P.A.R. v. M.L.R., 2011 ABQB 246

Court of Queen ’ s Bench of Alberta Citation: P.A.R. v. M.L.R., 2011 ABQB 246 Date: 20110411 Docket: 4803 136109 Registry: Edmonton Between: P.A.R. Plaintiff - and - M.L.R. Defendant Editorial Notice: On behalf of the Government of Alberta identifying information has been removed from this unofficial electronic version of the judgment. _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Brian R. Burrows _______________________________________________________ [ 1 ] Dr.

P.A.R. seeks an order directing that the children of the marriage attend a program designed to restore the relationship between a parent and a child when the child has become alienated from the parent. He further seeks an order directing a bilateral custody assessment by Dr. Brian Hindmarch and interim access. He also seeks a determination that M.L.R., now M.B., was in contempt of previous orders of the Court and directing a sanction for the contempt.

[ 2 ] The parties were married in 1991 and separated in 2005. They were divorced in February 2008. They have two daughters aged 15 and 12. After the parties separated they had a shared parenting regime. This ended in the fall of 2007. Since then Dr. R. has had very little contact with his daughters. [ 3 ] Both daughters are alienated from Dr. R.. Both have made it clear that they want nothing to do with him. In December 2007 a consent order directing a Practice Note 7 Intervention was granted. Since early 2008 the matter has been in case management. Sulyma J. was the case management judge.

Recently I was assigned to take her place. [ 4 ] Dr. Bonnie Haave was engaged to conduct the Practice Note 7 Intervention. Her intervention commenced in May 2008. On their first contact with Dr. Haave, both daughters, then aged 12 and 9, clearly stated that they never wanted to see their father again. They raised concerns for their safety with their father. [ 5 ] Dr. Haave provided counselling to the children for the purpose, among others, of assisting them to develop a healthy ongoing relationship with their parents. After 4 counselling sessions, Dr.

Haave reported that both girls continued to clearly state that they “never want to see their father again”. Their concerns for their safety when with their father continued. [ 6 ] Dr. Haave’s June 10, 2008 report provided particulars of the basis the daughters stated for their concern. Dr. Haave recommended a “structured intervention process” where one psychologist would work with Dr. R., another would work with Ms. B., and she, Dr. Haave, would continue to work with the children. [ 7 ] This recommendation was implemented. By September 2008 Ms. B. had met with the psychologist assigned to her five times, Dr.

R. had met with the psychologist assigned to him twice, both parents had met together with both psychologists three times, and Dr. R. had met with one or both daughters and the psychologists once. [ 8 ] However, there was no improvement in the daughters’ attitude. They continued to say that they did not want to have contact with their father. The meetings involving Dr. R. and his daughters had been obviously stressful and unproductive. [ 9 ] The effort to restore the relationships continued for a short time but on October 1, 2008 the three psychologists reported that the intervention had failed.

They said: At this point we are suggesting that this matter return to Court as we see both [daughters] to be clearly alienated towards their father and Ms. B. is unable to ensure the participation of the children in the process. The children have not seen their father (other than the brief time at CHVB) for the past year. It is often seen that the complaints voiced by alienated children such as, “I don’t feel safe” are vague, difficult to substantiate with factual information, and often relate to historical aspects of the marital conflict rather than the parent/child relationship.

As stated in a previous letter Dr. R. is seen to have been cooperative with all aspects of our process and his behaviour has been appropriate in the brief interactions with his daughters. [ 10 ] The psychologists were critical of Ms. B.’s participation. Though she had attended appointments and stated that she believed the children should have a relationship with their father, “she continues to rehash historical concerns regarding ‘safety’ for the children and for herself rather than taking actions to move this process forward”. [ 11 ] On December 3, 2008, the Court directed the intervention to continue.

On April 25, 2009 the psychologists reported that little progress had been achieved. Though she participated as required, the psychologists did not find that Ms. B.’s contributions were helpful to the goal of the intervention. They found Dr. R.’s participation to be appropriate. There were several sessions involving the daughters. However there was no discernable progress. The psychologists reported: Both [daughters] have consistently stated that they will not have a relationship with their father and their mother meets all of their needs

so they do not need him. Although Dr. R. has been positive and responded appropriately in all sessions [the elder daughter] continues to express emotional concerns about her safety in any situation and [the younger daughter] refuses to interact with him. Both [daughters] have been unwilling to interact with their father in a positive manner and any verbal interaction is negative. [ 12 ] The psychologists concluded that Ms. B. and the daughters were entrenched in their positions, and that further sessions would not be productive and “indeed, may prove harmful to the children and the family restructuring process”.

They referred the matter back to the Court for further direction. [ 13 ] In May 2009, Dr. R. applied for access to his daughters. He acknowledged that the intervention had failed. On May 13, 2009 Sulyma J. ordered that Dr. R. have access for four hours on three consecutive Thursdays and that the matter be reviewed on June 2. [ 14 ] It appears that the suggestion of involving the children in an alienation workshop program was raised at the May 13, 2009 case management application.

