BC Sees Trend Toward Joint Parenting Orders

Susan Boyd for The Lawyers Weekly

Hire a BC Lawyer to Educate You on the Differences between Joint Custody and Sole Custody

In British Columbia, the decisions dealing with parenting orders are made very cautiously. This is evident in Susan Boyd’s article about BC joint parenting orders in The Lawyers Weekly.

Search BC lawyers to find a lawyer who understands the trends and complexities of joint parenting orders in BC, and how they are determined. In BC, joint custody is ordered when there is clear evidence that the parents are able to communicate effectively despite animosity or personal differences. If the parents of a child are not capable of jointly acting in their child’s best interests, then sole custody is given to the qualifying parent.

Joint Custody Parenting Orders are Being Reviewed More Cautiously by BC Courts

By comparing many different cases that deal with parenting orders in BC over the last decade, one can begin to formulate trends. This is particularly true in the process of assigning joint custody as opposed to sole custody. Certain concerns like the ability to communicate or cooperate between parents are analyzed when determining if joint or sole custody is chosen. Hiring a BC lawyer with extensive knowledge of this process will ensure that the proper parenting orders are determined and your child’s best interests are ultimately met.

To further educate yourself on the BC process of determining parenting orders, read the article about BC parenting orders below. To find an experienced BC lawyer visit Canadian-Lawyers online directory.

July 2, 2010

British Columbia has taken a different path than Ontario in decisions dealing with joint custody awards. In B.C., no presumptions in favour of or against either joint or sole custody are to be applied, although it is often said that joint custody is now the de facto starting point at hearings. Ontario takes a more cautious approach to joint custody.

In Kaplanis v. Kaplanis, [2005] O.J. No. 275, Ontario's Court of Appeal reiterated its cautious approach to joint custody in contested cases. Joint custody should not be ordered without clear evidence that the parents are able to communicate effectively, despite animosity or personal differences, because they will not be capable of jointly acting in their children's best interests. That said, one parent's opposition to joint custody would not, without more, suffice to block such an award (Ladisa v. Ladisa, [2005] O.J. No. 276 (C.A.)).

Despite an early flirtation with a cautious approach in Stewart v. Stewart [1994] B.C.J. No. 481, the B.C. Court of Appeal made a strong statement against presumptions in custody decisions in Robinson v. Filyk [1996] B.C.J. No. 2519, indicating that any use of presumptions in favour of, or against, either joint or sole custody is inappropriate. The only issue is a child's best interests, to be "found within the practical context of the reality of the parents' lives and circumstances," citing from Gordon v. Goertz, [1996] S.C.J. No. 52 (SCC).

B.C. law is complicated by the concept of guardianship under its Family Relations Act. Joint guardianship has been defined very similarly to joint custody, yet it is ordered in circumstances where joint decision-making is not workable; for example, to pass on guardianship after a custodial parent's death, permit exercise of authority while the child is with the non-custodial parent, or emphasize the responsibilities of both parents.

To get a sense of trends in the B.C. trial courts, I studied 66 decisions from 2000 and 64 from 2007 that dealt with joint custody. I was concerned with how judges dealt with factual concerns such as ability to communicate or cooperate, given their inability to use presumptions. Although the figures are not statistically significant, they reveal some interesting trends, as the 2007 decisions - 27 sole custody and 37 joint custody awards - illustrate.

Joint custody awards

In 12 of 37 awards, an absence of cooperation (for example, "lack of trust," "trenchant animosity" or "inability to communicate" ) was not viewed as a bar to joint custody. However, the judge sought to mitigate any adverse effect of the inability of the parents to communicate by putting into place arrangements to prevent parental impasse in decision-making. These arrangements ranged from: (i) requiring a third party to resolve conflicts between parents; (ii) requiring additional counselling; (iii) specifying which decisions needed joint approval; and (iv) in the largest category (eight cases), designating a "primary parent" with authority to make the final decision in an impasse.

Approximately 78 per cent of the joint custody awards were modified by a designation of one parent as a primary parent, usually a mother. In 21 decisions other than the eight mentioned above, a primary care or residence parent was designated with final decision-making authority. In eight of the primary parent cases, a "Master Joyce model" of guardianship was used, under which parents must consult with each other, and provide and obtain information about the child's development from each other and from third parties. Decisions are to be made after consultation. In the event of conflict, the primary parent is empowered to make the final decision, subject to the right of the other parent to ask the court to review the decision.

Sole custody awards

In 21 of the 27 sole custody awards, the parents were unable to cooperate, generally due to "acrimonious" or "conflict-laden" relationships. Other reasons included: (i) one parent ignoring a child or not taking parenting responsibilities seriously; (ii) ostracism by a parent's religious community; (iii) physical or emotional abuse of one parent by the other (in all cases the father); (iv) substance abuse or alcoholism. Six other cases dealt with serious issues such as inability to care for children.

The mother was designated as the sole custodial parent in 16 cases (59 per cent), the father in nine cases (33 per cent), and grandparents in two cases. Sole guardianship was specified in 11 cases (41 per cent), while joint guardianship accompanied sole custody in 10 cases (37 per cent). In six cases, courts deferred awarding guardianship or declined to make an award (22 per cent).

Joint custody was ordered in a greater proportion of the 2007 cases I reviewed (58 per cent) than in 2000 (41 per cent). When we add the joint guardianship awards (46 per cent of the 2000 and 37 per cent of the 2007 sole custody cases), the trend in B.C. points towards some form of joint parenting order in a clear majority of cases, despite the fact that litigation indicates some level of conflict. However, the majority of joint custody awards included designations of a primary parent, indicating that shared time is less frequently ordered.

The picture of joint custody on the west coast is complex, revealing strategic judicial use of the concepts of joint custody, joint guardianship, sole custody and sole guardianship, often in combination and often to try to deal with problematic facts such as inability to communicate.

Professor Susan Boyd teaches and researches family law at UBC Law. This project was funded by the Foundation for Legal Research.

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