The Melnick Model of Joint Custody

Regular readers and those who have had the misfortune of attending my presentations on the new Family Law Act will recall some of my concerns about how the provisions of the new provincial legislation with respect to the care of children will interact with provisions of the federal Divorce Act for custody and guardianship. Just such an issue arose in the recent Supreme Court case of C.K.B.M. v. G.M. 

In this case, Mr. Justice Melnick was asked to vary an order for custody and guardianship made before the introduction of the Family Law Act. The applicant applied to have sole custody and maintain joint guardianship but with joint guardianship being defined following the former Joyce model, so as to give her final decision-making authority in the event that she and the respondent were unable to reach an agreement on any important matters involving the child. As His Lordship summarized the dispute:

"[The applicant's] principal concern is what she alleges to be the parties' inability to agree on a course of diagnosis and treatment for their nine-year-old child's medical or behavioural condition which, according to the claimant, is attention deficit hyperactivity disorder, but which, according to the respondent, is probably not ADHD and may be related to anxiety or depression. The claimant wishes to have the child undergo a spectrum of tests and, if recommended, treatment which may include the use of medication. The respondent is philosophically opposed to treatments involving medication. He has refused to sign a consent form for the child to be examined and potentially treated at [a hospital]. The respondent says that the child should more properly be treated with cognitive behavioural therapy by a practitioner the respondent has identified.Thus the standoff."

The first stumbling block was that the order did not specify whether the order for custody was made under the Divorce Act or the Family Relations Act, and the original claim had been advanced under both acts. Applying the reasoning of the Court of Appeal in the 2012 case of Yu v. Jordan, Mr. Justice Melnick concluded that in the absence of any indication as to the legislation under which the order had been made, the doctrine of paramountcy required the court to assume that the order had been made under the superior federal legislation.

Having concluded that the custody order was a Divorce Act order, the question then became whether it would be appropriate to grant sole custody to the applicant or somehow vary the order for joint custody to give the applicant the control over the child's health care she sought. Mr. Justice Melnick chose the latter approach.

"I conclude that this is a case where agreement between the parties on many issues respecting their child is still possible even though, at times, agreement is reached in a manner no doubt more frustrating for the claimant than it should be. Nevertheless, the respondent's recent intransigence in coming to agreements respecting the well-being of the child has now developed to the point of being a material change in circumstances allowing variation of the final order under the Divorce Act."

His Lordship then made an order for joint custody, adapting the Joyce model for application under the Divorce Act as follows:

The parties will have joint custody of the child of the marriage on the following terms:

1. in the event of the death of a party, the surviving party will have sole custody of the child; 

2. each party will have the obligation to advise the other party of any matters of a significant nature affecting the child; 

3. each party will have the obligation to discuss with the other party any-significant decisions that have to be made concerning the child, including significant decisions about the health (except emergency decisions), education, religious instruction and general welfare of the child; 

4. the parties will have the obligation to discuss significant decisions with each other and the obligation to try to reach agreement on those decisions; 

5. in the event that the parties cannot reach agreement on a significant decision despite their best efforts, the party with the primary residence of the child will be entitled to make those decisions and the other party will have the right to apply for an order respecting any decision the party considers contrary to the best interests of the child, under s. 16(1) of the Divorce Act; and 

6. each party will have the right to obtain information concerning the child directly from third parties, including but not limited to teachers, counsellors, medical professionals, and third-party caregivers.

My thanks to my friends and colleagues Morag McLeod, Agnes Huang and Angiola-Patrizia DeStefanis for bringing this interesting and extremely well-reasoned case to my attention.

Court Deals with Difficult Issue of Interim Orders for Access

In the recently released Provincial Court case of J.C.P v. J.B., the court addressed one of the most challenging problems arising from the transition from the Family Relations Act to the Family Law Act: what do you do when an interim order gives someone access without addressing custody or guardianship? The problem comes from s. 251 of the Family Law Act, which says this:

(1) If an agreement or order, made before the coming into force of this section, provides a party with

(a) custody or guardianship of a child, the party is a guardian of the child under this Act and has parental responsibilities and parenting time with respect to the child under this Act, or 

(b) access to, but not custody or guardianship of, a child, the party has contact with the child under this Act.

