Father incapable of cooperative parenting denied final decision-making authority: BC Court

The BC Court of Appeal granted final decision-making authority to the mother of three children upon finding that the father was incapable of cooperative parenting.

In Harrison v. Haramati 2022 BCCA 302, Jessica Harrison and Yaniv Haramati have two daughters and a son suffering from a medical condition requiring physiotherapy, occupational and speech therapy, and home support. The parties were married and were together for about six years before they separated.

Through a consent order issued in 2018, the parties agreed on the division of property, support and parenting schedule. They also decided to retain a co-parenting counsellor. However, the counsellors appointed eventually resigned because the father refused to accept the counsellor’s advice, refused to cooperate, and failed to pay their professional fees. The therapists also raised issues regarding the father’s emotional and psychological status and communication skills. They said he represents someone unwilling to accept input from others with whom he disagrees.

After several unsuccessful attempts to retain a co-parenting counsellor, the mother sought an order from the court for final decision-making authority for her three children. A chambers judge dismissed the mother’s application. On appeal, the mother argued, among other things, that the chambers judge made an error by focusing on the parties’ relationship rather than the children’s best interests.

The appeal court noted that the chambers judge gave two main reasons for her refusal to grant decision-making authority to the mother. First, the judge said giving final decision-making authority to the mother would further divide the parties. Second, the judge said inter-cultural differences exist in the parties’ communication styles.

Best interests of the children

The appeal court found that the chambers judge improperly assessed the child’s best interests because she failed to address the mandatory factors under s. 37 of the Family Law Act, which must be considered when assessing the children’s best interests. The particular factors applicable to this case are the history of the child’s care, the child’s need for stability, and the ability of each guardian to exercise their responsibilities. The court noted that instead of focusing on these factors, the judge focused on the parents’ relationship, noting that giving decision-making authority to one parent would further divide them and considering the need to resolve their cross-cultural communication.

“The judge’s consideration of the parties’ cultural differences as a source of conflict was without any support in the record, and entirely speculative,” the appeal court pointed out. The court also said it was an error for the judge to focus on improving the parent’s relationship rather than the children’s best interests.

Cooperative parenting

The court said the evidence squarely established that the father was incapable of cooperative parenting. For this reason, an expert recommended co-parenting counselling for the father, and the chambers judge accepted this recommendation. The expert further suggested that if there is a disagreement between the parents, the mother should be afforded decision-making authority because she had been most actively engaged in the children’s care since birth. A parenting coordinator also assessed that the father was more focused on his needs, power and control than the children.

The chambers judge noted that the children were distressed by the conflicted dynamic. The appeal court noted that instead of considering how to relieve that distress in the children’s best interests, the judge focused on the relationship between the parents, which distracted her from the task and led her into error. The appeal court ultimately granted final decision-making authority to the children’s mother.