PEI Court of Appeal upholds shared parenting order in a case involving family violence

Despite nine child protection investigations, none concluded that the children needed protection

PEI Court of Appeal upholds shared parenting order in a case involving family violence

The Prince Edward Island Court of Appeal upheld a lower court's decision on shared parenting and joint decision-making responsibilities for four children.

The appeal in M.A.M. v J.P.M, 2024 PECA 13 challenged an interim order that granted shared parenting and joint decision-making responsibility, which the father had requested alongside increased parenting time and child and spousal support. The mother had sought sole decision-making responsibility and limited parenting time for the father, including no overnight stays.

The motions judge found the father's evidence unreliable, citing evasive and argumentative behaviour. The mother's evidence was similarly discredited due to hyperbole, speculation, and a tendency to deliver narrative-driven accounts. The judge noted that both parties exhibited a lack of credibility and reliability.

The parties, who began their relationship in 2013 and separated in October 2022, had experienced numerous child protection and police investigations since their separation. Despite nine child protection investigations, none concluded that the children needed protection.

In reviewing the standard of appellate review, the Court of Appeal emphasized the discretionary nature of decisions involving the best interests of the child. Citing the Supreme Court of Canada, the court reiterated that appellate review should be deferential, intervening only in cases of material error or serious misapprehension of evidence.

The mother argued that the motions judge erred by not accepting hearsay evidence of the children’s allegations of physical abuse. The judge, however, found the evidence unreliable, as it was primarily reported by the mother, whose credibility was already in question. Moreover, the social workers and counsellors whose statements were presented did not provide affidavits or testify, making cross-examination impossible. The judge's gatekeeping role justified rejecting this hearsay evidence.

Regarding similar fact evidence, the mother introduced testimony from an individual with whom the father had a relationship 18 years prior. The motions judge ruled this evidence inadmissible, as it failed to meet the standards for similar fact evidence set out in case law. The court emphasized that relevance does not guarantee admissibility, and the motions judge correctly excluded the evidence.

The mother also contended that the judge should have accepted the testimony of her expert on family violence and appropriate parenting arrangements. The Court of Appeal found no legislative or common law requirement for such evidence to be accepted before making a parenting decision. The court upheld the motions judge's decision based on trial fairness, proportionality, and necessity.

Despite findings of family violence, the motions judge ordered shared parenting, assessing the severity and frequency of incidents. The judge concluded that the three serious incidents did not establish an ongoing pattern of behaviour. The Court of Appeal found no error in this analysis, affirming that the judge thoroughly reviewed relevant legislative provisions and case law.

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