Reports on Justice Forums Released

The BC Ministry of Justice has just released its summary report (PDF) of the proceedings at the third justice summit, held on 4 and 5 May 2014 in Vancouver. The report offers no tidy synopsis, but the topics discussed at the summit included the early resolution of legal disputes, resolving legal disputes out of court, improving court processes, and assessing the outcomes of a reformed justice system.

These summits are mandated by s. 9 of the Justice Reform and Transparency Act. Reports on all three summits to date can be found on the Ministry's website.

Not to be outdone, Alberta Justice and Solicitor General has published its report (PDF) of the proceedings at the Joint Action Forum on civil and family justice held in Edmonton on 20 November 2013. The purposes of the forum were to discuss the current state of the justice system and what an improved, "citizen-centred" justice might look like, and discuss how movement toward a reformed system may be initiated.

If I Were Tyrant: Three Changes I Would Make to the Legislation on Family Law

In response to my recent post on the unlamented defeat of Bill C-560, a reader asked:

"So if not this bill then what? What improvements would you like to see the federal / provincial government make?"

Although the question presupposes that the bill was intended to address an actual need, it raises a interesting though ultimately vainglorious and egocentric point. What would I do to improve the federal and provincial legislation on family law?

1. Get the federal government out of the corollary relief business.

The Constitution Act, 1867 is Canada's main constitutional document and, among other things, divides the powers involved in running a country between the federal government and the provincial governments. Under s. 91, the federal government has the power to make laws about marriage and divorce. Under s. 92, the provincial governments have the power to make laws about property, civil rights and "Generally all Matters of a merely local or private Nature in the Province."

Even though the federal government could make laws about divorce, it didn't bother doing so until 1968, by which time all of the provinces and territories had developed a good set of laws dealing with things like:

• the legitimacy of children and establishing their paternity,
• parenting arrangements after separation, 
• child support, spousal support and parental support, and
• the division of matrimonial property.

In passing the first Divorce Act, the federal government decided to include rules about parenting arrangements, child support and spousal support, partly because that's what they were doing in England and partly because these issues were thought to be "necessarily connected" to divorce. Of course, at the time hardly anyone was living in sin. If you were living together, you were married.

Today's Divorce Act still talks about the care of children, which it discusses in term of custody and access, and about child support and spousal support.  It also has rules about divorce orders, when the court has jurisdiction to make divorce orders, when divorce orders take effect, appeals of divorce orders and the recognition of foreign divorce orders.

I don't have a problem with the parts of the act about divorce, of course, but I do have a problem with the rest of it.

First, the Divorce Act only applies to people who are or used to be married to each other. This creates a two-tiered system of laws, with one set (the provincial laws) applying to everyone and another (the Divorce Act) applying only to married couples. The Divorce Act has subtly different rules that distinguish it from provincial legislation, including on variation applications, how people qualify as stepparents and when people other than spouses can ask for orders about children.

Second, the Divorce Act's language of "custody" and "access" doesn't mesh terribly well with the laws of provinces which have adopted more progressive terminology and concepts, like those of Alberta and British Columbia that talk about the care of children in terms of guardians who have parental responsibilities and parenting time, and people who are not guardians who have contact. There is a serious legal debate about guardianship and custody and whether all of the rights involved in guardianship are exhausted by orders about custody or vice versa, besides which the use of two different legal concepts to describe the rights of parents is ridiculously confusing and unnecessary. Quite apart from all of that, why should the provinces' ability to reform family law be at the mercy of the legislative agenda of the federal government?

Thirdly, the Divorce Act doesn't talk about property. This means you have provincial laws that deal with everything involved when a couple splits up and a federal law that deals only with some things. This is confusing and counterintuitive to say the least.

Fourthly, provincial courts generally don't have jurisdiction to make orders under the Divorce Act, including orders about children and divorce, while the provinces' superior courts can make orders under both the Divorce Act and the provincial legislation. Since the provincial courts are generally cheaper to make claims in than the superior courts, and their rules are generally much simpler and written in much plainer language, you often have people starting claims in the provincial court, only to find themselves: getting bumped to the superior court; dealing with orders on the same subject from different courts, couched in different language and possibly on conflicting terms; or having one proceeding in each court dealing with different legal issues.

It really would be so much simpler if the federal government simply got out of the business of custody, access, child support and spousal support, left those issues to the provinces and territories to deal with, and stuck with it's basic constitutional mandate on divorce.

