Domestic violence and moving with children

Canadian Lawyer on a recent Supreme Court of Canada decision regarding the best interests of the children, and proposed relocation far away from the other parent:


In a family-law case concerning parental relocation, the Supreme Court of Canada has affirmed that any family violence incident is a significant factor in a best-interests-of-the-children analysis.


The SCC released its reasons in Barendregt v. Grebliunas last Friday. The family-law dispute initially concerned a mother’s application to relocate her two children from Kelowna, BC, where the father lived, to Telkwa, a community in Northern BC more than 1,100 km away. The trial judge had ruled in the mother’s favour, relying on two key issues: the couple’s acrimonious relationship, which involved a violent incident committed by the father, and the father’s financial ability to make the home in Kelowna habitable.


“The Supreme Court, I think, sends a very clear message that any family violence in any of its forms, whether it be physical abuse, psychological abuse, financial abuse, is always a relevant and important factor that Canadian courts should consider when analyzing what is in the best interests of children,” says Darius Bossé, who acted for the mother.


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According to Feeney, several of the court’s observations will assist lawyers dealing with family violence cases. She says the SCC countered the appeal court’s view that the violent incident would not impact the children, nor affect the abuser’s parenting ability, by citing evidence of the “lifetime of harms” children incur from family violence.


Another key aspect of the SCC’s findings is the statement that family-violence allegations are difficult to prove. In that context, proof of even one incident may raise safety concerns for the victim and may be important in the best-interests-of-the-child analysis, says Feeney.


The SCC found the mother not raising the abuse as a reason for the move did not undermine the trial judge’s consideration of abuse as a factor. “It’s important to be aware of the social and legal barriers to women disclosing family violence in family law proceedings,” she says.


The SCC also said the appeal court should not have viewed the abuse as a past issue. Research shows that abuse does not end with separation, says Feeney. In response to the appeal court’s finding that the mother’s and father’s relationship was improving, which it said attenuated the father’s behaviour, she adds that reconciling with an abuser does not necessarily mean the abuse is not serious.

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