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Vancouver Child Guardianship Dispute Lawyers
In this week’s blog by founder, Lorne N. MacLean , QC he discusses the principles regarding disputed child guardianship obtained from the recent case of S.L.M.D. v. A.V.D 2017 BCSC 394 . After a long term relationship where both parent’s raised the children, both parents are de facto guardians of their children each with parental responsibilities to decide things involving their children.
However, our Vancouver Child Guardianship Dispute Lawyers know that in some cases a BC or Calgary Court is forced to put one parent solely in charge of parenting responsibilities and decisions regarding their children. Vancouver Child Guardianship Dispute Lawyers know that high conflict separations can routinely negatively affect the children’s healthy development.
- When the parents had a high conflict separation,
- the children had lived primary with their father for some time,
- the children in a views of the child report expressed their wishes to remain with him,
- the mother had mental heath challenges and
- the mother was a difficult witness on the stand at trial
the court had to decide whether sharing guardianship or awarding 1 client the full parenting responsibilities . of guardianship to one of the two parents. The judge ended up deciding in favour of the father and stated:
v. Custody/Guardianship of the Children
[101] I am being asked to decide custody/guardianship for the Children. That is no easy task in view of the acrimony that exists between the parties and their inability to communicate civilly, especially on matters involving the children.
[102] The test for determining an appropriate guardianship order under both s. 16(8) of the Divorce Act and s. 37(1) of the Family Law Act is what is in the best interests of the children. Further, s. 37(2) of the Family Law Act provides a list of factors to consider when deciding what would be in the children’s best interests.
[103] The respondent has been the Children’s primary guardian and caregiver for most of the time since the Separation Date. Particularly, M. has lived with the respondent since living with the claimant for about one year and C. has lived with the respondent since the claimant asked her to leave her home in February 2014.
[104] The evidence is overwhelming that, regardless of the reasons, the parties cannot communicate sufficiently to permit them to co-parent the Children. In such circumstances, an order for sole custody/sole guardianship is warranted: Bain v. Bain, 2008 BCCA 49 para. 18.
[105] Furthermore, I find that the Children’s lives have already been negatively affected by the parties’ conflict and it is not in their best interests that they be placed in a situation where conflict could continue, specifically by ordering a co-parenting arrangement. An order for sole guardianship is the only reasonable option.
[106] While I have no doubt that the claimant loves her children and is distraught about how her relationship with the Children has turned out, it is my view that it would not be appropriate in this case to make an order that would require the parties to cooperate on issues affecting M. and C. I am satisfied that the parties cannot cooperate at any level and ordering them to do so would be futile.
[107] The respondent does not pretend that he has been a perfect father. Despite that admission, I conclude on the evidence that for at least the last few years, he has performed most of the parenting duties with respect to the Children. The evidence suggests that the Children have had some issues with illicit drugs, their peer groups, and school in the last few years, but I am nonetheless satisfied that the Children are doing relatively well and that their daily routines ought not to change.
[108] In fact, the claimant concedes that the respondent is a good father. In her words, he is an “awesome dad”. She also agrees the Children continue to need him.
[109] All things considered, I am satisfied that granting the respondent sole guardianship of the Children is in their best interests. Therefore, for as long as they remain children of the marriage or until further agreement or order, the respondent will be solely responsible for the Children’s guardianship including performing all of the parenting responsibilities set out in ss. 41(a)-(l) of the Family Law Act:
(a) making day-to-day decisions affecting them and having day-to-day care, control and supervision of them;
(b) making decisions respecting where they will reside;
(c) making decisions respecting with whom they will live and associate;
(d) making decisions respecting their education and participation in extracurricular activities, including the nature, extent and location;
(f) subject to section 17 of the Infants Act , giving, refusing or withdrawing consent to medical, dental and other health-related treatments for them;
(g) applying for a passport, licence, permit, benefit, privilege or other thing for them;
(h) giving, refusing or withdrawing their consent, if consent is required;
(i) receiving and responding to any notice that a parent or guardian is entitled or required by law to receive;
(j) requesting and receiving from third parties health, education or other information respecting them;
(k) subject to any applicable provincial legislation,
(i) starting, defending, compromising or settling any proceeding relating to the child, and
(ii) identifying, advancing and protecting their legal and financial interests;
(l) exercising any other responsibilities reasonably necessary to nurture their development.
[110] During the trial, I invited the parties to investigate the possibility of them using an online tool called “OurFamilyWizard.com” (“OFW”) as a resource to assist them in communicating and exchanging information regarding the Children. During submissions, both agreed that OFW appeared to be an excellent resource and they were both keen to try it. It would act as a buffer that would allow for needed information regarding the Children to be exchanged while keeping conflict to a minimum.
[111] I therefore also make the following additional orders with respect to guardianship:
a) the parties will enroll in OFW, with each being responsible for paying the costs of their respective enrollment;
b) the respondent will advise the claimant via OFW of any matters or life decisions of a significant nature with respect to the Children, and seriously consider the claimant’s wishes where appropriate;
c) the respondent will discuss with the claimant via OFW any significant decisions which have to be made with respect to the Children, including significant decisions concerning the Children’s health (except emergency decisions), education, religious instruction and matters of a general nature concerning the Children’s welfare;
d) in the event that, despite their best efforts, the parties cannot reach an agreement with respect to any major decision, the respondent will have the right to make the final decision; and
e) the claimant and respondent shall each have the right to obtain information concerning the Children directly from third parties, including teachers, counsellors, medical professionals and third party caregivers.
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