Extraordinary Court of Appeal Decision: Rights of Guardianship May Survive Agreement for Sole Custody

The British Columbia Court of Appeal has released its decision in Re British Columbia Birth Registration No. 2004-59-020158, a fascinating case that has some very important implications for orders and agreements for sole custody made before the new Family Law Act came into effect on 18 March 2013. As usual, understanding the important point this case makes requires a bit of an explanation, however let me start with the facts.

Background

In a nutshell, this case is about a mother's application for the adoption of her child by her new spouse and, because the father was none too happy with the idea, an order that the necessity of his agreement with the adoption be waived.

The mother and father separated in 2006 when their son was a year and a half old. A few months later they signed a separation agreement — this is important — giving the mother sole custody of the child and unspecified access to the father. This is what the agreement said:

CUSTODY, ACCESS AND GUARDIANSHIP 

2. [The mother] will have custody of [the child]. 

3. [The father] will have reasonable access to [the child]. 

4. If [the father] and [the mother] are at any time unable to agree on the particulars of access or on a variation of access, either may apply to a court of competent jurisdiction for directions. 

5. All terms as to custody, access and guardianship may be varied by the written consent of both Parties duly witnessed and signed as an Amendment to this Agreement.

Although the father initially saw his son almost every weekend, the frequency of his visits began to decrease after the mother started a new relationship. The mother and father divorced in 2010, and around the same time, the mother and her new partner took the child and moved out of town. The father was not told of the move and had no idea where his son was living until litigation ensued. The mother married her partner in 2011, and the couple started a law suit in the Supreme Court seeking an order that he adopt the child and a decision as to whether the father remained a guardian of the child after the parties' signed their separation agreement.

The Decision at Trial and a Parenthetical Comment on a Psychologist's Recommendation

The father, who had started a law suit in the Provincial Court for an order giving him specified access to his son, objected to the adoption application. As a result, the mother's claim went to trial, and her claim was heard together with the father's claim for access. The trial judge dismissed the mother's law suit and made an order that the father have access to the child; the trial judge decided that it was unnecessary to determine whether the father was a guardian of the child or not. The mother appealed the decision.

(I pause here to note that, at trial, a psychologist recommended that the mother's new spouse be allowed to adopt the child and that the father should have some limited access to the child. This was the psychologist's testimony:

"... in the report [I prepared] I actually make the point that perhaps there could be an agreement almost quid pro quo that if [the father] would allow the adoption, then there would be a reciprocal cooperation on the part of [the mother] to facilitate this type of arrangement to take place. ... I was hoping that — that by saying that there would be a reciprocity where [the father] would agree on adoption in exchange for [the mother] promising to — to allow and facilitate and arrangement that would allow [the child] to know [the father] and the paternal family, that — that if there was that reciprocal agreement, that it would make sense that — that — because what he wants is — meaning [the father] — what he wants is he wants to be a part of the child's life, he wants to have some input, he wants the child to know him, and he wants to know the child. But if — if in exchange for that, he gave up the ability and allowed them to adopt, then perhaps we could — you know, there might have been some — some agreement in that regard ..."

In other words, the psychologist was recommending that the father should give up his status as the child's father, and the rights that go along with that status, in exchange for contact with the child. This recommendation trespasses upon the offensive; the father had a right to seek contact with the child merely because of his status as the child's father, and he is now being asked to give up that status to obtain the access he ought to have had in any event? The Court of Appeal shared my concern:

"[31] Frankly, this notion of [the father] consenting to the adoption in consideration for future contact rights is troubling. I do not view a natural parent’s interest in consenting or not to the adoption of their child as something that should be required to be bartered away for the right to be peripherally involved in the child’s future. Yet that is what [the mother] was proposing and it is precisely what [the psychologist] was effectively recommending. ...

"[33] With respect, it is inappropriate to effectively require (or even to simply encourage) [the father] to give up his parental ties to the child as the price for gaining [the mother's] 'co-operation' in facilitating his future contact with the child, to which, prima facie, he is entitled at law."

Let me climb off my high horse and return to the main topic. I apologize for the long-winded diversion.)

The Decision on Appeal

According to the judgment of the Court of Appeal, written by the province's Chief Justice, the mother's main argument on appeal was that the trial judge effectively ignored the child's best interests by dwelling on the mother's behaviour in "isolating the child" from contact with the father. However, the main issue for the court was the not the adoption claim, which it dismissed, but the question of the father's standing as a guardian of the child, and this is where the decision gets really interesting.

First of all, remember that the parties' agreement talked about custody and access but really didn't say anything about guardianship, even though that section of their agreement was titled "Custody, Access and Guardianship" and paragraph five said "all terms as to custody, access and guardianship may be varied by the written consent of both Parties." This agreement was made when the old Family Relations Act was the law of the province. Section 27 of that act set out certain presumptions about how guardianship was to be shared during and after the parents' relationship (important bits in bold):

(1) ... whether or not married to each other and for so long as they live together, the mother and father of a child are joint guardians unless a tribunal of competent jurisdiction otherwise orders. 

(2) ... if the father and mother of a child are or have been married to each other and are living separate and apart, 

(a) they are joint guardians of the estate of the child, and

(b) the one of them who usually has care and control of the child is sole guardian of the person of the child unless a tribunal of competent jurisdiction otherwise orders.

Since the parties' agreement didn't make any decisions about guardianship, this meant, according to both the trial judge and the Court of Appeal, that the father continued to be a guardian of the estate of the child, under s. 27(2)(a). Of course, since the agreement gave custody to the mother, she had "care and control of the child" and was therefore the guardian of the person of the child under s. 27(2)(b).

(Time for another diversion. "Guardianship" of a child has always — well, at least since 1660 — had two components, guardianship of the person of the child and guardianship of the estate of the child. Someone who is the guardian of the person of a child has the right to make decisions about where the child goes to school, how health care issues are managed, about the child's language and culture, how the child is disciplined, and so on; essentially, the guardian of the person of the child decides how the child is raised. Someone who is the guardian of the estate of a child is entitled to make decisions about how the child's property is managed, in the manner of a trustee of that property.)

This leads to the question of the parties' status under the new Family Law Act. Sections 251 and 252 are the main parts of the new act that translate orders and agreements made under the old act. Section 251, which applies here, says this:

(1) If an agreement or order, made before the coming into force of this section, provides a party with

(a) custody or guardianship of a child, the party is a guardian of the child under this Act and has parental responsibilities and parenting time with respect to the child under this Act, or 

(b) access to, but not custody or guardianship of, a child, the party has contact with the child under this Act.

(2) For the purposes of subsection (1), a party's parental responsibilities, parenting time or contact with a child under this Act are as described in the agreement or order respecting custody, guardianship and access.

