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BC PARENTING COORDINATION and COORDINATOR UPDATE

Wednesday, July 28th, 2010

Shelagh Kinney Family Mediator Vancouver and Fort St John BC

BC Parenting Coordination in British Columbia child custody cases is an emerging alternative BC family law dispute resolution process in which a BC lawyer or British Columbia mental health professional with BC mediation training and experience assists BC parents to implement their parenting plan by facilitating the resolution of their disputes in a timely manner, educating parents about children’s needs and, with prior approval of the parties and/or the court, making decisions within the scope of the court order or appointment contract.

BC Parenting coordination may be of assistance in “high conflict” cases dealing with BC child custody related issues where parents have demonstrated a chronic inability to resolve conflicts about the children and bring frequent contested court applications regarding BC parenting issues.

Parenting coordination is not therapy or counseling for any family member, nor a formal custody evaluation or assessment. Although the Parenting Coordinator (“PC”) may act as a mediator to try to assist the parents to reach agreement on issues, parenting coordination is not only mediation as the PC will also have the ability to make certain decisions if the parties do not agree. The PC is appointed for a defined term, and the fees for the PCs services will be allocated between the parents by agreement or order.

Some examples of parental disputes settled by a PC include:

1. parenting time schedules, including regular access, holidays and vacations, temporary variations for special events, travel and passport arrangements;

2. a child’s recreational activities;

3. education (tutoring, summer school, school choice) or daycare;

4. health care (medical/dental);

5. child rearing issues ( bedtimes, alterations of the child’s appearance such as haircuts and piercings);

6. sharing of special or extraordinary expenses for the children; and

7. forms of communications between parents, including monitoring of emails and other correspondence by the PC if these have been an issue.

Parenting coordination is relatively new in British Columbia. In the United States, several states have statutes authorizing the appointment of PCs, including Oregon, California, Texas, and, most recently, Florida. Although there is currently no statutory authority in British Columbia governing parenting coordination, there have been several reported cases in which PCs have been appointed by a Judge of the Supreme Court of British Columbia.

For the past few years, a group of British Columbia family law lawyers and mental health professionals have been working towards establishing parenting coordination as a new legal mechanism in BC to deal with the unique issues facing high-conflict parents, including providing a roster of PCs under the BC Parenting Coordinators Roster Society.

Lorne MacLean recently defined the rules in BC Supreme Court that should apply to the terms of a parenting coordination contract and you should be aware of what the parenting coordinator can and cannot do.

If you have any questions on Parenting Coordination please call Shelagh Kinney, family mediator of our offices at 604-602-9000 who has taken the Parenting Coordinator training and courses related to this area from Joan Kelly as well as arbitration training.

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New BC Family Relations Act Reform 2010 BC Family Law White Paper-Lorne N. MacLean interviewed on CKNW AM 980 on the Proposed BC Family Law Act

Monday, July 19th, 2010

New BC Family Law changes- BC Family Relations Act Reform 2010 and the BC Family Law Act White Paper provides dramatic BC Family Law reforms to BC spousal support, BC family property division, BC common law property division, BC child custody-Lorne N. MacLean will be interviewed on the BC Family Relations Act Reform Law , tonight at 5:30PM on CKNW AM 980. Mr. MacLean will be talking about important new changes to the Family Relations Act. The new act will be called the Family Law Act and the deadline for written input/comment on the white paper will be October 8, 2010. Some of the proposed changes to Family Relations Act reflect issues that Mr. MacLean has addressed before the Supreme Court of Canada in Young v. Young [1993] 4 S.C.R. 3 and in the Leskun v. Leskun [2006] 1 S.C.R. 920 decision. Some of the proposed changes will address the property rights of married and common-law couples; guardianship of children and decision-making about children; the enforcement of access orders; mobility and relocation issues; spousal support; and, parenting coordination, arbitration and mediation. Below is the executive summary, for the report click here.

New Family Relations Act Reform 2010 Changes Coming


White Paper on Family Relations Act Reform 2010 EXECUTIVE SUMMARY

British Columbia’s Family Relations Act has not been comprehensively reviewed since its introduction in the late 1970s. Since 2006, the British Columbia Ministry of Attorney General has been researching and consulting on how best to modernize this important area of the law. The draft legislation discussed in this white paper reflects the results of its policy review.

