Siegel's Family Court Calendar

“There has been much research over the past decades in relation to the concept of alienation and other parent-child contact problems. In Ontario, Dr. Barbara Jo Fidler, Pr. Nicholas Bala, Pr. Rachel Birnbaum, Pr. M.G. Saini and Dr. Shelley Polak, among others, have been prolific researchers and writers on this very challenging topic. In a recent article penned by Dr. Fidler and Pr. Bala, they explain that there are many possible intersecting predisposing, precipitating and perpetuating factors that can contribute to the development of different types and cases of parent-child contact problems. Widely recognized factors include:

1. 1. 1. 1. 1. child factors (age, cognitive capacity, temperament, vulnerability, special needs and resilience);
            2. parent conflict before and after the separation;
            3. sibling relationships;
            4. favoured parent factors (parenting style and capacity, negative beliefs and behaviours, mental health, and personality, including responsiveness and willingness to change);
            5. rejected parent factors (parenting style and capacity, negative reactions, beliefs and behaviours, mental health, and personality, including willingness to change);
            6. the adversarial process/litigation;
            7. third parties such as aligned professionals and extended family; and
            8. lack of functional coparenting, and poor or conflictual parental communication.

According to these authors, there is a growing consensus among those who use the concept of alienation about typical behaviours and perceptions exhibited by an alienated child, favoured parent, and rejected parent which lead to a conclusion that a parent is engaging in alienating behaviours. After reviewing 58 studies of parent-child contact problem cases in 2016, researchers found that “there is remarkable agreement on the behavioural strategies parents can use to potentially manipulate their children’s feelings, attitudes, and beliefs in ways that may interfere with their relationship with the other parent. The cluster of symptoms or behaviour indicating the presence of alienation in the child can also be reliably identified.” See M.A. Saini, J. Johnston, B.J. Fidler, & N. Bala, “Empirical studies of alienation”, in Leslie Drozd, M.G. Saini, and Nancy Olesen, Parenting Plan Evaluations: Applied Research for the Family Court, 2 ed (New York: Oxford Academic, 2016); Fidler & Bala, 2020. Typical behaviours in those cases include:

1. 1. 1. 1. 1. portraying the other parent as dangerous;
            2. exaggerating and exploiting the other parent’s behaviour, negative attributes and challenges;
            3. undermining;
            4. parentifying the child;
            5. oversharing legal and other inappropriate information with children;
            6. co-opting children as messengers, spies and confidants;
            7. conspiring with children to withhold information, keep secrets and mislead the other parent;
            8. surreptitiously contacting the children when they are with the other parent;
            9. withholding parenting time and being inflexible around scheduling;
            10. withholding love and affection from the child if they do not share and act on the parent’s views;
            11. disparaging the other parent’s family members;
            12. co-opting neighbours, therapists, school personnel and others in an effort to garner support and turn them against the other parent; and
            13. believing it is their right, supporting or permitting a child or adolescent to make a life altering decision to never see a parent again.

Alienating behaviours also include what the parent does not do, such as actively supporting the child’s relationship with the other parent, failing to correct the child’s defiant, aggressive, destructive, and omnipotent behaviour, or without admonishment permits the child to change the established practice and refer to and call the other parent by their first name: Same as above. See also Fielding v. Fielding, 2013 ONSC 5102, 39 R.F.L. (7th) 59, at paras. 136-143.

It is also widely accepted that there is a wide range of severity in parent-child contact problem cases; natural affinity with the favoured parent, alignment with the favoured parent (arising from a loyalty conflict), realistic estrangement (often because of a rejected parent’s past abuse or poor parenting), and true alienation (where the estrangement from the rejected parent is unjustified). Even in the context of the latter, the severity of the alienation can range from mild to severe. Severe alienation (which often includes mental illness and/or personality disorders in the alienating parent) is seen when the alienating parent, “feeling above the law and with malice, deliberately fabricates or knowingly makes unfounded abuse allegations to intentionally discourage, interfere or prevent the child’s contact with the other parent.”: B.J. Fidler & P. Ward, “Clinical decision-making in parent-child contact problem cases: tailoring the intervention to the family’s needs”, in Abigail M. Judge & Robin M. Deutsch, Overcoming Parent-Child Contact Problems: Family-Based Interventions for Resistance, Rejection, and Alienation, (New York: Oxford Academic, 2017) (“Fidler & Ward, 2017”).

