



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Vincent v. Roche-Vincent,









2013 BCCA 136




Date: 20130118

Docket: CA040246

Between:

Michael Sean
Vincent

Respondent

(Claimant)

And

Grainne
Roche-Vincent

Appellant

(Respondent)




Before:



The Honourable Madam Justice Neilson





(In Chambers)




On appeal from: Supreme
Court of British Columbia, August 16, 2012
(
Vincent v. Roche-Vincent,
2012 BCSC 1233, Vancouver Registry No.
E093215)

Oral Reasons for Judgment




Counsel for the Appellant:



M.J. Cochrane





Counsel for the Respondent:



C. Linde





Counsel for the Proposed Intervenor,
West Coast Womens Legal Education and Action Fund



K. Govender





Place and Date of Hearing:



Vancouver, British
  Columbia

January 17, 2013





Place and Date of Judgment:



Vancouver, British
  Columbia

January 18, 2013






[1]

NEILSON J.A.
:
The applicant, the West Coast Legal Education and Action
Fund (LEAF), applies for leave to intervene in this appeal brought by the
mother of a 4-year-old boy from an order of a Supreme Court judge awarding the
father custody of the child and granting the mother access every other weekend:
2012 BCSC 1233. The appellant mother supports the application, and the
respondent father opposes it.

[2]

LEAF is a non-profit society whose mission is to achieve equality and
relieve historic patterns of systemic discrimination against women through
equality rights litigation, among other activities. It has been granted
intervenor status and advanced such arguments as an intervenor in a number of
cases in this Court and in the Supreme Court of Canada.

[3]

If it is granted intervenor status in this case, LEAF says it will
advance arguments on two issues. First, it will argue the trial judge erred in
law by introducing stereotypes about womens behaviour in family law matters to
determine this custody dispute, without appropriate consideration for the best
interests of the child, and contrary to the equality values enshrined in s. 15
of the
Charter of Rights and Freedoms
. Second, it will argue the judge
erred in law by relying on the mothers unproven allegations of abuse by the
father to find she had a distorted view of him, without requiring the father to
establish these allegations were made in bad faith. It says this approach is
based on the myth that women make false allegations of abuse in order to
obtain custody or seek revenge on an ex-spouse, and contends the trial judge
inappropriately relied on the allegations to make findings against the mother,
instead of focussing on the best interests of the child. LEAF expresses the
concern that such an approach will have a chilling effect on reporting valid
allegations of abuse.

[4]

The principles guiding applications for intervention were recently
summarized by this Court in
Friedmann v. MacGarvie
, 2012 BCCA 109 at
paras. 12-19, 318 B.C.A.C. 119. Intervention may be permitted where the
applicant has a direct interest in the litigation, or if the appeal raises
public law issues that legitimately engage the applicants interests, and the
applicant brings a different and useful perspective to those issues that will
be of assistance to the Court. In the latter situation, the Court is guided by
the factors listed by Madam Justice Newbury in
R. v. Watson and
Spratt
, 2006 BCCA 234 at para. 3:

... where the applicant does not
have a direct interest in the litigation, the court must consider the nature
of the issue before the court (particularly whether it is a public law
issue); whether the case has a dimension that legitimately engages the
interests of the would-be intervenor; the representativeness of the applicant
of a particular point of view or perspective that may be of assistance to the
court; and whether that viewpoint will assist the court in the resolution of
the issues or whether, as noted in
Ward v. Clark
[2001 BCCA 264],
the proposed intervenor is likely to take the litigation away from those
directly affected by it. ...

[5]

LEAF concedes it does not have a direct interest in this matter. I
therefore turn to those factors.

[6]

As to the nature of the issue before the Court, this is private
litigation between two parents over the custody of their son. There are no
public or constitutional issues, nor issues that may change the face of family
law. The trial judge acknowledged the focal issue was the best interests of the
child and, to my mind, addressed that by making findings of fact and
credibility based primarily on the evidence of both parties, and the expert
evidence of a psychologist who provided a report under s. 15 of the
Family
Relations Act
, R.S.B.C. 1996, c. 128, and testified at trial. He
concluded it was in the best interests of the child to switch from a custodial
regimen that gave equal time to each parent to one in which the father had
custody of the boy and provided his primary residence, while the mothers time
with her son was significantly reduced.

