31 March 2014

Supreme Court Releases Another Helpful Decision on the Paramountcy Problem

On 27 March 2014, I wrote about the case of B.D.M. v A.E.M. on issue of the whether the Divorce Act, as federal legislation, automatically prevents the application of the provincial Family Law Act in cases involving married spouses seeking a divorce. The Supreme Court of British Columbia has just released its decision in J.M.P. v D.R.B. which addresses the same issue, with an admirable economy of language, and reaches the same result. For an overlong discussion of this issue, see my post "Supreme Court Releases Important Decision on Paramountcy Problem between Divorce Act and Family Law Act."

In J.M.P., the mother asked for an order for sole custody under the Divorce Act, as well as "an allocation of parenting responsibilities and parenting time" under the Family Law Act. The court summarized this peculiar position thusly:
"[33] Counsel for J.M.P. submits that any form of joint parenting is not possible ... because, in her submission, the parties lack the ability to discuss matters in a reasonable, amicable way. In her submission, the evidence shows that D.R.B. simply seeks to impose his will on J.M.P. in the event she disagrees with him about any aspect of parenting. 
"[34] The claimant seeks an order of sole custody pursuant to the Divorce Act. Counsel for the claimant concedes that D.R.B. should remain a guardian of the children under the FLA, but submits that, in terms of parenting responsibilities, J.M.P. should have the right to make the decisions. She says that it would be reasonable to require J.M.P. to inform D.R.B. with regard to major decisions affecting the children in order that he might have the opportunity to bring an application to court to challenge the decision in the event he considered she was acting contrary to the best interests of the children. She submits, however, that there is no effective, affordable mechanism that could be put in place to resolve disputes in some other way, such as a parenting coordinator or arbitration."
The father took the position that no custody order was necessary and that all orders necessary to see to the parenting of the children could be made under the Family Law Act:
"[39] D.R.B. seeks an order that would provide for parallel parenting, whereby; each parent would be responsible for making daily decisions during their parenting time; the parents would have to attempt to reach agreement on major decisions; and, failing agreement, the parties attend a mediator, with a court application being a last resort."
In attempting to square this circle, the court observed that:
"[88] Whether it is made under the Divorce Act or the FLA, a parenting order must be made only in accordance with the best interests of the children. ..."
After reciting the key provisions of the two acts on the best interests test, without further elaboration on the law, the court reached this conclusion (important bits in bold):
"[100] I agree with the submission of D.R.B. ... that the parenting arrangement can be defined quite adequately by making orders under the FLA and that there is no need to resort to the Divorce Act. There is no dispute that D.R.B. is to remain a joint guardian of the children under the FLA. The parenting time and the parenting responsibilities can be allocated under the FLA without the need to resort to the awarding of 'custody' per se under the Divorce Act. What is important, in my view, is that the order be precise, unambiguous and as complete as possible in the allocation of parenting rights and responsibilities, including parenting time."
Although I have some doubt about this approach to the resolution of parenting claims in a final order — a similar approach was appropriately taken to the Divorce Act in an interim application in D.Q.L. v W.D.H. — I certainly agree with the result. Guardianship is, after all, a larger, more comprehensive legal concept than custody.

My thanks to my colleague Anna Laing for pointing out this interesting decision.