Monday April 03 2023
Damages for Parental Alienation
In Quebec, the law states than an individual can claim damages following an injury. However, to be eligible for damages, you need to prove someone’s civil liability. To do so, three criteria need to be met. First of all, the person from whom you’re seeking damages from need to have committed a fault. To determine if the person has committed a fault, the Court will compare the alleged faulty action to how a reasonably prudent and diligent individual would act in similar circumstances. If the behaviour of the person diverges significatively from the behaviour of the hypothetical reasonably prudent individual, then, the action of the person can be qualified as a fault.
Subsequently, the plaintiff needs to prove that they sustained an injury. It can be a bodily injury, a material injury or a moral injury.
Once the fault and injury have been proven, the final element is to prove that the fault is the cause of the injury sustained by the Plaintiff.
These three elements must be proven by a preponderance of evidence. The preponderance of evidence rule states that the existence of an event must be more likely than its non-existence. Thus, once these three criteria are proven by the balance of probabilities, it is possible to obtain damages for the sustained injury according to the general principle of civil liability.
However, in June 2022, the Superior Court, in the decision Droit de la famille – 22741 expanded the possibility to claim damages in Family Law for cases of parental alienation. Parental alienation consists of different behaviours, such as actions, words, reactions, and attitudes, which can be conscious or unconscious, that incite the child to reject their other parent for no good reason.
Normally, the alienation of one parent toward the other is qualified as a deficiency in the parent’s parental skills rather than a breach of their civil obligations. However, this recent case law makes it possible to qualify parental alienation as a fault, since the actions that led to the rupture of the parent-child bond are a breach of the duty to jointly exercise parental authority.
Therefore, if a parent wants to obtain damages for parental alienation, they have to meet the criteria for civil liability hence they need to prove the fault, the injury and the causality, by a preponderance of evidence. Firstly, the decision in Droit de la famille -22741 qualifies parental alienation as a fault because the actions that led to the rupture of the parent-child bond are a breach of their duty to jointly exercise parental authority. Secondly, the damage is the loss of affection of the child toward the parent. Finally, it needs to be proven that said loss of affection has been caused by the alienating behaviour of the other parent.
Thus, following this recent case decision, a parent alienated by his child will possibly be able to claim damages from the other parent if the loss of affection is caused by the alienating behaviour of the other parent.
Me Gianina Fuschini,
In collaboration with Me Gabrielle Pagliuca,
Alepin Gauthier Avocats et Notaires
This text contains legal information of a general nature and should not replace legal advice with a lawyer or notary who will take into account the particularities of your situation.