What happens if two parents or guardians, now separated, share decision-making authority over their child but cannot agree on what is the best decision for the child?

In situations where guardians reach an impasse, many believe that their only remedy to these issues is through the courts. While the courts can step in as needed, it is important to note that resolving family issues through the courts should be the last resort and that there are better options available to families navigating conflict.

A slew of recent BC court decisions shows that judges are declining to assist guardians in making parenting and childcare decisions, as well as declining to determine what specific arrangements are in the best interests of the child. Instead, these decisions illustrate a clear preference to have the parties try and resolve the matter themselves or with the assistance of an Alternative Dispute Resolution (“ADR”) professional, such as mediators, arbitrators, and parenting coordinators.

Recent changes to the Family Law Act focus on the best interest of the children, as always, but finds that ADR is consistently the best choice for child-centred decisions. Further, recent court decisions have held that parents should pursue one or more of the following ADR methods in order to reach effective outcomes that focus on the child’s best interests:

• Arbitration – This is a process that allows people to resolve their disputes out of court. To participate in this process, parties must first agree to be bound by the decision of one or more independent and impartial arbitrators. The arbitrators will also be agreed upon by the parties in advance of the process.
• Collaborative law – This process allows parents to reach decisions collaboratively with the help of legal counsel in a non-adversarial manner. Lawyers that are members of the Collaborative Divorce Vancouver Society are specially trained in mediation, negotiation, and collaborative law.
• Mediation – This process allows people involved in a dispute to meet and attempt to resolve their dispute out of court, by talking together with the help of a qualified mediator, with or without counsel being present. The process occurs in a private and informal setting. Unlike an arbitrator, a mediator cannot make binding decisions, and the dispute will only be resolved if all the parties agree to the proposed settlement.
• Parenting coordinators – In a family law proceeding, a court, or the parties with consent, may appoint a parenting coordinator to assist the parties with parenting matters. Parenting coordinators are qualified practitioners that have at least 10 years of experience in a family-related field and have completed comprehensive training in parenting co-ordination, mediation, family law, decision-making, skills development, and family violence. The role of the parenting coordinator is to help resolve disputes between parents out of court, and specifically, to help them carry out parenting agreements and court orders, including making binding determinations with respect to disputes over specified matters.

Overview of Recent BC Court Decisions Not to Interfere in Parenting

The recent trend of BC courts declining to interfere in parenting appears to have been sparked by the following decision:

• R.G. v. G.R.G., 2017 BCCA 407 (“N.R.G.”): In 2017, the BC Court of Appeal decided that courts could allocate parental responsibilities to guardians but should not step into the role of a guardian. Specifically, it stated:

On our reading of s. 41 [of the Family Law Act], decisions about activities, phone calls, electronic communications, attendance at school events, and other such daily aspects of children’s lives are within the meaning of “parental responsibilities”. The scheme thus envisages that only guardians may make such decisions (s. 40), although the court may order the allocation of those responsibilities to, and determine the means for resolving disputes between, the guardians as it deems appropriate (s. 45). One means for resolving disputes may be, for example, an order for a parenting coordinator (who is limited in the role he or she may play by ss. 17 and 18). Another means is an application by either guardian under s. 49 for directions. […] In the end, however, we consider that the Act expects parental responsibilities to be assigned to a guardian or guardians, or be guided by a parenting coordinator, rather than having the judge make the specific decisions at first instance. In other words, the Act does not contemplate that the details of parenting will be directed by the court; the legislation does not provide for the court to step into a guardian’s role. [emphasis added]

The Court of Appeal held that the lower court judge had wrongly assumed parenting responsibilities and had imposed certain terms that go beyond the role of judges under the Family Law Act. Moreover, the court agreed that the judge had not fully considered the best interests of the children, but instead focused on correcting the parents’ behaviours.

Following this decision, there has been a split in BC jurisprudence, with some courts interpreting the N.R.G. decision as holding that the court has no power to decide such parenting questions, while others instead understand it to mean that such power should be exercised judiciously. Some notable subsequent decisions are summarized below.

• White v. Schultz, 2021 BCSC 1835: The court, in this case, took a slightly different approach to a disagreement between parents as to where their eight-year-old daughter should go to school, given that the parties had already attempted to resolve the matter through the use of a parenting coordinator.

The court reviewed the N.R.G. decision and several other subsequent decisions, including those noted below, and stated: “After considering the various authorities, I am of the view that the N.R.G. decision does not prevent this court from making the type of direction sought in this application. However, the court should avoid usurping the role of the guardians, whose duty it is to make such decisions. As such, this power should only be exercised by the court if other means of redressing the dispute have failed.” (emphasis added)

Given that the parties had first pursued alternative dispute resolution mechanisms, it was “appropriate and necessary in the circumstances” for the court to give the parties direction regarding the choice of school, rather than delegating powers to one parent to make the decision.

• M.J.G. v. M.M.C., 2022 BCPC 3: We wrote about this decision in a previous article here. In summary, a mother wanted to travel to Jamaica with her child, but the father objected on the grounds that COVID-19 posed significant risks and refused to provide a travel consent letter. The mother applied to the court for an order approving her travel request, but the judge declined to either approve or deny the request. Instead, the judge advised the father that it was up to him whether he would provide the necessary travel consent letter or not. The court noted that the father should make the decision that is in the best interests of the child but did not provide further guidance to the parents.

In contrast to the White v. Schultz case noted above, there was no evidence that the parties had sought the help of a parenting coordinator or other alternative dispute resolution options to help them reach a decision in the best interests of the child before proceeding to court.

In Summary: What Does This Mean for Parents and Guardians?

What each of these cases suggest is that parents and guardians should attempt to resolve disagreements regarding parenting and childcare matters through use of alternative dispute resolution mechanisms before applying to court.

Each family is unique and uniquely tailored solutions are required in family disputes — but judges are not often well-positioned to craft such solutions. Instead, parenting coordinators and lawyers trained in collaborative law, mediation, and arbitration are best suited to help guardians come to holistic and practical solutions for their families.

The Family Law group at Clark Wilson is comprised of nine lawyers experienced in both litigation and alternative dispute resolution mechanisms. Our team includes certified family law mediators and arbitrators, as well as a certified parenting coordinator and collaborative law professional. Additionally, our Family Law practice maintains an extended network of alternative dispute resolution professionals outside of the firm, including other parenting coordinators and coaches, counsellors, qualified mental health professionals, arbitrators, and mediators. To learn more about how alternative dispute resolution supports pragmatic and long-lasting resolutions, please contact a member of our Family Law team.