This week there have been some media stories about little Annabella Villeneuve who was allegedly abducted by her mother, Josee Villeneuve and taken to Quebec against a court order spelling out sole custody to the father, Andrew Wong. I think this is an interesting case in that it presents an opportunity to discuss some of the issues around custody and access of minor children. I find generally, most parents and others have little under-standing of the legal issues involved and then they have a sharp learning curve, sometimes at one of the worst time of their lives.
In BC, all issues of marriage, common-law relationships, divorce, custody and access of minor children are covered under the Family Relations Act (1996). The legislation defines relationships, procedures and processes clearly.
It would appear that many people are unaware that upon the break up of a common-law relationship, or marriage, that unless one party applies for custody and guardianship of any minor children created during the union, that the parent retaining day-to-day care is only in what’s called a “de facto” guardianship relationship to the child. See below for Section 27 - Parental Guardianship.
Either parent can apply to the BC Provincial Family court for an application for custody, guardianship, spousal or child maintenance, or access to the child. They must serve the other parent, or make reasonable efforts to do so. This is known as making a Notice of Proceeding. If the other parent’s location is unknown, the parent can apply to the court to make substitutional service, where they can place an ad in a newspaper, serve someone who may know the other parent, or other means. The courts take service of the non-custodial parent seriously and efforts must be made and demonstrated to the court.
Upon being served the application, the other parent has an opportunity to respond and make their own applications, which they must serve notice of the other party. If either parent, or both, cannot afford lawyers, Family Justice Counsellours are available through the Attorney General to support and advise parents on the process, appropriate documents and applications to make to family court. They do not represent parties in court, but they provide advice and support. There are Family Justice Centres around the province where parents and other family members can receive services.
I mention other family members, because it is quite often the case that other family members make applications for custody and guardianship of minor children and they too must make applications under the Family Relations Act to do so. Currently, there is an interesting action research project being undertaken on:
Grandparents Raising Grandchildren Legal Research Project through
Parent Support Services Society of BC. The project has an online survey for grandparents to fill out to help “clarify and prioritize common legal themes and challenges grandparents face as primary caregivers.”
In many jurisdictions in BC, parents who have separated are required to participate in the program Parenting After Separation: For Your Child's Future.
At the initial court date, both parties appear before a judge and have an opportunity to speak to the application. Sometimes one party may ask for an adjournment, so they have an opportunity to seek legal counsel, or advice from a Family Justice counsellour. The judge may agree and adjourn to another date. Or, upon hearing from both parties, the judge may make an interim order under Section 9 of the FRA. Most likely, the judge will refer the matter to a case conference, which is an important process whereby parents can meet with a judge to attempt to resolve the issues prior to going to a hearing. Case conferences are mandated under the FRA. They take place in smaller rooms, not a courtroom and are less formal than being in court. Discussions can take place that may mediate an agreement between the parents. This is a less adversarial process in most situations. Parties can also make a Consent Agreement to any applications, thus again, it is less adversarial and the parties agree to the orders being sought.
Notwithstanding many people may have differing opinions about whether the best interests of the child are always served, that is the presumption in family court. That above all else, the child’s best interests are placed at the centre and all decisions flow out of that. See below:
Section 24 – Best Interests of Child are paramount.
I have extensive experience in family court, both in child protection and custody, guardianship and access matters. It has always been my experience and observations that presiding judges provide each parent, or other parties, with the same opportunities to provide the court with information that will help determine the most appopriate custody, guardianship and access arrangement for each child. I’m sure many parents would beg to differ with me, but it has been my experience that judge’s make strong efforts to hear both sides with an unbiased and neutral interest in making the child’s best interests the primary determination for justification of orders that are made in these cases.
In the case mentioned to start this entry, both parents had a right and opportunity, likely over an extensive period of time, to provide the court with information that would be important in deciding the issue of custody and guardianship of the child. The presumption in family court is that joint custody and guardianship is almost always the best and most fair adjudication, with two parents both having rights and the child being best served by having ongoing relationships with both parents. Truthfully, in my experience, I have witnessed that there is still a bias in the courts that generally, mothers are presumed to the be the automatic best choice as parent.
However, in this situation, the court awarded sole custody & guardianship to the father, with access to the mother, so there must have been quite important information that informed the judge’s decision-making in regard to the child’s best interests being best served by being in the sole care and custody of the father. The mother in this situation, Ms. Villenueve, however well intentioned and loving of her child, is alleged to have taken the child out of the province, in violation of a court order. If the allegations are proven true, which is fairly certain, since she and the child were apprehended by police in Quebec, then her choices and decisions to carry out a deliberate violation of a court order really are indicative of some challenges, or problems with her judgment and respect for the courts decisions. And, since this appears to be the second time she is alleged to have breached the access agreement, again trying to take the child out of province, while not being the parent entitled to do so, this speaks to some serious issues of judgment on the mother’s side. There appears to have been a fair amount of preparation and deliberation on Ms. Villenueve’s part to enact her plans to separate the child from her lawful parent. She didn’t just hop a bus to a friends place in the next city. She bought a plane ticket to go across the country, boarded the plane with the child, knowing this was a violation of a court order, touched down there and made arrangements for providing shelter for her and the child. That is very, very serious, as any parent who has had access visits turn awry will attest.
Ultimately, Ms. Villenueve’s choices and behaviour will have some sort of serious consequence for her and the child. To start, police indicate she will be charged with child abduction, Section 280 (1), a very serious Criminal Code Violation. I suspect if she does not lose the right to access altogether, her access will be very restricted and certainly supervised. I hope she views this as an opportunity to perhaps seek some additional support for her own wellbeing, as I’m sure she is significantly distraught and grieving over the entire set of circumstances. I wish the best for everyone involved, most of all, that little darling, Annabella.
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Parental guardianship
27 (1) Subject to section 28, whether or not married to each other and for so long as they live together, the mother and father of a child are joint guardians unless a tribunal of competent jurisdiction otherwise orders.
(2) Subject to subsection (4), section 28 and section 30, if the father and mother of a child are or have been married to each other and are living separate and apart,
(a) they are joint guardians of the estate of the child, and
(b) the one of them who usually has care and control of the child is sole guardian of the person of the child unless a tribunal of competent jurisdiction otherwise orders.
Best interests of child are paramount
24 (1) When making, varying or rescinding an order under this Part, a court must give paramount consideration to the best interests of the child and, in assessing those interests, must consider the following factors and give emphasis to each factor according to the child's needs and circumstances:
(a) the health and emotional well being of the child including any special needs for care and treatment;
(b) if appropriate, the views of the child;
(c) the love, affection and similar ties that exist between the child and other persons;
(d) education and training for the child;
(e) the capacity of each person to whom guardianship, custody or access rights and duties may be granted to exercise those rights and duties adequately.
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Attorney General of BC - Family Justice
BC Family Law Links - Legal Services Society (aka Legal Aid)
