After six years of litigation the parties reached a final settlement of all issues related to the parenting of their three children. With a 10-week trial scheduled for late January 2019, the parties brought their consent order to the trial judge on January 7, 2019 expecting to speak to the order, have it approved by the judge, and adjourn their trial. However, that is not what happened.
The judge declined to approve the consent order, finding that it was not in the best interests of the children, because the parties had not agreed on a counselor for the children, but did agree that their parenting coordinator could select a counselor after receiving submissions from the parties. The judge commented:
“I can tell you I’m not going to sign this order because I don’t think in the circumstances of this case at this moment it serves the best interests of the children. And so I would encourage the parties to resolve the name of the — the name or names of the counsellor or child psychologists and then I’ll sign it.”
The judge also advised counsel that several recent cases did not support the order sought by their clients. Subsequent to the January 7 hearing he sent a memorandum to counsel requesting their submissions with regards to Fleetwood v. Percival 2014 BCCA 502; NRG v. GRG 2017 BCCA 407; and LCT v. RK 2018 BCSC 1016, with respect to the scope of delegation to parenting coordinators.
Counsel reappeared before the judge on January 11, 2019, however, the respondent mother now wanted to proceed with the trial, while the claimant father submitted he would be pursuing a declaration of settlement based on the consent order endorsed by both counsel. At this hearing the judge also stated that based on NRG v. GRG, supra, he did not have the authority to appoint a counselor for the children.
On January 14, 2019 counsel for the father filed a Notice of Appeal of the judge’s order dismissing the consent order, and sought an expedited appeal pursuant to the Court of Appeal Practice Directive dated December 12, 2011. With the trial now seven days away, the father brought an adjournment application to the trial judge, which was argued on the first and second days of the trial.
On January 22, 2019 the judge granted the adjournment application which provided that the appellant father’s factum, appeal books, and transcripts must be filed on January 25, 2019 and that if the appeal was not successful the trial would commence on February 19, 2019.
The Court of Appeal heard and unanimously allowed the appeal on February 12, 2019, with oral reasons from Mr. Justice Tysoe. He discussed several preliminary issues. The first was his confirmation that the judge’s decision not to approve the consent order was a final order appealable pursuant to s. 6 of the Court of Appeal Act.
The second was his observation that the parties appeared in chambers with their consent order without filing a Notice of Application, a practice not to be encouraged, however, the actions of the parties amounted to a waiver of the requirements of the filing and service of a notice of application and for a joint oral application for an order in the form of the consent order.
Finally, given the expedited appeal, the chambers judge had not yet signed his order dismissing the oral application to approve the consent order, although the judge had reviewed the draft orders submitted by each counsel and drafted his own form of order. The court referred to its “normal policy” of declining to hear an appeal in the absence of an entered order but based on the transcripts from the January 7 and 11, 2019 hearings before him, were satisfied that he had dismissed the parties’ joint application to enter the consent order.
The Court held that the chambers judge made two errors when he refused to approve the consent order. While it would have been preferable for the parties to agree on a counselor, the judge erred when he failed to consider whether the consent order was nevertheless in the children’s best interests given that the parties could not agree and the alternative was a 10-week trial:
“ In my view, it was in the best interests of the children to have their parents avoid a ten-week trial over parenting issues: see Stonier v. Stonier, 2004 BCCA 307 at para. 31. Children are generally adversely affected by continuing conflict between their parents, and tensions are usually increased during a trial. As well, counsel for the respondent explained to the judge on January 7 that the trial was going to be costly and that the respondent had to make a decision whether she was going to be able to afford to raise the children.”
The second error was his failure to give sufficient weight to the effect of the selection by the parenting coordinator because he mistakenly believed that the parenting coordinator’s input would be a recommendation only, which could lead to further litigation, instead of allowing the parties to rely on the dispute resolution mechanisms available in the Family Law Act, in order to avoid a lengthy, fractious trial.
The Court referred to the provisions regarding parenting coordinators in the Family Law Act, s. 17 and 18; and in the Regulation to the Family Law Act including s. 6(3) and 6(4), finding that the selection of a counselor fell within s. 6(4) (a)(ix) and that the court should encourage decision-making by parenting coordinators in high-conflict cases to fulfill the mandate of avoiding court intervention in favour of alternate dispute resolution.
The Court also distinguished the case of HCF v. DTF 2018 BCSC 2411, relied on the by respondent mother, which was handed down in late December 2018, where the court held that a parenting coordinator did not have the ability to choose an appropriate therapy regime for a child, noting that in the case at bar the therapy had been determined, leaving only the choice of a counselor to the parenting coordinator.
Finally, the court reviewed the three cases referenced by the chambers judge, holding that none of them were of assistance in determining the principles arising from the appeal.