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Background Facts

This case involves analyzing the best interests of the children, the invasion of their privacy, and the effects of cyberbullying.

The parties were married in October 2000 and separated in September 2016. They have two children. The older child, who was 12 years old at the time of the decision, has an unspecified neurological disorder and is autistic. She requires special needs supports, including significant educational supports.

The court noted that the father was abusive during the marriage. His abusive acts included damaging furniture in anger, threatening to kill both himself and the mother; engaging in significant verbal abuse in front of the children and threatening that he would kill himself and the children.

About a month after their separation, in October 2016, the mother left Ontario with the children to London, England. The father started proceedings to have the children returned to Ontario pursuant to the Hague Convention. Order from the High Court of Justice Family Division in London, England that the children be returned to Ontario was made in June 2018.

After the children were returned to Ontario, the mother brought an urgent motion when the father refused to return the children to the mother for her access and refused to disclose their location. In September 2018, the Ontario Superior Court of Justice granted the mother temporary sole custody of the children and permitted her return to London, England, with the children in addition to a supervised access for the father.

The father’s alarming conduct.

Of important note is the father’s alarming conduct that ultimately resulted in a permanent restraining order against the father, supervised access with stringent terms for the father, as well as sole custody of both children for the mother.

Cyberbullying the mother and the children

The father posted numerous videos of the children online. Through Facebook, YouTube, and GoFundMe, the father publicly asked to “save an abducted autistic girl from captivity”. The videos contain photos and videos of the children, personal identifying information, and hurtful comments about them. The videos were filmed during the father’s access times with the children. They were not aware that they were being filmed.

On these digital platforms, the father posted that his daughter’s autistic behaviour was a result of being kidnapped and drugged with opiates and tranquilizers by their abusive grandmother. The father further accused the mother and her parents of numerous criminal and illegal acts, including child abuse, felonies, fraud, etc. The court rejected these accusations.

Accusing and harassing the mother and her family

The father has made countless unsubstantiated accusations against the mother and her family to various authorities in the United States, the United Kingdom and in Canada. In the period of two years, the father reported the mother and/or her family to the authorities over 25 times. None of the reports resulted in substantiated claims.

Legal Analysis

As per section 24(2) of the Children’s Law Reform Act, the determination for parenting is based on what is in the best interests of the children. It was of the courts view that while the mother had the children’s best interests in mind, the father did not. The mother provided environment for the children where they can thrive, feel loved and cared for. Throughout their lives, the mother took responsibility for their medical and educational decisions, including actively providing the best support for her daughter and her neurological condition. The court noted that the mother had a detailed plan of care that involves emotional support from the mother’s extended family who were collectively found to be a stable and supportive family unit. In addition, despite the father’s harmful behaviour, the mother intended to continue keeping the father informed about the children's progress. The mother has consistently shared the children's achievements in school, and important events with the father.

On the contrary, the court found that the father did not have the children’s best interests at heart. The court found that the father focused on himself and his interests, and did not focus on the needs of the children. He intruded on the privacy of the children in the course of cyberbullying them, without considering the effects of the intrusion on their privacy. The court further found that the father did not consider the harm it would likely cause the children if they discover abusive online videos when conducting internet searches of their own mother and family members, and the effect of the invasion of their privacy and internet attacks on those they love.

According to section 16(10) of the Divorce Act, parents should have maximum contact with their children. However, the court iterated that maximum contact may not always be possible or in the children's best interests. The court further stated that when the contact itself is not aligned with the best interests of the child, contact may be denied or curtailed. Unfortunately, this case was one in which the best interests of the children clashed with the maximum contact principle.

For more information, please call us at Feldstein Family Law Group P.C. or contact our firm online.