2. Do something about the Spousal Support Advisory Guidelines.

The Spousal Support Advisory Guidelines is a paper prepared by two very well qualified law professors, Rollie Thompson from Dalhousie and Carol Rogerson from the University of Toronto, at the commission of the federal government. Their purpose was to see whether they could come up with a set of rules to guide judges and spouses in making orders and agreements about spousal support, and the Advisory Guidelines is the result. 

As it happens, I found myself generally agreeing with the results the Advisory Guidelines gave for the amount of spousal support payments, although I felt that the results for the length of time during which support should be paid were sometimes too long. The courts liked the Advisory Guidelines too, and over time more and more orders began to be made explicitly referring to the results produced by the Advisory Guidelines.

Professors Thompson and Rogerson never expected that the Advisory Guidelines would become a law, they thought that the Advisory Guidelines would infiltrate the world of family law and be adopted through custom of use. (I'm putting words in their mouths of course.) Sure enough they were right. Although the courts of Alberta have put up a fight, the Advisory Guidelines are regularly used to decided spousal support claims across Canada, and the Court of Appeal for British Columbia has even decided that it is an appealable error for a trial judge not to consider the results of the Advisory Guidelines!

But here's the rub.

First, the Advisory Guidelines are maddeningly vague in places. This is by design; the authors wanted to ensure that spouses and the courts had an abundance of discretion in deciding how the Advisory Guidelines would be applied. (I should know, I wrote a paper called "Obtaining Reliable and Repeatable SSAG Calculations" for the federal government and had lots of chats with Carol and Rollie about these peculiarities.) However, the odd spot of ambiguity has left a lot of people, and a lot of lawyers, scratching their heads when unusual circumstances arise, and from my point of view these ambiguities seriously undermine the certainty the Advisory Guidelines otherwise offer.

Secondly, although some of the mathematical formulae the Advisory Guidelines prescribe are simple enough and can be calculated on the back of an envelope, other formulae are not. The main "with children" formulae, for example, require calculation of the effect of spousal support payments to both parties, net of taxes and statutory deductions, and require a computer program or a doctorate in tax law to figure out. This is a real problem, because the two companies that make the software, DivorceMate and ChildView, charge about $900 for their products and quite reasonably won't sell them to persons not connected with the justice system. (DivorceMate has done a tremendous public service by contributing to a free public support calculator, mysupportcalculator.ca, although the calculator lacks the ability to handle some of the more complicated calculations a lawyer would manage through the commercially-available program.) To my way of thinking, it is unfair and unjust that someone's spousal support entitlement or obligation would rest on a calculation he or she cannot perform manually and cannot purchase the software to perform electronically.

Thirdly, the Advisory Guidelines are not a law or a regulation — they continue to exist only in the form of a lengthy paper — and this, to be frank, strikes me as bizarre. We have, through custom, adopted an academic paper as the means by which spousal support will be calculated in this country, and yet the paper has never darkened the doorway of Parliament to be subject to the review and scrutiny of our elected officials, or even the slight amount of thought cabinet would have given to such a regulation.

If I had my druthers, the Advisory Guidelines, which are fundamentally a very good idea, would be vastly simplified and reduced to a plain-language regulation, with simplified formulae and little or no room for interpretation. It would be compulsory rather than advisory, just like the Child Support Guidelines, and use calculations capable of completion by anyone who can master an income tax return.

3. Eliminate ambiguity.

Family law is a wonderful but maddening area of the law for many family law lawyers. It's wonderful because we provide meaningful help to people in a time of profound need and because it is delightfully complex and requires a knowledge of contracts, torts, tax, corporations, bankruptcy, creditors' remedies and the conflicts of law, on top of a significant psychosocial expertise. It's maddening because there are few, if any, hard-and-fast rules and the result in any given case often depends wholly on the circumstances of the particular couple and their children; a good family law lawyer needs to know the law and be able to assess the circumstances of the family in order to gauge the range of likely fair results.

On the other hand, the ambiguity which lends family law its richness is, or should be, a source of profound irritation for the people involved in a family law problem. You cannot just read the Family Law Act or the Divorce Act to figure out what's going to happen to you, your ex and the children; you have to understand how the circumstances of your family relate to the text of the legislation, and that's something that takes years to absorb. Take child support, for example. The only time the amount of child support payable is absolutely certain is if:

• all of the children live with the recipient for unquestionably more than 60% of the time,
• none of the children are over the age of majority,
• the payor earns less than $150,000 per year,
• there are no special expenses,
• neither party has an undue hardship claim, 
• the payor is not self-employed,
• the payor is not a stepparent of any of the children,
• the payor does not have any assets that could be used to generate income, and
• there is no other reason to impute income to the payor.