[7]

While LEAF contends there are systemic issues raised by the trial
judges approach, in my view these are not readily apparent in his reasons for
judgment. Nor are they raised by the appellant in her grounds of appeal, the
relevant parts of which read:

51.       The learned trial judge failed to
properly consider all relevant factors and evidence and to exercise his
discretion in accordance with Section 16 of the
Divorce Act
,
Section 24 of the
Family Relations Act
, the Supreme Court of
Canadas decision in
Gordon v. Goertz

[1996] S.C.J. No.
52, [1996] 2 S.C.R. 27 (
Gordon v. Goertz

)
, and other
authorities including
Robinson v. Filyk
(1996), 28 B.C.L.R. (3d)
21 (C.A.). More particularly,

a)

the learned trial judge erred in failing to
consider the existing shared parenting arrangement, and the disruptive impact
on Aedhan of changing from a 50-50 parenting regime that had been in place for
two and one-half years to one wherein he would be apart from his mother for 12
consecutive days in every 14-day period;

b)

the learned trial judge erred in law by failing
to consider and give effect to the principle of maximum contact;

c)

the learned trial judge erred in adopting an
8-factor hypothetical test for determining custody that is informed by
principles inconsistent with the best interests analysis;

d)

the learned trial judge erred by applying a
presumption or principle of consistent parenting or consistent discipline;

e)

the learned trial judge erred in granting to the
Appellant less parenting time than had been proposed even by the Respondent,
thereby failing to show great respect to the views of
either
interim
custodial parent in making the order;

f)

the learned trial judge erred in placing
inordinate weight on the Childs behavior toward the Appellant in 2009 and
earlier, and in failing to properly consider evidence of the childs
relationship with both parents at the time of trial; and

g)

the learned trial judge erred in ordering that
the Respondent was entitled to enrol Aedhan at Saltwater School due to
convenience, without considering other factors.

52.       The learned trial judge erred in
considering conduct by the Appellant that is unrelated to the Appellants
ability to act as a parent to Aedhan.

53.       The learned trial judge seriously
misapprehended the evidence in finding that the abuse counseling attended by
Aedhan was unnecessary and damaging.

54.       The
learned trial judge seriously misapprehended the evidence in relation to the
Respondents alleged claustrophobia, which evidence was material to His
Lordships finding that the Respondent was not an angry person or prone to
violence.

[8]

It is not clear to me that the mothers s. 15 equality rights are
engaged by these issues. Nor is it apparent that introducing this topic will
assist the Court in determining whether the trial judge ultimately resolved the
issue of custody in a manner that serves the best interests of the child.

[9]

As for the argument based on the role of unproven allegations, it is an
unfortunate reality that parents of both genders sometimes make unproven
allegations about each other in the heat of a hard-fought custody dispute, and
trial judges routinely weigh such evidence, and consider its veracity, in reaching
their decisions. I am not aware of any legal authority that places an onus on
the subject of such allegations to prove they are made in bad faith before a
trial judge may consider their import in a custody dispute. LEAF refers to
limited portions of two academic articles about allegations by mothers of
sexual abuse of a child by fathers to support its position on this point:
Nicholas Bala & John Schuman, Allegations of Sexual Abuse When Parents
Have Separated (1999-2000) 17 Can. Fam. L.Q. 191 at 193-194; Susan B. Boyd,
W(h)ither Feminism? The Department of Justice Public Discussion Paper on
Custody and Access (1994-1995) 12 Can. Fam. L.Q. 331 at 353-354. There were no
such allegations in this case, and I am not persuaded these isolated references
create the onus LEAF describes, or that this argument would be of assistance to
the Court on this appeal.

[10]

In my view, this is a case in which there is a legitimate concern that
granting intervenor status to LEAF to make its proposed arguments would
inappropriately widen the scope of the litigation and take the litigation away
from the parties, particularly the child who is the focus of the dispute. The
appellant is represented by counsel who could raise these issues if he wished
to do so, but has evidently chosen not to.

[11]

This Court has advocated caution in granting intervention in private law
matters:
Richmond (Township) v. Dha
(1991), 47 C.P.C. (2d) 23 at 29
(B.C.C.A. Chambers). In my view, that approach has particular application in a
custody dispute, given the sensitive and personal nature of the issues that
arise in such cases. I find support for this view in
Klachefsky v. Brown
,
[1988] 1 W.W.R. 755, 11 R.F.L. (3d) 249 (Man. C.A. Chambers), the only similar
decision the parties have provided. There, as here, a trial judge granted the
father custody of the children of the marriage, the mother appealed, and LEAF
sought to intervene to make submissions based on the mothers equality rights.
The application was denied for reasons similar to those I have expressed. While
LEAF points out this decision is dated, it concedes it knows of no more recent
authority that has taken a different view.

[12]

The application to intervene is dismissed.

The Honourable Madam Justice
Neilson


