INFORMATION BULLETIN June 2012

New Family Law Act

Table of Contents

I. Background 3

II. Importance of Family Law to Women Who Are Victims of Violence in Relationships 5

III. Significant Changes in the Family Law Act for Women Who are Victims of Violence in Relationships 5

IV. Overview of Key Provisions Related to Family Violence 6

FLA Part 1 – Definitions 6

FLA Part 2 – Resolution of Family Law Disputes 7

FLA Part 4 – Care and Time with Children 7

FLA Part 7 – Child and Spousal Support 11

FLA Part 9 – Protection from Family Violence 11

FLA Part 10 – Court Processes 16

FLA Part 12 – Regulations 18

FLA Part 13 – Transitional Provisions 19

FLA Part 14 — Repeals, Related Amendment and 19 Consequential Amendments

V. Implementation Issues 20

VI. Conclusion 21

VII. References 23

New Family Law Act Implications for Anti-Violence Workers, June 2012 2

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.

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

2 Now 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.

3 EVA 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;

4 Please 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

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to be family law litigation or legal process already underway for the protection order application to be made. The fact that criminal charges may be pending against the abuser does prevent the making of the new civil protection order.

The application for the new protection order may be made without notice to the abuser although he does have the right to apply to have the order set aside or varied.

The new protection orders may include terms restraining the abuser from: direct or indirect communication or contact; going to the family home; stalking behaviour, and possession of weapons. Directions to police to remove the abuser from the family home and seize weapons may also be included, as well as reporting requirements for the abuser. Unless the court orders otherwise, the protection order remains in force for one year after the date it was made. Either party may apply to have the terms of the order changed or terminated.

In deciding whether to issue a protection order the court must consider a number of prescribed risk factors including any history of family violence towards the at-risk family member and her perception of risk. If there is a child involved, the court must consider whether they should also be included as a protected party under the order.

FLA protection orders can be enforced only by the police. To ensure safety for children and consistency of enforcement, breaches of FLA protection orders will now be enforced by police and prosecuted by Crown counsel pursuant to Criminal Code section 1275 rather than as provincial offences under the provincial Offence Act6. Police are more familiar with Criminal Code enforcement processes so it is hoped that this change will result in better enforcement of civil protection order breaches. New FLA orders will also have an expiry date to aid enforcement.

The FLA provides that where there is a conflict between any civil or criminal protection order and a non-protection order, such as a conduct order or custody order, the protection order takes precedence. This means that the conflicting order is suspended to the extent of the conflict. For example, if a parent has parenting time but later bail conditions prohibit contact with the child, the safety related bail conditions prevail and there is to be no contact with the child until the inconsistency between the orders is resolved. If on the other hand, the bail conditions only prohibit contact or communication with the other parent then the situation is more complex. In that situation, where provided there is no risk of harm to the child, the FLA provides the court with the option of limiting or specifying the means of communication for the purposes of facilitating parenting time or contact. This would be done through the terms of the FLA protection order. For example, parties could

5 Criminal Code section 127 makes it a hybrid offence to breach a court order. 6 See Part 14 Repeals, Related Amendment and Consequential Amendments for a discussion of how the FLA reforms impact the enforcement of protection orders made as part of a child protection case.

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drop off and pick up the child at a grandparent’s or aunt’s house or they could go through a family justice counselor. Situations of family breakdown and domestic violence are fluid and it may be very difficult to assess risk to the child. Crown counsel in liaison with police, will have an important role to play in ensuring that if the child is at risk, that they are included in any bail no contact conditions.

Definitions

182 In this Part and the regulations made under section 248 (1) (d) [general regulation- making powers]:

"at-risk family member" means a person whose safety and security is or is likely at risk from family violence carried out by a family member;

"residence" means a place where an at-risk family member normally or temporarily resides, including a place that was vacated because of family violence.

