The Melnick Model of Joint Custody

Regular readers and those who have had the misfortune of attending my presentations on the new Family Law Act will recall some of my concerns about how the provisions of the new provincial legislation with respect to the care of children will interact with provisions of the federal Divorce Act for custody and guardianship. Just such an issue arose in the recent Supreme Court case of C.K.B.M. v. G.M. 

In this case, Mr. Justice Melnick was asked to vary an order for custody and guardianship made before the introduction of the Family Law Act. The applicant applied to have sole custody and maintain joint guardianship but with joint guardianship being defined following the former Joyce model, so as to give her final decision-making authority in the event that she and the respondent were unable to reach an agreement on any important matters involving the child. As His Lordship summarized the dispute:

"[The applicant's] principal concern is what she alleges to be the parties' inability to agree on a course of diagnosis and treatment for their nine-year-old child's medical or behavioural condition which, according to the claimant, is attention deficit hyperactivity disorder, but which, according to the respondent, is probably not ADHD and may be related to anxiety or depression. The claimant wishes to have the child undergo a spectrum of tests and, if recommended, treatment which may include the use of medication. The respondent is philosophically opposed to treatments involving medication. He has refused to sign a consent form for the child to be examined and potentially treated at [a hospital]. The respondent says that the child should more properly be treated with cognitive behavioural therapy by a practitioner the respondent has identified.Thus the standoff."

The first stumbling block was that the order did not specify whether the order for custody was made under the Divorce Act or the Family Relations Act, and the original claim had been advanced under both acts. Applying the reasoning of the Court of Appeal in the 2012 case of Yu v. Jordan, Mr. Justice Melnick concluded that in the absence of any indication as to the legislation under which the order had been made, the doctrine of paramountcy required the court to assume that the order had been made under the superior federal legislation.

Having concluded that the custody order was a Divorce Act order, the question then became whether it would be appropriate to grant sole custody to the applicant or somehow vary the order for joint custody to give the applicant the control over the child's health care she sought. Mr. Justice Melnick chose the latter approach.

"I conclude that this is a case where agreement between the parties on many issues respecting their child is still possible even though, at times, agreement is reached in a manner no doubt more frustrating for the claimant than it should be. Nevertheless, the respondent's recent intransigence in coming to agreements respecting the well-being of the child has now developed to the point of being a material change in circumstances allowing variation of the final order under the Divorce Act."

His Lordship then made an order for joint custody, adapting the Joyce model for application under the Divorce Act as follows:

The parties will have joint custody of the child of the marriage on the following terms:

1. in the event of the death of a party, the surviving party will have sole custody of the child; 

2. each party will have the obligation to advise the other party of any matters of a significant nature affecting the child; 

3. each party will have the obligation to discuss with the other party any-significant decisions that have to be made concerning the child, including significant decisions about the health (except emergency decisions), education, religious instruction and general welfare of the child; 

4. the parties will have the obligation to discuss significant decisions with each other and the obligation to try to reach agreement on those decisions; 

5. in the event that the parties cannot reach agreement on a significant decision despite their best efforts, the party with the primary residence of the child will be entitled to make those decisions and the other party will have the right to apply for an order respecting any decision the party considers contrary to the best interests of the child, under s. 16(1) of the Divorce Act; and 

6. each party will have the right to obtain information concerning the child directly from third parties, including but not limited to teachers, counsellors, medical professionals, and third-party caregivers.

My thanks to my friends and colleagues Morag McLeod, Agnes Huang and Angiola-Patrizia DeStefanis for bringing this interesting and extremely well-reasoned case to my attention.

Court Deals with Difficult Issue of Interim Orders for Access

In the recently released Provincial Court case of J.C.P v. J.B., the court addressed one of the most challenging problems arising from the transition from the Family Relations Act to the Family Law Act: what do you do when an interim order gives someone access without addressing custody or guardianship? The problem comes from s. 251 of the Family Law Act, which says this:

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

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

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

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

The purpose of this section is to help people apply orders and agreements made under the old act using the language and concepts required by the new act. In a nutshell, if you have custody or guardianship or both as a result of an agreement or order made under the old act, you are a guardian under the new act and have parental responsibilities and parenting time. If you have neither custody nor guardianship, you are not a guardian and have contact with a child. 

This section is very important because if you only have contact, you're not the guardian of a child and you don't have the right to participate in making decisions about how your child is raised, such as about where the child goes to school, how the child is cared for when sick, which activities the child participates in, where the child lives and with whom the child associates, and, most importantly, whether the child moves out of town or not. Ouch.

However, it often happened that when a court proceeding started, the court would only make orders about access under the Family Relations Act, and not deal with the sticky, sometimes explosive, issues of custody or guardianship. A simple interim order for access alone might be made:

• where the children had been withheld and the other parent's most immediate goal was simply to start seeing the kids again;
• where the conflict between the parties would be ignited by an argument on the flashpoint issues of custody and guardianship; or,
• where there's not enough evidence in front of the judge to allow him or her to make an informed decision of the issue.

