Our firm has handled a number of parental alienation, estrangement and alignment cases and our lawyers are very familiar with strategies to deal with real claims of parental alienation and false claims of alienation where there is an appropriate reluctance by a child to visit because of a parent’s poor parenting skills. Lorne MacLean, QC appeared on Family Matters TV with Judge Harvey Brownstone in a searing and powerful episode where a survivor of this form of child abuse explained the impact on her of parental alienation.
The Saskatchewan Court of Queen’s Bench (the British Columbia equivalent of the Supreme Court), in Haberman v. Haberman (2011), dealt with a fascinating case discussing and analyzing parental alienation. In the lengthy judgment, the court explored the current state of medical knowledge surrounding child/parent relationships. After the trial before giving his reasons, the presiding judge took the unorthodox move of arranging a meeting with himself and the 12 year old boy at his school; additionally, at the end of his written decision, the judge attached a letter written directly from him to the boy discussing the decision at his expectations of conduct.
The parents Densie and Shawn Haberman divorced. An application was brought to change primary care and residence of the parties’ 12 year old son. The boy, Dakota, had been primarily living with the father for the last four years since the separation. The child had not been allowed the unencumbered right to spend time in his mother’s care in spite of repeated court orders aimed at ensuring access. The parties were engaged in custody/access litigation for four years; the primary issue at trial dealt with alienation and Dakota’s future primary care and residence.
A Custody and Access Report was conducted in 2009. The assessor found disturbing behaviour in Dakota and that he harboured resentment toward the mother. Also, in a 2011 Voices of the Child Report Dakota made “extreme and highly disturbing” comments towards his mother including wishing for her death. At times, Dakota would claim to be abused by his mother resulting in the police and/or social services being involved, but there was not any evidence to back up the claims.
The mother claimed the child’s attitudes were due to a classic case of parental alienation. The court explained that parental alienation is based on the premise that a parent intentionally or inadvertently negatively influences a child’s mind and attitude towards one parent. The court explained the distinction between a child’s possible aversion to one parent from alienation.
In discussing alienation in the family law setting, the court presented Dr. Stephen Carter’s “4 A’s” that might explain a child’s rejection or aversion to a parent following separation or divorce.
* Alienation – the child is being “turned” against one parent.
* Alignment – the tendency for the child to choose one side in the marital dispute.
* Attachment – the child feels closer to one parent or the other.
* Appropriate – the child is appropriately disconnected from one parent due to negative experience(s) with that parent.
The father argued that Dakota’s attitude due to the fourth “A” appropriate disconnect due to the mother’s poor behaviour; however, the court found that Dakota was alienated from his mother due to his father’s influence and his continued exposure to parental conflict. The judge opined that in order to deal with the parental conflict, Dakota became an active partner in the denigration of his mother and is strongly aligned with his father. He is unable to refute his father’s negative beliefs about his mother. Both parties agreed that Dakota’s behaviour toward his mother was abnormal and needed treatment; however, the parties disagreed on the cause with each parent harbouring resentment for the other.
In the Custody and Access report, Dakota complained that his mom would yell at him and hit him; but when pressed for a specific time that this had occurred, he was unable to give an example. The report found that Dakota’s comments were unusual for someone his age and that they reflected what he had heard from his dad not his own opinions. The report found that Mr. Haberman would give him the choice to see his mother and that this was inappropriate, because Dakota knew about his Dad’s negative feelings towards his mother and he would want to please his dad. The report discussing parental alienation stated:
It is clear that his behavior is causing a disturbance in the relationship between mother and child. In a worst case scenario, this could mean that Dakota’s relationship with his mother will be impacted in his childhood, and that Dakota’s relationship with his father will be impacted in his adulthood. Children who are subject to parental alienation often realize as adults that their parent is not as bad as they’ve been made out to be. When this happens, the parent who has alienated is turned on as the negative parent. Shawn is potentially impacting his future relationship with Dakota in a very negative way.
The situation deteriorated to a point that three RCMP officers attended with Ms. Haberman to try to enforce access but Dakota refused to go with his mother. After an extended period of time, Ms. Haberman told the officers to not use physical force to move Dakota and the attempt at access was abandoned. In the four years, the mother launched 12 interim applications in pursuit of access.
The following in an excerpt from the 2011 Voices report showing Dakota’s view that he and his dad were on a team against the mother.
She is being stubborn about it … me and my dad have been very generous giving her stuff. When we split up three or four years ago, she took the lawnmower and we took the snowblower and they agreed on that … she wanted our computer, she already has a laptop … dad needed the computer for his business but he agreed to give her the keyboard and stuff… my dad would give her money to pay off these things we bought, she was spending the money on herself … she was getting crabby, rude, ignorant, me and my dad left for a few hours, came back and gave her a second chance. Dad tells me, he tells me mom doesn’t want to pay child support. He would have gotten her driver’s license taken away, dad decided not to … I’m guessing crappy income from her job, she buys clothes, shoes.”
Dakota went on to say that he wanted her to die and he would not show up at her funeral because he wouldn’t care. The court outlined the factors seen with alienated children:
The diagnosis of PAS (parental alienation syndrome) is dependent on eight primary factors identified in the child: (1) campaign of denigration; (2) weak, frivolous or absurd rationalizations for the deprecation; (3) lack of ambivalence; (4) the independent thinker phenomenon (child claims these are their own and not the alienating parents beliefs); (5) reflexive support of the alienating parent in the parental conflict; (6) child’s absence of guilt over cruelty to, or exploitation of, the alienated parent; (7) presence of borrowed scenarios; and (8) spread of rejection to extended family and friends of the alienated parent.
