Vancouver Interim Child Access and Contact 604-602-9000
Vancouver Interim Child Access and Contact lawyers handle critically important cases involving a non guardian or residential parent and their child. Vancouver Interim Child Access and Contact lawyers explain to clients that the first court appearance is called an interim application and it can set the tone for what will be the ultimate allocation of child access or child contact. Only guardians can have parenting time in BC and non guardians have child contact. Under the Divorce Act a non custodial parent’s time with their child is called Vancouver child access. Vancouver Interim Child Access and Contact who are skilled and experienced know the first application is crucial to setting up a successful child parent parenting arrangement moving forward.
Vancouver Interim Child Access and Contact applications can lead to a favourable settlement and can often help put a negotiated end to disputed proceedings. Vancouver Interim Child Access and Contact lawyers know the greatest predictor of poor outcomes for children as they grow up is continued conflict between their parents.
How Does A Judge Decide Vancouver Interim Child Access and Contact?
Vancouver Interim Child Access and Contact lawyers know that sometimes an interim child contact or child access order has more than interim effect. In these special cases, when a parent wants to dispute an order made in a Vancouver Interim Child Access and Contact case they have to meet a special legal test to win their appeal.
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Special Test For Appeals Of Vancouver Interim Child Access and Contact Decision
In V.M.S. v. S.R.M.S., a disappointed parent sought to appeal a masters decision that gave the no primary residential parent unsupervised and significant child access and contact. Vancouver Interim Child Access and Contact decisions on appeal are entitled to respect but can be set aside if “clearly wrong”. Here is how an appeal of an interim Vancouver Interim Child Access and Contact case works:
[14] In appeals from interim orders dealing with the residence of children or parenting time, the court will apply the “clearly wrong” test in most cases but will conduct a rehearing in some, depending on the facts of each case. In Kalafchi v. Yao, 2015 BCCA 524, the Court of Appeal said at para. 18:
[18] I do not doubt either that most interim access or contact orders are interlocutory in the sense that they are temporary and preserve the status quo pending the final resolution of the issue. Such masters’ orders would be subject to the “clearly wrong” test on appeal. But they are not invariably so. An interim order may so affect a child’s circumstances or the nature of a child’s relationship with a person that the master’s ruling will raise questions vital to the final issue in the case. The Abermin test mandates that the standard of review in those circumstances is a rehearing….
[15] The court approved the statement of Meiklem J. in Thibeault v. Ravelo, [1999] B.C.J. No. 1457 (S.C.) at para. 15:
[15] In my view there can be no absolute rule that Master’s decisions on interim custody and access matters are purely interlocutory and should not be interfered with on appeal unless established to be clearly wrong. Interim rulings concerning custody of children or access to children must be examined on a case-by-case basis to determine if the interim ruling will likely have a direct bearing on the disposition of those issues at trial, bearing in mind the specific issues and the length of time the interim ruling will be in place.
[16] In Kalafchi the applicant was not a biological parent, but became involved in a relationship (the nature of which was in dispute) with the child’s mother at some point after the child was born. When that relationship ended, he started an action in which he sought joint guardianship and equal parenting time. The child’s mother denied that the applicant had ever been in a parental‑like relationship with the child. The master made an interim order giving him contact with the child for six hours once a week. On appeal, the chambers judge held that a rehearing was required:
[4] …
[13] In my view, the master’s order has the potential to significantly influence the results of the trial of the parties’ dispute, which has only been provisionally set for February 2016 many months from now. The respondent seeks to relocate with the child to China. Thus a key factor will be the status quo regarding the relationship between the respondent and the child. Having ordered contact of six hours each week, the master may have created a new status quo in this relationship by the time of trial. If the respondent is not permitted to leave Canada as a result of the relationship between her child and the claimant, she may lose contact with her older son who now resides in China with his father. As one can easily see, the potential consequences of the master’s order could be significant and far reaching.
[14] Accordingly, applying the Abermin principles, I find there must be a rehearing of the issues in dispute in the claimant’s application.
[17] The Court of Appeal dismissed the applicant’s appeal from the decision of the chambers judge.
[18] Kalafchi was applied on similar facts in Fawcett v. Read, 2016 BCSC 310. That was also a case involving an applicant who was not a biological parent or a guardian. As in Kalafchi, the ultimate issue for trial was whether any relationship with the applicant was in the child’s best interests.
[19] I consider the facts of this case to be far removed from those in Kalafchi or Fawcett. The master’s order does not “create a new status quo.” The respondent is the children’s father and the claimant is not seeking to permanently exclude him from the children’s lives. Until days before the master’s order, both parties were continuing to live with the children under the same roof, as had been the case throughout the children’s lives. There was, in effect, joint parenting. Far from creating a new status quo, the master’s order provides for an interim arrangement that attempts to make as little fundamental change as possible in the nature of the children’s relationship with each parent.
[20] Indeed, the master would have been much more likely to create a new status quo and significantly alter the children’s relationships with their parents if she had acceded to the claimant’s application for supervised access. That was, in fact, the issue in Thibeault, where Meiklem J. said at para 20:
[20] … Quite apart from the stigma associated with having been restricted to supervised access on a long-term basis, there will be a profound affect [sic] on the relationship between the child and his father which is bound to affect the final outcome at trial….
[21] The master’s order in this case was made with the knowledge that an appropriate expert would be preparing a s. 211 report. The evidence arising from that report will greatly assist the court in determining the children’s best interests and is likely to have much more impact on the outcome of the trial than the existence of any circumstances arising from the master’s order.
[30] The master applied the applicable law to the often conflicting evidence before her and made an interim order that cannot be described as clearly wrong. The appeal must be dismissed.
