Halle Berry v Gabriel Aubry: Access to Children when a Parent Is Violent

The never-ending custody battle between Halle Berry and Gabriel Aubry continued this week, as Mr. Aubry was back in Court for a review of the restrictions that were placed on his access time with daughter Nahla. As reported by TMZ.com, Mr. Aubry was recently involved in a child endangerment investigation, the result of which was an Order that his visitations with his daughter be monitored by a Court appointed official.

While this makes for an interesting story in the context of Family Law, unfortunately there is a young girl caught in the middle of what is a very volatile situation.

When dealing with a parent who has a tendency to act violently or abuse alcohol or drugs, for example, the Court has to balance protecting the safety and best interests of the child with the importance of enabling the child to develop a meaningful relationship with both parents.

Whether you are in Ontario or California, the weighing of these principles against each other will take place in certain circumstances, even though the language of the legislation in the relevant jurisdiction may be slightly different.

When it comes to young children like Nahla, third parties often get involved in litigious matters in order to ensure that the voice of the child is heard by the Court. In Ontario, the Office of the Children's Lawyer may be appointed to assess a child caught in the middle of the matrimonial issues their parents are dealing with. In Nahla's case, a Californian attorney was appointed to the case to look out for her rights, as quoted by TMZ.com. The Court will also hear from a social worker who has been visiting with Nahla, and this practice is commonplace in Ontario as well.

In concert with all of this, Ms. Berry is looking to move overseas, and she will have to convince a Judge that this is appropriate in spite of the access schedule, albeit limited, of Nahla's father.

In Ontario, when a party wishes to change a Court Order involving access, they must bring a Motion to Change. If when served with the Motion to Change and supporting Affidavit(s) the responding party does not consent to the proposed amendment(s) to the Order, then the parties could wind up back in Court to argue over custody and access again.

Based on what we have seen and heard about the matter of Berry v. Aubry, we can anticipate another head-to-head Court appearance, and in turn, another Blog about their dramatic saga, focusing on Section 16(7)-16(10) of the Divorce Act, which reads:

Order respecting change of residence
(7) Without limiting the generality of subsection (6), the court may include in an order under this section a term requiring any person who has custody of a child of the marriage and who intends to change the place of residence of that child to notify, at least thirty days before the change or within such other period before the change as the court may specify, any person who is granted access to that child of the change, the time at which the change will be made and the new place of residence of the child.

Factors
(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.

Past conduct
(9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.

Maximum contact
(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

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