S.J.C. v. S.-J.C.A. (2013), 333 B.C.A.C. 145 (CA);
571 W.A.C. 145
MLB headnote and full text
Temp. Cite: [2013] B.C.A.C. TBEd. MR.002
S.J.C. (appellant) v. S.-J.C.A. (respondent)
(CA040171; 2013 BCCA 22)
Indexed As: S.J.C. v. S.-J.C.A.
British Columbia Court of Appeal
Kirkpatrick, Frankel and Hinkson, JJ.A.
January 15, 2013.
Summary:
The claimant (Ms. C.) applied to vary an existing access order to eliminate overnight access to the child of the marriage, born in 2005. The respondent (Ms. A.) opposed the application. The grounds for the application were allegations of inappropriate behaviour by Ms. A., leading to the sexualization of the child.
The British Columbia Supreme Court, in a decision reported at [2012] B.C.T.C. Uned. 1200, dismissed the application. Ms. C. appealed. Central to the appeal were the remarks made by the chambers judge that there had been no expert evidence to support a finding of any adverse effect upon the child arising from the alleged conduct.
The British Columbia Court of Appeal allowed the appeal and remitted the matter to the Supreme Court. The chambers judge overlooked the fact that an expert was called to give evidence on the first day of the hearing. It was not the Court of Appeal’s role to weigh the expert’s evidence and draw inferences from it.
Editor’s Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book’s editorial policy or otherwise.
Family Law – Topic 1912
Custody and access – Appeals – Grounds – [See
Family Law – Topic 2143
].
Family Law – Topic 1958
Custody and access – Variation of custody and access rights – Evidence to support application – [See
Family Law – Topic 2143
].
Family Law – Topic 2143
Custody and access – Evidence – Expert evidence – The claimant applied to vary an existing access order to eliminate overnight access to the child of the marriage – The grounds for the application were allegations of inappropriate behaviour by the respondent, leading to the sexualization of the child – The chambers judge dismissed the application – Central to the appeal were the remarks made by the chambers judge that there had been no expert evidence to support a finding of any adverse effect upon the child arising from the alleged conduct – The British Columbia Court of Appeal allowed the appeal and remitted the matter to the Supreme Court – The chambers judge overlooked the fact that an expert was called to give evidence on the first day of the hearing, was qualified to give expert opinion evidence in the area of child therapy, was examined and cross-examined by the parties, and questioned by the judge – It was not the Court of Appeal’s role to weigh the expert’s evidence and draw inferences from it; that was the function of the trial court – The proper recourse was to direct the matter returned for consideration on all of the evidence presented, including any other recent evidence the parties chose to tender, including recent expert evidence.
Counsel:
W. Murphy-Dyson, for the appellant;
A.L. Faux and E. Thomas, for the respondent.
This appeal was heard and decided at Victoria, British Columbia, on January 15, 2013, by Kirkpatrick, Frankel and Hinkson, JJ.A., of the British Columbia Court of Appeal. In oral reasons, Kirkpatrick, J.A., delivered the following judgment of the Court.
