Lorne MacLean, Q.C. was one of the first Vancouver family lawyers to champion shared child custody and shared child parenting as being in the best interests of a child.
MacLean often tells Vancouver family courts “children don’t forfeit the love and guidance of two loving and concerned parents merely because of marriage breakdown.”
In the past, it was felt that unless two parents could easily cooperate with each other, joint custody and equal parenting time could be a prescription for disaster. MacLean has argued successfully that if two parents could easily cooperate they likely would not have separated. He also argued successfully that courts had to take actions that encouraged future parental cooperation even if there were transitional disputes when parties first separated and there was an expected but perhaps ill-founded lack of trust.
The recent case of G.G. v. M.A., dealt with a high conflict case where a court appointed psychologist recommended equal parenting time but not equal decision making powers over the children. The judge considered past precedents where high conflict custody situations still allowed a court to make joint custody orders and ordered shared parenting but not equal decision making authority in regard to the children. The judge distinguished a past case that had denied joint parenting due to high conflict AND one parent’s poor parenting skills and found the parties could share parenting despite conflict because:
[80] The respondent says that this case has similarities to J.S. v. G.J.S., where the court granted sole custody to the mother rather than joint custody and more equal parenting time as sought by the father. Prior to trial, the mother had sole custody and the father had limited access. The court found that the father was emotionally unstable and prone to outbursts, particularly at exchanges, which could emotionally harm the children who were similar in age to P. and M. At para. 48, Rice J. set out the reasons for his conclusion on custody:
Although an order for joint custody may be made in situations where the parents have difficulty communicating with one another (see P.Y.Y.M. v. D.M., 2003 BCSC 766, [2003] B.C.J. No. 1149, and Carr v. Carr, 2001 BCCA 415, [2001] B.C.J. No. 1219), I do not believe that such an order would be in the best interests of the children in this case. The parties have been consistently unable to prevent the tension, confusion and strife over access exchanges. The result has been trauma to the children. [J.S.] and [G.J.S.] cannot communicate with one another without rancour and have been unable to implement shared parenting or agree on an access schedule without frequent recourse to the courts. Consequently, I see little prospect for the co-operation, consultation, and joint decision-making that is necessary to make joint custody workable. In light of this animosity, a joint custody order likely would increase opportunities for conflict, exposing the children to greater stress.
[81] The decision in J.S. v. G.J.S. is of little assistance here. The circumstances are very different. The claimant has not shown the same kind of harmful behaviour as the father in that case. Further, in the present situation both parties have been actively involved in caring for and making parenting decisions for the children for some time now. They both make positive contributions to the children’s lives. It is much more difficult in these circumstances to make a sole custody order than it was in J.S. v. G.J.S., where the court’s order effectively maintained the status quo.
[82] My decision with regard to custody, guardianship and parenting time is based on the factors set out in s. 37(2) of the FLA. As well, I have considered the factors listed at para. 27 in Ordonez v. Ordonez, 2006 BCSC 1130, which are relevant to a consideration as to whether sole custody should be ordered. Some of the most important considerations here are:
- Children’s emotional health and well-being. The most difficult parenting task facing the parties is the upbringing of P. I accept Dr. England’s view that the claimant is more sensitive and attentive to his needs. It would be contrary to his best interests to grant sole custody and primary residency to the respondent. Similarly, the claimant is more adept at hands-on parenting. She has done so for much longer than the respondent. It would be harmful to the interests of both children to limit her time and parental decision-making authority in the manner suggested by the respondent.
- Nature and strength of relationship with both parents. This factor is also very important here. The children have a strong attachment to both parents. The order should, to the extent possible, provide the opportunity for maximum contact with each parent to continue.
- History of care and the need for stability. The children are still relatively young. Their mother was their primary caregiver until recently. They are at a stage of their development where stability is very important, particularly given the level of stress the family has experienced. It would be contrary to their interests to change the current parenting regime significantly at this time.
- Ability of the parents to communicate. The lack of communication is the one factor which most strongly supports having a sole custody order and limiting the parenting time and decision-making authority of one of the parents. The difficulty here is that neither party would be a good choice as the sole custodial parent. The respondent blames the claimant for the poor level of communication and she deserves a good share of the blame. But he is also responsible for the poor relationship and their inability to communicate. He does not respond promptly at times to requests for information. Like the claimant, he is inflexible and believes he is justified in his actions. He has attempted to control and manipulate the claimant through his superior financial position. He provoked her defensive responses. Given my view that the children’s best interests are served by equal involvement by both parents, and my conclusion that neither party communicates effectively with the other, I reject the respondent’s submission that he should have sole custody and the claimant should have limited parenting time.
- Parental behaviours which could impair the relationship between the children and the other parent. As I have indicated, this is a factor which weighs against the claimant. She has brought the children into the dispute with the respondent. As Dr. England noted, she does not maintain appropriate adult boundaries. While this is a significant concern, it is not enough to offset the other considerations set out above.
[83] I have concerns about whether or not joint parenting can work. However, I think it is a better option than allowing either party to have primary custody, given their difficult personalities. In the future it may be necessary to consider alternatives but at this stage, I think it better to follow the recommendations of Dr. England and try joint parenting. I note that with the adjudication of the other issues completed, the parties will be in a better position to work together to put their conflict aside and focus on the best interests of the children moving forward.
[84] In conclusion, the children’s best interests will be served by having each parent spend an equal amount of parenting time with them. They both have strong relationships with the children. The parenting plan should allow those relationships to continue to develop.
[85] In order to reduce the degree of friction on parenting issues, I will give one parent the authority to make decisions about particular issues where the parties cannot agree. I stress that the parties have an obligation to present issues for discussion and resolution and an obligation to attempt to meaningfully mediate issues before a final decision is made.
Lorne MacLean, Q.C. Vancouver Shared Custody and Child Parenting Lawyer is pleased to meet with you to discuss your child custody and parenting plan issue. Call him at 604-602-9000.