It was not mentioned in the Notice of Motion or in any affidavit filed in connection with the application, but Sulyma J. ordered: Counsel to contact CHVB to request their opinion on the following: a. Whether or not it would benefit the children to make use of the alienation program from California, with the process occurring in Edmonton, and b. Whether or not a similar program exists in Alberta and if that would benefit the children. [ 15 ] On May 22, 2009, Dr. Carter advised Sulyma J. and counsel by letter that CHVB had no knowledge of the program Dr. R. had suggested other than what Dr.

R. had told them about it. They did not consider they were in a position to evaluate the program for the Court. They said further: . . . we are not aware of a program existing in Alberta similar to the one Dr. R. is recommending. In fact the only awareness we have of extreme measures being taken with such families are cases where the Court has taken action such as removing children from an “alienating” parent and placing them in foster care and sanctioning the “alienating” parent.

They provide no information as to the success of such measures. [ 16 ] The first two access visits ordered on May 13 did not proceed smoothly. One or both of the children threatened to commit suicide in connection with the requirement that they have contact with their father. But the third access visit occurred without incident. [ 17 ] On June 2, 2009, Sulyma J. ordered that Dr. R. would have access every weekend from Friday after school to Sunday evening. He would also have access to take the children to a family wedding in Saskatchewan. [ 18 ] It appears that in June 2009 Dr.

R. again raised the subject of an “alienation workshop” conducted by a Dr. Warshak in the United States. As far as I can determine from examining the court file, again the proposal was not made in a Notice of Motion. Indeed the court file does not disclose exactly what Dr. R. was proposing. [ 19 ] In the affidavit he swore in connection with the June 2, 2009 application he deposed: I have continued to have discussions with Dr. Rand and Dr. Warshak at the PAS recovery program in California who have continued to advise me that the children would be in a category of severe alienation given the circumstances.

They have advised me that continuing on this particular path with limited access could have very serious consequences for the children.

[ 20 ] It appears that in the discussion at the application on June 2, 2009, it was determined that further information should be gathered. On June 2, 2009, Sulyma J. ordered Dr. R.’s counsel: ... to make inquires of the PAS program in the US with respect to the following:

a) Their membership and professional associations;

b) How long the program has been in place and where it is in place;

c) If Dr. Randy Rand and Dr. Richard Warshak have private clients or some institutional clients;

d) Copies of the Curriculum Vitae of Dr. Randy Rand and Dr. Richard Warshak;

e) What the general age groups are of the children being dealt with in the alienation program;

f) If Dr. Randy Rand and Dr. Richard Warshak or other members of their association do custody assessments similar to the assessment in Alberta. The order appears to have contemplated that the question would be discussed at a further case management application before the end of June 2009. [ 21 ] On June 5, 2009, Sulyma J. vacated her June 2 access order so far as it related to the elder daughter. She ordered a pediatric psychiatric assessment of the elder daughter. [ 22 ] It appears that on June 5, 2009, counsel for Dr.

R. provided Sulyma J. with further materials in connection with the “alienation workshop” concept which had been addressed in the June 2 order. Exactly what those materials were is not clear. On this application I have been provided with a 2009

article entitled “ The Family Workshop: Using Insights from Social Science to Reconnect Irrationally Alienated Children With Their Parents”. The author is Richard A. Warshak, Ph.D. I assume this is what was provided to Sulyma J. on June 5, 2009. If the information ordered to be provided in the June 2 order was ever provided, it was not filed on the court file. [ 23 ] On June 12, 2009, Dr. R. contacted police when his younger daughter did not arrive for his access period. The police report on the court file indicates that the daughter had run away from school earlier that day. When the daughter returned to Ms.

B.’s residence, Ms. B. drove her to Dr. R.’s residence but the daughter refused to leave the vehicle. The police advised Dr. R. to “remove [the child] from the vehicle”. When he tried to do so Ms. B. prevented it and drove off. Police efforts to intervene the next day failed. Late on June 13, the police made contact with Ms. B. and arrested her for breach of Sulyma J.’s order. She was released from custody on June 15, 2009. [ 24 ] On June 24, 2009, Sulyma J. ordered that the younger daughter also be assessed by a pediatric psychiatrist. The subject of the “alienation workshop” is not mentioned in the order.

Neither was it mentioned in any materials filed in connection with the application that lead to the order. [ 25 ] In September 2009, Dr. R. was without counsel in this matter. He filed a Notice of Motion seeking a wide variety of orders including an order granting him sole custody of his daughters and an order:

Directing that the Applicant be permitted to utilize, at his discretion, any and all resources he deems appropriate to best facilitate the healthy adjustment of the children to the change in interim custody, within Canada, including but not limited to the services of Doctors Rand and Parnell, in Ontario. A copy of the

article that has been provided in the materials filed on this application was exhibited to his affidavit. [ 26 ] On September 17, 2009, Sulyma J. ordered that a psychiatrist arranged by Child and Family Services do an assessment to determine whether any further counseling for the children was required or recommended. The order encouraged the parties to work with a mediator to work out a parenting agreement and arrange access visits between the children and their father as soon as possible. Dr. R. was not granted sole custody.

