20 July 2010

White Paper Digest

Important Update: The Family Law Act discussed in the white paper was introduced on 14 November 2011. See my post "Family Law Act Introduced!" for more information.

The provincial government's white paper (PDF) on proposed changes to the Family Relations Act suggests some truly ground-breaking reforms which will take British Columbia to the leading edge of family law in Canada. This brief note will summarize the highlights of the white paper.

Alternatives to Court
  • Alternative dispute resolution processes will be encouraged and placed on an equal footing with litigation.
  • All family justice professionals will have a duty to inform people of dispute resolution processes that don't involve litigation.
  • Settlements reached out of court may be set aside if there is a failure to disclose information relevant to the settlement.
Parenting Coordination
  • Parenting coordinators will be given the authority to decide disputes involving the implementation of existing parenting arrangements.
  • Judges may require parents to retain a parenting coordinator.
Arbitration
  • The Commercial Arbitration Act will be amended to better accommodate arbitration in family law cases.
Agreements
  • Provisions in agreements for the care of children may be set aside if they are not in the children's best interests.
  • Provisions for child support may be set aside if they do not comply with the Child Support Guidelines.
  • Agreements may be set aside where one person has taken advantage of the other.
Who is a Parent
  • Birth mothers are presumed to be the child's mother except where she has given up this status through adoption or an agreement to carry the child as a surrogate she is prepared to comply with.
  • People can be parents where they intend to have a child using donated eggs or sperm even though they don't have a genetic link to the child.
  • Children can have more than two parents where people intend to have a child using donated eggs or sperm or a surrogate mother, and they sign an agreement which allows the donor or surrogate to have a parental relationship with the child.
  • Surrogate mothers can't be forced to give up their child at birth by an agreement, they must do so voluntarily.
The Care and Control of Children
  • Children's best interests will be the only factor taken into account in making decisions about their care and control.
  • Family violence must be taken into account in assessing children's best interests, including violence to the other parent.
  • Family violence is defined in the proposed act and includes an exemption for acts of self-protection or the protection of another person.
Guardianship
  • Custody and guardianship will be replaced with the single term guardianship.
  • Both parents will be the guardians of a child, except where a parent never lived with the child.
  • Guardians will have parenting time with a child, not access. People, including parents, who aren't guardians will have contact with a child.
  • The incidents of guardianship are called parental responsibilities. Parental responsibilities can be shared or allocated between guardians.
Guardianship on the Death or Incapacity of a Parent
  • Guardians can appoint a person as the guardian of their children in the event of their death.
  • Guardians can appoint a person as a standby guardian of their children in the event of their incapacity while they are alive.
  • Standby guardians can only be appointed where a child has one guardian.
Enforcing Access
  • Both levels of court will have expanded ways of dealing with both the denial of parenting time and the refusal to exercise parenting time.
  • The court may order make-up time, counselling and mediation, and may, in extreme circumstances, impose a fine or a jail sentence.
Mobility
  • A guardian wishing to move must give the other parent 60 days' notice of his or her intention to move.
  • The initial burden lies on the parent proposing the move to show that the move is well intentioned. If the parent can show the move is well intentioned, the burden shifts to the other parent to prove that the move will not be in the child's best interests.
  • When the parents have a more or less equal parenting schedule, the parent proposing the move must show both that the move is well intentioned and that it is in the child's best interests.
  • The court may not consider whether a parent proposing a move would move with the child or without the child in mobility applications.
Family Assets
  • The court will have less discretion to divide assets other than equally.
  • Unmarried couples will be brought into the proposed act's scheme for the division of property where they have lived together for at least two years in a marriage-like relationship, or for a lesser amount of time if they have a child.
  • Certain property will be excluded from division, including gifts, inheritances, court awards and property owned before the relationship.
  • Interim orders for the distribution of assets will be available.
Triggering Events
  • There will be only one event which triggers an entitlement to share in assets, separation.
  • Unmarried parties must bring a claim for property division within two years of separation; married couples must bring their claims within two years of divorce.
Valuation Dates
  • The valuation date will be the date of a court order dividing property or the date of an agreement dividing property.
Child Support
  • Child support obligations can end before the child turns 19 if the child becomes a married or a common-law spouse or withdraws from the care of his or her parents.
  • Child support orders can be varied if a parent has failed to make complete financial disclosure.
Spousal Support
  • Unmarried couples will be brought into the proposed act's scheme for spousal support where they have lived together for at least two years in a marriage-like relationship, or for a lesser amount of time if they have a child.
  • The language in the proposed act will be made more similar to the Divorce Act's language on spousal support.
  • A new factor in awarding spousal support will require the court to consider whether an unequal division of property has satisfied the purpose of spousal support order.
  • Spousal support orders can be varied if a spouse has failed to make complete financial disclosure.
  • Spousal support orders are presumed to be binding on the payor's estate unless the order or agreement for support says otherwise.
Parental Support
  • The present act's provisions for parental support will be canceled.
Safety
  • The court may make protection orders where there are safety concerns.
  • Protection orders may limit communication or otherwise restrict a party's behaviour and may be sought at any time in a family law case, whether a protection order has been claimed or not.
  • Protection orders will be enforceable under s. 127 of the Criminal Code, through the criminal courts.
Invitation to Comment

Comments on the changes proposed in the white paper are open until 8 October 2010 and can be sent to the Attorney General at:
Civil Policy and Legislation Office
Justice Services Branch
BC Ministry of the Attorney General
PO Box 9222 Stn. Prov. Gov't.
Victoria, BC V8W 9J1

Fax: 250-387-4525

Email: CPLOFamilyLaw@gov.bc.ca
Make sure all communications are titled "Family Law White Paper."

