Child Abduction By Parents in Situations of Family Violence
Family law matters are often contentious. This is especially true when parenting arrangements of a child are involved. The legal process can be time-consuming and emotionally draining, and how parties handle these situations vary. Recently in the news, the criminal proceedings of a Saskatoon woman, Dawn Walker have gained attention: Judge orders 1-year sentence for Sask. woman who abducted child and forged IDs to flee country | CBC News
Dawn Walker, an Indigenous mother of one, plead guilty to three criminal charges. Dawn plead guilty to abduction in contravention of a custody order, making statements that were false and misleading for the purpose of obtaining passports, and possessing forged documents with the intention of committing an offence. In the summer of 2022, Dawn Walker orchestrated the disappearance of her and her child, when she had staged their personal belongings, a fishing rod and her truck near the South Saskatchewan River. A thorough missing persons search was conducted and Ms. Walker and her child fled to the United States with fraudulent identification documents. Ms. Walker has plead that she fled the country in a desperate bid to protect her child and herself from her ex-partner.
Ms. Walker and her ex-partner had gone through contentious negotiations regarding parenting arrangements of their child. Ms. Walker had made reports to the police that her ex-partner was abusive, but the investigation did not result in charges or action against her ex. In our recent blog post, Family Violence Challenges and the Aftermath of Sault Ste. Marie Tragedy, we discussed the importance of treating family violence seriously in the justice system. We continue to see family courts fail survivors of domestic violence. In this situation, Ms. Walker decided to take matters into her own hands, as she pleads that she abducted her child in a bid to protect them from her ex-partner. This brings the question of how Dawn Walker could have approached the situation differently, by going through the proper legal proceedings. If Ms. Walker were to have isolated her child away from her ex-partner to try and protect the child, this could have brought on the risk of having a parental alienation claim brought on by her ex-partner.
Parental Alienation Claims
In a recent decision, Y.H.P. v. J.N., 2023 ONSC 5766 (CanLII), the mother and father of a child had a history of high conflict litigation regarding their family matter. In this case, the father brought a Motion to Change, seeking temporary variation of a final parenting order. The father alleged that his child was being severely alienated from him by the mother. The child in Y.H.P. v. J.N. believed that the father sexually, emotionally and physically abused her and this view was also shared by the mother. There had been various investigations, and though this was not verified as true, the mother continuously argued that the child did not want to have a relationship with the father because the child was being abused by the father. In this case, the father was successful and had a 120-day blackout period where the mother was to have no contact with their child so that the father and child could attend a Family Bridges program to repair their parent-child relationship.
Other Options?
The safety and best interest of the child come first. When legal proceedings take place and there is concern about abuse but it has not been proven, there are other options, such as proposed relocation of the child. Under section 16.9 of the Divorce Act, there are various factors that the court considers when deciding whether a relocation should be permitted as well as the notice that must be given if it is granted. This podcast episode explains them in detail. There are however, exceptions: The requirements laid out do not apply, or the court may modify them where there is a risk of family violence. An application in this case may be made without notice to any other party.
Parents need to avoid the perils of having a judge believe that they are alienating the children, or deliberately breaching court orders. To stay out of trouble, perhaps even stay out of jail, parents should discuss their options to protect their children with a good family law lawyer.
This blog was co-authored by articling student Samantha Lawr.