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CUSTODY AND ACCESS - Conduct of parents - Abuse or neglect of child

Tuesday, March 24, 2020 @ 9:09 AM  


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Appeal by the mother from an order reinstating unsupervised access by the father to their 6-year-old child. In February 2018, the mother unilaterally terminated all access between the father and the child based on allegations the father had sexually abused the child. The father co-operated with the police investigation, which led to criminal charges being laid against him. In October 2018, the father was granted supervised access following the withdrawal of the criminal charges. The trial judge accepted expert testimony that the interview techniques used in questioning the child were associated with an increased risk of false statements and compromised the accuracy of the child’s report. The trial judge found that on a balance of probabilities the alleged sexual abuse did not occur, and it was in the child’s best interests to immediately commence access by the father. The trial judge refused the mother’s request for an adjournment to retain new counsel. The mother was unrepresented for two of the trial days.

HELD: Appeal dismissed. Deference was owed to the trial judge’s finding that the interview techniques used on the child contaminated or corrupted the child’s statements. There were no errors identified that would give reason to doubt the reliability of the expert opinion and the purpose for which it was introduced. The trial judge did not err in accepting the expert opinion. There was no violation of procedural fairness. The trial judge took appropriate measures to ensure the mother could examine witnesses once she had counsel. The mother was not prejudiced by the trial judge’s decision to not grant the adjournment. Once the trial judge determined there was no substance to the allegations, there was no need for him to conduct a fresh enquiry of the best interests of the child because a material change in circumstances did not exist.

S.B. v. B.J.S., [2020] N.B.J. No. 31, New Brunswick Court of Appeal, B.L. Baird, R.T. French and C.A. LeBlond JJ.A., February 13, 2020. Digest No. TLD-March232020003