Not so simple, is it? And child support is really the easiest issue in family law.

The reason for this confusion is fairly straightforward. When government makes a law, it wants the law to make the most sense for the most people possible. This is what the philosopher John Stuart Mill called a utilitarian approach: government's laws are meant to provide the greatest good for the greatest number of people. In other words, they're meant to work as well as possible for most people, most of the time. However, when a particular family comes before the court, it's not a huge mass of people showing up, it's just that one family, and the judge must take government's utilitarian legislation and apply it to that one family. This results in a conflict between what's best for the individual (the judge's job) and what's best for most individuals (the government's job), and what you ultimately wind up with is a dog's breakfast. This is why family law is so difficult.

Although I suspect that most people would agree with the idea that each family should get the result that's best for them, the conflict between the individual and most individuals yields legislation that doesn't mean what it says it means. The words on the paper that are meant to work for most people most of the time must be interpreted according to the needs and circumstances of the particular family before the court. This creates a huge amount of uncertainty and, fairly frequently, conflicting lines of cases that say exactly the opposite thing about the same problem — the case law on court costs is a good example of this. Of course, uncertainty means that when you and your partner are splitting up, you cannot just look at the law to figure out what should happen, you need to see a lawyer, and the lawyer you consult is taking a guess, although an informed guess to be sure, about what's likely to happen.

Unfortunately, this uncertainty results in people taking irrational positions and taking ill-advised risks. (Isn't this why we buy lottery tickets? Because we think that we just might win?) It also means that spending lots of money on lawyers is somewhat of an inevitability: you need the lawyer's expertise to guide you through the range of possible results, and you need the lawyer to defend you against the irrational positions of your ex.

On the other hand, say we had a system where legal principles were fixed and certain, and the level of discretion available to the court and to the parties was really scaled back. (Decisions relating to children would still rest on their best interests and input, of course.) We would have the benefit of laws that generally meant what they said and didn't need an interpreter to comprehend. The range of likely outcomes would be narrowed, and settlements would be easier to reach. Legal advice would be more certain and less circumstantial. You would know what was going to happen when your relationship ended before you got into it. Less people would go to trial.

All of this sounds good, I expect, but there is a downside. All of the people who need the exceptions to the rules wouldn't get them. For these people, the law would be rigid and inflexible and would absolutely be unfair. But the thing to consider is the extent to which the unfairness to these individuals outweighs the fairness, efficiency, expedience and certainty the majority of people would enjoy from a family law system that is less fixated on single-serving fairness.

And, since you asked, this is what I would do to improve the federal and provincial legislation on family law.

Shared Custody Bill Defeated on Second Reading

Bill C-560, a bill to amend the Divorce Act tabled by Conservative MP Maurice Vellacott, was defeated by a whopping 80 to 174 at second reading on 28 May 2014.

If successful, the courts would have been required to impose a regime of shared custody — an equal distribution of children's time between their divorcing parents — except "if it is established that the best interests of the child would be substantially enhanced by allocating parenting time or parental responsibility other than equally." This presumption would have applied to all new parenting orders made under the Divorce Act, as well as to all orders previously made under the unamended act.

Regular readers will be aware of my view that defeat was the most appropriate result for Mr. Vellacott's bill, his third or fourth at-bat on this issue since 2009. My reasoning for this position, which you'll find in my 20 December 2014 post "Why There is No Place for Presumptions of Shared Parenting in Family Law: A Polemic for the Holiday Season,"is fairly straightforward and boils down to this:

"... it would do a gross disservice to our children to presume that the same parenting schedule is in the best interests of all of them. Their needs and interests must be considered and assessed individually, which is precisely what a system without presumptions affords."

The vote and its results can be found in the record of the House of Commons debates for the day; do a search on the page for "560." I am very pleased with this result.

CBA Releases Final Equal Justice Report

The Canadian Bar Association has today released the final report of its Access to Justice Committee, Reaching Equal Justice: An Invitation to Envision and Act (PDF). This report follows the summary report released in August 2013, discussed in my post "CBA Releases Important Report on Improving Access to Justice". The final report is the culmination of the CBA's Equal Justice Initiative, launched in 2012.

