by: Anne-Marie Langan*
In the case of K.M.N v. S.Z.M. 2024 BCCA 70 the British Columbia Court of Appeal overturned a decision about custody and access because, "in determining the parenting issues, the judge did not adequately protect against the potential for myths or stereotypes about intimate partner violence to influence his reasoning process, including a belief that women commonly raise allegations of violence post‑separation and in the context of family law litigation for the specific purpose of gaining an upper hand."[1]
The Trial judge had concluded that the mother “frequently reported misdeeds by the father as “a weapon” against him.”[2] He disregarded the mother’s evidence that she had witnessed bruising on the child, that the child had disclosed having been hit in the head by the father and that the father had disregarded the court order on two occasions and refused to return the child after his visit.
In overturning the decision, the Court of Appeal noted that “the mother’s concerns about acts of physical aggression by the father, berating and demeaning behaviour towards her, ongoing anger-management issues and a fixation on conflict were central to her position at Trial”[3] yet were not properly analyzed by the Trial Judge. Instead, the Trial judge bought the father’s narrative about the mother making up stories to get an advantage in the proceedings. The Trial judge concluded that equal parenting time within three months of the Trial would presumptively be in the child’s best interest, without consideration for the impact that witnessing abuse and violence of a parent can have on a child.[4]
There is an excellent analysis in this case of the myths and stereotypes that exist that women tend to falsely allege violence to gain an advantage in custody proceedings.[5] Some of these myths mirror those that are applied to women who report sexual assault such as:
- A credible woman would disclose violence right away.
- Women would report violence to the police.
- If a woman is abused, she will leave the relationship.
- Violence against a mother does not impact the abuser’s parenting abilities.
- Women are just as guilty as men when it comes to intimate partner violence.
- Abuse will stop once the target leaves the relationship.[6]
The Court of Appeal commented on the pervasiveness of violence in relationships in Canada and noted that nearly 50% of women and 33% of men have reported experiencing it.[7] They further noted that despite inherent difficulties in proving this type of violence on a balance of probabilities "it was incumbent on the judge to carefully assess the allegations of family violence and to ensure that if the mother’s evidence about physical and psychological abuse towards her and/or the child was to be given little or no weight, as suggested by the father, that determination was the result of reasoned fact‑finding specific to the asserted incidents rather than potentially unfounded assumptions about a woman’s motivation for alleging family violence in the context of family law proceedings."[9]
*Anne-Marie Langan B.A., B.S.W., LL.B., LL.M. is the project lead for the sexual violence projects at Peterborough Community Legal Centre, including the SHAPE project which provides legal advice and education for those experiencing sexual harassment in the workplace and the Your Way Forward project which provides support for those who have experienced intimate partner sexual violence. These projects are both sponsored by the government of Canada's Justice Department. She can be reached directly at anne-marie.langan@ptbo-nogo.clcj.ca.
Disclaimer: This post contains general legal information as of March 5, 2024, that may or may not apply in a particular situation. It is important to note that the law, government policies and available programs can change and this blog will not be updated to reflect these changes. It is highly recommended to seek legal advice from a lawyer about your particular situation.
[1] K.M.N. v. S.Z.M. 2024 BCCA 70 at para 84.
[2] Ibid. at para 46
[3] Supra note 1 at para 104
[4] Supra note 1 at para 79.
[5] Supra note 1 para 120.
[6] Supra note 1 para 121.
[7] Supra note 1 para 122.
[8] Supra note 1 para 123.
[9] Supra note 1 para 125.