How to evaluate the best interests of the child where allegations of controlling and abusive behavior exist with respect to one parent.

Background

The Applicant, Julianna Kostrinsky, and Respondent, Mohammed Hadi Nasri, were married on February 17, 2013, and have two children. The oldest child, A, is 8 years old and M is 4 years old. The parties disagree about their date of separation. However, on a without prejudice basis, the parties agreed upon using the date of July 8, 2019, as the date of separation. The events leading up to the separation came to a head on May 30, 2019. On this date the Children’s Aid Society (CAS) verified an allegation that the Respondent hit A. The details of this incident are that the Respondent hit A with an open hand on her thigh.

Central to this trial were the allegations that the Applicant presented regarding the violent, abusive, and controlling behaviour of the Respondent. The Applicant alleged that the Respondent directed this behaviour toward her and A. This abuse culminated in the Respondent being charged with multiple offences for June 1, 2015 – June 14, 2019. The court noted that the circumstances surrounding these charges are in dispute as they were stayed because of delay.

As a result of this violent behaviour, the Applicant submits that the Respondent’s parenting time be maintained at one day per week supervised. In addition, the Applicant sought an order granting her sole decision-making authority and a restraining order against the Respondent. The position of the Respondent is that he admits to hitting A on May 30, 2019 but denied any further allegations of abuse alleged by the Applicant. Therefore, the Respondent sought an order for equal parenting time and joint decision making.

Analysis

With respect to the ordering of a parent order, the court was directed by subsection 16(1) of the Divorce Act to take into consideration “’only the best interests of the child of the marriage in making a parenting order’”. The Divorce Act provides a broad definition of family violence and includes factors that the court should examine when making a parenting determination. These factors include:

(a) physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person;

(b) sexual abuse;

(c) threats to kill or cause bodily harm to any person;

(d) harassment, including stalking;

(e) the failure to provide the necessaries of life;

(f) psychological abuse;

(g) financial abuse;

(h) threats to kill or harm an animal or damage property; and

(i) the killing or harming of an animal or the damaging of property.

In evaluating the Applicant and Respondent’s accounts of the alleged violence, the court found the testimony presented by the Applicant was more credible. This determination was made by examining text messages and photographs that highlighted instances of abusive conduct on behalf of the Respondent. The court accepted this evidence as displaying a pattern of coercive and controlling conduct that is encapsulated by the understanding of family violence within the Divorce Act.

In examining previous accounts of this controlling and violent behaviour, the court determined that it is in the best interests of the child for there to continue to be supervised parenting time while indoors. The court found this to be necessary as the Respondent continued to pose a risk of harm to the children. However, in considering the views of the children, the court also found that it would be in their best interests to continue to spend time with the Respondent. The court considered previous comments made by the children, such as “’Daddy, I miss you!’”, to be indicative of their desire to spend time with the Respondent. According to the court, spending additional time with the Respondent would benefit the children.

Conclusion

In addressing the several issues raised throughout this case, the court began by expanding the Respondent’s parenting time beyond the current period of 10:00 a.m. to 4:00 p.m. The Respondent was granted parenting time with the children for every second weekend and on Wednesday evenings for weeks that the children do not reside with him on that weekend. However, the court concluded that the Applicant ought to have sole decision-making but is required to take the Respondent’s input into account in good faith. The court also ruled that the Applicant ought to be granted the restraining order sought under s. 35(1) of the CLRA.