Part I of Reaching Equal Justice surveys the nature of the problem and makes the argument about why it's necessary to change the justice system at all. Parts II and III discuss the means by which the justice system might be improved, and how those strategies might be implemented. An executive summary (PDF) is published as a separate document and summaries the three strategies as:

1. Facilitating everyday justice emphasizes looking upstream from the court system for ways to prevent and alleviate problems. For example:

a. Improving legal capability by teaching law as a life skill in public education, for people in transitional phases, in workplaces and through other avenues. 

b. Using legal health checks to build resilience and pre-empt legal problems. 

c. Integrating technological solutions to increase efficiency and accessibility of current processes.

2. Transforming formal justice aims to reform and re-centre courts as the central service responsible for adjudicating people’s problems. For example:

a. Cultivating dispute resolution and effective triage and referral — making it easier for people to navigate the system and get the help they need at the earliest opportunity. 

b. Re-centring courts to be open to user feedback and dedicated to innovation, learning, and integration of evidence-based best practices.

3. Reinventing the delivery of legal services aims for the elimination of assistance gaps and to ensure seamless and meaningful access to justice in every case.

a. Increased collaboration between legal service providers and public legal education and information providers. 

b. More support for people-centred law practices. 

c. More people-centred law practices working with integrated teams of service providers (legal, paralegal and social) to facilitate affordable and holistic delivery of services. 

d. More middle-income Canadians to be covered by legal expense insurance. 

e. Federal commitment to increase funding for legal aid services. 

f. That all lawyers provide pro bono services at some point in their careers, understanding that people do not rely on volunteer services to meet their essential legal needs. 

g. Greater emphasis on access to justice in law schools, including student legal clinics offering representation to low-income persons.

The mechanisms by which these strategies might be implemented are summarized as:

1. Building public engagement and participation requires a convincing answer to the question, “why should I care about equal justice?” The issue will not become a political priority if it is not a strong priority for the Canadian public. 

2. Building collaboration and leadership means establishing effective collaborative structures across national, provincial, territorial, and local levels, including the appointment of access to justice commissioners. 

3. Building capacity for justice innovation involves four main targets:

a. Improved collection and transparency of access to justice metrics. 

b. Development of a national research strategy to advance access to justice research and scholarship. 

c. Increased federal government engagement in ensuring an equal and inclusive justice system, including increased funding for legal aid. 

d. Deeper commitments by the CBA to taking a leadership role in access to justice reform.

Reaching Equal Justice is a call to action for both the public and everyone involved in the federal, provincial and territorial justice systems, and stands beside the final report (PDF) of the national Action Committee on Access to Justice as one of the most important public interest discussions of the justice system in recent memory.

On a personal note, I was very pleased to see the wikibook JP Boyd on Family Law, published and hosted by Courthouse Libraries BC, listed as an "emerging practice" in the delivery of public legal education and information. Thanks for the shout-out.

Equal Parenting Amendment Bill Tabled, would Amend Divorce Act

Maurice Vellacott, Member of Parliament for Saskatoon-Wanuskewin, has succeeded in tabling a private member's bill in the House of Commons to amend the Divorce Act. The Divorce Act is of course the federal law that deals with the divorce of married spouses, custody and access, child support and spousal support.

Mr. Vellacott's proposal, Bill C-560, has certain merits in that:

• orders about the care of children would be dealt with though "parenting orders" rather than orders for custody and access;
• a discussion of counselling, parenting coordination and arbitration would be included in the advice lawyers must give their clients; and
• a parent would be required to give 30 days' notice if moving the child's residence.

However, the bill would also amend s. 16, the part of the Divorce Act that talks about custody and access, to create a presumption that it is in the best interests of children that their time be shared equally between their parents. Here are some of the changes Mr. Vellacott proposes for this section:

(4) Subject to subsection (5), in making a parenting order, the court shall:

(a) apply the presumption that allocating parenting time equally between the spouses is in the best interests of a child of the marriage; and 

(b) apply the presumption that equal parental responsibility is in the best interests of a child of the marriage.

(5) The presumptions referred to in subsection (4) are rebutted if it is established that the best interests of the child would be substantially enhanced by allocating parenting time or parental responsibility other than equally. 

