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When domestic violence occurs, it makes sense that the victim of the violence would want to place themselves as far away as possible from the perpetrator of the violence. However, it’s important to remember that when children are involved, taking action such as moving across the country cannot necessarily be done unilaterally. A recent decision from the Ontario Superior Court of Justice serves as a good example of this.

The beginning of the marriage

The mother and father were married in India in March 2017. The wife lived in India prior to the marriage, while the husband lived in Ontario. The father returned to Ontario after the wedding, and the mother came to Canada two weeks later. When the mother became pregnant with their child, she flew to India for two months. When she returned to Canada, instead of going to Ontario, she went to Vancouver. The mother claimed that when she arrived in Toronto the father was not there to meet her, so she boarded another flight to Vancouver where she had family. The mother remained in Vancouver to have the child. The father visited for a week when the baby was born but had to return to Ontario for work. The mother and baby eventually returned to Ontario in December 2019, five months after the child was born.

Domestic violence breaks the family apart

The family remained together in Toronto until September 16, 2020, when the wife called the police to allege various forms of assault on the part of the father. The father was arrested and made to leave the matrimonial home. The father retained a lawyer in order to gain access to the child, but the mother could not be located.

The father later learned that the mother had moved to British Columbia on September 18, two days after the assault. After becoming aware of the move, he commenced an application to have the child returned to Ontario on an interim basis.

Where should the child reside?

The court took some time to establish its jurisdiction before turning to an analysis of the facts in order to determine where the child should live. The mother stated that the father was aware that she was planning to move to British Columbia, but she was unable to produce any evidence to support that. She stated that his knowledge of her family there amounted to his acquiescence of her move.

The court found that the child is a habitual resident of Ontario and that as such, must be brought back. This direction is found in the Children’s Law Reform Act, which states that “The removal or withholding of a child without the consent of the person having custody of the child does not alter the habitual residence of the child unless there has been acquiescence or undue delay in commencing due process by the person from whom the child is removed or withheld.”

The court is aware of the restrictions in place that prohibit the father from communicating with the child, so he wasn’t granted access. Instead, the child was ordered to remain in the care of the mother alone, but in Ontario rather than British Columbia.

Domestic violence is a serious issue and a serious crime. Victims of domestic violence should first take steps to ensure their safety as well as that of their children. After safety is established, it’s important to work with an experienced family law lawyer to ensure issues such as exclusive access to the matrimonial home,  child custody and accessproperty division, and child support are taken care of. Contact Gelman & Associates to learn how our experienced family law lawyers can protect your rights against a violent or abusive spouse. Our phone lines are open Monday to Friday from 8 AM to 8 PM. Call us at (416) 736-0200 or 1-844-736-0200 or contact us online for an initial consultation

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