Recent case: Relocation in the context of family violence

woman's hands on thick book

This case summary of A.J.K. v J.P.B. 2022 MBQB 43 was prepared by Pamela Cross.

While this is a Manitoba case and, therefore, not binding on Ontario courts, the decision is interesting because of the extensive exploration of family violence in the context of the mother’s request to move with the children without providing notice to the father. It is a clearly written, detailed decision that is worth reading in its entirety. Here is a summary. 

The parents separated when their children were both under the age of five. The mother said there had been no aggressive or violent behaviour by the father during the relationship, but that that changed when she declined to reconcile with him, at which point his behaviour became extremely aggressive.

The children were frequently present when their father would yell at their mother, call her foul names and threaten to harm her. He sometimes engaged in this behaviour in front of others, especially at the children’s sporting events, where he would also yell at the children about their performance. He stalked the mother, confined her by blocking her car in his driveway,  threatened and followed her boyfriend. Twice, the mother has to flee her house and hide in the bushes because the father had come into the house and would not leave. He sent her text messages threatening to harm himself and other people.

The mother called the police for assistance on several occasions.

After the father’s threatening and aggressive behaviour at the one of the children’s sporting events was so extreme that the mother and child took refuge in the sports attendant’s office, who barred the door and pushed the panic button to summon the police, she applied for and obtained a protection order.

Over the next couple of years, this protection order was varied, another one was obtained for the children and yet another one for the mother. The father persistently breached the orders and was charged more than once for doing so. His aggressive and threatening behaviours continued to escalate, leading, on one occasion, to the children’s school going into lockdown.

The mother ultimately came to the decision that moving to a new location was the only way for her and the children to be safe. Given the history of family violence, she sought an order from the court that she did not have to provide notice of her planned move and her new address to the father.

The court issued a sealing order, preventing the father from knowing anything about her motion as well as an order that the court documents contain only the initials of the parties to offer further privacy and protection to the mother and children, finding that such orders were necessary “to protect the mother and the children in the interim given the extreme allegations of domestic violence.”

In her evidence to support her motion, the mother detailed a number of new and significant threatening and aggressive acts by the father, including posts on his Facebook page that threatened all feminists: “WELL, ALL THE FEMINISTS I KNOW ARE GONNA DIE SOON . . . . THE ONLY GOOD FEMINIST IS A DEAD FEMINIST.” He also threatened to kill police officers.

Justice Dunlop, in reaching her decision to grant all the orders sought by the mother, reviewed the relevant provisions of the Divorce Act including the definition of family violence, the factors in the best interests of the child test and the requirements for parents wishing to relocate with children. She noted that:

“While a court order cannot stop a bullet, a knife or a fist, it can give this mother and children a chance to make a safety plan to avoid the father’s violence and keep them safe.”

She found “ample evidence” that family violence was present:

“As a result of the past severe and escalating family violence (coercive and controlling) found in this case, it is fair to think that the risk of future family violence is high. This combined with the impact of the family violence on the children…justifies this hearing being authorized on a without notice basis to the father.”

Her decision also made some important points about post-separation abuse:

“Family violence does not end in some cases because of a separation and often times the very fact of the separation itself causes family violence to appear for the first time or redefines the severity and frequency of it. The law and the courts need to find ways to halt or discourage this disturbing and ongoing trend.”

Her decision noted that, were the father to seek parenting time, he would not be successful, given his behaviour, which had not abated over time.

The mother was given permission to relocate with the children without providing notice to the father and without letting him know their new location. The order also withheld providing written reasons for six months to give the mother time to make the move without the father knowing about it and dispensed with the usual requirement that the father be served with a copy of the order. The order was sealed for 30 days from the date the judgment was signed.