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New child-abduction guidelines disregard complex domestic violence issues

Amanda Dale is executive director at the Barbra Schlifer Commemorative Clinic, Deepa Mattoo is legal director and Amy Voss is an articling student.

In the first three months of 2018, 15 women, their children and relatives were murdered in Ontario by men they knew. While upsetting, this trend is not surprising. A woman in Canada is killed every six days by an intimate partner or family member. In the majority of these cases, months or years of physical, emotional and financial abuse and control preceded their deaths.

At the clinic, we know that women face a heightened risk of lethal violence when they attempt to leave an abusive partner. We also see, through our work with survivors separating from their abusers, how unresponsive family courts can be to issues of domestic violence.

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Women leaving dangerous situations need the attention of the courts to help ensure their safety. Family court judges deciding custody and access issues in Ontario are obligated by the law to consider a party’s abusive conduct towards a partner. Yet, we note women’s experiences of violence are routinely ignored and questioned while women complainants are encouraged to mediate, settle and facilitate maximum contact between any children and the other parent.

Last November, the clinic intervened in the case of Office of the Children’s Lawyer v. J.P.B. and C.R.B., which addressed the interpretation of The Hague Convention on the Civil Aspects of International Child Abduction. The purpose of the clinic’s intervention was to bring attention to the experiences of survivors of domestic violence who flee across international borders to seek safety.

The convention is intended to prevent child abduction from their primary parent and country of residence. However, in practice, the majority of convention cases are brought against women primary-parents who move with their children back to their country of citizenship. Through a review of convention cases, domestic violence is known to be a motivating factor for relocation in nearly 50 per cent of Hague cases brought against women.

On April 20, the Supreme Court of Canada released its decision. Among other things, the court calls for a hybrid approach that combines considerations of the parents’ intentions and the children’s experiences in determining the question of habitual residence. Determining a child’s habitual residence establishes if the children have been abducted or wrongfully removed. Habitual residence is also considered to be the place where custody decisions should be made.

These circumstances can include the child’s move as well as the links to the country in which the child lives. The court also specifically states “the environment of a young child is essentially a family environment, determined by the reference person(s) with whom the child lives, by whom the child is, in fact, looked after and taken care of.” Perhaps most critically, the court dismisses the idea that one parent cannot alone change a child’s habitual residence, stating that adopting such a rule harms the ability of a judge to look at all the relevant circumstances of the children.

The clinic welcomes these changes. With this new approach we hope to see judges take into account the lived realities of children, including those children whose mothers have fled across borders to escape abuse. Allowing judges to conduct a fulsome inquiry into the children’s circumstances should create an environment where courts are more open to considering the experiences of children and their primary caregivers.

In this case, the court did not refer to the underlying experiences of women who have moved with their children. From the clinic’s perspective, the disregard for women’s experiences of violence and exposure to risk, as seen in many convention cases, is representative of family courts’ general lack of understanding or willingness to meaningfully engage with complex issues of domestic violence. Even under the new approach, women will have to frame their experiences in reference to the harm to the children.

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In the vast majority of cases when children are returned to the country of the other parent, women, the majority of whom are primary caregivers, go with them. In other words, women who have fled to escape violence must return to the country of their abusers or live in separation from their children. In many cases, the women return to vulnerable situations of precarious immigration status, financial insecurity and isolation.

The convention provides for an exception, interpreted narrowly, when there is a grave risk of physical or psychological harm to the children. Despite recognition that violence against women puts her child at risk of harm, a review of convention cases shows courts dismissing domestic violence when women are unable to prove a direct impact on children.

We hope, with the new hybrid approach, it will be easier for courts to consider the circumstances of children to determine if the removal was wrongful in the first place.

While this is only one case, disbelief or indifference directed at survivors and disregard for the risk women face when leaving violent relationships is a disheartening and routine element of family law cases. We hope that the future application of this decision will open doors to create suitable jurisprudence for women who experienced violence and their children in convention cases.

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