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".

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."

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."

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.

CLE Unleashes Family Law Act Training

The training opportunities for the coming into force of the new Family Law Act are about to get rolling. The Continuing Legal Education Society of British Columbia has taken an outstanding leadership role in packaging courses on the new legislation for lawyers, mediators, arbitrators and support staff. Here's some of what's going on over the next few months...

The Family Law Act: Everything You Always Wanted to Know But Were Afraid to Ask

This is a two-day practice-oriented course that will sink its teeth into the major areas of change under the new legislation — the division of property and debt, the care and control of children, and family violence and protection orders — each in a half-day slot, and address the changes to child support, spousal support and other issues in shorter segments in the last half-day.

Vancouver: January 31st, February 1st

Victoria: February 7th, 8th 

Kelowna: February 21st, 22nd

Early bird cost: $960 (students $485)

The New Family Law Act for Legal Support Staff

This is a one-day, comprehensive course designed for legal assistants and paralegals aimed at developing strategies to transition to the new legislation, including the revisions to the rules of court and court forms.

Victoria: February 14th

Vancouver: February 18th

Kelowna: February 19th

Early bird cost: $475 (students $225)

Family Violence Screening Training

This two-day course is designed to meet the practice requirements require by the Law Society and the Family Law Act Regulation for lawyers wishing to practice as parenting coordinators, family law mediators and family law arbitrators under the new act. The course will teach how to screen for family violence and how family violence can impact on different dispute resolution processes.

Vancouver: January 21st, 22nd or January 24th, 25th

Cost: $1,100

Family Law Act Transition Guide

This book contains the Family Law Act annotated with commentary prepared by leading family law counsel and explanatory materials released by the Ministry of Justice, and includes a table of concordance between the old and new legislation. The first chapter provides an overview of the new act and is particularly well-written.

Cost: $195

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.