Balancing the Best Interests of a Child With Allegations of Family Violence

Earlier this year, we wrote about changes to the federal Divorce Act coming into effect this month, including a prioritization of the best interests of the child in all parenting matters, as well as an increased focus on concerns around family violence. While these goals may seem to be aligned; after all, one would assume a child’s best interests would be to avoid contact with any family member if there was a concern that domestic violence could be an issue. However, a recent Ontario decision making a unique parental access order has highlighted that the best interests of the child may require a compromise in situations where the alleged violence does not concern the child.

Mother and Father in Court Dispute Over Parenting Time

The mother is a Canadian citizen, and the father is a citizen of Russia. The pair met in New York and eventually settled in the United Arab Emirates. The couple has one child, a young daughter. In December of 2020, the mother alleged the father was physically, emotionally, and financially abusive towards her, culminating in a brutal attack in which he dragged her down a road at a remote resort. On the day of the alleged attack, the mother took her daughter and fled from Dubai to Ontario. The father denied the abuse allegations and claimed the mother had been intoxicated on the day of the alleged attack and became violent with his grown daughter from a previous relationship.

After the mother relocated to Ontario, the father made an attempt to visit his child in Canada but was denied entry. The matter ended up in the Superior Court of Ontario for a determination with respect to parenting time for the father.

Best Interests of the Child & Family Violence Considerations

As part of the updates to Canada’s federal Divorce Act which took effect earlier this month, the best interests of the child are to be the only determining factor in deciding parenting issues. When examining a child’s best interests, courts are required to consider the following issues:

1. the nature of the child’s relationships with each spouse, with siblings and with other important people in the child’s life;
2. each spouse’s willingness to encourage the child’s relationship with the other spouse;
3. the child’s views and preferences;
4. the child’s cultural and linguistic upbringing, including the child’s Indigenous heritage;
5. the ability of each spouse to care for the child;
6. the presence of any civil or criminal court actions and orders that are relevant to the wellbeing of the child; and
7. the presence of family violence.

It is believed that it is in a child’s best interests to have as much contact as possible with both parents so long as this contact is not likely to have a negative impact on the child. Family violence is also now an official consideration for courts to take into account when making family law decisions. Family violence, under the legislation, may include any of the following:

• sexual abuse;
• threats to kill or cause bodily harm to any person;
• harassment, including stalking;
• the failure to provide the necessaries of life;
• psychological abuse;
• financial abuse;
• threats to kill or harm an animal or damage property; and
• the killing or harming of an animal or the damaging of property.

In this case, the mother alleged that the father had been violent with her, but not the child. The Court ultimately determined that the father was entitled to spend time with his daughter, and made a unique order taking the father’s inadmissibility to Canada under consideration.

Rather than ordering parenting time in Canada, the Court ordered the parents to meet on neutral ground at a resort in Turkey, where they would spend a month, allowing the father to spend time face-to-face with his child. The mother was permitted to bring a member of her family with her, presumably for her own safety. Further, the Court ordered that each of the parties’ travel documents would be secured during the visit, and ordered the father to put up a bond of $200,000.00 as security against the possibility he would unlawfully keep his daughter in Turkey or abduct her to Dubai. The Court chose Turkey as the location due to the fact that Turkey is a signatory to the Hague Child Abduction Convention.

The Court rationalized that “with very stringent safeguards to ensure the father’s compliance with this court order, the alleged risks of abduction are sufficiently mitigated to give me confidence that [the child] will be safely returned to Canada at the end of her stay in Turkey.” 

Case Raises Questions of Parental Safety

This case demonstrates a potential issue where there are concerns around family violence, but the violence has not impacted the child in question. When a parent has demonstrated violence against their co-parent, is it safe to order those parents to interact, let alone stay in close proximity for a month at a time? When the changes to the Divorce Act were announced, the Justice Department indicated it would monitor case law, academic research, and ongoing consultations to see how the changes were affecting real-life families. Perhaps this will be something to consider when it comes to future legislative amendments at the federal and/or provincial levels.

Contact Mincher Koeman in Calgary for High-Conflict Parenting Disputes

To discuss how concerns of family violence may impact your parenting dispute following a separation or divorce, please contact the compassionate lawyers at Mincher Koeman.

The family law lawyers at Mincher Koeman are exceptionally experienced with respect to parenting matters and mobility disputes following the breakdown of a relationship. We will work with you to ensure that your voice is represented in any dispute around the safety and/or relocation of your child(ren). Contact our office today by calling us at 403-910-3000 or contact us online.