A relatively brief but poignant decision on the issue of child custody was recently released from the B.C. Court of Appeal. Campbell v. Campbell 2003 BCCA 672, a decision authored by Newbury J.A., speaks to the issue of parental manipulation and truth distortion in custody cases and the Court’s increasing lack of toleration for parental behaviour that is not in the best interests of the child.
The prelude to this appeal was a four week trial in the Supreme Court. The mother alleged that the father had been sexually abusing the parties’ two children. Numerous tests, evaluations and interventions had been undertaken by the requisite authorities and medical experts in order to determine the validity of the allegations, which the father strongly denied. The Trial Judge found that while neither party was "a saint", the mother’s allegations were completely groundless and were an attempt to denigrate the father and purposively destroy his relationship with the children. The Trial Judge held at paragraph 17 of his decision:
In my opinion, the only way to foster solid relationships between the boys and both of their parents is to remove them from the custody of Ms. Campbell and place them in the custody of Mr. Campbell. I believe that it is in the boy’s best interests to develop strong relations with both parents.
The mother appealed this decision, arguing that the Trial Judge had failed to consider all of the relevant criteria for determining a child’s ‘best interests’ and that he had ignored evidence with respect to the alleged sexual abuse. Further, the mother asserted in accordance with the minority decision in Gordon v. Goertz [1996] 2 S.C.R. 27, that it is a serious and unusual phenomenon for a child to be removed from the custody of his or her primary care giver and thus the Trial Judge acted improperly. Newbury J.A. cited the majority decision in Gordon v. Goertz, supra for the comment at paragraph 20 that:
[20] The best interests of the child test has been characterized as "indeterminate" and "more useful as legal aspiration than as legal analysis": per Abella J.A. in MacGyver v. Richards (1995), 11 R.F.L. (4th) 432 (Ont. C.A.), at p. 443. Nevertheless, it stands as an eloquent expression of Parliament’s view that the ultimate and only issue when it comes to custody and access is the welfare of the child whose future is at stake. The multitude of factors that may impinge on the child’s best interest make a measure of indeterminacy inevitable. A more precise test would risk sacrificing the child’s best interests to expediency and certainty. Moreover, Parliament has been offered assistance by providing two specific directions – one relating to the conduct of the parents, the other to the ideal of maximizing beneficial contact between the child and both parents. [emphasis added by Newbury J.A.]
As this passage denotes, the determination of ‘best interests’ is a highly individualized process when it comes to children. The Court noted that "the central finding of the trial judge was that Ms. Campbell had undertaken a concerted campaign to remove their father from the children’s lives and that if the mother had custody, it was likely she would disregard the children’s interest in having a meaningful relationship with their father." The decision of the Trial Judge incorporated a determination as to which parent would more properly and fully respect the interests of the children. The children were recognized in a much more independent manner in this sense.
Newbury J.A. and her colleagues held that the Trial Judge’s findings were clearly supported by the evidence and that he had not ignored any of the relevant evidence. The mother’s appeal was therefore dismissed and the children were to remain with their father.
The truth appears to be multi-facetted jewel in family law cases. Each turn results in a different perspective, from which allegations and assertions arise. There is however, a central reality which must be found. The lawyers and judges involved in these types of cases attempt to get at that kernel of truth. But as is demonstrated in this case, that search often leads to a lengthy, expensive and draining trial for all involved. This case demonstrates a decreasing tolerance for unfounded assertions. The parent making the false allegations is achieving their likely goal of injuring the emotions and finances of the other parent. The Court makes no mention of this however. The focus is the interests of the child, who, as most of us know, really is the injured one in these types of cases. It would appear that the Court is making a definite move away from the status quo position it often used to hold. Perhaps this will mean a move towards parents trying to demonstrate their ability to be successful, caring, interested caregivers, rather than focusing their efforts on vilifying and attacking the other parent. A welcome change for all involved.