INFORMATION BULLETIN June 2012 New Family Law

INFORMATION BULLETIN
June 2012

New Family Law Act

Table of Contents

I. Background

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II. Importance of Family Law to Women Who Are
Victims of Violence in Relationships

III. Significant Changes in the Family Law Act for

Women Who are Victims of Violence in Relationships

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IV. Overview of Key Provisions Related to Family Violence
FLA Part 1 – Definitions
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FLA Part 2 – Resolution of Family Law Disputes FLA Part 4 – Care and Time with Children FLA Part 7 – Child and Spousal Support FLA Part 9 – Protection from Family Violence FLA Part 10 – Court Processes
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11 11 16 18 19 19
FLA Part 12 – Regulations FLA Part 13 – Transitional Provisions FLA Part 14 — Repeals, Related Amendment and Consequential Amendments

V. Implementation Issues VI. Conclusion
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VII. References

New Family Law Act Implications for Anti-Violence Workers, June 2012

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INFORMATION BULLETIN
June 2012

New Family Law Act

Implications for Anti-Violence Workers¹

The new provincial Family Law Act (FLA) received Royal Assent on November 24, 2011, fundamentally altering the way family law matters will be handled in BC. The new Act contains important and far reaching provisions intended to provide better protection for women and children experiencing violence in the family context. While the FLA has now passed through the legislature, most of its sections will not come into force until a regulation to this effect is enacted by Cabinet. The BC Ministry of Justice has announced that this will take place on March 18, 2013.

This Information Bulletin will provide an overview of the changes to family law contained in the FLA. The focus here is on changes that will have the most impact on women and children who experience violence in their intimate relationships or in the family context.

I. Background

The new FLA is the culmination of a number of key initiatives: • In 2002, a Justice Review Task Force was established on the initiative of the Law
Society of BC, in partnership with the Ministry of Attorney General², the judiciary and the legal profession. Its mandate was to identify ideas and initiatives that might enhance the responsiveness, accessibility, and cost-effectiveness of the justice system, including the family justice system.

• In 2005 the Task Force’s Family Justice Reform Working Group released its report,

A New Justice System for Children and Families, recommending significant

changes to the family justice system to make it more accessible, effective and focused on the needs of children and families. It recommended, among other things, that dispute resolution processes be more sensitive to family violence.

¹This document is for general information only. It is not intended to be, and cannot be relied upon, as legal advice.

²Now the Ministry of Justice

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• In 2006, BC’s Attorney General announced a review of the Family Relations Act to bring the law into line with current realities and find ways to support cooperative approaches to dispute resolution.

• In 2007, the Ministry of Attorney General released 14 discussion papers, including one on family violence, which formed the basis for three phases of consultation.

• In 2009, the Ministry released the Report of Public Consultations. The Ending
Violence Association of BC (EVA BC) and Community Coordination for Women’s Safety (CCWS) submitted a brief at this stage.

• In 2010, the White Paper on Family Relations Act Reform: A Proposal for a New

Family Law Act was released, providing a general outline of what new legislation might look like and inviting public comment. Again, EVA BC and CCWS submitted a brief.

• In 2011, the Family Law Act received Royal Assent. However, aside from consequential amendments to other Acts, which will come into force immediately, the rest of the Act will not come into force on March 18, 2013, to allow time to inform family law lawyers and service providers about the extensive changes and to allow for necessary rule changes.

In addition to submitting written briefs as part of the formal government consultation, EVA BC has had several opportunities throughout this process to provide informal feedback and comment on the development of this legislation. EVA BC’s input to date has focused on a number of factors including the need for:
• better coordination between civil and criminal systems; • effective protective measures for women and children with their safety being a paramount consideration;
• straightforward mechanisms to enforce foreign protection orders; • adequately funded community based services to support women disclosing domestic violence in the family law context, particularly for those women who are particularly marginalized including immigrant and aboriginal women;
• adequate legal aid coverage to ensure access to justice, particularly for immigrant and refugee women who may have complex immigration matters to deal with in addition to the family law dispute;
• training and a comprehensive implementation plan to ensure that the new law’s protective measures have teeth³.

EVA BC member agencies and their clients also played a key role by providing feedback during the development process.

³EVA BC/CCWS’ written brief in response to the Ministry of Justice White Paper can be accessed on

EVA BC Website at www.endingviolence.org.

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The new FLA reflects a growing awareness of the need to consider safety concerns for women and children in the family law system. This is an important step forward. How the act is implemented and interpreted is the next key stage of the reform process. EVA/CCWS continues to engage in discussions with government and members of the legal community to monitor progress and ensure that safety remains a fundamental concern.

