BC Association of Clinical Counsellors THE NEW FAMILY LAW ACT

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1 BC Association of Clinical Counsellors Legal Commentary * THE NEW FAMILY LAW ACT What clinical counsellors need to know about BC s new legislation before they provide counselling services to families undergoing separation or divorce. Prepared by George K. Bryce, BCACC Legal Counsel July 26, 2013 * This commentary is intended to help clinical counsellors gain a better understanding of legal issues that are relevant to their practice. It is not meant to be a substitute for legal advice. If a counsellor has a particular concern about an issue that he or she is facing in practice, that counsellor should seek independent legal advice from a lawyer. Neither Mr. Bryce nor the BCACC can provide individual counsellors with legal advice.

2 TABLE OF CONTENTS Introduction ) Changes in Terminology ) Why new terminology? ) Neutral terminology ) Parents as guardians ) Parental responsibilities ) Parenting time and contact ) Parenting arrangements ) Guardians consulting with each other ) Contact with a child ) Translating old terms to new ones ) Use of custody and access in the federal Divorce Act ) Agreements ) Agreements about guardianship ) Agreements about parenting arrangements ) Agreements about parenting time ) Agreements about contact with a child ) Relying on agreements ) Counsellors as Parenting Coordinators ) Counsellors can be parenting coordinators ) Practice standards ) What counsellors can do as parenting coordinators ) Why was the BCACC listed as one of the regulators? ) Counsellors Preparing Assessment Reports ) Assessment reports ) Can counsellors prepare section 211 reports? ) Other Noteworthy Provisions Additional Readings

3 INTRODUCTION On March 18, 2013, BC s new Family Law Act 1 (FLA) came into force. The new FLA replaced the old Family Relations Act 2 (FRA), which had not been substantially revised in decades and was sadly out-of-date. Several changes to family law resulting from the new FLA will be of interest to counsellors. For example, changes have been made to the terminology used to describe the legal status of parents who are undergoing a separation or divorce, in particular the terms that define their responsibilities concerning any children of their relationship. Other changes within the new FLA are likely to have an impact on clinical practice; such as the role clinical counsellors can play as parenting coordinators. Counsellors who provide assessment reports in a family law dispute should also be aware that section 211 has replaced section 15 from the repealed FRA and provides new directions on the matters to be canvassed in those reports. In this Commentary, I will discuss the new terminology that will impact on counselling practice, and describe where clinical practice may need to change. Subsequent legal commentaries will address in more detail other changes to counselling practice that will flow from the new FLA. Counsellors are encouraged to keep an eye on the membership side of the BCACC website for the following new or revised commentaries: Legal Commentary on Consent to Counselling Therapy Services; Legal Commentary on Counselling Expert Reports (second edition). This Commentary will not discuss family violence or protection orders (these replace restraining orders under the FRA, which remain effective under the FLA), nor will it consider how the new Act addresses child support, spousal support or the division of property, pensions and debt. Counsellors who require information on these issues, in particular if any of these matters have an impact on the counselling services they are providing to clients, should consult independent legal counsel. Finally, I would like to thank respected family law lawyer, John-Paul E. Boyd, 3 for his helpful comments and suggestions on an earlier draft of this Commentary. Any errors or omissions remain my responsibility. 1 SBC 2011, c RSBC 1996, c Mr. Boyd is an associate with the law firm Aaron Gordon Daykin Nordlinger LLP in Vancouver, BC. 2

4 1) CHANGES IN TERMINOLOGY The new FLA effectively requires those who use terms such as parental rights, custody and access to adopt new terminology, because these old terms are no longer used under the new Act. In particular, the Act places emphasis on the rights of children to be properly cared for rather than on the legal entitlements of their parents. Counsellors should no longer use the terms custody or access. Before discussing the new terminology, it is useful to consider why the FRA was replaced and the old terms were changed. 1.1) Why new terminology? The FLA has changed the terms used in family law disputes for two main reasons. First, a great deal of negative connotations was attached to the old terms. For example, parents who were granted by the courts access to but not custody of their children under the old FRA, felt that they had lost much of their status as parents. The new FLA uses less inflammatory and more appropriately descriptive and flexible terminology. The government has described these changes as: The change is more than just a wording substitution - it is a new way of looking at parenting after separation. The change encourages respect for each parent s role - even where they have different roles and levels of responsibility. 4 Second, Part 4 of the FLA creates a new model for making decisions concerning the care of children and the time that can be spent with them. This model puts children at the centre of the picture. The new FLA provides new guidance to help determine what is in the best interests of a child. For example: Subsection 37(1) makes it clear that, when making an agreement respecting guardianship, parenting arrangements or contact with a child, the child s parents or guardians must consider the best interests of the child only. The same rule applies to situations when the court is called upon to make an order. Subsection 37(2) then lists a number of the child s specific needs and circumstances that must be considering in making a decision in the best interests of a child. Subsection 37(3) goes further and emphasizes that an agreement or court order is presumed not to be in the best interests of a child unless it protects, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being. The question of family violence must also be taken into consideration when considering what are the best interests of a child. Section 38 sets out a series of 4 JusticeBC Parenting Apart (undated). 3

