Family Violence and Child Parenting Time is a key topic courts now deal with on a daily basis. A new BC Court of Appeal decision decided whether violence directed towards a parent constitutes family violence in order to determine the best interests of the children. in todays blog Kanika Bajaj one of our amazing Articling Students addresses the issue of what is family violence and how it impacts child parenting and guardianship decisions. Our Vancouver Family Violence and Child Parenting Time lawyers are ready to assist you immediately to ensure you and your children do not suffer family violence and to ensure any false claims of family violence are promptly dismissed.
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Our Vancouver Family Violence and Child Parenting Time lawyers know that Family violence is one of the most contentious issues in matrimonial disputes and parenting arrangements between spouses. Besides physical abuse, it can be comprised of one or more forms of violence or abuse including: physical abuse, sexual abuse, emotional abuse, financial abuse and neglect. It is not only limited to the partner who is the victim of such abuse by his/her partner but its effect on the children, who unfortunately are privy to such an abuse by their parents, also amounts to family violence as defined under the Family Law Act.
In todays’ blog we will walk you through with an important decision delivered by the BC Court of Appeal in K.M.N. v. S.Z.M., 2024 BCCA 70. While deciding an appeal from the mother challenging the order of the trial judge granting the father unsupervised parenting time, the Court concluded that family violence directed towards a parent also constitutes family violence towards the children.
[2] Assessing the “… best interests of [a] child [for purposes of a parenting order] is a heavy responsibility, with profound impacts on children, families and society”: Barendregt v. Grebliunas, 2022 SCC 22 at para. 8. It is also a highly “individualized and discretionary” inquiry: Barendregt at paras. 9, 97.
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The Court of Appeal referred to the above decision of the Supreme Court of Canada while deciding an appeal against the final parenting order passed by a Trial Judge of the Supreme Court of British Columbia. The Court set aside the order of a trial judge granting equal and unsupervised parenting time to the respondent father, and directed a new trial to be conducted on the grounds of material error committed by the trial Judge. The Court held that the trial judge failed to conduct a proper analysis of allegations of family violence advanced by the mother, as mandated under the Family Law Act. Nor in assessing the best interests of the child did he consider the effect of the child’s exposure to family violence directed towards the mother. Instead, the trial judge limited the best-interests analysis to evidence of violence specifically directed towards the child.
Facts:
The father was criminally charged for an incident of family violence against the mother. The father became angry, called mother demeaning names, threw objects at her, and headbutted her while the child was at her feet. After the incident, the father sent text messages to a third party in which he said he had “snapped”, “grabbed [the mother’s] head”, and “ended up giving her a head butt”. He said he knew it was wrong.
Issues argued before trial judge hearing 3rd parenting time application of the father-
Mother’s contention: The best interests of the child is with mother due to father’s unresolved anger issues and a history of family violence.
Father’s contention: The child’s best interests is in to have both parents actively involved in her life.
The Supreme Court, by consent, ordered a report under s. 211 of the Family Law Act.
Contrary to the parenting regime, the father on two occasions did not return the child to the mother. The mother obtained a court order that the child be returned to her. The child also disclosed to the mother and a staff member of the Ministry of Children and Family Development (“MCFD”), that the father hit her on the head. An associate judge made an order for supervising the parenting time of father and reduced it to twice weekly.
Parties Position at Trial Tel: 604 602 9000
The father sought:
(1) Joint custody and guardianship;
(2) Joint parenting responsibilities, with the father having final decision-making authority in the event of a disagreement; and
(3) Primary residential care of the child.
The mother sought:
(1) Joint guardianship;
(2) Primary residential care;
(3) Equal parenting time, but on conditions; and
(4) Joint parenting responsibilities, with final decision-making authority.
Errors found by the Court of Appeal in Trial Judge’s Findings Tel: 604 602 9000
The Court of Appeal noted errors in the trial Judge’s order:
- The Trial Judge found father’s testimony “more reliable”.
- The Trial judge did not examine evidence adduced by the mother properly and correctly.
- The Trial Judge’s conclusion on mother’s reliability and her conduct of “frequently” reported “misdeeds” by the father as “a weapon” against him.
Issues on Appeal
The mother alleged a number of errors predominantly focused on the parenting order. The mother said the judge:
- Failed to analyze the best interests of the child in accordance with the analytical framework mandated under the FLA;
- Misapprehended the evidence of family violence; and
- Unfairly deprived her, as a self-represented litigant, of an opportunity to re‑open her case to adduce further evidence relevant to parenting issues.
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Discussion
Section 37 of the FLA provides:
(2) To determine what is in the best interests of a child, all of the child’s needs and circumstances must be considered, including the following:
(g) the impact of any family violence on the child’s safety, security or well-being, whether the family violence is directed toward the child or another family member;
(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in the person’s ability to care for the child and meet the child’s needs;
Analysis
- The Court noticed that the judge failed to conduct a meaningful analysis of the allegations of family violence in accordance with ss. 37 and 38 of the FLA which was essential for rightfully assessing the best interests of the child and important to a reasonable resolution of the contested parenting issues.
- The Court observed that the trial judge erroneously interpreted mother’s allegations of family violence by her partner as a stereotype to influence his reasoning and he had a false belief that women commonly raise such allegations of violence post separation for the specific purpose of gaining an upper hand in the family law litigation.
- The “factual background” contains no mention of the family violence alleged to have occurred or any acts by the father that have given rise to a charge of criminal harassment.
- There is no analysis of the mother’s testimony surrounding alleged acts of physical violence or threats directed towards her in the family home.
- There was no actual MCFD finding of coaching by the mother.
- Elterman’s report did not undermine (or render false) the mother’s evidence that she saw bruising on the child’s forehead after the child returned from parenting time with her father.
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The Appeal Court decided:
[107] After a meaningful consideration of the evidence, the judge may have determined that based on his assessment of credibility and reliability, and his findings of fact, the best interests of the child did not require restricted or supervised parenting time. However, the reasons for judgment contain no findings of fact about family violence, nor any apparent consideration of the impact of the child’s exposure to violence and continued conflict between the parties. Instead, on the face of it, the judge appears to have limited his consideration of s. 37 and 38 factors to violence perpetrated by the father directly against the child.
[108] On the whole, I am satisfied that the judge’s approach to family violence reflects an error in principle that irreparably tainted his assessment of the best interests of the child and ultimately, his resolution of the case.
[123] The Supreme Court of Canada has recognized that “[d]omestic violence allegations are notoriously difficult to prove …”: Barendregt at para. 144. As such, an inability to prove family violence on a balance of probabilities does not mean that it must not have occurred or, importantly, that it was falsely alleged for the specific purpose of furthering a litigation objective.
[124] In this case, the father framed his case in perfect alignment with the myth discussed by Professor Koshan. Despite he himself having reported the mother to the MCFD and the police, the father openly argued that the mother fabricated allegations of violence and reached out to the authorities to gain an upper hand in the family proceedings…
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The Court, while ordering a new trial, also ordered to continue with the father’s current amount of parenting time but on the condition that the whole of that time and any exchanges of the child are supervised. The interim order also contemplates the continued involvement of a parenting coordinator to work with the parties on matters of potential dispute, including where the exchanges take place.
If you have questions concerning family violence or any other family matter contact us now.
