Both the provincial Children’s Law Reform Act and the federal Divorce Act require courts to consider family violence when making a parenting order. In the case of Dayboll v Binag, 2022 ONSC 6510, both parents, on an urgent motion, were seeking interim sole decision-making responsibility for the parties’ child and orders about parenting time. However, there was a history of family violence in this case, and it formed a significant part of the court’s analysis.
Family Violence in the Relationship Prior to and After Separation
The parties had been in a relationship for about four years and had one child, a daughter, who was four years old. After separation, the child resided primarily with the Applicant mother. She alleged that the Respondent father was not very involved with the child before separation and that after separation, his contact was intermittent by the father’s preference. The Respondent’s father claimed that he was an equally involved parent before separation and also that he had been seeking additional time since separation.
At an urgent Case Conference, the parties consented to a temporary and without prejudice order that provided the Respondent’s father with time with the child on Friday evenings, Monday evenings, and alternating weekends, to be supervised by an agreeable supervisor. Shortly thereafter, the Respondent father brought a motion requesting sole decision-making (or alternative joint decision-making), primary residence of the child with him (or equal time), as well as other orders.
The Applicant mother’s materials included her narrative that the Respondent father was violent with her after the birth of their child, including beatings and hitting her in the face with his motorcycle helmet. The violence and harassment continued after the parties separated, with the Respondent father stalking her and assaulting her. The Respondent father was charged with 11 criminal charges related to the mother including several assaults. One day, the Applicant mother sent the child to school on the bus, as usual. Later that morning, the school advised the mother that the child had been picked up from school by a man and a woman. The man was the Respondent father, and the woman was the father’s new girlfriend, who had presented herself as the mother. The Applicant mother contacted the police, who confirmed the child was with the father but would not retrieve the child without a court order. Children’s Aid Society was already scheduled to see the father that day and checked on the child. The Respondent father confirmed he had removed the child from school and was planning to keep her in his care until the family law matter was resolved, including homeschooling her.
The Respondent father’s narrative was somewhat different. He said he was “terrified” for the child’s safety while with the mother. He also claimed that the mother “bullied” him into a restrictive parenting arrangement after separation. He also denied the allegations of family violence and claimed the Applicant mother was manipulating both the criminal and family court systems.
The Law Requires the Court to Consider Family Violence when making a Parenting Order
As the parties were unmarried, the Children’s Law Reform Act was the applicable legislation (as the Divorce Act only applies to married spouses). Section 28(1) of the Children’s Law Reform Act provides the court with the authority to make parenting orders to address decision-making responsibility and parenting time, as well as any other orders in the child’s best interests (under section 24(1)).
Section 24(2) of the Children’s Law Reform Act provides that in determining the child’s best interests, the court must primarily consider the child’s physical, emotional, and psychological safety, security, and well-being. This obviously includes abuse towards the child, but the court in Q.M.S.Q. v S.Q., 2021 ONSC 5283, made clear that the child’s best interests also encompass caregiver safety, as it is best for the child that his or her caregiver is physically and emotionally safe.
Section 24(3)(j) of the Children’s Law Reform Act mandates that the court must specifically consider whether there has been any family violence — and the impact of that violence on the child; and on the ability and willingness of any parties to care for and meet the needs of the child. Section 18(2) sets out a broad definition of what constitutes family violence:
- physical abuse, including forced confinement but excluding the use of reasonable force to protect oneself or another person;
- 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.
Section 24(2) sets out an additional list of factors that the court must consider related to the family violence, including:
- the nature, seriousness and frequency of the family violence and when it occurred;
- whether there is a pattern of coercive and controlling behaviour in relation to a family member;
- whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;
- the physical, emotional and psychological harm or risk of harm to the child;
- any compromise to the safety of the child or other family member;
- whether the family violence causes the child or other family member to fear for their own safety or for that of another person;
- any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve the person’s ability to care for and meet the needs of the child; and
- any other relevant factor.
The Lack of Parental Insight and Judgment Has Put the Child in the Middle of Adult Conflict
The court noted that both parents loved the child and the child had a good relationship with both parents, stating that “if these parents could simply interact in a mature and civilized manner, Rachael could have the best of both worlds.” However, with the parents’ “current mindsets,” it was not possible.
The court discussed the principle that the status quo is an important consideration on an interim motion. In this case, it was not disputed that the child had been in the Applicant mother’s care almost continuously for the last 18 months. The court found the child was “thriving” in the mother’s care despite the father’s allegations. The court also noted that for the last 18 months, the Respondent father had done nothing to try and change the status quo, nor to question or complain about the mother’s parenting, until he abducted the child from school. However, he was seeking to “suddenly change everything in [the child’s] life, seemingly with no awareness or regard for the impact of such upheaval on the child.”
Furthermore, the father’s behaviour in removing the child from school with no warning or agreement, and then trying to keep her indefinitely and homeschool her, “betrays an alarming sense of entitlement, selfishness and poor parental judgment.”
Cell Phone Video Evidence of a Conflict Between the Parties was not Helpful to Either Party’s Case
There was also evidence of a cell phone recording of a recent interaction between the parties, where each claimed that the other was trying to set them up. The child was present. The court described the video as 3.5 minutes of shouting, while the mother held a deeply upset young child, while each was so involved in the dispute and creating advantageous electronic evidence that they “ignored the child they pretend to be protecting.” The court warned against these “home videos,” saying that taking such videos usually leads to escalation and that parents “should stop pretending they’re assisting the court by assembling important evidence.”
The court made clear that these videos are likely to backfire and did so in this case. It showed a disregard for the requirement of section 33.1(2) of the Children’s Law Reform Act to protect the child from conflict related to the family law court case.
Impact of Family Violence on the Motion for Parenting Time
The court found that the Applicant mother’s evidence of the father’s violence was “credible and alarming.” While there were no allegations of violence by the father towards the child, the Children’s Law Reform Act makes clear that violence by a parent towards the other parent has consequences for the child, including exposure to emotionally upsetting situations.
The court found that the evidence in this motion did not support the Respondent father’s claim for sole decision-making. He had not made decisions for the child for the 18 months after separation. He demonstrated poor insight when he unilaterally removed the child from school and decided to homeschool her indefinitely. The Respondent father’s alternative claim was for joint decision-making.
The family violence in this situation meant that joint decision-making was not appropriate. Joint decision-making requires the parties to have mutual trust and respect at the bare minimum. If this does not exist between the parties, then “a joint decision-making order can perpetuate hostilities, indecision, and power struggles,” which will negatively impact the child. A joint decision-making order, in this case would be more likely to expose the child to conflict and would also provide the Respondent father with an increased ability to exercise coercion and control over the Applicant mother. The court, therefore, ordered that the mother continue to have sole decision-making responsibility for the child on an interim basis.
The court also declined to drastically change the temporary parenting schedule that the parties consented to at the urgent Case Conference. The father’s request for primary residence would mean a complete upheaval of the child’s life, which was not warranted on the evidence nor on an interim motion. The equal parenting schedule asked for in the alternative by the Respondent father was likewise a radical change to the status quo. Further, equal parenting requires a higher degree of cooperation and communication between the parents, which would not be possible at this stage of this case.
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