Badmouthing your ex is a bad strategy for all kinds of reasons: very stressful on your children, hurts your chances of settling out of court, and frankly, it hurts with the judges if you end up in court. An extreme, spectacular illustration of this principle may be found in the Alberta parental alienation case B(RM) v. B(DT), where two children (a daughter, 13, and a son, 10) were ordered taken from the father and given to the mother after he turned them against her. The judge admonished the father for teaching the children “not just to reject their mother, but to defy all authority — even the court and police.”
Prone to tears and angry outbursts in the courtroom, the father repeatedly pounded his fist on the rail surrounding the witness box, noted the judge. “He presented as intimidating,” and had “limited respect for others.” In short, he behaved like “a one-man army protecting his children from both their mother and the courts.” It backfired.
It’s not clear exactly what triggered such a vicious war. For many years after the divorce, everything seemed okay. There was shared parenting without significant conflict. “I have some suspicions of what catalyzed the current battles,” the judge observed, “but I cannot make a decisive finding that explains the degeneration of this family.” Perhaps it was the father’s new wife and new baby? Perhaps it was something the mother did, described only in vague terms by the judge as involving a “significant invasion of the father’s household privacy.”
In any event, while the judge noted that both parents were guilty of “alienating behaviour that would cause distress to any child,” the father was worse. He took things to a new level. For example, he described himself as the “driving force” behind efforts to reunite the kids with their mom, even though he refused to go to therapy, and refused to take the kids to therapy — court-ordered therapy, that is. He defied numerous other court orders, was found in contempt, and fined $5,000.00.
At one point he said he would rather go to jail than have his daughter visit her mother. He said this to his daughter. At mom’s house. While the police were there. The daughter, having been so thoroughly alienated by this time, actually supported his stance. As the judge described it, she saw him as “a hero and a martyr.”
It is “not a child’s place to determine what is best,” observed the judge. “By creating an environment that required the children to choose a parent, the father placed a great deal of pressure on his children. He gave them control of things that should not have been their responsibility.”
The father also committed the cardinal sin of discussing the litigation in detail with the kids. He encouraged them to refer to their mother by her first name. In the courtroom he “strode to the witness box without having been called to give evidence,” then made “discourteous statements,” and repeatedly failed to answer questions directly, instead giving longwinded discourses about other issues in an attempt to “control the proceedings and sway everyone to his belief system.” He told a therapist he refused to be in a room with, let alone cooperate with, the mother. He would attend school and inspect the lunch mother had provided for the children, then criticize it, in front of the children’s peers.
Replacing the mother with his new wife was, said the judge, his “obvious goal.”
Plus, the judge observed, he succumbed to the very common problem of lacking any insight whatsoever into his own faults. “He has no understanding of his inappropriately high level of control within his family. While he is aware that others have told him he is ‘scary,’ he does not understand that this is a very negative trait. He does not understand that he left his children with no choice. He has failed to participate in interventions, acted contrarily to expert advice, ignored the directions of this court, and failed to pursue counselling for his own children or himself to address any of the foregoing. He is unrepentant about any of this conduct.”
Mother, in contrast, was developing some insight into herself. She showed “increased understanding” of her own conduct, the judge said. She attended counselling. She made significant mistakes, but made “equally significant progress towards understanding those mistakes.” She showed a commitment to not repeating them.
Crucially, the mother also showed a willingness to facilitate the children’s contact with the father, whereas — needless to say — the father didn’t show any such willingness regarding the mother. It is well-settled law that in making a custody order “the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.” This is from s.16(1) of the current Divorce Act, and the amended one, coming into force July 1, 2020, will say essentially the same thing at s.16: in making a parenting order, the court shall take into consideration “each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse.” The takeaway here is that, generally speaking, if you fail to encourage your kids to have a relationship with your ex, you will have an uphill battle getting a judge to support this choice.
The decision in this case was nevertheless difficult, explained the judge. If the children remain under the father’s control “they will not have a relationship with their mother until well into adulthood.” On the other hand, “removing them from their father will cause them trauma.”
Trauma or not, removing them from the father was the lesser of two evils, and the judge ordered it.
Not surprisingly, the father appealed. He lost. In the decision, B(RM) v. B(DT) [appeal], the Alberta Court of Appeal said “it is in the children’s best interests to have meaningful relationships with both of their parents. We urge both parents to work meaningfully towards this goal, for the sake of their children.” The appeal court added that the children “should move to their mother’s residence at the earliest opportunity,” noting, perhaps also unsurprisingly, that the children are currently living with a friend.
For advice on family law issues and fertility law issues, contact Shirley Levitan.