The new BC Family Law Act will introduce parental conduct orders into family law cases and a new approach to enforcing BC family court orders effective March 18, 2013. Our new BC Family Law Act will affect child-related and support issues in both new and ongoing Bc family law cases and it embraces some fresh and modern ideas with respect to children’s rights after marriage breakdown. Our highly rated BC and Alberta family law lawyers at MacLean Family Law Group are here to explain this critical new conduct order family rules for you. Click here to book an appointment if you are having trouble with an existing family order or your ex spouse’s conduct relating to same.
The new Act is a strong reminder to parties in a bitter child custody dispute that the court’s one and only consideration is the best interests of the child.
Section 37 (2) and (3) of the Family Law Act defines the best interests of the child with regards to agreements and orders:
(2) To determine what is in the best interests of the child, all of the child’s needs and circumstances must be considered, including the following:
(a) the child’s health and emotional well-being;
(b) the child’s views, unless it would be inappropriate to consider them;
(c) the nature and strength of the relationship between the child and significant persons in the child’s life;
(d) the history of the child’s care;
(e) the child’s need for stability, given the child’s age and stage of development;
(f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;
(g) the impact of any family violence on the child’s safety, security or well-being, whether the family violence is directed toward the child or another family member;
(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child’s needs;
(i) the appropriateness of an arrangement that would require the child’s guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;(3) an agreement or order is not in the best interests of the child unless it protects, to the greatest extent possible, the child’s physical, psychological and emotional safety, security and well-being.
The Courts will be applying conduct orders to encourage dispute settlement and to help with the management of both the court process and the people involved. The orders will enforce such things as:
(a) order you to attend counseling or out-of-court
dispute resolution sessions;(b) order you to follow an existing order; or
(c) restrict communication or contact between you and your ex spouse
Conduct orders will also include case management orders. This was introduced by the Act largely to decrease “frivolous” or needless actions being set forth by parties in a family law case. These types of orders can:
(a) cancel or dismiss all or part of a claim; or
(b) order a party not to make any more court applications without the court’s permission
One of the biggest and most common issues the courts face with parental conflict is denial of parenting time and contact by an ex spouse. The new Act will reflect a more “hands on” approach to dealing with this issue in protecting a child from being used as “collateral” by one parent against the other. This can also include grandparents and other close family members to the child.
Section 61 of the Family Law Act defines the measures that will be taken to protect a child from the loss of parental time and the consequences of denying a parent access to their child:
Denial of parenting time or contact
61 (1) an application under this section may be made only:
(a) by a person entitled under an agreement or order to parenting time or contact with a child, and
(b) within 12 months after the person was denied parenting time or contact with a child.
(2) If satisfied that an applicant has been wrongfully denied parenting time or contact with a child by a child’s guardian, the court on application may make an order to do one or more of the following:
(a) require the parties to participate in family dispute resolution;
(b) require one or more parties or, without the consent of the child’s guardian, the child, to attend counseling, specified services or programs;
(c) specify a period of time during which the applicant may exercise compensatory parenting time or contact with the child;
(d) require the guardian to reimburse the applicant for expenses reasonably and necessarily incurred by the applicant as a result of the denial, including travel expenses, lost wages and child care expenses;
(e) require that the transfer of the child from one party to another be supervised by another person named in the order;
(f) if the court is satisfied that the guardian may not comply with an order made under this section, order that guardian to
(i) give security in any form the court directs, or
(ii) report to the court, or to a person named by the court, at the time and in the manner specified by the court;
(g) require the guardian to pay
(i) an amount not exceeding $5 000 to or for the benefit of the applicant or a child whose interests were affected by the denial, or
(ii) a fine not exceeding $5 000.
If all these options fail to make a party comply with a court order, the courts can send s(he) to jail for a maximum of 30 days!
YOUR BEHAVIOUR MATTERS
It cannot be stressed enough that everything you do before, during and after a family law dispute can impact your child and your case. Your actions will assist a judge in defining you as a parent. Your actions determine whether you are cognizant of what’s best for your child or whether your decisions are influenced by outside factors including resentment towards the breakdown of the marriage or hostility towards the other parent.