II. Importance of Family Law to Women who are Victims of Violence in Relationships

Front line service providers know, and the literature indicates, that violence against women escalates during or immediately after separation or divorce. Murder of a female partner is most likely to occur in the context of marital separation or divorce. Therefore, it is extremely important that family law take into account the safety of women and their children.

Only a small minority of women who are victims of domestic violence report to police. Therefore, the only support or protections that many of these women seek out are accessed through the family law system: family law protection orders and referrals from family justice personnel. For this reason it is critical that the family law system effectively addresses safety for women who are victims of domestic violence.

Women’s experience is that the family justice process does not necessarily result in justice or protection for them if they are victims of domestic violence. We know that the courts can be used by abusive men to further victimize women in a number of ways. Out-of-court mediation processes can also be used to further disempower women who are victims of violence. It is essential that safeguards be built into the family justice system that take account of the particular vulnerabilities of women who are victims of violence, and their children, and that enhance rather than further threaten their safety.

III. Significant Changes in the Family Law Act for Women who are Victims of Violence in Relationships

The focus of the FLA is that, where appropriate, court will not be the primary or first approach taken to resolve family disputes. The FLA provides a range of non-court options for resolving family conflict, while at the same time improving available court responses. At the same time, the FLA also includes an overarching focus on safety for children and specifically takes into account family circumstances that include family violence.

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The act provides women who are going to court regarding parenting arrangements an avenue to address issues of violence, power, and control. The legislation takes account of the circumstances in which the child lives, including current and past parenting arrangements and the nuances of the dynamics of coercion and violence.

IV. Overview of Key Provisions Related to Family Violence⁴

While the FLA as a whole is important for women in BC, certain sections are of particular significance for women who are victims of domestic violence. These provisions are outlined here.

A. FLA Part 1 – Definitions

Family Law Act s.1

Definition of family violence

The FLA now includes a definition of family violence, as follows:

1 "family violence" includes

(a) physical abuse of a family member, including forced confinement or deprivation of the necessities of life, but not including the use of reasonable force to protect oneself or others from harm,

(b) sexual abuse of a family member, (c) attempts to physically or sexually abuse a family member, (d) psychological or emotional abuse of a family member, including
(i) intimidation, harassment, coercion or threats, including threats respecting other persons, pets or property,

(ii) unreasonable restrictions on, or prevention of, a family member's financial or personal autonomy,

(iii) stalking or following of the family member, and (iv) intentional damage to property, and
(e) in the case of a child, direct or indirect exposure to family violence;

⁴Please note that in this Information Bulletin we have excerpted portions of the relevant sections of the FLA Bill. The complete text of the Act as passed in the legislature is available online at http://www.leg.bc.ca/39th4th/3rd_read/gov 16-3.htm Once the Bill is proclaimed in force, the complete version will be available at www.bclaws.ca

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B. FLA Part 2 – Resolution of Family Law Disputes

Family Law Act s.8 Duties of family dispute resolution professionals

Division 1 – Resolution Out of Court Preferred Duties of family dispute resolution professionals

The FLA requires that family dispute resolution professionals (which includes lawyers, mediators, arbitrators and parenting coordinators) must assess for and consider the impact of family violence and provide information and advice to their clients about options for proceeding if family violence is an issue:

8 ( 1) A family dispute resolution professional…must assess…whether family violence may be present, and if it appears…that family violence is present, the extent to which the family violence may adversely affect

(a) the safety of the party or a family member of that party, and (b) the ability of the party to negotiate a fair agreement.
(2) Having regard to the assessment made under subsection (1), a family dispute resolution professional…must

(a) discuss with the party the advisability of using various types of family dispute resolution to resolve the matter, and

(b) inform the party of the facilities and other resources, known to the family dispute resolution professional, that may be available to assist in resolving the dispute.

The family dispute resolution professional must also advise the party that agreements and orders regarding guardianship, parenting arrangements, and contact with a child must be made in the best interests of the child only, which includes consideration of family violence.

C. FLA Part 4 – Care and Time with Children

Family Law Act

s.37 (2) Best interests of child s.38 Assessing family violence s.40 (4) Parenting arrangements s.62 (1) (a) When denial is not wrongful s.66 (1), (2) Notice of relocation s. 69 (4) Orders respecting relocation

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Division 1 – Best Interests of Child

The central focus of the FLA is on the best interests of the child. The act specifically states that decisions involving the child must now consider only the best interests of the child. The list of factors that must be considered in assessing the best interests of the child has been expanded and now includes, among other factors:

37 (2) To determine what is in the best interests of a child, all of the child’s needs and circumstances must be considered, including the following:

(b) the child's views, unless it would be inappropriate to consider them; (g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;

(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs;

(i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;

(j) any civil or criminal proceeding relevant to the child's safety, security or well-being.

