By Chantal M. Cattermole and Emily Davies

If you are separating or divorcing from a partner that you share children with, you may be wondering how a court determines where your children will live and how you and your former partner will divide parenting time.

In the recent case of K.M.N. v. S.Z.M., 2024 BCCA 70, the BC Court of Appeal allowed an appeal by a mother because the trial judge failed to conduct a proper analysis of the allegations of family violence by the father.

This new judgement clarifies that it is not sufficient to limit the best interests of the child analysis to evidence of violence specifically directed towards the child. Courts must consider the effect of the child’s exposure to violence toward any family member.

A History of Violence

The parties were married in June 2015 and welcomed their first child in 2018. In March 2020, an incident occurred between the mother and father that resulted in the father being criminally charged for offences against the mother. The parties then separated in September 2020. The separation was said to have been triggered by another incident of alleged physical aggression by the father towards the mother, which also resulted in the father being charged criminally.

Throughout 2020 and 2021, a variety of parenting orders were issued by the court. During that time, the father was also charged criminally many times. At the time of the appeal, the father had been charged with 10 offences, all concerning the mother. These charges remained outstanding at the time of the appeal.

The parties went to trial to determine the place of residence and parenting arrangements for their child. At this time, the mother had moved to Nanaimo and the father remained in Chilliwack, where the family had lived prior to separation. The mother argued that it was in the best interests of the child to remain in Nanaimo due to family violence. The father argued it was in the child’s best interests to have both parents in her life and that living in Nanaimo would prevent her from having a meaningful relationship with her father.

How the BC Supreme Court Determined the Best Interests of the Child

The trial judge found that the evidence did not establish danger to the child and that the best interests of the child called for the father to have parenting time. Further, the trial judge found it appropriate to increase the shared parenting time gradually to reach equal parenting time within three months.

In the judgement, the trial judge stated a concern that the mother may have reported misdeeds by the father as a weapon against him. Additionally, the trial judge did not analyze the mother’s testimony surrounding the alleged acts of physical violence or threats directed toward her in their family home. There were no findings of facts relating to the violence between the father and the child, nor the mother’s alleged “coaching” of the child to say bad things about the father.

Further, the trial judge’s conclusion on the best interests of the child made no mention, consideration, analysis, or factual finding regarding the mother’s evidence on the father’s physical aggression and demeaning conduct towards her, nor about the presence of the child when that conduct is said to have occurred.

Why the BC Court of Appeal Factored Family Violence Against a Parent in its Determination of the Child’s Best Interests

The mother appealed the BC Supreme Court’s decision, stating that the trial judge failed to analyze the best interests of the child in accordance with the Family Law Act (the “FLA”) framework; that the trial judge misapprehended the evidence of family violence; and that the trial judge unfairly deprived her of an opportunity to reopen her case to give further evidence.

The Court of Appeal agreed with the mother, finding that the trial judge committed a material error as he failed to conduct a meaningful analysis of the allegations of family violence in accordance with s. 37 (Best interests of the child) and s. 38 (Assessing family violence) of the FLA. This was a material error because such analysis was a necessary pre-requisite to properly assessing the best interests of the child and fundamental to a fully informed resolution of the issues.

Sections 37(g) and 38(f) of the FLA make it clear that the child’s indirect exposure to physical and/ or psychological abuse must be considered in this situation. The child’s exposure to the violence was a live issue at trial, especially since this was the mother’s primary basis for claiming the child’s father should have limited and supervised parenting. Given the centrality of the allegations to the mother’s case, those allegations and the impact of the child’s exposure to violence required close attention and proper consideration by the judge

The Court of Appeal determined that the based on the evidence, the trial judge was not necessarily incorrect in finding that the best interests of the child did not require restricted or supervised parenting. However, the Court of Appeal took issue with the trial judge’s approach in reaching this conclusion. Specially, the Court of Appeal found it inappropriate that the trial judge did not make a finding of fact relating to family violence. The Court of Appeal also took issue with the trial judge’s lack of consideration regarding the impact of the child’s exposure to violence and continued conflict between the parties. The Court of Appeal found that the trial judge limited his consideration of the s. 37 and s. 38 factors to violence perpetrated by the father directly against the child.

This approach to family violence was an error in principle that irreparably tainted the trial judge’s assessment of the best interests of the child and the resolution of this case.

Recognizing Myths and Stereotypes in Cases of Family Violence

While the above error was sufficient to order a new trial, the Court of Appeal also found it appropriate to address the mother’s submissions about the trial judge’s reliance on myths and stereotypes.

At trial, the father accused the mother of fabricating the allegations of family violence for the specific purpose of obtaining an advantage in the litigation process. As a result, it was necessary to carefully assess the allegations of family violence. The trial judge did not do so.

Further, in giving little weight to the mother’s evidence about physical and psychological abuse towards her and/ or the child, the Court of Appeal found that the trial judge had to reach this conclusion through the process of a reasoned fact finding exercise that was specific to the mother’s asserted incidents. The trial judge did not do this and instead based his findings on unfounded assumptions about the mother’s motivation for alleging family violence.

The Court of Appeal found that there was merit to the mother’s submission that in determining the parenting arrangement of the child, the judge did not adequately protect against the risk of myths and stereotypes about family violence and that these unfounded assumptions contributed to the outcome at trial. The Court of Appeal stated that assuming (whether explicitly or impliedly) that a party is making allegations of family violence for tactical reasons is impermissible and gives rise to a reversible error.

Why the BC Court of Appeal Overturned the BC Supreme Court Decision

Since the trial judge made an error in principle that irreparably tainted his assessment of the best interests of the child, the appeal was allowed, the order was set aside, and a new trial was ordered.

The Court of Appeal found it was not appropriate for it to make a final parenting order, as the allegations of family violence required a thorough assessment and factual determination that had to be done by a trial judge.

Take Away

While a judge is not obliged to detail everything they account for in arriving at their conclusions, nor do they have to show a step-by-step application, a trial judge must consider the effect of exposure to family violence when assessing the best interests of the child. It is improper to focus solely on proof of violence directed towards the child.

If you or someone you know has questions or concerns about the impacts of family violence on parenting time, please contact Family Law Chair Chantal Cattermole or anyone in our Family Law group for more information.