That made lots of sense under the Family Relations Act. However, under the Family Law Act, a plain reading of s. 251(1)(b) would say that the only order made was for access, and therefore the parent with access was not a guardian and therefore not entitled to parental responsibilities or parenting time. This would have been a horrible result, as it would, in many cases, deprive someone who would normally be a guardian of an incredibly important role in a child's life, all because of the very expedient approach that was normally taken under the old law.

This problem is precisely what Judge Merrick was required to address in J.C.P. v. J.B. The father had obtained an order for interim access alone under the Family Relations Act, and when the matter came back before the court under the Family Law Act, the lawyer for the mother took the position that the father wasn't a guardian as a result of s. 251(1)(b). The father, quite reasonably, said that as he'd lived with the mother after the child's birth, he was a guardian because of the presumptions set out in s. 39 of the act — that's the part that says that the parents of a child are the guardians of a child while they are living together and after they separate.

However, Judge Merrick began his analysis not with s. 251 of the Family Law Act but with ss. 35 and 36 of the Interpretation Act — these are the parts that talk about how rights and entitlements under old laws are to be interpreted and applied under new laws. As a result, what became important was whether the father had any rights other than access under the old law. Here is how Judge Merrick solved the riddle, with the important bits in bold:

[9] The question, in my view, is before the repeal of the Family Relations Act, did [the father] Mr. P. have a substantive right; that is, did he have any guardianship rights with respect to the person of [the child] S.? If he did, was the right vested and, if it was, does the Family Law Act manifest an intention, either expressly or by implication, to take that right away? 

[10] There is no issue that for at least the last year, [the mother] Ms. B. has had the usual care and control of S. and, therefore, she was the sole guardian of the person of S., unless the court ordered otherwise. See s. 27 of the Family Relations Act. 

[11] I have concluded that my order of September 25, 2012, paragraph 4, that provides, "Both parties shall advise the other party promptly of any medical, alternative medical, or dental appointments or treatments of the child" vested limited guardianship rights to Mr. P. 

[12] Counsel for Ms. B. submitted that since the orders made so far only granted Mr. P. access and not custody or guardianship, pursuant to the provisions of s. 251, Mr. P. is not a guardian and he only has contact with S. 

[13] Read literally, s. 251 would seem to suggest that. 

[14] However, the court in this case so far has not ruled on the issues of custody and guardianship, except to the extent that limited guardianship rights were granted to Mr. P. in the September 25, 2012, order. To be clear, there has not been an interim hearing to decide issues of custody and guardianship. 

[15] Applying a purposive approach to the legislation, I am of the view that the purpose of s. 251 of the Family Law Act, as stated earlier, is really to translate terms from the old legislation to the new legislation. I have concluded it is not to be used to determine issues previously not adjudicated upon that are in issue. 

[16] Accordingly, given my determination that Mr. P. had been granted limited guardianship rights in the order of September 25, 2012, and my determination of the meaning of s. 251 of the Family Law Act, I have concluded that for the purposes of the Family Law Act, Mr. P. is a guardian of S.

I am very glad to and have this important decision on the books, in particular, the court's reading of s. 251 as translating old orders rather than determining claims that had never been before the court and therefore never been considered by a judge.

My thanks to my colleague, the most excellent Edna Ritchie, for bringing this case to my attention.

The Crawford Model of Shared Parental Responsibilities

In a recently-released decision, Mr. Justice Crawford of the Supreme Court appears to have crafted the first model guardianship order under the new Family Law Act. In the case of G.P. v. M.J.R.P., a rather toxic case featuring a mother described as "an outgoing, volatile, aggressive and sometimes bellicose character," the court was asked to change a Family Relations Act order which gave custody to the father and joint guardianship, on the Joyce model, to both parties.

Mr. Justice Crawford observed that both parties were now the guardians of the child as a result of the transitional provisions of the Family Law Act at s. 251, and that the new act focuses on "the parents' 'parenting'." The mother's parenting capacity having improved, but the conflict between the parties persisting, His Lordship directed an approach to parental responsibilities allocating some to the father alone and adopting a modified version of the Joyce model with respect to the others, and required the parties to use this form of order (terms specific to the parties removed):

UPON THE COURT being advised that the name and birth date of each child is as follows:

Name, born on date, and
Name, born on date 

(the "Child(ren)") 

AND UPON being satisfied that name of party and name of party are the guardians (the "Guardians") of the Child(ren) under s. 39(1)/s. 39(3) of the Family Law Act; 

THIS COURT ORDERS THAT: 

1. Party shall have primary responsibility for parental responsibility and shall terms of primary responsibility, such as a requirement to consult the other party or to advise the other party. 

2. Both Guardians may request and receive from third parties health, education or other information respecting the Children. 

