A Question of Parental Rights for a Child Born From Sexual Assault

Canada’s courts have long held that children should be encouraged to spend as much time with each of their parents as they can. The belief is that it is almost always in the best interests of a child to preserve their parental relationships whenever possible, even if the parents themselves do not have a positive relationship with one another.

However, there are exceptions to this rule. For example, changes coming to the federal Divorce Act in March of 2021 will require courts to consider family violence as a factor when deciding on parenting arrangements. This means that if one parent has been violent towards any member of the family, it could affect their ability to spend time with and/or parent their children. Under the expanded definition of ‘family violence’, a range of behaviours will fit within the expanded definition of ‘family violence’, including:

• Physical abuse
• Sexual abuse
• Physical threats
• Harassment and stalking
• Failure to provide the necessities of life
• Psychological abuse
• Financial abuse
• Threats, violence or damage to animals and property, such as the family home

In a unique case out of Alberta, the Provincial Court of Alberta had to weigh in on a father’s right to see a child conceived through an act of sexual assault.

Mother Was a Minor When Child was Conceived

The father, P.D., had met the child’s mother, L.M., when he was 29 and she was just 14 years old. They began a sexual relationship and L.M. became pregnant the following year, in 2014. When L.M.’s mother discovered the pregnancy, she filed charges against P.D. for sexual interference. P.D. was found guilty of sexual interference and sentenced to 45 months in prison in 2017. P.D. has been on day parole which is scheduled to end this month.

In anticipation of completing parole, P.D. brought an application seeking a declaration that he is a guardian of the child pursuant to section 20 of the Family Law Act. Further, P.D. sought shared decision-making ability with L.M. and supervised parenting time with his son. In response, L.M. brought an application seeking a declaration that she is the sole guardian of her son, as well as a sole parenting order.

Father Failed to Establish Guardianship Status Under s. 20 of the Family Law Act

P.D. claimed he had established the necessary intent to be the child’s guardian pursuant to s. 20 of the Family Law Act, because he had provided items such as diapers and clothing for the child, in addition to two payments of $750.00. He claimed to have offered regular child support payments, which L.M. rejected.

The Court held that despite the items/payments described above, P.D. had not demonstrated a bona fide intention to assume guardianship responsibilities for his son. Further, under s. 20(4) and (5) of the Family Law Act, the court may take occurrences of sexual assault, even in the absence of a conviction, into account when determining child guardianship. While P.D. was convicted of sexual interference and not sexual assault, the court found that P.D.’s touching of L.M. for a sexual purpose when she was under 16 years of age was sufficient to constitute a sexual assault under the Act.

Contact Time Not in the Child’s Best Interest

When considering a request for parental contact time, courts are required to take the child’s best interests into account. In the case at hand, P.D. was essentially a stranger to the child, who had not had regular contact with P.D. for a number of years. Further, P.D. had subjected L.M. to “predatory and misogynist” behaviour for several years. Allowing contact between P.D. and his child would subject L.M. to re-traumatization and put her mental wellbeing in jeopardy. As the child’s primary caregiver, L.M.’s mental health is essential to the child’s wellbeing. As a result, the court found that it was not unreasonable to deny P.D. contact with his son, even in a supervised context.

L.M.’s application to be declared to be the child’s sole guardian, and to deny contact between the child and P.D. was granted.

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 parenting arrangement that fits your family’s specific circumstances. Contact our office today by calling us at 403-910-3000 or contact us online.