5 additional factors the court must consider if rendering an order that responds to the existence of family violence that may affect a child. Division 2 of Part 4 of the FLA provides a new approach for addressing parenting roles and responsibilities after a couple has separated, and is the source of the new terminology. 5 Further details will be provided under each of the following headings. 1.2) Neutral terminology The terms husband and wife used in the old FRA have been replaced with the gender neutral term spouse, and similar changes have been made to a number of other BC statutes. Spouse includes certain kinds of unmarried couples as well as married couples. 6 Further, the words father and mother have been changed to parent 7 and guardian. 8 The change to gender neutral language within the new FLA provides a foundation for a series of new terms that replace custody and access that were used under the now repealed FRA. 5 It is worth noting that both married and unmarried couples that have lived together can employ the provisions of the new FLA; the new Act does not discriminate between them. However, couples that have had a child together and have lived together for less than two years are not included in the property division rules of the FLA, but may now apply for and be entitled to receive spousal support. Most other areas of BC law, such as wills and estates, income tax and spousal support, already treat unmarried spousal relationships the same as married relationships. 6 The term spouse is defined in section 3, as follows: Spouses and relationships between spouses 3(1) A person is a spouse for the purposes of this Act if the person (a) is married to another person, or (b) has lived with another person in a marriage-like relationship, and (i) has done so for a continuous period of at least 2 years, or (ii) except in Parts 5 [Property Division] and 6 [Pension Division], has a child with the other person. (2) A spouse includes a former spouse. (3) A relationship between spouses begins on the earlier of the following: (a) the date on which they began to live together in a marriage-like relationship; (b) the date of their marriage. (4) For the purposes of this Act, (a) spouses may be separated despite continuing to live in the same residence, and (b) the court may consider, as evidence of separation, (i) communication, by one spouse to the other spouse, of an intention to separate permanently, and (ii) an action, taken by a spouse, that demonstrates the spouse's intention to separate permanently. 7 The term parent is determined by way of a series of provisions set out in Part 3 Parentage. 8 The term guardian is defined in section 1 as meaning a guardian under section 39 of the FLA [parents are generally guardians], discussed next, as well as Division 3 [Guardianship] of Part 4 Care of and Time with Children. 4

6 1.3) Parents as guardians Subsection 39(1) of the FLA states that the parents of a child are presumed to be the child s guardians while a child s parents are living together and after the child s parents separate. Thus, there is an assumption that cohabitating parents are the guardians of a child and will remain the child s guardians if they separate, but this assumption can be changed or modified depending on the family s circumstances. In other words, joint guardianship for a child s parents is the default legal position, unless it is otherwise changed. For example, section 39(2) of the FLA allows an agreement 9 or court order to provide that one parent is no longer a child s guardian. Further, section 39(3) states that a parent who has never resided with his or her child is not the child s guardian, but goes on to list some limited exceptions to this rule, such as if the non-resident parent regularly cared for the child or if the person is a parent under an assisted reproduction agreement. Finally, section 39(4) addresses new relationships and provides that, if a child s guardian becomes a spouse in a new relationship, the new partner does not automatically become a guardian of that child by reason only of the marriage or marriage-like relationship. Section 39 of the FLA establishes, as a starting position, that parents who live (or have lived) with their children are their legal guardians, both during their relationship and after their separation. Thus, a parent remains a guardian until such time as an agreement or court order directs otherwise. This is different from the general rule under the former FRA, which stated that when parents separate, the parent with whom the child then resided would have sole custody and guardianship of the child, absent an order or agreement to the contrary. Further, under the terms of an agreement or court order, a parent can be added or removed as a child s guardian. However, someone who is not parent can only become a guardian of a child by way of a court order. A non-parent cannot become a guardian by way of an agreement. 10 In summary, there is no difference in status between the parent the child lives with and the parent the child no longer lives with, at least so long as both parents are guardians. As noted above, a parent can be removed as a guardian by agreement or court order. 9 While the FLA does not define agreement, it does encourage parents to establish defined parenting arrangements in writing to allocate, if they so choose, the parenting responsibilities and parenting time as may be appropriate for their child. For details see the next chapter on Arrangements and Agreements. 10 Under a parent s Last Will and Testament or by a signed Form 2 under the FLA Regulations, a nonparent can be appointed as the guardian of the child to act during the child s minority, without the need for a court order. 5

