Currently Browsing: Parental Alienation

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.

Parental Alienation International – PASG – January 2020

The Case Against Children’s Counsel – Part 3

By Brian Ludmer

PART 1 OF THIS SERIES on issues concerning children’s counsel indicate that generally appointing counsel for children is contra-indicated in cases where there are parental alienation concerns. Relatedly, in part 2 of this series, I provided analysis and key quotes from prior judicial decisions about how to contest the court appointment of counsel for children in such cases.

This article—Part 3—will explore some of the unique issues and concerns arising from a purported unilateral
(i.e., not with the prior approval of the court) retention of counsel either by the alienating parent or by a teenagechild with the consent, support, acquiescence, or tacit approval of the alienated parent. The law in most jurisdictions is clear—counsel for children only get appointed by the court and cannot be retained otherwise, even by a parent who has sole custodial or decision-making authority. The appointment of private counsel without court approval is contra-indicated, not only under most rules of procedure, but also because typically children do not have the financial, independent cognitive capacity, and independent perspective necessary to instruct counsel free from the influence of the alienating parent. Further, unilaterally appointing counsel for a child strips the court of the ability to consider other less adversarial ways of having children’s voices heard by the court and children to feel that their voices have been appropriately weighed and taken into account. In the earlier articles in this series I mentioned that therapists, parental coordinators, and custody evaluators are to be preferred over the appointment of an advocate who is to assert the directions of his or her own “clients” against the will of the child’s parents. Further, the legal advice to children is subject to the same issues of privilege as legal advice the parents receive and that contrasts with the other modalities from which children’s voices are heard and introduced to court.

Unilateral appointments also deprive the court of making the normal inquiries into whether the appointment is absolutely neutral and unbiased in appearance, procedure and effect. This requires the court to:
1. determine whether the child has the capacity in the circumstances to instruct counsel
independent of the wishes of his or her parents;
2. determine whether that appointment is necessary and in the best interests of the child;
3. and make the selection of the particular lawyer.

Issues of capacity, manipulation, and undue influence need to be explored in advance of the appointment. Where one parent has facilitated (financially and/or logistically) counsel for a child who would then purport to make an appearance and/or to serve materials on behalf of the child, the matter can be contested as an abuse of process and/or involving at a minimum the appearance of lack of independence of such counsel. The jurisprudence makes it very clear that counsel for a child must not only act independently but be seen to act independently. Where their informational base is provided only by the child (who may at the time be living with only one parent) or by the parent who facilitated the retainer, any advice or even worse affidavit materials prepared by such counsel by or for the child and/or discussed with the child should inevitably taint such counsel’s involvement and lead to their discharge.

Contracts with a minor are subject to rescission if not for a necessary item (food, shelter, clothing) in many jurisdictions. There is no support for the proposition that a lawyer is entitled to act for a minor child who contacts them absent a court order or parental consent from both parents. It should therefore be a “red flag” from the beginning where the one parent or a child has not indicated that both parents have consented. Further, as soon
as the other parent learns of the engagement and objects, the lawyer should stand down until further instructed
by the court. Meetings with children by a lawyer not appointed by the court should not take place until there
is court approval. A lawyer contacted in this regard may attend court to seek such appointment, but should not
have provided any advice, received any documentation only from one side or only from the child, or engage with the child in any way prior to such attendance and authorization. Relatedly, it has been held that interviewing a child prior to being appointed shows a lack of judgement even if the lawyer intended to act in good faith in his or her handling of the matter.

Further, in jurisdictions such as Ontario, Canada, where there is a government-funded program to provide counsel for children, representation from that independent government agency should always be preferred over a private appointment and it is almost always the practice of these government agencies to await appointment by the court before meeting the children.