3. During a Guardian’s parenting time, that Guardian may exercise the parental responsibility of making day-to-day decisions affecting the Child(ren) provided however that such Guardian must advise the other Guardian(s) of any matters of a significant nature affecting the Child(ren) occurring during his/her parenting time. 

4. Each Guardian will consult the other Guardian(s) about any important decisions that must be made in respect of the Child(ren) and will try to reach agreement concerning these important decisions. 

5. In the event the Guardians cannot reach agreement with respect to any major decision despite their best efforts, party will have final decision-making power, provided however that the other Guardian(s) may seek mediation or, under s. 49 of the Family Law Act, seek a review of any such decision if he/she believes that such decision is contrary to the best interests of the Child(ren).

To break this down somewhat, the highlights of this model are:

1. a declaration that each party is a guardian of the children;
2. an order allowing each party to obtain information about the children from third parties;
3. an order confirming the parties' right to make day-to-day decisions about the children during their parenting time, as is provided by s. 42(2) of the act;
4. an order imposing a reciprocal obligation to attempt to reach an agreement on decisions; and,
5. an order giving one party decision-making authority in the event of an impasse, while allowing the other party to right to either compel a course of mediation or apply to court for directions on the decision.

The declaration about the parties' status as guardians is particularly important as, in my view, such declarations are the only practical way to let doctors, teachers and border guards know that a particular individual is the guardian of a child when he or she is not appointed by court order.

I have provided templates for the Joyce and Horn models of guardianship adapted for joint custody under the Divorce Act and shared parental responsibilities under the Family Law Act in the blog of Courthouse Libraries BC.

My thanks to my friend and colleague Agnes Huang for letting me know about this interesting decision.

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.

Family Law Act Commentary Available

Courthouse Libraries BC has published two articles of mine on the new Family Law Act that may be useful for those in search of additional resources and commetary on the act.

The first, "Varying orders and setting aside agreements under the FLA," is a chart of the tests prescribed by the act to change orders and set aside agreements. The applicable tests differ depending on the subject matter and whether you're talking about an order or an agreement.

The second, "Adapting Joyce and Horn Models for Divorce Act and FLA," suggests some ways that the Joyce and Horn Models of guardianship, models that were commonly used to define the rights and responsibilities involved in joint guardianship under the old Family Relations Act, might be salvaged to define joint custody under the Divorce Act and the sharing of parental responsibilities among guardians under the Family Law Act.

In addition, the page Family Law Act Basics in my new wiki, JP Boyd on Family Law, has a complete plain-language breakdown of the new act.

Consolidated Rules and Forms Now Available

The Queen's Printer has almost finished assembling versions of the Supreme Court Family Rules and the Provincial Court Family Rules which consolidate the existing rules and forms with the series of amendments that came into effect with the Family Law Act. The Supreme Court forms are still missing Form F101, the affidavit required for applications for appointment as the guardian of a child.

A list of additional electronic resources is available in my post "Family Law Act Online Resources".

BC Family Law Resource Relaunched as Wiki with Courthouse Libraries

I am very excited to announce that today Courthouse Libraries BC has relaunched my former website, JP Boyd's BC Family Law Resource, under their Clicklaw Wiki banner as JP Boyd on Family Law. This new wiki is completely up to date for the Family Law Act and the amended rules of the Provincial Court and the Supreme Court.

BC Family Law Resource

In early 2001 I got the bright idea of setting up a public legal education website that would provide a stem-to-stern overview of family law, written in plain language that would be accessible to as many British Columbians as possible. This was long before the Ministry of Justice had put together its brilliant website on family justice and five or six years before the Legal Services Society released its excellent Family Law in British Columbia website.

After months of writing and coding webpages by hand — using the high technology of Microsoft's WordPad no less! — I hit the "send" key in November, and my idea was up and running as JP Boyd's BC Family Law Resource at www.bcfamilylawresource.com.

As time passed, I added more and more pages and more and more features, such as editable templates for common court forms as well as examples of what the forms looked like when finished, child support and spousal support calculators, a table of cases mentioned in the website, an alphabetical index, a glossary of eight- or nine-hundred legal words and phrases, a list of websites run by British Columbia family law lawyers and law firms, an internal search engine powered by Google and more.

As my website grew, so did traffic. Over the past year, traffic has regularly peaked at over 1,000 unique sessions per day during the work week and a total of more than 27,000 sessions per month. Taking my annual expenses and this volume of traffic, plus the traffic to my blog, into account, I figure my costs are around six ten-thousandths of a cent per visitor.

The New Family Law Act

Needless to say, the enactment of the Family Law Act in 2011, though undoubtedly a very, very good thing for most British Columbians, became the source of much soul-searching for me. Not only was I aghast by the prospect of retooling the 58 primary pages and 15 or so subsidiary pages in my website, some of which are really quite lengthy, I began to be concerned about how my website would survive in the event I was hit by a bus, left practice or lost the energy to maintain the website for some other reason altogether.