7 There are different legal consequences for people who are guardians versus those who are not. Under the Act, the terms parent and guardian are not synonymous; it is a parent s status as a guardian that is important and leads to that parent s subsequent legal responsibilities. 11 Herein I will use the term guardian (or guardians ) when discussing the application of Part 4 of the FLA, rather than parent (or parents ), unless the Act itself refers to or uses the word parent. From time-to-time I may refer to a guardian parent or a non-guardian parent where such a distinction is necessary. As will be discussed next, a parent s responsibility toward a child does not necessarily change simply because the parents have separated. 1.4) Parental responsibilities While the new FLA continues the term guardianship that was used in the old FRA, the meaning of guardianship is much different under the new Act and focuses on the interests of children rather than the rights of parents. 12 The new Act no longer uses divisive language such as custody and access that was part of the old Act, and a person no longer has sole guardianship of a child, the person is either a guardian or not. The rights of a guardian to make decisions concerning a child are now defined under the new FLA through the distribution of parental responsibilities. More importantly, parental responsibilities can be distributed in a more nuanced way so as to ensure the roles and responsibilities for each parent as may be appropriate for any particular child. With clarity as to who is or is not a guardian, section 40(1) goes on to state only a guardian may have parental responsibilities and parenting time with respect to a child. I will discuss other aspects of section 40 in more detail below. For now, it is useful to focus on what constitutes parental responsibilities as this is a significant, new term in BC family law. Section 1 of the FLA defines parental responsibilities as meaning one or more of the parental responsibilities listed in section 41. In turn, section 41 lists the following as the parental responsibilities that may concern a child: 11 It is also important to remember that the term parent can mean more than a biological parent (the scope of that term is defined in Part 3 Parentage ) and may include the donors of reproductive material and surrogate mothers. 12 Under the FRA, a guardian was the guardian of the estate of a child and a guardian of the person of the child. Under the new FLA, guardians are guardians of the person of the child and do not automatically act as trustee of the child s property except for property worth less than $10,000. (For more valuable property, the court may appoint a property trustee, who may be a guardian.) Guardianship of the person of the child generally is defined through a distribution of parenting responsibilities as per section 41; see below. And the limited authority to act as the personal guardian of a child is addressed separately in section 51 of the Infants Act in cases where a child (under the age of 19) has no legal guardian. 6

8 (a) making day-to-day decisions affecting the child and having day-today care, control and supervision of the child; (b) making decisions respecting where the child will reside; (c) making decisions respecting with whom the child will live and associate; (d) making decisions respecting the child's education and participation in extracurricular activities, including the nature, extent and location; (e) making decisions respecting the child's cultural, linguistic, religious and spiritual upbringing and heritage, including, if the child is an aboriginal child, the child's aboriginal identity; (f) subject to section 17 of the Infants Act, giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the child; (g) applying for a passport, licence, permit, benefit, privilege or other thing for the child; (h) giving, refusing or withdrawing consent for the child, if consent is required; (i) receiving and responding to any notice that a parent or guardian is entitled or required by law to receive; (j) requesting and receiving from third parties health, education or other information respecting the child; (k) subject to any applicable provincial legislation, (i) starting, defending, compromising or settling any proceeding relating to the child, and (ii) identifying, advancing and protecting the child's legal and financial interests; (l) exercising any other responsibilities reasonably necessary to nurture the child's development. As will be discussed in more detail below, the parental responsibility of giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the child set out in section 41(f) is likely the one that will be of greatest interest to clinical counsellors. Each of these parental responsibilities can be shared between guardians or allocated to one guardian only, so that only that guardian may make decisions on issues covered by the responsibility. A child s guardians are presumed to share all parental responsibilities in consultation with each other unless or until an agreement or court order says otherwise. Subsection 43(1) states a fundamentally important new rule: A child's guardian must exercise his or her parental responsibilities in the best interests of the child. In section 43(2), the Act states that if a guardian is temporarily unable to exercise any of the parental responsibilities described in sections 41(a), (c), (d), (f) to (j) or (l) (as listed above), the child's guardian may then authorize in writing another person to temporarily exercise, in the best interests of the child, one or more of those responsibilities on that guardian's behalf while the guardian is unable to do so. This will most commonly be used 7