(6) If the presumptions referred to in subsection (4) are rebutted in accordance with subsection (5), the court shall, in making an order under this section, nevertheless give effect to the principle that a child of the marriage should have the maximum practicable contact with each spouse that is compatible with the best interests of the child. 

(15) The primary considerations to be taken into account in determining the best interests of a child of the marriage, to be assessed in aggregate, are

(a) the benefit to the child of having a meaningful relationship and as much contact as is practicable with each of his or her parents; 

(b) the continuity of relationships with relatives; 

(c) the willingness, and the effectiveness of the efforts, of each spouse to facilitate, encourage and support the child’s continuing parent-child relationship with the other spouse; and 

(d) the protection of the child from physical and psychological harm through abuse, neglect or alienation of parental affection.

(17) The court shall apply the following principles in allocating parenting time between the spouses to the extent that they are compatible with the best interests of the child:

(a) weekend, vacation, school holiday, family birthday and religious and cultural holiday time shall be allocated equitably between the spouses, with a view to the spouse with lesser aggregate time having as much of his or her parenting time as possible at times when he or she can be present with the child; 

(b) extra-curricular and educational programs and activities shall be scheduled so that they have an equitable impact on the parenting time allocated to each spouse; and 

(c) if relatives of the child reside in other cities, the travel requirements of a spouse shall be taken into consideration.

(18) If the court makes an order under this section that does not provide for equal parenting time or equal parenting responsibility, the court shall, in the reasons for its decision, explain in detail why such an order was made notwithstanding the principles for parenting orders set out in this section.

I do appreciate where Mr. Vellacott is coming from. There is a common misapprehension that men are discriminated against in family law cases, and all of the men's rights groups I am aware of propose some sort of presumption in favour of shared custody as a facile means of curing the problem.

However, from my perspective as a family law lawyer, such a presumption would not be in the best interests of children. It is certainly true that many separated parents have a shared custody arrangement, or something close to it, and that most of their children are doing very well. There are many other separated parents for whose children a shared custody arrangement would not be beneficial. The situations that leap to mind include:

• where there has been a history of family violence, in the broad sense of the Family Law Act definition;
• where the parents are engaged in high levels of conflict;
• where a parent has taken a hands off approach to raising the children;
• where a parent is dealing with an addiction or another serious mental health concern;
• where the parents have irreconcilable opinions about matters essential to the raising of their children;
• where a parent's work schedule requires long absences;
• where there have been threats to abduct the children; or,
• where a parent has shown no interest in the children after separation.

I'm sure I would come up with a much longer list if I gave further thought to the matter. In any event, my point is that families don't shop from the one-size-fits-all rack. The reality is that each family is different, and the current system, which contains no such presumptions, allows the court to custom-fit the parenting arrangements that are best for each family. One has only to look to the disastrous consequences of Australia's experiment with equal parenting presumptions to realize that such presumptions have no place in family law.

Mr. Vellacott's bill had its first reading on 6 December 2013. Hopefully this bill will suffer the same fate as Mr. Vellacott's efforts in 2010 and 2009, Bill C-422. Mr. Vellacott can be reached by email at maurice.vellacott@parl.gc.ca or by telephone at 613-922-1899 (Ottawa) or 306-975-8886 (Saskatoon). Click here to find your Member of Parliament by postal code.

Update: 24 December 2013

Dear Father's Rights People,

Thank you all very much for your comments. I appreciate, and indeed anticipated, your reaction to this post. However, for a more fulsome explanation of my views, please see my post from 20 December 2013, "Why There is No Place for Presumptions of Shared Parenting in Family Law: A Polemic for the Holiday Season," before posting a comment here.

And to those among you who complain that I have misrepresented Mr. Vellacott's bill, please note that I have provided a link the text of the bill and have quoted directly from the bill above. If you can explain how I have misrepresented the content of the bill, I will gladly post your comment.

I would also like to mention that the bill in question concerns the federal law of Canada, and that the legislation, rules and principles adhered to in Canada may not be similar to those of your jurisdiction.

Update: 24 May 2014

Commenting on this post is now closed. 

Update: 2 June 2014

Bill C-560 was defeated by a 80 to 174 vote at second reading on 28 May 2014.

National Action Committee Releases Final Report

Yesterday, the national Action Committee on Access to Justice in Civil and Family Matters released its final report, "Access to Civil and Family Justice: A Roadmap for Change."

