Fitzgibbon v. Fitzgibbon, 2014 BCCA 403

• Judge: D. Smith, Garson and Stromberg-Stein, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: October 02, 2014
• Jurisdiction: British Columbia
• Citations: 2014 BCCA 403;(2014), 363 B.C.A.C. 90 (CA)

Fitzgibbon v. Fitzgibbon (2014), 363 B.C.A.C. 90 (CA);

    624 W.A.C. 90

MLB headnote and full text

Temp. Cite: [2014] B.C.A.C. TBEd. OC.031

Jennifer Adelle Fitzgibbon (respondent/claimant) v. John Joseph Fitzgibbon (appellant/respondent)

(CA041609; 2014 BCCA 403)

Indexed As: Fitzgibbon v. Fitzgibbon

British Columbia Court of Appeal

D. Smith, Garson and Stromberg-Stein, JJ.A.

October 2, 2014.

Summary:

On December 6, 2013, after an alleged incident of family violence against the respondent mother, an interim order was made which provided for supervised access by the appellant father to his nine year old child. On April 3, 2014, the father's application to vary or set aside the interim order was dismissed. The father appealed, or alternatively sought leave to appeal, submitting that the judge erred in law in ordering supervised access given the conflicting affidavit evidence regarding the alleged incident, and thereafter in maintaining the supervision order in the face of new evidence that suggested no reasonable apprehension of a risk of harm to the child. The father contended that supervised access was an exceptional order that should not be maintained for any significant duration, particularly where, as here, there was no pattern of family violence alleged and the continuation would only further alienate the child from him.

The British Columbia Court of Appeal dismissed the appeal. No question of law was engaged. It was open to the judge to conclude that it was premature to change his December 6, 2013 interim order before a pending parenting report under s. 211 of the Family Law Act had been completed. His decision inferentially reflected the view that the issue would be better addressed at the trial of the action where the factual and credibility issues could be fully canvassed. His decision to dismiss the father's application to vary the interim order for supervised access did not demonstrate an error of law, but reflected an exercise of his discretion in the weighing of the new evidence. Deference was to be accorded such a decision.

Family Law - Topic 1914

Custody and access - Appeals - Interim orders - See paragraphs 1 to 24.

Family Law - Topic 1994

Custody and access - Access - Considerations in awarding access - Conduct of parents - See paragraphs 1 to 24.

Family Law - Topic 2023

Custody and access - Access - Access awards - Supervised access - See paragraphs 1 to 24.

Family Law - Topic 2028

Custody and access - Access - Access awards - Interim access - See paragraphs 1 to 24.

Practice - Topic 8804

Appeals - General principles - Duty of appellate court regarding discretionary orders - See paragraph 21.

Cases Noticed:

Haigh v. Haigh (1987), 15 B.C.L.R.(2d) 375 (C.A.), refd to. [para. 14].

De Fehr v. De Fehr, [2002] B.C.A.C. Uned. 144; 2002 BCCA 577, refd to. [para. 14].

Hejzlar v. Mitchell-Hejzlar (2011), 304 B.C.A.C. 305; 513 W.A.C. 305; 2011 BCCA 230, refd to. [para. 15].

Yu v. Jordan (2012), 327 B.C.A.C. 170; 556 W.A.C. 170; 2012 BCCA 367, refd to. [para. 15].

Cook v. Cook (2002), 167 B.C.A.C. 44; 274 W.A.C. 44; 2002 BCCA 232, refd to. [para. 17].

Virani v. Virani (2006), 222 B.C.A.C. 178; 368 W.A.C. 178; 264 D.L.R.(4th) 524; 2006 BCCA 63, refd to. [para. 17].

Chun v. Smit, [2011] B.C.T.C. Uned. 412; 2011 BCSC 412, refd to. [para. 19].

F.K. v. M.K., [2010] B.C.T.C. Uned. 563; 2010 BCSC 563, refd to. [para. 19].

S.L.S. v. J.A.S., [2013] B.C.T.C. Uned. 177; 2013 BCSC 1775, refd to. [para. 19].

K.M.E. v. D.M.Z., [1996] B.C.J. No. 464 (S.C.), refd to. [para. 19].

V.S.J. v. L.J.G., [2004] O.T.C. 460 (S.C.), refd to. [para. 19].

K.V.P. v. T.E., [2001] 2 S.C.R. 1014; 275 N.R. 52; 156 B.C.A.C. 161; 255 W.A.C. 161; 2001 SCC 60, refd to. [para. 21].

N.R. v. B.B. et al., [2009] 1 S.C.R. 295; 385 N.R. 85; 266 B.C.A.C. 1; 449 W.A.C. 1; 2009 SCC 10, refd to. [para. 21].

Johnson v. Jessel (2012), 328 B.C.A.C. 54; 558 W.A.C. 54; 2012 BCCA 393, refd to. [para. 22].

Leung v. Leung, [1998] B.C.A.C. Uned. 161; 44 R.F.L.(4th) 121 (C.A.), refd to. [para. 22].

Eaton v. Eaton (1987), 11 R.F.L.(3d) 92 (B.C.C.A.), refd to. [para. 22].

Prost v. Prost (1990), 30 R.F.L.(3d) 80 (B.C.C.A.), refd to. [para. 22].

Counsel:

A.M. Lessing, for the appellant;

G.K. Thomas, for the respondent.

This appeal was heard and orally decided on October 2, 2014, by D. Smith, Garson and Stromberg-Stein, JJ.A., of the British Columbia Court of Appeal. D. Smith, J., delivered the following written reasons for judgment for the court on October 23, 2014.