Because of the conflicting testimony in court and the disturbing Voices report, the Judge decided to meet with Dakota. This was done without notice immediately after the oral argument. One of the judge’s justifications for meeting with the son was found in international law “based upon (his) own reading of the topic of the rights of children and youth to be heard in legal proceedings of which they were primary subjects. This literature is based upon the United Nations Convention on the Rights of the Child.”
The meeting was conducted in private at the school with the local registrar (sheriff) attending as a third party observer. The judge noted that it was his first time taking such measures. He stated he “can find little formal protocol or case authority which instructs the court on how to conduct such meetings or interviews with children.” He mentioned that the fundamental concept of transparency and the open court is displaced and that an appeal court would have little information to weigh. The judge took a number of steps that he outlined. For Example:
- 2. The meeting was arranged as the trial was nearing its conclusion, without any forewarning to the parties or counsel. This eliminated any opportunity for a parent or third party to prompt the child. This also spared the child the anxiety of anticipating the meeting.
As mentioned, the court found that the father had intentionally or unintentionally alienated Dakota from his mother; he influenced and accommodated Dakota in rejecting his mother and did nothing to resolve Dakota’s behaviour toward her. The mother’s counsel argued that alienation on the petitioner’s part, clearly being in breach of the court’s interim orders, warranted that Dakota be removed from his father’s home. The court found that a move now would have serious negative effects on Dakota.
The court ruled that Dakota should stay with her father as primary residence; however, the father must immediately change his attitude and conduct in regards to Dakota’s relationship with the respondent. Additionally, the father must attend counselling as a condition of guardianship. The court put the father on notice that “his behavior or that of his extended household or family which violates the spirit and word of this judgment will be dealt with swiftly and as extreme as the best interests of Dakota dictate in the circumstances.” The mother was to have access twice a week and on holidays etc and any violation of this by the father would lead to a change of primary residence. Lastly, the judge attached a letter to the judgment specifically written for Dakota. A copy is displayed below.
At MacLean Law Group our lawyers are fully versed in the latest developments involving child custody battles and guardianship. In the Haberman case, even though the court found parental alienation, the court did not move primary residence. This case shows you the importance of original interim orders for custody, and, as result, how crucial it is to have competent counsel from the start of one’s separation. With new changes coming in British Columbia family law, you owe it to yourself to plan ahead and find out what your rights are. Call us at any of our 4 offices in BC.
SHAWN WILLIAM HERMAN HABERMAN
v. CHERIE HABERMAN
DIV. NO. 03661 OF 2007, YORKTON, FAMILY LAW DIVISION
Thanks for meeting with me and Sheriff Dave. Getting to see you and talk with you means a lot to me. I hope you were sincere when you told me you appreciated our coming to your school to meet you.
Well the judgment is finished. It is long and covers lots of stuff that really will not interest you. But I am writing this letter to you to explain what I have decided would help you and your parents.
You told me you would obey my judgment. I have accepted your word. This means a lot to me. First, you showed me respect and respect for the hard job I do. I want to remind you again, that the judge tries his or her best to do what will be best for you. You are 12 years old and some of the things I want you to do may not make complete sense to you right now. But here is where you have to trust me. That is why your promise to obey the judgment made me proud of you.
Dakota, I have heard lots of good things about you. You and I talked about your visiting old people in the nursing home and your being a clown with grandma – trying to cheer people up. I want you to continue to be a giver and to do good things for other people. Right now your mom needs your love and to spend time with you. So please give her your best effort. It is okay for you to show your love and feelings to both your mom and dad. They must understand that you need and love both of them. They must respect you at all times when you are with them and when you express your happiness and love to either one of them. A parent’s love for a child should be unconditional. I have told them this in the judgment.
I have decided not to move you out of your dad’s home. This is where you belong and you have shown me this is where you are most comfortable.
You told Sheriff Dave and myself that there are two things which really bug you when you visit your mom: She yells at you too much and she does not play and give you enough attention. You know what? Nobody is perfect. I have told your mom to put more effort into planning things to do with you. But you have to make an effort to plan and do things with your mom. There is give and take in life – remember that Dakota, that is an important lesson in life. So try harder and be more patient with your mother. She will try harder. I believe the two of you can make your relationship work.
To help both you and your mother I am ordering that you go to mom’s on Wednesdays after school until 8:30 p.m. I am also ordering that on Sundays you will go to your mother’s from 1:00 p.m. until 8:30 p.m. This way your time together is more often, but for shorter periods of time with no sleep overs. So you should not get bored and no one should get angry. When you and your mom are ready, you can do more. On school breaks and summer holidays I have decided that you should spend more time with your mom and just as much time with your dad. Because that is fair. That is when sleep overs will occur. I have also told your parents to talk with you about making holiday plans.
I understand that you need time to do your homework, to play with your friends, or if you make the school basketball team or want to play other sports or join clubs, you should have the freedom to do so. Both mom and dad must make sure you get to all of these activities when you are in the care of either one of them.
I do not want you to use your cell phone when you are at your mother’s. You will only be there for a few hours at a time and anything you have to tell your dad can wait until you get home.
I want you to continue to see Mr. Hughes or the school counsellor to help you to understand your feelings. If you need to talk to another grown up at any time go and see your school principal – he understands your situation. Everyone wants to help you.
It is now up to you and your parents to obey this judgment. Good luck and take care of yourself.