The main features of the proposed new family statute are:

TOPIC RECOMMENDED POLICY
Overall Approach Promote co-operation to the extent possible. For example:
• Structure the law so that court is not the only implied starting point.
• Promote a broader range of non-court dispute resolution options.
• Adopt a conflict prevention approach to family law disputes.
• Increase the law’s ability to deal with family violence and safety issues.
• Use less adversarial terminology.
• Meet the overall goals of the Family Relations Act review.

Non-Court Dispute Resolution and Agreements

Promote non-court dispute resolution. For example:
• Require family justice professionals to provide early information to clients on dispute resolution options.
Enable parenting coordination by agreement or court order.
• Amend the Commercial Arbitration Act to address family arbitrations.
• Provide for regulation-making authority to define practice standards/qualifications for family dispute resolution practitioners, as and if required.

Encourage agreements by providing greater clarity regarding when and how an agreement may be set aside:
• Parenting agreements may be set aside if they are not in the best interests of the child.
• Child support agreements may be set aside if they fail to comply with the Federal Child Support Guidelines.
• All agreements may be set aside for lack of procedural fairness, such as significant failure to disclose or where one party has taken unfair advantage of the other.
• Property and support agreements can be set aside for non-procedural reasons in limited circumstances where it would be clearly unfair.

Legal Parentage
Include a comprehensive scheme to determine a child’s legal parents, including in situations where reproductive technology has been used.

Children’s Best Interests

Make children’s best interests the only consideration in parenting disputes and identify children’s safety as an overarching objective of the best interests of the child test.
Add further best interests’ factors, including the history of the child’s care, family violence, and consideration of civil or criminal proceedings relevant to the safety or well-being of the child.
Provide for consideration of a child’s views “unless it would be inappropriate” to encourage greater inclusion of children’s views.
Guardianship Enact reforms to the Act’s treatment of guardianship, including the following:
• Replace the terms “custody” and “access” with “guardianship” and “parenting time”.
• Define “guardianship” through a list of “parental responsibilities” that can be allocated to allow for more customized parenting arrangements.

Provide that parents retain responsibility for their children upon separation if they have lived together with the child after the child’s birth. (Note: this does not mean that the law presumes an automatic 50-50 split of parental responsibilities or parenting time.) If they have not, the parent with whom the child lives is the guardian.
• Consolidate guardianship of children into the new law by including testamentary and standby guardianship.

When Orders or Agreements for Time with a Child are not Respected

Include a new range of tools and remedies to address non-compliance with orders and agreements for time with a child:
• Remedies range from moderate to extraordinary remedies depending on the facts of the situation and history of non-compliance.
• Provide different remedies for failure to allow parenting time/contact and failure to exercise parenting time/contact.

Relocation

Introduce a relocation regime that aims to increase certainty and predictability of the law of relocation, the highlights of which are:
• Include a mandatory 60-day notice-of-move provision, to provide an opportunity for parties to try to resolve any disputes about the proposed move.
• List factors that must be considered (e.g. the reasons for the proposed move and whether the proposed move is likely to enhance the general quality of life of the child and the guardian planning the move) and factors that must not be considered (e.g. whether the guardian would be willing to move without the child in any event).
• Include presumptions to be applied where the proposed move is contested.

Children’s Property
Add provisions relating to children’s property that would:
• Enable a child’s guardian(s) to manage property below a certain monetary threshold without a court order.
• Provide court oversight of larger children’s trusts, including the appointment of private trustees.

Property Division

Enact major reforms to the law’s property division regime, that would:
• Extend it to common-law spouses who have lived together for two years in a marriage-like relationship or who are in marriage-like relationship of some permanence and have children together.
• Exclude certain types of property (e.g. pre-relationship property, gifts, and inheritances) from the pool of family property to be divided 50-50.
• Limit judicial discretion to reapportion family property or to divide excluded property to circumstances where it would be clearly unfair not to do so.
• Provide that debts are subject to equal division.
• Set as defaults: the date of separation as the triggering event and the date of the court order or agreement as the valuation date.
• Limit the ability of judges to set aside or change property division agreements.
• Enable interim orders, including for the distribution of property for the purposes of funding litigation or dispute resolution.
• Enact conflict of laws provisions to address property outside of British Columbia.

