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.

Adult Children's Access to Parents Now Mandatory in China

The BBC has reported on an innovative new law enacted by the Chinese government that would require adult children to visit their parents or risk being sued by the state for their neglect. This is a serious problem in China, which lacks affordable elder care despite an eighth of the population being over sixty.

In British Columbia, where we do have a socialized system of health care and elder care options, we are of course proceeding in the opposite direction. Not only do we not have a law requiring adult children to visit their parents, our law requiring adult children to support to their parents was repealed by ss. 258 and 482 of the Family Law Act on 24 November 2011.

See the CBC report or the Financial Post report for further discussion of this innovative new law.

New Code of Professional Conduct in Force in January

The new Code of Professional Conduct (PDF), the primary ethical guide governing the conduct of lawyers in British Columbia, will be in effect on 1 January 2013. The new Code will replace the Professional Conduct Handbook, which has provided guidance to lawyers for the last twenty years.

According to an article published in the Law Society's newsletter Benchers' Bulletin, the rational for the new Code stems from the need to harmonize ethical standards among the provinces and territories to allow lawyers to more easily practice in multiple jurisdictions. The Code is based on a model code of conduct developed by the Federation of Law Societies of Canada which has already been adopted in Alberta, Manitoba, Newfoundland and Labrador, Nova Scotia and Saskatchewan.

The Benchers' Bulletin article gives the impression that not much has changed between the Handbook and the new Code:

"The BC Code has been designed as a reference tool to help assist lawyers and the Law Society in answering those ethical questions. The ethical guidelines familiar from the Handbook have been preserved in the BC Code, but they have been expressed in a way that is expected to make it easier for the profession to use. 

"'The principles are the same, but the manner of expressing those principles is better,' said [Gavin] Hume. He describes the Handbook as a kind of 'statutory' document, similar to legislation. The BC Code, on the other hand, provides a rule and then additional commentary on how the rule operates."

Family law lawyers already grappling with the new Family Law Act, new regulations and new rules for the Supreme Court and Provincial Court will be grateful for the relative modesty of the change.

Time Running Out to Complete Important CBA/NJI Survey

A few weeks ago, the Canadian Bar Association distributed an invitation to members of its family law section to participate in a survey being conducted by the National Judicial Institute. Time is running out; the survey will close on Friday 14 December 2012.

The NJI is the primary national organization providing continuing judicial education and the survey is timed for use at the Institute's family law seminar in February 2013. The survey is of particular importance for family law lawyers as it concerns the most difficult of all problems, the enforcement of orders and agreements for access. According to the introduction to the survey,

"This survey is intended to canvas family law lawyers’ opinions on the enforcement of orders and agreements dealing with custody and access. Bearing in mind that the bench has little if any influence over legislative reforms, do the available mechanisms work well or poorly? Could they be made to work better or should they be scrapped and other mechanisms implemented in their place? In particular, how effective are current remedies pursued through the courts?"

If you are a lawyer practicing family law to any significant extent, please complete the survey. It is relatively short and likely won't take more than 15 minutes to complete.

The survey, which is intended for lawyers only, can be found here: survey closed.

Mediate BC Launches Program Addressing Support for Adult Children

Mediate BC has announced the launch of a new pilot project — the Child Support Eligibility Mediation Project — intended to address the often contentious issue of child support in respect of children who have reached or are approaching the age of majority. According to the society's statement, the aim of the program is to "help separated families resolve disputes concerning the eligibility of adult children for child support and special expenses" by creating an educational plan with the assistance of a mediator.

The service free and is available to separated parents whose children are either in Grade Twelve or are nineteen and older and enrolled in a post-secondary program.

The Child Support Eligibility Mediation Project is being carried out in collaboration with the Family Maintenance Enforcement Program and is funded by the Law Foundation of British Columbia and the Director of Maintenance Enforcement.

Attorney General Appoints Nine New Provincial Court Judges

Attorney General and Minister of Justice Shirley Bond has today appointed nine new judges to the Provincial Court bench. According to the Ministry's press release, Surrey will be getting two judges and Kamloops, North Vancouver, the Northeast district, Port Coquitlam and Vancouver will each get one judge. Two judges will be assigned to work out of the Office of the Chief Judge.

The new judges, almost of whom have backgrounds in criminal law, will bring the judicial complement of the court up to 131.80 full-time equivalent judges, only 12 fewer judges than the court's complement in 2005. 

The Chief Judge, in a statement (PDF) released later today, observes that a number of vacancies are foreseeable over the course of 2013 because of judges retiring or moving to part-time status and notes that the increase in the number of Provincial Court judges resulting from the new appointments will be short lived as a result:

"I am encouraged by today's announcement regarding the appointment of nine new Provincial Court Judges. As Chief Judge, my focus is on identifying and meeting the ongoing needs of the Court, including increasing accessibility to the Court. 

"The early replacement of several Judges scheduled to retire or join the senior program in 2013 will provide some capacity to assist in reducing the case backlog."

Salvation Army Pro Bono Program Shut Down

I am very sorry to report that the Salvation Army's pro bono legal advice program has shut down. Although I understand that self-sufficient regional clinics may be maintained, the clinics run out of the program's central Vancouver office at Belkin House, such as the clinics at the Robson Square Provincial Court registry and the Caring Place in Maple Ridge, are terminated effective immediately. This is a really disappointing development; the program was run very efficiently and served thousands of people, and I've been volunteering with the program since 2002.

This would seem to leave Access Pro Bono as the last independent provider of full-service legal clinics in the province. (Help can also be had from the UVic and UBC legal advice programs, and from the countless community-based programs run by organizations like the Battered Women's Support Services and the YWCA.) Lawyers volunteering with the Salvation Army program should sign up with Access Pro Bono's summary legal advice program as soon as possible.