9 where a child must travel away from home to go to school and it is necessary to authorize someone to make decisions about these responsibilities on behalf of the child s parents. What might be in the best interest of the child will vary, but could include ensure the child is provided with emergency medical or other care. (See the companion Legal Commentary on Consent to Counselling Therapy Services for more details.) These changes should be welcomed improvements to family law, because the old FRA did not provide much guidance in relation to the range or nature of responsibilities that guardians had toward children. Sections 41 and 43 fill those legal gaps. 1.5) Parenting time and contact Parenting time is the time a guardian has with a child. Section 42 of the FLA states: Parenting time 42(1) For the purposes of this Part, parenting time is the time that a child is with a guardian, as allocated under an agreement or order. (2) During parenting time, a guardian may exercise, subject to an agreement or order that provides otherwise, the parental responsibility of making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child. Thus, the key policy set out in section 42 is that, when a guardian has parenting time with a child, that guardian is then authorized to make day-to-day decisions affecting the child and is responsible for the day-to-day care, control and supervision of the child, unless these responsibilities have been assigned to another guardian by an agreement or court order. If a parent is not a guardian, because of an arrangement or a court order, or because that parent did not reside with the other parent and the child, that non-guardian parent s time with the child is known as contact with a child and that non-guardian parent will not have any parental responsibilities or be authorized to make day-to-day decisions when the child is with him or her. This will be discussed in more detail below. 1.6) Parenting arrangements Section 1 defines parenting arrangements to mean arrangements respecting the sharing between guardians of parental responsibilities and parenting time as set out in an agreement or court order. 13 As noted above, section 40 then sets out the framework for establishing parenting arrangements: 13 Parenting arrangements does not include arrangements for contact. 8

10 Parenting arrangements 40(1) Only a guardian may have parental responsibilities and parenting time with respect to a child. (2) Unless an agreement or order allocates parental responsibilities differently, each child's guardian may exercise all parental responsibilities with respect to the child in consultation with the child's other guardians, unless consultation would be unreasonable or inappropriate in the circumstances. (3) Parental responsibilities may be allocated under an agreement or order such that they may be exercised by (a) one or more guardians only, or (b) each guardian acting separately or all guardians acting together. (4) In the making of parenting arrangements, no particular arrangement is presumed to be in the best interests of the child and without limiting that, the following must not be presumed: (a) that parental responsibilities should be allocated equally among guardians; (b) that parenting time should be shared equally among guardians; (c) that decisions among guardians should be made separately or together. As noted above, section 40(1) states that only a guardian (most often a parent) is entitled to parental responsibilities and parenting time in relation to a child. Subsection 40(2) provides that, unless an agreement or court order allocates parental responsibilities differently, each child's guardian may exercise all parental responsibilities with respect to the child in consultation with the child's other guardians, unless consultation would be unreasonable or inappropriate in the circumstances. (The implications for counselling practice of the section 40(2) duty to consult will be discussed under the next sub-heading.) In effect, this section creates a default position: unless an agreement or court order provides otherwise, each guardian holds and can exercise all parental responsibilities. 14 Section 40(3) provides that parental responsibilities may be allocated by an agreement or under court order so that one or both guardians may exercise these responsibilities. Finally, section 40(4) says that, in making such parental arrangements, no particular arrangement is to be presumed to be in the best interests of the child. This section also states that it must not be presumed that (a) parental responsibilities must always be allocated equally among guardians, (b) parenting time must always be shared equally 14 Under the old FRA, the parent who usually had care of the child was presumed to be the sole guardian of the child s person after separation, unless an agreement or order provided that the parents would be joint guardians. This presumption no longer applies under the new FLA. 9

