This decision highlights the impact of family violence on parenting agreements and decision-making. The case provides a full analysis of the best interests of a child when family violence is or has been present. Below is a summary of the Court’s decision, delivered by Justice Megaw.   

The Facts of the Case

This decision was rendered after the parties attended a trial. The father sought a shared parenting arrangement and joint decision-making ability for the parties’ two-year-old child. The mother opposed and sought to be the sole decision-maker for the child. She asked the Court to limit the father’s parenting time to no overnight stays.

The Court was tasked with determining the right parenting plan for the child, while considering allegations of previous family violence and control issues by the father against the mother. At trial, the father denied any violent incidents except for one, which resulted in a criminal conviction for assault on the mother. The mother recounted numerous instances of family violence, which led to her creating safety plans with healthcare providers and family members. The mother testified to not only physical violence, but a general feeling of being controlled by the father through financial and living arrangements imposed by him.

Prior to the trial, the father brought an interim application for parenting time. The matter was first heard by Justice Zuk who granted an interim arrangement which included four, two-hour periods of weekly parenting time for the father. The matter then came back before Justice Gabrielson, who increased the father’s parenting time to three-hour periods. The matter then came before Justice Crooks who increased the father’s parenting time to seven-hour time periods and added an additional day for three hours of parenting time. The Court also required that the parties maintain a communication book regarding the child. The parties operated under Justice Crooks’ decision while they awaited trial. Exchanges of the child occurred through a third party.

Overview of the Legislation

The Children’s Law Act, 2020, SS 2020, c 2 (“The Children’s Law Act”) in section 10(3) sets out numerous factors for the Court to consider in assessing the best interests of the child. Specifically, section 10(3)(j) looks at family violence and its impact on (i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child; and (ii) the appropriateness of making a parenting order that would require persons with respect to whom the parenting order would apply to cooperate on issues affecting the child.

Section 10(4) states: 

     (4) In considering the impact of any family violence pursuant to clause (3)(j), the court shall take the following into account:

          (a) the nature, seriousness and frequency of the family violence and when it occurred;

          (b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

          (c) whether the family violence is directed towards the child or whether the child is directly or indirectly exposed to the family violence;

          (d) the physical, psychological and emotional harm or risk of harm to the child;

          (e) any compromise to the safety of the child or other family member;

          (f) whether the family violence causes the child or other family member to fear for one’s safety or for the safety of another person;

          (g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and to improve the person’s ability to care for and meet the needs of the child;

          (h) any other factor that the court considers relevant.

Analysis on Family Violence, Parenting Arrangements, and the Best Interests of the Child

In this case, the Court determined that it was not necessary to deal with the particulars of the family violence incidents. The issue that impacted the determination of the parenting arrangement was whether there was evidence of family violence and control in the relationship between the parties and if so, what is its effect. The Court stated:

As a result, while the legislature has now specifically directed the court to deal with the issue of violence it is not the fact of violence, in and of itself, which determines the parenting order to be made. Rather, it is the impact of that violence on the best interests of the child which guides the crafting of such a parenting order.

Based on evidence at trial, the Judge found the father had engaged in multiple, serious episodes of violence. The Court stated that these incidents had an impact on the child’s best interests and the level of interaction the mother should be compelled to have with the father, particularly while the child was very young. The principal concern with the parenting arrangement was the parties’ inability to communicate, and the inappropriateness of forcing the mother to communicate or interact with the father. This impacted the analysis of the child’s best interests under sections 10(3)(ii), 10(4)(b), (e) and (f) of TheChildren’s Law Act.

The Judge reiterated that it is solely the best interests of the child which was the focus of the case. Referring to A.O. v T.E., 2016 SKCA 148, the Court emphasized the importance of taking a child-centered analysis, which is determined by countless considerations.

The Court referred to the previous case of Juraville v Armstrong, 2021 SKQB 73, where the Court stated that communication between the parents could allow abuse to continue, and that persons who have been in abusive relationships should not have to continue interacting with their abusers through Court ordered parenting. On one hand, a parent who has been abused by the other parent should not have to relive said abuse. On the other hand, the Court must consider the best interests of the child and having a relationship with both parents. Most often the best interests of the child does not mean ceasing the abuser’s parenting rights completely. The existence of family violence does not automatically direct a specific result. Nonetheless, this does not mean the Court excuses violent behaviour.

Ultimately, in this case, the Court found that the father’s history of violence and control issues, paired with the mother’s fears and concerns, did not point to a successful shared parenting regime at the time of the decision. The Court stated that imposing a shared parenting regime would “leave open the wound” of ongoing fear of the father by the mother, and her concern that if there were disagreements about parenting the child, there could be escalation. The Court found the best interests of the child dictated against shared parenting at this young stage of the child’s life and putting the mother in that situation. The Court did note that shared parenting agreements could be arranged between spouses who are not communicating, as was the case in Ackerman v Ackerman, 2013 SKQB 247, but did not find it to be appropriate in these circumstances.

Nonetheless, the Court recognized that the father was entitled to have an active parenting role and therefore he was entitled to joint decision-making (aside from medical decisions) and overnight parenting. The Court found the father was able to care for and meet the child’s needs, as he had already been doing so when he cared for her. He was also noted to have no problems in caring for his older children. There was no evidence to suggest the child was at any physical risk while being parented by the father.

Conclusion

The Court did not impose a shared and equal parenting regime; however, the father’s parenting time was ordered to increase from its current state and to include overnight stays, as it was in the child’s best interests to have more time with the father, but not in the best interests of the child to force the mother to communicate with the father as much as she would have to under a shared parenting arrangement. However, the possibility of a variation of the parenting arrangement was left open as the child aged if the interactions between the parents continued to be without issue or violence from the father.

The Court emphasized that the mother’s safety formed part of the consideration of the child’s best interest. The Court also noted that the father had made recent efforts to address his violent behaviour. The parenting time the father received was structured to minimize the need for the mother to communicate with the father. The parties were ordered to make use of a tool such as “Our Family Wizard” to facilitate any necessary communication.

If you have questions about family violence in your relationship and its impact on parenting, please contact a member of our family law practice group.

About the Author:

Zina L. B. Scott is an associate lawyer in the Regina office and practices primarily family law, child protection, insurance defence, and civil litigation.

Written with assistance from 2024 McKercher LLP summer student, Veanna Kostiuk.

About McKercher LLP:

For nearly 100 years, McKercher LLP has grown deep roots across Saskatchewan, serving the community from offices in Saskatoon and Regina. Now, as one of the province’s largest and most established full-service law firms, we proudly carry on this legacy – following a client-first philosophy as we provide legal services and real solutions for the people who rely on us.

This post is for information purposes only and should not be taken as legal opinions on any specific facts or circumstances. Counsel should be consulted concerning your own situation and any specific legal questions you may have.