Pension Division

Enact most of the major and housekeeping recommendations made by the British Columbia Law Institute in its 2006 report on the division of pensions.
Extend the pension division scheme to unmarried spouses who meet the definition of spouse.
Support Minor changes to the child support provisions to ensure consistency with new Act’s language and
structure.

Minor changes to spousal support provisions:
• Align provincial spousal support factors and objectives more closely with the Divorce Act.
• Explicitly permit periodic reviews.
• Permit variation applications in light of the spousal support objectives and factors where there has been a change in circumstances, new evidence or a failure to make full and frank disclosure.
• Limit consideration of a spouse’s alleged misconduct to that which “arbitrarily or unreasonably” affects the need for support or the ability to provide it.
• Provide that spousal support obligations continue after the death of the paying spouse unless otherwise agreed or ordered.
• Clarify that spousal support should be awarded only where spousal support objectives have not already been met through property division.
• Spousal Support Advisory Guidelines will not be referred to in the Act and will remain advisory.

Eliminate parental support obligations.

Case Management and Enforcement Tools

Include a broader range of case management and enforcement tools for judges. In particular:
• Provide for a new type of order called “conduct orders” and corresponding remedies for non-compliance to manage behaviour and facilitate resolution, for example, through referrals to a service, program, counselling or non-court dispute resolution process, providing for a party to pay the other’s reasonable expenses incurred as a result of the non-compliance, and limiting frivolous or vexatious litigation.
• Establish a general duty to disclose information, and provide for a greater range of remedies for failure to comply with an order to disclose.

Protection Orders

Replace existing family law restraining orders with “protection orders” enforceable under the Criminal Code.
Court Jurisdiction and Procedural Matters The new family statute will carry forward many of the jurisdictional provisions from the Family Relations Act. Proposed procedural changes include the following:
• Lawyers must certify that information about non-court dispute resolution options has been provided prior to filing court documents.
• Family cases are to be conducted, to the extent possible, in a way that minimizes delay, cost and formality, reduces conflict and promotes co-operation, protects those involved, and is proportionate to the dispute.
• Children who are 16 or older or who are parents, spouses or former spouses will be able to conduct court cases without a litigation guardian.

Transition

Where a court action has been started but not yet resolved before the effective date, the Family Relations Act applies unless the parties enter into a written agreement stating that the new Act governs. Cases that have already been time-barred under the Family Relations Act are not revived by the new Act.
Where a court action has been started on or after the effective date, the new Act applies.
Orders and declarations made under the previous law continue in force according to their terms, but subsequent applications made on or after the effective date (e.g., to vary or enforce) are governed by the new Act.

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BC FAMILY ASSET and BC PROPERTY DIVISION- NEW BC FAMILY LAW RULES ALLOW INTERIM ADVANCES FOR BC LEGAL FEES AND EXPERT REPORTS

Sunday, July 11th, 2010

BC Family Law and Interim Distribution of BC Family Assets and Advances to Pay BC Legal Fees: Who Pays the Piper in Divorce?

We are all familiar with the notion that “he who pays the piper calls the tune,” but what happens when you don’t have the money to pay the piper? In contested divorce cases it is not uncommon for legal fees and expenses to reach the point where you face difficulty paying your lawyer to represent your interests for lack of funds. In cases of mid to high net worth divorcing couples there are usually substantial assets that require dividing – bank accounts, trust/income funds, houses, property (local and foreign) and insurance policies to name but a few. Assets by their very nature have an intrinsic monetary value. The question is whether or not a divorcing spouse short on capital before a trial needed to pay their legal fees can access these assets or borrow against them to pay past, present and future legal expenses before the trial that will likely divide these family assets- most often equally? Is there any reason that all assets should remain untouchable until the trial is over and judgment rendered?