The ministry webpage with links to the white paper can be found at www.ag.gov.bc.ca/legislation/. Additional background information, including the 2007 discussion papers, can be found at www.ag.gov.bc.ca/legislation/archive.htm#fra.

8 comments:

  1. Out of curiosity:
    I read the proposed provisions for ''parentage''.

    Let's say, for instance, that a child has 5 legal parents (surrogate mother; two parents who contracted with surrogate mother; third-party egg donor; third-party sperm donor...all who ''contracted'' to be a legal parent).

    How does this affect child support obbligatons? When the parents who ''commissioned'' the child reside together with the child? When the ''commissioning'' parents no longer reside together?

    What does ''legal parent'' mean??? What obbligatons? What rights?? Or is it just for the purposes of Vital Stats????

    Thanks

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  2. I think that the number of potential parents would be capped at three for most people most of the time. People who resort to assisted reproduction rather than adoption do it because they want the genetic material of at least one of the parents to be given to the child; people seeking donated eggs and donated sperm would have no genetic connection to the child and might as well adopt than go through what can be a very expensive and often painful process.

    Your point about child support is well taken. The draft talks about a child having more than two "parents" and it's "parents" who have a legal obligation to support a child. I think that the government needs to clarify whether all parents will be obliged to pay child support and what would trigger the obligation; the donor/surrogate won't be separating from the "commissioning parents," as you put it.

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  3. So the new law seeks to protect parents who use a known donor? For example, two women who use a known donor, the legal parents are the two women, and the known donor is NOT a legal parent, correct?

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  4. That's a fair description of the proposal. The law would make it easier for couples who use a donor (or a surrogate) to be the legal parents of the child, as long as they and the donor (or surrogate) have a written contract. The donor (or surrogate) could be a legal parent, but only if all three people agree ahead of time in their contract.

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  5. Hi Mr Boyd,

    The new changes still are allowing Lawyers to assess little children's lives. Where in your legakl training do you manage to get the PhD in Psychology?????

    It is still MAL-PRACTICE to assess a child's life, when you are only trained as a Lawyer or as a Family Justice Counsellor (no such degree or certificate exists in Academia)

    I wrote the letter below to the BC Psychologist Association, but I don't expect much as I have already written them, UBC Psych, The Canadian Psych ass etc.... but they don't seem to care if others do their job...The local BC Psych ass. has monthly ETHICS SALONS, so I am asking them to have one on this subject.

    Hi PSYCHOLOGISTS - you really need an ETHICS SALON on this subject!!!!!:

    The new Family Law Act is coming out next year and I have been writing and writing for three years to change this and I have sen the latest white paper and the new Family Law Act to replace the Familyt Relations Act will have a few more pointers to help Lawyers/judges be better "Psychologists" and for the Fanily Justice Counsellors (no such degree is known...back room trained with pamphlets) BUT, srtill no requirement for YOU or your associates and the only time your ilk are seen in a Family Law Court room is when the parties can afford to hire you and then each party hires their own....so you are stuch as hired guns for big bucks .

    What I would like to seee is for it to be MANDITORY for one or evn two Psychologists to do the assessment of the BEST INTERESTS of the children. That is: meet the kids, the parents, se the homes etc... and the DECIDE, not recomend, I mean decide.

    At this point you are not even in the picture. You are an outside professional to be hired if one has the money and your opinion can be over-ruled by the judge.


    So if you had to get your teeth done, would you go to a lwawyer? What about surgery, would you get a lawyer to do it, even if they had "guidelines"....?

    So I would like to see an ETHICS SALON regarding BC Family Law.

    I have written UBC, The BC Psych ass. the Canbadian psych ass. etc...the colleges....but I hate to say it but after threee years, psychologists don't seem to care that thousands of children are being mal-pracxticed upon every year here in BC, in court roomc and by Famil Justice Counsellors...who are there to save the government money so they don't have to pay Psychologists...

    So that is it. Why do you guys allow it? Why do you allow "non-professionals" to do thousands of Children's Best Interests assessments every year????

    I am perplexed because I thought you guys had an oath to protect the public but maybe not. But Dentists wouldn't allow it and Mechanics don't so why do your colleagues allow it???

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  6. Lawyers don't prepare custody and access assessments under s. 15 of the Family Relations Act and won't be preparing them under the Family Law Act proposed by the white paper either. Any lawyer preparing a custody and access assessment would need to be separately qualified as a counsellor or psychologist.

    Some lawyers, myself included, prepare views of the child reports under s. 15 of the act. These reports are limited to reporting the children's statements and wishes and do not assess or offer opinions about the parenting arrangements which are in the children's best interests; they merely report the children's comments. I took training in interviewing children and child development before I began preparing these reports.

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  7. I am confused about the parentage section. Does this mean that same sex couples usings a donor won't need the adoption or declaration of parentage, to ensure equal parentage, under this new Act?

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  8. I think that this is exactly what the new legislation says. The transition provisions seem to amend the Vital Statistics Act to this effect.

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