11 among guardians, or (c) decisions among guardians must always be by one guardian alone or by the guardians together. In other words, there are to be no presumptions that equal parenting time and an equal sharing of parental responsibilities are always best for children. As the Ministry of Justice has noted: The parenting arrangements must be made in the child s best interests considering their particular circumstances. The act allows for a flexible and tailored approach to making parenting arrangements and allocating parental responsibilities. 15 Collectively, section 40 sets out a series of important general principles concerning parental responsibilities and parenting time with children that were not articulated in the old FRA. Parents who are guardians are presumed to both hold all the parenting responsibilities as listed in section 41 (see above), during their relationship and after their separation. The guardian parents can agree to allocate parental responsibilities between them so that they share some or all responsibilities or only one parent will have one or more responsibilities. For example, one parent could hold most of the parenting responsibilities and parenting time, with the other having limited right to participate in making decisions about a limited number of responsibilities and having less time with the child. In summary, parenting arrangements prescribe how the guardians (most often the parents) will share parenting time and parental responsibilities after separation. When a child s guardians are deciding how to share parental responsibilities and parenting time after separation, the FLA says they must only consider the best interests of the child. Collectively, these are amongst the most import reforms within the new Act. 1.7) Guardians consulting with each other As noted above, section 40(2) provides that unless an agreement or court order allocates parental responsibilities differently, each child's guardian may exercise all parental responsibilities with respect to the child in consultation with the child's other guardians, unless consultation would be unreasonable or inappropriate in the circumstances. There are several points that flow from this requirement as it relates to section 41(f) of the FLA that speaks to giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the child. Section 40(2) of the FLA does not go further and require the counsellor to actively seek out or obtain the approval of the guardians. The counsellor is entitled to rely on the guardian who advises the counsellor that he or she has either been awarded sole parental 15 BC Ministry of Justice, Section 40 Parenting Arrangements. 10

12 responsibilities to consent to health care services for the child, or has consulted with the other parent as required by the Act. Section 40(2) simply requires the guardians with parental responsibility for giving, refusing or withdrawing consent to consult with each other. 16 If parental responsibility for matters falling under section 41(f) of the FLA regarding consenting to health care have been allocated only to one guardian, 17 then the counsellor only needs to obtain the consent of that guardian. In this situation, the guardian with authority under section 41(f) is not required to consult with the child s other guardians or with a non-guardian parent. A guardian s duty to consult with the other guardian is subject to an exception in section 40(2) of the FLA: unless consultation would be unreasonable or inappropriate in the circumstances. Again, it is not the counsellor s responsibility to decide if it was reasonable or appropriate for one guardian not to consult with the other. A guardian who does not believe it was reasonable or appropriate for the other guardian not to consult can take that issue to the court for adjudication. The scope and limit of a guardians duty to consult is addressed in more detail in the separate Legal Commentary on Consent to Counselling Therapy Services. 1.8) Contact with a child Section 1 of the FLA defines contact with a child as being contact between a child and a person, other than the child s guardian, the terms of which are set out in an agreement or order. Division 5 of Part 4 of FLA goes on to set out the rules as they apply to how contact with a child is to be determined. In general terms, a non-guardian parent may have contact with a child. But others can also be granted contact through an agreement or by court order, such as grandparents, stepparents or other persons who are important in the life of that child. 16 For example, if a guardian parent advises the counsellor that she has the sole responsibility to give consent to her child seeing the counsellor, but later the counsellor finds out this responsibility was in fact shared with another guardian parent, the counsellor would not be expected to have taken steps to confirm what that parent first said. In most situations, it would be reasonable for the counsellor to rely on the information that the consenting parent provided. 17 For example, this is likely to be the parent who remains as the child s guardian in situations where the other parent is no longer a guardian because of a history of conflict or violence. 11

13 1.9) Translating old terms to new ones With a few exceptions, 18 the new FLA applies to any new case, to any case that was started under the FRA and to any agreement or order that was made under the FRA. Therefore, counsellors and their clients should use the new terminology now, even if an old agreement or order continues to use the old terminology. Section 251 of the FLA sets out the rules for interpreting agreements and court orders made under the old FRA applying the new terminology: 19 (a) a person who has joint or sole custody of a child under an old agreement or order is a guardian under the FLA; (b) a person who has joint or sole guardianship of a child under an old agreement or order is also a guardian under the FLA; (c) for parents and other persons who are guardians, the allocation of parental responsibilities is the allocation of guardianship or decision-making responsibilities as set out in the old agreement or order; (d) for parents and other persons who are guardians, the allocation of parenting time is the allocation of access as set out in the old agreement or order; and, (e) a parent or another person who has access but neither custody nor guardianship under an old agreement or order is not a guardian, and that person s access is contact with a child under the new Act. There is not a direct concordance in terminology because the old terms do not directly translate to the new ones. Even the meaning of guardianship is not the same under the new FLA as it was under the old FRA. But, in general terms, if an original agreement or court order under the FRA granted someone custody or guardianship of a child, then that person will be a guardian of the child under the new FLA. 20 Depending on the wording of an agreement or an order granted under the old FRA, a parent may now hold some if not all of the parental responsibilities listed under the new FLA. 21 Therefore, it is possible that a parent who is a guardian under the new Act may now have broader parental responsibilities, and a less restricted role in exercising parental 18 The exceptions will not arise in clinical practice, as they relate to proceedings started and agreements made under the FRA concerning the division of pensions or property. 19 If there is a dispute as to how an agreement or court order under the old FRA should now be interpreted or applied under the new FLA, the parties can apply to court to resolve that disagreement and the court would then apply the new terminology in resolving that dispute. 20 Section 251(1)(a) of the FLA states that if a prior agreement or order under the FRA provided one parent with custody or guardianship of a child, then that parent will be considered a guardian of the child under the new FLA. 21 Section 251(1)(a) of the FLA goes on to indicate that a parent with custody or guardianship under the FRA now has parental responsibilities and parenting time with respect to that child under the new Act. 12