No order of the nature quoted in the preceding paragraph was made. [ 27 ] A child psychiatrist saw each of the children in October 2009 and reported in November 2009. The psychiatrist reported that both girls had stated that they did not wish to see or visit their father. They each told him that they feared their father and gave him particulars as to why they did so. They both acknowledged making suicidal comments in connection with not wanting to go to their father. But suicidal thoughts did not persist.

They both said they did not want to participate in further counseling having found the counseling in which they had been required to participate not helpful. The psychiatrist’s conclusion in respect of both girls was that they were suffering from “significant parent child interaction disorder with some adjustment symptoms in keeping with the context of the extreme stress of the ongoing custody dispute”.

In respect of each of them the psychiatrist found each to be “a very bright young lady who seems capable of making decisions”. [ 28 ] It appears there was a further case management application before Sulyma J. on February 23, 2010. There is no Notice of Motion relating to this application on the court file. The affidavit filed by Dr. R. is critical of the psychiatrist’s reports described in the preceding paragraph. He also discusses a program similar to the one he is now seeking to have ordered: Overcoming Barriers: An Exciting and Innovative Program for Alienated and Estranged Children.

It appears he sought an order that the children participate in this program. Ms. B. filed a responding affidavit. It does not appear that any order resulted from the application. Certainly none is on the court file. [ 29 ] There is on file, however, a letter dated February 25, 2010 from Dr. R. to Sulyma J. The first paragraph says: After considerable contemplation of your Order yesterday, for [my daughters] to be appointed counsel, with intense sadness I hereby abolish my application to enforce access for my children. After two paragraphs of further explanation for this decision, Dr.

R. indicated that he would seek only “reimbursement for failure to exercise time” under s. 40(

c) and (

d) of the Family Law Act, judgments for “multiple issues of contempt and perjury”, and costs. [ 30 ] I was assigned to take over case management from Sulyma J. in December 2010. The application now before me was made on March 7, 2011. [ 31 ] That is the context in which the application before me arises. [ 32 ] I have reviewed the affidavits filed by both parties on this application. I have considered the submissions made by counsel for both parties, both in writing and at the hearing of this application.

In my view the application for an order requiring the children to participate in an alienation workshop and for an order for a custody assessment must be dismissed. [ 33 ] The children, as noted, are now 12 and 15. The elder daughter is two months short of being 16 years of age. They have endured their parents’ battle for at least six years and possibly significantly longer - a very substantial portion of their lives. (This action was commenced in September 2005 but the record indicates there were earlier divorce proceedings commenced in 2001 and discontinued

after these proceedings were commenced.) They have been consistently adamant that they do not wish to have anything to do with their father since at least May 2008. There is no doubt that they are alienated from him. They have received extensive counseling. It has not served to change their attitude. Being required to have contact with their father causes them emotional distress. They each have gone to very significant lengths to avoid having such contact. [ 34 ] My first concern must be for the best interests of the children.

Given that extensive counseling efforts have caused the children obvious emotional upset and have failed, and given that the children have clearly voiced that they do not wish to participate in any further counseling, and given that this has been the situation for at least three years, the onus on Dr. R. in this application is very heavy. [ 35 ] This is the third or perhaps fourth time Dr. R. has sought a court order requiring that his daughters participate in an “alienation workshop”. Though the applications were not formally dismissed, no such order was granted on the previous occasions.

The evidence filed on this application is of the same nature as that which was filed on the previous attempts. It consists of copies of published academic articles. There is no evidence that anyone has considered the efficacy of the proposed program in the specific context of this case and in specific relation to these children. The court record indicates that on at least two previous occasions Sulyma J. indicated a need for more specific assessment of the proposal. None has been offered. [ 36 ] In order to make the type of order Dr.

R. seeks I would have to be satisfied that the likely benefit from the program he proposes clearly outweighs the harm that requiring his unwilling daughters to participate could cause them. As to the custody assessment, I would have to be satisfied that the anticipated benefit of requiring the children to participate in that process would justify the emotional upset the process would likely cause them. [ 37 ] The evidence Dr. R. has put before me is utterly incapable of satisfying the onus which in my view rests on him.

I therefore dismiss the application. [ 38 ] As to the contempt application, at the hearing of this motion I observed that there is no clear statement in any Notice of Motion or other pleading of exactly what action on the part of Ms. B. Dr. R. alleges amounts to contempt of Court. Ms. B. is entitled to know well in advance of any contempt motion full particulars of what conduct on her part Dr. R. alleges constitutes contempt and which provision in which court order he alleges she breached. If Dr.

R. wishes to pursue the issue of contempt further he may do so by filing a Notice of Motion providing those particulars. Heard on the 11 th day of March 2011. Dated at the City of Edmonton, Alberta this 11 th day of April 2011. Brian R. Burrows J.C.Q.B.A. Appearances: Tina Huizinga

for the Plaintiff D. Craig Spencer for the Defendant