The father had court-ordered contact with his son for most of the child's life
In a recent family law case, the BC Court of Appeal overturned a Provincial Court decision that terminated all contact between a father and his three-year-old son.
The father had never lived with the child or the child's mother and was not recognized as the child’s guardian. However, the father had court-ordered contact with his son for most of the child’s life. The trial judge decided that continued contact was no longer in the child's best interests, a decision upheld by the Supreme Court of British Columbia. The father appealed to the BC Court of Appeal to restore contact with his son.
In family law, the appeal court noted that determining a child’s best interests involves a discretionary and fact-specific inquiry. The scope of appellate review is highly deferential, but the appeal court ultimately found material errors in the lower court's decision.
The case began when the father initiated proceedings seeking guardianship and contact with his unborn child. Following the child's birth, the mother did not inform the father, and the father continued to live on the Sunshine Coast, moving to Vancouver in 2020. The father had weekly supervised contact with the child until June 2022. The trial, which began in November 2019, was protracted, spanning 51 days over two years. The trial judge initially allowed the father supervised contact but ordered a post-trial review to determine future contact.
The trial judge found the father had not demonstrated sufficient parenting skills and noted ongoing conflict between the parents. The judge emphasized that the child needed stability and that the conflict between his parents was detrimental. In the post-trial review, the judge terminated all contact, citing the father’s continued litigation and failure to follow the mother’s directions.
On appeal, the father argued that the trial judge made material errors, including misapprehending evidence about his post-trial conduct. He claimed the judge misunderstood a video showing the child on a tall slide, misinterpreting it as evidence of conflict. The father also contested findings related to his conduct during group activities with the child, asserting he followed instructions and that his actions were reasonable based on his understanding of autism.
The appeal judge agreed with the father, finding the trial judge misapprehended evidence and failed to properly consider the mother’s contributions to the ongoing conflict. The trial judge did not assess whether the mother’s hostility was reasonable or justified and failed to consider the propriety of the father’s litigation steps, which he claimed were responses to the mother’s actions.
The appeal judge concluded that the trial judge’s errors required appellate intervention. The BC Court of Appeal set aside the order terminating contact and reinstated supervised contact between the father and the child. A new review will be scheduled no sooner than December, allowing time for the father and child to re-establish their bond.
