The Masuhara Model of Shared Parental Responsibilities

In his recently released judgment in Van Kooten v. More, Mr. Justice Masuhara of the British Columbia Supreme Court has made an order distributing parental responsibilities between guardians under the Family Law Act that may find use as a model for future orders and agreements on the subject:

The guardians will exercise all parental responsibilities with respect to the child on the following terms: 

1. in the event of the death of a guardian, the surviving guardian(s) will be the only guardian(s) of the child; 

2. each guardian will have the obligation to advise the other guardian(s) of any matters of a significant nature affecting the child; 

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

4. the guardians 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 guardians cannot reach agreement on a significant decision despite their best efforts, Mr. More will be entitled to make those decisions and the other guardian(s) will have the right to apply for directions on any decision the guardian(s) consider(s) contrary to the best interests of the child, under s. 49 of the Family Law Act;

6. each guardian 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 care givers; and,

7. the guardians will maintain a common exchange journal which is to be exchanged when the child is transferred to the other [guardian(s)], and each guardian is to record on a daily basis while the child is in its care matters relating to the child including

a) school (such as events, key dates, report cards, newsletters, outings, assignments, home reading, parent/teacher meetings and homework),

b) health (observations of the child, child’s complaints, doctors' appointments, dental appointments, medications, injuries and diet),

c) social (invitations, activities taken and family events),

d) extracurricular activities (registration, schedules, equipment and events),

e) clothing,

f) key contact information for doctors, dentists, daycare and sitters, and [guardians'] emergency contact numbers, and

g) any other matter relating to the care of the child.

This order clearly draws its inspiration from the popular the Joyce model of joint guardianship under the former Family Relations Act, and includes special provisions governing communication between guardians about important events in the child's life.

See my post "The Crawford Model of Shared Parental Responsibilities" for a discussion of the sharing of parental responsibilities required in the case of G.P. v. M.J.R.P., and my blog post "Adapting Joyce and Horn Models for Divorce Act and FLA" on the Courthouse Libraries BC website for other potential models.

My thanks to my colleague Thomas Wallwork for bringing this helpful new decision 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.

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.