The parties' agreement gave the mother custody; she is clearly a guardian of the child. The court considered the father's status by comparing the rights of a guardian of the estate of a child under the old Family Relations Act to the rights of a "guardian" under the new Family Law Act. 

This is what s. 25 of the Family Relations Act said about the rights involved in guardianship:

(2) Subject to this Act, a guardian of the estate of a child has all powers over the estate of the child as a guardian appointed by will or otherwise had on May 19, 1917 in England under Acts 12, Charles the Second, chapter 24, and 49 and 50 Victoria, chapter 27, section 4.

Frequent readers will recall that these two acts are the UK Tenures Abolition Act of 1660 and the Guardianship of Infants Act of 1887. (I talk about these acts in my post "Supreme Court Releases Important Decision on Paramountcy Problem between Divorce Act and Family Law Act" and in some of my other writing on this issue.) After considering an amendment to this part of the Family Relations Act that never came into effect, the court concluded that the rights involved in being a guardian of the estate are similar to those of a trustee:

"[50] ... Equating the guardian of the estate with a trustee of the child’s property recognizes the obligation of a guardian of the estate to protect and manage the child’s property for the benefit of the child and the right of the guardian of the estate to control the child’s property to that end."

The decisions guardians can make under the new act are "parental responsibilities," and are listed at s. 41. Of all of those parental responsibilities, the court held that the rights of a guardian of the estate of a child were most similar to those found at s-s. (k):

(k) subject to any applicable provincial legislation,

(i) starting, defending, compromising or settling any proceeding relating to the child, and 

(ii) identifying, advancing and protecting the child's legal and financial interests;

To this point, then, the Court of Appeal has reached these three conclusions:

· If you were married and have an agreement — or, by extension, an order — that gives the other parent sole custody but doesn't say anything about guardianship, you are a guardian of the estate of the child under s. 27(2)(a) of the Family Relations Act. 

· As the guardian of the estate of the child, you are a trustee of the child's property and must "protect and manage the child’s property for the benefit of the child," and you have the right "to control the child's property" for that purpose.  

· These rights and duties are the same as having the parental responsibility, under s. 41(k) of the Family Law Act, for handling legal proceedings on behalf of the child and protecting the child's financial interests.

Now we need to get back to the translation provisions of s. 251. The parties had an agreement giving the mother sole custody, but the agreement didn't decide anything about guardianship. This is what the court said about the intention of s. 251 and its effect on the rights distributed by the parties' agreement:

"[58] Section 251 is a transitional provision. It should not be lightly interpreted as taking away substantive vested rights. ...

"[59] ... did the separation agreement, properly construed, take away [the father's] then vested (under s. 27 of the FLA) right to guardianship of the estate of the child? I think not. In my view, one should interpret the separation agreement, by referring to guardianship without more, as implicitly continuing the guardianship regime then in place which afforded joint guardianship to [the mother] and [the father] of the estate of the child. Section 251 does not affect this status."

And now we can add a fourth point to the court's conclusions:

· If you are guardian of the estate of a child, as a result of an old agreement or order, you are a guardian under the Family Law Act, with the parental responsibility set out at s. 41(k), and other parental responsibilities under s-ss. (h), (i) and (j) as may be necessary for you to act under s-s. (k).

However, whether you're a guardian as a result of an old agreement or order under s. 251 or because you're one of the people who are presumed to be guardians under s. 39 of the new act, your standing can also be taken away under s. 51, which says this:

(1) On application, a court may

(a) appoint a person as a child's guardian, or 

(b) ... terminate a person's guardianship of a child.

And in this case, the the court decided it should be taken away:

"[60] In my view, it would not be in the best interests of the child in all the circumstances to grant [the father] parental rights under s. 41(h), (i), (j) and (k) of the FLA."

At the end of the day, the result from the Court of Appeal was that the mother's application for the adoption of the child by her new spouse was refused. The father's standing as a guardian was terminated — although the court didn't quite put it that way, which is curious — and the order from trial giving the father contact with the child was continued, but on terms which included requiring the mother and her spouse to keep the father informed of certain decisions they might make in respect of the child.

Conclusion

This decision is enormously important, because I expect that many formerly married parents who had agreements and orders that just talked about sole custody and access probably read s. 251 as meaning that the parent with sole custody became the child's only guardian under the Family Law Act. The Court of Appeal has made it clear that such orders do not disturb the other parent's standing under s. 27 of the Family Relations Act as a guardian of the estate of the child, and that as a result of this standing, the other parent continues as a guardian under the Family Law Act, albeit as a guardian whose only parental responsibility is that found at s. 41(k).

The effect of continuing as a guardian under the Family Law Act is profound, for the following reasons.

· Only guardians have parental responsibilities under the act. (s. 40(1)) 

· As a guardian, you have parenting time with the child, not contact. Someone with parenting time also has "the parental responsibility of making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child." (s. 42(2)) 

· Only a guardian can apply to court for "directions respecting an issue affecting the child." (s. 49) 

· Only a guardian can object to another guardian's plans to move with the child, or apply for an order that the move be prevented. (ss. 68, 69(2))

Nothing in the Family Law Act restricts these rights because a guardian has a limited range of parental responsibilities. These rights are available simply because of the person's standing as a guardian.

However, some caution may perhaps be warranted. In my view, the scheme of the new act splits up the traditional concepts of "guardianship of the person of the child" and "guardianship of the estate of the child." Normally, when an agreement or order under the old act gave someone "guardianship," he or she had both kinds of guardianship, unless the agreement or order expressly said something different. Under the new act, however, it seems to me that a "guardian" is really a guardian only of the person of the child. 

Part 8 of the new act is titled "Children's Property," and deals with a person's rights and duties about children's property that are essentially the rights and duties of someone who is the guardian of the estate of the child. This is what s. 176 says:

Except as set out in section 178 [delivery of small property], a child's guardian is not, by reason only of being a guardian,

(a) a trustee of the child's property, or 

(b) entitled to give a valid discharge on receiving property on behalf of the child.

If the child's property is worth more than than $10,000 — the value of "small property," set out at s. 24 of the Family Law Act Regulation — a guardian is not automatically the trustee of the child's property. The trustee, whether a guardian, a parent or someone else, must be appointed by court order under s. 179; the child's guardians cannot make an agreement that someone will be the trustee of the child's property, the appointment can only be by court order.

As a result of Part 8 of the new act, it is not clear to me that someone who is the guardian of the estate of a child is necessarily a guardian with the power to exercise parental responsibilities. Without a doubt, the powers set out at s. 41 are rights that stem from a person's standing as guardianship of the person of a child, but the power of guardianship over children's estates is not a part of those rights and doesn't result merely from being the child's guardian. Part 8 provides a complete and separate code for the management of children's property that is not, or is scarcely, impinged upon by the parental responsibility of "identifying, advancing and protecting" the child's "financial interests" under s. 41(k)(ii).

