Remembering Justice Gomery

Remembering Justice John Gomery

At the Philadelphia conference held by PASG in 2019, there was an extraordinary plenary session where there were multiple presentations given by leading members of PASG in honour/memory of the first generation of pioneers in this difficult area of professional practice.

However, I don’t recall any tribute to a legal pioneer. Therefore, when it was reported in the National Post [one of Canada’s leading daily newspapers] in May 2021 that Justice John Gomery had passed at the age of 88, it occurred to me that a tribute to a legal pioneer would be an appropriate topic for this column.

The late Justice Gomery was a Judge of the Superior Court of the Province of Québec, where he distinguished himself as a jurist, not the least of which is in the case referred to below. He later went on to fame for some of the work he did in a Judicial Inquiry.

Justice Gomery studied law at McGill University and worked in private practice in Montréal before being made a Judge in 1982. During his career on the bench he led a team of judges that reformed statutory approaches to Family Law, which he later described as one of his proudest accomplishments. He retired to his farm southwest of Montreal in 2007, but remained active in public life.

A search of historical jurisprudence shows the somewhat undeveloped state of the law in the late 1980s when Dr. Gardner was formulating his construct of what was then referred to as “parental alienation syndrome”. However, as various publications of PASG members have shown, the earliest references to these concepts can be found in US and UK jurisprudence in the early 1800s and there is a fairly long history of the use of the phrase “parental alienation” in many contexts.

However, with some notable exceptions, Canadian responses were unsophisticated and cautious and not evidence-based.

A pertinent example can be found in the Province of British Columbia. In the early 1990’s and extending through the bulk of the 1990’s, there was the unfortunate case of Hart vs. Hart, where the concept of “parental alienation” was dealt with. However, only a tepid and ineffective intervention resulted for the child, who had been wrongfully withheld from his mother for many years. The lack of effective and expedient and timely intervention could not protect the child from the trauma and ultimately a death by suicide resulted. This saga is the subject of the book “A Kidnapped Mind” written by my good friend Pamela Richardson in memory of her son Dash (https://akidnappedmind.com).

It was in this rather undeveloped legal landscape that Justice Gomery conducted a Trial in Montréal with judgement rendered February 15, 1991. This decision, known by its acronym PSM vs AJLC, is still required reading today, more than 30 years later, for the tremendously insightful analysis and Judicial statements of understanding of child development and children’s needs, as well as for the remedy imposed.

Some of the early insight from this case was only empirically validated by other PASG members decades later, such as the statement by a social worker quoted in the Judgement as follows: “The complete and total rejection of a parent is almost never seen, even in cases where that rejected parent has abandoned or abused a child”.

The recognition of the dangers to the future mental health of alienated children, years prior to the well-quoted peer-reviewed work of various PASG members, is stated in the Judgment as follows: “[all four children] have chosen to renounce and suppress their natural feelings for the mother they love, or loved until the marriage broke down, and to identify themselves totally with the hatred for her, which animates their father. The Court cannot remain indifferent to the danger to their future emotional stability this behaviour represents”.

The dangers of a “one-sided assessment”, a common tactic of alienators who unilaterally take the children to see a therapist who will have no input from the other parent, was recognized as follows: “The Court has the impression that Dr. Lefevre allowed herself to be used by the Defendant. A Psychological Assessment which does not attempt to include the point of view of one of the parents is of limited value, and no explanation is attempted as to why the children were so openly hostile to their mother, for whom they had had great affection until only a short time before”.

PASG board member Dr. Abe Worenklein actually was involved in that case and provided thorough input on the dynamic the children faced. With the input from Dr. Worenklein, Justice Gomery specifically referred to Dr. Gardner’s work [this Trial taking place only several years after Dr. Gardner started publishing his analysis] and Justice Gomery provided the following pertinent insight: “The rejected parent is in a situation where he or she cannot do anything which is not perceived by the child as being bad or wicked. Even the most innocent remark or gesture is used by the child as evidence justifying the child’s alienation”.

