Over the course of his long career, Canadian family lawyer Brian Ludmer, B.Comm., LLB., and the founder and primary agent of the Toronto practice Ludmer Law, has delivered informational presentations to judicial associations, legal organizations, and professional advocacy groups throughout the world.
Some of these sessions capture recurring themes from Brian Ludmer’s larger body of work better than others. One such presentation was delivered at the 2017 Parental Alienation Study Group (PASG) Conference in Washington, D.C., where he examined one of the most difficult issues in family law: namely, how courts should interpret and evaluate the voice of children in parental alienation cases.
Voice, but Not Choice
Revisiting the slideshow and talk, which was titled Managing the Voice of a Child in a Parental Alienation Case, one of the central themes Ludmer established was the distinction between giving children input, or “a voice”, and giving them the responsibility of determining which parent’s side to fall down on in a legal case, or “the choice”. While Canadian family law requires courts to consider the wishes and preferences of children where they can be reliably determined, Ludmer argued that those views should be evaluated within the broader context of the evidence.
Rather than asking only what a child wants and taking the resulting answer at face value, Ludmer explained that courts should also explore why the child holds those particular views, whether they reflect independent thinking, and if factors other than the child’s genuine wishes, such as loyalty conflicts or outside influence, may be affecting their response. In Ludmer’s view, children should feel that they have been heard and respected throughout the legal process without being placed in the stressful and unfair position of deciding the outcome of the dispute.
Ludmer went on to argue that one of the greatest challenges in parental alienation cases is distinguishing between a child’s authentic, independently formed views and opinions that may have been shaped by family dynamics, outside influence, or other psychological pressures. While acknowledging that Canadian law requires that, all things being equal, courts consider the preferences of any children involved in a family law case, he emphasized that the process must go beyond simply asking a child which parent they wish to live with. In his view, understanding the reasoning behind a child’s opinions is just as, if not more important.
During the presentation, Brian Ludmer also took a closer look at the role neuroscience can play in understanding how children and adolescents process high-conflict situations, as the very nature of family law disputes often places them in precarious positions. Drawing upon contemporary research, he discussed topics including:
- Adolescent brain development
- Memory formation and recall
- Suggestibility
- Critical thinking
- Loyalty conflicts
Ludmer suggested that children experiencing prolonged parental conflict may be particularly vulnerable to developing distorted perceptions or complex loyalty conflicts. These factors, he argued, should be considered whenever legal or psychological professionals are assessing the voice of the child in parenting disputes.
Evaluating Children’s Views in Court
Another major focus of the presentation was the practical question of how children’s views should be conveyed to the court. Brian Ludmer reviewed a variety of approaches, including assessments by children’s counsel and therapists, as well as child testimony and judicial interviews, while discussing in detail the strengths and limitations of each. Rather than espousing reliance on any one method, he instead advocated for careful consideration of the reliability and independence of the child’s views, together with the broader body of evidence before the court.
He also explored how courts respond when parental alienation is found to be affecting a child’s relationship with one parent. Ludmer discussed Canadian jurisprudence that places reduced weight on children’s expressed wishes where evidence suggests that coaching, unhealthy emotional dependence, or an inability to express independent views may be present. He further argued in favour of structured judicial interventions, ongoing case management, and clearly defined parenting expectations in cases where traditional therapeutic approaches have proven unsuccessful. These measures, he suggested, can lead to greater accountability while at the same time creating new opportunities to rebuild any damaged parent-child relationships.
The Takeaway
Summing up his presentation of Managing the Voice of a Child in a Parental Alienation Case, Brian Ludmer emphasized that giving children an opportunity to be heard is an important part of the legal process. At the same time, he argued that courts must very carefully evaluate how children’s views are formed, especially where parental alienation might be skewing their perceptions. His session at the 2017 PASG Conference in Washington, D.C. ultimately endorsed a multidisciplinary, evidence-informed approach combining legal analysis, psychology, and neuroscience when determining what is truly in a child’s best interests.
The full presentation can be downloaded in PDF form by searching Brian Ludmer’s author page on the University of Toronto platform academia.edu or by clicking here.
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