The Action Committee was convened at the request of Canada's Chief Justice, Beverley McLachlin, in 2008 to consider how the problem of declining access to justice might be addressed. Justice Thomas Cromwell, also of the Supreme Court of Canada, described the purpose of the Action Committee in these terms:

"The Action Committee…sees itself as a broadly representative group of leaders in the field of civil and family justice which can develop consensus about priorities, encourage organizations and groups to take the lead with respect to them and provide ongoing consultation, coordination and advice."

Four working groups were struck, the Court Processes Simplification Working Group, the Report of the Access to Legal Services Working Group, the Prevention, Triage and Referral Working Group and the Family Justice Working Group, each composed of leading judges, lawyers, academics and government representatives from across Canada. These groups released their final reports in 2012 and 2013; they are available on the website of the Canadian Forum on Civil Justice. All worth are reading, especially, in my view, the report of the Family Justice group, "Meaningful Change for Family Justice: Beyond Wise Words."

The Action Committee's final report synthesizes the lessons and recommendations of the four working groups, but, as is the way with all committees and working groups, leaves these things for implementation by government and justice system stakeholders. These are the somewhat sobering words of the Chief Justice in her foreword to the final report:

"Under the leadership of the Honourable Thomas A. Cromwell and each working group’s chair, the working groups have produced reports that outline the concrete challenges and provide a rational, coherent and imaginative vision for meeting those challenges. They focus not only on good ideas, but on concrete actions to change the status quo. The Action Committee’s final report bridges the work of the four working groups and identifies a national roadmap for improving the ability of every Canadian to access the justice system.  

"Our task is far from complete. The next step is implementation – to put the Action Committee’s vision into action. But it is not amiss to celebrate what we have achieved thus far: a plan for practical and achievable actions that will improve access to family and civil justice across Canada. ..."

Or, as the Action Committee itself observed:

"The report does not set out to provide detailed guidance on how to improve all aspects of the civil and family justice system across Canada’s ten provinces and three territories. That needs to come largely from the ground up, through strong mechanisms and institutions developed locally. Local service providers, justice system stakeholders and individual champions must be the change makers. ... 

"Access to justice is at a critical stage in Canada. What is needed is major, sustained and collaborative system-wide change – in the form of cultural and institutional innovation, research and funding-based reform."

I won't try to summarize the report, although at 24 pages of primary content it is a model of brevity in a legal landscape inclined to the prolix. You really should read the report yourself. Here, however, are the Action Committee's "nine-point access to justice roadmap designed to bridge the implementation gap between ideas and action" under the three main areas it sees as needing reform:

A. Innovation Goals 

1. Refocus the justice system to reflect and address everyday legal problems 

2. Make essential legal services available to everyone 

3. Make courts and tribunals fully accessible multi-service centres for public dispute resolution 

4. Make coordinated and appropriate multidisciplinary family services easily accessible 

B. Institutional and Structural Goals 

5. Create local and national access to justice implementation mechanisms 

6. Promote a sustainable, accessible and integrated justice agenda through legal education 

7. Enhance the innovation capacity of the civil and family justice system  

C. Research and Funding Goals 

8. Support access to justice research to promote evidence-based policy making 

9. Promote coherent, integrated and sustained funding strategies

Much thanks are due to Professor Trevor Farrow, Chair of the Canadian Forum on Civil Justice, who I understand is the uncredited author of the final report.

Backbencher's Bill on Grandparental Rights Tabled in Ontario

The Globe & Mail has reported on a bill tabled by Liberal MPP Kim Craitor and NDP MPP Cheri DiNovo in the Ontario legislative assembly. The bill would amend the Children's Law Reform Act, a law dealing with the consequences of separation like our Family Law Act but limited to matters concerning children, to allow for "the formation or the continuation of a personal relationship between a grandparent and a grandchild."

The Globe article describes Craitor as saying that grandparents' access to their children can be cut off "when children are used as pawns in a nasty divorce," and provides the following rather melodramatic quotes:

"Far too often what I have seen is that when a couple separates or gets a divorce ... sadly what happens is the relationship between the grandparent and the grandchild diminishes." 

"If you can imagine, a grandparent is no longer allowed to see their grandchild. It's just a horrible thing." 

"I could spend 30 hours telling you all the stories that I've heard and you'd probably shed a lot of tears when you hear from grandparents who've been denied access to their grandchildren." 

"[Grandparents are] more than just relatives. They can provide guidance, they can provide security that the children lack sometimes at home, they provide support, stability a sense of self to the children seeking love and understanding."

