The Pitfalls of Litigating Parenting Disputes
I recently heard the litigation process in parenting disputes described by a mediator as “the dark side.” I generally agree.
The Family Law Act, our relatively new legislation in British Columbia has gotten rid of conflict-laden terms like “custody” and “access” and replaces them with a new model of parenting after separation which prioritizes a child’s entitlement to proper parenting and meaningful time with each parent over a parent’s right to control the child’s upbringing and have a schedule of contact with the child.
The Family Law Act also focuses on the resolution of family law problems by other means other than going to court. The legislation gives equal emphasis to agreements made out of court and court orders, and provides better support for out of court negotiations. One way it does this is by making complete disclosure mandatory in all cases and by imposing penalties for failures to make disclosure which result in the court setting aside an agreement.
The legislation also gives Judges new authority to refer parties to counselling and to out-of-court dispute resolution services like counselling and mediation. The court can appoint a parenting coordinator to manage the implementation of orders and agreements involving children, even if both parties do not agree.
At the end of the day, parents know their children better than a Judge does or ever could. These decisions are best made by the parents themselves. If you cannot come to a consensus, I highly recommend that you engage the services of collaborative professionals; lawyers focused on out of court resolution, mediators, parenting coordinators, counsellors, doctors or child specialist who can weigh in and assist you to coming to an agreement.
The first reason to avoid parenting disputes in court is the extreme risk for both parties. It is very difficult to predict what a Judge will decide. There have been many circumstances where Judges have decided in ways that I would never have predicted. Even if the agreement you come to with your former spouse feels like a compromise, you have had some power and say in the process.
The second and perhaps more important reason is that our court system is set up in an adversarial model which does not facilitate and foster an ongoing relationship between the parties. When you have minor children together you need to have an ongoing relationship in some capacity. You will be co-parents throughout the lives of your children. It is very rare that I see that litigation around parenting issues improves the relationship between the parties, most of the time it is damaging to that already fractured co-parenting relationship.