(2) For the purposes of subsection (1), a party's parental responsibilities, parenting time or contact with a child under this Act are as described in the agreement or order respecting custody, guardianship and access.

The purpose of this section is to help people apply orders and agreements made under the old act using the language and concepts required by the new act. In a nutshell, if you have custody or guardianship or both as a result of an agreement or order made under the old act, you are a guardian under the new act and have parental responsibilities and parenting time. If you have neither custody nor guardianship, you are not a guardian and have contact with a child. 

This section is very important because if you only have contact, you're not the guardian of a child and you don't have the right to participate in making decisions about how your child is raised, such as about where the child goes to school, how the child is cared for when sick, which activities the child participates in, where the child lives and with whom the child associates, and, most importantly, whether the child moves out of town or not. Ouch.

However, it often happened that when a court proceeding started, the court would only make orders about access under the Family Relations Act, and not deal with the sticky, sometimes explosive, issues of custody or guardianship. A simple interim order for access alone might be made:

• where the children had been withheld and the other parent's most immediate goal was simply to start seeing the kids again;
• where the conflict between the parties would be ignited by an argument on the flashpoint issues of custody and guardianship; or,
• where there's not enough evidence in front of the judge to allow him or her to make an informed decision of the issue.

That made lots of sense under the Family Relations Act. However, under the Family Law Act, a plain reading of s. 251(1)(b) would say that the only order made was for access, and therefore the parent with access was not a guardian and therefore not entitled to parental responsibilities or parenting time. This would have been a horrible result, as it would, in many cases, deprive someone who would normally be a guardian of an incredibly important role in a child's life, all because of the very expedient approach that was normally taken under the old law.

This problem is precisely what Judge Merrick was required to address in J.C.P. v. J.B. The father had obtained an order for interim access alone under the Family Relations Act, and when the matter came back before the court under the Family Law Act, the lawyer for the mother took the position that the father wasn't a guardian as a result of s. 251(1)(b). The father, quite reasonably, said that as he'd lived with the mother after the child's birth, he was a guardian because of the presumptions set out in s. 39 of the act — that's the part that says that the parents of a child are the guardians of a child while they are living together and after they separate.

However, Judge Merrick began his analysis not with s. 251 of the Family Law Act but with ss. 35 and 36 of the Interpretation Act — these are the parts that talk about how rights and entitlements under old laws are to be interpreted and applied under new laws. As a result, what became important was whether the father had any rights other than access under the old law. Here is how Judge Merrick solved the riddle, with the important bits in bold:

[9] The question, in my view, is before the repeal of the Family Relations Act, did [the father] Mr. P. have a substantive right; that is, did he have any guardianship rights with respect to the person of [the child] S.? If he did, was the right vested and, if it was, does the Family Law Act manifest an intention, either expressly or by implication, to take that right away? 

[10] There is no issue that for at least the last year, [the mother] Ms. B. has had the usual care and control of S. and, therefore, she was the sole guardian of the person of S., unless the court ordered otherwise. See s. 27 of the Family Relations Act. 

[11] I have concluded that my order of September 25, 2012, paragraph 4, that provides, "Both parties shall advise the other party promptly of any medical, alternative medical, or dental appointments or treatments of the child" vested limited guardianship rights to Mr. P. 

[12] Counsel for Ms. B. submitted that since the orders made so far only granted Mr. P. access and not custody or guardianship, pursuant to the provisions of s. 251, Mr. P. is not a guardian and he only has contact with S. 

[13] Read literally, s. 251 would seem to suggest that. 

