What is the test for a motion to prevent the return of a child from the custody of a parent who sexually abused the child?
British Columbia, Canada
The following excerpt is from Sweeney v. Thewlis, 2016 BCSC 129 (CanLII):
The petitioner relies on M.S. v. S.L., 2015 BCSC 1446, and more particularly paras. 51 and 52. Paragraph 52 quotes from Friedrich v. Friedrich, 78 F. 3d 1060 (6th Cir 1996) which makes it clear that: … Only evidence directly establishing the existence of a grave risk that would expose the child to physical or emotional harm or otherwise place the child in an intolerable situation is material to the court’s determination. The person opposing the child’s return must show that the risk to the child is grave, not merely serious. … An example of an “intolerable situation” is one in which a custodial parent sexually abuses the child.
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