Family Violence in Family Law

When asked to make a parenting order, courts will consider family violence as a factor relating to the child’s circumstances and, ultimately, their best interests. But what if the evidence is controverted?

One consideration is credibility. In assessing the appropriate parenting arrangements for a child, credibility of the witnesses is measured. The Nova Scotia Family Court, in H.L. v Z.L., 2018 NSFC 5, helpfully sets out the following factors to consider when making credibility determinations:

1. What were the inconsistencies and weaknesses in the witness’ evidence, which include internal inconsistencies, prior inconsistent statements, inconsistencies between the witness’ testimony, and the documentary evidence, and the testimony of other witnesses: Re: Novak Estate, 2008 NSSC 283 (S.C.);
2. Did the witness have an interest in the outcome or was he/she personally connected to either party;
3. Did the witness have a motive to deceive;
4. Did the witness have the ability to observe the factual matters about which he/she testified;
5. Did the witness have a sufficient power of recollection to provide the court with an accurate account;
6. Is the testimony in harmony with the preponderance of probabilities which a practical and informed person would find reasonable given the particular place and conditions: Faryna v. Chorney 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354;
7. Was there an internal consistency and logical flow to the evidence;
8. Was the evidence provided in a candid and straight forward manner, or was the witness evasive, strategic, hesitant, or biased; and
9. Where appropriate, was the witness capable of making an admission against interest, or was the witness self-serving?

While the above factors are an excellent guide to assessing credibility, the Saskatchewan Court of Queen’s bench has acknowledged that, at the end of the day, the focus is on the best interests of the child. The question is how to safely structure parenting in view of the allegations of family violence, as opposed to whether certain, or any, events did or did not occur. Refer to Juraville v Armstrong, 2021 SKQB 73.

So, while there may be conflicting evidence between parties, particularly as it relates to family violence, it remains possible to fashion a parenting plan for the child that will compliment their best interests and safeguard their mental, emotional, physical and spiritual wellbeing.

Contacting a Lawyer on this Subject

The above is for general information only, and not legal advice. Parties should always seek legal advice prior to taking action in specific situations. Contact Kelsey Dixon at 1-306-933-1359 or [email protected] to learn more.

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