It is now widely acknowledged by researchers and academics that parent-child contact problems are best understood from a multi-factorial perspective. While there are cases in which a child’s rejection is totally the fault of one parent, in most cases both parents bear some responsibility for the estrangement and rejection.”

            Ginese v. Fadal, 2024 ONSC 2427 (CanLII) at 204-208

“Whether the parties were living separate and apart during the disputed years is a question of fact.  In Oswell v. Oswell (1990), 1990 CanLII 6747 (ON SC), 74 O.R. (2d) 15 (Ont. H.C.), Weiler J. (as she then was) reviewed the criteria a court should consider in determining whether spouses living under the same roof are living separate and apart:

1)      There must be a physical separation (which might include occupying separate bedrooms). Spouses may still be considered as living separate and apart if they remain in the same house for reasons of economic necessity;

2)      There must be a withdrawal by at least one spouse from the matrimonial obligation with the intent of destroying the matrimonial consortium;

3)      The absence of sexual relations is relevant but not conclusive;

4)      Additional factors that may also be considered include:

a.   The discussion of family issues and communication between the spouses;

b.   The presence or absence of joint social activities;

c.   The meal pattern;

d.   The performance of household tasks; and

e.   The manner in which income tax returns are filed.

The true intent of the respective spouses must be regarded over their stated intent in considering the above factors.”

Morris v. Morris, 2025 ONSC 2483 (CanLII) at 74

“Domestic arbitrations in Ontario must be decided in accordance with the law. Arbitrators are accorded broad deference for matters within their jurisdiction and in defining the scope of their jurisdiction. But they are not free to ignore the law or to decide cases in accordance with their whims.”

Eyelet Investment Corp. v. Song, 2024 ONSC 2340 (CanLII) at 1

 “Section 30(1) of the Children’s Law Reform Act provides as follows:

30 (1) The court before which an application is brought for a parenting order or contact order with respect to a child, by order, may appoint a person who has technical or professional skill to assess and report to the court on the needs of the child and the ability and willingness of the parties or any of them to satisfy the needs of the child.

An assessment under s. 30 should not be routinely ordered. If the court can reasonably decide the issue without the assessment, it should not be ordered. The assessment must be reasonably necessary to assist the court in determining the issues before it: Kramer v. Kramer (2003), 2003 CanLII 64318 (ON SC), 37 R.F.L. (5th) 381, at paras. 36, 41. A “clinical issue” is not required before an assessment order is made: Glick v. Cale, 2013 ONSC 893, at paras. 40-46. The court also must consider whether the intrusive and time-consuming nature of an assessment would outweigh its benefits: Kramer, at para. 51.

An assessment should not be used as a general fact-finding exercise by one parent hoping to obtain evidence favourable to their position: Haggerty v. Haggerty, 2007 ONCJ 279, at para. 7; Baillie v. Middleton, 2012 ONSC 3728, at para. 43.

The mere fact that the parties are engaged in a high-conflict parenting dispute does not, in itself, justify ordering an assessment: Baillie, at para. 31.

The burden is on the party seeking the assessment to demonstrate that it is reasonably necessary.

Glick provides a non-exhaustive list of criteria to consider in determining whether an assessment is reasonably necessary:

a) What was the parenting relationship like before separation? Did the parents function at least adequately before the separation and the dysfunction arose after the separation?

(b) Are the parents unable to make any decision about the child’s needs (including education, religion, health, and activities) without intervention by a court?

(c) Without defining “high conflict”, is the relationship between the parents so unhealthy that one or both parents is/are unable to identify the best interests of the child and act on it?

(d) Do the parents have a mutual disregard for the other parent’s ability to parent?

(e) Do the parents blame each other for the dysfunction each describes?

(f) Is there a clinical diagnosis that might impact on the parenting capacity of one or both parents?

