HomeFamily Law4 New Family Law Cases Considered by the Supreme Court of Canada

4 New Family Law Cases Considered by the Supreme Court of Canada

It is not often that the Supreme Court of Canada considers a family law case, which is why it has been surprising to see not one, but four family law cases currently under consideration in the nation’s highest court. The court’s ability to determine the best interests of the child play a large role in all four cases.

Below, we give you a synopsis of each case.

 

Richardson v Richardson, 2019 ONCA 983

In this case from the Ontario Court of Appeal the parties negotiated a settlement during the course of the trial for the matter. In this agreement the parties settled parenting matters for their children. The trial judge, however, gave no consideration to that agreement and decided the issue of childcare in direct opposition to it.

The issue in the appeal is whether the Trial Judge is required to give effect to the settlement agreement.

The Ontario Court of Appeal held that the Trial Judge had the authority to reject the proposed settlement because he made the determination that it would not be in the best interests of the children. However, the Court of Appeal did find that the Trial Judge erred in awarding $40,000 worth of costs to the father concluding, “There was no basis for the respondent to be awarded trial costs on an elevated scale” (at para 56). As such, the costs award was reduced to $30,000. The Trial Judge’s only error was failing to provide reasons for rejecting the proposed settlement agreement. At paragraph 26, the ONCA provided the following rule: “it is well established that judges have the authority to review settlements and to reject them if they are not in the best interest of the children”.

In a dissent to this decision, Justice Nordheimer stressed the importance of settlement in family disputes, especially when children are involved. This is because, “Parents also know their children in a way that no Trial Judge (or external assessor) possibly could. Consequently, when parents negotiate a settlement on parenting issues, a judge must have clear and compelling reasons to reject it” (at para 64).


Alansari v Kreke, 2020 SKCA 122

This case from the Saskatchewan Court of Appeal involved a mobility application by the mother which was permitted by the Trial Judge. The father appealed the decision arguing that the Trial Judge failed to consider all the relevant facts put before her.

The issue at appeal was whether the Trial Judge needed to consider the factors outlined in Gordon v Goertz, [1996] 2 SCR 27 when making a determination on the child’s best interests in mobility applications? Did the Trial Judge fail to consider all the relevant facts put before her?

The appeal was allowed by the Saskatchewan Court of Appeal after they determined that the Trial Judge erred in principle in her approach to the issue of mobility by overlooking relevant factors in Gordon v Goertz, [1996] 2 SCR 27. The Trial Judge failed to thoroughly consider the following:

  • how relocation might benefit or help the mother in meeting the child’s needs;
  • the role of the child’s brother in meeting the child’s needs;
  • the environment in the new location beyond the mother’s opinion;
  • how relocation might disrupt the child’s relationship with the father, his school, activities, friends, and community; and
  • the mother’s interference with the father’s parenting time.

The Trial Judge only identified one benefit to the child from the relocation, spending more time with the maternal grandmother. The Court of Appeal held that this was not one of the exceptional cases referred to in Gordon, where one party’s desire to relocate is relevant to the parents’ ability to meet the needs of the child (at para 35). The Trial Judge awarded less parenting time to the father than the mother was willing to concede (at para 36). The Court of Appeal also found that the Trial Judge erred in imputing income to the mother, and that the determination at trial that the mother was a “stay-at-home mother and homemaker” was a misapprehension of the evidence (at para 40). Prior to separation, the mother was working part-time and making $80,000/year. She then voluntarily chose to leave her employment days before separation.  The Trial Judge imputed income to the mother at $45,000/year, this was set aside, and income was imputed to the mother at $80,000. Spousal support was adjusted accordingly. The matter was remitted to Queen’s Bench for a new trial, but the child is to stay with the mother pending trial.


JD v DCP, et al, 2020 PECA 14

This is a case arising out of the Prince Edward Island Court of Appeal regarding a child protection proceeding. The child lived in PEI with the mother and was co-parented by the grandmother. Eventually, it was determined that the child needed to be removed from the care of the mother and the grandmother was put in place as primary guardian. The father lived in Calgary and was unaware of the child’s existence until he was contacted by the Director of Child Protection regarding the child being taken from the mother’s care. The Director then determined that the child should reside with the father and at the time of trial the child had resided with the father in Calgary for 6 months. Trial Judge awarded permanent custody and guardianship to the grandmother with no access for the father.

The issue at appeal was whether the Trial Judge erred in awarding permanent custody and guardianship to the grandmother with no order for access.

The appeal was allowed. In a 2-1 majority, the Court of Appeal concluded that it was in the child’s best interest to live in Calgary with the father with an access order to facilitate continued access with the grandmother and family in PEI.