Courthouse Libraries BC to the rescue!

JP Boyd on Family Law

I've had very a cordial working relationship with Courthouse Libraries for a number of years now and have collaborated with them on a number of training programs for lawyers, public librarians and the general public, working with wonderful people like Janet Freeman (the LawMatters program coordinator), Nate Russell (a legal community liaison), Meghan Maddigan (a legal community liaison) and Drew Jackson (the redoubtable director of client services). One of them, likely Nate or Drew, had the masochistic idea of converting my website to a wiki platform — the rather robust and user-friendly platform that makes Wikipedia work — under the Courthouse Libraries banner.

After some thought, I realized that the proposal was brilliant. It would give me the comfort of knowing that my website would survive any career changes or a cataclysmic loss of enthusiasm; it would expand the pool of people contributing to the website beyond myself, and perhaps create a sense of community ownership; and, the content I had created would be significantly enriched with the input of people with different voices and different opinions. Even better, the wiki platform included a nifty book mode that would allow readers and libraries to make a print copy of all or part of the wiki in a smartly-designed, user-friendly book format. How cool is that? I accepted their proposal and Nate and Drew went to work.

Over the past year or so, Courthouse Libraries has worked to collect the funding needed to buy a new server and the software to go with it, and hire the graphic designers and copy editors needed to take my amateurish efforts to a more polished level. An advisory committee composed of Megan Ellis QC, a senior and well-respected family law lawyer, and representatives from the British Columbia Library Association, the Legal Services Society and Courthouse Libraries was established in late 2012, and has provided invaluable guidance for the transition. More recently, Megan has begun to assemble a stellar editorial team of experienced family law lawyers and family law lawyers new to practice to nurture and grow the wiki into the future.

Thanks

I am extremely grateful for the expertise and time devoted to this project by Megan, Nate and Drew, and the not insignificant resources that Courthouse Libraries has allocated to establishing the new wiki. I am also humbled that the content of my former website, www.bcfamilylawresource.com, could possibly have been worthy of such attention and care.

I would like to extend my most sincere thanks to everyone involved, and in particular to Nate and Drew for their patience, energy and professionalism and dedication to this project. Thank you.

Get Involved!

If you're interested in contributing as as writer, commentator or as a member of the editorial team please contact Courthouse Libraries at:

1.800.665.2570
editor@clicklaw.bc.ca

Provincial Court Announces Scheduling Reform Project

The Provincial Court has announced a project to overhaul how court time is scheduled. The aptly named Provincial Court Scheduling Project has just release the first issue of a newsletter (PDF) intended to keep court users and other stakeholders up to date on the status of the project and address common questions and concerns. According to the newsletter,

"The Provincial Court Scheduling Project will restructure court scheduling. The new model will provide more timely access to justice by reducing waiting times to trial and returning case management responsibilities to counsel. The latter will promote discussion between parties and foster earlier case resolution.  

"Currently, the PCS Project Team is developing the details of the new scheduling model and designing new software, the Provincial Court Scheduling System (PCSS), to support the new model. ..."

Implementation is set to begin in later 2013 with the province-wide roll out continuing through 2014. Questions and comments can be directed to the PCSP Project Team at pcss@provincialcourt.bc.ca.

Family Law Act Online Resources

Now the dust has begun to settle, I thought it would be helpful to put together a collection of links related to the new legislation. Here it is, and I will be updating it as the Queen's Printer is able to generate updated material. Bookmark this post by clicking on the title.

Legislation and Regulations

• Family Law Act
• Family Law Act Regulation
• Family Law Act Division of Pensions Regulation

Rules of Court and Practice Materials

Rules of Court

• Provincial Court Family Rules
• Supreme Court Family Rules

Practice Directions

• Provincial Court Practice Directions
• Supreme Court Practice Directions

Court Forms

• Provincial Court: fillable forms from the Ministry of Justice (PDF)
• Provincial Court: forms from the Rules of Court
• Supreme Court:  fillable forms from the Ministry of Justice (PDF)
• Supreme Court: forms from the Rules of Court

Ministry of Justice Resources

• JusticeBC Family Justice Information and Support
• The Family Law Act Explained
• The Family Law Act Regulations Explained
• Amendments to the Rules of Court Explained
• Press Release and Backgrounder announcing the new act

Me

• A Very Brief Introduction to the Family Law Act for Justice System Workers and Advocates (PDF)
• Family Law Act Information & Resources

Legal Services Society

• Family Law in BC after March 18, 2013
• Guide to the New BC Family Law Act (PDF)
• Living Together or Living Apart: Common-Law Relationships, Marriage, Separation and Divorce
• Family Law in BC: Quick Reference Tool

Guest Column: Attorney General on the New Family Law Act

by the Honourable Shirley Bond,

Minister of Justice and Attorney General

For the first time in more than three decades, British Columbia has brought in landmark legislation introducing new, modernized family law.