In the case, Wilson v. Wilson, 1999 ABQB 786, a father applied for custody of his daughter after having his access repeatedly interfered with by the child’s mother, who had also relocated with the child to another city after giving the father 3 days’ notice.
The Honourable Mr. Justice Verville stated at para. 15:
The attitude of Mrs. Wilson with respect to access has essentially been that she makes the decisions.
A home study was commenced and testimony was included from various witnesses for each party, including a therapist who had sessions with both the child and the mother.
On evaluation of both parents, the Honourable Mr. Justice Verville states:
18. Mr. Wilson gave his evidence in a calm and straightforward fashion. He clearly loves his daughter and very much and wants what is best for her. While there is clearly a great deal of ill will between him and his former wife, it was my impression that he is not the aggressor…I am satisfied with the evidence that Mr. Wilson has very good parenting skills and that he is well qualified and sincerely interested in doing what is in the best interests of his daughter.
The results of the home study and testimony from witnesses supported the view that Mrs. Wilson had been unable to overcome hostile feelings against her former husband and his new spouse, and that many of her decisions with respect to the child had been driven by these feelings. The Honourable Mr. Justice Verville concluded at para. 27:
Some of the above-mentioned denials, assertions or contradictions are, in and of themselves, relatively insignificant but nonetheless, give a flavour of Mrs. Wilson’s demeanor. She struck me as argumentative, inflexible and judgmental-examples being the way in which she has dealt with the scheduling access for Mr. Wilson which is, in part, evidenced by the various pieces of correspondence which were entered as exhibits at the trial. I noted that she was not responsive at times during cross-examination when the tenor of the questioning was not to her liking.
The Honourable Mr. Justice Verville ordered that sole custody of the child be granted to Mr. Wilson with Mrs. Wilson having generous access. He stated in his reasoning:
55. As mentioned previously, I am mindful that parental conduct, however meritorious or however reprehensible, does not enter into the analysis unless it relates to the ability of the parent to meet the needs of the child. I was impressed with the manner in which Mr. Wilson gave his evidence and I am satisfied from all the evidence that Mr. Wilson has the proper parenting skills and Thea’s best interests at heart.
56. On the other hand, I was not impressed with the manner in which Mrs. Wilson gave her evidence. In the absence of other evidence, I would have had serious concerns as to whether or not Mrs. Wilson is a fit parent.
The influence of both a female and male role is significant in a child’s upbringing. A parent who engages the other parent in a child’s life as opposed to dismissing him or her as a minute part of the child shows great parental capacity with the ability to make objective decisions without personal motive.
When you are raising a child after the breakdown of a marriage, remember:
- Do not make your child choose one parent over the other. Divorce is never a child’s fault but too often children feel involved or partially to blame. Do not let your child feel like he or she has to choose sides if you have a strained relationship with your ex spouse.
- Do not use your child as a messenger-refrain from relaying messages to your spouse through your child.
- Do not use your child as a friend or counselor. Do not mourn the breakdown of your marriage with your child.
- Questioning your child after visitation. Do not force your child to tell you about everything he or she does while in the custody of the other parent.
- Allow regular and reasonable access to the child. Do not keep a child from his or her other parent simply to punish your ex spouse. Encourage your ex spouse’s involvement in the rights, responsibilities and enjoyment of raising a child.
- Keep scheduled visitation. Try and keep visitation with your child as consistent as possible. Don’t cancel scheduled visitation dates at the last minute. This is not fair to your child or your ex spouse. Don’t ever leave your child waiting for you to show up.
- Keep communication civil. Do not argue or speak harshly with the other parent in the child’s presence. If this is unavoidable, communicate through email or a mediator.
If you need help with a parental conduct case, call us toll-free at 1 877 602 9900. Our MacLean Family Law Group lawyers are well informed of the New Family Law Act and how it will affect you.
Romney Burkett MacLean Law Legal Assistant
