Moore, Cournoyer, Baudouin

Appeal from a Superior Court judgment granting in part an application for damages. Allowed.

The mother believes that the father’s alienating behaviour caused the permanent breakdown of her relationship with her son and asked that the father be condemned to pay her $125,000 in damages. The trial judge held that a parent could be civilly liable due to a fault in the exercise of parental authority and concluded that there was parental alienation. She awarded the mother $30,000 in damages.

The principle established in Frame v. Smith (S.C. Can., 1987-09-17), SOQUIJ AZ-87111056, J.E. 87‑1003, [1987] 2 S.C.R. 99, does not apply to this case because, contrary to common law principles, compensation under civil law, inspired by French law, is based on a general liability clause. To date, the Quebec legislature has not excluded an action for civil liability in the exercise of parental authority. Moreover, civil law principles and opportunistic arguments do not object to the recognition of such an action; it cannot be legally excluded from the general Quebec civil law scheme based on the child’s interest absent legislative intervention in this regard.

However, the nature and limits of a liability action in this context must be strictly drawn. To establish the threshold of fault, it is necessary to first exclude a mere violation of article 600 of the Civil Code of Québec (S.Q. 1991, c. 64), that is, the “unilateral” exercise of parental authority or refusal to participate in effective co-parenting. The same is true and more of a standard that imposes a duty on the parent to actively improve the relationship between the child and the other parent.  

Nor can fault be based on the notion of [translation] “parental alienation”, a notion which is imprecisely defined. It is instead preferable to identify what could be fault in the exercise of parental authority. By considering the spectrum of parental alienation, fault must be reserved for rare cases of “pure” and characterized alienation, in the absence of any realistic estrangement or a combination of factors. The threshold of wrongdoing in circumstances where one parent alleges that the other parent caused the breakdown of any relationship with the child is therefore very high. Fault is based on proof of actions and remarks, generally numerous and systematic, over time that reveal an unjustified strategy to modify the child’s perception of the other parent and that leads a priori to a permanent breakdown of any relationship. The breakdown is caused entirely by the [translation] “alienating” parent. A causal connection between the parent’s behaviour and the child’s decision to sever any relationship with the other parent is an integral part of the fault. Last, the injury suffered by the other parent that gives rise to compensation, generally modest, cannot be prejudicial to the child’s interest.

In this case the evidence does not establish circumstances where the father’s actions caused the relationship’s breakdown, but instead a much more complex family dynamic. This is a realistic estrangement, i.e., a gradual decline of the relationships in reaction to the mother’s behaviour or more rigid approach. The father did not aggravate the situation, his actions and remarks instead sought to rebuild the broken relationship.

Text of the decision: http://citoyens.soquij.qc.ca