With the introduction of family violence provisions in British Columbia’s Family Law Act in 2013 and the recent amendments to the Divorce Act, domestic violence is no longer a taboo subject in family law proceedings, no longer swept under the rug and ignored in favor of a focus on financial issues.
In 2022 the Supreme Court of Canada considered the issue of family violence in Barendregt v. Grebliunas 2022 SCC 22, finding “untenable any suggestion…that domestic abuse or family violence has no impact on children and has nothing to do with the perpetrator’s parenting.” The court also recognized that a child may experience harm through “indirect exposure” to domestic conflict and “proof of even one incident may raise safety concerns for the victim or may overlap with and enhance the significance of other factors, such as the need for limited contact…”
The British Columbia Court of Appeal recently heard an appeal from a final parenting order in KMN v. SZM 2024 BCCA 70 where the respondent father was awarded equal, unsupervised parenting time, to be gradually introduced, despite criminal charges levelled against him for alleged occurrences of domestic abuse against his wife, incidents which occurred six months before the parties separated in March 2020, and again in September 2020, an event which led to the parties’ separation.
The parties, who lived in the Lower Mainland, married in 2015 and had a child in 2018, who was 2 years old at the date of separation. The mother was the child’s primary caregiver, but the father was actively engaged with the child.
In March 2020 the parties argued, with the father becoming increasingly angry, calling his wife demeaning names, throwing objects at her and “headbutting” her while the child was standing beside her. The mother testified that she was not injured, and the father was charged criminally.
A second incident took place in September 2020 when the father became angry while the mother was feeding the child and over the course of the altercation, he again headbutted his wife, leading her to leave the home with their child. She moved in with her parents in Nanaimo and the parties’ marriage was at an end.
In December 2020 a Master issued an interim parenting order, by consent, granting the father one overnight visit with the child every week. In January 2021 the visitation was increased to two overnights per week. The mother remained living in Nanaimo.
In March 2021 there was a third hearing for parenting time where the court reviewed the evidence of the abuse that took place in September 2020, noting that the father’s behavior “was a serious and troubling incident of family violence”, while acknowledging that the father had shown regret and self-awareness around the incident, as he deposed in his affidavit, and as evidenced by a text message to his counsellor where he admitted his “poor choice for which he felt horrible.”
The Master ordered the mother to return to the Lower Mainland in close proximity to the father, stating that her “temporary relocation to Nanaimo was justified to ensure her safety”, however, he found that allowing her to remain on Vancouver Island, which meant that the father’s parenting time was defined by ferry rides and car travel, was not in the child’s best interests. The court ordered parenting time for the father every weekend from Saturday morning to Sunday evening. A month later the parenting time was increased to two overnights per week.
In May 2021 the father was again charged criminally when during an exchange of the child for his parenting time the father threw his phone at his wife, allegedly because she was acting aggressively. Because of this incident, his parenting time was reduced to one overnight. In August the order was amended to provide him parenting time on his non-workdays and in September a section 211 report was ordered, by consent.
In October 2021 the child disclosed to her mother that her father had hit her on her head, a peace bond was secured, and the father’s parenting time was ordered to be supervised and reduced to four hours a week. The Ministry of Children and Family Development investigated and in January 2022 the parties were advised that they had no child protection concerns. The peace bond was revoked by Crown counsel.
An eight-day trial was held in October 2022 where the father had counsel and the mother was unrepresented. The father initially sought primary residence of the child, but in closing submissions he amended his claim to shared parenting. While the mother’s pleadings included claims for joint guardianship and equal parenting time with conditions, including counselling, no drugs or alcohol, and supervision, she too resiled from her pleadings and requested sole guardianship and supervised parenting until he could show that he was no longer a threat to her safety.
The appeal court summarized the father’s criminal charges which included ten alleged offences between March 2020 and January 2023, leading to three counts of assault, one count of uttering threats, one count of criminal harassment, one count of mischief, and four counts of breaching his bail conditions. At the time of the appeal the charges had not been adjudicated.
The trial judge determined that neither the father nor the mother were “particularly strong witnesses” but the father was “more reliable”. He found that the mother frequently reported misdeeds by the father as a weapon against him. The court declined to follow the recommendations in the section 211 report where the expert, Dr. Elterman, opined that supervised parenting continue and that joint counselling and therapy be undertaken, to be followed by a review of parenting, with the goal of having both parents involved in their daughter’s life.
The mother brought a stay application with respect to the parenting order of the trial judge, which was denied.
The appeal court allowed the mother’s appeal , finding that the trial judge failed to meaningfully analyze the mother’s allegations of family violence. They said that while the judge cited the provisions of the Family Law Act, the evidence of family violence was misinterpreted, diminished or summarily dismissed.
The appeal court remarked that the trial judge’s reasons did not include incidents of family violence that occurred in March 2020 or May 2021. In addition, the trial judge misstated Dr. Elterman’s findings and failed to consider his opinion that if the allegations of abuse were true, there was a potential moderate risk of reoffending.
The appeal panel also noted that the trial judge erroneously found that the Ministry had determined that the mother had coached her daughter. Further, both Dr. Elterman and the Ministry social workers referred to the subject of violence directed toward the child but failed to consider indirect exposure to the child of physical and psychological abuse against her mother.
The father’s theory of the case was that the mother was setting him up, in order to deny him a full active role as a father, a theory that the trial judge accepted, leading the appeal panel to raise the issue of myths and stereotypes of mothers using the justice system to thwart their spouse’s role as a parent, although noting that his issue was not raised at trial or fully argued before them. Nonetheless, the appeal court found that the father framed his case in “perfect alignment with those stereotypes” and those unfounded assumptions contributed to the outcome of the trial.
The appeal court ordered a new trial, rescinded the trial judge’s parenting order, and ordered that the father have 7 hours of supervised parenting time one day a week. With the backlog in the Supreme Court it is very likely that the new trial will not take place until late 2025 or 2026.
**This article was first published by LAW360, a publication of LexisNexis Canada.