Written by: Kevin Heinrichs (View All Posts
• View Bio
) Published: July 27, 2015
Categorized: British Columbia, Case Analysis, Commentary, Contact, Parenting Time.
On July 3, 2015, the Supreme Court of British Columbia released Kalafchi v. Yao, 2015 BCSC 1152 (Kalafchi), a new statement on contact under the Family Law Act (FLA). Contact is defined as time a person who is not a guardian spends with a child. It is interesting to study contact because of the relative dearth of case law on non-custodial access under the Family Relations Act (FRA), making it somewhat difficult for family lawyers to advise clients on contact. Kalafchi seems to have clarified the analytical approach to contact for lawyers.
Under the FRA, the approach to access for non-custodians came from the Ontario Court of Appeal case of Chapman v. Chapman, 2001 CanLII 24015 . There, the Court provided the following framework:
i. The onus is on the applicant to demonstrate that the proposed access is in the child’s best interest.
ii. The custodial parent has a significant role. The courts should be reluctant to interfere with a custodial parent’s decision and should do so only if satisfied that it is in the child’s best interest.
iii. It is not in the best interests of a child to be placed into circumstances of real conflict between the custodial parent and a non-parent.
The second criterion resulted in considerable deference to the wishes of the custodial parent, provided they were not unreasonably withholding access from the non-custodial applicant. In fact, in the unreported case of Lambrechts v. Lambrechts, Nanaimo Registry No. 07161, July 14, 1995, Master Horn stated:
I have made an order that the Senior Lambrechts are entitled to access. They are entitled to access on exactly the same terms as any other grandparent, namely, access at the time and for the duration and under the conditions that the parents or parent may allow…. All that my order means is that Tracy Lambrechts may not unreasonably refuse access.
This order is highly deferential to the custodial parent. But, as the Court opined in Kalafchi, the days of deference are over. No doubt taking a cue from Gordon v. Goertz, [1996] 2 S.C.R. 27, the FLA requires, in section 37, that agreements and orders respecting contact must be based only on the best interests of the child. The problem with deferring to custodial parents under the Chapman framework, then, is the potential for conflict with the child’s best interests. The Kalafchi Court zeroes in on this conflict and, in quoting M.S. v. G.S., 2013 BCSC 1744, abrogates any deference to the custodial parent under the Chapman framework.
As a result of Kalafchi, the modified Chapman framework is now:
i. The onus is on the applicant to demonstrate that the proposed contact is in the child’s best interest.
ii. The sole consideration is the best interests of the child.
iii. It is not in the best interests of a child to be placed into circumstances of real conflict between the custodial parent and a non-parent.
This development seems to level the playing field for non-custodial applicants seeking contact. If it is in the child’s best interest to have contact with, say, a grandparent, then presumably such will be ordered regardless of the custodial parent’s position on the matter. The new approach does what family law is supposed to do: put the child first.
Jeffrey L. Hartman