A new rule may allow people access to income and assets before a trial where in the past this was more difficult if not impossible to achieve. Lorne MacLean of the MacLean Family Law Group points out new BC Supreme Court Family rule 12-1 may allow a much needed interim advance of funds for a spouse needing funds to live on or to pay legal and expert fees as it states:

Photo Lorne MacLean BC Family Law Attorney

BC Supreme Court Family Law Rule 12-1

Allowance of income from property
(3) If property is the subject matter of a family law case and the court is satisfied that the property will be more than sufficient to answer all claims on it, the court at any time

(a) may allow the whole or part of the income of the property to be paid, during such period as the court may direct, to a party who has an interest in it, or

(b) in the case of personal property, may order that part of the personal property be delivered or transferred to a party.

Recovery of specific property
(4) If a party claims the recovery of specific property other than land, the court may order that the property claimed be given up to the party, pending the outcome of the family law case, either unconditionally or on terms and conditions, if any, relating to giving security, time, mode of trial or otherwise.

In the past a party claiming an advance against their ultimate share in property met with stiff judicial precedent against them.
In British Columbia the leading authority – Ansari v. Ansari [2000] BCJ No. 763 – holds that advances (interim distributions) or borrowing funds against family assets subject to division in a divorce proceeding to pay past, present and future legal fees are not allowed except to fund unusual disbursements relating specifically to the valuation of assets. In Ansari v. Ansari [2000] B.C.J. No. 763 (BCSC) – Macaulay J.noted:

(a) Jurisdiction for interim payment from family assets founded in s.66 of the Family Relations Act (as decided in Erskine v. Erskine (1991) 31 R.F.L. (3d) 273)

(b) Two step test established by Kirkpatrick J. in Jiwa v. Jiwa [1992] B.C.J. No. 3024 (S.C.):

(1) Is the advance required to mount a challenge to the other spouse’s position at trial?

(2) Will the advance or the payment on an interim distribution basis jeopardize the other spouse’s position at trial?

Macaulay J. held at paragraph 28 in Ansari:

As the interim distribution of assets sought relates primarily to past and projected legal expenses in the matrimonial litigation, entitlement falls to be determined, in my view, within s.66 and with regard to the limitations expressed in earlier decisions. The weight of authority is against ordering an interim distribution of assets to meet past and, in particular, future legal expenses except to fund unusual disbursements relating specifically to the valuation of assets. I decline to order an interim distribution in favour of either party.

The more recent case of Herr v. Herr [2006] B.C.J. No. 1624 – held as in Ansari that no interim disposition of funds should be allowed allowed and at paragraphs 19 and 20 Ralph J. stated:

“The purpose for which the true interim distribution was required was not specific but appeared to be for past and future legal expenses. As recognized in Ansari the weight of authority is against ordering an interim distribution of assets to meet past and future legal expenses except to fund unusual disbursements relating to the valuation of assets.”

“In my respectful view, having already authorized a substantial draw upon these funds to pay the arrears of support, the Master erred in further authorizing the payment of $40,000 for the unspecified past and future legal expense. I conclude that Mr. Herr’s appeal with respect to the Master’s order relating to the interim distribution of $40,000 should be allowed and that the order must be set aside.”

Similarly, in Hiemstra v. Hiemstra [2001] B.C.J. No. 522 – No interim distribution of funds was allowed to pay legal fees and in McLeod v. McLeod [2001] B.C.J. No. 1201 (S.C.) – Kirkpatrick J. followed Ansari and refused to make an interim order for distribution of funds for legal fees. Kirkpatrick J. also followed the Pierce decision, in that she did not find that “such an advance is, in equity, required”. The distinguishing features in this case are that the wife was already receiving a substantial sum (close to $5000 per month) for child support and the husband was paying a good portion of the household expenses, and spousal support of almost $4000. Therefore, the circumstances were not so dire as to require the disbursement of funds to the wife out of the property.

An older line of cases did allow some advances for legal fees:

(a) Pierce v. Pierce [1994] B.C.J. No. 3079 (S.C.) as per Melnick J. – the focus in ordering an advance is not whether it is required for one spouse to fund his or her lawsuit against the other, but rather whether, in order to make a determination regarding assets, as contemplated by s.52 of
Family Relations Act, such an advance is, in equity, required.

(b) Ford v. Ford (6 February 1992), Vancouver Registry A913765 – allowed for release of funds for legal fees.

