This week the Court of Appeal had the opportunity to review and analyze a number of propositions related to the parenting of children, touching on s. 211 experts, parenting coordinators, final decision-making responsibility, and the Divorce Act’s principle of “maximum contact” with each parent. MFW v. MAH 2020 BCCA
Section 211 Assessors
In the context of a high-conflict custody case and a 26-day trial, the appeal court was asked to green-light the appellant father’s proposition that in the absence of any cross-examination of the s. 211 expert, the court was bound to accept the assessor’s recommendations. The appeal court rejected this notion citing recent decisions of their court which held that judges should not “abdicate” their roles in favour of an assessor’s recommendations. King v. Borserio 2018 BCCA 308.
The Court also declined to accept the father’s argument that a litigant who disagreed with an expert report was “obliged” to cross-examine the expert. The Court noted that the mother had considered issuing a subpoena to the assessor but upon learning of his fee to attend court, determined she could not afford to call him. The Court stated that litigants certainly had an “opportunity” to cross-examine an expert, but they were not obliged to do so .
Because the trial judge gave the mother final decision-making authority, the father appealed saying that the trial judge erred by “failing to comprehend the role of a parenting coordinator under the Family Law Act”. He asserted, citing FJV v. WKS 2019 BCCA 67, that the court should encourage decision-making by parenting coordinators in high-conflict cases, to avoid court applications.
The Court commented that the interplay between a court order and a parenting coordinator’s authority raised questions and uncertainties given the broad language of the Family Law Regulations. However, the Court could not identify any legal error and noted that the trial judge had appointed a parenting coordinator for a 12-month period, but also ordered that if the parties could not agree on a significant decision despite their best efforts the mother, as guardian, with the majority of parenting time would be entitled to make the decision.
Maximum Contact Principle
The trial judge ordered the children to spend more time with their mother than their father, leading the father to suggest that the trial judge ignored the maximum contact principle in s. 16 (10) of the Divorce Act. The Court refused to accede to this ground of appeal, but their analysis was short-sighted.
The Court suggested that the trial judge had relied on the Family Law Act in respect of the parenting orders saying, “It is therefore the FLA that governs…s. 16 (10) of the Divorce Act says that it applies to a court only when “making an order under this section”, when making a custody order under the federal statute…strictly speaking then the trial judge was not required to consider expressly the maximum contact principle in determining the best interests of the children.”
To their credit, however, the appeal court redeemed themselves, by quite properly adding: “I suspect that such an approach is inherent in a court’s determination of any custody or parenting arrangement.”
Lawdiva aka Georgialee Lang