Guide to the New BC Family Law Act Ele c tro n ic L e g a l A id Ne w s British Columbia www.legalaid.bc.ca October 2012
2012 Legal Services Society, BC First edition: 2012 ISBN: 978-0-9917465-0-7 (Print) ISBN: 978-0-9917465-1-4 (Online) Acknowledgements Writers: John-Paul Boyd and Nate Prosser Editor: Winnifred Assmann Cover design: Gillian Boyd Legal reviewer: John-Paul Boyd The contents of this guide first ran as a series of entries in the ELAN blog from February 17, 2012 to September 24, 2012. Some of the entries have been edited from their original text. To stay up to date on family law issues in BC, visit www.elan.lss.bc.ca. Our thanks to JP Boyd for providing the background for this series. His BC Family Law Resource Blog (bcfamilylawresource.blogspot.com) covers family law issues in BC and contains much useful information. He has also written extensively about the new Family Law Act. Guide to the New BC Family Law Act is available in English and French (online only) and coming soon in other languages. This guide may not be commercially reproduced, but copying for other purposes, with credit, is encouraged. Guide to the New BC Family Law Act is a publication of the Legal Services Society (LSS), a non-government organization that provides legal aid to British Columbians. LSS is funded primarily by the provincial government and also receives grants from the Law Foundation and the Notary Foundation. This guide explains the law in general. It isn t intended to give you legal advice on your particular problem. Because each person s case is different, you may need to get legal help. The information in this booklet is up to date as of October 2012. If you have questions about this guide or the Family Law Act, please email them to elan@lss.bc.ca. If you re an advocate or community worker and a member of the confidential online LSS Family Law Forum (familyforum.lss.bc.ca), the forum may be able to help. Post your question on the forum to learn more from your colleagues, or share useful information you ve found elsewhere. For community organizations, if you d like to request bulk orders of this guide (more than 50), email distribution@lss.bc.ca. If you re interested to attend upcoming workshops and training sessions about the new Family Law Act, email outreach@lss.bc.ca to find out more about what s scheduled.
Contents Introduction... 1 Language changes... 2 The Divorce Act and when the language will not change... 6 Making agreements to stay out of court... 7 Care of and time with children: guardianship, parenting arrangements, and contact... 8 Children s property... 10 Child support... 11 Giving notice before moving with children... 12 Family law protection orders and family violence... 13 Spousal support... 14 Dividing property... 15 Property and debt division options for unmarried spouses... 16 Conduct orders and enforcing court orders... 17 Conclusion... 19 Glossary... 20 Useful resources... 24 Guide to the New BC Family Law Act iii
Introduction On November 24, 2011, the new Family Law Act (FLA) became law. However, most of the act will not come into effect until March 18, 2013. The new act overhauls the BC family law system and brings with it many changes. Though some changes are only minor updates to the current Family Relations Act, there are a number of more sweeping changes. For example, the new act: addresses relocation: when one parent wants to move with a child and that move would interfere with another person s ability to maintain his or her relationship with the child; expands the definition of a spouse for applications for spousal support to include people who have lived together for less than two years but have had a child together; and promotes cooperation between spouses and different ways of settling issues without going to court (dispute resolution). The text of the act as passed by the legislature is available online. The complete version will go up on the BC Laws website when it is all in effect. This booklet contains a combined version of all the ELAN blog entries that ran between February 17, 2012 and September 24, 2012. It describes some of the important changes coming to family law in BC as a result of the new act. In addition to the changes listed above, it also describes changes to the law about: the language used in family law cases (e.g., changes to terms like custody and access) making agreements to settle disputes without going to court (and when agreements can be set aside) how children s best interests are considered in parenting disputes guardianship, parenting arrangements, and contact children s property child support family law protection orders spousal support dividing property and debts enforcing court orders See the Glossary on page 20 for definitions of terms in bold. Guide to the New BC Family Law Act 1
Language changes The new Family Law Act (FLA) introduces new and changed language. Here are definitions of some of the most common new terms (and changes to old terms) that will be used under the new act. See also the Glossary on page 20 for definitions of terms that appear in the chapters that follow. Agreements: A written contract that sets out how spouses have agreed to deal with things like parenting, support, and property. Many agreements can be made: before couples move in together, while they re living together, or after they separate. Sometimes people call these cohabitation, marriage, or separation agreements. Provincial family law just calls them agreements. There are different rules for different types of agreements. Some agreements, like ones about child support, guardianship, parenting arrangements, and contact can only be made at or after separation. Case management order a type of conduct order: These are orders a court can make to manage a case. They include orders that: delay a court proceeding while the parties try to settle their issues, require one party not to make any more court applications without the court s permission, require that any future applications for orders will have to go back to the same judge, or cancel or dismiss all or part of a claim. Child s best interests: The best interests of the child is a legal test that courts, arbitrators, and parenting coordinators use in family law cases. They use it to decide what would best protect your child s physical, psychological, and emotional safety; security; and well-being, considering factors like: the child s emotional health and well-being; the child s views, unless it would be inappropriate to consider them; the child s relationships with parents, guardians, and other important people; and the impact of any family violence. When parents and guardians make parenting arrangements after a separation, the law says you must only consider the child s best interests. And if you go to court, the judge can only consider the child s best interests in making parenting orders. 2 Guide to the New BC Family Law Act