(c) Newbury J. in Lane v. Lane [1991] B.C.J. No. 3246 (S.C.) – lump sum payment ordered to reimburse a wife for past accounting and legal expenses but would not order payment for estimated future legal expenses.

The big change regarding experts in family matters is the emphasis on 1 neutral expert being appointed by consent or if disputed by court order as follows:

Single Court Appointed Expert
13-4
Application to court
(3) If the parties do not agree that a joint expert is required or do not agree on any matter relating to the appointment of a joint expert, any party may apply to the court in accordance with Rule 10-5 for an order
(a) appointing a joint expert, and
(b) settling any matter relating to the appointment of the joint expert.

Note also full cooperation is required and full disclosure mandated under this rule.

Appointment of Court’s own Expert
13-5
(10) The remuneration of an expert appointed under this rule
(a) must be fixed by the court and consented to by the expert, and
(b) may include
(i) a fee for the report, and any supplementary reports, required under Rule 13-6, and
(ii) an appropriate sum for each day that the expert’s attendance in court is required.
Security for remuneration

(11) The court may make one or both of the following orders, without prejudice to any party’s right to costs:
(a) an order directing that the expert’s remuneration be paid by the persons and at the time ordered by the court;
(b) an order for security for the expert’s remuneration

If you have an issue with needing to access monies you are properly owed before trial call us toll free at 1-877-602-9900 to help you ensure your case is handled properly and that funds you need to protect your rights and properly instruct your lawyer and valuation experts can be obtained.

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Macleans Magazine Article “With this app, I thee divorce“ quotes BC Divorce Lawyer, Lorne MacLean on Technology

Monday, June 28th, 2010

Lorne MacLean, BC Family Law Divorce Lawyer, was quoted in this weeks Macleans magazine once again showing he is at the cutting edge on the development and use of technology to help clients click here to read the article
“With this app, I thee divorce“

Lorne MacLean, MFLG Lawyer

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Fort St John BC and Dawson Creek BC Personal Injury and ICBC Claims Free Initial Consultation

Tuesday, June 22nd, 2010

We can't protect you against a car accident but we will protect your ICBC Claim Rights


Personal injury and ICBC claim clients who have a Fort St John BC or Dawson Creek BC personal injury and ICBC claim can call us at 250-262-5052 to set up a free initial ICBC claim consultation with an experienced ICBC claim and personal injury lawyer.

Doug Conolly, an ICBC claim and personal injury lawyer who is a partner at McQuarrie Hunter in Vancouver BC is assisting us in meeting and helping Fort St John ICBC claim and Dawson Creek BC personal injury clients in the North Peace at our Fort St John personal injury law office located at 9503-100th Avenue.

Mr. Conolly remembers fondly his experience working at the mill in MacKenzie British Columbia prior to becoming a lawyer and loves the North Peace especially in the summer and fall.

MacLean Law Group Fort St John Law Office

Lorne MacLean and Doug Conolly suggest you consider the following before selecting your North Peace area personal injury and ICBC claim lawyer:

How to Find a Skilled Lawyer Who is Right for You

Choosing an experienced personal injury lawyer who will work well with you is an important first step in settling your claim. The right lawyer will give you peace of mind and ensure the best possible outcome.

Here are some tips to help you find a good lawyer or law firm:

1. Check their website. Is there information about individual lawyers? Do they have expertise in personal injury law? Is the website clear, professional and easy to use?

2. Contact them. Did you feel you were given the information you needed to get started? If you left a telephone message or sent an email inquiry, was the response prompt and professional?

3. Meet them. Many firms offer a free initial consultation (up to 1/2 hour). During that first meeting, did they listen? Did you feel comfortable asking questions and were your questions answered clearly? Who did most of the talking? Were fees and expenses discussed openly? Did you feel confident that this lawyer genuinely had your best interests at heart?

4. Ask tough questions. For example:

■”How much experience do you have as a personal injury lawyer?”

■”What percentage of your practice is devoted to personal injury law?”

■”Can you consult with other lawyers in your firm when necessary?”

■”Are you prepared to take this matter to trial if necessary?”

■”How many times have you appeared in court?”

■”What makes you a good negotiator? How do you reach a settlement?”

