Trusted Tips and Resources

Trusted Tips & Resources

Trusted Regina Lawyers at MacKay & McLean Share the Law Around Domestic Violence and Best Interests of the Child.

MacKay & McLean provides the professional services of a large Regina law firm, with the intimate attention of a small firm. The legal process can be daunting and overwhelming, but it doesn't have to be. MacKay & McLean is with you every step of the way.

MacKay &  McLean is a  TRUSTED REGINA LAW Firm. In Mackay & Mclean's latest legal tip they provide helpful information about the family law about domestic violence and the duty of care to children.  

Family Lawyers at MacKay & McLean Barristers & Solicitors Share the Law Around Domestic Violence and the Best Interests of the Child. 



In our latest Trusted Regina Legal tip, we share information on domestic violence and the Children’s Law Act when considering the best interests of the child.


On March 1, 2021, The Children’s Law Act, 2020 (the “CLA”) came into force. The CLA amended the criteria for the best interests of the child analysis, directing the courts to more effectively consider family violence as a factor when determining decision-making responsibilities and parenting time.

The relevant sections of the CLA for determining an appropriate parenting order are sections 10(1) through 10(4), which now specifically require the court to take into consideration any family violence including the nature, seriousness and frequency of violence, the harm or risk of harm to the child and the pattern of this behaviour, amongst other factors. 

Allegations of domestic violence are present in a significant number of applications before the court. However, more often than not, the alleged abuser categorically denies the allegations. The issue of who to believe and what weight to attribute to the allegations has been a common issue in family law. With the new amendments to the CLA, these issues are, once again, front and center.

Since the CLA came into force several cases have come before the Saskatchewan Court of Queen’s Bench addressing this issue. In Juraville v Armstrong, 2021 SKQB 73, the mother and father both alleged physical, verbal, emotional and sexual abuse at the hands of the other and denied, absolutely and completely, the version told by the other. Mr. Justice Megaw performed an in-depth analysis of how the court considers contradictory evidence of domestic violence in light of decision making and parenting, stating:

 

The real question, therefore, is not whether particular events, or any events, did or did not happen. Those may be determined in a trial, or they may remain undetermined. The focus of the court now must be on, and remain on, the best interests of these children and how to safely structure parenting in view of what is being alleged. The allegations of violence and abuse must, of course, be considered in determining these best interests. Such consideration is done not from a perspective of punishing the alleged abuser, or any party. It is important to keep in mind, by addressing the allegations of violence and abuse and by inserting protections, the court is not to be seen as having made findings of fact regarding these allegations.
 

Ultimately, despite the significant allegations of domestic violence, Mr. Justice Megaw determined that the concerns regarding allegations of violence could be addressed by ensuring the parties did not interact on a personal level and that the evidence did not support a conclusion that the children’s best interests would prevent parenting time with either the mother or father.

In a similar decision, DW v EO, 2021 SKQB 157, both parents alleged domestic violence was inflicted by the other and adamantly denied they were the perpetrator of any abuse. Despite the allegations, Madam Justice Richmond determined that it was still in the child’s best interests to have a shared parenting arrangement to facilitate the relationship between the child and both parents. This, despite the fact that both parents alleged family violence, demonstrated an unwillingness to cooperate with the other regarding the care of the child with violence and arguments continuing to occur in front of the child and a high level of anger and animosity towards each other.

While it is now a legislative requirement through the CLA for the court to consider domestic violence when analyzing the best interests of the child, it is still only one of many factors for the court to consider in a highly subjective analysis. Based on recent case law, the presence of domestic violence, particularly where the violence has not been inflicted on the child, appears to have minimal impact on the best interests of the child analysis.


Robert Mackay and the team at Mackay & McLean offer a variety of legal services and are able to represent you in a variety of situations that require counsel. In addition, they offer a free initial consultation. Trusted Regina Lawyers, based in Regina Saskatchewan, specialized in real estatecriminalpersonal injurycommercial & family law.

See more legal tips from Mackay & McLean here 




Trusted Regina Lawyers At MacKay & McLean Explain Custody and COVID-19 Vaccinations

MacKay & McLean provides the professional services of a large Regina law firm, with the intimate attention of a small firm. The legal process can be daunting and overwhelming, but it doesn't have to be. MacKay & McLean is with you every step of the way.

MacKay &  McLean are TRUSTED REGINA LAWYERS. In Mackay & McLeans latest legal tip they provide helpful information for separated couples about chid custody and COVID-19 Vaccinations. 

