Myths and Stereotypes About Family Violence

Maggie House- Myths and Stereotypes About Family Violence -a B.C. Court of Appeal Case Review: K.M.N. v S.Z.M., 2024 BCCA 70, Published April 25, 2024

The B.C. Court of Appeal recently made a decision criticizing the way a lower court dealt with intimate partner violence. The case, K.M.N. v S.Z.M., 2024 BCCA 70, concerned the parents respective time with their 5-year-old child.  

In this case, the parents started a relationship in 2015 and had a child in 2018. The mother had been the primary caregiver of the child during the party’s relationship, though both parties were active parents. 

The father perpetrated several incidents of family violence against the mother during the relationship. The father first assaulted the mother in March 2020. The mother gave evidence at trial that the father became angry, called her names, threw things at her, and headbutted her, all while the child was present.  The father was criminally charged for this assault. 

The father again assaulted the mother in September 2020.  The father became angry at the mother while the mother was feeding the child, and the father asked the mother to leave their house. The father’s behaviour escalated and he headbutted the mother. The mother left the parties’ Chilliwack home with the child and went to stay with her parents Nanaimo. Further charges were laid against the father related to the September 2020 assault. 

The father was not violent directly towards the child. 

Lower Court Proceedings

At a March 2021 interim hearing, the mother asked the judge to make orders that she stay in Nanaimo, and orders restricting the father’s parenting time. She argued that this was in the child’s best interests in part because the father had unresolved anger issues and a history of violence.

The father disagreed.  He argued for the child to be returned to the lower mainland, maintaining that the child living in Nanaimo would prevent him and the child from developing a meaningful relationship. 

The judge sided with the father and made interim parenting orders requiring the mother to return to the lower mainland, reasoning that while the â€śâ€¦ temporary relocation [to Nanaimo] was justified to ensure the safety of mother and child” (at para. 66) allowing the child to reside in Nanaimo would “… result in a relationship between [the child] and her father that [was] largely defined by ferry rides and car travel, which [was] not in her best interests” (at paras. 65–69). The judge then awarded the mother primary parenting time with the child, and the father’s parenting time to occur every weekend from Saturday morning to Sunday evening.

The father’s parenting time was increased through further interim orders to include weekday overnights. However, after a further incident of family violence, a judge made an interim order reducing the father’s parenting time and requiring that it be supervised. 

This family matter went to trial in October 2022. 

By the time that the final judgement was released in January 2023 the father had been charged with a total of ten criminal offenses occurring between March 2020 and January 2023. The offences included multiple assaults against the mother, uttering threats to the mother, and breaching bail conditions related to the assault and uttering threats charges. 

Despite the incidents of family violence that had occurred before the trial starting in October 2022, the trial judge awarded the father equal and unsupervised parenting time with the child. 

The Appeal

The mother appealed the trial decision arguing that the trial judge failed to adequately consider the evidence of family violence. Specifically, the trial judge failed to follow the requirement mandated in the Family Law Act to consider the impact of the child’s exposure to family violence. 

The B.C. Court of Appeal agreed with the mother’s position that the trial judge did not conduct the proper analysis of the family violence alleged by the mother, and he did not consider the effect of the child’s exposure to the family violence in assessing the best interests of the child. 

A new trial has been ordered and the B.C. Court of Appeal reinstated supervised parenting time in the interim. 

Madam Justice DeWitt-Van Oosten wrote for a unanimous court. 

The judgement highlights the requirement that judges making parenting orders must – in assessing a child’s best interests – consider the effect of exposure to family violence in assessment per FLA ss. 37(g), (h) and 38(f)  (at paras 65-67). Here, the violence towards the mother in front of the child was a live issue at the trial, and yet the judge did not conduct the analysis required by the law. 

DeWitt-VanOosten JA explains that although judges aren’t obligated to provide a laundry list of every item they consider in coming to a conclusion, it is necessary for judges to show application of the law to the facts. And as with the present case, a failure to engage the law in the analysis of the case will result in a reviewable error (para 102).  

In my mind, what is important about this case is the emphasis and detailing of the “Myths and Stereotypes” about intimate partner violence, beginning at paragraph 109 and through to para127.  DeWitt-VanOosten JA identifies the following myths and stereotypes intimate partner violence in the family law context:  

  1. Women fabricate allegations of family violence to fain an advantage in litigation (at para 111) a. In the case of KMN, the husband clearly put forward the theory of his case as being that the mother was making it all up to get her way in court (see pars 112 through 120). Very interestingly, the majority reasons for this appear decision cite social science literature on this point at para 120. Lawyers may want to take note of this for reference in similar like cases.
  2. Women who have actually been assaulted disclose the violence early on (para 121)
  3. Women who have been assaulted go to the police (para 121)
  4. Violence against women by a man does not have an impact on the children and does not affect the man’s parenting ability para 121)
  5. Women are just as bad as men when it comes to intimate partner violence (para 121)
  6. Violence stops when the relationship ends so there is not risk of future harm para 121)

DeWitt-VanOosten JA notes that only the first of these myths – that women fabricate family violence allegations to gain advantages in court – was argued at trial, but continues: 

“[…] the law is clear that trial judges must assiduously guard against the potential for myths and stereotypes or unfounded or generalized assumptions about human behaviour – in whatever form – to affect their reasoning process” (at para 122).  

The judge then quotes from the controversial Ontario case of Ahluwalia v Ahluwalia, 2023 ONCA 476 (another story for another day!): 

[1] Intimate partner violence is a pervasive social problem. It takes many forms, including physical violence, psychological abuse, financial abuse and intimidation. In Canada, nearly half of women and a third of men have experienced intimate partner violence and rates are on the rise. What was once thought to be a private matter is now properly recognized for its widespread and intergenerational effects.

Citing Alhuwalia, DeWitt-VanOosten JA asserts that it is possible that there will be cases where litigants fabricate allegations of family violence for strategic reasons, but this case was not it. The trial judge failed to analyze at all whether the father’s theory about the mother’s allegations were credible or reliable (at para 126). Instead, it appears the trial judge just went ahead and ctl-C/ctl-v’d the father’s position into the decision without any critical thought. 

Conclusion on Myths and Stereotypes About Family Violence

In my mind, the important take-aways from this case are:

  1. Judges must be alive to the stereotypes and myths about intimate partner violence.
  2. Judges must consider the effect of exposure to violence on the best interests of the children. Defaulting to maximum parenting time is not automatically what is in a child’s best interest.
  3. The acknowledgement of and reliance on social science about intimate partner violence in this case opens the door to rely on this specific social science evidence in other future cases that involve family violence issues.
  4. There is a dearth of case law at the higher courts on the issue of “family violence”. K.M.N. adds important commentary to the legal landscape of an oft overlooked but critically important legal issue.

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