If you’re a frequent visitor to this blog, you are probably aware of the broad scope of changes that take effect under the new Family Law Act today. Over the past six years, JP Boyd has provided an abundance of information on the subject and this blog has served as a valuable family law resource in our province. His work to explain in plain language the changes under the new act has significantly contributed to the public understanding of new law, and I would like to take this opportunity to thank him for his work and highlight some of the key pieces in this new legislation.

The Family Law Act is centered on supporting modern B.C. families, no matter how they are defined. The unfortunate reality is that the number of families going through separation and divorce is on the rise. Family life and society in general, has changed significantly since 1979, which is when the outdated Family Relations Act took effect. Over time, the courts have stepped in and made rulings that reflect our modern society.

Our new family law reflects family justice reform in a way that better represents the values of our citizens, and it addresses and provides clarity around important topics like out-of-court dispute resolution, property division and parenting arrangements and family violence. Most importantly, the new family law is about ensuring children’s interests and safety are given the utmost priority when families go through the emotional turmoil that often comes with separation and divorce.

Our government’s work to replace the old Family Relations Act and replace it with today’s Family Law Act has been underway since 2006, and has been guided by four B.C. attorneys general along the way.

On behalf of the B.C. government, I would like to offer gratitude and appreciation to JP Boyd, as well as other members of the Family Law Act Advisory Committee, for the countless hours they have devoted to helping us reform, prepare and train for the new Family Law Act. Their work has not gone unnoticed, and B.C. families will be better served as a result of their efforts.

About the Honourable Shirley Bond

Shirley Bond was elected in 2001 and 2005 as the MLA for Prince George-Mount Robson, and re-elected for a third term in 2009 as the MLA for Prince George-Valemount. Shirley was appointed Minister of Justice and Attorney General on 8 February 2012. Prior to her new role, she was appointed Minister of Public Safety and Solicitor General on 14 March 2011 and Acting Attorney General on 18 August 2011. She is the first woman in British Columbia to hold these positions.

As Minister of Justice and Attorney General, she is responsible for police and correctional services, the Superintendent of Motor Vehicles, crime prevention and victims’ assistance, and emergency management. As Attorney General, she is also responsible for criminal justice and family law, court administration, legal aid and public legal education, family maintenance and legal services to government.

Regulation Amended: Family Law Act Regulation adjusted for guardianship applications

In my post "Amendments Amended: Rules of Court adjusted for guardianship applications," I mentioned that the Provincial Court Family Rules and the Supreme Court Family Rules had been amended to accommodate the unpleasant requirements of s. 51(2) of the Family Law Act for persons applying for appointment as the guardian of a child. My colleague Kathleen Packard has supplied the link I was missing to the amendments that were also made to the Family Law Act Regulation.

Here's a summary of the amendments:

• Order in Council 66-2013 amends the Provincial Court Family Rules to provide a new rule, Rule 18.1, and a new form of affidavit, Form 34, for guardianship applications. 
• Order in Council 67-2013 amends the Supreme Court Family Rules to provide a new rule, Rule 15-2.1, and a new form of affidavit, Form F101, for guardianship applications.
• Order in Council 68-2013 amends the Family Law Act Regulation to provide a new form, Form 5, to apply for child protection records checks, as required by the new Provincial Court and Supreme Court rules.

Family Law Act Comes into Force in One Week

It's almost here, the date the new Family Law Act comes into force. I thought I would take the opportunity to review the complicated transitional provisions that will guide us gently from the Family Relations Act regime that has governed family law matters in British Columbia for more than thirty years into this brave new world.

This is a comprehensive summary of the transitional provisions applicable to proceedings in the Provincial Family Court:




This is a comprehensive summary of the transitional provisions applicable to proceedings in the Supreme Court:

• the parts of a court proceeding started under the Family Relations Act concerning the division of property continue under that act; and,
• the parts of a court proceeding respecting an agreement about the division of property made before the Family Law Act comes into force must be continued or started under the Family Relations Act.

These provisions only apply to married spouses, as only married spouses were able to start a claim under the Family Relations Act for the division of property or about agreements concerning the division of property.

No transitional provisions are made for any other issue, including with respect to the presumptions of guardianship, the care of children, the enforcement of parenting time or contact that has been wrongfully withheld, the relocation of children and guardians, child support and the new rules applicable to stepparents, spousal support and reviews of spousal support, protection orders and conduct orders. This was intentional. According to the Ministry of Justice in its online document The Family Law Act Explained:

"Generally, the transition provisions support the immediate use of the Family Law Act for family law disputes, even where they have been started under the Family Relations Act or where there are existing agreements or orders made under the Family Relations Act. This promotes a speedy transition to the new regime and ensures the tools and benefits of the new law can be realized immediately by all families."