14 responsibilities than the he or should would have had in exercising guardianship under the FRA. If a counsellor is not sure what parental responsibilities a particular agreement or court order has allocated, the counsellor should obtain advice from either the guardian s lawyer or from independent legal counsel. When discussing family law matters and the application of the new FLA with families during counselling sessions, counsellors should now use the new terminology. In the years to come, the old terms will eventually fall out of use. 22 The companion Legal Commentary on Consent to Counselling Therapy Services will provide more detail on a parent s authority to give consent for counselling services to a child in relation to the four different types of status that parents may hold that now flow from the FLA, as well as the limits of a counsellor s obligations to confirm parental status to give such consent. 1.10) Use of custody and access in the federal Divorce Act It is worth noting that terms like custody and access are still used within the federal Divorce Act 23 (DA). Generally speaking, under the DA: custody refers to a parent s right to have the child and direct the upbringing of the child; a parent with sole custody has the exclusive right to raise the child and make decision on his or her behalf, and the child usually lives primarily with that parent; parents with joint guardianship both have the right to raise the child and make decisions, however joint guardianship does not mean that the child lives equally in both homes; access means the time a child spends with the divorced parent the child does not usually live with, and a parent with access has the right to be informed of and receive information about the child s education, health and welfare; and, people other than spouses can apply under the DA for access to a child, such as grandparents, aunts and uncles, and other relatives but this is unusual and these people must obtain the court s permission to make the application. Because the FLA is likely to be the primary legislation that counsellors who are assisting families in crisis need to be familiar with, it is not necessary for counsellors to be overly concerned about the continued use of the old terms under the Divorce Act. But 22 Again, the only exception would be where the terms custody and access may continue to be used under proceedings pursuant to the federal Divorce Act. 23 R.S.C. 1985, c 3 (2nd Supp). 13

15 counsellors should be aware of the different legal context if these old terms continued to be used by their married clients with claims under the DA. For the foreseeable future, the FLA and DA will continue to use different terminology when setting out their respective rules regarding the care and control of children. However, the DA applies only to married couples; the FLA applies to married spouses, unmarried spouses and other unmarried relationships. And only the FLA provides for protection orders and the division of property, debt and pensions. Counsellors who require further guidance on divorce proceedings or the impact the DA may have on their practice are encouraged to consult with an independent legal advisor. 14

16 2) AGREEMENTS With an appreciation for the new terminology, another major development of the FLA is its focus on encouraging separating parents to establish their own arrangements and, in particular, to document those arrangements in written, formal agreements. If such arrangements are not established or any resulting agreements are not followed, the Act provides mechanisms for the court to step in and issue orders. This chapter discusses the sorts of agreements (or parts of agreements) that counsellors are now likely to see in their clinical practice ) Agreements about guardianship Sections 39 and 50 of the FLA allows parents to make an agreement that states whether a parent is or not a guardian of a child, however guardians may not make an agreement appointing someone who is not a parent as a guardian of a child. A non-parent can become a guardian only by way of court order under section 51 of the FLA, by appointment in a guardian s will, 25 or by an order under the Adoption Act or the Child, Family and Community Services Act. 26 A guardianship agreement could be part of a general agreement or a separate agreement, although removing a parent as a guardian can only be done after the parents have separated. In brief, subject to a formal agreement or court order, the FLA states that both parents of a child are the guardians of that child, so long as they lived with that child. A person can also be a guardian if he or she is a parent pursuant to an assisted reproduction agreement or regularly cares for the child. An informal arrangement does not change the legal status of a parent as the presumed guardian of the child. Such a change can only be done through an agreement or by way of court order. 27 The court may also make an order under section 51 appointing someone, including a parent, as the guardian of a child or removing someone as the guardian of a child, 24 Court orders will not be discussed in this Commentary. In general terms, a court order may adopt all or part of an agreement, or it may vary or revoke any term and condition in an agreement. If a counsellor needs assistance in interpreting a court order, the counsellor should consult with independent legal counsel. 25 A guardian can also appoint someone as a guardian in the event of his or her death or incapacity by filling out and signing Form 2 of the FLA Regulation. 26 Under section 53, a child s guardian through his or her Last Will and Testament may appoint someone else to be a guardian. This can also be done by Form 2, as prescribed in the accompanying FLA Regulation. These appointments are not supervised by the courts under the new FLA. 27 In addition to a testamentary guardian, the FLA also allows for and standby guardianship in case of incapacity of a guardian. Counsellors who are presented with such situations should confirm the new guardian is acting under appropriate authority. 15