The absence of empathy [both a key diagnostic criterion and an essential target of reconciliation therapy] is demonstrated by Justice Gomery writing: “the children have seen their mother weeping on many occasions, and they unanimously conclude that she is faking and that that is a demonstration of her lack of sincerity. They do not seem to be able to comprehend that their contemptuous rejection of her causes her genuine grief”.

The failure of conventional therapeutic interventions was also recognized by the Court: “Mrs. Greenberg testified about the failure of her attempts at therapy, a failure which she attributes to the systematic obstruction of her efforts by the Defendant”.

The Decision recognized the necessity to take children’s views and preferences in context where it appears they are not genuine:

“the desires and preferences of each child are factors to be taken into consideration, particularly in cases where the child’s wishes are freely expressed and are not influenced by pressure or manipulation. In this case, the wishes of the children, especially the younger children, may be safely ignored because they are the result of distortions of the truth that their father has told them, and the psychological pressure to which they have been subjected” … “Children do not always know what is best for them. The law leaves it to the Court to decide this question, when their parents are unable to agree, and the law does not state anywhere that the Court must be guided by what the children have to say, although it does require that they should be given an opportunity to be heard’.

Of the targeted parent, the Court observed:

“This case represents an extreme example of parental alienation syndrome. Plaintiff is not a perfect person and has not always acted wisely. She loses her temper at times and may use inappropriate language on those occasions. But nothing that she has said or done could remotely explain or justify the rejection and hostility to which she has been subjected at the hands of her children. She is, if anything, the woman who loves her children more than the average mother. She has never mistreated them. She is not mentally unstable as the children repeatedly suggest; indeed, her persistence and determination in pursuing this action are proof of a remarkable capacity to absorb rejection and humiliation and to continue to function in an optimistic manner”.

Of the alienating parent, the Court had the following observations and some great judicial rhetoric:

“Defendant has deliberately poisoned the minds of his children against the mother that they formerly loved and needed. In the Court’s opinion, a father who would act in this way represents a grave and persistent danger to the mental and emotional health of his children”.

“Hatred is not an emotion that comes naturally to a child. It has to be taught. The person who has taught the children to hate is their father. They would be better off if he were to be removed totally as an influence upon their development until they are able to withstand and reject his negative attitudes”.

As a result, Justice Gomery reversed primary residence and placed the younger two children with the targeted mother, while the older two children were deemed to be beyond the capability of being saved.

Interestingly, Justice Gomery alluded to one of the key criteria that would later be developed in Canadian jurisprudence when determining whether a placement with the targeted parent (and at least a temporary timeout for the favoured parent) can be justified: “the determining factor, in the Court’s opinion, is the simple fact that the Plaintiff is clearly a better and more loving parent than the Defendant. The children have a chance to love both of their parents if they are in the Plaintiff’s custody. No such possibility exists if they remain with the Defendant”.

Justice Gomery’s decision in this case was model for effective interventions in the years to come. For reasons that I have spoken about at various conferences, Canadian law developed quickly thereafter. After a slow start in Hart v. Hart (see above) the British Columbia’s Court of Appeal in 2007 stated in a frequently-cited case, that it is an error in law (i.e. no deference given to the Trial Judge on appeal) for a Court to make a finding of PA as the principle factor in a dysfunctional family system, but then fail to act decisively because of the concern of children’s short to medium-term adjustment. The BCCA held that focus must be on the evidence based concerns for the children’s future mental health. Canadian law is the most advanced in responses to PA of any system I have studied. It would not be until 2020 that we would see an almost identical decision come from the Court of Appeal for England and Wales.

Justice Gomery’s Decision was upheld on Appeal. Of interest to those who have been involved in this work for quite some time, is the fact that (PSM) the mother, Pamela Stuart Mills, moved to Texas where Pamela, and her new husband Robert Hoch, started a charitable foundation to help families in crisis. The Foundation, in the early 2000’s, established The Rachel House, one of the first and most prominent residential reconciliation intervention programs. Reconciliation services, going far beyond the formal residential program, extended for many years, with assistance to many families, legal and mental health professionals and other organizations and agencies.