"Speedy" is almost an understatement. When British Columbia wakes up on the morning of Monday 18 March 2013, the Family Law Act will be the law of the land. It will apply to:

• all proceedings before the Provincial Court that started before March 18th;
• all proceedings before the Supreme Court that started before March 18th, except for those claims about property that will continue under the old act;
• all applications set for hearing that day;
• all trials set to start that day; and,
• all trials that started before March 18th that will be continuing on or after March 18th.

Buckle up.

Guide for Victims of Family Violence Published by UBC Centre for Feminist Legal Studies

The Centre for Feminist Legal Studies at the UBC Faculty of Law has just published a helpful new paper, The BC Family Law Act: A Plain Language Guide for Women Who Have Experienced Abuse (PDF). According to the paper's introductory comments, the paper deals with family violence as it is addressed by the Family Law Act and

"...was written for women who are leaving or thinking about leaving a relationship with an abusive man and need information on family law problems. However, the information in this  guide applies to a marriage-like relationship between any two people, for example, two people in a same sex relationship."

Court of Appeal Releases Decision on Hearing Day Fees

Readers may recall the decision in Vilardell v. Dunham, released in the summer of 2012 and discussed in my post "Court Services Suspends Hearing Day Fees in Supreme Court." In this family law case, which was heard with submissions from the Canadian Bar Association British Columbia and Trial Lawyers Association of British Columbia appearing as intervenors, the trial judge decided that the pricey hearing day fees charged by the Supreme Court were unconstitutional because:

• access to justice is a fundamental constitutional right which may not be abrogated by Parliament or the provincial Legislature;
• the constitutional obligation of the provinces to administer justice does not not include the power to hinder the court's functioning; and,
• the hearing day fees imposed by the province are a barrier to access to justice.

The result was appealed by the Attorney General, and the Court of Appeal has just released its decision in the matter.

In a nutshell, the Court of Appeal has determined that government has a legitimate interest in imposing hearing day fees and other court fees in order to recover some of the expense incurred in maintaining the courts and the apparatus necessary to sustain them. Such fees would be an unconstitutional barrier to justice, however, were it not for the indigency provisions of the Supreme Court Family Rules which allow litigants to apply for an exemption to some of all of these fees. Rule 20-5(1) provides that:

If the court, on application made ... before or after the start of a family law case, finds that a person receives benefits under the Employment and Assistance Act or the Employment and Assistance for Persons with Disabilities Act or is otherwise impoverished, the court may order that no fee is payable by the person to the government ...

However, this isn't quite good enough. The court observed that:

"In this case, the constitutional inconsistency consists of an under-inclusive exemption from hearing fees, which restricts it to people who would be defined as impoverished. ... An enlarged interpretation of the indigency provision is necessary to uphold the constitutionality of hearing fees and remove a barrier to court access."

In the end, the court held that the with the wording of Rule 20-5(1) tweaked just a bit to include mere need as well as impoverishment, the government may continue to charge hearing day fees:

"The enlarged scope of the exemption in Rule 20-5, then, should be read as saying 'impoverished or in need'. The phrase is intended to cover those who could not meet their everyday expenses if they were required to pay the fees. Courts will continue to use their discretion to determine whether a litigant is impoverished or in need to the point that but for the hearing fees, they would be able to pursue their claim, thus qualifying for an exemption."

Thanks to my colleague Agnes Huang for letting me know that this judgment has been released.

Provincial Legislature Resumes Sitting

The Legislative Assembly resumed sitting today, commencing the 5th Session of the 39th Parliament and concluding a recess that began on 31 May 2012, nine months ago. Given the proximity of a provincial election — fixed for Tuesday 14 May 2013 — the Legislature is expected to only sit for four or five weeks.

Don't hold your breath for any amendments to the Family Law Act. Although rumour has it that the Ministry of Justice is compiling a list of potential changes, nothing is likely to be tabled in a pre-election session that will be dominated by other priorities. The soonest any amendments will be introduced will be the fall legislative session beginning in October 2013.

Amendments Amended: Rules of Court adjusted for guardianship applications

Two new Orders in Council have just been published implementing further amendments to the amendments previously released for the Supreme Court Family Rules and the Provincial Court Family Rules. A third order in council amends the recently released Family Law Act Regulation. The reason for these amendments stems from s. 51(2) of the Family Law Act which, as I am sure everyone by now recalls, requires that certain additional evidence concerning the best interests of the child be provided  when applications are made for the appointment of a person as the guardian of a child.

Provincial Court Family Rules

The PCFR are amended (PDF) to include a new Rule 18.1, "Guardianship Orders." The rule provides that an affidavit in Form 34 must be prepared for guardianship applications, to which must be attached a criminal records check, probably by way of a CPIC printout, as well as records checks from the Ministry for Children and Family Development and the Protection Order Registry. The affidavit required the applicant to disclose:

• his or her relationship to the children of whom guardianship is sought;
• any incidents of family violence affecting the children;
• any involvement in court proceedings under the Child, Family and Community Service Act, the Family Relations Act, the Family Law Act or the Divorce Act concerning children in the applicant's care; and,
• any history of criminal convictions and the existence of any current criminal charges.

