Supreme Court rebukes family violence

Ruling says avoiding abuse or acrimony may be better for children than spending more time with both parents

The Supreme Court of Canada has taken a tough stand on family violence in a divorce, saying that even one incident from a parent may justify the other parent’s relocation with the children to a distant place.

In the first ruling interpreting federal Divorce Act changes on relocation that took effect in March, 2021, which stressed the need to protect children against family violence, the court said that avoiding abuse or acrimony that undermines the other parent may be more important to the children’s best interests than spending as much time as possible with each parent.

It thus allowed a B.C. woman to move with two young children, now 8 and 6, 10 hours away from their father – even though the father had shared the parenting duties throughout the children’s lives, had custody pending resolution in a lower court, and had a written agreement in place to continue to share parenting duties.

The Supreme Court made its ruling in December, immediately after a hearing. On Friday, the court explained its reasons.

Writing for an 8-1 majority, Justice Andromache Karakatsanis stressed that incidents of domestic assault can be hard to prove and even one incident may suggest a wider pattern of abuse that is harmful to children.

“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.”

Darius Bossé, a lawyer who represented the mother at the Supreme Court, said in an e-mail that the judges sent a clear message. “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.”

Georgialee Lang, a lawyer who represented the father in appeal hearings, said the message to divorcing spouses is “they have one opportunity to get it right and they have to be on their best behaviour.”

The father, G.G., had been found “likely” to have assaulted his former spouse, A.B., on one occasion by a lower-court judge who heard the mother’s application to move the children 10 hours away from the northern B.C. community where she and the father had been raising them. (The Globe and Mail is using initials to protect the children’s identity.) The father had also printed a nude selfie of his ex-wife, which he included in an affidavit he filed in the case, for no purpose other than to humiliate her, and had been controlling on financial matters, using offensive language in texts to her, B.C. Supreme Court Justice Anthony Saunders found in 2019.

The mother had driven the children through the night to her parents’ community after she was allegedly assaulted and decided to stay. While the relocation case was being heard by Justice Saunders, the children returned to their father and Justice Saunders said he was a good parent.

But Justice Saunders also said the father’s hostility would make it difficult to share parenting in a positive way, and that his home was unfinished and barely habitable after six years of renovations. He said the move was therefore in the children’s best interests.

The B.C. Court of Appeal overturned the ruling partly on the basis of a last-minute pitch from the father’s parents to pay for and complete the renovation. The court said the mother’s need for support could not justify relocation, which would “permanently and profoundly alter the relationship of the children with their father.” It ordered the children to stay put. (The ruling was stayed, pending the Supreme Court ruling.)

The Supreme Court majority was critical of the appeal court, saying it had no right to “relitigate” the case, substituting its views for those of the trial judge. It also said the last-minute pitch on the renovation came too late and should have been made before Justice Saunders.

Claire Hunter, a lawyer who represented two intervenors, the West Coast Legal Education and Action Fund and the Rise Women’s Legal Centre, said she was pleased the court had acknowledged women’s lived experience of violence in its ruling.

The case is one of three family-law cases heard together in December. Two involved a mother’s relocation with children and one involved a custody dispute between a father and maternal grandmother. The trial judges allowed the mothers to move with their children in the two cases and granted custody to the maternal grandmother. The appeal courts reversed all three decisions and the Supreme Court restored the trial judges’ rulings.

“There’s a clear signal there – these are hard cases, someone has to make hard calls. And we shouldn’t be too quick to overturn them when hard calls are made by trial judges,” Rollie Thompson, a professor emeritus at Dalhousie University’s Schulich School of Law, said.

Justice Suzanne Côté was the only dissenter. She said the appeal court should have ordered a new trial on the relocation request.