17 although this authority does not apply to guardianship or custody granted to a director under the Adoption Act or the Child, Family and Community Services Act. The court s power to remove a guardian is likely to be exercised only as a last resort. Subsection 51(4) requires that a child who is 12 years of age or older consent to an order appointing someone as his or her guardian. Such consent is not required, however, where the person seeking guardianship is that child s parent or the court is otherwise satisfied that it is in the best interests of the child to grant the appointment. 2.2) Agreements about parenting arrangements Under section 44, guardians are encouraged to set out in a written agreement any settlement they reach in relation to the allocation of parental responsibilities or parenting time, or both: Agreements respecting parenting arrangements 44(1) Two or more of a child's guardians may make an agreement respecting one or more of the following: (a) the allocation of parental responsibilities; (b) parenting time; (c) the implementation of an agreement made under this section; (d) the means for resolving disputes respecting an agreement made under this section. (2) An agreement respecting parenting arrangements is binding only if the agreement is made (a) after separation, or (b) when the parties are about to separate, for the purpose of being effective on separation. (3) A written agreement respecting parenting arrangements that is filed in the court is enforceable under this Act as if it were an order of the court. (4) On application by a party, the court must set aside or replace with an order made under this Division all or part of an agreement respecting parenting arrangements if satisfied that the agreement is not in the best interests of the child. Subsection 44(3) clarifies that agreements concerning parenting arrangements are enforceable in the courts as if they were court orders. This should encourage separating parents to create their own binding agreements and to reach their own settlement to define their parenting arrangements without resort to the courts. If the separated parties cannot create an agreement under section 44, either guardian can apply to the court under section 45 for an order that would then allocate parental responsibilities or define parenting time, as well as other matters. 16

18 Section 48 speaks to maintaining informal parenting arrangements, where the separated parents have not yet established a written parenting agreement, but have conducted themselves under an informal arrangement a period of time sufficient for those parenting arrangements to have been established as a normal part of that child's routine, a guardian must not change those arrangements without consulting the child s other guardians. This provision thus creates a stopgap measure to address parenting arrangements until such time as a written agreement has been signed or a court order can be obtained. 2.3) Agreements about parenting time The time that a guardian spends with a child may be set out within either an agreement or court order. Guardians may including terms about parenting time as part of a separation agreement that deals with all of the issues arising from the breakdown of their relationship, or in an agreement just about how parenting issues will be managed. If the guardians cannot agree on parenting time, a guardian may apply under section 45 to the court for an order to thus prescribe such time. Under Division 5 of the FLA (Compliance Respecting Parenting Time or Contract with a Child), section 61 provides a process for enforcing orders and agreements about parenting time when the parenting time is improperly withheld. Under section 61(2) the court may order one or more of the following remedies: 28 (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 counselling, 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 $ And section 61(3) provides that for court orders made under section 61(2) (a), (b) or (e), the court may allocate among the parties, or require one party alone to pay, the fees relating to the family dispute resolution, counselling, service, program or transfer. 17