My thanks to my colleague, James Cudmore, for bringing this important case to my attention.

Varying Entitlements Not Carried Forward in the FLA

I've been thinking more about the issues raised in my last post, "Court Declines to Determine Application of FLA to Unmarried Spouses Separating Before Act," about the transition to the new Family Law Act and was reminded about a really interesting Provincial Court case my friend Michelle Kinney mentioned that deals with a similar problem: what is the court's jurisdiction when it is asked to vary an order made under the Family Relations Act where the right to ask for the order is not carried forward in the Family Law Act?

The Family Relations Act allowed people to ask for a number of different orders that are no longer available under the Family Law Act. The most important of these are probably the right to ask for parental support, support payable by adults to their parents, and a parent's right to ask for child support from the other parent's new spouse while the parent and spouse are together; the case of D.J. and K.J. v. C.K. and T.K. is about child support.

Under the old act and the new, stepparents can be required to pay child support. Most people are pretty comfortable with that idea. However, the issue raised in cases like McFayden v. Faint and K.A.L. v. J.P.R. was whether a stepparent who is in a continuing relationship with a parent can be required to pay child support to the other parent, and the answer, under the old act, was that in certain circumstances they can. (For an explanation of why this was the case, see my post "Stepparent Caught by Hole in Family Relations Act.") The new law corrects this problem by saying, at s. 149(3)(b), that such applications cannot be brought until the stepparent and parent are separated, and as a result the stepparents in McFayden and K.A.L. find themselves in the unusual situation of being stuck paying child support under an order that could not be made under the present law of British Columbia.

This was more or less the case in D.J. v. C.K., where the parties wisely entered into a consent order (an order that everyone agrees the court should make) in 2011 that required the spouse of one of the parents to pay child support to the other parent. (I say "wisely," because this was the law of the land at that time, and it was prudent of everyone to make a deal rather than going through an expensive and time-consuming court hearing.) However, as time passed the stepparent's income must have gone up, and since the child support obligation of all payors, stepparents or not, is based on income, the recipient brought an application to vary (change) the amount of the stepparent's child support payments. Since this application would not be heard until after the Family Law Act was in effect, the stepparent cleverly made an application of his own to prevent the recipient's application from being heard, on the basis that since the order couldn't be made under the new act, it couldn't be varied under the new act.

(Let me pause here to comment about effect of orders made under the old act. Such orders, whether they could be made under the new act or not, continue to operate and are not affected by the repeal of the old act. This is addressed in several parts of the Interpretation Act:

35 (1) If all or part of an enactment is repealed, the repeal does not...

(c) affect a right or obligation acquired, accrued, accruing or incurred under the enactment so repealed, ...

36 (1) If an enactment ... is repealed and another enactment ... is substituted for it, ...

(b) every proceeding commenced under the former enactment must be continued under and in conformity with the new enactment so far as it may be done consistently with the new enactment, 

(c) the procedure established by the new enactment must be followed as far as it can be adapted in the recovery or enforcement of penalties and forfeitures incurred under the former enactment, in the enforcement of rights existing or accruing under the former enactment, and in a proceeding relating to matters that happened before the repeal, ...

37 (1) The repeal of all or part of an enactment, or the repeal of an enactment and the substitution for it of another enactment, or the amendment of an enactment must not be construed to be or to involve either a declaration that the enactment was or was considered by the Legislature or other body or person who enacted it to have been previously in force, or a declaration about the previous state of the law.

In other words, rights acquired under the Family Relations Act aren't cancelled because the old act has been repealed, and proceedings started under the old act must be continued under the new act in accordance with the new act.)

The stepparent's application was heard by Judge Birnie over the course of several days right after the Family Law Act came into effect, in March and April. This was how the judge characterized the stepparent's essential argument:

"[4] The Respondent argues that as of March 18, 2013 when the Family Relations Act was repealed and replaced by the Family Law Act no child support order, including any variation of an existing order, may be made against a step-parent if that person continues to reside with the biological parent. On an application to vary an existing order the Court may only affirm the order or cancel it. A variation is not permitted."

The respondent's argument was of course much more complicated and nuanced than this brief summary suggests; the argument is set out in detail at paragraphs 5 to 15 of this decision and it seems that the respondent's lawyer did a very good job indeed.

Ultimately, however, the respondent did not succeed. The court held that the right to vary an order is intrinsic to the order itself and cannot be separated from it:

"[17] At the heart of the respondent’s argument is the characterization of child support and the variation of child support as two separate rights. This approach fails to acknowledge the reality that the latter flows necessarily from the former. The right to claim maintenance is the essential right. The right to vary [support] in relation to the circumstances of the child or the payor parent, (and on behalf of either of them), is a right which flows from and cannot exist apart from the underlying support claim. ...

"[19] A [support] order is the key that opens the door to support payments. Applications to vary are, in essence, a means to ensure that an appropriate amount of support flows through the door – an amount which is fair to both the payor and the recipient. The right to vary is an essential component of the right to receive or the obligation to pay child support."

Unfortunately, because of s. 35(1)(c) of the Interpretation Act, the respondent could not argue that the original consent order was void as a result of the repeal of the Family Relations Act. The court further held that in absence of an express provision in the act that prohibited the variation of valid orders made under the former act, such orders can be varied where fairness so requires:

"[25] While the Family Relations Act is repealed effective March 18, 2013, the Family Law Act does not state that any rights or vested interests acquired under the Family Relations Act are extinguished. [The provision] that the coming into force of the Family Law Act is not a change in circumstances for the purpose of changing, suspending or terminating existing orders, suggests the contrary. It is an indication of a legislative intent that the new provisions are prospective only and not intended to disrupt existing rights. 

"[26] The fact that as of March 18, 2013 a [stepparent living with a parent] has no obligation to pay child support does not erase an obligation imposed prior to that date and this is so regardless of whether the legislature’s intent was to narrow what they considered to be an over-broad application of child support obligations in relation to step parents. 

"[27] The Family Law Act does not expressly state that a pre-existing order requiring a [stepparent living with a parent] to pay child support may not be varied and can only be understood to do so implicitly if the right to vary a support order is a right separate and distinct from the right to support which underlies it. ... 

"[28] This interpretation of legislative intent avoids the unfairness to both payor and recipient, of a child support order which cannot be varied in accordance with the circumstances of the parties, but can only be affirmed or terminated. It does not undermine the policy implemented by the Family Law Act toward a step parent’s obligation to pay child support. It simply means that the very few [stepparent living with a parent] who were bound by valid maintenance orders prior to March 18, 2013 continue to be bound to pay maintenance in accordance with their ability to earn income and the child’s needs and subject to the other factors which a court may consider in determining a step parent’s obligations."

