Beyond Decriminalization: Sex-work, Human Rights and a New ...

PIVOT LEGAL SOCIETYIn making custody and access decisions Courts must not consider parents’ past conduct, unlessit has a substantial effect on the best interests of the child. This factor may be significant for sexworkers who are involved in child custody and access disputes. Unless a parent’s involvement in thesex industry substantially affects the best interests of his or her children, courts must not take thatparent’s profession into account when making determinations of custody or access. However, thereare cases where continuing involvement in prostitution has been taken into account because of itsperceived impact on the best interests of a child. In some cases the Courts have taken a parent orrelative’s engagement in prostitution as a potentially “undesirable” factor affecting that person’s rightto be granted custody or access.In N.F. v. H.L.S., the B.C. Supreme Court overturned the lower court’s decision to allow agrandmother who worked as an escort to have access to her seven-year-old grandchild. The SupremeCourt found that the mother of the child had the right as the child’s custodian to make moral decisionsregarding the child’s upbringing, including denying access to the grandmother for as long as sheremained active as a sex worker. The case went to the Court of Appeal which upheld this decision onthe ground that the grandmother bore the onus of proving that her access was in the best interestsof the child, rather than the mother having the onus of establishing that access was contrary to thechild’s best interests.In L.B.S. v. S.T., the mother and the father each sought interim sole custody of their two-and-ahalf-year-olddaughter. The mother admitted to being a sex worker and the father admitted that hewas a member of the Hell’s Angels Motorcycle Club. Both parents accused each other of being unfitto have custody of their child for a variety of reasons, including drug use, abusive behaviour andalleged criminal activities. The Court found that the parents should share joint custody, reasoningthat neither parent would intentionally allow their “questionable activities” to become known to theirchild, nor would either of them “promote the undesirable aspects of their lifestyles and activities totheir child.” The Court explained:Even though most of the allegations of misconduct have not been made out, in my opinion,the present lifestyles of both Mr. L.B.S. and Ms. S.T. will probably be harmful to M.M.S.if continued for another year or two. By then, she will probably begin to learn about, andunderstand to some limited extent, the activities of her parents, and will begin to form opinionsof her own about them. If that point is reached, then in my view their conduct wouldbe relevant to M.M.S.’s “health and emotional well-being”, and to the capacity of her parentsto adequately exercise the rights and perform the duties associated with her guardianship andcustody, which are factors in s. 24(1) of the Family Relations Act that must be considered.However, I am satisfied that neither parent would intentionally allow their questionableactivities to become known to their child, nor would either of them promote the undesirableaspects of their lifestyles and activities to M.M.S. And so I find that their lifestyles are relevantonly to a limited extent, at this time.I continue with the mandatory analysis under s. 24(1) of the Family Relations Act. I amsatisfied that, at the present time, both parents have suitable homes and are capable of safeguarding,preserving, and promoting M.M.S.’s health and emotional well-being [s. 24(1)(a)],they both have much love and affection for M.M.S., and competent and reliable supportpersons who also have strong ties with her [s. 24(1)(c)], they are both capable of providingproper “education and training for the child” [s. 24(1)(d)], and that they both have adequatecapacity to exercise the rights and duties associated with guardianship and custody of M.M.S.[s. 24(1)(e)]. Family Relations Act, ibid., s. 24(3). N.F. v. H.L.S. [1998] B.C.J. No.1739 (B.C.S.C.). L.B.S. v. S.T. [2000] B.C.J. No. 2304 (B.C.S.C.). L.B.S. v. S.T., [2000] B.C.J. No. 2304 at paras. 43-45.206