New BC Family Law changes- BC Family Relations Act Reform 2010 and the BC Family Law Act White Paper provides dramatic BC Family Law reforms to BC spousal support, BC family property division, BC common law property division, BC child custody-Lorne N. MacLean will be interviewed on the BC Family Relations Act Reform Law , tonight at 5:30PM on CKNW AM 980. Mr. MacLean will be talking about important new changes to the Family Relations Act. The new act will be called the Family Law Act and the deadline for written input/comment on the white paper will be October 8, 2010. Some of the proposed changes to Family Relations Act reflect issues that Mr. MacLean has addressed before the Supreme Court of Canada in Young v. Young [1993] 4 S.C.R. 3 and in the Leskun v. Leskun [2006] 1 S.C.R. 920 decision. Some of the proposed changes will address the property rights of married and common-law couples; guardianship of children and decision-making about children; the enforcement of access orders; mobility and relocation issues; spousal support; and, parenting coordination, arbitration and mediation. Below is the executive summary, for the report click here.
White Paper on Family Relations Act Reform 2010 EXECUTIVE SUMMARY
British Columbia’s Family Relations Act has not been comprehensively reviewed since its introduction in the late 1970s. Since 2006, the British Columbia Ministry of Attorney General has been researching and consulting on how best to modernize this important area of the law. The draft legislation discussed in this white paper reflects the results of its policy review.
The main features of the proposed new family statute are:
TOPIC RECOMMENDED POLICY
Overall Approach Promote co-operation to the extent possible. For example:
- Structure the law so that court is not the only implied starting point.
- Promote a broader range of non-court dispute resolution options.
- Adopt a conflict prevention approach to family law disputes.
- Increase the law’s ability to deal with family violence and safety issues.
- Use less adversarial terminology.
- Meet the overall goals of the Family Relations Act review.
Non-Court Dispute Resolution and Agreements
Promote non-court dispute resolution. For example:
- Require family justice professionals to provide early information to clients on dispute resolution options.
- Enable parenting coordination by agreement or court order.
- Amend the Commercial Arbitration Act to address family arbitrations.
- Provide for regulation-making authority to define practice standards/qualifications for family dispute resolution practitioners, as and if required.
Encourage agreements by providing greater clarity regarding when and how an agreement may be set aside:
- Parenting agreements may be set aside if they are not in the best interests of the child.
- Child support agreements may be set aside if they fail to comply with the Federal Child Support Guidelines.
- All agreements may be set aside for lack of procedural fairness, such as significant failure to disclose or where one party has taken unfair advantage of the other.
- Property and support agreements can be set aside for non-procedural reasons in limited circumstances where it would be clearly unfair.
Legal Parentage
Include a comprehensive scheme to determine a child’s legal parents, including in situations where reproductive technology has been used.
Children’s Best Interests
- Make children’s best interests the only consideration in parenting disputes and identify children’s safety as an overarching objective of the best interests of the child test.
- Add further best interests factors, including the history of the child’s care, family violence, and consideration of civil or criminal proceedings relevant to the safety or well-being of the child.
- Provide for consideration of a child’s views unless it would be inappropriate to encourage greater inclusion of children’s views
Guardianship- Enact reforms to the Act’s treatment of guardianship, including the following:
Replace the terms custody and access with guardianship and parenting time.
Define guardianship through a list of parental responsibilities that can be allocated to allow for more customized parenting arrangements.
Provide that parents retain responsibility for their children upon separation if they have lived together with the child after the child’s birth. (Note: this does not mean that the law presumes an automatic 50-50 split of parental responsibilities or parenting time.) If they have not, the parent with whom the child lives is the guardian.
Consolidate guardianship of children into the new law by including testamentary and standby guardianship.
When Orders or Agreements for Time with a Child are not Respected
Include a new range of tools and remedies to address non-compliance with orders and agreements for time with a child:
Remedies range from moderate to extraordinary remedies depending on the facts of the situation and history of non-compliance.
Provide different remedies for failure to allow parenting time/contact and failure to exercise parenting time/contact.