19 While the court can grant such remedial orders, section 62 describes a number of circumstances when the denial of a guardian s parenting time or contact with a child would be acceptable: 29 (a) the guardian reasonably believed the child might suffer family violence if the parenting time or contact with the child were exercised; (b) the guardian reasonably believed the applicant was impaired by drugs or alcohol at the time the parenting time or contact with the child was to be exercised; (c) the child was suffering from an illness when the parenting time or contact with the child was to be exercised and the guardian has a written statement, by a medical practitioner, indicating that it was not appropriate that the parenting time or contact with the child be exercised; (d) in the 12-month period before the denial, the applicant failed repeatedly and without reasonable notice or excuse to exercise parenting time or contact with the child; (e) the applicant (i) informed the guardian, before the parenting time or contact with the child was to be exercised, that it was not going to be exercised, and (ii) did not subsequently give reasonable notice to the guardian that the applicant intended to exercise the parenting time or contact with the child after all; (f) other circumstances the court considers to be sufficient justification for the denial. Finally, if someone who is entitled to parenting time with a child under agreement or court order fails repeatedly to exercise that entitlement, the court may enforce the agreement or order under section 63 of the FLA by directing the parties to participate in family dispute resolution, to attend counselling, specified services or programs, or requiring that the transfer of the child from one party to another be supervised. The court can also order reimbursement of expenses that one party may have incurred because of the other party s failure. 2.4) Agreements about contact with a child Under section 58(1) of the FLA, the guardians of a child can enter into an agreement with a parent who is not a guardian, or any other person who is not a guardian, that would specify terms and form of that person s contact with the child. Subsection 58(2) goes on to provided that: An agreement respecting contact with a child is binding only if the agreement is made between all of a child's guardians having parental responsibility for making decisions respecting with whom the child may associate. Collectively, these provisions encourage guardians and people who are not guardians to set out the terms and conditions for non-guardians contact with a child. 29 Section 62(2) goes on to provide that if the court finds that parenting time was wrongfully denied, it may then specifying a period of time during which the applicant may exercise compensatory parenting time with the child. 18

20 Where the parties are both parents, terms about contact may be included as part of a separation agreement that deals with all of the issues arising from the breakdown of their relationship, or in an agreement that speaks to only how contact will be managed. If the parties include people who are not parents, terms about contact will usually be in an agreement about just that issue. As with agreements about parenting arrangements, an agreement for contact with a child can be filed in court and enforced like a court order. Subsection 58(3) states: A written agreement respecting contact with a child that is filed in the court is enforceable under this Act as if it were an order of the court. But a court can also set aside, replace or vary the terms of a contact with a child agreement if it determines under section 58(4) that the agreement is not in the best interests of the child. And as with other decisions that affect children, if an agreement for contact is not in the best interests of the child, it can be set aside by court order. If the guardians cannot agree among themselves about someone s contact with a child, or cannot reach an agreement with someone seeking contact, section 59(1) of the FLA allows the court to make an order for contact with the child that, as with an agreement, will specify the terms and form of contact that a non-guardian may have with the child. For example, a non-guardian s contact with a child might take the form of time with that child at specified times or be restricted to telephone or written contact, and even timelimited forms of either. Subsection 59(2) makes it clear that any person who is not the child s guardian can be granted contact, and this includes grandparents and other persons. Court orders respecting supervised contact can also be obtained under section 59(3). Section 60 allows the court to change, suspend or terminate an order respecting contact with a child if satisfied that, since the making of the order, there has been a change in the needs or circumstances of the child, including a change in the circumstances of another person. Thus, it is necessary for someone who wants to vary an order to prove a change in circumstances before a contact with a child order may be issued or changed. As noted above in relation to parenting time disputes, sections 61 and 63 provides the process and criteria that allows a parent to apply to court to enforce an agreement or order for contact where the contact has been wrongfully withheld or has not been exercised. 19

21 2.5) Relying on agreements Counsellors may be presented with copies of the various agreements that can now be established under the FLA. As discussed above, a written agreement for parenting arrangements and, in some respects, contact can address one or more of the following topics: Guardianship, in particular whether a parent is or is not a guardian of a child; Parental responsibilities, the allocation of such responsibilities between guardians and the resolution of disputes about such responsibilities; Parenting time and the allocation of parenting time between guardians; 30 Contact with a child for someone who is not a guardian, including a parent who is not a guardian. Counsellors are not expected to be lawyers and to correctly interpret the terms and conditions of an agreement that is presented to them. In most situations, counsellors are entitled to rely on a parent s description as to what a presented agreement authorizes that parent to do or restricts what another parent may do. If the need arises, counsellors may ask a parent to provide a lawyer s description of the rights and responsibilities provided in an agreement. This may be necessary if a counsellor learns that an agreement has been varied by a subsequent court order. If a counsellor has concerns about the bona fides of someone who is claiming to be the parent (specifically, claiming to be a guardian of a child), the counsellor should consult with a lawyer to ensure that such a person is in fact the child s guardian. For example, the counsellor might ask for a letter from that parent s lawyer to confirm his or her legal status under the FLA. In a similar fashion, if a counsellor has concerns about the scope of parental responsibilities, or the nature of parenting time or contact with a child as may be set out in an agreement, the counsellor should consult with a lawyer before proceeding. Again, this could be information that is provided by a parent s lawyer. 30 It is equally critical to have agreements on parenting time whether such time is shared equally or not. 20

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