Conduct order: a type of court order that is intended to help the court manage the people involved in a court process and encourage dispute resolution. Contact: The time that a person who is not a guardian spends with the child. This person could be a parent who does not have guardianship or another relative, like a grandparent. Dispute resolution: A process in which two people work through their family law issues with a trained professional, like a mediator. Dispute resolution could be any one of the following processes: mediation, negotiation, collaborative law, arbitration, or parenting coordination. Dispute resolution is meant to help you settle a legal dispute without going to court. Excluded property: Any property that is not considered family property. This includes: the assets that each spouse acquired before the relationship started, and property received during the relationship, like: o o o gifts and inheritances received by one spouse, certain kinds of court awards, and certain kinds of insurance payments. Excluded property belongs to the spouse who acquired it, except for any increases in value that happened during the course of the relationship. Family debts: The debts incurred during the relationship that are still owed on the separation date, or are incurred to maintain family property after separation. These debts are assumed to be shared equally unless other arrangements are made in an agreement or court order. Family law protection order: A court order made to protect someone from violence that can: restrict one person from contacting another, stop a specific person from visiting the family home, control stalker-type behaviour, or prevent someone from owning a weapon. Guide to the New BC Family Law Act 3
Family property: The assets acquired by either spouse during the course of the relationship, plus any increase in the value of excluded property. This property is assumed to be shared equally between spouses. Guardian/guardianship: A guardian is the person who has the right to make decisions about a child, such as: where the child will live or go to school, the sort of medical and dental care the child will receive, and what religion the child will be raised in. Under the FLA, guardians have parental responsibilities and parenting time. Parents who live together after the birth of their child are both considered the child s guardians. After parents separate, they continue to both be guardians unless one of them is removed as a guardian by agreement or court order. If a parent never lived with the child, that parent is not the child s guardian unless he or she has regularly cared for the child or has been appointed as a guardian in an agreement made with the child s other guardian(s) or in a court order. To change these arrangements, parents have to reach an agreement or apply to court for an order to change guardianship. Guardianship, parental responsibilities, parenting time, and parenting arrangements are the terms used in the FLA, which does not use the term custody. Parental responsibilities: The responsibility of guardian(s) to make decisions about the child s life. These can include decisions about daily care, as well as larger ones about health care, education, religious upbringing, extracurricular activities, etc. Parenting arrangements: The arrangements made for parental responsibilities and parenting time in a court order or agreement between guardians. Contact is not part of a parenting arrangement. Parenting time: The time that a guardian is entitled to have with a child under an order or agreement. Relocation: The term used in the act to describe a guardian s move with a child that will have a significant impact on the child s relationship with the guardian or person with contact who is not moving. Any parent who relocates must provide notice to their child s other guardian and anyone who has contact with the child. 4 Guide to the New BC Family Law Act
Spouse: For the parts of the act dealing with children, child support, and spousal support, spouses are defined as: married people, people who are not married but have lived in a marriage-like relationship for more than two years, and people who have lived together in a marriage-like relationship for less than two years but have a child together. For the parts of the act dealing with property and debt, spouses are defined as: married spouses, and people who have lived in a marriage-like relationship for more than two years. After the FLA comes into effect, all references in other provincial legislation to husband and wife or a man and a woman will be changed to spouse and two people. All references to father or mother will be changed to parent. Note: Although the terms custody and access have been abandoned by the FLA, they are still used in the Divorce Act. Guide to the New BC Family Law Act 5
The Divorce Act and when the language will not change While the new Family Law Act (FLA) may have abandoned the terms custody and access in favour of less adversarial labels, that doesn t mean that those terms have gone away. The current BC Family Relations Act, which is being replaced by the FLA, uses the words guardianship, custody, and access when talking about parenting arrangements. The Divorce Act (DA), which governs divorce, also talks about custody and access. The new FLA will replace these FRA terms with others: guardianship, parenting arrangements, parental responsibilities, parenting time, and contact (see Language changes on pages 2 5 for definitions). This means that the FLA and DA will be using different words to discuss the care and control of children. The two acts overlap in some areas but not others. The DA applies to married couples only, while the FLA can apply to both married and unmarried couples. Only the FLA talks about dividing property and debt. Depending on what you want to do, you may be able to address your issue with either the FLA or the DA. Settling issues with the FLA means you could go to either Supreme or Provincial Court, while resolving issues using the DA means you can only go to Supreme Court. Each court has different procedures, costs, and time frames. When the new act is in effect, we ll have updated versions of all our online fact sheets and self-help guides on the Family Law in BC website. 6 Guide to the New BC Family Law Act
