Ban 'parental alienation' arguments in family law cases, feminist coalition urges federal government

NAWL calls on Ottawa to amend Divorce Act The National Association of Women and the Law is calling on the federal government to amend the Divorce Act.

A coalition of more than 250 feminist organizations from across Canada are calling on the government to reform the Divorce Act and ban the concept of “parental alienation” in family law cases, calling it a “sexist and unscientific theory” that undermines survivors of domestic violence and puts children at risk.

The National Association of Women and the Law (NAWL), a law reform organization working to improve women’s rights in Canada, held a press conference on Tuesday to urge Minister of Justice Arif Virani to ban parental alienation accusations in legal disputes.

When one party alleges they are the victim of parental alienation during a custody battle, it means that parent is accusing the other of turning the child or children against them through psychological manipulation, by inventing false stories of abuse or repeatedly badmouthing the other parent to the child.

Suzanne Zaccour, director of legal affairs at NAWL, called the concept “pseudoscience,” adding that the association is seeing this tactic being increasingly used in custody cases in which women have alleged their partner is abusive, sometimes resulting in courts placing children back in the custody of abusers because they believe the abuse was invented to “alienate” the child from that parent.

“Across the country, victims of family violence are being disbelieved, silenced and punished,” Zaccour said in the press conference. “Mothers who dare speak up about the fathers’ violence are treated with great suspicion and children who express their wishes to not reside with an abusive father lose their voice, as they’re thought to be confused, lying, or brainwashed.”

The coalition sent letters to Virani and Prime Minister Justin Trudeau earlier Tuesday morning, Zaccour said, highlighting what the coalition says it believes is a “Canada-wide crisis that is destroying countless lives.”

The coalition spans national organizations as well as organizations from all provinces and two territories.

Speakers highlighted a UN report published last summer, which urged urgent reform to stop family courts from dismissing credible allegations of domestic violence or coercive control. The report specified that “parental alienation” was one of several “pseudo concepts” causing “grave consequences” for parents and children.

Nneka MacGregor, executive director of WomenatthecentrE, said that she has seen this tactic used to separate mothers from their children.

WomenatthecentrE is a survivor-led organization aiming to end gender-based violence. Five women in her organization have seen their children taken away from them and placed in the custody of their abusive ex-partners due to the use of the parental alienation argument in court, Macgregor said.

“Parental alienation accusations are not about protecting children, but are about covering up for abuse,” she said in the press conference. “By design, parental alienation accusations are a tactic to silence survivors, a way for the abuser to shift the narrative, shift the focus away from their violence.”

And the tactic is increasingly showing up in Canadian courtrooms, adding to the urgency of the coalition’s call.

“We have seen a rise in the prevalence of parental alienation accusations in family law cases,” Deepa Mattoo, executive director of the Barbra Schlifer Commemorative Clinic, said in the press conference.

The Toronto-based clinic offers legal representation and interpretation services to women who have experienced abuse.

“This trend adds complexity to the legal cases, making it increasingly challenging for survivors, particularly women, to find a path to safety,” Mattoo said. “The rise in accusations underscores the urgency of implementing legislation to safeguard survivors and promote a fair and just legal system.”

She added that marginalized and racialized women, as well as those from immigrant communities, “bear the brunt of these accusations.”

Murky definitions and rising concern

Parental alienation has long been a controversial concept, with proponents suggesting it represents an under-explored type of abuse and critics pointing to a lack of scientific backing and the serious risk of the term being misused.

Although some researchers and clinicians have pushed for parental alienation to be considered a form of emotional child abuse or a syndrome that children can be diagnosed with, the medical community at large does not recognize it and the term does not appear in the DSM-5, which classifies mental disorders.

The World Health Organization has stated that the term is not a health-care issue but one that is “relevant to specific judicial contexts” and that “there are no evidence-based health-care interventions specifically for parental alienation.”

Although the concept lacks medical consensus as a syndrome, it has become a common term in the complex and often tumultuous world of family law. But issues such as a lack of consensus on how to differentiate between parental estrangement (when a child has clearly justifiable reasons to feel estranged from a parent) and what is described as parental alienation have left gaps in the system that some experts say can be dangerous.

“For years, feminist experts and researchers have raised alarm bells about this issue,” Zaccour said.

“In the last decade, there have been a few experts or custody evaluators bringing these concepts to the courts and not letting the courts know that this is a controversial concept.”

In some cases, youth prevention services have been “trained to apply this framework,” Zaccour said, “without (having been) explained all the limits and all the criticisms of this concept.”

In 2023, it was announced that a Quebec mother who had been deprived of contact with her children for more than three years after she was accused of parental alienation was suing a regional health authority, the youth protection system and the Quebec Human Rights Commission. She alleged that the youth protection workers were not properly trained and that her claims of her ex-husband being physically abusive were ignored.

The issue of parental alienation causing messy legal situations has been seen in jurisdictions beyond Canada. A 2022 investigation by The Observer into family law cases in England and Wales found that the cases often relied on experts with unknown credentials and that allegations of domestic abuse were sometimes downplayed once parental alienation was brought up to counter them.

Parental alienation as a legal argument can be used by a parent of any gender, but the fear highlighted by NAWL and the rest of the coalition is that it is increasingly being used as a tool to perpetuate and conceal gender-based violence against women and children.

In Canada, women are more likely to be the victim of intimate partner violence than men. According to data collected in 2018 by Statistics Canada, 44 per cent of women reported experiencing some form of intimate partner violence in their lifetime. Indigenous women were more likely to report having experienced it, with 61 per cent of Indigenous women reporting at least one experience with intimate partner violence since they were 15 years old.

The increasing use of this tactic in family law cases is scaring some women out of reporting violence in the first place fearing that if they bring up abuse, their partner will later accuse them in court of inventing the abuse as part of a malicious scheme to poison the child’s mind, MacGregor said.

“Beyond its impact on individual cases, the concept of parental alienation has a chilling effect,” she said. “It makes survivors not want to leave, not want to raise the fact that they have experienced violence. This places them and their children at risk. If the mother does not raise abuse, courts won’t know that they need to protect the child from the father. But if the mother does raise abuse, courts find her to be alienating. Either way, the children lose.”

“If our government is genuinely concerned about the safety and wellbeing of children, it needs to listen to us. It needs to act now.”

Zaccour said they were hoping to secure a meeting with Virani to discuss the call for a ban on parental alienation.

“As long as the women and children are not free to disclose family violence, any measure meant to help victims of family violence will not be sufficiently effective.”