Assessing family violence

Orders or agreements about parenting arrangements and contact must be guided by the child’s best interests, including consideration of family violence. In assessing family violence for purposes of determining the best interests of a child, a court must consider all of the following factors:

38 For the purposes of s.37 (2) (g) and (h) [best interest of child], a court must consider all of the following:

(a) the nature and seriousness of the family violence; (b) how recently the family violence occurred; (c) the frequency of the family violence; (d) whether any psychological or emotional abuse constitutes, or is evidence of, a pattern of coercive and controlling behaviour directed at a family member;

(e) whether the family violence was directed toward the child; (f) whether the child was exposed to family violence that was not directed toward the child;

(g) the harm to the child's physical, psychological and emotional safety, security and well-being as a result of the family violence;

(h) any steps the person responsible for the family violence has taken to prevent further family violence from occurring;

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(i) any other relevant matter.

Division 2 – Parenting Arrangements Parenting arrangements

What the FLA has to say about shared guardianship and shared parental responsibilities is complicated. However, what is important for mothers who are victims of violence is that there is no presumption of shared parental responsibilities. The legislation is very clear on this point:

40 (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.

Parental responsibilities are listed in section 41 of the FLA.

Division 5 – Compliance Respecting Parenting Time or Contact with a Child When denial is not wrongful

While consequences may result if one parent wrongfully denies the other parent of parenting time or contact, there is a provision included in the legislation regarding circumstances when such denial of parenting time or contact is not wrongful. One of these circumstances is if:

62 (1) For the purposes of s.61 [denial of parenting time or contact], denial of parenting time or contact with the child is not wrongful in any of the following circumstances:

(a) the guardian reasonably believed the child might suffer family violence if the parenting time or contact with the child were exercised;

Division 6 – Relocation

Family Law Act

s.66 Notice of Relocation s.69 (4) Orders respecting relocation

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Notice of relocation

For the first time in BC, family law provides direction regarding relocation of a guardian and/or a child.

The FLA directs that notice must be served regarding relocation of a guardian and/or a child, importantly, with an exemption if there is a risk of family violence. It states:

66 (1) Subject to subsection (2), a child's guardian who plans to relocate himself or herself or a child, or both, must give to all other guardians and persons having contact with the child at least 60 days' written notice of

(a) the date of the relocation, and (b) the name of the proposed location.
(2) The court may grant an exemption from all or part of the requirement to give notice under subsection (1) if satisfied that

(a) notice cannot be given without incurring a risk of family violence by another guardian or a person having contact with the child, or

(b) there is no ongoing relationship between the child and the other guardian or the person having contact with the child.

Orders respecting relocation

The FLA also provides that decisions regarding relocation must be made in good faith and be in the best interests of the child:

69 (4) If an application is made under this section and the relocating guardian and another guardian do not have substantially equal parenting time with the child,

(a) the relocating guardian must satisfy the court that
(i) the proposed relocation is made in good faith, and (ii) the relocating guardian has proposed reasonable and workable arrangements to preserve the relationship between the child and the child's other guardians, persons who are entitled to contact with the child, and other persons who have a significant role in the child's life, and

(b) on the court being satisfied of the factors referred to in paragraph (a), the relocation must be considered to be in the best interests of the child unless another guardian satisfies the court otherwise.

(5) If an application is made under this section and the relocating guardian and another guardian have substantially equal parenting time with the child, the relocating guardian must satisfy the court

(a) of the factors described in subsection (4) (a), and (b) that the relocation is in the best interests of the child.

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D. FLA Part 7 – Child and Spousal Support

Family Law Act s.166 Misconduct of spouse

Division 4 – Spousal Support Misconduct of spouse

The FLA includes a provision that would penalize a spouse’s oppressive behaviour which negatively impacts the other spouse’s ability to be self-sufficient. This provision addresses situations in which either spouse engages in conduct calculated to prolong the need for support, or reduce the means from which support could be paid:

166 In making an order respecting spousal support, the court must not consider any misconduct of a spouse, except conduct that arbitrarily or unreasonably

(a) causes, prolongs or aggravates the need for spousal support, or (b) affects the ability to provide spousal support.

E. FLA Part 9 – Protection from Family Violence

Family Law Act

s. 182 Definitions s. 183 Orders respecting protection s. 184 Whether to make protection order s. 185 If child a family member s. 186 Orders without notice s. 187 Changing or terminating orders respecting protection s. 188 Enforcing orders respecting protection s. 189 Conflict between orders

Overview of FLA Part 9

The FLA creates a new type of order that replaces the FRA restraining order. The new FLA civil orders, called protection orders, may be applied for by an at-risk family member or by someone on behalf of the at-risk family member. There does not need