Making agreements to stay out of court By giving equal emphasis to agreements and court orders, the new Family Law Act (FLA) places a new emphasis on out-of-court solutions and encourages people to settle their family law cases without having to go before a judge. Agreements are written contracts that describe how a couple has agreed to settle the legal issues in their relationship or the issues that might come up when they separate. Agreements could cover how a couple deals with property and finances while they are together or how they want to handle dividing property and debt after they break up. If the agreement covers property division or spousal support payments, it must be signed by both spouses and witnessed by at least one other person. However, it s a good idea to have any family law agreement signed and witnessed. Agreements made after couples break up may also cover guardianship, parental responsibilities, parenting time and contact with a child, and child or spousal support. (Agreements about children and child support are only valid if they are signed when a couple is about to separate or has just separated.) It s also possible to make a verbal agreement about children and support, but such an agreement will be difficult to enforce later on. Under the new act, the court may set aside agreements or replace them with court orders, but cannot change them. The new act also provides better support for out-of-court negotiation by making it mandatory for both parties to give complete financial and other information to each other. If one party doesn t provide all the information that could affect an agreement, and the court has to set aside that agreement as a result, the court may penalize that party. Under the new act, the courts can also refer people to out-of-court dispute resolution services such as counselling, mediation, and arbitration, or appoint a parenting coordinator to help parents implement a parenting plan described in a final order or agreement. Guide to the New BC Family Law Act 7
Care of and time with children: guardianship, parenting arrangements, and contact The new Family Law Act (FLA) does not use the words custody or access. Instead, it uses: guardianship parental responsibilities parenting time parenting arrangements Parental responsibilities and parenting time are all part of guardianship. Parenting arrangements is the term used to describe the parts of an agreement or order that deal with parental responsibilities and parenting time. Guardianship, as the new FLA explains it, is quite different from what it was under the Family Relations Act. Under the FLA, a guardian is a person who is responsible for caring for and making decisions for a child. Parents who live together after their child s birth are both the child s guardians. If the parents separate, they are both still considered to be the child s guardians, unless an agreement or court order removes one of them as a guardian. If a parent never lived with the child, then that parent is not a guardian unless he or she: regularly cares for the child, or is appointed as a guardian by a court order or agreement with the child s other guardian(s). People other than parents can sometimes be guardians, but they must have a court order naming them as guardians. A guardian may name someone to be a stand-by guardian just in case he or she becomes unable to look after the child, or to be a testamentary guardian, to become the child s guardian if the guardian dies. Guardians are responsible for making decisions about their child s life. These are called parental responsibilities and include decisions about daily care, as well as larger ones about: health care, education, religious upbringing, extracurricular activities, or where the child lives, etc. Parental responsibilities can be shared between guardians or one or more parental responsibilities can be assigned to only one guardian. Guardians must consult each other when making decisions, unless only one of them 8 Guide to the New BC Family Law Act
has parental responsibility for that issue or doing so would be inappropriate or unreasonable. The FLA describes the time spent with children as parenting time and contact. The time that a guardian spends with the child is called parenting time. During parenting time, the guardian is responsible for caring for the child and for day-to-day decision making. In some cases, there may be conditions on parenting time, such as having someone else supervise the guardian s parenting time with the child. In the FLA, the term parenting arrangements means the arrangements between guardians for sharing parental responsibilities and parenting time. The arrangement can be recorded in either an agreement or a court order. Under the new FLA, parenting time or parental responsibilities do not have to be equally shared between guardians. Contact refers to the time that a person who is not a guardian spends with a child. A parent who is not the child s guardian would have contact. People who are not guardians don t have parental responsibilities, so they can t make decisions about the child s life, even during contact. Contact can be agreed to by all guardians and the person with contact, or may be granted in court. In some cases, there may be conditions on contact, such as having someone else supervise visits with the child. All decisions about parenting arrangements and contact in court orders or agreements must be based on the child s best interests. This includes: what the child wants and needs, who cared for the child in the past, whether there is a history of family violence, and what the parents are capable of (each one s ability to carry out his or her responsibilities for the child). Guide to the New BC Family Law Act 9