■”Do you have time to deal with my matter promptly and to follow through?”

■”Will anyone else work on my matter?”

■”What are your fees and what are my payment options?”

5. Ask for their retainer agreement. Review it carefully and ask for clarification on anything you don’t understand before agreeing to its terms.

6. If you have special needs, can the lawyer meet those needs?

Doug Conolly would love to discuss his experince and each of these questions with you at the eaarliest possible opportunity.

If you have been involved in a car accident call us at 250-262-5052

Call us at 250-262-5052 now to set up an appointment and get cutting edge strategies to ensure your claim is properly handled and you get the proper amount you are entitled to.

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Lorne MacLean- BC Divorce Lawyer- Interviewed on CKNW Morning News 7:55AM June 22 2010 and Quoted in MacLean’s Magazine Today

Monday, June 21st, 2010

Lorne MacLean-Straight Shooting Lawyer Quoted by the Media on Tough Family Case

BC High Net Worth divorce lawyer Lorne MacLean is forthright and clear with his clients in discussing their cases. Mr. MacLean’s reputation as someone who can explain a family law case in simple and straightforward language that layman can appreciate has led him to be a popular guest on radio, TV and in the press. If you’re interested in obtaining legal representation for your high net worth divorce or family law case or have a case which is complex and difficult be sure to listen in tomorrow at 7:55 AM on Vancouver’s CKNW so that you can get a better feel for Mr. MacLean and then contact him at MacLean Family Law Group for an initial consultation at 604-602-9000. We also suggest you take a look at next week’s Maclean’s magazine article on MacLean’s latest venture to provide cutting-edge legal services to persons in Canada going through divorce or family breakdown.

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MacLean Law Group Expands Practice Areas – BC ICBC Claims and BC Personal Injury and Motor Vehicle Accidents

Thursday, June 17th, 2010

Summer at Our Fort St John BC Office - Call Us for a Free ICBC Claim Consultation


Lorne MacLean, of the MacLean Law Group is pleased to announce a joint venture that provides experienced legal representation to Fort St John BC and Dawson Creek BC clients with legal issues involving ICBC and personal injury claims.

Starting immediately Doug Conolly a partner at McQuarrie Hunter in Vancouver, BC will assist the MacLean Law Group to provide expanded legal services to our clients in the North Peace.

Mr. Conolly will accept ICBC and personal injury claim work through our Fort St John BC office to provide access to the ICBC claim and personal injury law related resources of a mid size law firm while allowing clients convenient local access to these services at our Fort St John BC law office.

Doug grew up in Vancouver and worked in the construction industry throughout the Lower Mainland and Whistler, B.C., before obtaining his Bachelor of Arts from Simon Fraser University and Bachelor of Laws from the University of Alberta. He was called to the B.C. Bar in 2002 and is a member of the Canadian Bar Association, Law Society of British Columbia and the New Westminster Bar Association.Doug Conolly is available for appointments booked two weeks in advance at our Fort St John office and is also available by teleconference between out Fort St John office and his Surrey BC office.

Call us now at 1-250-262-5052 to book an appointment to meet with Doug Conolly.

Fields Just North of Fort St John in the Summer

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BC Grandparent Rights to Claim Child Custody Guardianship and Access to Their GrandChildren

Friday, June 11th, 2010

Mike Jukic MacLean Law Group's Fort St. John Divorce Lawyer

Grandpa and Grandma: Becoming Parents All Over Again

We have successfully represented BC grandparents in obtaining them custody guardianship, access and visitation rights.

