BC Poised for Massive Family Law Overhaul

Cristin Schmitz for The Lawyers Weekly

British Columbia Aims For New Family Law Statute

After three decades, the British Columbia government is proposing a total overhaul of the Family Relations Act (FRA). The proposed BC law covers guardianship, child custody, spousal and child support, access, and the division of property.

If you live in BC and would like to find a family lawyer who is well prepared for the changes in British Columbia’s Family Relations Act, search through Canadian-Lawyers.ca, to find a long list of qualified family lawyers in your area.

Common law marriages have increased dramatically and the new Family Relations Act in British Columbia will address this issue by giving common law couples the same rights as married couples. The old law states that only married couples who divorce must divide custody of children, property and pension. With the new FRA in BC, the same holds true for common law couples.

BC Family Lawyers Commend Proposed Changes to Family Relations Act

Following more than three years of research and development, family law is changing for the better in British Columbia. The Ministry of the Attorney General of BC is proposing a new statute that will comply with the new issues that have arisen in BC since the original statute was instilled in 1978. For example, the new revamps to family law will finally include a comprehensive statutory scheme to determine parental rights as a result of technological testing.

Other new issues in family law are also addressed, including stricter penalties for parents who fail to exercise parenting time or disclosing false information to officials. British Columbia Family Lawyers are commending the new statute for taking children's best interests as the only consideration in determining their post-separation care.

Cristin Schmitz discusses the pros and cons of the new revamped strategy of family law in BC. Below is her article from The Lawyers Weekly.

September 10, 2010

Common law couples who split up will have the same rights to property and pension division as married couples do. Separated parents will enjoy "guardianship" and "parenting time" rather than custody or access. Parenting co-coordinators will be empowered to arbitrate the day-to-day disputes of high-conflict families. Misbehaving ex-spouses will be slapped with "conduct orders," fines and jail time. And "posthumously-conceived" children will have the same rights to inherit as other children.

Those are among the cutting-edge, and sometimes controversial, solutions to family law problems that British Columbia is proposing for its impending total overhaul of the Family Relations Act (FRA).

Following more than three years of intensive research and policy development, on July 19, 2010 the B.C. Ministry of the Attorney General unveiled a "white paper" proposing a complete update of its 1978 statute.

The draft blueprint for reform recommends measures aimed at improving family law in line with the province's new overarching philosophy that familial disputes are usually best handled outside court.

"The family has changed enormously, and our knowledge about managing family conflict has grown enormously, in the past 30 years," Victoria's Jerry McHale told The Lawyers Weekly.

"The proposed statute supports the principle of managing family conflict to resolution, not to trial," emphasized McHale, the B.C. Assistant Deputy Attorney General who has been overseeing the FRA's modernization.

The ministry's well-organized, 172-page white paper, written in plain English, summarizes the officials' extensive consultations with the Bar and the public on family law issues. It also sets out preliminary draft legislation, as well as the government's rationale for the suggested reforms.

Toronto family law expert Philip Epstein of Epstein, Cole, editor of the Reports of Family Law, said many other jurisdictions, including Ontario, could learn from British Columbia's efforts.

"I applaud B.C. for taking this step, and I look forward to seeing most of the white paper enacted into legislation," Epstein told The Lawyers Weekly. "They are doing a host of reforms that are progressive, and they are bringing family law in B.C. into the 21st century. Most family law legislation in this country is quite old, and needs revamping."

Epstein also praised measures to lessen judicial discretion in B.C. matrimonial property matters. He said the province has a disproportionate amount of property-related litigation compared to other jurisdictions.

The B.C. government says it aims to have its new family law statute (working title "the Family Law Act" ) tabled in the first half of 2011.

So far the white paper is getting mostly positive reviews from family law practitioners, who were heavily consulted before the recommendations were rolled out.

"I think it's absolutely the most progressive legislation I have ever seen in my 12 years [at the Bar]-I am proud to be practising family law in British Columbia," enthused Kelowna's Cori McGuire. "The biggest thing is they heard [the Bar], and it's such a powerful thing to be heard, especially by your government."

McGuire commended the draft statute's emphasis on non-court dispute resolution. She said children will benefit from the courts' new statutory power to order high-conflict parents to retain parenting co-ordinators with the authority to mediate, and if necessary, decide, day-to-day disputes. However McGuire stressed that the success of such innovative measures hinges, in part, on public resources being made available for such services. "There must be an allocation of resources," she stressed.

That comment was echoed by David Dundee, a Kamloops, B.C. family law practitioner who has been integral to the organized Bar's consultations on the proposed reforms. He told The Lawyers Weekly the white paper's "unveiling was greeted with general enthusiasm."

Speaking personally, he said, "what I most like are flexible access enforcement that can be used by both levels of court, addressing debt [division] directly for the first time, and encouraging collaborative measures generally.

"What I like least are completely throwing out the existing statutory scheme for matrimonial property division and starting from scratch with a new one, and the fact the government cannot yet commit to new resources to take advantage of so many of these reforms."

Added Dundee, "I don't like throwing out 30-plus years of experience and case law [on property division] without a demonstrated need. Even if the new system is an improvement, we won't know that for awhile, and it will take years of litigation for us to figure it all out."

The white paper not only revamps the law on child custody and guardianship, it also offers up Canada's first (and desperately needed) comprehensive statutory scheme to determine a child's legal parentage when reproductive technology has been used.

Other hot-button issues in family law are also addressed. Proposed measures include: creating presumptions when parent-child relocation is contested; beefing up penalties for parents who deny, or fail to exercise, "parenting time"; and legislating a general duty to disclose information.

(With respect to the latter, the ministry asks should the statutory disclosure duty apply to non-court dispute resolution, and should there be a way to seek assistance on disclosure from a court, without starting a full legal action?)

Another recommended reform drops "adversarial" legal terms in favour of less loaded language. Children's best interests (extensively defined) will be the only consideration in determining their post-separation care. Their views will routinely be solicited, unless it would be "inappropriate to do so."

In addition the law will recognize most parents as presumptively having shared responsibility for their children post-separation (although the white paper does not endorse a presumption that parental responsibilities, or parenting time, should automatically be shared equally).

The revamped law would abolish the controversial obligation of adult children to support their needy parents.
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