Children s property Under the new Family Law Act (FLA), a child s guardian is not automatically the guardian of the child s property (including money). However, the new FLA will allow guardians, including parents who are guardians, to manage children s property if it is a certain type of property or below a certain value. Note: The type of property and value have not yet been set. If the child has property that is of a different type or worth more, a trustee will be appointed by either the court or a will or other document (called a trust instrument). The trustee is then responsible for managing the child s property. Any property the trustee manages must be handed over to the child when he or she turns 19 unless the trust instrument sets a different date along with documents that account for how the property was managed. Sometimes the trustee might be responsible for the property for a longer or shorter length of time if that is specified in the trust instrument. 10 Guide to the New BC Family Law Act
Child support The Family Law Act (FLA) will bring a number of changes to the way child support works in BC. Though many of these changes are not major, a few are worth noting: Under the new act (as under the Family Relations Act), parents, as well as step-parents and guardians who are not parents, must pay child support. The new act spells out that parents have the primary responsibility to pay child support, then non-parent guardians, and then step-parents. The new act says that the amount of child support paid by stepparents may not be the amount set out in the Child Support Guidelines tables. Instead, they may pay an amount that is based on: o o the length of time the child lived with the step-parent, and what the child s living standard was while living with the stepparent. The responsibility to pay child support continues to take priority over a responsibility to pay spousal support, as it did under the Family Relations Act. This means that if you can t pay both your child and spousal support, then you must pay the child support. However, when child support ends, spousal support may be looked at again. Children under 19 may no longer be eligible for child support if they get married or voluntarily leave their parents home for reasons other than family violence or intolerable living conditions. An order or agreement may make the child support payor s estate continue to pay after the payor dies. Guide to the New BC Family Law Act 11
Giving notice before moving with children The new Family Law Act (FLA) sets out what must happen when a guardian wants to move with a child. (The current Family Relations Act does not talk about moving at all.) A relocation is any move that will have a significant impact on the child s relationship with another guardian or person with a significant role in the child s life (usually the child s other parent). Under the new act, a guardian who wants to relocate (move) with a child must give 60 days notice to every other guardian or person who has contact with the child, unless the guardian has obtained a court order that says he or she does not have to give notice before moving. A guardian who does not agree with the child s move must file an objection in court within 30 days of receiving the notice. The guardian can object on the basis that the move is not in the child s best interests. If the guardians can t settle their disagreement about the move and the guardian who is not moving has filed an objection, they will have to settle it in court. The guardian who wants to move must prove to the court that he or she is moving in good faith and that he or she has suggested reasonable arrangements to protect the child s relationship with the person who is not moving. To determine whether someone is moving in good faith, the court must consider: the reasons for the move, whether the move is likely to improve the child s or the guardian s quality of life, whether the guardian gave notice of the plan to move, and whether the guardian has suggested reasonable arrangements to protect the child s relationship with the person who is not moving. If the person who is not moving is also a guardian, and the guardians have equal, or almost equal, parenting time, then the guardian who wants to move must also prove that the move is in the child s best interests. 12 Guide to the New BC Family Law Act
Family law protection orders and family violence Under the Family Law Act (FLA), family violence includes: physical abuse, sexual abuse, emotional and psychological abuse, forcibly confining a person or restricting the person s freedom, and withholding the necessities of life. If a person is at risk of family violence, the court may make a family law protection order. Either the person at risk, or someone else on behalf of the person at risk, can apply for the order. Family law protection orders will take the place of restraining orders under the Family Relations Act. Any restraining orders already in effect will continue without change. Protection orders can limit contact and communication between parties if there is a safety risk. Protection orders can, for example: restrict one party from contacting the other, stop a specific person from visiting the family home, control stalking-type behaviour, or prevent someone from owning a weapon. If a protection order clashes with another order under the FLA, the protection order takes priority over the other order for as long as there is conflict. For example, you may have a protection order in place that says your ex-partner is not allowed to communicate with you. You may also have a court order that says your ex-partner can have contact with your child. The protection order will overrule the contact order if you have to communicate with each other to arrange for contact. Protection orders can t be enforced under the new act. But a breach of a protection order is considered a criminal offence, and the police can enforce it under the Criminal Code. Guide to the New BC Family Law Act 13
