The views expressed herein are my personal views. The content of this post should not be construed as formal legal advice.
Allegations of domestic abuse—or “family violence,” as the term is defined under British Columbia’s Family Law Act—often intersect with criminal proceedings, parenting disputes, and spousal-support claims. This post provides a general overview of how courts approach such allegations in family-law contexts.
My perspective on the topic comes from experience conducting criminal trials as defence counsel on charges of assault and various sexual offences, as well as litigating family law cases at trial. I also have increasing experience conducting appellate work in family law and criminal law.
1. The legislative framework
Under the Family Law Act, the term domestic abuse is not used; the statute instead refers to family violence, defined in section 1 as including physical, sexual, psychological, emotional, and financial abuse, as well as direct or indirect exposure of a child to such conduct.
Family Law Act, S.B.C. 2011, c. 25
Sections 37 and 38 of the Family Law Act direct courts to consider the presence and impact of family violence when making parenting orders.
In some cases, the proven context of family violence also informs other areas of family law, such as:
- Contractual interpretation (e.g., whether an agreement was signed under duress during an abusive relationship); and
- Spousal support (e.g., where the abuse affected a spouse’s ability to work or achieve financial independence).
2. Case law illustration: K.M.N. v. S.Z.M., 2024 BCCA 70
In this case, the trial judge ordered equal and unsupervised parenting time for the father despite allegations of family violence. The mother alleged that the father threw objects at her, headbutted her, and broke her cellphone. Criminal charges were outstanding at the time of the family trial and remained unresolved during the appeal. The father faced ten counts, including assault, uttering threats, criminal harassment, and mischief.
The Court of Appeal used this case to caution against reliance on myths and stereotypes in cases involving family violence. These myths include assumptions such as:
- That women fabricate violence allegations to gain an advantage in family proceedings;
- That a credible complainant would disclose immediately or report to police;
- That a credible complainant would leave the relationship; and
- That violence against a partner is irrelevant to parenting ability.
The Court reaffirmed that trial judges must guard against such reasoning and noted that domestic violence is often difficult to prove. Importantly, the Court stated: “An inability to prove family violence on a balance of probabilities does not mean that it must not have occurred or, importantly, that it was falsely alleged for the specific purpose of furthering a litigation objective.” (para. 123)
The Court found that the trial judge did not adequately protect against the father’s reliance on myths and stereotypes. As a result, the appeal was allowed, and a new trial was ordered.
3. Overlap between criminal and family proceedings
It is noteworthy that the family law trial in K.M.N. proceeded before the conclusion of the criminal proceedings. If a parent is later convicted on a “beyond a reasonable doubt” standard, the same facts would also be proven on the “balance of probabilities” standard in family court.
In many cases, interim parenting arrangements must be made while a criminal prosecution is ongoing. Courts must balance the seriousness of the allegations against the presumption of innocence guaranteed under the Charter.
This issue was addressed in M.B.K. v. R.R.R., 2025 BCSC 1624 (CanLII link).
There, allegations of sexual assault were outstanding, and the father was facing criminal charges. The chambers judge carefully assessed the risk and noted that the father had been complying with his bail conditions. On that basis, the court ordered shared interim parenting time.
The case illustrates how interim parenting orders can have profound long-term effects: restrictions imposed during lengthy criminal proceedings can significantly erode a parent–child relationship before a final trial ever occurs.
4. Lessons from criminal law: the “twin myth” rule
The criminal law also guards against stereotypical reasoning in assessing sexual assault evidence. Section 276 of the Criminal Code prohibits what is known as “twin myth” reasoning — the discredited assumptions that:
- a person who has engaged in sexual activity in the past is more likely to have consented on a later occasion, and
- such a person is less worthy of belief.
The Ontario Court of Appeal in R. v. Reimer, 2024 ONCA 519 (CanLII link) explained that the admissibility of sexual history evidence turns on whether it invites these prohibited inferences. The Court emphasized that courts may only rely on such evidence if it yields a logical, non-discriminatory inference relevant to the specific case — not one based on myths about consent or credibility. As seen in paragraph 83:
[83] The following are illustrations of prohibited lines of reasoning that flow from the sexual nature of the activity: (1) that “unchaste” women are more likely to have consented (R. v. Osolin, 1993 CanLII 54 (SCC), [1993] 4 S.C.R. 595, at pp. 670-71, quoting Seaboyer, at p. 604; R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, at para. 101; Barton, at para. 56); (2) that by reason of her past sexual activity a complainant has a “disposition to consent” (Darrach, at para. 34) or a general “propensity to consent” (Barton, at para. 55); (3) that “because the complainant had consented to sex with [the accused] in the past, in similar circumstances, it was more likely she had consented on the [occasion] in question” (Goldfinch, at para. 47); and (4) “because the complainant had ‘typically’ consented to sex … in the past, she was more likely to have done so on this… occasion” (Goldfinch, at para. 72). I am not suggesting that this is an exhaustive list. I provide it to illustrate that the relevance of the sexualized texts that communicated the kind of activity the complainant intended to engage in during her pending date with Mr. Reimer does not derive its relevance from twin-myth reasons. Mr. Reimer was not relying on the sexual nature of the complainant’s act of engaging in sexting as proof that she likely consented in the motel. Nor was he relying on the fact that the complainant had consented in the past to engage in the sexual act of sexting with him. To put it in the terms used by Gonthier J. to describe permissible inferences, he was relying on other “relevant features of the activity”, namely, the statements that she had made in those texts about what she intended to do in the future, during the pending meeting from which the charges ultimately arose: Darrach, at para. 35. In my view, there is nothing discriminatory in inferring that her stated intention to engage in consensual sexual activity on that future occasion has a logical tendency to increase the likelihood that she consented in the motel room. This inference does not trade on sexism, and it is not built on myths about female sexuality. The evidence yielded a logical, permissive inference, and the trial judge erred in finding otherwise.
5. Key takeaways
If your family law matter involves allegations of domestic abuse or family violence, early and informed legal advice is essential. The way these issues are framed and addressed can significantly affect the outcome of your case. Key questions include:
- How do the allegations affect the family law case generally? How are they to be proven, challenged, or weighed?
- How does a concurrent or pending criminal prosecution affect parenting, support, or property issues?
- What is the significance of a criminal release or bail order, and how can it be varied to allow parenting time?
- How can criminal disclosure materials be obtained and used appropriately in the family law context?
- What role do child protection authorities (e.g., the Ministry of Children and Family Development) play?
- Should you participate in interviews with police or child protection investigators?
Closing thoughts
Family violence cases require careful, context-sensitive analysis. Courts must balance the need to protect safety and children’s best interests with the presumption of innocence and the integrity of parallel criminal proceedings. Each case turns on its specific facts, the quality of evidence, and the reasoning applied.
Mark Chiu is a lawyer practicing family and criminal law with Connect Family Law in Kelowna, British Columbia. He also maintains a growing appellate practice. The opinions expressed above are his own.