[14] However, the court in this case so far has not ruled on the issues of custody and guardianship, except to the extent that limited guardianship rights were granted to Mr. P. in the September 25, 2012, order. To be clear, there has not been an interim hearing to decide issues of custody and guardianship. 

[15] Applying a purposive approach to the legislation, I am of the view that the purpose of s. 251 of the Family Law Act, as stated earlier, is really to translate terms from the old legislation to the new legislation. I have concluded it is not to be used to determine issues previously not adjudicated upon that are in issue. 

[16] Accordingly, given my determination that Mr. P. had been granted limited guardianship rights in the order of September 25, 2012, and my determination of the meaning of s. 251 of the Family Law Act, I have concluded that for the purposes of the Family Law Act, Mr. P. is a guardian of S.

I am very glad to and have this important decision on the books, in particular, the court's reading of s. 251 as translating old orders rather than determining claims that had never been before the court and therefore never been considered by a judge.

My thanks to my colleague, the most excellent Edna Ritchie, for bringing this case to my attention.

The Crawford Model of Shared Parental Responsibilities

In a recently-released decision, Mr. Justice Crawford of the Supreme Court appears to have crafted the first model guardianship order under the new Family Law Act. In the case of G.P. v. M.J.R.P., a rather toxic case featuring a mother described as "an outgoing, volatile, aggressive and sometimes bellicose character," the court was asked to change a Family Relations Act order which gave custody to the father and joint guardianship, on the Joyce model, to both parties.

Mr. Justice Crawford observed that both parties were now the guardians of the child as a result of the transitional provisions of the Family Law Act at s. 251, and that the new act focuses on "the parents' 'parenting'." The mother's parenting capacity having improved, but the conflict between the parties persisting, His Lordship directed an approach to parental responsibilities allocating some to the father alone and adopting a modified version of the Joyce model with respect to the others, and required the parties to use this form of order (terms specific to the parties removed):

UPON THE COURT being advised that the name and birth date of each child is as follows:

Name, born on date, and
Name, born on date 

(the "Child(ren)") 

AND UPON being satisfied that name of party and name of party are the guardians (the "Guardians") of the Child(ren) under s. 39(1)/s. 39(3) of the Family Law Act; 

THIS COURT ORDERS THAT: 

1. Party shall have primary responsibility for parental responsibility and shall terms of primary responsibility, such as a requirement to consult the other party or to advise the other party. 

2. Both Guardians may request and receive from third parties health, education or other information respecting the Children. 

3. During a Guardian’s parenting time, that Guardian may exercise the parental responsibility of making day-to-day decisions affecting the Child(ren) provided however that such Guardian must advise the other Guardian(s) of any matters of a significant nature affecting the Child(ren) occurring during his/her parenting time. 

4. Each Guardian will consult the other Guardian(s) about any important decisions that must be made in respect of the Child(ren) and will try to reach agreement concerning these important decisions. 

5. In the event the Guardians cannot reach agreement with respect to any major decision despite their best efforts, party will have final decision-making power, provided however that the other Guardian(s) may seek mediation or, under s. 49 of the Family Law Act, seek a review of any such decision if he/she believes that such decision is contrary to the best interests of the Child(ren).

To break this down somewhat, the highlights of this model are:

1. a declaration that each party is a guardian of the children;
2. an order allowing each party to obtain information about the children from third parties;
3. an order confirming the parties' right to make day-to-day decisions about the children during their parenting time, as is provided by s. 42(2) of the act;
4. an order imposing a reciprocal obligation to attempt to reach an agreement on decisions; and,
5. an order giving one party decision-making authority in the event of an impasse, while allowing the other party to right to either compel a course of mediation or apply to court for directions on the decision.

The declaration about the parties' status as guardians is particularly important as, in my view, such declarations are the only practical way to let doctors, teachers and border guards know that a particular individual is the guardian of a child when he or she is not appointed by court order.