Nor should a court ratify “after-the-fact” such unilateral appointments, as it would tend to bring the administration of justice into disrepute and cannot cure any prior tainting of the lawyer’s representation. Private counsel appointed unilaterally in such circumstances tend to exacerbate conflict, promote further litigation, and diminish any prospect of an amicable resolution. Children’s wishes need to be presented to court in a manner that is strictly free from the appearance of alignment and in a manner that affords the child a voice but does not necessarily embroil the child further or exacerbate what was already a high conflict matter. It is generally considered not in the best interests of the child to have the neutrality and independence of that child’s in-court representative in question by means of the manner of their original retainer. The appointment must be absolutely neutral and unbiased in appearance, procedure, and effect.

I have had an unfortunate amount of experience fighting off such appointments on the basis indicated above.
In some cases, full motion materials and affidavits have been prepared without the unilaterally retained lawyer
even reading the background materials and informing themselves independently of the issues in the case. Nor should unilaterally appointed counsel ever engage with third parties such as schools or purport to represent that the child has emancipated themselves (such as to apply for public funding) prior to a court declaration of emancipation, as this usurps the court’s role in making legal determinations and undermines the parental
authority.

While there is a current movement of trying to ensure that the “voice of the child” is heard in custody litigation,
well meaning but misinformed counsel can actually do a lot of damage to parent–child relationships by not following procedures meant to protect children’s relationships who are caught in a loyalty bind. The result of unilateral appointments is often an over-empowerment of the child and a further polarization of the child’s views and misapprehension of the child that “their counsel” will fight for them “against” one parent or the other.

Bill C-560: Canada’s solution to the divorce wars

Bill C-560: Canada’s solution to the divorce wars

In today’s society, it appears that divorce court has become a battleground where children are fought over by parents competing to be the “primary” parent or to avoid being marginalized.

The main focus of Bill C-560, which is scheduled for second reading on March 25, is for family law courts to place emphasis on Equal Shared Parenting (ESP) when considering the best interest of the children.

“The true purpose of Bill C-560 is to ensure that people remember that adults are divorcing each other, not their children and that Equal Shared Parenting is the best solution for the majority of families,” says Brian Ludmer of LudmerLaw who helped draft the wording for Bill C-560.

“There is a rebuttable presumption in favour of ESP, so for appropriate cases, the court will specify why a different solution was ordered. However, it needs to be established that the best interests of the children in a case will be ‘substantially enhanced’ by something other than ESP.”

The official summary of Bill C-560 states: This enactment amends the  Divorce Act to replace the concept of “custody orders” with that of “parenting orders.” It instructs judges, when making a parenting order, to apply the principle of equal parenting unless it is established that the best interests of the child would be substantially enhanced by allocating parental responsibility other than equally.

In the current system it is traditional for the parent who gets “custody” to have the children live with them for the majority of the time.

“Why do this to children who are used to seeing both of their parents every day?” asks Ludmer. “There is plenty of evidence that being marginalized from a parent is harmful to children and that ESP produces the best results for most children.”

Brian Ludmer (www.ludmerlaw.com) has become an authority in business law and family law: one by choice and the other by necessity. These two practice areas often intersect, allowing Brian to combine his unique insights on behalf of his clients. 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 found 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. He is an advisory board member to the Parental  Alienation  Awareness Organization and the International Support Network for Alienated Families, as well as a co-founder of Lawyers for Shared Parenting.

Contact: Brian Ludmer 416-781-0334 or (cell) 416-432-7444 or brian@ludmerlaw.com

(Brian is available for interviews between 1:15 – 2:15 pm or after 5:00 pm)

Media contact: Megan Bray 416-479-5261 or megan@ludmerlaw.com.

To Read More Brian Ludmer Posts Click Here

AdvocatePlus

View more AdvocatePlus posts

Uncovering income like assembling a financial puzzle

Uncovering income like assembling a financial puzzle

Establishing the true income of a support payor is a common struggle in matrimonial proceedings, but with due diligence and the proper tools, it’s possible to uncover close to a full financial picture, says Toronto family lawyer Brian Ludmer.

