Common law is the body of law that is derived from what judges have said in cases that have come before them. The common law is how judges have interpreted how to apply the BC Family Law Act in separating and divorcing families. In common law, if a higher court says something about a case with similar facts, the lower courts are bound by what the higher court says when they make their decisions.
So, when untangling the laws on parental alienation in BC, we have to look at both the common law decisions and the BC Family Law Act. An interesting fact is that the BC Family Law Act does not even mention the concept of parental alienation syndrome but focuses on children’s best interests. It is the judges view on parental alienation that guides us.
The definition of parental alienation is when a parent, either purposefully or unconsciously, has a systematic campaign that undermines a child’s relationship with the other parent. It is a form of child abuse because it can have a lasting effect on the child and on their relationship with the other parent. The laws on parental alienation are clear that a child is entitled to have a relationship with both of their parents. Sole child custody occurs very rarely.
In this article, we shed light on the legal consequences of parental alienation.
Laws on parental alienation are based upon the assumption that when a parent undermines a child’s relationship with the other parent, it is not in the child’s best interest and is, in fact, a form of abuse.
It increases the likelihood that the child will have a future damaged relationship with that parent, and will affect that child’s future adult relationships as well as relationships with their own children.
Children should be allowed to enjoy and create their own relationships with each of their parents. If a child is told or taught to denigrate or reject one of their parents (despite the fact that it is highly likely that the child loves the other parent, it is profoundly unfair to the child).
So, is parental alienation abuse? We say, yes, it is and many parenting experts agree.
Now let’s turn to the legalities.
If you are reading this article, you might be interested because parental alienation is happening to your kid. If you are asking if parental alienation is illegal or if parental alienation is a crime, you are asking a good question.
In the BC and Canadian legal context, something is “illegal” or a crime when it goes against legislation that has been created by governing authorities. For example, we all know that driving while intoxicated is illegal and a crime (it goes against the criminal code), parking in front of a fire hydrant is illegal (goes against our city bylaws), driving without a seatbelt is illegal, and cheating on your income taxes is illegal and if you do it severely enough, can be considered a crime.
In order for something to be “illegal” or a crime it has to violate a law, that is law that has been written down in legislation that is readily available to the public. As a society we say certain behaviours are illegal or a crime for the betterment of our society. Individuals who violate such laws can end up facing certain penalties. In this case, an “offender” may be caught by a law enforcement officer and ultimately charged with the offence and potentially found guilty or penalized by having to pay a fine.
Saying it another way, when something is “illegal” or a crime means that we, as a society, have decided that in order for our society to run properly, people have to follow certain rules and guidelines. We have people hired (like police officers, crown prosecutors, and parking commissionaires) to enforce such laws.
However, when it comes to the question of parental alienation charges, a police officer, crown counsel, or a parking commissionaire will not have jurisdiction to prosecute such an issue, nor is such an offence set out in any of our legislation.
When it comes to the very significant problem of parental alienation, it is up to the parent fighting parental alienation to bring the issue forward and to protect their kids from parental alienation abuse.
Unlike when something is deemed to be “illegal” or a crime and someone is punished for their actions when someone has proven parental alienation in court (against the other parent), the focus is not on punishing the other parent, but instead upon preserving the best interests of the child.
When suing for parental alienation, the remedy a parent is looking for is focused on ensuring the child will be okay, not on the fact that the alienating parent was doing something “illegal” and needs to be punished for the betterment of society.