15 May 2013

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.

3 comments:

  1. I have to say, JP, we readers would be sorely remiss if we did not note that which you did not. You call this the Melnick Model, but the fact is his lordship credits you personally with the reformulation. True, he did substitute "party" in place of "spouse", and added "child of the marriage" where you had indicated only "child" (which was smart to draw attention to the Divorce Act's language), but the Melnick Model could easily be called the Boyd Model... which is not bad for a guy without a QC to his name
    ;)
    For your readers who missed it, JP's blog post on Courthouse Libraries' blog The Stream was cited directly (a VERY rare thing for a blog).
    http://www.courthouselibrary.ca/training/stream/jpboyd/13-04-17/JP_Boyd_Adapting_Joyce_and_Horn_Models_for_Divorce_Act_and_FLA.aspx

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  2. Dear Mr. Boyd,

    In a situation where the parents live 8 hours apart, mom has guardianship, and Dad has chosen to avoid contact with child for extended periods of time (child is 2.5 years old) Dad is nowing applying for gaurdianship, and wants child with him 50/50. Is this something a judge would be ok with? Child doesnt even know Dad, and child has always lived with mom. Do you have any cases you could direct me to in order to support mom's situation? Dad can afford a lawyer, mom cannot and has been refused legal aid 3 times. The mother needs help

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    Replies
    1. All the judge cares about when it comes to making decisions about children is what is in their best interests. It would be bizarre, to say the least, if a parent who voluntarily absented himself from his child's life could just waltz back in a few years later and demand a shared parenting arrangement.

      I cannot provide you with legal advice. However, you can get a pretty good overview of how the court addresses guardianship and parenting arrangements under the Family Law Act from my wikibook here:

      http://wiki.clicklaw.bc.ca/index.php/Guardianship,_Parenting_Arrangements_and_Contact

      You should get some legal advice about your situation as soon as you can. You can see a lawyer for free through Access Pro Bono, or you can half an hour of a lawyer's time for $25 through the Lawyer Referral Service.

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