(g) Is there a clinical diagnosis with respect to any of the children in the family unit that means the child is fragile and vulnerable to ongoing conflict and has special needs?

(h) What is the age of the child at separation and at the time of the request for the assessment?

(i) Is the child manifesting behaviour that might be associated with stress caused by the conflict between the parents?

(j) Is there an alternative? For example, is the child of an age and maturity that his or her views should be known and if so, would it be more appropriate to ask the OCL to become involved and appoint a lawyer to act for the child?

(k) Are there other challenges in the family such as whether the family home must be sold? If those challenges are resolved, will the family dynamic be improved and avoid the necessity of an assessment?

(l) What is the basis upon which the moving party relies? Is it essentially a mobility case on which the court must hear evidence? Is the issue custody or access?

(m) What is the estimated cost? Do the parents have the financial resources to pay that cost?

(n) Will the assessment cause delay that is not in the best interests of the child? In considering the impact of delay, is it more likely than not that the delay necessarily involved in an assessment will enable the parents to have a better understanding of the family dynamic and arrive at a resolution without a trial?

(o) Is an assessment in the best interests of the child?

Tsiriotakis v. Rizzo, 2024 ONSC 2339 (CanLII) at 117-122

“Pursuant to section 40 of the Family Law Act, the court may make a preservation order to preserve or restrain the depletion of a party’s property in order to protect the other party’s entitlement to support.  The court must consider whether there is a real risk that a party’s claim for support could be defeated if a preservation/non-dissipation order is to made: Ross v. Reaney, 2003 CarswellOnt 2240, at para. 25; Fraser v. Fraser, 2017 ONSC 3774 at para 58; Cummings v. Cummings, 2020 ONSC 3093 at paras 77-84; Bronfman v. Bronfman, 2000 CanLII 22710 (Ont. Sup. Ct.), at paras. 22, 28.”

          McArthur v. Le, 2022 ONSC 2110 (CanLII) at 95

“As I have said, under s. 23 of CLRA, an Ontario court can exercise jurisdiction over the custody of a child and refuse to order the child’s return to the child’s habitual residence where satisfied that the return would, on a balance of probabilities, cause “serious harm”. Case law on the meaning of “serious harm” relies on a similar, though not identical provision in The Hague Convention. Under art. 13(b) of the Convention, an Ontario court would not be bound to order the return of the child if the person opposing the return establishes that “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”

Despite the difference in language, in their interpretation, courts appear largely to have equated the standard of “serious harm” in s. 23 of the CLRA with the standard of “grave risk [of] expos[ing] the child to physical or psychological harm or otherwise plac[ing] the child in an intolerable situation” in art. 13(b) of the Convention.

The leading Supreme Court of Canada case on the meaning of “grave risk of harm” and “serious harm”, decided nearly a quarter of a century ago, is still Thomson v. Thomson, 1994 CanLII 26 (SCC), [1994] 3 S.C.R. 551. Thomson was a Manitoba case decided under the Convention. But La Forest J., who wrote the majority reasons, also considered s. 5 of the Manitoba statute, which, like s. 23 of Ontario CLRA, used the standard of “serious harm” without mentioning an “intolerable situation”. Despite the different language between the two provisions, he held at page 596: “[T]he inconsistencies between the Convention and the Act are not so great as to mandate the application of a significantly different test of harm”.

Justice La Forest then discussed the meaning of “grave risk of harm” under art. 13(b) of the Convention. Relying in part on an English decision, he held that the harm could be physical or psychological, but that the standard is stringent – the harm from the child’s return must be sufficient to amount to “an intolerable situation”:

It has been generally accepted that the Convention mandates a more stringent test than that advanced by the appellant. In brief, although the word “grave” modifies “risk” and not “harm”, this must be read in conjunction with the clause “or otherwise place the child in an intolerable situation”. The use of the word “otherwise” points inescapably to the conclusion that the physical or psychological harm contemplated by the first clause of Article 13(b) is harm to a degree that also amounts to an intolerable situation. …

Nourse L.J., in my view correctly, expressed the approach that should be taken, at p. 372:

…the risk has to be more than an ordinary risk, or something greater than would normally be expected on taking a child away from one parent and passing him to another. I agree … that not only must the risk be a weighty one, but that it must be one of substantial, and not trivial, psychological harm.  That, as it seems to me, is the effect of the words ‘or otherwise place the child in an intolerable situation’.

