This article is an adaptation of a comment that first appeared in Éditions Yvon Blais in September 2024 (EYB2024REP3787).
Québec lawmakers have yet to disallow civil liability actions concerning the exercise of parental authority. The recent case of Droit de la famille – 24915 provides a detailed analysis of the nature and limitations of this type of claim, and explores the concept of “parental alienation.”
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In this case, a mother instituted an action in damages in Superior Court, alleging that her relationship with her son had been permanently severed because of the father’s alienating behaviour.
The trial judge held the father liable, concluding that he had unilaterally exercised parental authority and encouraged the son’s opposition toward his mother, and that parental alienation had occurred.
The Court of Appeal (the “Court”) stressed the importance of placing the child’s interests at the center of the analysis, asserting that compensation for a loss must not compromise the family’s dynamics. The Court concluded that the trial judge had erred in holding the father responsible for the deterioration in the mother-child relationship, when in fact, it was the result of a complex and nuanced family dynamic.
Though the Court recognized that civil liability actions are possible in cases of parental alienation, it ruled that the parties’ situation in this case did not meet the threshold for establishing fault.
The Court held that fault must be proved by clear evidence of repeated and systematic behaviour aimed at altering the child’s perception of the other parent without justification, resulting in the permanent severing of their relationship.
A finding of parental alienation must be reserved for clear and exceptional cases, where the severed relationship results solely and directly from the deliberate actions of the “alienating” parent that undermine the interests of the child. This onerous burden of proof aims to prevent civil liability actions from becoming a means to regulate parenting.
Comment: The exercise of parental authority requires an enormous amount of care, devotion and cooperation. This legal concept is rooted in the personal and private sphere of the family unit. In some situations, parental authority has a public interest component, and intervention is necessary for the sake of the child.
This decision explores and recognizes the notion of “parental alienation,” which is already widespread in the language used by the courts: thousands of decisions have referred to it in various contexts. However, this practice has been called into question by stakeholders in the legal field and by women’s support advocates. They have voiced concerns that a parent (typically the mother) might not report violent behaviour out of fear that the other parent could accuse them of causing alienation. Use of the concept, though widespread, therefore remains controversial.
The Court of Appeal does not dispute that the notion of parental alienation exists in Québec law. There is a legal foundation for the concept, which allows unhealthy or toxic family situations to be reported. The Court maintained, however, that an action in civil liability is not the occasion for debating the role, limitations and application of parental alienation, which should instead be dealt with by Québec’s family law courts.