A recent decision of the Alberta Court of Appeal has held that completely terminating a child’s right to see a parent after a separation is a remedy that should only be taken in the most extreme circumstances. According to the court, a previous record of abuse against the child’s mother was not sufficient to fully extinguish parental access rights.

A History of Violence Against the Mother

In the case at hand, the child’s mother and father (the appellant) were together for ten years before separating in 2018. They had one child together, a son who was five years old at the time of the original hearing. The couple had separated after the mother obtained an emergency protection order (EPO) against the father which prohibited him from having contact with both the mother and the child.

The underlying events of the order eventually resulted in the appellant pleading guilty to assault and breaching the EPO. He was sentenced to 24 months of probation and was only permitted to have access to his son if approved by his Probation Officer or permitted by court order.

Tragically, the mother was killed in a motor vehicle accident one month after this sentence. She had three children from a previous relationship, one of whom was an adult daughter. The other two were teenagers at the time of their mother’s death. The adult daughter, the respondent in the case at hand, applied for and was granted an order for guardianship of her younger siblings, including the appellant’s son. She was also granted a restraining order against the appellant without notice, with respect to herself and each of her siblings.

Guardianship Granted to the Child’s Adult Sibling

The respondent was granted an order for substituted service with respect to the guardianship application. She was permitted to serve the father via text message and two separate email addresses. Notably, this service included only the order for service and not the guardianship application itself. In September of 2019, when the daughter was granted guardianship over her siblings, the father requested a hearing on the issue of service and was denied. He is currently appealing that decision in a separate action.

Simultaneously, he applied for a stay of the guardianship order pending the appeal regarding service, as well as for an interim order granting him supervised access to his son. The chambers judge dismissed both applications, and the father appealed.

The Chambers Judge Relied on Hearsay Evidence

The appeals court found that the chambers judge had relied on hearsay evidence when dismissing the father’s claim. In particular, the respondent had provided letters from her younger siblings (not the appellant’s son) which stated the appellant had been violent towards them, as well as his own son, in the past. In considering these letters, the chambers judge failed to adhere to Family Practice Note 2, which states that a court may not consider hearsay evidence contained in letters or unsworn statements that have been appended to a party’s affidavits.

The appeal court went on to say that especially in a case involving parental access, accepting the unsworn evidence of minor children is particularly problematic and may be damaging to the children at issue in a matter. The letters provided in the case at hand were undated and untested and contained highly prejudicial information. The circumstances under which they were written were also unknown.

The Maximum Contact Rule

The appeals court was not satisfied that the chambers judge gave adequate consideration to the maximum contact rule, which states that a child should be granted maximum contact with both parents, to the extent that this contact is consistent with the child’s best interests. The appeals court was not satisfied that four hours per week of professionally-supervised contact between the father and son would put the child at risk of physical or emotional harm.

The court also went on to say that:

In reality, there are few parents who are declared unfit to the extent they are deprived of all contact with their child. Terminating a child’s right to visit with and know his father is an extreme remedy which should only be ordered in the most exceptional of circumstances…Presumptively, children are entitled to a relationship with both of their parents, and that relationship is limited only to the extent it is in the child’s best interests to do so. 

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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