 You can find a link to the original amendments to the PCFR in my post "Family Law Act: Changes to Rules of Court."

Supreme Court Family Rules

The SCFR are amended (PDF) to include a new Rule 15-2.1, "Guardianship Orders," to the same effect as the PCFR 18.1, with a new affidavit in Form F101.

 You can find a link to the original amendments to the SCFR in my post "Family Law Act: Changes to Rules of Court."

Family Law Act Regulation

The Family Law Act Regulation is amended to include a new Form 5, "Consent for Child Protection Record Check," to be used to obtain a record check from the Ministry for Children and Family Development.

You can find a link to the Family Law Act Regulation in PDF format in my post "Regulations to Family Law Act Published."

Last British Columbia Decision on Parental Support Released

The Supreme Court has just released its decision in the very last claim for parental support that will ever be heard in this province.

In Anderson v. Anderson and others, a mother sued her five adult child for parental support. The case began in 2000 with an interim order that each of the children pay their mother $10 per month. The mother lost her appeal of the interim decision, and the case lay dormant until 2008 when she filed a Notice of Intention to Proceed. Although the case was again beset by delay, it was at last heard at a summary trial in the summer of 2012.

Without getting into the nuts and bolts of the decision, the court held that none of the children had the means to pay parental support to their mother once their incomes had been applied to cover the needs of their own families, and that even if the children had the means to pay parental support, the mother was not morally entitled to support as a result of her historic treatment of the children and their present estrangement from her.

Section 90 of the Family Relations Act, the section which allowed parents to sue their adult children for support, was repealed on 24 November 2011 when the Family Law Act received royal assent. Although the essential concept of parental support has a long history in British Columbia, being first implemented in the 1920s in the economic turmoil following the end of the first World War, the present legislature seems to have considered the section to be the cause of too much domestic strife and to provide too little return for too much costs to be allowed to survive. Justly so.

CLE Family Law Act Course Coming to Victoria and Kelowna

The Continuing Legal Education Society's two-day course, "The Family Law Act: Everything You Always Wanted to Know But Were Afraid," just ran in Vancouver and is about to be repeated live in Victoria and Kelowna. The program takes an in-depth look at the three areas of the law that will be most changed by the Family Law Act — the division of property and debt, the care of children and family violence — from a practice-oriented perspective, and is taught by leading judges, lawyers and psychologists including:

• Scott Booth
• barbara findlay QC
• Lisa Holmes Wyatt (chair)
• Anna Laing
• Georgialee Lang
• Gordon Kopelow
• Dr Mary Korpach
• Morag MacLeod
• The Honourable Justice Donna Martinson
• The Honourable Judge Paul Meyers
• Colin Millar
• Mary Mouat QC
• Barbara Nelson QC
• Karen Nordlinger QC
• The Honourable Judge Margaret Rae
• Eugene Raponi QC (chair)
• The Honourable Judge Meg Shaw
• Ronald Smith QC
• Dr Alan Wade
• Master Barbara Young

The course features two keynote speakers, and wraps up with a Q&A session with two senior members of the Ministry of Justice's Civil Policy and Legislation Office who were intimately involved with the development of the new legislation. The keynote speakers are:

Jerry McHale QC, a former assistant deputy minister in the Ministry of Justice and now the Lam Chair of Law and Public Policy at the University of Victoria, who speaks about the development and implementation of the Family Law Act on day one. 

Norman Picard QC, a prominent family law lawyer with the Edmonton firm Barr Picard, who talks on day two about the family law reforms implemented in his jurisdiction and what British Columbia lawyers can learn from the Alberta experience with similar legal concepts.

In Victoria, the course runs on 7 and 8 February 2013 at the Hotel Grand Pacific; in Kelowna, the court will be held at the Delta Grand Okanagan on 21 and 22 February 2013. For more information, contact the CLE program lawyer for the course, Nadia Myerthall, at nmyerthall@cle.bc.ca.

For those of you mindful of such things, the course will take care of all of your CPD credits, including the two-hour ethics component, in a single sitting.

