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CUSTODY AND ACCESS - Considerations - Expert report or assessment

Tuesday, November 24, 2020 @ 6:05 AM  

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Appeal by the father from guardianship and parenting orders. The parties were involved in high conflict family law litigation. The mother was the primary caregiver, and often the sole caregiver, to children, now ages 9 and 10. The father devoted his time to working to support the family. Interim orders led to shared parenting, albeit with temporary restriction of the mother’s time due to allegations subsequently found to be groundless. In 2017, a parenting assessor was appointed by consent pursuant to s. 211 of the Family Law Act in order to determine a parenting plan, including guardianship, decision-making, parenting time and responsibilities, and the sharing of information related to the children’s needs. The assessor’s recommendations contemplated a two-stage parenting time schedule providing for equal time between the parties, with parental responsibilities divided equally, and appointment of a parenting co-ordinator for one year to ensure meaningful consultation between the parties. The trial judge found that the father’s impulsivity and lack of co-operation in parenting with the mother, and the mother’s historic role as sole caregiver, justified partial departure from the assessor’s recommendations with respect to parenting time and responsibility. The mother was granted primary residence and primary control over parental responsibilities. The father appealed. 

HELD: Appeal dismissed, save for adjustment of spousal support. The trial judge did not err in declining to follow the parenting assessor’s responsibilities or in proceeding as such without cross-examination of the assessor occurring. The judge gave due consideration to the assessor’s report and sufficiently explained the basis for the departure. The trial as a whole provided ample evidence to assess and determine the children’s best interests. No error arose from granting the mother final decision-making authority rather than granting such power to a parenting co-ordinator. The trial judge explained the basis for departing from the status quo in place at the time of trial, which had limited the mother’s parenting time due to groundless allegations made by the father’s new partner. The true status quo was one in which the children spent the majority of their time with the mother, both before and after separation. The order reflected proper consideration of the maximum contact principle in determining the children’s best interests given the difficult circumstances.

M.F.W. v. M.A.H., [2020] B.C.J. No. 1640, British Columbia Court of Appeal, M.V. Newbury, A.W. MacKenzie and P.M. Willcock JJ.A., October 23, 2020. Digest No. TLD-November232020004