MacLean Law’s top rated* Surrey interim child custody lawyers help parents and their children have the best possible relationship after separation. More critically, our skilled Surrey interim child custody lawyers help you craft a child parenting plan that enables your precious children to succeed and excel moving forward to enable them to become productive adults. We believe the help of our senior Surrey interim child custody lawyers makes a difference in the outcome for your children. Contact us to get crucial help to ensure your children are protected. Our Surrey interim child custody lawyers help negotiate, mediate or litigate a result that is a win for your child.
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Most cases involve two good parents with bonafide but differing ideas of what is in their child’s best interests. Sometimes though parents may have legitimate or imagined safety concerns.
What does a judge do at an early stage of proceedings when the real child custody facts are unclear?
In Vujicic 2015 BCSC 402 (Master), where the court was concerned about the well-being of the child, the court “erred on the side of caution” by making an interim parenting order based on the status quo, until the credibility issues in the affidavit materials could be determined at trial.
Surrey Interim Child Custody Lawyers Explain The Test On Risk
[24] When I consider the factors that need to be considered in order to determine what is in the child’s best interests, first and foremost is the fact that the child is only five months old now and spent only his first two months in the care of both parents. Thereafter, he has been in the care of his mother and, to a certain extent, the maternal grandparents.
[25] No matter whose allegations of fact I take as being the more accurate, the simple fact remains that the child was exposed to family violence although it was not directed toward the child.
[26] It is also apparent that the child was living in a toxic environment, and one which would, more than likely, escalate beyond what already existed. That is borne out by the claimant’s affidavit at paragraph 37, where he says “almost as soon as we moved in together, the respondent and I began to experience problems, and we realized we were not as compatible as we once thought”.
[27] As well, the claimant says at paragraph 41: “In addition to our personality clash, another concern I have always had is the respondent’s unstable and questionable behaviour, which has concerned me since the beginning of our relationship”.
[28] In situations such as the case at bar, paras. 27 & 28 in C.M.L.S. v. F.C.M.S., 2014 BCSC 1450 are instructive:
[27] In Cameron v. Cameron (1979), 12 R.F.L. (2d) 394 (B.C.S.C.), the court set out the principle that where affidavit evidence of the parents is conflicting to the point where the court is unable to determine the truth without an oral hearing, the court is to proceed on the assumption that both parties’ affidavits may well be true. In the case before me, the conflicting evidence is regarding the claimant’s actions and her ability to care for C.S.L.
[28] Counsel also referred me to Day v. Leighton, 2012 BCSC 1116, in which Mr. Justice Halfyard stated, at para. 37:
… But in my opinion, where “the health and emotional well-being of the child” might be at risk, that is sufficient to warrant the court’s intervention. Where the well-being of a child is concerned, the court should err on the side of caution, and take steps to address that risk.
[29] This is a case which cries out for the assessment of credibility of all the witnesses – a process which is difficult to carry out when only reading affidavits without the benefit of seeing the deponent give evidence and be cross-examined.
[30] When I consider all of the factors in s. 37(2) of the FLA, I am most concerned regarding the guardians’ ability to cooperate on issues affecting the child, including whether cooperation would result in any safety and security risks to the child.
[31] I take to heart the observation of Mr. Justice Halfyard in Day v. Leighton (supra). At this stage in the proceedings, this court is concerned about the well-being of the child such that I believe I should err on the side of caution. Erring on the side of caution in this case at this time means maintaining the status quo, at least until the parties appear at a Judicial Case Conference, where they can try to resolve some of their differences, or, failing that, a trial. I understand a trial date has been reserved commencing July 20 of this year.
[32] Accordingly, I am not prepared to order that the child be returned to Burnaby, British Columbia. Therefore the claimant’s application is dismissed, but it should be noted that this does not preclude the claimant from visiting Nikola in Edmonton. However, I think it best that the claimant visit alone until all the credibility issues have been resolved at the trial.
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