We’re headed to the Supreme Court of Canada tomorrow for a case that will affect how courts identify family violence, protect survivors, and ensure the best interests of children. Barendregt v Grebliunas is about when and how an appeal court can consider new information when deciding a family law appeal. However, it also raises concerns about whether courts are meaningfully responding to family violence when deciding family law cases.
In this case, the British Columbia Court of Appeal (BCCA) reversed a BC Supreme Court decision that a mother could relocate her children from Kelowna to her home community elsewhere in BC. In the original ruling, the judge’s primary concern was that if the mother stayed in Kelowna, she would be subjected to ongoing dynamics of abuse in light of the father’s “overbearing personality,” his history of physical, emotional, and litigation abuse, and the mother’s lack of a support system in Kelowna. However, when the father appealed, the BCCA admitted and relied on new information about the father’s financial situation—something that had been a “less significant” concern for the trial judge—to overturn the relocation order.
In doing so, the BCCA re-weighed and minimized the findings of family violence, including the risk of continuing harm to the mother and children. The father’s financial situation may have changed, but the findings of family violence had not.
We are intervening in this case alongside Rise Women’s Legal Centre to highlight the importance of the social and legal context of family violence, which should guide all courts when dealing with issues of family violence. This context includes the pervasive influence of myths and stereotypes about family violence within and outside of the legal system, such as the idea that abuse experienced by a parent does not affect the children.
Family violence is an endemic problem in Canada, and it systemically undermines the dignity, safety, and equality of women and children. However, it is notoriously difficult to address in the legal system because it largely takes place behind closed doors and evidence of it is often minimized or dismissed.
We will argue that appeal courts should take a trial judge’s concerns about family violence seriously, and that all courts must ensure that their analysis is not affected by myths and stereotypes about family violence.
You can watch the livestream of the hearing tomorrow, Dec. 1, and Thursday, Dec. 2, on the Supreme Court of Canada website starting at 7:30 a.m. PST.
We are grateful to pro bono counsel Claire E. Hunter, Q.C. and Diana C. Sepúlveda of Hunter Litigation Chambers, who join Kimberley Hawkins from Rise and our own Kate Feeney in this case.