I have provided templates for the Joyce and Horn models of guardianship adapted for joint custody under the Divorce Act and shared parental responsibilities under the Family Law Act in the blog of Courthouse Libraries BC.

My thanks to my friend and colleague Agnes Huang for letting me know about this interesting decision.

Backbencher's Bill on Grandparental Rights Tabled in Ontario

The Globe & Mail has reported on a bill tabled by Liberal MPP Kim Craitor and NDP MPP Cheri DiNovo in the Ontario legislative assembly. The bill would amend the Children's Law Reform Act, a law dealing with the consequences of separation like our Family Law Act but limited to matters concerning children, to allow for "the formation or the continuation of a personal relationship between a grandparent and a grandchild."

The Globe article describes Craitor as saying that grandparents' access to their children can be cut off "when children are used as pawns in a nasty divorce," and provides the following rather melodramatic quotes:

"Far too often what I have seen is that when a couple separates or gets a divorce ... sadly what happens is the relationship between the grandparent and the grandchild diminishes." 

"If you can imagine, a grandparent is no longer allowed to see their grandchild. It's just a horrible thing." 

"I could spend 30 hours telling you all the stories that I've heard and you'd probably shed a lot of tears when you hear from grandparents who've been denied access to their grandchildren." 

"[Grandparents are] more than just relatives. They can provide guidance, they can provide security that the children lack sometimes at home, they provide support, stability a sense of self to the children seeking love and understanding."

Our Family Law Act, like the Family Relations Act before it, says that grandparents can apply for contact (or even guardianship) but provides them no privileged status over other extended family members or even unrelated strangers, and the courts have approached the issue from the perspective that the people with the primary entitlement to time with a child are the child's parents.

Frankly, I'm not sure that this isn't appropriate. I do recognize that grandparents have a special role in a child's life, but the legislation that is designed to guide parents and the courts in handling family breakdown is complicated enough. Family law disputes are quite complex and take an enormous amount of time to resolve as it is; do we really need to add four more parties to the dispute between a child's parents? I have no issue with statements recognizing the special value of relationships between grandparents and grandchildren, but if the new bill proposes to give grandparents a particular standing in the legal dispute between separated parents, I cannot see how the extension of conflict and cost could possibly be in the best interests of the children.

Family Law Act Commentary Available

Courthouse Libraries BC has published two articles of mine on the new Family Law Act that may be useful for those in search of additional resources and commetary on the act.

The first, "Varying orders and setting aside agreements under the FLA," is a chart of the tests prescribed by the act to change orders and set aside agreements. The applicable tests differ depending on the subject matter and whether you're talking about an order or an agreement.

The second, "Adapting Joyce and Horn Models for Divorce Act and FLA," suggests some ways that the Joyce and Horn Models of guardianship, models that were commonly used to define the rights and responsibilities involved in joint guardianship under the old Family Relations Act, might be salvaged to define joint custody under the Divorce Act and the sharing of parental responsibilities among guardians under the Family Law Act.

In addition, the page Family Law Act Basics in my new wiki, JP Boyd on Family Law, has a complete plain-language breakdown of the new act.

Consolidated Rules and Forms Now Available

The Queen's Printer has almost finished assembling versions of the Supreme Court Family Rules and the Provincial Court Family Rules which consolidate the existing rules and forms with the series of amendments that came into effect with the Family Law Act. The Supreme Court forms are still missing Form F101, the affidavit required for applications for appointment as the guardian of a child.

A list of additional electronic resources is available in my post "Family Law Act Online Resources".

BC Family Law Resource Relaunched as Wiki with Courthouse Libraries

I am very excited to announce that today Courthouse Libraries BC has relaunched my former website, JP Boyd's BC Family Law Resource, under their Clicklaw Wiki banner as JP Boyd on Family Law. This new wiki is completely up to date for the Family Law Act and the amended rules of the Provincial Court and the Supreme Court.