My thanks to Michelle for bringing this case to my attention.

Court Declines to Determine Application of FLA to Unmarried Spouses Separating Before Act

The recent Supreme Court case of Bressette v. Henderson involved a couple in an unmarried spousal relationship from 2004 to 2012 and a claim for the division of property. This facts of this case raise two problems that many lawyers have had to grapple with since the Family Law Act came into force on 18 March 2013:

1. Do the property provisions of the new act apply to unmarried spouses who separated before 18 March 2013?
2. Can a unmarried spouse who started a claim before 18 March 2013 amend her claim after that date to claim under the new act?

The first question is of critical importance as unmarried couples — spouses or not — were not entitled to an automatic interest in family assets under the old Family Relations Act and could only make claims to property held in just one person's name under the common law of trusts, which was complex and rarely yielded results close to what the couple would have had if they had been married.

Under s. 94 of the Family Law Act, however, spouses may apply for an order dividing property and debt. Section 3 defines "spouse" as including people who have lived in a marriage-like relationship for at least two years and people who used to be spouses. Section 198 says that an unmarried spouse must make a claim within two years of the date of separation. As a result, it would seem that if you meet the definition of spouse at s. 3 and you are within the time limit of s. 198, you may make a claim for the division of property under the new act.

The issue then narrows to this: if a new law gives you a right to make a claim against someone in certain certain circumstances, can you make that claim even though the circumstances occurred before the law came into effect? Think of it like this. Say a brand new law says that you can sue someone for reading your email. If the new law comes into effect in August, can you sue someone for reading your email in July?

Some of the answers lie in the provincial Interpretation Act. Section 4 of that act says that an act must be read as "commencing at the beginning of the day on which it comes into force." Section 3 says that if a new act says that it is meant to apply before it comes into force, then when the act comes into force it is retroactive to the date specified in the act. In other words, an act starts on the day it comes into force and had no earlier effect unless it says it has that effect.

In the case of the law about reading email, the law creates a new cause of action (a reason to sue someone) that didn't exist in July when the misconduct occurred. Unless the new act says that people can sue for instances of email-reading occurring earlier than August, you wouldn't be able to sue the person for reading your email in July.

The subtle difference about the Family Law Act is that the new cause of action it provides (unmarried spouses' right to sue for a share of family property) took effect on 18 March 2013 when the law came into effect, without any retroactive effect, but the definition of "spouse" captured people who were in a qualifying relationship on and after 18 March 2011. Let me put it another way. On 17 March 2013, an unmarried spouse couldn't sue for a share of the family assets, but on 18 March 2013 she could sue for a share of the family property, because that's when the new law came into effect along with its new definition of spouse and its new cause of action. However, the effect of the definition also captures unmarried spouses who were separated on or before 18 March 2013 and as a result, someone who met the definition of spouse on 18 March 2013 gained a new cause of action on that date, and the new act does not actually have a retroactive effect.

The second question is a bit different. If you started a court proceeding prior to 18 March 2013, can you change that claims you're making to include the new cause of action? Frankly, I don't see why not. Some might say "but that law never applied during our relationship," but that doesn't really matter; the government changed the law and if you're going to court that's the law that the court must apply, whether you meant it to or not. Others might say "but that wasn't the law when you started your claim," and that's the better argument. The idea here is that when you start a court proceeding against someone, the claim that you file in court sets out the full claim you are making and crystallizes the legal issues between the claimant and the respondent. However, the rules of the Supreme Court, say that you can change your claim as long as you do it a certain number of days before trial, and the reasons why people usually change their claims is to remove a legal issue or to add a legal issue, and so I'm not sure that this would get you anywhere.

As a result, I can't see why an unmarried spouse who starts a court proceeding before 18 March 2013 couldn't amend his or her claim to claim under the new act. The only restriction I can see is that the person would probably need to qualify as a "spouse" at the time the amendment is made.

By now you're probably asking why I've spent so much time babbling about my views on things when I started off talking about a case. The answer is that these questions were raised in the case:

"[120] The respondent argues that the FLA cannot possibly apply, given that the entire course of the parties' relationship was over before the new regime came into effect. The claimant says that it does apply."

However, the issues was not fully argued and, recognizing the significance of a decision on this point of law, the court commented that

"[131] I am concerned about deciding the issue of the applicability of the FLA in the absence of full legal argument."

and ultimately declined to do so. Her are Her Ladyship's helpful observations in this regard:

"[133] I have concluded that applying the 'significantly unfair' test [to unequally divided family property] in the unique circumstances of this case would lead me to the same conclusions I have reached with respect to the claimant's common‑law claim based on unjust enrichment. In other words, even if the FLA were to apply in this case, it would not change the result that I would reached based on the unjust enrichment cause of action.  

"[134] The unjust enrichment legal cause of action is based on fairness, or equity, and as such is intended to be flexible and to take into account the many varieties of relationships that may exist. An important factor running throughout the authorities in determining whether or not there has been unjust enrichment is the legitimate expectations of the parties. Here, if the FLA was applicable to these parties, it would be 'significantly unfair' to reach a different result than that based on the unjust enrichment remedy, given that the common‑law remedy is based on fairness and the legitimate expectations of the parties. Here the parties never considered or expected that there would be a new statutory regime applicable to the relationship during the course of the relationship. ... 

"[137] The fact is that neither party had the option of changing the relationship or reaching an agreement that would take into account the new statutory regime, the FLA, because their relationship had run its course before the new regime was brought into force. 

"[138] In addition to the above reasons, other factors I would consider under the FLA in reaching the conclusion that equal division of all family property would be significantly unfair would include the same factors I have considered in determining the unjust enrichment claim which I will now address, including: the duration of the relationship; the parties' intentions and expectations during the relationship; and the parties' respective direct and indirect contributions to the acquisition of property during the relationship."

This case is of primary utility, I think, for its concise summary of the law on trust claims to property and overview of the property provisions of the Family Law Act. It may also be useful for the court's conclusions on what constitutes "significant unfairness" under s. 95 of the act, however I would be hesitate to place too much emphasis on this aspect of the decision given the court's position on the application of the act.

My thanks to my former colleague, Thomas Wallwork, for bringing this interesting case to my attention.

Helpful Decision on Finality of Divorce Act Orders Released

Mr. Justice Grauer of our Supreme Court has recently published his decision in Pozzobon v. Pozzobon. The case concerns a father's application to have the primary residence of his daughter moved from her mother's house in Alberta to his house in British Columbia. This case continues and to some extent clarifies the discussion begun in Yu v. Jordan about when a Divorce Act order is a final order.

