Case Summary: An interim parenting arrangements motion
This case explores the issue of family violence in the context of an interim parenting arrangements motion.
The mother and father were married in India in 2017, after which they moved back and forth between India and Canada twice. They have two young daughters; one born in 2018 and the other in 2023.
The mother fled the family home to a shelter in late 2023, taking the younger daughter with her and, three days later, picked the older daughter up from school and brought her to the shelter. Four days after that, the father obtained an ex parte order to have the older daughter returned to him. An arrangement in which the older daughter remained primarily in the father’s care and the younger daughter remained with the mother was confirmed by two interim orders made in the following few weeks.
In late January 2024, Justice Schabas heard the father’s motion to, essentially, maintain the existing arrangement. The mother sought an order to have the children reside primarily with her, for her to have decision-making authority, and for the children to have scheduled time with their father, taking into account that the younger daughter was breastfeeding.
Status quo
Justice Schabas acknowledged that, as the father argued, status quo was an important factor, but pointed out that there is no legal presumption in favour of status quo; rather, the court must consider the best interests of the child, including a consideration of the evidence provided in favour of making a change to the status quo.
He also objected to the father’s claim that the status quo was that the older daughter live with him, pointing out that the mother had been the stay-at-home parent prior to separation and that it was the father who excluded her from providing care to the older daughter:
“[The father] should not benefit from his efforts to create a new status quo through coercive and controlling behaviour that has excluded [the mother] from many aspects of [the older daughter’s] life and threatens to alienate [her] from her mother.”
Family violence
Justice Schabas, in preferring the evidence of the mother over that of the father, noted:
“[The mother’s} description of violence in India is compelling and was not disputed by [the father.] . . . It was [the mother] who called the police out of fear, when she was pregnant with [the older daughter], and her explanation for why she did not report assaults by [the father] is credible.”
Further, the mother had told her obstetrician during her second pregnancy about abuse, which led to a referral to the CAS. The judge also made note of the fact that the father did not allow the mother to buy clothing or feminine hygiene products; denied her a phone with a data plan; did not give her a key to the apartment; controlled money she received and did not allow her to have a bank account. He also installed cameras in the apartment to monitor her activities and verbally abused and belittled her in front of the children. Even before the parents separated, the father excluded the mother from having a meaningful relationship with the older daughter:
“In my view, there is cogent and compelling evidence to support the conclusion that [the father] has engaged in physical and psychological abuse towards [the mother] and has exposed [the older daughter] to that conduct. . . . I must take into account that the violence is frequent and serious. There is a pattern of coercive and controlling behaviour. The exposure of the children to this violence raises concerns about the emotional and psychological harm to the children. It has caused the mother] to fear for her safety. The existence of such violence raises serious concerns regarding the ability of [the father] to cooperate on issues affecting the children and to appropriately meet the needs of the children. . . . In my view, the family violence in this case supports an order that the primary residence of the children be with [the mother] and that she have sole decision-making authority.”
Self-help measures
While Justice Schabas acknowledged that self-help measures “are not to be condoned” in most cases, he dismissed this argument from the father:
“Here, however, the so-called self-help must be considered in the context of [the mother’s] actions and in particular the family violence from which she was fleeing. She did not breach any court order in removing [the older daughter] from school and from [the father’s] care, nor did her conduct upset a lengthy status quo arrangement . . . Accordingly, I place no weight on this submission by [the father].
The order
Justice Schabas made an order for the children to reside primarily with their mother; granting her decision-making responsibility. The father was to have parenting time on a specified schedule, taking into account the fact that the younger daughter was still being breastfed.
