Parental Alienation in Ontario Custody Cases: What Courts Look For

If your child suddenly refuses to see you, repeats things that sound like they came from the other parent, or seems to have been pulled away from you, it is natural to look for a name for it. Many people call it parental alienation.

This article explains how an Ontario court generally approaches this concern, what evidence tends to matter, and the options that may follow. A child can resist contact for many reasons, so the court looks at the whole picture.

How the court frames the issue

Under the Divorce Act, the court considers only the child's best interests when making a parenting order, and gives primary consideration to the child's physical, emotional and psychological safety, security and well-being. The label "alienation" is not the test. The court asks what arrangement serves the child.

Parents who were never married, or who are not divorcing, need a parenting order under Ontario's Children's Law Reform Act instead. A lawyer can confirm how the provincial rules apply to your situation.

The best-interests factors that matter most here

The Divorce Act factor list includes several that speak directly to this concern:

• each parent's willingness to support the child's relationship with the other parent;
• each person's ability and willingness to communicate and cooperate;
• the history of care and the child's need for stability;
• the child's views and preferences;
• any family violence.

The family violence factor is important. A court may refuse a parent parenting time if there is a fear that the parent may harm the children, harm the parent with decision-making responsibility, or not return the children. A child's reluctance can have different explanations, including safety concerns, so the court looks at the facts of each case rather than assuming a cause.

What the child's voice can add

The court considers the child's views and preferences and gives them due weight according to the child's age and maturity, unless those views cannot be ascertained. A judge can order the Office of the Children's Lawyer to provide a voice of the child report summarizing the child's statements, typically for children over seven. That report is due within 30 days after a clinician is assigned, while a full Children's Lawyer Report takes about 90 to 120 days.

A party has 30 days after receiving an OCL clinician's report to serve and file a statement disputing it. Do not coach your child about what to say. Doing so can hurt your own case.

Evidence and possible remedies

Evidence is usually practical and factual. Past conduct such as a mental health history or past substance use is not considered unless it is relevant to the person's exercise of parenting time, decision-making responsibility or contact. Keep to what is relevant to the child.

• Dates of missed or cancelled parenting time and the reasons given.
• Messages and emails between you and the other parent, kept in full.
• Notes on what the child said and when, without questioning the child.
• Records of your own efforts to stay involved, such as school and medical contact.
• Any reports from teachers, doctors or counsellors.

Orders can be tailored. A parenting order can set communication requirements and provide for any other matter the court considers appropriate, which can include video or phone contact. It can impose terms, conditions or restrictions, and it can require that parenting time or exchanges be supervised. Parenting time can also be supervised by a trusted person, a paid professional or trained staff at a Supervised Access Centre.

For parents with a history of serious conflict who already have a court order or parenting agreement, parenting coordination is a private process in which the coordinator can decide how to interpret the order or agreement. It is usually a paid private service. None of these options is an automatic entitlement, and the court decides case by case.

What to do next

If you have an order that is not being followed, the court can take action against a person who did not comply without good reason, including a fine or jail. If your order no longer fits the situation, a court order can only be changed by a new decision from the court. Under the Divorce Act, the court must first be satisfied there has been a change in the circumstances of the child since the order was made.

Start by writing down a timeline and gathering your records. Then speak with a family lawyer about whether mediation, a motion or a clinician's report suits your facts. Free family mediation is available at Ontario courthouses on the day you are in court.

Frequently asked questions