Justice Gomery’s decision, and the family law reforms he advised on, have benefitted several generations of children and countless families in crisis. His analysis and judicial rhetoric from 1991 were far ahead of his peers and the decision remains a must-read more than 30 years later.

‘The Voice Of the Child’: A Primer on Judicial Interviews

Attorney Brian Ludmer gives an introduction to the pros and cons of judicial interviews of children in family law cases. Ludmer says that judicial interviews of children should only be used as a last resort, but also explains the best way to handle these interviews if they become necessary.

Victim to Hero: Motion for Compliance in Court – with Attorney Brian Ludmer

This was a live interview with Attorney Brian Ludmer, an expert in parental alienation. In this interview, Dr. Petra Deeter asked him for his advice on the legal strategy for handling a parental alienation court case and what alienated parents should do to help the professionals in their case.

How to fight parental alienation in court:
This is a live interview with Attorney Brian Ludmer, an expert in parental alienation. In this interview, we will ask him for his advice on the legal strategy for handling a parental alienation court case and what alienated parents should do to help the professionals in their case.

Attorney Brian Ludmer’s Bio:

In the course of overcoming challenges in his personal life, Brian has become skilled in family law, focusing on high conflict divorce, parental alienation and high net worth property and income disputes. Having fostered a successful resolution to parental alienation for his own family, Brian is actively sought out as lead or strategic counsel by clients on matters where this devastating and poorly understood form of child abuse hurts children and parents alike.

Brian is the co-author of the book “The High-Conflict Custody Battle: Protect Yourself and Your Kids from a Toxic Divorce, False Accusations, and Parental Alienation” with Dr. Amy J.L. Baker and Dr. Michael Bone entitledAttorney Brian Ludmer’s website: http://www.ludmerlaw.com/

Technology is Great, But It Will Never Replace a Hug

To say that 21st century technology has disrupted the way we conduct business and interact with one another is an understatement. Especially during the current shelter-at-home orders, technology has made our lives easier, placing more of our daily activities to the online web and being able to communicate across long distances.

While the emergence of mobile technology continues to have an impact on the way we communicate, many would agree, it is no substitute for human interaction. Humans are made to form relationships, to share our lives with family and friends. As the following article explains, the biggest difference between conversations that are held face-to-face and conversations that happen over technology is that they lack content. How can you ever really know for sure when someone is being sarcastic, funny, or serious.

Read on for more insight.

Parental Alienation International – PASG – March 2020

The Dilemma of Older Children

By Brian Ludmer

IN A RECENT SERIES OF ARTICLES, to be continued in a forthcoming issue, I have been
exploring the damaging role of counsel for children caught in a loyalty bind, particularly in
an alienation case.

There is a trend in the jurisprudence to appoint counsel for children in their mid-to-later teenage years, in order to ensure that such children “feel heard” in compliance with Article 12 of the UN Declaration on the Rights of the Child. An extreme example of where this process is almost inevitable is with older teenagers/young adults who, by virtue of a mental health issue (such as cognitive impairments and extreme autism) remain a dependent child under the applicable jurisdiction’s legislation, even upon reaching the age of majority.

What is frequently not adequately addressed by the legal systems, however, is that the mere advancing age of a child does not enhance either the accuracy, reliability or independence of the child’s stated views and preferences. Indeed, if an alienation dynamic had developed many years earlier, counsel for the child would really be speaking with the alienating parent through the child. Moreover, when considering the neuroscience of parental alienation, children become more susceptible around the ages of 11 to 12 years. Counsel may therefore be speaking with a child who is developmentally much younger than their chronological age. In both instances, counsel is not obtaining any independent mature views of the child.