Things To Consider Regarding Custody and Covid Vaccinations- A Legal Perspective 


 Most parents who are separated or divorced will have joint decision-making authority (previously known as joint custody), through a separation agreement or court order. This means that both parents’ consent is required for medical decisions, which includes vaccinations. For most parents, the decision to vaccinate their children is an easy decision to make. However, with the introduction of the experimental COVID-19 vaccine, whether or not to vaccinate is a rapidly increasing issue in family disputes. This issue is further complicated when the child reaches an age where they can express their opinion on the issue.

Canadian courts, in considering the views of a minor when determining what is in their best interests, contemplate what is referred to as the “mature minor doctrine.” In deciding whether or not to take a child’s voice into consideration, the court considers the child’s age and their maturity. Even if the court does decide to take the views of a child into consideration, the child’s wishes are not determinative. Rather, they are simply one factor to be taken into consideration against the entire backdrop of the situation.

The issue of competing wishes amongst a child and their parent(s) on obtaining the COVID-19 vaccination was recently addressed by Mr. Justice Megaw of the Saskatchewan Court of Queen’s Bench in the decision O.M.S v E.J.S., 2021 SKQB 243. The father of a 12-year-old daughter sought an order allowing him to get his daughter vaccinated without the consent of the mother, who was opposed.

The father wanted his daughter to receive the vaccination due to his concerns regarding the COVID-19 virus, while the mother was opposed based on the daughter’s desire not to have the vaccination, the daughter’s diagnosis of vaccine toxicity, and the mother’s general opposition to vaccinations and concerns about the accuracy of COVID-19 information.
In making his decision, Mr. Justice Megaw undertook an analysis of the Divorce Act and relevant case precedents with his primary focus being on the best interests of the child. In considering the child’s wishes, Mr. Justice Megaw stated:
I cannot simply, in any event, exercising the Court’s parens patriae jurisdiction, leave the decision in this regard in the hands of a 12-year-old. She is, after all, a child. She is 12. She is entitled to expect the ongoing guidance of the adults in her life and she is not entitled on all matters to simply make a decision on her own. This is one of those situations. Her views, as suspect as they may be, do not carry the day here.
Mr. Justice Megaw, taking into consideration the global pandemic, the child’s needs, and the child’s views and preferences, determined that it was in the best interests of the child to receive the vaccination without the consent of the mother, despite the contrary desire of the child.

In a similar decision, D.P. v G.M., 2021 QCCS 3582, the Superior Court of Quebec decided in favor of a 12-year-old child receiving the COVID-19 vaccination who, unlike in O.M.S v E.J.S., 2021 SKQB 243, expressed a desire to receive the vaccination. The child’s mother asked the court to grant an order allowing her son to receive the vaccine, while the father refused as he believed the child already had antibodies and was concerned about side effects due to the child’s weight and previous allergies. The child was represented by his own lawyer and representations were made on his behalf confirming his desire to receive the vaccination.
The court, focusing on the best interests of the child, determined that it was in the child’s best interests for the vaccination to be administered without the consent of the father. When considering the child’s wishes, the court stated:
Although the child’s desire cannot be considered as decisive in the present matter (only a minor aged 14 years and may give his consent to care alone), the Court notes that the child’s wish is serious and well-reasoned.
In a decision of the Ontario Superior Court, A.C. v. L.L., 2021 ONSC 6530, the parents of 14 year old triplets agreed that their children had the capacity to make a decision on whether or not they received the COVID-19 vaccination. The court, in light of the parents’ agreement, allowed for two of the children to receive the vaccination, and one not to, based on their respective wishes.

While there have been a limited number of reported decisions addressing children and the experimental COVID-19 vaccination in the context of a separation or divorce, the courts appear to be ruling in favor of a child getting vaccinated in accordance with public health guidelines, regardless of the wishes of the child or a vaccine-hesitant parent.
If you are separated or divorced and dealing with the issue of vaccinating your children, our lawyers are ready to help. Contact our office for a free 30 minute consultation.




Robert Mackay and the team at Mackay & McLean offer a variety of legal services and are able to represent you in a variety of situations that require counsel. In addition, they offer a free initial consultation. They are Trusted Regina Lawyers, based in Regina Saskatchewan,  and they specialize in real estatecriminalpersonal injurycommercial & family law.

See more legal tips from Mackay & McLean here 



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