Under section 35 of the Family Relations Act, any “person” or “persons” may be granted custody of or access to a child . The reference to “persons” in this section includes parents, grandparents, other relatives of the child, and persons who are not relatives of the child. On first glance, this section seems to give the courts wide ranging discretion to award custody of a child to whomever the court sees fit but this is not necessarily the case. The courts have articulated a “common sense” approach for custody disputes which holds that, all other matters being equal, a parent is entitled to raise their child.
In L. (A.) v. K. (D.), 2000 BCCA 455 , the British Columbia Court of Appeal reviewed the law in the area of third party claims to custody (meaning parties who are not the parents of the child in question) and found that parents are entitled to raise their children unless there is a clear finding of a reason why they cannot. In Chera v. Chera, 2008 BCCA, the Court of Appeal revisited the issue of third party custody once again and held that the entitlement of parents to raise their children does not create a presumption in favour of the parent. While there is no presumption in favour of a biological parent, the court will start with the common sense inference that parents should be entitled to raise their own children. The grandparent or other third party must show the court that the parent or parents of the child cannot discharge their parental duties effectively and then show the court that the best interests of the child would be most served by placing the child in their care.
Under the Family Relations Act, the court must give paramount consideration to the best interests of the child taking into consideration the factors enumerated in section 24 which are the health and emotional well being of the child, the views of the child if appropriate, the love, affection and similar ties that exist between the child and other persons, education and training for the child, and the capacity of each person seeking custody and their ability to exercise the rights and duties that come with custody. While the court cannot predict the future with certainty, it must make its best judgment as to which course of action for a child appears to hold the fewest risks.
The courts have granted custody to a third party where it would be in the best interests of the child. The circumstances include, but are not be limited to:
1. Where the child had developed a strong bond with the third party (T.E.K. v. British Columbia (Superintendent of Family and Child Service), [1996] B.C.J. No. 900 (QL) (S.C.));
2. Where there is risk to a child living with the birth parents (J.T. v. British Columbia (Superintendent of Family and Child Service), [1994] B.C.J. No. 3109 (QL).
If you are a grandparent seeking custody of a grandchild, please call 604-602-9000 to book an initial consultation with a lawyer at the MacLean Family Law Group.

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BC Parenting Coordinator should not Usurp a BC Judge’s Role in Protecting the BC Child’s Best Interests

Friday, June 11th, 2010

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 (“Hunter”) 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.

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British Columbia Child Custody Parental Alienation, BC Access Denial and Vancouver Child Custody Conference in Denver Colorado Provides Amazing Information

Saturday, June 5th, 2010

Shawna Specht Reports from Association of Family and Conciliation Courts Denver Conference on Parental Alienation and Hague Convention on Child Abduction


Shawna Specht of the MacLean Family Law Group continues to report on her attendance at the child custody and parental alienation conference of the Association of Family and Conciliation Courts conference on parental alienation and international child abduction.
Day 3

This morning’s Parental Alienation Child Custody conference started off with a panel of Judges including BC’s own Madam Justice Martinson, a local Justice and a Justice from Australia discussing Judicial Perspectives on Parental Alienation. All three Judges agreed that the earlier intervention occurred with parties where there were indicators of alienation, the more likely it was that the alienation could be successfully combated. All three Judges also agreed that maintaining consistency with a single Judge throughout the process was essential. The BC family law court system has some work to do to catch up to the prevention measures in place in many other jurisdictions to address Parental Alienation Syndrome. The key seems to be education for all involved, Judges, lawyers, mental health professionals and parties themselves. In our next session, we learned how Parental Alienation, stress and domestic violence not only does emotional damage to Children but can actually physically interfere with the manner in which a child’s brain develops and how genes are expressed as the Child develops. The most critical time of brain growth in a child occurs from the time that the child is 6 months in utero to 21 months post birth however rapid brain growth occurs for the first 4 years. When a child is exposed to toxic stress, alienation, etc. physical neuropathways are formed and chemical responses generated, which stay entrenched. Therefore, even after a child is removed from the situation, their brain is still physically patterned to respond as if they are still in that situation and the Child has to actively unlearn the fear state that they live in. While social science has supported these theories for years, scientific evidence is now firmly confirming it.

We finished the day being regaled with stories of high conflict mediation from three local justices who have retired but who mediate through an organization called Judicial Advocates Group (JAG). Each former Justice described their different methods of dealing with these situations which ranged from reciprocal confrontational positions to empathy, each method being unique to the parties and specific needs of the case. It is clear that dealing with high conflict families requires a lot of dedication from all of the professionals involved including counsel, mental health professionals, mediators and judges. This conference has highlighted the need of all of these parties to understand the role of the other and the dedication that all of these professionals display in trying to help these families.

If you need help in this area contact us immediately as the sooner these difficult issues are dealt with the safer and healthier your children will be.

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