Spousal support For the parts of the Family Law Act (FLA) that describe spousal support, spouses are people who: are married, have lived together in a marriage-like relationship for at least two years, or have lived together in a marriage-like relationship for less than two years and have had a child together. The rules for spousal support in the new act are the same as those found in the federal Divorce Act (see laws-lois.justice.gc.ca/eng/acts/d- 3.4/index.html). Under both of these acts, whether a spouse is entitled to support is decided according to a list of objectives. If the spouse is entitled to support, then the amount and time period of that support are decided according to a set of factors. As with child support, an order or agreement may make the payor s estate continue to pay spousal support after the payor s death. The court can also require a payor to maintain a life insurance policy with a spouse as the beneficiary. Time limits for applying Married couples must apply for spousal support under the FLA within two years of the date of their divorce or the annulment of their marriage. Unmarried couples must apply within two years of their separation date. Misconduct The new FLA allows a person s behaviour to be taken into account when making a decision about spousal support, if the person s conduct: causes or prolongs a spouse s need for support, or unreasonably affects a spouse s ability to pay support. Reviewing spousal support orders/agreements Spousal support orders and agreements may say that they can be reviewed after a certain date or when certain criteria are met (like a spouse returning to full-time work). The order may say when and how that review will be carried out (for example, by a court hearing or mediation). Under the new act, spousal support might also be reviewed when a spouse becomes entitled to pension benefits, whether the agreement covers this or not. 14 Guide to the New BC Family Law Act
Dividing property If spouses are trying to decide how to divide property, they must first figure out which of their belongings are family property and which are excluded property. For the parts of the Family Law Act (FLA) that describe property and debt, spouses are either married people or people who have lived together in a marriage-like relationship for at least two years. Excluded property includes: any property that each spouse owned before the relationship started; gifts and inheritances given to only one spouse during the relationship; compensation payments made to one spouse only for personal injury or loss (unless it was meant to compensate both spouses or involves income that was lost during the relationship); insurance payments made to one spouse only for personal injury or loss (unless it was meant to compensate both spouses or involves income that was lost during the relationship); or property bought during the relationship with excluded property. Excluded property belongs to the spouse who owned, bought, or received it. However, if the property becomes more valuable during the relationship, the increase in value is considered family property. Family property is property that either or both spouses acquire while they are together, plus the increase in value of each spouse s excluded property. The law assumes that spouses share this property equally. In some cases, the court may divide excluded property or may divide family property unequally. The court might do this if it would be significantly unfair not to. Until the new act goes into effect and cases are decided by the courts, it isn t completely clear exactly how the court will interpret what is significantly unfair and what isn t. (See JP Boyd s blog at bcfamilylawresource.blogspot.com/p/family-law-act.html#sigunf to find out more about what significantly unfair means.) Under the Family Relations Act, almost all property owned by either spouse may be divided. Only married spouses can apply to divide property under this act. A note on debts The new act also allows the court to divide responsibility for family debts. Family debts are debts you take on during your relationship that: are still owed on the date you separate, or are taken on after your separation date to maintain family property. These debts are shared equally unless there is an agreement or court order that says differently. Guide to the New BC Family Law Act 15
Property and debt division options for unmarried spouses New laws aren t usually retroactive (don t usually take effect from a date in the past) unless they specifically say so. This principle is important as some parts of the new Family Law Act (FLA) will affect unmarried spouses (common-law couples) who separate before the act comes into effect. Under the new FLA, spouses may share property and debts. A spouse is someone who is married to another person, or who has lived with another person in a marriage-like relationship for at least two years. A spouse also includes former spouses (married spouses who have divorced and unmarried spouses who have separated). Under the new act, unmarried spouses will have the same property rights as married spouses. Under the current Family Relations Act, unmarried spouses don t have property rights. There s a time limit, however, to make a claim. Separated, unmarried spouses can make a claim for property and debt division as long as they apply within two years of the date they separated. The important date to remember is March 18, 2011. The FLA sections about division of property say that you have two years from the date of separation to start an application. Since the act goes into force on March 18, 2013, this means that couples who split less than two years before the act takes effect must follow the new rules. So what happens once the new act takes effect? If you split before March 18, 2011 but haven t yet applied to divide property, then you aren t a spouse under the FLA or the Family Relations Act. You can start a Supreme Court case under the existing rules about unjust enrichment to make a claim to property owned by your former partner. (See www.bcfamilylawresource.com/09/0902body.htm#assets for more information about unjust enrichment.) If you split before March 18, 2011 and have already applied to divide