Violence a key factor in analyzing how mother's relocation is in children's best interests: SCC

The 1996 SCC decision in Gordon v. Goertz established a two-part inquiry to determine whether to vary a parenting order and allow a custodial parent to relocate with the child. Since Gordon, courts have increasingly recognized that “any family violence or abuse” could impact a child’s welfare and should be considered in relocation decisions, said Justice Andromache Karakatsanis, who wrote the majority’s reasons.

West Coast LEAF and Rise Women’s Legal Centre intervened in the case. West Coast LEAF’s director of litigation Kate Feeney says the organizations were concerned that the BC Court of Appeal had “minimized the trial judge’s findings about the father’s abusive behaviours toward the mother, and what those behaviours meant for the relocation analysis.”

According to Feeney, several of the court’s observations will assist lawyers dealing with family violence cases. She says the SCC countered the appeal court’s view that the violent incident would not impact the children, nor affect the abuser’s parenting ability, by citing evidence of the “lifetime of harms” children incur from family violence.

Another key aspect of the SCC’s findings is the statement that family-violence allegations are difficult to prove. In that context, proof of even one incident may raise safety concerns for the victim and may be important in the best-interests-of-the-child analysis, says Feeney.

The SCC found the mother not raising the abuse as a reason for the move did not undermine the trial judge’s consideration of abuse as a factor. “It’s important to be aware of the social and legal barriers to women disclosing family violence in family law proceedings,” she says.

The SCC also said the appeal court should not have viewed the abuse as a past issue. Research shows that abuse does not end with separation, says Feeney. In response to the appeal court’s finding that the mother’s and father’s relationship was improving, which it said attenuated the father’s behaviour, she adds that reconciling with an abuser does not necessarily mean the abuse is not serious.

“In those respects, I think the court was addressing some common myths and stereotypes that come up about family violence in family law cases,” she says.

At the Court of Appeal For British Columbia, the father applied to submit new evidence about his improved financial situation and home renovations, which the court granted. In considering the new evidence, the court did not apply the test from Palmer v. The Queen, believing that the test “did not strictly govern the admission of new evidence on appeal.” Finding the new evidence undermined a key facet of the lower court’s ruling, the appeal court admitted the evidence and found that remaining in Kelowna would serve the children’s best interests.

Justice Karakatsanis found that the Palmer test governs the admission of new evidence on appeal. She found that the appeal court had erred admitting the evidence through a different test. The new evidence had also failed the first leg of the Palmer test because it could have been available at trial through an exercise of due diligence. Evidence which does not clear the test’s due-diligence stage should not be admitted on an appeal of a best-interests-of-the-child determination because “finality and order are particularly important in such cases,” said Justice Karakatsanis. She added that only rarely will the interests of justice supersede an absence of due diligence.

The lone dissenter, Justice Suzanne Côté, agreed with the majority that the Palmer test governs but disagreed with how the facts in the appeal applied to it. Justice Côté would have admitted the new evidence and remanded the appeal to the trial court to reconsider the children’s best interests, considering the new evidence.

The violent incident, in which the father struck the mother during an argument, weighed heavily on the trial judge’s finding that the couple had an “acrimonious relationship.” But the appeal court outlined four factors that attenuated the seriousness of the father’s behaviour. The hostility between the parties was not a part of the mother’s argument supporting her move, and she had said their relationship was improving. The incidents supporting the trial judge’s findings had occurred in the past. There was no evidence that any incident post-separation had taken place in front of the children. And finally, the trial judge had not considered the evidence that their relationship was improving.

But without a reversible error, the Court of Appeal For British Columbia should not have dispensed with the trial judge’s defence, said Justice Karakatsanis.

The SCC’s decision will lead to a slowdown in new- or fresh-evidence applications in courts of appeal across Canada, says Georgialee Lang, an appellate family lawyer from Vancouver who acted for the father.

“These applications are brought fairly frequently in these courts,” she says. “The Supreme Court of Canada has clearly signalled that they think that that’s not the favoured route.”

The SCC’s ruling indicates that counsel should consider going back to the lower court based on a material change in circumstance rather than bringing an application to admit new evidence, says Lang. She adds this suggestion will increase family-law litigation.

“What [the ruling] underscores is that family law litigants – who are, of course, in a very emotional circumstance – they go to trial, and I don’t think they clearly understand that they really have one shot at putting their position forward and being successful,” says Lang. “Litigants don’t understand that the Court of Appeal is a court that only looks at a mistake, an error of law, or an egregious misapprehension of evidence.”

“It’s really incumbent upon them and their counsel to get it right the first time and to present the evidence that’s required at the trial level.”