Ultimately, the Trial Judge had concluded that both the grandmother and the father were more or less equal in their ability to care for and parent the child. The father had argued, supported by ample authority, that in cases where the parties are of equal ability to care for the child, that the natural or biological parent should receive custody. The Court of Appeal agreed with the father and stated that the Trial Judge failed to “grapple with the key legal argument raised by the father” (at para 57) resulting in a material error of law by the Trial Judge. Although the child had lived with the grandmother longer than with the father, the Court noted that the child had bonded with the father. Therefore, the Court of Appeal stated at para 123:

Accepting all the Trial Judge’s findings of fact, including her findings on who would best promote the relationship with the other party, accepting Dr. Petrie’s evidence for what it is, and factoring the fact that the father is the natural parent who has bonded with the child, in my view the best interests of this child where the abilities of the parent and the grandmother are more or less equal, calls for the child to be place in the permanent custody of his father.

In order to ensure the child maintained a relationship with his grandmother and family in PEI, the Court of Appeal ordered access to the grandmother.

Dissenting

Justice Jenkins, in dissent, held that that the Trial Judge made a decision that is not subject to appellate review as there was no material error. The Trial Judge was in the best position to “make findings of fact, findings of credibility, weighing relevant factors, considering the best interests of the child, and exercising her discretion as to the preferred outcome” (at para 220).  Justice Jenkins noted that although the grandmother and father were more or less equal in their ability to care for the child, the deciding factor became the willingness to facilitate access in order to ensure the best interests of the child. Justice Jenkins stated at para 203:

The Trial Judge found that in this case all things were not comparatively equal. That was her call to make. She did not ignore [the child’s] biological link with his father. She was concerned regarding maintenance and promotion of the natural bonds between [the child] and his parents. She found [the father and grandmother] were more or less equal in their ability to care for [the child], but that ability demonstrated by their respective parenting plans was not the “whole picture.” She classified maintenance of the biological bonds as being very important. She found that [the grandmother] would promote and facilitate those bonds in a meaningful way in [the child’s] best interest and that [the father] would not.

Ultimately, Justice Jenkins concluded that the Trial Judge considered and weighed the relevant factors in her decision and therefore deference was required (at para 220).


Barendregt v Grebliunas, 2021 BCCA 11

This is a case out of the British Columbia Court of Appeal. The couple in this case were married and had a child in Kelowna. They struggled financially and bought a house with the intent to have the husband fix it up. At the time of the separation the repairs had not proceeded well, the mortgage was refinanced, and they had a substantial line of credit owing. The Trial Judge awarded the mother primary parenting and allowed her to move 1,000 kilometers north with the child because (1) it appeared the husband would struggle to provide financially, notwithstanding that he was the primary earner in the family and (2) the Trial Judge found that the acrimonious relationship between the parents and the mother’s need for emotional support were sufficient to warrant a drastic change in the circumstances of the child.

The Court of Appeal decision, written by Honourable Justice Voth overturned this decision after considering two primary arguments: (1) can new evidence introduced by the father be admitted, and (2) is that new information sufficient to revisit the consideration for best interests of the child.

On the first issue, Justice Voth delineated between new evidence, which is evidence unavailable to be presented at the time of the original trial, and fresh evidence, which is evidence that is available, but not presented by either party at the original trial. In the instant case the father presented new evidence of financial help from his parents and substantial progress on repairing the family home. He also paid the mother out for her portion of the home. Justice Voth considered this new evidence as these financial maneuvers had occurred after the trial.

After qualifying the evidence as new evidence, Justice Voth went about considering its viability. The Court considered various relevant case law and found that only in rare or exceptional cases can new evidence be admitted. In this present case Justice Voth considered the new evidence exception because the “new evidence [was] cogent and material. It directly [addressed] one of the two primary underpinnings of the trial decision and it goes directly to the core of the [Trial Judge’s] analysis” (para 51). The result of this new, cogent evidence was that the Trial Judge’s finding that the husband would not be able to provide financially was incorrect and must necessitate an entirely new examination of the circumstances.

The Court of Appeal then dissected the Trial Judge’s decision regarding best interests of the child and proceeded to disagree with large portions of it, eventually finding that the best interests of the child were for the mother and father to both live in Kelowna. The Court of Appeal used the argument of law regarding viability of evidence as a trojan horse by which they could re-examine the Trial Judge’s decision about best interest of the child- which they clearly took issue with- anew, stating that the new evidence required them to revisit the issue. The Court stated the question at para 65 as: “do the new findings that one of the primary reasons a judgment was made is unfounded- even the lesser one- render the initial findings unapplicable?” It is clear from this decision that they believe the new facts do, in fact, render the initial decision unacceptable.

2021-08-13T18:37:19+00:00August 19, 2021|Family Law|
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