“Ms. Kelly’s submissions rely heavily on a view that the children are unaccustomed to spending time with their father, and that any contact should start modestly and be expanded slowly.
I place no weight on this submission.
In the same manner that a wrongful removal or withholding of a child does not alter the child’s habitual residence pursuant to section 22(3) of the Children’s Law Reform Act; a wrongful removal or withholding does not alter a child’s best interests as set out in section 24 of the CLRA.
In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being, see section 24(2.) The factors to be considered are set out in section 24(3) CLRA:
a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;
d) the history of care of the child;
e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
g) any plans for the child’s care;
h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;
j) any family violence and its impact on, among other things,
k) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
l) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and
m) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security, and well-being of the child. 2020, c. 25, Sched. 1, s. 6.
In the absence of family violence, or other just reason, the removal or withholding of children from the left-behind parent speaks to the need for an accelerated return to a normative parenting schedule, not a delayed return. The parenting deficits created by the removal of a supportive, previously stable relationship must be ameliorated, not extended.”