I hasten to add, however, that I do not accept Twaddle J.A.’s assessment that the risk contemplated by the Convention must come from a cause related to the return of the child to the other parent and not merely from the removal of the child from his present caregiver. As this Court stated in Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3, from a child centred perspective, harm is harm. If the harm were severe enough to meet the stringent test of the Convention, it would be irrelevant from whence it came. [Emphasis in original.]

Ontario courts typically have used this passage for the meaning of “serious harm” under s. 23 of the CLRA. Undoubtedly, as La Forest J. said, the harm can be physical or psychological or both, and it must be greater than would ordinarily be expected from taking a child from one parent and returning the child to the other parent.

Still, in Thomson, La Forest J. acknowledged that the standard in the Convention and the standard in the legislation (in that case Manitoba’s) are expressed in different terms. He did not discuss the significance of the difference in any detail. Instead, he concluded that “[i]n view of the findings that the facts [in Thomson] did not meet the tests of harm either as expressed in the Convention or the Act, I need not delve into this issue (emphasis added).” The harm alleged in that case was psychological harm upon separation from a parent, and would not have met the requirements of either the statutory or the art. 13(b) standard.

I conclude that the standard of “serious harm” required by s. 23 of the CLRA is less stringent than the standard under art. 13(b) of the Convention.”

          Ojeikere v. Ojeikere, 2018 ONCA 372 (CanLII) at 52-58

“The appellant did not argue that the OBCA was a juristic reason in the court below. Principles of fairness usually militate against hearing new issues on appeal. The responding party may be at a disadvantage, having not led evidence on the issue in the court below. A related concern is that the record may not be sufficiently robust to permit appellate adjudication. Finally, new arguments on appeal do violence to the principle of finality. The appellate court is not a forum for revisiting tactical decisions that were unsuccessful at trial.

However, like most rules, the rule against new arguments on appeal has exceptions. Exceptions arise where the concerns that animate the rule can be adequately addressed. This is one such case. There is no missing evidence. The appellant has advanced a new theory, but it hinges on the evidence that was adduced in the court below. When asked, the respondent could not identify any additional evidence that she would have led on the issue. Therefore, the respondent is not at any discernable disadvantage, and this court has what it needs to adjudicate the issue on the merits.”

          Chapman v. Ing, 2025 ONCA 292 (CanLII) at 17-18

“It is now trite to say that full disclosure is the lifeblood of family law and that the absence of disclosure is its cancer. However, such statements occasionally need to be repeated.”

          Figaro v. Figaro, 2025 ONSC 2348 (CanLII) at 1

“The appellant raises one legal issue on appeal: she contends that there was no material change in circumstance that would permit the motion judge to revisit the parenting schedule. We disagree. The motion judge found a material change on two bases: 1) that the children were 10 years older than they were at the time of the original order; and 2) that the children had been consistently asking for more time with the respondent. These amount to a material change in circumstance.”

Diaz v. Bol, 2025 ONCA 277 (CanLII) at 5

“When an arbitration agreement provides that an award made under it may be appealed on a question of law, a party dissatisfied with the award may appeal on such a question to the Superior Court of Justice as of right. But when no such appeal is provided for in the arbitration agreement, a party may only appeal an award on a question of law with leave of that court, and only “[i]f the arbitration agreement does not deal with appeals on questions of law”: Arbitration Act, 1991, S.O. 1991, c. 17, ss. 45(1) and (2) (the “Arbitration Act”).

In other words, the Arbitration Act contemplates three different scenarios regarding appeals to the court on questions of law. The arbitration agreement may expressly provide for, be silent on, or preclude such appeals. In the first scenario there is an appeal as of right; in the second, there is an opportunity to appeal but only with leave; and in the third, there is no appeal or right to seek leave to appeal at all.”

Baffinland Iron Mines LP v. Tower-EBC G.P./S.E.N.C., 2023 ONCA 245 (CanLII) at 1-2