This case is about when and how an appeal court can consider new information when deciding an appeal of a family law decision. From a bigger picture perspective, it is also about how deferential (respectful) appeal courts should be towards factual findings by trial judges, including findings of family violence.
The parties in this case had a 9-day trial in BC Supreme Court which mainly addressed the mother’s application to move the children from Kelowna, BC, where the family had lived prior to the parents’ separation, to the mother’s home community of Telkwa, BC. The father was opposed to the relocation.
The trial judge granted the mother’s request to relocate the children for two reasons. The trial 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 physically and emotionally abusing the mother, and the mother’s lack of a support system in Kelowna. A secondary concern was the state of the father’s home in Kelowna, which required work to be habitable. While the father said that he would obtain financing to complete the work and buy out the mother’s share of the home, the trial judge was doubtful about the father’s financing options.
The father appealed the trial judge’s decision to the BC Court of Appeal. During the hearing, the father was advised that his financing application had been approved. He then asked the Court of Appeal to consider this new information when deciding the appeal.
Appeal courts only consider new information (that is, information that was not considered by the trial judge) in exceptional cases, though they are more willing to consider new information in family law cases because the wellbeing of children is at stake. In this case, the Court of Appeal admitted the new information based on its view that this information resolved the trial judge’s secondary concern. It then had to decide whether the relocation decision was still justified. After minimizing the father’s history of abuse and the risks of ongoing abuse, the Court of Appeal overturned the relocation decision and ordered that the children be returned to Kelowna.
When the Supreme Court of Canada granted leave to appeal to the mother, it suspended the Court of Appeal’s order so that the children could stay with the mother in Telkwa pending the outcome of the appeal.
West Coast LEAF’s involvement
West Coast LEAF and Rise Women’s Legal Centre (a family law clinic in Vancouver) were granted leave to co-intervene in the appeal before the Supreme Court of Canada and filed our written argument in November 2021. We made submissions about how appeal courts should approach trial decisions that raise concerns about family violence. We argued that appeal courts should be especially deferential to a trial judge’s concerns about family violence and that all courts should be alive to the pervasive influence of myths and stereotypes about family violence in family law cases.
On December 2, 2021, the Supreme Court of Canada ruled from the Bench to overturn the decision of the BC Court of Appeal. This means that the mother and children will be able to continue to rebuild their lives together, close to the mother’s family and support networks, and with greater safety from abuse. The Supreme Court released the reasons for the ruling on May 20, 2022, and confirmed that family violence is a central consideration when determining the best interests of children and that courts should take evidence of even one incident of family violence seriously.
May 26, 2022 news alert – Victory for survivors of family violence
November 2021 news alert – Breaking: We’re back at the Supreme Court of Canada!