Mother of slain girls relieved courts must consider family violence in custody cases

Mother relieved by changes

A Victoria woman whose two young daughters were murdered by their father is relieved that changes to Canadian divorce law now require the courts to consider family violence in parenting arrangements.

“Thank God. It’s about time family law judges take this into account. Too late though for my beautiful girls,” Sarah Cotton-Elliott tweeted Wednesday. “For years, Canada’s Divorce Act didn’t mention family violence. That changes today.”

Chloe, six, and four-year-old Aubrey Berry were stabbed to death by their father, Andrew Berry, on Christmas Day 2017.

Two years earlier, the courts had awarded Berry partial custody of the girls, even though he had been arrested and placed on a peace bond after allegedly assaulting Cotton in 2013. Berry had also been investigated by the Ministry for Children and Family Development, although ministry staff concluded abuse allegations were unfounded.

“We were in court in 2015 and I felt very unsupported in the court process because none of Andrew’s behaviour and actions were really taken into account. At that time, family law was really encouraging equal parenting time and I don’t think it was taking the best interests of the child into consideration,” said Cotton-Elliott.

“I was quite shocked by the judge’s decision, given the history. I do feel it could have been different and perhaps it could have had a better outcome if these changes were emphasized then.”

After Berry’s conviction and sentencing, Cotton-Elliott told reporters the family law system and the children’s ministry had failed her and her daughters.

“I did everything in my power to keep my children safe,” wrote Cotton-Elliott. “However, my concerns [expressed] to MCFD about my children’s well-being in their father’s care and Andrew’s mental health fell on deaf ears.”

Family violence is now defined in the context of the best interests of the child. The definition includes not only violent acts, but also the child’s exposure to such acts. Family violence means conduct is violent, threatening, coercive or controlling. The behaviour does not have to be criminal.

Cotton-Elliott called the fact the changes are now enshrined in national legislation a “huge step forward,” saying judges need a thorough understanding of family violence and should receive more training to recognize all the signs of abuse.

Courts are required to consider parents’ ability to communicate and co-operate on matters related to the child.

“If a person refuses to communicate or co-operate regarding the needs of the child, it’s a huge red flag,” said Cotton-Elliott, adding Berry would not communicate with her. “He absolutely refused to respond.”

The court must also consider the ability of parents to care for and meet the needs of the child. In some cases, a parent’s physical or psychological limitations may raise concerns for the child’s health and safety.

In the days leading up to the murders, Berry had no money. His power had been cut off and he had no food for the girls.

“I hope the judges look closely at a parent’s capacity to care for their children and that mental health issues [are] addressed,” said Cotton-Elliott. “I had been saying for years that Andrew had antisocial personality disorder and he has never been assessed.”

The grieving mother said she felt it was important to speak up about the changes because she believes the family law system is so acrimonious.

“Hopefully, these judges will really take family violence into account and these children have a better outcome in these custody disputes,” she said.

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