Canada: What The Death Of Riya Rajkumar Means For Family Law Custody Cases

Last Updated: February 22 2019
Article by John Schuman

Millions of people were startled late last night to when the emergency tones went off for the Amber Alert for Riya Rajkumar, only to learn, minutes later, that she had been found, but not safe. Riya did not return from an "access visit" with her father for her birthday. Her mother contacted police because she received messages about the father harming Riya. The police found Riya's body in the middle of the night. They also found her father, who was arrested for murder. The whole event seems disturbingly similar to the murder of Luke Schillings in 1997 and other similar incidents that resulted in changes in Family Court in 2009.

Predictably, everyone wants to prevent this kind of event from happening again. Almost immediately, there were calls to cut off "access" to fathers, for presumptions of supervised access, and for family courts to be vigilant and act on any hint of possible abuse, separating all ties between children and parents. Doubtlessly, Children's Aid Societies will be under tremendous pressure to be more intrusive in the lives of separated families to make sure this does not happen again.

Having practiced Family Law for twenty years, these reactions do not seem so much as an overreaction, but a wrong reaction. Fortunately, these cases are extreme. Judges are vigilant about protecting kids. Custody/Access cases entirely revolve around what is in a child's best interest and there are no such things as "parental rights in Ontario." Parenting is a responsibility – a responsibility to ensure that your children group up in the best way possible and meet the fullness of their potential. It goes without saying that what happened to Riya was not in her best interest. However, we do not yet know how the system failed her.

High Conflict Separations are dangerous for children. Even without the threat of physical violence, high levels of conflict between parents is really harmful for children. Parents who are overcome with anger with their ex spouse frequently act irrationally and do terrible things, including making false allegations of abuse. False allegations that judges then have to sift through and try to determine what is factual and what is a parent's unreasonable act of anger or mistrust in the midst of conflict. Neither parent has a monopoly on being on the "wrong side" of parenting conflicts.

Separating children from their parents each time there is any suspicion of harm is not deemed healthy for the children. Ask any social worker or psychologist and they will tell you that children need to have a relationship with their parents. This is apparent even if the parent is not a is difficult to get along with. Part of a child's development, is building a stable sense of identity, rejecting what they do not like in other people, including their parents. Only serious safety concerns should prevent a child from having a relationship with a parent. Conflict and fighting can cause serious safety concerns.

People involved in Family Court are aware of the need to devote more resources towards mental health, particularly parents and children. If someone feels that it is necessary to self-harm or harm others, then the system is required to provide that support quickly.

It also goes without saying that reducing the conflict can reduce the stress and potential for harm to children. Family Mediation, Parenting Coordinators, and Collaborative Practice, are all options for separated parents to avoid the increase in hostility, negative emotions, bitterness and anger that often accompanies Family Court. The professionals in those disciplines are often good at reducing the conflict, while identifying any underlying concerns, directing the parents, and children, to appropriate resources. In addition, just speaking to a good family law lawyer, can give parents the advice they need to focus on what is important and direct their attention away from the anger they may feel towards the spouse. A good counselor/divorce coach can also help parents address their emotions in a positive way.

Focusing on being right often makes things worse. But a good lawyer will direct their clients, and their children to places of safety and provide a good impartial assessment of risk. Many police forces also offer risk assessments, as do children's aid societies. These resources can help parents decide when it might be unsafe to allow a parent see a child.

Parents who are worried about their children's safety do need to take the appropriate legal actions in response. In times of crisis, then many options are off the table, and that is when it may be time for Family Court, or 9-1-1. If you are not sure about your situation, get some professional advice and do not take the risk of allowing your child to be being harmed.

The best way to protect yourself, your children, your possessions and anything else important to you, is to find out how the law applies specifically to your situation and what steps you should take.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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John Schuman
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