Integrative Law: A day with Pauline Tesler

The BC Collaborative Roster Society has announced a day-long seminar presented by Pauline Tesler with the lofty title The Next Step: How Integrative Law is Reclaiming the Healing Heart of Legal Practice at the Wosk Centre for Dialogue in Vancouver. The Roster Society's announcement says this:

"A flood of neuroscience and cognitive/behavioral psychology research studies is yielding discoveries daily that challenge core beliefs about human consciousness and rationality imbedded in our legal institutions. This growing body of evidence carries revolutionary implications for our day to day work with clients, depicting a brain that is driven not by reason, but by emotion — a brain that has changed little in 20,000 years. The impact of these new understandings is already beginning to transform dispute resolution practice. Attend this cutting edge course introducing key concepts in integrative law and practical 'neuro-literacy'. Explore new perspectives on why we and our clients behave as we do during conflict and conflict resolution, and how we might do better. Experiment with understandings and practical techniques that can make our conflict resolution work more effective and satisfying for ourselves and our clients, and consider some ethical implications of these new understandings about how humans are wired. This workshop will provide a 'sampler' of major integrative law vectors, including brain science, neuroeconomics, and positive psychology, and will explore how the concepts of apology, forgiveness and restorative justice can be applied in collaborative practice."

Ms. Tesler is a California lawyer certified as a family law specialist, a fellow of the American Academy of Matrimonial Lawyers and one of the founders of the International Academy of Collaborative Professionals. The Roster Society promises a "lively, engaging, information-packed course [which] includes multimedia presentations, interactive exercises, and discussion."

The course runs from 9:00 to 4:30 on Monday 4 March 2013. The cost of registration is $200 for local members of the Roster Society and $150 for those who live outside the Lower Mainland, $200 for paralegals, articling students and junior lawyers, and a princely $400 for all others. For more information, drop a line to info@bccollaborativerostersociety.com.

Supreme Court Announces Assize Project in Vancouver

Chief Justice Bauman has announced (PDF) the implementation of a pilot project to test an assize scheduling system for long civil chambers applications in the Supreme Court's Vancouver registry. The pilot project began on 7 January 2013. The pilot project is only available for cases that do not involve criminal law, family law or judicial reviews.

Chambers Applications

Every court day, masters and justices hear applications in chambers. Applications are requests for orders, usually temporary or short-term orders, that are made using affidavit evidence and are expected to take a relatively short time to hear, anywhere from five minutes to two days. Chambers is the courtroom where applications are heard.

Normally, someone who wants to make an application will just pick the court day that the application will be heard. Although some days are predictably busier than others, things usually work out pretty well; most of the time, there's enough time to at least get the shorter chambers applications heard. However, when an application is going to take a half an hour or more to be heard, things can get pretty hairy.

There are only four and a half hours in the normal court day. (Court starts at 10:00 and runs to the lunch break at 12:30, with a fifteen minute recess partway through. Court resumes at 2:00 and runs until 4:00, with another fifteen minute recess.) This is not a lot of time. Applications of less than an hour routinely chew through all of the morning, leaving a handful of applications left that might take half an hour, a whole hour or two hours to be heard. As a result, these longer applications often get bumped to another day. I never count on a two-hour application being heard in Vancouver on the day it's scheduled, and it's only an even chance than a one-hour application will go ahead. The situation is worse in New Westminster.

This is not the problem the new pilot project is meant to address.

When an application will take two hours or longer, the rules of court require that the application be scheduled with the court's trial coordinator. In theory this means that each application is assigned to a judge who will be free that day and has the time to hear it. In reality, some applications are assigned to a judge and others wind up being listed on the dreaded overflow list.

Being on the overflow list is not good. A judge may become available to hear your application that day or a judge may not; either way, you wind up cooling your heels in the registry for at least an hour or two on the off-chance that you'll be lucky enough to land a judge before giving up and going back to the office.

This is the problem the new pilot project is meant to address.

The Assize Project

An assize system is a way of scheduling hearings which works in blocks of one or two weeks. If someone wants an application to be heard, all they get to pick is the assize period in which it might be heard. At the beginning of the period, a judge or the trial coordinator will triage all the applications set for that period and sort them from most important to least important, with the most important applications getting priority and going first. Applications that can't be scheduled wait to see what happens with the other applications being heard in that period; if an application gets done faster than expected or is adjourned, the unscheduled application next in priority gets heard.

In theory, this is a more flexible way of using judicial time which accommodates applications that unexpectedly collapse, allows every hour a judge is available to be occupied with an application, and therefore gets more applications heard in the same amount of time.

However, as the announcement from the Chief Justice clearly indicates: "placing an application on the assize list does not guarantee that the application will be heard." The other major downside is that the people making the applications have to be available during the entire assize period because you never know when your application will be heard, if it gets heard at all.

Getting on the Assize List 

An application may be put on the assize list if all of these factors are met:

1. The application will take between two hours and two days to be heard.
2. All of the lawyers and anyone who is representing him- or herself agrees to the application being put on the assize list.
3. Everyone is available for at least three of the five days in the assize period.
4. The case does not involve family law or judicial reviews.

The assize periods available for booking are listed on the scheduling page of the Supreme Court's website.

I'm looking forward to seeing how the pilot project pans out. If it works, I expect the project will expand to family law cases, and although I will have a great deal of difficulty working my schedule to be available during an entire assize period, if the new system gets long applications heard more frequently than they are at present, I'm all for it.