The current emphasis in many jurisdictions about giving due “respect” to the “voice of the child” is in fact misplaced. As I have previously written, appointing counsel for a child is the most intrusive and least developmentally sensitive method of obtaining children’s views and preferences. This is because it is a “zealous advocacy” role, as opposed to a role advancing the child’s best interests. In a recent Ontario case in which I was counsel for the alienated parent, involving an almost 17-year-old child, the Court ratified counsel “inviting themselves to the party” to ensure that these trends of older child representation are respected. This occurred despite the self-appointment of counsel to act for a child in advance of Court approval, and with counsel interacting with, and taking Affidavits from, the child in question before being appointed by the Court two separate times (a motion in September 2019 and a subsequent Trial in January2020). There is an element of judicial strategy here, for the purpose of ensuring that the related Court Orders are binding on the child and to receive the child’s commitment to respect them.

Court Orders for parenting time apply until the age of majority. Complicating factors in many cases occur if
alienating parents have “primed” the child for many years to form an impression that at a certain stated age,
such as 12 years, they can “decide” the parenting schedule themselves, including cutting off contact with one
of their parents.

This is universally viewed as an abusive tactic and contemptuous of the then prevailing Court Orders. However,
the mythology of a child being able to decide at a stated age is rampant in parental discourse, schools, the helping professions and elsewhere. The false notion that children can decide their own parenting plan – rather than
children simply being heard, “a voice but not a choice” – afflicts many alienation cases. A complicating factor, which we have had to struggle with in a current case I am dealing with, is how to manage the concept of “withdrawal from parental control” or its colloquial phrase “emancipation.” Most jurisdictions, similar to Section 65 of the Ontario Children’s Law Reform Act, allow children the unilateral right to “withdraw from parental control” at the age of 16. However, unless the child was subjected to abuse and needs to create an independent life to avoid that abuse, “withdrawal from parental control” creates additional problems for the child. This is not a decision to be taken lightly, because the child would thereafter be on their own financially and unable to look to their parents for the basic necessities (food/shelter/clothing) as well as post-secondary education costs.

There is some jurisprudence regarding what a legitimate, good faith and non-tactical “withdrawal from parental control” looks like and this will no doubt be enhanced when additional jurisprudence fleshes out this area. Alienating parents seeking to misuse the emancipation provisions of applicable jurisprudence spend years creating for the child a fallacy that, at age 16, they can choose which parent they live with, while maintaining their status as a dependent child with all its benefits. This imagery, groomed over many years, is very difficult to shake and contributes to the over-empowerment of children. This over-empowerment is then reinforced by counsel who espouse the same political views.

This was neither the purpose, nor is it the accepted meaning, of the emancipation provisions of the various
family law legislation. This was clarified in the previously mentioned Ontario case that I was successful on.
Court Orders apply until the age of majority.

However, there is a group of lawyers who represent children who hold firm to the political view that they can
and should intervene, even without and/or prior to Court approval, in any situation where an almost 16-year-old
desires to assert an absolute veto over where they live. It is hoped that additional guidance will be forthcoming
which will clarify how counsel get appointed for older children and the appropriate role of such counsel. Further understanding is needed regarding the interplay between custody and access Orders (which survive to age 18) and the wishes and preferences of older children when independence is questionable.

Given the enduring mythology of there being some age, short of the age of majority, where children can decide their fate, instead of objective adults advancing their best interests, I leave our readers with a quote from the movie Inception about the power of the mythology of children making their own decisions: “Listen, there is something you should know about me… About inception. What is the most resilient parasite? Bacteria? A virus? An intestinal worm? –…. An idea! An idea is like a virus, resilient, mhighly contagious. Even the smallest seed of an idea can grow. It can grow to define or destroy you.Once an idea has taken hold of the brain, it’s almost impossible to eradicate. An idea that is fully formed – fully understood – that sticks; right in there somewhere.” This is the challenge facing counsel and others involved in a case with an older child who has been groomed by an alienator for many years.

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