Parental Responsibilities Guardianship Lawyers help parents and their children create plans that ensure children grow up to be healthy productive adults and positive contributors to society. Parental Responsibilities Guardianship Lawyers know that parents are forever and each parent has an idea of the best way their children should be raised. In today’s blog, Parental Responsibilities Guardianship Lawyers team member explains what happens in these types of disputes. MacLean Law is Western Canada’s largest family law firm with offices in Vancouver, Calgary, Surrey, Kelowna, Richmond and Fort St John/Dawson Creek.
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When parents who can’t agree on decisions involving their kids end up in court, a judge can help them resolve their issues by making allocating parental responsibilities to one parent. However, one recent Court of Appeal case describes a situation where a judge overstepped his role and began making decisions that should have been in the hands of the parents.
The appeal decision is N.R.G. v. G.R.G., 2017 BCCA 407, decided on November 23, 2017. The parties had five daughters and the case was described as high-conflict. The mother was appealing two decisions made after trial, in June 2016 and May 2017. Both orders were multiple pages long and had a long list of terms, mostly to do with parenting. The order included: joint parenting on a rotating two-week schedule; limiting the children to only one non-school extracurricular activity; and prohibiting communication between one parent and the children while the children reside with the other parent.
The mother argued that the trial judge failed to properly consider the best interests of the children by instead looking at the relationship of the parties and their behaviours. The mother said this caused the trial judge to wrongly impose a co-parenting schedule that provided excessively long gaps between transitions, excessively limited the children’s activities to one only, and prohibited contact between the children and the parent at whose home they were not then residing.
Appeal Allowed Note Parental Responsibilities Guardianship Lawyers
The Court of Appeal allowed the appeal, in part, finding that the trial judge did not use the correct approach when determining the best interests of the children (s. 37 of the Family Law Act) and the judge wrongly took on parental responsibilities assigned to the guardians by the Family Law Act.
The Court of Appeal dismissed one term out of the gate, namely that:
“The children must be taught and encouraged to demonstrate care and compassion towards both parents and the importance of a healthy relationship with both parents must be emphasized. This includes imposing discipline to ensure that the transitions from one household to the other occur, and that they occur in as friendly and encouraging a manner as possible.”
The Court of Appeal found that this term was so vague that parties couldn’t follow it, and would only disagree about what it meant.
Parental Responsibilities Guardianship Lawyers Section 40 FLA
The Court went on to discuss the role of a judge in parenting responsibilities. The court considered section 40 of the Family Law Act, which states that “only a guardian may have parental responsibilities.” According to section 41, these responsibilities include:
(a) making day-to-day decisions affecting the child;
(d) making decisions respecting the child’s education and participation in extracurricular activities, including the nature, extent and location; and
(l) exercising any other responsibilities reasonably necessary to nurture the child’s development.
Parental Responsibilities Guardianship Lawyers- Allocating Decisions
Section 45 of the Act states that, on application by a guardian, a judge can make an order for the allocation of parental responsibilities. Guardians can also apply to the court for directions respecting an issue affecting the child, and the court can give appropriate directions.
The Court took the provisions of the Family Law Act into consideration, and found that decisions about activities, phone calls, electronic communications, attendance at school events, and other daily aspects of children’s lives are within the meaning of “parental responsibilities”, and only guardians can make such decisions. However, the court can allocate those responsibilities to the guardians, and determine the means for resolving disputes between the guardians.
On this point, the Court made the following decision:
[41] In this case, we respectfully consider that the judge has erred in principle by taking upon himself the detail of parenting to an inappropriate degree, and by failing to establish who has the initial parental responsibility on the disputed matters.
After reviewing all the trial judge’s reasons, the Court of Appeal also found errors in how the trial judge determined the best interests of the child. The Court found that:
[44] … the judge did not fully consider the best interests of the children as expressed in …s. 37 of the Family Law Act, and was diverted, in error, to ‘correction’ of the behaviours of the parents, in particular of the mother. The result has been living circumstances for the children that are unduly restrictive, unduly separate the children’s lives into two difficult-to-traverse silos, and fail to allow for development of skills and interests that are part of growing up and that prepare the child to become an adult. The result has also been assumption by the judge of a parenting role well beyond that contemplated under the Family Law Act.
Parental Responsibilities Guardianship Lawyers, warn this case stands as a cautionary tale and reminder to clients, lawyers and judges to focus on allocating parental responsibilities between the guardians, instead of making decisions for the children that the parent’s guardians should be making.
Call our Parental Responsibilities Guardianship Lawyers toll free across Bc and in Calgary at 1-877-602-9900.
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