With a background in corporate-commercial and securities law and accounting, Ludmer, of LudmerLaw, has developed templates to use in forensic investigations to determine income and

to find hidden accounts and assets, and says the process is similar to solving a detailed puzzle.

“I understand accounting and I understand finance, and I have seen the games that people play,” he says. “The fields of forensic accounting and business valuation mesh very nicely with financial disputes in family law, insurance or commercial litigation when it comes to this sort of analysis. Once you focus on what it is you’re looking for, you have to have discipline, you have to think creatively, and you have to say, ‘They’ve said this, and if it’s true, what does it mean? If those assertions are true, I should be able to look at this other account and see certain things;’ and then you go and test that.”

Determining income in a support case is “generally a fairly straightforward exercise,” says Ludmer, but it becomes more complicated when suspicions exist around whether the payor is hiding income, accounts and other assets.

“When you get their tax returns and bank statements and you know they’re not being truthful, you have to put on your forensic hat and do an investigation to prove that their actual income is higher, and to uncover hidden accounts,” he says.

“The first thing you do is a lifestyle and net worth analysis. You’ll look at how they’re living and what they’re spending and it won’t mesh with their income. Unless you see capital assets coming down, debt going up or family help – or a combination of those three – they have to account for the fact that what’s being spent doesn’t mesh with what is being declared for tax purposes. You’ll start there, and it may explain at least part of the delta.”

If the issue isn’t solved by the first step, the investigation goes deeper, says Ludmer.

“From there, you assemble lots of different data points, and they all need to mesh perfectly. If they don’t, you’ve got the beginning of the trail of bread crumbs that you’re going to follow,” he says.

“No. 1 is their taxes. No. 2 is if they’ve published other statements as to their income (such as in other proceedings, in credit or insurance applications or in statements to third parties they wish to impress).”

All credits and debits in any accounts (asset, investment, savings or debt accounts) must be traced to the third-party payor or payee. Transfers and inter-bank deposits are often tips to the existence of other accounts. Payments made to third parties that cannot be traced back to specific entries in known accounts are sure signs of the existence of other undisclosed accounts, Ludmer explains.

In family law, you have family law financial statements that are mandatory and they give you a spending budget. When analyzing the declared budgets, at times it’s important to not only look out for certain expenditures, but also to survey what the individual isn’t budgeting for, says Ludmer.

“If I don’t see them paying their rent or condo fees or mortgage anywhere out of the accounts they’ve given me, and in their budget, I know there are other accounts,” he says. “I’m going to want to see the monthly car insurance payment, property taxes and food. If I don’t see enough being spent on food and restaurants, I know there’s another account.”

Withdrawn cash that’s unaccounted for is another tip off, he adds, as are partial payments.

“I also always ask for statements from any cash discounting services they may have used and will ask for those statements if I cannot account for where all known cheques are deposited,” he says.

“If I see they took a trip to England, I need to see airfare and hotel and entertainment and cash withdrawls, not just one or two incidental charges,” adds Ludmer.

“I need to understand the story behind every element of income and expense,” says Ludmer. “It’s about getting your head inside this person’s life until you think from their perspective.”

Third-party reports, accounting and statements must mesh with the target’s own financial records, or else there is another forensic red flag, Ludmer explains.

“You’ve got bank, credit card and investment accounting statements and you have third-party statements generated in the ordinary course of business (such as customers and suppliers and partners),” he says. “These need to fit like pieces of a puzzle.”

There are several reports from the Canada Revenue Agency (CRA) the person being investigated can be asked to produce, including one that accounts for all of the individual’s debits and credits, says Ludmer.

“CRA keeps records for very long periods of time, and you can ask for a 15-year report,” he says.

“Anybody can generate a tax return off of a program and sign it and say, ‘This is what I filed,’ but it may not be what they actually filed,” he says. “By seeing all the debits and credits, you’ll see the interactions between the CRA and  the individual. They may provide you with the initial Notice of Assessment, but the CRA statement of account will detail reassessments that you would not have otherwise known of.”

