Separation or divorce is difficult and emotional. It changes family dynamics and how the couple parents their children. If the parents cannot agree on a parenting issue, the primary consideration is the child’s best interests.
This article looks at how the courts make decisions on parenting issues. We also look at a recent decision of the Court of Appeal for British Columbia in which the parents disagreed over which school their child should attend. The Court had to consider the child’s best interests and the impact of the father’s disability.
How does the court decide on parenting issues?
Under section 37 of the Family Law Act, in making an agreement or court order regarding parenting arrangements, including parenting time and decision-making responsibility, the parties and the court must consider the child’s best interests only.
This involves assessing the child’s physical, psychological and emotional safety, security and well-being. The court considers all of the child’s needs and circumstances, including:
- the child’s health and emotional well-being;
- the child’s views, unless it would be inappropriate to consider them;
- the nature and strength of the relationship between the child and significant persons in the child’s life;
- the history of the child’s care;
- the child’s need for stability;
- the ability of each person to exercise their parental responsibilities;
- the impact of any family violence on the child’s safety, security or well-being; and
- the appropriateness of an arrangement that would require the child’s guardians to cooperate on issues affecting the child.
Parents disagreed over where child should attend school
In White v Schultz, the parties are divorced and have a nine-year-old child. The father lives in Burnaby, and the mother lives in East Vancouver. They share parental responsibilities and have equal parenting time, but they disagree over where their child should attend elementary school.
Following a determination by their parenting coordinator, the child started attending Thunderbird Elementary School in East Vancouver.
The father sought an order that the child attends Cameron Elementary School in Burnaby. The father has chronic musculoskeletal pain from a motor vehicle accident and diabetes. He walks with a cane and does not drive. It takes him 45-60 minutes on public transit to reach Thunderbird Elementary.
COVID-19 risk to father offset by benefit to child of staying in current school
The father argued that he was at risk of contracting COVID-19 due to his compromised immune system and reliance on public transportation.
The chamber’s judge noted that it was impossible to eliminate all risk of contracting the virus and that vaccines should have a mitigating effect. As a result, the judge considered the risk to the father to be within reasonably tolerable levels, such that his ability to meet the child’s needs would not be seriously compromised if she continued to attend Thunderbird Elementary.
In addition, the judge considered the COVID-19 risk to the father to be offset by the benefit to the child of staying in her current school. This was because of the advantage of having the child attend school near the only parent capable of driving and who can come to the school on short notice in the event of an emergency.
On appeal, the Court of Appeal agreed with the chambers judge. It noted the father’s heightened risk if he contracted COVID-19 but found no error in the judge’s assessment that the father would not be exposed to unreasonable risk.
Father’s physical limitations would not prevent meaningful relationship with child
The chamber’s judge accepted that the father had physical limitations which impacted his mobility. However, the judge found that the evidence did not show they were of a magnitude that would prevent him from having a meaningful relationship with his child.
The judge explained that the father had a more flexible schedule and that the mother would drop the child off for school in the mornings that the father had her, thereby reducing the amount of time he would spend commuting.
The Court of Appeal agreed, explaining that the chambers judge was not obliged to accept the father’s own characterization of his limitations and was entitled to conclude that the benefits to the child in remaining at Thunderbird Elementary offset any detriments to her associated with the father’s physical limitations.
It was in best interests of the child to remain at school close to mother
The chambers judge also noted that keeping the child at Thunderbird Elementary would provide her with more stability as she has friends and is familiar with the neighbourhood. She will also have a sibling starting there. Considering all these factors, the judge concluded that it was in the child’s best interests to continue attending a school close to the mother’s residence, which in this case, was Thunderbird Elementary.
The Court of Appeal agreed, dismissing the father’s application to have the child enrolled at the school in Burnaby.
Contact Meridian Law Group in Vancouver for Seasoned Representation in Parenting Matters
For over three decades, the family lawyers of Meridian Law Group have provided practical advice and persuasive advocacy in parenting matters, including parental decision-making and parenting time. The firm offers clients customized, out-of-the-box legal solutions that exceed expectations and deliver results in any forum, including mediation, arbitration, and litigation. Meridian Law Group handles the heavy lifting in parenting disputes so clients can focus on their children and move forward.
Since 1988, Meridian Law Group and its predecessor firms have been established as an institution known for legal excellence. Located across from the courthouse in downtown Vancouver, the firm represents clients in Vancouver and throughout British Columbia, including West Vancouver, North Vancouver, Coquitlam, Penticton, Kelowna, Richmond, New Westminster, Burnaby, Surrey, Langley, and White Rock. To speak with an experienced family lawyer or arrange a confidential consultation, please call (604) 687-2277 or reach out online.