The relevant facts are these. In 2010, the parties agreed to an order at a judicial case conference dealing with custody, guardianship and access. They agreed that the daughter's primary residence would be with the mother, and they believed that the JCC order was a final order. In 2011, the parties agreed to an order varying the JCC order to allow the mother and child to move to Alberta. In 2013, the father applied to vary the JCC order to give the child's primary residence to him. The parties had not yet been divorced at the time of the application.

The importance of the finality of the JCC order concerns the test that must be met to vary the order. To answer this threshold question, the court was required to determine whether the order had been made under the Divorce Act or the old Family Relations Act, and then whether the order was an interim order or a final order.

Prior to the new Family Law Act coming into force, the question of whether an order about children between married spouses was a Divorce Act order or a Family Relations Act order rarely mattered. Because the two laws talked in about the care of children in a compatible manner, it was commonplace for an order to simply grant custody without being more specific. This issue could sometimes become important, however, if a spouse applied to change the order.

Under s. 20 of the Family Relations Act, the court could vary an order if there had been a change in circumstances since the order was made:

Subject to this Act, if a court has made an order under this Act ... the court may, on application, vary or rescind the order if circumstances have changed since the order was made or last varied.

Under s. 16 of the Divorce Act, however, the court may vary an interim order without needing proof of a change in circumstances:

(1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage.

(2) Where an application is made under subsection (1), the court may, on application by either or both spouses or by any other person, make an interim order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage pending determination of the application under subsection (1).

Sections 17(1) and (5) of the Divorce Act concern the varying of final orders, and do require a change in circumstances:

(1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively, ... a custody order or any provision thereof on application by either or both former spouses or by any other person. 

(5) Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change.

Did you catch the reference in s. 17(1), about an application by a "former spouse"? In order to be a former spouse entitled to apply to vary an order the spouse must be divorced, of course, and until the spouse is divorced the requirement of a change under s. 17(5) isn't required.

In other words, if you want to change an order about the care of children, if the order is an interim order under the Divorce Act, you just get to apply and the court will usually consider the question of custody and access anew. If the order is a Family Relations Act order or a final Divorce Act order, you must first prove that there has been an important change in circumstances before the court can hear your application. As a result, the status of the order and the law it was made under were critical to the father's application.

The court resolved the question of the order's status by referring to the recent decision of our Court of Appeal in Yu v. Jordan, and quoting from paragraph 47:

"It is common ground that an order for corollary relief in a divorce action that pleads both the Divorce Act and the [Family Relations Act] cannot be a final order for corollary relief under the Divorce Act absent the granting of an order for divorce. Such an order will remain an interim order under the Divorce Act until the divorce is granted. Final corollary relief under the Divorce Act can be granted only upon the granting of an order for divorce..."

In other words, when a claim asks for orders about the children under both the Divorce Act and the provincial legislation, the order will never be a final order until a divorce is granted, regardless of the intention or understanding of the parties to the order. As Mr. Justice Grauer put it, "because no order for divorce has been pronounced, any order under the Divorce Act is perforce an interim order no matter what the parties contemplated or the order states."

My thanks to my colleague Kathryn Robinson for bringing this case to my attention.

Out With the Old, In With the New: Changes to plan for in 2013

The last few years have welcomed a range of important reforms affecting the practice of family law in British Columbia, including the new Supreme Court Family Rules, recalculated child support tables, the extension of the Notice to Mediate Regulation to family law matters and the expansion of the family law justice centre court model beyond Nanaimo. 2013 is going to be no different. In fact, in 2013 we are going to undergo reforms of a scope and magnitude not seen in the last thirty years. If the changes implemented in 2010, 2011 and 2012 were not your cup of tea, you are going to hate 2013. Read on.

The Family Law Act

The coming-into-force of the new Family Law Act will be the major event of 2013, no doubt about it. The new act will replace the Family Relations Act, which has been at the core of the law on domestic relations in British Columbia since 1972. 

Here are the highlights of the changes to expect on 18 March 2013:

• Family violence: Under the new act, family violence will be a factor which must be considered when the court is making decisions about children. The court will also be able to make protection orders to protect children and adults who are at risk of family violence.
• Parentage: We will have a complete code for determining a child's parentage, including when a child is conceived as a result of assisted reproduction. When assisted reproduction is used, a child may have more than two legal parents.
• Children's best interests: The list of factors that parents and the court must consider when making decisions about children will grow significantly, and will include family violence and a presumption that children's views should heard.
• Guardianship: The new act will give us a new definition of guardianship which takes us back in time to the old common law meaning of the term. Under the new act, subject to some exceptions, parents will usually be a child's guardians during their relationship and after separation. A guardian will be able to appoint a person to act as guardian in the event of his or her illness or death.
• Parental responsibilities: The decisions a child's guardians must make about raising the child will be called parental responsibilities, and will cover everything from where the child goes to school and how the child's health care is managed to signing permission slips for field trips. Only guardians will have parental responsibilities.
• Parenting time and contact: The time a guardian has with a child will be called parenting time. The time that someone who isn't a guardian has with a child will be called contact.
• Child support: Under the new act, the child support duties of a stepparent will be secondary to those of a parent, and the amount that the stepparent must pay will be determined considering the length of time the child and stepparent lived together and the child's standard of living during that time. A person paying support may also be required to carry life insurance to secure his or her obligation.
• Spousal support: People who have lived together for less than two years and have had a child together will be eligible for spousal support. Orders and agreements for spousal support may be reviewable. A person paying support may also be required to carry life insurance to secure his or her obligation.
• Property and debt: The new act will let people keep the property they owned going into to the relationship but require them to share any property or debt acquired after the date of marriage or the date they began to live together, whichever was first, plus the increase in value of any property brought into the relationship. People will also be able to keep other kinds of property they acquire during the relationship, such as inheritances, court awards and insurance payments. The property and debt provisions of the new act will apply to married and unmarried spouses.

Some amendments are likely planned to fix the very small number of problems in the new legislation that were overlooked in the drafting process. However, the next session of the Legislative Assembly, which will probably not begin until February or so, is going to be somewhat preoccupied with matters leading to the mandatory provincial election in May. As a result, it is very unlikely that the Family Law Act will be amended until the fall sitting.

You can read more about the Family Law Act in my Family Law Act Information & Resources page or in the helpful website on the new act put together by the Ministry of Justice.

The Regulations to the Family Law Act

Two main regulations will come into effect with the Family Law Act, the Family Law Act Regulation and the Family Law Act Pension Regulation. There are a few dozen other regulations that will come into effect at the same time, but these are largely housekeeping regulations that change other regulations to refer to the Family Law Act rather than the Family Relations Act.

The Family Law Act Pension Regulation deals with, well, pensions. No surprises there.