Relocation
Introduce a relocation regime that aims to increase certainty and predictability of the law of relocation, the highlights of which are:
Include a mandatory 60-day notice-of-move provision, to provide an opportunity for parties to try to resolve any disputes about the proposed move.
List factors that must be considered (e.g. the reasons for the proposed move and whether the proposed move is likely to enhance the general quality of life of the child and the guardian planning the move) and factors that must not be considered (e.g. whether the guardian would be willing to move without the child in any event).
Include presumptions to be applied where the proposed move is contested.
Children’s Property
Add provisions relating to children’s property that would:
- Enable a child guardian(s) to manage property below a certain monetary threshold without a court order.
- Provide court oversight of larger children’s trusts, including the appointment of private trustees.
Property Division
Enact major reforms to the law of property division regime, that would:
- Extend it to common-law spouses who have lived together for two years in a marriage-like relationship or who are in marriage-like relationship of some permanence and have children together.
- Exclude certain types of property (e.g. pre-relationship property, gifts, and inheritances) from the pool of family property to be divided 50-50.
- Limit judicial discretion to reapportion family property or to divide excluded property to circumstances where it would be clearly unfair not to do so.
- Provide that debts are subject to equal division.
- Set as defaults: the date of separation as the triggering event and the date of the court order or agreement as the valuation date.
- Limit the ability of judges to set aside or change property division agreements.
- Enable interim orders, including for the distribution of property for the purposes of funding litigation or dispute resolution.
- Enact conflict of laws provisions to address property outside of British Columbia.
Pension Division
Enact most of the major and housekeeping recommendations made by the British Columbia Law Institute in its 2006 report on the division of pensions.
Extend the pension division scheme to unmarried spouses who meet the definition of spouse.
Support Minor changes to the child support provisions to ensure consistency with new Act’s language and
structure.
Minor changes to spousal support provisions:
- Align provincial spousal support factors and objectives more closely with the Divorce Act.
- Explicitly permit periodic reviews.
- Permit variation applications in light of the spousal support objectives and factors where there has been a change in circumstances, new evidence or a failure to make full and frank disclosure.
- Limit consideration of a spouse’s alleged misconduct to that which œarbitrarily or unreasonably affects the need for support or the ability to provide it.
- Provide that spousal support obligations continue after the death of the paying spouse unless otherwise agreed or ordered.
- Clarify that spousal support should be awarded only where spousal support objectives have not already been met through property division.
- Spousal Support Advisory Guidelines will not be referred to in the Act and will remain advisory.
Eliminate parental support obligations.
Case Management and Enforcement Tools
Include a broader range of case management and enforcement tools for judges. In particular:
- Provide for a new type of order called conduct orders and corresponding remedies for non-compliance to manage behaviour and facilitate resolution, for example, through referrals to a service, program, counselling or non-court dispute resolution process,
- providing for a party to pay the other’s reasonable expenses incurred as a result of the non-compliance, and limiting frivolous or vexatious litigation.
- Establish a general duty to disclose information, and provide for a greater range of remedies for failure to comply with an order to disclose.
Protection Orders
Replace existing family law restraining orders with protection orders enforceable under the Criminal Code.
Court Jurisdiction and Procedural Matters
The new family statute will carry forward many of the jurisdictional provisions from the Family Relations Act. Proposed procedural changes include the following:
- Lawyers must certify that information about non-court dispute resolution options has been provided prior to filing court documents.
- Family cases are to be conducted, to the extent possible, in a way that minimizes delay, cost and formality, reduces conflict and promotes co-operation, protects those involved, and is proportionate to the dispute.
- Children who are 16 or older or who are parents, spouses or former spouses will be able to conduct court cases without a litigation guardian.
Transition
Where a court action has been started but not yet resolved before the effective date, the Family Relations Act applies unless the parties enter into a written agreement stating that the new Act governs. Cases that have already been time-barred under the Family Relations Act are not revived by the new Act.
Where a court action has been started on or after the effective date, the new Act applies.
Orders and declarations made under the previous law continue in force according to their terms, but subsequent applications made on or after the effective date (e.g., to vary or enforce) are governed by the new Act.
