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CUSTODY AND ACCESS - Considerations - Best interests of child - Conduct of parents - Expert report or assessment - Custody - Sole custody - Access - Decision-making authority

Monday, April 24, 2017 @ 11:23 AM  


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Appeal by the father from an order granting the wife sole custody and allocating parenting time. The parties were married in 2007 and separated in 2014. Their two children were born in 2008 and 2010. The father worked as a pharmacist and the mother worked as a registered nurse. A nine-day trial addressed, among other things, custody and parental responsibilities. A psychologist recommended a joint custody regime with shared parenting. The trial judge rejected the psychologist's recommendation, citing one event of family violence between the husband and wife, physical discipline incidents involving the father and children, and an incident in which the father arranged for a prostitute to attend the family home. The mother was awarded sole custody and guardianship with final decision-making authority. The father was granted parenting time for three hours, two weekday evenings per week and for six hours on alternate Saturdays and Sundays. The father appealed.

HELD: Appeal dismissed. The incidents of family violence and the incident involving the prostitute were material to the judge's custody and parenting decision. Under ss. 37(1)(h) and 39 of the Family Law Act, the best interests analysis required consideration of family violence. The trial judge's finding that the father was inclined to use physical force in anger was well-founded based on the trial evidentiary record, and new evidence admitted on appeal. Although the issue of the prostitute was less directly related to the best interests of the children, it demonstrated poor judgment relevant to the judge's analysis. The overall decision gave careful consideration to the entirety of the evidence. No error or misapprehension of the evidence was established.

R.A. v. W.A., [2017] B.C.J. No. 680, British Columbia Court of Appeal, S.D. Frankel, H. Groberman and G. Dickson JJ.A., March 16, 2017. Digest No. TLD-Apr242017001