property, then your case will continue under the existing rules. If you split on or after March 18, 2011 but haven t yet applied to divide property, then you will be considered a spouse under the FLA on March 18, 2013. You can start a case before March 18, 2013 under the existing rules, but you will have to change it to follow the rules set out below about dividing property after March 18, 2013. If you split on or after March 18, 2011 and have already applied to divide property, then you have until March 18, 2013 to resolve your case under the existing rules, or you or your partner may make a claim under the FLA. (If you own property, it makes sense to resolve your case quickly. If you re applying for a share of property your spouse owns, you might want to wait until the new FLA comes into effect.) Once the FLA comes into effect, you can change your claim to ask for orders about property under the new act. 16 Guide to the New BC Family Law Act
Conduct orders and enforcing court orders The new Family Law Act (FLA) allows the courts to make a number of conduct orders. Conduct orders are court orders intended to: help manage the court process, manage the people involved, and encourage dispute settlement. These orders can, among other things: order you to attend counselling or out-of-court dispute resolution sessions, order you to follow an existing court order, restrict communication or contact between you and your spouse, or order you to maintain the payments on the family home. For example, if John Smith kept sending Jane Smith angry letters or text messages, the court could make a conduct order instead of a family law protection order. The conduct order would manage how John communicates with Jane. Conduct orders also include case management orders. These kinds of orders can: cancel or dismiss all or part of a claim, instruct one party not to make any more court applications without the court s permission, or say that any future applications for orders must go back to the same judge. For example, if John kept making applications about little things, like where the children s clothing is kept or when they go to bed, the court might order that: all future applications be heard by the same judge, or John needs to get permission from the court before making any new applications. Except for family law protection orders, which are enforced by the police, all orders can be enforced by the courts under the FLA in different ways, depending on the order. The court may enforce orders for parenting time and contact by requiring: make-up time with the child, that one or more of the parties attend counselling, or that one party repay the other party s expenses that resulted from the breach. Guide to the New BC Family Law Act 17
The court may also enforce conduct orders by requiring that one party repay the other party s expenses that resulted from the breach or that the person who breached the order pay a fine. The court may also enforce a conduct order by making a family law protection order on the terms of the conduct order. Other orders, like orders about parental responsibilities, child support, spousal support and dividing property, don t have these specific ways to enforce them set out in the act. For these orders, the act says that the court could make a person: post a bond to guarantee that they ll follow the order (to post a bond means to pay the court some money that you get back if you follow the order), or pay a fine of up to $5,000 for not following the order. If nothing else works, the court can enforce all orders except family law protection orders by sending the person to jail for up to 30 days for not following the order. Orders and agreements for child and spousal support can also be enforced by the Family Maintenance Enforcement Program. 18 Guide to the New BC Family Law Act
Conclusion The new Family Law Act (FLA) comes into force on March 18, 2013. On that day, the old Family Relations Act, which governed family law in BC before then, will be replaced by the new act. Some of the changes to family law that the new act will bring are minor and some of them will be more sweeping. Our Family Law Act series has outlined some of the biggest changes that have been identified. These aren t, however, all of them. For more information, see the act itself, continue to read the ELAN blog for updates on family law issues, and refer to the Family Law in BC website. The website will be updated and launched on March 18, 2013 so that the site remains current even as the new act goes into effect. See also the useful resources listed on page 24. Guide to the New BC Family Law Act 19
Glossary Agreement: A written contract that sets out what you and your spouse have agreed to. You can make an agreement before you move in together, while you re living together, or after you separate. Sometimes people call these cohabitation, marriage, or separation agreements. The provincial family law just calls them agreements. Case management order a type of conduct order: These are orders a court can make to manage a case. They include orders that: delay a court proceeding while the parties try to settle their issues, require one party not to make any more court applications without the court s permission, require that any future applications for orders will have to go back to the same judge, or cancel or dismiss all or part of a claim. Child s best interests: The best interests of the child is a legal test that courts use in family law cases. They use it to decide what would best protect your child s physical, psychological, and emotional safety, security, and well-being. When you make parenting arrangements after a separation, the law says you must only consider the child s best interests. And if you go to court, the judge can only consider the child s best interests in making parenting orders. Child support: Money paid by one party to the other party as financial support for the children. Contact (with a child): The time that a person who is not a guardian spends with the child. This person could be a parent who does not have guardianship or another person, who does not have guardianship, like a grandparent. Court order: A type of court ruling made by a judge or master that sets out what each person must do. Sometimes called family orders. Conduct order: A type of court order that is intended to help manage the court process, manage the people involved, and encourage dispute resolution. Dispute resolution: A process in which two people work through their family law issues with a trained professional like a mediator or an arbitrator. Dispute resolution is meant to help people avoid going to court 20 Guide to the New BC Family Law Act
