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Audra Bayer, MacLean Family Law Kelowna

Parenting Coordinator Decision Appeals lawyers deal with cases involving applications to the Supreme Court to review and overturn decisions by a parenting coordinator for lack of jurisdiction or that are unreasonable.  A recent Ontario case involved a family arbitrator ruling it was alright for one parent to not have their child vaccinated created quite an uproar.

Two recent cases have shown courts will give deference to decisions made by parenting coordinators.

Parenting Coordinator Decision Appeals 

MacLean Family Law’s ADR team handles parenting coordinator selection and deals with Parenting Coordinator Decision Appeals. Contact us at any of our 6 offices across BC and in Calgary, Alberta.

Parenting Coordinator Jurisdiction 

s. 18(1)(a) of the FLA and s. 6(4)(b)(iv) of the Family Law Act Regulation, B.C. Reg 347/2012, states that a Parenting Coordinator may not make determinations in respect of a substantial change to the parenting time or contact with a child. 

What is The Test On A Parenting Coordination Appeal?

Mr. Justice Gomery released important reasons on the subject in AKE v ALES:

[30]The question of the standard of review to be adopted in assessing the decision of an administrative decision-maker review is a vexed question addressed in many decisions of the Supreme Court of Canada since the judgment in Dunsmuir v. New Brunswick, 2008 SCC 9.  The law continues to evolve.

[31]Prior to Dunsmuir, the question of the standard of review in respect of the question at hand – whether a Parenting Coordinator’s amendment to a parenting schedule involves a substantial change to the parenting time, contrary to s. 6(4)(b)(iv) of the Family Law Act Regulation – would have been considered as a question of jurisdiction, involving the interpretation of a legislated constraint on the authority of the Parenting Coordinator.  In Dunsmuir at para 59, Bastarache and LeBel JJ., speaking for the majority, accepted that “true questions of jurisdiction” must be reviewed according to whether the decision was correct, not whether it was reasonable.  They stated:

“Jurisdiction” is intended in the narrow sense of whether or not the tribunal had the authority to make the inquiry.  In other words, true jurisdiction questions arise where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter. The tribunal must interpret the grant of authority correctly or its action will be found to be ultra vires or to constitute a wrongful decline of jurisdiction:  …

[32]The utility and even the existence of a category of “true questions of jurisdiction” has been debated in subsequent jurisprudence.  The Court has emphasized that the category of “true questions of jurisdiction” is extremely narrow.  In Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, Rothstein J., speaking for a majority, wondered whether it should even exist.

[33]Generally speaking, the trend has been towards upholding decisions of decision-makers exercising statutory authority unless they are unreasonable, especially where the decision-maker is possessed of relevant expertise and the decision is one that involves an element of factual assessment.  In my view, the Parenting Coordinator’s decision that she had authority to make the Determination qualifies on both counts.  She was a trained and specialized decision-maker; Law v. Cheng, 2017 BCSC 328 at paras. 32-35.  The issue at hand required the Parenting Coordinator to assess the significance of a change to the parenting schedule for the parties and especially L.E.  This entailed a factual assessment.

What Happened To The Appeal In This Case?

Justice Gomery upheld a 4 % increase in total time to the father as a result of finding the parenting coordinator’s ruling.

[34]In my opinion, the Parenting Coordinator’s decision that her Determination did not effect a substantial change to the parenting time must be afforded deference, and only overturned if it was unreasonable.

[35]In Dunsmuir at para. 47, Bastarache and LeBel JJ. stated:

…  Tribunals have a margin of appreciation within the range of acceptable and rational solutions.  A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes.  In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process.  But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.

[36]The Determination does not record the Parenting Coordinator’s reasoning in deciding that the change in parenting time was not substantial.  This is not necessarily fatal; Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62.  The fundamental question in this case is whether the decision on this point falls within the range of possible, acceptable outcomes which are defensible in respect of the facts and law.

BC Appeal Court Ruled Respect For Parenting Coordinator’s Expertise Warranted 

This result is consistent with the recent 2019 BC Court of Appeal decision in F.J.V. v. W.K.S. where the appellate court ruled deference to a decision of a parenting coordinator was warranted.

If you have concerns over the selection of a parenting coordinator or have a case involving a decision you think is wrong and you want advice on Parenting Coordinator Decision Appeals, call us now at  1 877 602 9900