Our Family Law Act, like the Family Relations Act before it, says that grandparents can apply for contact (or even guardianship) but provides them no privileged status over other extended family members or even unrelated strangers, and the courts have approached the issue from the perspective that the people with the primary entitlement to time with a child are the child's parents.

Frankly, I'm not sure that this isn't appropriate. I do recognize that grandparents have a special role in a child's life, but the legislation that is designed to guide parents and the courts in handling family breakdown is complicated enough. Family law disputes are quite complex and take an enormous amount of time to resolve as it is; do we really need to add four more parties to the dispute between a child's parents? I have no issue with statements recognizing the special value of relationships between grandparents and grandchildren, but if the new bill proposes to give grandparents a particular standing in the legal dispute between separated parents, I cannot see how the extension of conflict and cost could possibly be in the best interests of the children.

Families Change: A day with Professor Patrick Parkinson

The BC Parenting Coordinators Roster Society, in conjunction, I understand, with Collaborative Divorce Vancouver and Mediate BC, are hosting a seminar with the renowned family law expert Patrick Parkinson of the Sydney Law School at the University of Sydney. The talk is billed as:

"A full day educational opportunity for mental health professionals and lawyers to hear an internationally recognized expert on children and divorce, and to dialogue with a family law professional who brings a perspective of many years as a legal scholar, researcher, and family law reformer." 

Professor Parkinson has written extensively on various aspects of the enduring responsibility of parents to meet their children's needs after separation. He will be speaking on topics which include:

• the results of a five-year longitudinal study on the impact of relocation;
• what research says about the post separation arrangements for children under the age of four; and,
• the myths, perceptions and realities of family law reform. 

The seminar will be held from 9:00am to 4:30pm on Friday 15 February 2013 in Vancouver at the Bill Reid Gallery of Northwest Coast Art. The early bird cost of registration is $201.60. 

For more information contact Phyllis Kenney at pcadmin@shaw.ca. A registration form will shortly be posted on the website of the BC Parenting Coordinators Roster Society at www.bcparentingcoordinators.com.

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.

New Legislation Will End Limitation Period for Claims on Arrears of Support

The provincial government today introduced new legislation to replace the Limitation Act. The proposed legislation, Bill 34, will tidy up a lot of the complexities of the current act and, along the way, repeal the limitation period presently governing actions for the enforcement of arrears of child support and spousal support.

Under ss. 3(1) and 46 of the new legislation, no limitation will apply to claims for arrears accumulating under a court order, or under an agreement filed in court pursuant to ss. 121 or 122 of the Family Relations Act or ss. 148 or 163 of the Family Law Act; once arrears have accumulated, they can always be enforced. Payors beware!

Courts Issue Rare Statement on Judicial Independence

On 8 February 2012, the Premier announced a new review of the justice system in this province, describing the review as:

"...a reform initiative to address B.C.'s justice system and identify actions that government, the judiciary, the legal profession, police and others can take to give British Columbians more timely and effective justice services."

The review is not setting sail rudderless; it is intended to address certain issues identified in a green paper (PDF) the government released the same day. This is how the executive summary of the green paper frames those issues:

"This Green Paper is intended to highlight several key issues within the justice system of British Columbia. These issues include the way independence is preserved, the way information and processes are managed, and the way change is implemented.

"While significant progress has been made within the justice system in recent years, problems of cost and delay are appearing to a degree which is increasingly unacceptable. Action is required due to the reliance of British Columbians, their families and our economy on a sound system of justice.

"While the system’s basics – its integrity, its personnel and its ability to innovate – remain strong, indicators of the system’s performance and current health give a mixed and confusing message, particularly in the area of criminal justice. 'Inputs' into the system such as the rate of crime and the number of new cases are down. But the length of time spent by people remanded in custody or on bail awaiting trial is increasing, as is the total number of people being managed by the Corrections system. Costs, too, are increasing in real terms.

"The system is complex and challenging to reform. While it is possible to point to areas where a discussion of reform is warranted, it is also true that there are significant issues of culture and tradition within the system that may impede real understanding and change. Standing above this is the issue of independence of decision-making within the system. It is vital for our democracy that the exercise of judgment in criminal and civil cases – by police, by counsel, by judges and others in the system – be free of interference or influence. At the same time, the close linkage between the different parts of the justice system in managing case files, and our need to explain what is happening within the system, means we must administer the justice system as a system. In doing so, we must remain on strong constitutional grounds."