Excluded property: Any property that is not considered family property. This includes: the assets that each spouse acquired before the relationship started, and property received during the relationship, like: o o o gifts and inheritances received by one spouse, certain kinds of court awards, and certain kinds of insurance payments. Excluded property belongs to the spouse who acquired it, except for any increases in value that happened during the course of the relationship. Family debts: The debts incurred during the relationship that are still owed on the separation date, or are incurred to maintain family property after separation. These debts are assumed to be shared equally unless other arrangements are made in an agreement or court order. Family property: The assets acquired by either spouse during the course of the relationship, plus any increase in the value of excluded property. This property is assumed to be shared equally between spouses. Family violence: Includes physical abuse, sexual abuse, emotional and psychological abuse, forcibly confining a person or restricting the person s freedom, and withholding the necessities of life. Guardian/guardianship: A guardian is the person who has the right to make decisions about a child, such as: where the child will live or go to school, the sort of medical and dental care the child will receive, and what religion the child will be raised in. Under the FLA, guardians have parental responsibilities and parenting time. Parents who live together after the birth of their child are both considered the child s guardians. After parents separate, they continue to both be guardians unless one of them is removed as a guardian by agreement or court order. If a parent never lived with the child, that parent is not the child s guardian unless he or she has regularly cared for the child or has been appointed as a guardian in an agreement made with the child s other guardian(s) or in a court order. To change these arrangements, parents have to reach an agreement or apply to court for an order to change guardianship. Guardianship, parental responsibilities, parenting time, and parenting arrangements are the terms used in the FLA, which does not use the term custody. Guide to the New BC Family Law Act 21
Mediation: An approach to solving problems in which a neutral third person (a mediator) helps people settle their family law issues without going to court. Mediators are specially qualified to help people reach agreements. Some lawyers are mediators. Parental responsibilities: The responsibility of guardians to make decisions about the child s life. These can include decisions about daily care, as well as larger ones about health care, education, religious upbringing, extracurricular activities, etc. Parenting arrangements: The arrangements made for parental responsibilities and parenting time in a court order or agreement between guardians. Parenting arrangements do not include contact. Parenting coordinator: A lawyer, counsellor, social worker, or psychologist trained to mediate and arbitrate disputes between parents. Parenting time: The time that a guardian spends with the child. Party/parties: The people who are participating in a court proceeding. Payor: The term used to describe the person who pays child or spousal support. Family law protection order: A court order made under the FLA and intended to protect someone from violence, which may: restrict one party from contacting another, stop a specific person from visiting the family home, control stalker-type behaviour, or prevent someone from owning a weapon. Relocate/relocation: The term used to describe a guardian s move with a child that will have a significant impact on a child s relationship with the guardian or person with contact who is not moving. Any parent who relocates must provide notice to their child s other guardian and anyone who has contact with the child. Separation: The ending of the marriage-like quality of a married or unmarried relationship. For unmarried spouses, separation ends the relationship. Married spouses must also get a divorce to legally end their marriage. 22 Guide to the New BC Family Law Act
Separation agreement: A document that separating or separated spouses can draw up to put in writing those matters that are settled between them. This document might deal with a number of issues, including: guardianship, parenting arrangements, parenting time, contact, custody, access, child or spousal support/maintenance, or division of assets or debts. There is no official form to use for drawing up a separation agreement. Spousal support: Money paid by one spouse to the other spouse as financial support. Spouse: For the parts of the act dealing with children, child support, and spousal support, spouses are defined as: married people, people who are not married but have lived in a marriage-like relationship for more than two years, and people who have lived together in a marriage-like relationship for less than two years but have a child together. For the parts of the act dealing with property and debt, spouses are defined as: married spouses, and people who have lived in a marriage-like relationship for more than two years. Stand-by guardian: Someone named by a child s guardian to become the child s guardian if the first guardian becomes unable to look after the child. Testamentary guardian: Someone named by a child s guardian to take over permanently if the guardian dies. Guide to the New BC Family Law Act 23