BC Family Law Resource

In early 2001 I got the bright idea of setting up a public legal education website that would provide a stem-to-stern overview of family law, written in plain language that would be accessible to as many British Columbians as possible. This was long before the Ministry of Justice had put together its brilliant website on family justice and five or six years before the Legal Services Society released its excellent Family Law in British Columbia website.

After months of writing and coding webpages by hand — using the high technology of Microsoft's WordPad no less! — I hit the "send" key in November, and my idea was up and running as JP Boyd's BC Family Law Resource at www.bcfamilylawresource.com.

As time passed, I added more and more pages and more and more features, such as editable templates for common court forms as well as examples of what the forms looked like when finished, child support and spousal support calculators, a table of cases mentioned in the website, an alphabetical index, a glossary of eight- or nine-hundred legal words and phrases, a list of websites run by British Columbia family law lawyers and law firms, an internal search engine powered by Google and more.

As my website grew, so did traffic. Over the past year, traffic has regularly peaked at over 1,000 unique sessions per day during the work week and a total of more than 27,000 sessions per month. Taking my annual expenses and this volume of traffic, plus the traffic to my blog, into account, I figure my costs are around six ten-thousandths of a cent per visitor.

The New Family Law Act

Needless to say, the enactment of the Family Law Act in 2011, though undoubtedly a very, very good thing for most British Columbians, became the source of much soul-searching for me. Not only was I aghast by the prospect of retooling the 58 primary pages and 15 or so subsidiary pages in my website, some of which are really quite lengthy, I began to be concerned about how my website would survive in the event I was hit by a bus, left practice or lost the energy to maintain the website for some other reason altogether.

Courthouse Libraries BC to the rescue!

JP Boyd on Family Law

I've had very a cordial working relationship with Courthouse Libraries for a number of years now and have collaborated with them on a number of training programs for lawyers, public librarians and the general public, working with wonderful people like Janet Freeman (the LawMatters program coordinator), Nate Russell (a legal community liaison), Meghan Maddigan (a legal community liaison) and Drew Jackson (the redoubtable director of client services). One of them, likely Nate or Drew, had the masochistic idea of converting my website to a wiki platform — the rather robust and user-friendly platform that makes Wikipedia work — under the Courthouse Libraries banner.

After some thought, I realized that the proposal was brilliant. It would give me the comfort of knowing that my website would survive any career changes or a cataclysmic loss of enthusiasm; it would expand the pool of people contributing to the website beyond myself, and perhaps create a sense of community ownership; and, the content I had created would be significantly enriched with the input of people with different voices and different opinions. Even better, the wiki platform included a nifty book mode that would allow readers and libraries to make a print copy of all or part of the wiki in a smartly-designed, user-friendly book format. How cool is that? I accepted their proposal and Nate and Drew went to work.

Over the past year or so, Courthouse Libraries has worked to collect the funding needed to buy a new server and the software to go with it, and hire the graphic designers and copy editors needed to take my amateurish efforts to a more polished level. An advisory committee composed of Megan Ellis QC, a senior and well-respected family law lawyer, and representatives from the British Columbia Library Association, the Legal Services Society and Courthouse Libraries was established in late 2012, and has provided invaluable guidance for the transition. More recently, Megan has begun to assemble a stellar editorial team of experienced family law lawyers and family law lawyers new to practice to nurture and grow the wiki into the future.

Thanks

I am extremely grateful for the expertise and time devoted to this project by Megan, Nate and Drew, and the not insignificant resources that Courthouse Libraries has allocated to establishing the new wiki. I am also humbled that the content of my former website, www.bcfamilylawresource.com, could possibly have been worthy of such attention and care.

I would like to extend my most sincere thanks to everyone involved, and in particular to Nate and Drew for their patience, energy and professionalism and dedication to this project. Thank you.

Get Involved!

If you're interested in contributing as as writer, commentator or as a member of the editorial team please contact Courthouse Libraries at:

1.800.665.2570
editor@clicklaw.bc.ca