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Table
of Contents | Introduction
| Chart iii. of v. | Previous |
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iii. Violence or Inadequate Parenting
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PROVINCE/STATUTE
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LEGISLATIVE PROVISION
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Canada
Divorce Act, R.S.C.1985 (2nd Supp.), c.3.
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-s. 16(9) The court will not consider past conduct unless it is relevant to the ability of the person to act as a parent of the child. |
Alberta
Domestic Relations Act, R.S.A. 1980, c. D-37.
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-s. 57(2) If on an application made by a parent or other responsible person for an order for the production or custody of a minor the Court is of the opinion that the parent or other responsible person (a) has abandoned or deserted the minor, or (b) has otherwise so conducted himself that the Court should refuse to enforce his right to the custody of the minor, the Court may, in its discretion, decline to make the order applied for.
-s. 54(1) The Court pronouncing a) a judgment for judicial separation, or b) a decree of divorce, either nisi or absolute, may thereby declare the parent by reason of whose misconduct the decree is made to be a person unfit to have the custody of the minor children, if any, of the marriage. (2) The parent declared to be unfit to have the custody of the minor children of the marriage is not entitled as of right to the custody or guardianship of those children on the death of the other parent. (3) The Court may at any time revoke the declaration referred to in subsection (1).
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British Columbia
Family Relations Act, R.S.B.C. 1979, c. 121.
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-s. 37 On application, a court may (a) make an order restraining any person from molesting, annoying, harassing, communicating or attempting to molest, annoy, harass or communicate with the
applicant or a child in the lawful custody of the applicant or both the applicant and a
child, and (b) require a person named in an order under paragraph (a) (i) to enter into a recognizance, with or without sureties, or to post a bond, and (ii) to report to the court or a person designated by the court, at the times and places and for the period of time the court directs.
-s. 38 (1) If a court makes a custody order or a custody order or separation agreement is enforceable by a court, the court may
(a) order that a person must not enter premises, including premises the person owns or has a right to possession of, where the child resides from time to time,
(b) order that a person must not make contact or endeavor to make contact with or otherwise interfere with either the child or any person who has custody of or access to he child, or (c) if the court concludes that the person named in its custody order may not comply with an order under paragraph (a) or (b), further order that the person
(i) enter into a recognizance, with or without sureties, in any reasonable amount
that the court thinks necessary, (ii) report to the court or person designated for the period of time, and at the times and places, as the court considers necessary and reasonable, (iii) deliver up to the court, or a person designated by the court, any documents that the court thinks fit, or
(iv) transfer specific property to a trustee named by the court to be held subject
to the terms and conditions specified in the order or any combination of these.
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Manitoba
The Family Maintenance Act, R.S.M. 1987, c. F.20 as amended.
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-s.10(1) Upon an application under this Part, a court may make an order containing any one or more of the following provisions and may make any provision in the order subject to such terms and conditions as the court deems proper: c) that one spouse shall not enter upon any premises where the other spouse is living separate and apart; d) that one spouse shall not molest, annoy or harass the other spouse or any child in the custody of the other spouse.
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The Child Custody Enforcement Act, R.S.M. 1987, c. C360.
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-s. 8 empowers the court to make an order restraining any person from molesting, annoying or harassing the applicant and child in the lawful custody of the applicant. Gives the court ancillary powers such as ordering a person to enter into a recognizance, report to the court or other named official, and/or deliver up such documents as the court thinks fit.
-s.14 empowers the courts to fine, imprison or otherwise sanction flagrant violators of the courts' orders.
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New Brunswick
The Child and Family Services and Family Relations Act, S. N. B. 1980, c. C-2.1 re-titled Family Services Act, S.N.B. 1980, c. F-2.2, as amended by S.N. B. 1996, c. 13.
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-s. 128 Upon application of a person who is living separate and apart from his spouse a court may make an order restraining the spouse of the applicant from molesting, annoying, harassing or interfering with the applicant or any children in the lawful custody of the applicant. The court may also require the spouse of the applicant to enter into such recognizance as the court considers appropriate.
-s. 130(4) A court may exercise its jurisdiction to make or to vary an order in respect of the custody of or access to a child where (a) the child is physically present in the Province, and (b) the court is satisfied that the child would, on the balance of probabilities, suffer serious harm if (i) the child remained in the custody of the person legally entitled to custody of the child, (ii) the child was returned to the custody of the person legally entitled to custody of the child, or
(iii) the child was removed from the Province.
-s. 132(1) Where a court makes a custody order or a custody order is enforceable under this Part, the court may order that a person (a) shall not enter premises, including premises the person owns or has a right to possession of, where the child resides from time to time, or (b) shall not make contact or endeavor to make contact with or otherwise interfere with either the
child or any person having custody of or access to the child.
-s. 132(2) Where a court is of the belief that the person named in an order under paragraph (1)(a) or (b) may not comply therewith the court may further order that the person comply with any or all of
the following directions, namely (a) enter into a recognizance, with or without sureties, in such reasonable amount as the court considers necessary, (b) report to the court or person designated for such period of time, and at such times and places, as the court considers necessary and reasonable, (c) deliver up to the court such documents as the court considers fit.
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Newfoundland
Children's Law Act, R.S.N. 1990, c. C-13, as amended by S.N. 1995, c. 27.
