PN2: NOT a Bright Line Rule
A recent Court of Appeal case in Alberta, LAS v. WRS, 2019 ABCA 65, brought up an important point regarding the court’s application of the rules set out in Family Law Practice Note 2.
This appeal case concerned the Mother’s appeal of an interim order that was granted in Regular Chambers and which varied the terms of the Father’s parenting time.
As per a November 2014 Interim Consent Order, the Father’s parenting time had been supervised for the past 7 years. This supervision stemmed from the parties’ 2 ½ year old child making a disclosure to the Mother in early 2011 that led her to believe that the child had been sexually abused by the Father. The Father agreed to the supervision to shield the child from parental conflict but had always denied the allegations. There was no independent evidence to support the allegations and the child was now 10 years old and asking why someone was always around during her parenting time with the Father.
The Father filed an application seeking increased, unsupervised parenting time to be heard in Special Chambers, along with an order for a Practice Note 8 Parenting Evaluation. Notwithstanding a Special Chambers date had been scheduled, the Father attended Regular Chambers to have his parenting time increased and to be unsupervised. The Regular Chambers judge granted the Father’s request to vary the parenting order, ordering that the Father’s agreed upon weekday parenting time be unsupervised and that he be permitted to attend the child’s activities without supervision (but that his weekend parenting time remain supervised.) In her appeal, the Mother argued that the Regular Chambers judge erred in making a substantial change to the existing parenting order when no urgency existed, contrary to Practice Note 2, and when the parties were awaiting a Special Chambers Hearing.
The Court of Appeal reviewed this case and noted that the standard of review in parenting decisions is deferential and that certain variations to parenting orders or initial interim parenting orders may be appropriately granted in Regular Chambers. While Practice Note 2 notes that substantial changes to parenting arrangements are not to be heard in Regular Chambers, this case denotes that this is not a “bright line rule” and that there are sometimes exceptional circumstances that warrant such orders.
The November 2014 Order did not include a provision that the weekday parenting time with the Father was to be supervised and it did not put any restrictions on the Father’s attendance at the child’s activities. The Court held that the supervision restriction not be required going forward was thus not a substantial change to the parenting arrangement, “but rather a logical and incremental next step based on the evidentiary record before the chambers judge” (para 14).
The Father noted that if a parenting assessment was ordered that the expert would be limited in providing an option as to what parenting arrangement is in the child’s best interest given the fact that for most of her life she has only had supervised time with the Father. There was also no independent evidence before the court to support the Mother’s allegations that the child had been sexually abused, even after 7 years from the disclosures by the child. The appeal court thus found the Regular Chambers judge’s decision to be reasonable and in the best interests of the child. The appeal by the Mother was dismissed and the varied parenting order granted in Regular Chambers was upheld.