The leading case on parental alienation remains the case of Williamson v. Williamson 2016 BCCA 87 and has been referred to in over 100 cases by courts in BC, Ontario, Alberta, and Yukon.
The appeal case arose from a chambers decision that ordered four children, ages 18, 16, 14, and 12 to attend an inpatient family counselling service pioneered by Dr. Kathleen Reay in Kelowna. The court accepted a report authored by family counsellor Bob Finlay, who was appointed as a therapist for the family, and had identified parental alienation by the children’s father.
The chambers judge said “there is absolutely no doubt that there is serious parental alienation here and it has been encouraged by one of both of the parents. I am not making any decisions insofar as who is right or wrong in any way…you have a 16-year-old who has not seen his mom for roughly 4 years and a daughter who has not seen her mom since September of last year, and the other children have not been seeing their father at all. The family is complete dysfunctional right now…”
The appeal court noted that it was unusual that the chambers judge did not identify which parent was exhibiting alienating behavior and that the judge made clear he had not read all the material before him and that his review was “cursory”.
This case was even more interesting because the mother had brought the same application six months earlier, only for it to be dismissed. At that time the court determined that Mr. Finlay’s opinion was “untested” by cross-examination and further, that the court had not invited Mr. Finlay to change his role from therapist to expert assessor, rather Dr. Elterman had been appointed to update a section 211 report for the court.
The appeal court allowed the appeal and directed that there be an expedited trial, on the basis that the chambers judge had failed to determine if there had been a material change in circumstances, which was required if the court were to consider making an order for intensive inpatient therapy, which had earlier been dismissed.
But it is the Court of Appeal’s commentary on parental alienation that has attracted attention to this case. The court first noted that parental alienation is a controversial area in family law, but its controversy was not before them. They said that other courts have determined that alienation can occur as an unfortunate side-effect of the breakdown of a relationship, but it also occurs because of deliberate actions, both direct and indirect on the part of a parent. They reminded us that alienation must be distinguished from estrangement, and that estrangement occurs when a child understandably refuses contact with a parent for a logical and rational reason.
They commented on the use of expert evidence to support allegations of alienation, noting that because of the seriousness of the allegation, courts must be cautious in admitting expert evidence. The chambers judge had accepted the evidence of alienation proferred by Bob Finlay without considering his qualifications, or the necessity of his report given that Dr. Elterman had been the court appointed expert. They also noted that the inpatient program ordered by the chambers judge was a fairly recent program that had not been independently peer reviewed. Several other judges had questioned the qualifications of Dr. Reay to run such a program including Luo v. Le 2016 ONSC 202 and DSW v. DAW 2014 BCSC 514.
Lawdiva aka Georgialee Lang
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