As highly rated Vancouver BC child custody, guardianship, access, and parenting responsibility lawyers we handle a number of high conflict child custody disputes. We have 4 offices across BC in Vancouver, Surrey, Kelowna and Fort St John, BC and are available to assist our clients across BC through our toll free child custody hotline at 1 877 602 9900.
Lorne MacLean, Q.C. was involved in the LESKUN case in the Supreme Court of Canada. IN LESKUN, Canada’s highest court, spoke firmly in favour of the need for finality in family law cases and was critical of allowing for multiple returns to court on spousal support and other family issues. The courts in BC have always balanced the best interests of children and the need to adjust a custody decision if changes occur to the child custody scheme that render it in need of a change against the practical need to set a standard for changing custody arrangements that prevents frequent returns to court by disgruntled parents who did not obtain a child custody result at trial that they desired. A recent case has huge implications for the court system and high conflict child custody cases.
In British Columbia, there is no such thing as an absolutely final order when it involves children; however for a trial decision to be varied, there must be a significant or material change that affects the best interest of the child. Yet in a recent British Columbia Supreme Court decision, the one of our very capable trial judges ordered a review “for joint custody and joint guardianship… in one year’s time”. People might ask- Shouldn’t a trial bring some degree of finality? After all, a trial usually occurs after years of disagreement between parties. With this time and the facts presented at trial, the court should have enough evidence to make a decision. As stated, it can be varied if there is a material change. This case could set a precedent resulting in more challenges in the court system. As a result, it could further over burden the court and leave parents in a constant state of uncertainty.
In A.C.V. v. S.J.R. (2011 BCSC 1279), the trial was concerned solely with the issues of custody, guardianship and access regarding the parties’ seven-year-old son. At trial, the judge heard the testimony of all the parties involved and was provided with an expert report on custody by Dr. Korpach.
In addition to, ordering a review in one year time, the court did not follow Dr. Koprach’s recommendation on giving final say on “major decisions” to one parent. Instead, the court ordered that if the parents are unable to agree on a significant matter affecting their child, they are to “jointly submit a requisition to the Chilliwack Registry of the Court requesting a telephone attendance before me (the judge) when I can hear from the parties and decide the issue.” Dr. Kopach’s recommendation would have taken the matter out of the court. Instead, the parents are under the control of the courts indefinitely with the judge acting as arbiter. This process of submission will of course incur legal costs, time, and uncertainty to both parents.
Parties go to trial with the hope of a bringing a level of finality to their disputes. In family matters, parents want to end uncertainty and be able to carry on with their lives and not be stuck in litigation indefinitely. This case could set a precedent in British Columbia of family cases constantly being examined then re-examined. In this case, an interim order had been in place for more than a year, all parties were heard at trial, and an expert report was submitted. Additionally, the court found both parents competent. With all the evidence, the trial judge arguably should have made a more final decision and take the matter out of the courts. As discussed, one can always vary an order when a material change occurs.
If you have any questions regarding custody, guardianship and access , please call MacLean Family Group toll free at 1 877 602 9900 to book an appointment.
It is crucial that you get the right legal advice to protect and provide for your family. We have four offices across the province located in downtown Vancouver, Surrey, Kelowna, and Fort St. John.