The Family Law Act Regulation covers a number of important subjects including:

• the roles and responsibilities of Family Justice Counsellors
• the training and experience people will have to have to work as Family Law Mediators, Family Law Arbitrators and Parenting Coordinators under the new act
• adopting the federal Child Support Guidelines as the Guidelines for the Family Law Act and translating the new act for the purposes of those Guidelines

The Ministry of Justice has written a helpful guide to the Family Law Act Regulation (PDF). You can find links to the new regulations in PDF format in my post "Regulations to Family Law Act Published."

The Family Relations Act

The Family Relations Act, and the regulations made under the Family Relations Act, will all be repealed when the Family Law Act comes into force on 18 March 2013. The repealed regulations include the Child Support Guidelines Regulation, the Division of Pensions Regulation and the Family Relations Act Rules and Regulations Regulation.

The Divorce Act

I am not aware of any changes planned for the Divorce Act. However, it's worth saying that among the things that will be staying the same under the Divorce Act are:

• Custody: The right to physical possession of a child and certain rights, almost like those of a guardian, to make decisions regarding the care and upbringing of the child.
• Access: The time a person has with a child under an order or agreement.
• Child support: The obligation of a spouse or stepparent to contribute to the costs of raising a child, as determined under the Child Support Guidelines.
• Spousal support: The obligation of a spouse to contribute to the living expenses of the other spouse, where that spouse has demonstrated an entitlement to receive it.

As a result, when the Family Law Act comes into force, married spouses will be subject to two slightly different rules for determining child support and spousal support, and to two very different schemes for the care and control of children.

The Child Support Guidelines

I am not aware of any changes planned for the Child Support Guidelines. The Guidelines tables were last amended on 31 December 2011, which means that the next amendment is unlikely to occur prior to 2016.

The Rules of Court

Both the Supreme Court Family Rules and the Provincial Court (Family) Rules will be amended on 18 March 2013 to accommodate the Family Law Act. Both sets of rules will be updated to:

• implement the new terminology used by the Family Law Act (for example, parental responsibilities, parenting time and parentage tests)
• address the new concepts introduced in the act (for example, parenting coordination, conduct orders and protection orders)
• address new processes established by the act (for example, the enforcement of orders and applications to enforce or set aside the determinations of parenting coordinators)
• delete reference to concepts not carried forward by the act (for example, restraining orders, parental support and declarations of irreconcilability)

The changes to the Provincial Court rules were somewhat more extensive given their antiquity, however the Minister of Justice has promised a complete overhaul of the rules for sometime in 2013 or 2014.

I expect that further updates to both sets of rules will be announced in the next few months to address the requirements of s. 51(2) of the new act concerning applications to be appointed as a child's guardian:

"An applicant under subsection (1) (a) of this section must provide evidence to the court, in accordance with the Supreme Court Family Rules or the Provincial Court (Family) Rules, respecting the best interests of the child as described in section 37 [best interests of child] of this Act."

An overview of the changes can be found at the Ministry's website on the new legislation. I have also discussed the updates to the rules in my post "Family Law Act: Changes to Rules of Court."

The Limitation Act

A brand new Limitation Act will come into force on 1 June 2013. Among other things, the new act exempts arrears of child support and spousal support from any limitation period, which means that once arrears have accumulated under ss. 148 or 163 of the Family Law Act, or the equivalent sections of the Family Relations Act, they can always be enforced.

I have briefly discussed the new new act in my post "New Legislation Will End Limitation Period for Claims on Arrears of Support." The old Limitation Act can be found on the excellent website of the Queen's Printer.

Family Day

Thanks to Premier Clark's ambitious families first agenda, our province's first Family Day will be celebrated with a day off on the second Monday of February; this year, on 11 February 2013. Huzzah!

New Practice Standards for Lawyers

On 7 September 2012, the Law Society adopted new practice standards (PDF) for lawyers wishing to practice as Family Law Mediators, Family Law Arbitrators and Parenting Coordinators when the new Family Law Act comes into force. The new standards are onerous but are, in my view, appropriately high.

I have discussed the new practice standards in my post "Family Law Act: Law Society Task Force Releases Practice Requirements, Government Announces No Fall Sitting."

People who are not lawyers and wish to practice as Family Law Mediators, Family Law Arbitrators and Parenting Coordinators must meet the training requirements set out in the Family Law Act Regulation; lawyers who wish to practice in these areas must meet both the requirements of the regulation and the standards set by the Law Society.

New Code of Professional Conduct for Lawyers

The Law Society has implemented a new Code of Professional Conduct (PDF) to replace the old Professional Conduct Handbook, effective today. The code covers most aspects of lawyers' ethical obligations, including confidentiality, conflicts of interest and advertising, and is part of an effort to promote greater uniformity among the practice codes of the various provinces and territories.

I have discussed the new code in my post "New Code of Professional Conduct in Force in January." You can read more about the new code in the Law Society's Bencher's Bulletin newsletter.

Designated Paralegal Pilot Project

Beginning on 1 January 2013, the scope of practice allowed to paralegals under the Law Society's pilot project will expand to allow designated paralegals to appear in court.

In the Vancouver, New Westminster and Kamloops Supreme Court registries only, designated paralegals may apply for a wide variety of uncontested orders, largely concerning procedure and file management, and may make contested applications for the following orders:

• compelling the production of documents
• changing the place of an examination for discovery
• the payment of child support where the children are below the age of majority and the payor's annual income is less than $150,000

In the Caribou/Northeast District and Surrey Provincial Court registries only, designated paralegals may apply for the same sort of uncontested orders and may make contested applications for the following orders:

• compelling the production of documents
• compelling the production of financial statements and financial documents
• the payment of child support where the children are below the age of majority, the payor's annual income is less than $150,000 and the application does not involve situations of shared or split custody or a claim of undue hardship

For more information, see the paralegals page on the Law Society's website.

Provincial Sales Tax

Remember the PST? It's back on 1 April 2013. Lawyer's fees are subject to PST and GST; fees charged by lawyers acting as mediators are subject only to GST.

Happy new year.

Trio Tie the Knot in Brazil

CNN reports that a public notary in Brazil has "set off a firestorm" by granting a civil union registration to a trio composed of one man and two women. According to the article, the three live together and love one another like persons in any other cohabiting relationship, and granting the registration will give the trio the legal benefits of marriage and recognition as a family unit.

This raises of course, a question that has been waiting to be raised in British Columbia for some time now. The Family Relations Act defines "spouse" as including married spouses and persons for have "lived with another person in a marriage-like relationship for a period of at least 2 years." Nothing in this definition says that you can't be living with more than one person in a marriage-like relationship, although I think you would have to read the definition as establishing separate spousal relationships among the parties to the relationship. In other words, A would be in a spousal relationship with B while simultaneously being a spousal relationship with C, and B and C would have a spousal relationship of their own. The definition of spouse in the Family Law Act also allows for this eventuality.