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-s. 42 empowers the court to make an order restraining any person from molesting, annoying or harassing the applicant and/or child in the lawful custody of the applicant. Gives the court ancillary powers such as ordering a person to enter into a recognizance, report to the court or other named official, and/or deliver up such documents as the court thinks fit.
-s. 40 gives the courts the power to award supervised access only.
-s. 41(4) provides that a denial of access is not wrongful where a) the respondent believes on reasonable grounds that the child will suffer physical or emotional harm if access is exercised, b) the respondent believes on reasonable grounds that he or she might suffer physical harm is access is exercised; c) the respondent believes on reasonable grounds that the applicant is impaired by alcohol or a drug at the time of access.
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Northwest Territories
Family Law Act, Bill 3, assented to Oct. 16, 1997
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-s. 59(1) on application, a court may a) make an order restraining a person who is the applicant's spouse or former spouse or the parent, or a person who claims to be the parent, of children in the applicant's lawful custody from i) molesting, annoying or harassing the applicant or children in the applicant's lawful custody, or ii) communicating with the applicant or children, except as the order provides; and b) require the person to enter into the recognizance that the court considers appropriate.
-s. 23 where an order is made for custody of or access to a child, a court may give such directions as it considers appropriate for the supervision of the custody or access by a person who has consented to act as supervisor.
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Nova Scotia
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-no existing provisions
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Ontario
Children's Law Reform Act, R.S. O. 1990, c. C.12.
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-s. 23. A court may exercise its jurisdiction to make or to vary an order in respect of the custody of or access to a child where, (a) the child is physically present in Ontario; and (b) the court is satisfied that the child would, on the balance of probabilities, suffer serious harm if, (i) the child remains in the custody of the person legally entitled to custody of the child, (ii) the child is returned to the custody of the person legally entitled to custody of the child, or (iii) the child is removed from Ontario.
-s. 34(1) Where an order is made for custody of or access to a child, a court may give such directions as it considers appropriate for the supervision of the custody or access by a person, a children's aid society or other body.
-s. 35. (1) On application, a court may make an interim or final order restraining a person from molesting, annoying or harassing the applicant or children in the applicant's lawful custody and may require the person to enter into the recognizance or post the bond that the court considers
(2) A person who contravenes a restraining order is guilty of an offence and on conviction is liable to either or both a fine of $5,000 and imprisonment for a term of not more than three months for a first offence and not more than two years for a subsequent offence.
(3) A police officer may arrest without warrant a person the police officer believes on reasonable and probable grounds to have contravened a restraining order.
(4) Subsections (2) and (3) also apply in respect of contraventions, committed after those subsections come into force, of restraining orders made under a predecessor of this section.
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Prince Edward Island
Custody Jurisdiction and Enforcement Act, R.S. P.E. I. 1988, c. C-33.
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-s. 20 empowers the court to make an order restraining any person from molesting, annoying or harassing the applicant and/or child in the lawful custody of the applicant. Gives the court ancillary powers such as ordering a person to enter into a recognizance, report to the court or other named official, and/or deliver up such documents as the court thinks fit.
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Quebec
Civil Code of Quebec, S.Q. 1991, c.64.
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-Art. 606 The court may, for a grave reason and in the interest of the child, on the application of any interested person, declare the father, the mother or either of them, or a third person on whom parental authority may have been conferred, to be deprived of such authority. Where such a measure is not required by the situation but action is nevertheless necessary, the court may declare, instead, the withdrawal of an attribute of parental authority or of the exercise of such authority. The court may also directly examine an application for withdrawal.
-Art. 607 The court may, in declaring deprivation or withdrawal of an attribute of parental authority or of the exercise of such authority, designate the person who is to exercise parental authority or an attribute thereof; it may also, where applicable, obtain the advice of the tutorship council before designating the person or, if required in the interest of the child, appointing a tutor.
-Art. 608 Deprivation extends to all minor children born at the time of judgment, unless the court decides otherwise.
-Art. 609 Deprivation entails the exemption of the child from the obligation to provide support, unless the court decides otherwise. However, where circumstances warrant it, the exemption may be lifted after the child reaches full age.
-Art. 610 A father or mother who has been deprived of parental authority or from whom an attribute of parental authority has been withdrawn may have the withdrawn authority restored, provided he or she alleges new circumstances, subject to the provisions governing adoption.
-Art. 612 Decisions concerning the children may be reviewed at any time by the court, if warranted by the circumstances.
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Saskatchewan
Children's Law Act, S.S. 1990, c. C-8.1.
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-s. 23 empowers the court to make an order restraining any person from molesting, annoying or harassing the applicant and/or child in the lawful custody of the applicant. Gives the court ancillary powers such as ordering a person to enter into a recognizance, report to the court or other named official, and/or deliver up such documents as the court thinks fit.
-s. 29 empowers the courts to fine, imprison or otherwise sanction flagrant violators of the courts' orders. (N.B. this section is not merely for situations of violence or inadequate parenting, but for continued violation of an order.)
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Yukon
Children's Act, R.S.Y. 1986, c. 22.
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-s. 36 The court may make an order restraining any person from molesting, annoying or harassing the applicant, or a child in the lawful care or custody of the applicant.
-s. 38 The court may exercise its jurisdiction to make or to vary an order in respect of the custody or access to a child where a) the child is physically present in the Yukon, and b) the court is satisfied that the child would, on the balance of probabilities suffer serious harm if, I) the child remains in the custody of the person legally entitled to custody of the child, or ii) the child is returned to the custody of the person legally entitled to custody of the child.
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