Appeals of BC interim child custody and parenting orders are generally discouraged absent a compelling reason. A dispute as to what is in the best interests of a child in BC is better suited to be fully canvassed at trial, especially where significant factual and credibility issues are raised.
The goal is to ensure child parenting time, access and custody orders are settled or decided by a trial judge promptly so the child can develop properly and free from a prolonged and psychologically upsetting family law dispute. Our highly skilled and child focused lawyers will help you resolve difficult child custody, guardianship, parenting time and contact issues.
BC Family Orders Orders Need To Specify What Act
In Fitzgibbon v. Fitzgibbon 2014 BCCA 403 the BC Court of Appeal addressed firstly what Act they should govern the appeal:
[14] As a preliminary matter, counsel for the parties were asked to address the issue of whether the order under appeal was an interim order under the FLA and therefore a “limited appeal order” under s. 2.1 of the Court of Appeal Rules that required leave to appeal, or whether it was an interim order under the Divorce Act, R.S.C. 1985, c. 3 (2d Supp.) for which there continues to be a right of appeal (see Haigh v. Haigh (1987), 15 B.C.L.R. (2d) 375 (C.A.), and De Fehr v. De Fehr, 2002 BCCA 577).
[15] The mother’s Notice of Family Claim sought relief under both acts while the father’s counterclaim sought relief only under the Divorce Act. Neither the December 6, 2013 order nor the April 3, 2014 order identified the act under which the orders were made although the language used in both appears to track the language of the FLA. The mother’s application was for a suspension of the “parenting arrangements” under the parties’ marriage agreement and the orders granted in response to her application purport to suspend the father’s “parenting time” and impose supervision of his “parenting time”, respectively. Our jurisprudence (see Hejzlar v. Mitchell-Hejzlar, 2011 BCCA 230; Yu v. Jordon, 2012 BCCA 367; and Supreme Court Family Rules, Appendix A, Form F52) requires the Act under which such orders are made to be specified. It is unclear why those requirements were not met in this case.
Interim Child Parenting Orders Involve Discretion And Should Be Respected
[20] …. Rather the question is whether the judge erred in law in confirming the interim order for supervised access pending trial of the issue.
[21] In my view the April 3, 2014 interim order does not engage a question of law. Decisions regarding the guardianship, custody, parenting and access of children are inherently exercises of discretion by the judge and are therefore accorded deference on appeal. An appellate court may only interfere where there is a material error, serious misapprehension of the evidence, or an error of law: see Van de Perre v. Edwards, 2001 SCC 60, and Rick v. Brandsema, 2009 SCC 10. Here, the judge’s decision to confirm his December 6, 2013 interim order reflects an exercise of his discretion in weighing the new evidence and finding that it did not support a variation of the earlier interim order at that time. While the one-off nature of the alleged incident, the basis upon which the third-party decisions of the Crown and the MCFD were made, and the question of whether there is an ongoing need for continued supervision of the father’s access to the child may all be relevant factors for consideration in the final determination of this issue, it was, in my view, open to the judge to conclude that it was premature to change his December 6, 2013 interim order before the s. 211 report had been completed. His decision, by inference, reflects the view that the issue would be better addressed at the trial of the action where the factual and credibility issues may be fully canvassed. In short, I do not find his decision to dismiss the father’s application to vary the interim order for supervised access to demonstrate an error of law, but rather to reflect an exercise of his discretion in the weighing of the new evidence. Deference must be accorded to such a decision.
Interim Child Parenting Appeals Are Discouraged In Favour Of Prompt Trials
[22] Interim orders are primarily designed to maintain the status quo and to provide short-term solutions until issues regarding the best interests of a child can be fully canvassed at trial: Johnson v. Jessel, 2012 BCCA 393 at para. 48; Leung v. Leung (1998), 44 R.F.L. (4th) 121 (B.C.C.A.) at para. 10; Eaton v. Eaton (1987), 11 R.F.L. (3d) 92 (B.C.C.A.); and Prost v. Prost (1990), 30 R.F.L. (3d) 80 (B.C.C.A.). In this case, the best interests of the child was at issue. The incident that gave rise to the supervision order was disputed. This raised issues of the parties’ credibility. The forum to resolve these issues and whether there is an ongoing need for supervision of the child are best resolved at trial and not by repeated interim applications. Appeals from interim orders on issues regarding the best interests of a child generally have been discouraged absent a compelling reason: see Haigh v. Haigh (1987), 9 R.F.L. (3d) 301 (B.C.C.A.).
[23] In these circumstances, it is critical that issues involving the best interests of a child be addressed in an expeditious manner by all involved. This Court has expressed its concern over delays in matters involving family law issues, and in particular those involving the custody of and access to children.
[24] In this case, the April 3, 2014 order included a provision for the preparation of a s. 211 report. We were advised that as of October 2, 2014, the hearing date of this appeal, the report has not been completed. The source of that delay is unclear. It is imperative that all parties to the litigation and their counsel take the necessary steps to secure the expeditious completion of this report and the early scheduling of the trial of this matter. The determination of the best interests of this child requires no less.
Studies show that the greatest predictor for poor outcomes for the healthy development of children is prolonged conflict. Call us to today across BC toll free 1-877-602-9900 to help you create a plan to end the conflict your child might face so they have the best chance to succeed in life.