The point, of course, is that being in a spousal relationship provides certain legal entitlements that arise on the breakdown of that relationship. Under the Family Relations Act these involve spousal support and obligations in respect of stepchildren. Under the Family Law Act, unmarried spouses will also be entitled to share in family property.

My thanks to my friend and colleague Agnes Huang for sharing the CNN article with me.

Family Law Act Introduced!

Attorney General Shirley Bond has this afternoon tabled Bill 16, the Family Law Act, for first reading in the Legislature. Assuming the bill becomes law, which seems a near inevitability given the government's comfortable majority at present, the new Family Law Act will completely revamp British Columbia's law on domestic relations and give us the most progressive legislation on relationship breakdown in the country.

In this post I will provide a rough summary of the key features of the proposed Family Law Act. Later posts will provide more details and better analysis, and examine some of the technical issues relating to the implementation of the new legislation. For more information about the background to the bill, click on the "White Paper" and "Family Relations Act" labels below.

A new emphasis on out-of-court resolution

The act encourages the resolution of family law problems by means other than litigation. The act gives equal emphasis to agreements and court orders, and provides better support for out of court negotiations 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 act will give the court new authority to refer parties to counselling and to out-of-court dispute resolution services like counselling and mediation, including as a means of helping parties comply with court orders. The court will be able to appoint a parenting coordinator to manage the implementation of orders and agreements involving children, even over the objection of a party.

The act also provides improved support for the arbitration of family law disputes and will make a host of changes to the Commercial Arbitration Act to better accommodate family law disputes.

A child-focused approach to parenting after separation

The new act throws out 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.

Under the act, parents who have lived together after their child was born will be the child's guardians until they agree or a court orders otherwise.

People who are guardians, which may include people other than parents, have parental responsibilities in respect of the child, including the duty to raise the child, to make decisions about where the child lives and with whom the child spends time, and to make choices about the child's medical care, school, religion and so forth. Parental responsibilities can be divided or shared between guardians. The time a child is with a guardian is parenting time, and references in the legislation to parenting arrangements means arrangements made in respect of parental responsibilities and parenting time.

People who are not guardians, including parents who are not guardians, have contact with a child and do not have parental responsibilities. "Parenting arrangements" does not include arrangements made in respect of contact.

A new approach to the best interests of children

Decisions about parenting arrangements and contact, whether in an order or an agreement, are to be made in the best interests of the child. The best interests of the child are no longer the "paramount" consideration but the only consideration the court or the parties may take into account when making an order or agreement affecting a child.

The act provides a new, expanded definition of best interests which, among other things, requires consideration of: the child's views and wishes, the history of the child's care, the capacity of the child's parents, and any history of family violence. The act requires the court to assess the nature, extent and impact of family violence on the child's well being and provides a list of factors which the court must consider in making this assessment.

Planning for a parent's incapacity

The act allows guardians to appoint stand-by guardians to take over a guardian's parental responsibilities in the event the guardian is no longer able to manage those responsibilities. The appointment may take effect on the guardian's incapacity and may be permanent or last only for the duration of incapacity.

A guardian may also appoint a person to take over in the event of the guardian's death. Testamentary guardians may be appointed by the deceased guardian's will or through the execution of a new form.

Managing children's property

Under the new act, parents are not presumptively entitled to act as guardians of their children's property, except for property with a value less than a certain amount. Property guardians, who may include parents, must be appointed by the court in consultation with the Public Guardian and Trustee.

At last, some rules about moving with a child!

The act provides a mechanism to address mobility issues. This is welcome indeed as the law on this extremely difficult issue has so far been entirely governed by case law, much of which is inconsistent to the point of being contradictory, despite the Supreme Court of Canada's decision in Gordon v. Goertz.

Under the new act, a guardian wishing to "relocate" with a child will have to give 60 days' notice to anyone else who is a guardian or has contact with the child. Relocation means a change in a child’s residence “that can be reasonably be expected to have a significant impact on a child’s relationship” with a guardian or another significant person. A guardian who opposes a proposed relocation will have 30 days to from delivery of the notice to file an objection.

The act provides a test to determine whether the court should allow a proposed relocation when negotiations between the parties have failed: the guardian wishing to move must prove that the proposed move is being made in good faith and that reasonable arrangements have been made to preserve the child's relationship with the parent who is not moving. When the guardians have equal or almost equal parenting time, the guardian wishing to move must also prove that the move is in the child's best interests.

New rules about assisted reproduction

The new act makes extensive provisions for people having children by assisted reproduction. Until now assisted reproduction has been governed only by the federal Assisted Human Reproduction Act and the common law; there was no provincial legislation on the subject.

Under the Family Law Act, people will be able to contract for the donation of sperm or eggs, or for a woman to act as a surrogate mother carrying an embryo created with any combination of donated gametes, including or not the gametes of the people wishing to have the child. These contracts, as long as they are executed prior to conception, will be sufficient to determine the legal parentage of a child, and, if the parties to the agreement wish, can name more than just the people wishing to have the child as parents. A donor or surrogate may also be a legal parent.

Prioritizing child support obligations

Under the new act, as under the current law, parents as well as stepparents and guardians are responsible to pay child support. The new act will make the duty of a guardian who isn't a parent secondary to that of a parent, and a stepparent's duty to pay child support secondary to that of a non-parent guardian.

A payor's obligation to pay child support will continue to take priority over any obligation to pay spousal support, meaning that if a payor can't pay both amounts only child support will be payable. However, the end of a child support obligation may result in a reconsideration of the payor's spousal support obligation.

Independent children under the age of majority

Children younger than age 19 may stop being entitled to child support where they have voluntarily withdrawn from their parents' care, for reasons other than family violence or intolerable living conditions.

An expanded definition of "spouse" for spousal support

"Spouses" are entitled to apply for spousal support. Spouse, for the purposes of spousal support applications, includes:

1. people who are married or who used to be married;
2. unmarried people who have lived together in marriage-like relationships for more than two years; and,
   
3. unmarried people who have lived together for less than two years but have had a child together.

Married spouses must apply for spousal support under the new act within two years of divorce or the annulment of their marriage. Unmarried spouses must apply within two years of the date of their separation.

Harmonizing spousal support with the Divorce Act

The provisions for spousal support in the new legislation mirror those set out in the federal Divorce Act. A spouse's entitlement to support is determined by reference to a list of objectives and, once entitlement is found, the amount of support payable and the length of time it will be payable for are determined by reference to a list of factors.

The Spousal Support Advisory Guidelines is not referenced in the new legislation. This continues the present status of the Advisory Guidelines, which is not a law and has been formally adopted by neither the Divorce Act nor the Family Relations Act.

