Family Violence Now a Key Factor for Child’s Relocation in Divorce Cases: SCC

By  //  June 29, 2022

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According to the recently released Supreme Court of Canada ruling on a divorce case late this May, even one incident of family or spousal violence from one parent could be enough to justify the relocation of the other parent with their children to a distant location.

The Supreme Court of Canada (SCC) has just established a firm stand against family violence as they released the reasons for their ruling in Barendregt v. Grebliunas last month. 

Justice Andromache Karakatsanis, who wrote for a majority of 8-1, stated that even one incident of domestic violence and assault could represent a pattern of abuse harmful to any child.

“Because family violence may be a reason for the relocation and given the grave implications that any form of family violence poses for the positive development of children, this is an important factor in mobility cases,” Justice Karakatsanis penned.

This ruling pertains to the interpretation of changes made to the Divorce Act in March 2021. Part of these changes stressed prioritizing the child’s protection and safety against family violence, as this serves the child’s best interests. 

The court has thus awarded the children’s primary residence to the mother, a woman from British Columbia (BC). The ruling allowed her to relocate with her children to Telkwa, BC, a village more than 10 hours away from Kelowna, BC. It’s where their former home is located and where their father currently resides. 

There were two main reasons for the judge’s ruling: the first was the acrimonious relationship between the parents, which resulted in a violent act committed by the father. The second, and minor reason, was the father’s financial status, particularly regarding his ability to make their Kelowna home habitable.

The mother never raised the issue of abuse as the reason for her proposed relocation. However, this did not stop the court from considering the incident to rule in her favour.

“Any family violence, in any of its forms (physical abuse, psychological abuse, financial abuse), is always a relevant and important factor to be considered by Canadian courts when analyzing what is in the best interest of children,” wrote Darius Bossé, a lawyer who represented the mother at the Supreme Court.

The SCC’s ruling heavily implies the child’s physical and emotional safety from violence. They believe it is more crucial than the kids’ need to spend equal time with each parent after their divorce.

The father has been found to have likely assaulted the mother in at least one instance. This was discovered by a lower court judge when the mother applied to move the children 10 hours from their former home.

Aside from physical violence, the father had also exhibited other harmful behaviour. He once printed out a nude selfie of his ex-wife and included it in his filed affidavit, even if the photo was irrelevant to the case.

He had also been very controlling of his ex-wife’s finances. He was even found to have sent her texts with offensive language, which was established by the BC Supreme Court Justice Anthony Saunders in 2019.

According to Justice Saunders, the father’s hostility would make it difficult to build a positive parenting environment. Therefore the mother’s move with the kids would better serve the children’s best interests.

Still, the father did apply to submit new evidence concerning his financial situation and home renovations to the British Columbia Court of Appeal. 

The court granted his request and decided that the mother’s proposed relocation would severely alter the children’s relationship with their father. Thus, the court ordered that the kids remain in Kelowna, a decision that stood before the Supreme Court ruled otherwise.

The appeal court outlined why they decided against the move. They stated that the mother did not cite the father’s hostility as a reason for the move. They stressed that the incidents of alleged abuse had occurred in the past and that the trial judge didn’t consider the evidence pointing to the improving parents’ relationship. Furthermore, there was no evidence that any hostile incidents had happened in front of the children.

The SCC criticized this decision, especially since the BC Court of Appeal accepted evidence that came too late. They also pointed out that the father failed to perform due diligence to present this evidence in the original trial.

Specifically, the BC Court of Appeal did not apply the test from Palmer v. The Queen. The first stage was to assess whether the evidence presented for appeal could not have been found had the appellant exercised due diligence during the trial.

Georgialee Lang, a family lawyer who acted for the father, expressed how the SCC ruling could cause a slowdown in new or fresh evidence applications. Lang stressed how this would not be the courts’ preferred route. Instead, the counsel should consider going back to the lower court.

Justice Suzanne Côté, the lone dissenter, stated that the appeal court should have ordered a new trial considering the father’s new evidence.

People should take incidents of familial and spousal abuse with great seriousness. If you or your loved ones are going through a rough divorce or anything similar, trust the justice system and the many people willing to help.