resort to court. The court is not without resources to address parental alienation cases. The remedies would be based on your families’ situation and each family is unique. Give us a call to discuss your case with our seasoned Vancouver Parental Alienation lawyers to what is the best course of action.