Third-party statements can also be a valuable tool, says Ludmer.

“If you provide various types of services on an individual contractor basis, the person paying you may have to file a form with the federal government – it’s part of their reporting, so the lawyer can ask for those forms to verify as many cash flows as possible.”

An often missed step in the process is asking for HST returns and statements of account, says Ludmer, noting they’re “the best indication of the gross revenues the individual has actually received, aside from cash revenues, which require other analyses.”

Ludmer says: “When most people are going to game the system, they’re not going to show any growth, so not only do I want to see HST returns, I’d want to see where the HST was paid from, and the HST statement of account from the CRA.”

When all the data is assembled together, says Ludmer, and if the inflows, outflows and other data from the various sources are incomplete or conflict, “I’ll know there’s another bank or investment account (or several) they haven’t given me.”

It’s also important to monitor how the individual is acting throughout the process, says Ludmer, since “people who are under financial pressure act a certain way. They curb discretionary expenditures. Creditors are chasing them. Their credit ratings fall. There may be litigation and executions. There’s a profile to someone who is actually under financial pressure as opposed to just asserting that they are.”

Ludmer says the process he follows mimics the way forensic accountants and CRA auditors are trained and is useful in many areas of law.

“You just deploy this process and you ask for answers and eventually it comes to light,” he says. “The type of people who cheat on child or spousal support think they can get away with it, so you have to ask the questions and when the answers don’t fit, it starts to unravel. It’s a fascinating exercise that’s also very difficult  and time consuming.”

Ludmer says, “Most people follow too linear a process, asking for tax returns or

bank statements, but don’t even know what to do with the data when they get it. They don’t realize they haven’t asked for enough and haven’t followed the hints in the materials they have received.”

This is an area where Ludmer’s combination of business, accounting and family law experience creates synergies for his clients.

To Read More Brian Ludmer Posts Click Here

AdvocatePlus

View more AdvocatePlus posts

Social science research supports Bill C-560: Ludmer

Social science research supports Bill C-560: Ludmer

The need for fundamental reform related to contested custody cases has been well documented, and Bill C-560, a private member’s bill proposed by Conservative MP Maurice Vellacott, represents a reasonable, balanced approach to fixing the broken system, Toronto family lawyer Brian Ludmer writes in a Law Times commentary.

The bill, which Ludmer helped draft, calls for changes to the Divorce Act, with the primary proposal being a rebuttable presumption that equal shared parenting would support the best interests of the children unless a party can establish that another parenting plan would substantially enhance those interests, the article says.

While the act currently calls for a consideration of maximum contact with both parents, reported decisions show the great majority are still following a primary and secondary parent model, writes Ludmer, of LudmerLaw.

“Social science research overwhelmingly supports the more current understanding that children need, benefit from, and want two primary parent relationships after separation rather than one parent and someone they go to visit,” he writes. “Among the leading experts globally is Prof. Ed Kruk of the University of British Columbia. He recently published a book with a synthesis of the rationale for equal shared parenting and a listing of the leading global peer-reviewed research.”

Ludmer writes: “Bill C-560 recognizes that the current effort to specify with precision a specific time-share between a primary and secondary parent isn’t logically or empirically justified. Custody litigation seeking to marginalize one parent has no discernible benefit when measured against the financial and emotional cost and the impact on the children of litigation.”

Public opinion polls have consistently shown up to 80-per-cent support for equal shared parenting across all demographics, regions, and political affiliations, says Ludmer, who has also prepared a myths and facts guideline related to Bill C-560.

Parliament is set to debate Bill C-560 today, to be followed by a second reading vote later this month.

To Read More Brian Ludmer Posts Click Here

AdvocatePlus

View more AdvocatePlus posts

« Previous Entries