A limited revival of misconduct

Spousal misconduct has been a forbidden consideration since introduction of the no-fault amendments to the Divorce Act in 1968; before those amendments, spousal misconduct, such as committing adultery or being abusive, was a legitimate consideration in making or refusing to make a spousal support order.

The new act will allow the court to consider misconduct which causes or prolongs a spouse's need for support as well as misconduct which unreasonably affects the capacity of a spouse to pay support. The point here, I think, is to penalize: goldbricking spouses who fail to take meaningful steps to become self-sufficient within a reasonable period of time; oppressive behaviour which hinders or delays a spouse's ability to be self-sufficient; and, spouses who arrange a decrease in personal income to duck a support obligation.

Reviewable arrangements for spousal support

Orders and agreements on spousal support may require that provisions for spousal support be reviewable. A review can happen at a certain date or upon the occurrence of a specific event, and the order or agreement can specify how the review will occur — such as by a court hearing or by a process of mediation — and what issues or circumstances will be considered at the review.

Under the act, spousal support will also be reviewable when a spouse becomes entitled to receive benefits from a pension, whether the order or agreement provides for a review in those circumstances or not.

Making support obligations binding on a payor's estate

Orders and agreements for child support and spousal support can be made binding on a payor's estate. The court can also require a payor to maintain a life insurance with a spouse or child named as the beneficiary of the policy.

A new, more intuitive scheme for property division

Under the new act, there will be two categories of asset, assets presumptively excluded from division and assets presumptively divided equally. Under the Family Relations Act, almost all property owned by either or both spouses was up for division, regardless of who owned an asset or when it was acquired; all that mattered was whether the property was "ordinarily used for a family purpose."

Under the new act, excluded property includes assets acquired by a spouse before the relationship, gifts and inheritances received by a spouse, certain kinds of court awards and certain kinds of insurance payments. Except for the increase in value of excluded property during the relationship, excluded property remains the property of the spouse who acquired it.

Family property is primarily composed of the assets acquired by either spouse during the relationship and is owned by a spouse at the date of separation. Family property is presumptively shared equally between spouses.

The court can divide excluded property or reapportion family property but only when it would be "significantly unfair" not to do so. The point here, I think, is to raise the threshold of unfairness that must be met before the court can depart from the presumptive property division scheme.

As if these changes weren't enough, the new scheme for property division will apply to married spouses as well as unmarried people who have lived together for more than two years! This is a really important feature of the new law because unmarried couples are cut out of the parts of the Family Relations Act which divide property between married spouses, largely leaving unmarried people stuck with difficult and often unsatisfactory claims based on unjust enrichment and trust law.

Allocating responsibility for debts

The act will also allow the court to divide responsibility for "family debts" between spouses. Family debts are debts incurred during the relationship, or incurred to maintain family property after separation, and is presumptively shared equally between spouses

Addressing family violence

The act has a new definition of family violence which includes, in addition to physical abuse, sexual, emotional and psychological abuse, forcible confinement and restriction of a person's autonomy, and withholding the necessities of life.

When a person is at risk of family violence, the court may make a protection order which can include provisions restricting contact between the parties, restraining a party from going to the family home, restraining stalking-type behaviour, or restraining a party from possessing weapons. The new act provides that where another order under the Family Law Act conflicts with a protection order, the terms of that order are suspended to the extent of the conflict. This could mean, for example, that a protection order preventing communication between the parties might result in the suspension of a separate order for contact or parenting time if that order would normally require communication between the parties.

The Family Law Act contains no provisions to enforce protection orders. Instead, such orders can only be enforced by the police through s. 127(1) of the Criminal Code which makes it an offence to breach a court order.

Better management of court processes

Under the act, the court will be able to make a number of conduct orders intended to help the court manage its processes, manage the parties before it and encourage the settlement of disputes. Among other things, the court can order that parties attend counselling, impose restrictions on how they communicate with each other, and require that a party post a bond to secure his or her good behaviour.

Conduct orders include case management orders such as an order striking or dismissing all or part of a claim, an order prohibiting a party from bringing further applications without permission from the court, or an order requiring all further applications to be heard by the same judge.

The new act enhances the court's ability to enforce its own orders — except for the enforcement of protection orders — and the court may order that a party post security for the party's compliance with an order, pay the other party's expenses for enforcing an order, or pay a fine of up to $5,000. Where nothing else will secure a party's compliance, the court may order that the party be jailed for up to 30 days. These provisions apply to the provincial court as well as a the supreme court, and will significantly improve the provincial court's ability to deal with parties in contempt of court.

What else is going on?

In anticipation of the new act, the Supreme Court has revived its rules committee — yes, the committee which was responsible for the brand new family law rules introduced last summer — to overhaul them again to accommodate the new language, new processes and new orders available under the Family Law Act. The Provincial Court has struck a rules committee to the same purpose.

Whatever changes may flow from rules committees' recommendations, they are unlikely take effect any sooner than the coming into force of the new act.

A few final, but still preliminary, thoughts

I am, on the whole, tremendously impressed with the proposed legislation. It is progressive and forward-thinking, and puts the entitlements of children before the rights of their parents. It brings the law on domestic relations in British Columbia into the twenty-first century by squarely addressing the complex issue of assisted human reproduction, the nuanced impact of family violence and the increasing prevalence of long-term unmarried relationships. It also fixes a number of existing problems by giving the provincial court the teeth to enforce its own orders and by bringing the mechanics of property division more in line with people's intuitive expectations.

It remains to be seen, however, how the new act will work in practice. It is not clear to me, for example, how the enforcement of protection orders through the Criminal Code will work. Will the police cooperate in enforcing protection orders? Will enforcement get bogged down by the much higher burden of proof that applies in criminal matters? Or, to take a different subject, how will the presumption of shared guardianship unfold? Will it work to effectively and efficiently promote children's best interests, or will it instead encourage litigation by forcing angry parents into court to get an order terminating shared guardianship?

Despite these concerns, concerns which are relatively minor in light of the astonishing breadth of the new law, I remain optimistic that this legislation represents a significant and positive advancement over the the present law. The staff of the Ministry of the Attorney General have devoted an enormous amount of time to this project over the past five years and their efforts are to be recognized and applauded.

The Attorney General's news release on the new act can be found on the provincial government website. (One small correction, though: the first Family Relations Act was introduced in 1972, not 1978.)

Follow the new label "Family Law Act" to track my future posts on the new legislation.

Update: 15 November 2011

You can listen to me talk about the new legislation with Mark Forsythe on CBC Radio's BC Almanac. Topics discussed include the new roles of mediation and arbitration, custody and access reports and views of the child reports, spousal support and the new best interests of the child test.

You can read another post of mine on the background of the Family Law Act at Courthouse Libraries BC's The Stream. This post is written for lawyers and is somewhat more technical in nature.