When parents of minor children divorce, courts across Canada generally encourage as much contact with each parent as possible (known as the ‘maximum contact rule‘), as the belief is that children benefit from seeing their parents regularly. However, when a parent is found to be abusive or otherwise pose a threat to their child’s safety, this will be taken into consideration. For example, we posted in April about a father who was denied access to his children because he refused to heed public health guidelines regarding COVID-19.

In a recent case from Ontario’s Court of Appeal, a mother defended her right to keep her children in Canada despite a father’s request that they visit him in Kuwait. While this is an Ontario case, the decision will likely hold weight in other provinces as courts attempt to balance parental rights with the best interests of the child in access cases.

Mother Fled to Canada with Children

The parents had lived in Kuwait, where they married and had three children. They remained together until the mother claimed that the father attacked her in front of their children in 2018. The mother claimed the attack was preceded by a history of physical and sexual violence. The parents entered into litigation in Kuwait, but before the matter concluded, the mother opted to leave Kuwait with her children to seek refugee status in Canada. In her absence, the court in Kuwait convicted her for kidnapping and ordered that she obey her husband.

The father brought an application in Ontario for the return of his children to Kuwait. Despite the fact that the children were not ordinarily resident in Ontario, the mother asked the court to exercise its jurisdiction under. 23 of the Children’s Law Reform Act (CLRA), which states:

23 Despite sections 22 and 41, a court may exercise its jurisdiction to make or to vary an order in respect of the custody of or access to a child where,

(a) the child is physically present in Ontario; and

(b) the court is satisfied that the child would, on the balance of probabilities, suffer serious harm if,

(i) the child remains in the custody of the person legally entitled to custody of the child,

(ii) the child is returned to the custody of the person legally entitled to custody of the child, or

(iii) the child is removed from Ontario. 

The lower court declined to claim jurisdiction over the matter, deciding that the mother was unreliable and had also conditioned her children to speak negatively about their fears with respect to their father. Despite the fact that three experts validated the children’s concerns, the court did not attribute significant weight to them. The mother appealed the decision.

Provincial and International Legislation Demand That the Voices of Children Be Heard

On appeal, the ONCA considered the rights of the child under both the CLRA and the International Convention on the Rights of a Child. The CLRA holds that the threat of serious harm to a child is enough to avoid contact with a parent, and the Convention holds that the voices of children must be taken into account with respect to any child-related family law matters. In this case, the children had all been clear that they feared harm if they were to be returned to their father’s care.

Secondly, the ONCA determined that the children were entitled to protection while they awaited a decision on their asylum claim in Canada. The ONCA did not want to further delay the decision while the asylum claim was in progress, as the children had already begun to show signs of trauma, including anxiety and a variety of physical symptoms. The ONCA remitted the case back to the Superior Court for immediate determination.

This case demonstrates the importance of listening to children in family decisions, particularly when their physical and/or emotional safety is at risk. It is not simply enough to attribute a child’s concerns to the manipulation of a parent.

The family law lawyers at Mincher Koeman are exceptionally experienced with respect to child custody and access disputes following the breakdown of a relationship. We will work with you to ensure a custody and access arrangement that fits your family’s specific circumstances. Further, we have assisted multiple clients facing issues or concerns relating to domestic violence in seeking and obtaining emergency protection orders. Contact our office today by calling us at 403-910-3000 or contact us online.

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