Useful resources BC Family Law Resource Blog bcfamilylawresource.blogspot.com: JP Boyd s BC Family Law Resource Blog covers family law issues in BC and contains lots of useful information. He has also written extensively about the new Family Law Act. Clicklaw www.clicklaw.bc.ca: For more information about family law, see the Clicklaw website for links to legal information, education, and help for British Columbians. You can find out about rights and options to solve legal problems, find toll-free numbers for law-related help, and learn about family law and the legal system. ELAN www.elan.lss.bc.ca: The Electronic Legal Aid News (ELAN) blog brings current legal aid-related news to community workers, other intermediaries, librarians, and the general public. See www.elan.lss.bc.ca/tag/family-law to read only family law-related entries. Family Law in British Columbia website www.familylaw.lss.bc.ca: To find up-to-date legal and self-help information, see the Family Law in British Columbia website. This website contains: plain language fact sheets, plain language family law publications, frequently asked questions, step-by-step self-help guides, and definitions of legal terms. It also provides: links to court forms, short videos, and information about organizations/people who can help you. When the new Family Law Act comes into effect on March 18, 2013, this website will be updated to reflect the new law. Legal Services Society (Legal Aid) website www.legalaid.bc.ca: To find up-to-date information about legal aid and read or order free legal information publications. 24 Guide to the New BC Family Law Act
Ministry of Justice www.ag.gov.bc.ca/legislation/family-law/index.htm: To help prepare everyone for the new Family Law Act, the Ministry of Justice has added a new page to its website called Family Law Legislation. This new page includes or links to: information about the changeover from the current Family Relations Act to the new Family Law Act; detailed descriptions of the different parts of the new act; a Table of Concordance that lists each section of the new act alongside the related section of the old act (if there is one); a list of frequently asked questions and their answers; highlights of the new act, including: o o o o o o best interests of the child, settling disputes out of court, addressing family violence, time with a child, property division, and determining parentage; and other information about how the act was developed. Useful links Divorce Act: laws-lois.justice.gc.ca/eng/acts/d-3.4/index.html Family Relations Act: www.bclaws.ca/eplibraries/bclaws_new/document/ ID/freeside/00_96128_01 Third reading version of the new Family Law Act: www.leg.bc.ca/39th4th/3rd_read/gov16-3.htm BC Laws website (where the act will appear once it s in effect): www.bclaws.ca Guide to the New BC Family Law Act 25
After March 2013, the following LSS publications explain family and child protection law under the new act. Protection hearing Within 45 days from when the judge makes interim order the, the protection hearing must Ten days befor start. e the protection the director hearing starts must give you, a copy of the for the kind application of order the director want to make. The s the judge application must also have a plan care that says how the direc of tor wants your be looked after. child to It s important that you go to hearing. If you r the protection e there, you can say if you disagree with agree or the order the director want If you agree s. with the order, the protection hearing ends. If you disag ree with the order, the judge schedule a famil will y case conference. Family case conference conference, or Rule 2 A family case conference is a meeting of director, the the child s paren ts, and their lawyers. If your child is Aborigina l, a representa your Aborigina tive of l community may also be A judge will there. lead the fami ly case confe try to resolve rence and the problem without havin evidence. Every g to hear one will sit aroun asked to talk d a table and about what they be want for your If the case confe child. rence does not the protection settle matters, hearing will be completed in court. At the prot ection hea ring There may be many or very few witnesses the protection called at hearing. After the witnesses evidence, the give judge must first decide if your needed prote child ction when he or she was remo your home. ved from If the judge decides your child didn t protection, your need child must be returned to you. If the judge decides your child needs prote the judge will ction, make a fixed term order. Fixed term order At the protection hearing, the judge can make a fixed term : supervision order to retur your child to n live with you, with the direc super vision tor s for a specific time; or a fixed term supervision/cu stody order your child in to put the director s care, or with person unde a third r the director s super vision, specific time. for a If you disagree with the judge lawyer right s order, talk away. There to your are time limit it s important s to appeal, so to act quick ly. How to con Provincial Call tact legal aid Centre 604-408-2172 (in Greater Vanc ouver) 1-866 -577-2525 (call no charg e, elsewhere www.legalaid.b in BC) c.ca For more info child protecti rmation about on/removal www.familylaw.lss.bc.ca (click Your legal issue, then Child prote ction/removal ) This brochure explains the law in gener It s not intend al. ed to give you legal advice on your partic ular problem. If Your Ch ild Is Taken Your Rights As March 2013 Live Safe End Abuse Fact Sheet Series a Parent If Your Child Is Taken Parents Rights, Kids Rights Parents Right s, Kids Rights A parent s guide to child protection law in BC Legal Services Society How to get Paren t s Rights, Kids Rights Read online: www.le galaid.bc.ca/pu blications Order online: www.c rownpub.bc.ca (under Quick Links to Publications, click Legal Service s Society) A parent s guid e to child prot ection law in BC Questions? Phone: 604-601 -6000 Email: distribu tion@lss.bc.ca British Columbia www.legalaid.bc.ca December 2010 Living Together or Living Apart Information for women in relationship s who need prot ection from violence or the threat of violence Surviving Re lat Violence and ionship Abuse Violen ce and Abuse Restraining Orders Survi ving Relat ionsh ip For Your Pro tec tion: Peace Bond s and Parents Rights, Kids Rights British Columb ia www.legalaid.bc.ca Ministry of Public Safety and Solicitor General February 2010 For Your Protection Surviving Relationship Violence and Abuse