In reaction to the green paper, which included statements to the effect that judicial independence "should not be used as a shield against scrutiny on issues related to public administration," the courts of British Columbia issued a rare joint statement (PDF):

"We always welcome the opportunity to engage in dialogue with Government and other justice system participants on the issues and challenges facing the justice system. A fully functioning justice system is an essential element of a free and democratic society governed by the rule of law. Any suggestions for improvements to that system merit serious consideration.

"Such a review, however, must recognize that the various participants in the justice system operate within a constitutional framework. That framework places certain responsibilities on the participants and is founded on an independent judiciary. Any recommendations for reform must respect the constitutional framework in which we operate."

Today, the courts followed with a lengthier statement (PDF) explaining the basic apparatus and functioning of the Canadian legal system and the critical importance of judicial independence in elegant but accessible language. The joint statement clearly is intended to address the review and some of the government's messaging about the review (for example, "It has been suggested that judges may use independence as a 'shield' against scrutiny. This is a mistaken view."), but stands on its own as a compelling explanation of the need for an independent judiciary:

"There is a critical distinction between the police and Crown prosecutors on the one hand, and the judiciary on the other. The police and prosecutors are in the employ and within the authority of the executive branch of government. Although required to exercise their duties impartially and independently, at the end of the day they are agents of the Crown.

"Judges by contrast are not subject to the direction or control of the executive branch of government.

"There are sound reasons for this. Government, in its many manifestations, is frequently a party to court proceedings in an adversarial role. For example, the state is behind every criminal prosecution. Government agencies are frequently either parties to court proceedings, or are subject to having their decisions reviewed in the courts. Courts are called upon to decide disputes between our Aboriginal peoples, and various levels of government, or government agencies. Courts also have to rule on the validity of legislation, as to whether it is within the powers given to the Legislature or Parliament by the Constitution, and whether it conforms to the requirements of the Charter of Rights and Freedoms."

The court's unusual public comment on the review was not intended to signal a fundamental hostility to the idea of the enquiry and exploration, merely to remind everyone, and government, about the essential structure of the Canadian legal system and the importance of maintaining the independence of the judiciary from the executive branch of government. The statement concludes thusly: 

"The judiciary is always open to discussing ways to improve the administration of justice. Indeed, all levels of court have engaged in extensive discussions with government officials over the past several years with a view to achieving that end. In being open to discussion, however, the judiciary will remain steadfast in protecting the essential elements of judicial independence, as the precursor and guardian of judicial impartiality."

Read the Globe & Mail article on today's statement.

Family Law Act Receives Royal Assent

Bill 16, the Family Law Act, passed third reading in the provincial legislature on 23 November 2011 seemingly without amendment and received Royal Assent yesterday, according to the legislature's excellent "Progress of Bills" webpage.

Although the act is now law, most of it — in fact, almost all of it — is not in force, and will not come into force except by order in council in, according to the Attorney General, 12 to 18 months.

Section 482 of the act sets out a table showing which parts of the act are in force now, and which will come into effect later on. Effective immediately:

• Family Relations Act, s. 90 (parental support) is repealed
• Family Relations Act, s. 120.1 (property agreements of unmarried parties) is repealed
• Land (Spouse Protection) Act, ss. 1, 3, 5 and 6 are amended to make the act apply to persons who have cohabited in marriage-like relationship for at least two years
• Property Transfer Tax Act, s. 1 is amended to make the act apply to persons who have cohabited in marriage-like relationship for at least two years
• Evidence Act, ss. 6, 7 and 8 are amended to make "spouses" competent witnesses, not just husbands and wives

In addition, references to "husband and wife" or "a man and a woman" are changed to "spouse" or "two people" in the Family Relations Act, the Industrial Roads Act, the Insurance (Vehicle) Act, the Law and Equity Act, the Marriage Act, the Members' Conflict of Interest Act, the Property Law Act, the School Act, the Wills Act, and the Workers Compensation Act,

References to "father" and "mother" are changed to "parent" in the Mental Health Act, the Property Transfer Tax Act, the School Act, and the Workers Compensation Act.

Other minor amendments less susceptible to generalization are made to the Adoption Act and the Name Act.

Update

The Attorney General's office has posted a new webpage with background to the new act, the past discussion papers including the white paper, and news releases.

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.