protect them from harm yet the question of custody which requires determination

Protect them from harm yet the question of custody

This preview shows page 203 - 206 out of 269 pages.

protect them from harm, yet the question of custody (which requires determination of what is in the child’s best interests, and thus considerable information, to enable the determination to be made properly), is left to be resolved in a forum in which such information can be made available to the adjudicator. 6.4.6 In an emergency situation, the safety of the claimant may be ensured first by an order that the respondent not contact the claimant. If there are children, the children may or may not themselves be at risk of harm. If they are, there should also be an order that the respondent not contact the children. However, even if there appears to be no risk of harm to children, contact between the respondent and children may compromise the safety of the claimant. If this is so, it may or may not be possible to structure the logistics of access to the children by the respondent
177 ALRI Report No 74 77. 481 ALRI Report No 74 80. 482 ALRI Report No 74 82 - 83. 483 ALRI Report No 74 82. 484 ALRI Report No 74 73 - 74. 485 in such a way that contact does not compromise the safety of the claimant. If it is possible, this should be done. If it is not, the “no-contact” order should be made to apply to both the claimant and the children. 481 6.4.7 Addressing the situation where there is an existing custody order in place , the Alberta Law Reform Institute reasons that though it may be accurate to say that a lower court is not 482 competent to vary an existing custody order, it is arguable that such court can still grant a protection order. The argument is based on the idea that protecting a child against harm by granting a “no-contact” order is a different issue than deciding which of two parents should have custody. 6.4.8 The two types of orders (custody/access and “no-contact”) do not conflict because they have different purposes. Protection orders do not conflict with custody orders because the two types of orders have different purposes. A protection order may temporarily suspend or qualify a respondent’s custody order, but it does not re-adjudicate the custody issue. 483 6.4.9 The Alberta Law Reform Institute recommends that it should be possible to make the 484 following orders in respect of children: Where there is a risk of harm to a child, an order of “no-contact” with the child; if the risk is minimal, there may be an order of supervised contact. Where the respondent’s contact with the child would create a risk to a claimant, and order setting out the logistics of the respondent’s access to the child so that the claimant’s safety is not compromised; if this is not possible, there may be an order of “no-contact” with the child. 6.4.10 As regards financial relief, the Alberta Law Reform Institute considers it important to 485 distinguish between the type of financial relief that may be needed as a direct consequence of
178 ALRI Report No 74 74. 486 Quoted in ALRI Report for Discussion No 15 123. 487 abuse and the resulting need for separation on the one hand, and an ongoing support obligation on the other.

  • Left Quote Icon

    Student Picture

  • Left Quote Icon

    Student Picture

  • Left Quote Icon

    Student Picture