Custody and Parenting Arrangement Lawyers
Our custody and parenting arrangement lawyers led by Lorne N. MacLean, QC, have noticed how custody and parenting arrangements have progressed over time moving from the one primary parent theory in the 1970’s to joint custody in the 1980’s and 1990’s but not necessarily equal time to the now more common 50/50 shared parenting time regimes. Lorne N. MacLean QC is proud to be on the vanguard of shared parenting plans in BC and Calgary and to be winning counsel on Canada’s most famous child custody case Young v. Young. MacLean Law is Western Canada’s largest family law firm with offices in Calgary, Vancouver, Kelowna, Surrey, Richmond and Fort St John BC as well as Winnipeg Manitoba. If you need a skilled trial lawyer or a savvy team of Custody and Parenting Arrangement Lawyers to negotiate your custody case, then call us today.
Lorne N MacLean, QC one of the top custody and parenting arrangement lawyers in Canada often tells clients and the courts: “ A child doesn’t forfeit the love and guidance of two caring and concerned parents merely because of relationship breakdown”
Recent Case For Custody and Parenting Arrangement Lawyers
A recent BC case which applied both federal and provincial legislation and which cited the key principle from Young v. Young gives a nice snapshot of the law for clients as well as for our top rated custody and parenting arrangement lawyers.
Court Reviews Law Then Awards Equal Parenting Time on A 2 Week Schedule
In the Recent BC case of D.M.L. v. D.B.L the court reviewed the statutory and case law as well as hearing expert evidence form Dr Elterman, a well known psychologist who prepares parenting and child assessments and from both the parties themselves. At the end of the day the judge established a two week schedule that shared the time and the weekends for the children equally between their parents. Here is what the court noted were the key legal principles:
Custody and Parenting Arrangements: Applicable Legal Principles
[184] Section 16(1) of the Divorce Act authorizes the court to make orders respecting custody of and access to any child of the marriage.
[185] Section 16(8) provides:
(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.
[186] On a custody application, the court’s only consideration is the best interests of the child, having regard to the factors set out in s. 16(8).
[187] The focus is on the best interests of the child, rather than the interests and rights of the parents: Gordon v. Goertz [1996] 2 S.C.R. 27 at para. 49.
[188] There is no presumption in favour of the status quo, or joint or sole custody. The court must determine the best interests of the child in the particular circumstances of each case: Nunweiler v. Nunweiler, 2000 BCCA 300; Robinson v. Flyk (1996), 28 B.C.L.R (3d) 21 (C.A.); E.L.S. v. C.A.S., 2012 BCSC 1224.
[189] In making an order for custody or access, the court will not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of the child: s. 16(9).
[190] Section 16(10) of the Divorce Act requires the court to give effect to the maximum contact principle:
(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.
[191] The maximum contact principle is not absolute. The court will give effect to the maximum contact principle to the extent that it is consistent with the best interests of the child: Young v. Young, [1993] 4 S.C.R. 3 at para. 18.
[192] Section 37(2) of the FLA provides a useful but non-exhaustive list of factors which the court may also take into account when assessing the best interests of the child on a custody application under the Divorce Act: Puzzobon v. Puzzobon, 2013 BCSC 1226.
[193] Section 37(2) of the FLA provides:
(2) To determine what is in the best interests of a child, all of the child’s needs and circumstances must be considered, including the following:
(a) the child’s health and emotional well-being;
(b) the child’s views, unless it would be inappropriate to consider them;
(c) the nature and strength of the relationships between the child and significant persons in the child’s life;
(d) the history of the child’s care;
(e) the child’s need for stability, given the child’s age and stage of development;
(f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;
(g) the impact of any family violence on the child’s safety, security or well-being, whether the family violence is directed toward the child or another family member;
(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child’s needs;
(i) the appropriateness of an arrangement that would require the child’s guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;
(j) any civil or criminal proceeding relevant to the child’s safety, security or well-being.
[194] An order will not be in the best interests of the child unless it protects, to the greatest extent possible, the child’s physical, psychological and emotional safety, security and well-being: FLA s. 37(3).
[195] The court may make a custody order under the Divorce Act supplemented by orders related to guardianship and parenting arrangements under the FLA that are not operationally incompatible. Both the Divorce Act and the FLA are directed to the same purpose: the best interests of the child: B.P.M. v. A.E.M., 2014 BCSC 453; Rana v. Rana, 2014 BCSC 53; N.U. v. G.S.B., 2015 BCSC 105.
[196] Under s. 39 of the FLA, each parent of the child is the child’s guardian unless after separation the court makes an order providing that a parent is not the child’s guardian.
MacLean Law’s Custody and Parenting Arrangement Lawyers will help you develop a proper parenting plan. Call us toll free across Bc and Alberta at 1-877-602-9900.
