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Lorne MacLean BC Divorce lawyer takes articled student Wormeli and soon to be articled student Macdonnell to BC Supreme
BC Parenting Coordination is a new area of family law which is not yet regulated in British Columbia. We are involved in a case where the role of a BC parenting coordinator needs to be properly defined as it seems contracts are being drafted that give far too much power to the Parenting Coordinators possibly without adequate safeguards.
Is it proper for a Parenting coordinator to Interview Children?
One thing we know as child custody lawyers is that obtaining factually accurate statements by young children can require specialized training. In fact, at paragraph 69 of Stefureak v. Chambers, [2004] O.J. No 4253, (Sp. Ct.) it was stated that, “[i]t is doubtful that very many judges, because of a lack of training in interviewing children, would agree to do so.†If Judges should be cautious then why wouldn’t the same reluctance to interview apply to a parenting coordinator?
Parenting Coordination in Canada
The Association of Family and Conciliation Courts notes that the Canadian experience with respect to PCs differs
substantially from the process as utilized in the United States.
First and foremost, the Canadian constitutional framework does not permit
judges to delegate to third parties any judicial or quasi-judicial functions. In essence,
this means that it is not possible for a judge to order the parties to attend and work
with a PC under any circumstances and, accordingly, it is also not possible for a judge to order parties to attend with a PC who has arbitral powers or any decision-making powers. That would be considered an improper delegation.
We are asking the court in our case to apply BC Law on the powers of Parenting coordinators:
21. Hunter v. Hunter, 2008 BCSC 403 (“Hunterâ€) was a case that discussed the constitutional impermissibility of using a parenting coordinator as an arbitrator without consent. The court stated:
10 I accept that the parens patriae jurisdiction of the court provides a broad authority to make orders where necessary to do so in the best interests of a child. The Supreme Court of Canada has described the jurisdiction as beyond definition in the sense that it is impossible to say what its limits are. Every case must depend on its own circumstances. See E. (Mrs.) v. Eve, [1986] 2 S.C.R. 388, at 411. Further, in Young v. Young, [1993] 4 S.C.R. 3, at 35, the Supreme Court traced the best interests test in custody cases back to the equitable parens patriae jurisdiction of the Courts of Chancery. Accordingly, even absent specific legislative authority, the court possesses the inherent jurisdiction under its parens patriae power to make orders in the best interests of the child. While I accept the existence of this broad power, it does not follow that the power is without limit.
11 For example, to what extent, if any, is the court permitted to delegate its responsibility to determine what is in the best interests of a child to an ADR process absent the agreement of the parties? A review of the literature filed on the application suggests that it is not constitutionally permissible to do so in Canada: see Appendix C of the Guidelines for Parenting Coordination document referred to above. Counsel before me did not address this question. (Emphasis added)
28 In the circumstances, the order that I propose to make will permit the coordinator to schedule meetings at which both parents must attend. If the meeting fails to result in an agreement, either party will continue to be entitled to apply to the court under paragraph 4 of the existing order. In other words, Dr. Burima will not have the power to impose solutions in the best interests of the children. This hopefully avoids any question of an improper delegation of judicial authority. (Emphasis added)
If you are thinking of a parenting coordinator make sure your lawyer doesn’t let you sign a standard contract as it likely contains clauses that are not appropriate for your case such as arbitration clauses that can lead you to hire an arbitration lawyer should you disagree with the ruling of the Parenting Coordinator.