Orders respecting protection 183 (1) An order under this section (a) may be made on application by a family member claiming to be an at-risk family member, by a person on behalf of an at-risk family member, or on the court's own initiative, and (b) need not be made in conjunction with any other proceeding or claim for relief under this Act. (2) A court may make an order against a family member for the protection of another family member if the court determines that (a) family violence is likely to occur, and (b) the other family member is an at-risk family member. (3) An order under subsection (2) may include one or more of the following: (a) a provision restraining the family member from (i) directly or indirectly communicating with or contacting the at-risk family member or a specified person, (ii) attending at, nearing or entering a place regularly attended by the at-risk family member, including the residence, property, business, school or place of employment of the at-risk family member, even if the family member owns the place, or has a right to possess the place, (iii) following the at-risk family member, or (iv) possessing a weapon or firearm; (b) limits on the family member in communicating with or contacting the at-risk family member, including specifying the manner or means of communication or contact; (c) directions to a police officer to (i) remove the family member from the residence immediately or within a specified period of time,

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(ii) accompany the family member, the at-risk family member or a specified person to the residence as soon as practicable, or within a specified period of time, to supervise the removal of personal belongings, or (iii) seize from the family member any weapons or firearms and related documents; (d) a provision requiring the family member to report to the court, or to a person named by the court, at the time and in the manner specified by the court; (e) any terms or conditions the court considers necessary to (i) protect the safety and security of the at-risk family member, or (ii) implement the order. (4) Unless the court provides otherwise, an order under this section expires one year after the date it is made. (5) If an order is made under this section at the same time as another order is made under this Act, including an order made under Division 5 [Orders Respecting Conduct] of Part 10, the orders must not be recorded in the same document.

Whether to make protection order 184 (1) In determining whether to make an order under this Part, the court must consider at least the following risk factors: (a) any history of family violence by the family member against whom the order is to be made; (b) whether any family violence is repetitive or escalating; (c) whether any psychological or emotional abuse constitutes, or is evidence of, a pattern of coercive and controlling behaviour directed at the at-risk family member; (d) the current status of the relationship between the family member against whom the order is to be made and the at-risk family member, including any recent separation or intention to separate; (e) any circumstance of the family member against whom the order is to be made that may increase the risk of family violence by that family member, including substance abuse, employment or financial problems, mental health problems associated with a risk of violence, access to weapons, or a history of violence; (f) the at-risk family member's perception of risks to his or her own safety and security; (g) any circumstance that may increase the at-risk family member's vulnerability, including pregnancy, age, family circumstances, health or economic dependence. (2) If family members are seeking orders under this Part against each other, the court must consider whether the order should be made against one person only, taking into account (a) the history of, and potential for, family violence, (b) the extent of any injuries or harm suffered, and (c) the respective vulnerability of the applicants. (3) For the purposes of subsection (2), the person who initiates a particular incident of family violence is not necessarily the person against whom an order should be made. (4) The court may make an order under this Part regardless of whether any of the following circumstances exist: (a) an order for the protection of the at-risk family member has been made previously against the family member against whom an order is to be made, whether or not the family member complied with the order;

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(b) the family member against whom the order is to be made is temporarily absent from the residence; (c) the at-risk family member is temporarily residing in an emergency shelter or other safe place; (d) criminal charges have been or may be laid against the family member against whom the order is to be made; (e) the at-risk family member has a history of returning to the residence and of living with the family member against whom the order is to be made after family violence has occurred; (f) an order under section 225 [orders restricting communications] has been made, respecting the at-risk family member, against the family member against whom the order is to be made.

If child a family member 185 If a child is a family member, the court must consider, in addition to the factors set out in section 184 [whether to make protection order], (a) whether the child may be exposed to family violence if an order under this Part is not made, and (b) whether an order under this Part should also be made respecting the child if an order under this Part is made respecting the child's parent or guardian.

Orders without notice 186 (1) An application for an order under this Part may be made without notice. (2) If an order is made under this Part without notice, the court, on application by the party against whom the order is made, may (a) set aside the order, or (b) make an order under section 187 [changing or terminating orders respecting protection].

Changing or terminating orders respecting protection 187 (1) On application by a party, a court may do one or more of the following respecting an order made under this Part: (a) shorten the term of the order; (b) extend the term of the order; (c) otherwise change the order; (d) terminate the order. (2) An application under this section must be made before the expiry of the order that is the subject of the application. (3) Nothing in subsection (2) of this section prohibits a person from making a subsequent application for an order under section 183 [orders respecting protection].

Enforcing orders respecting protection 188 (1) An order made under this Part may not be enforced (a) by means of any order that may be made under this Act, or (b) under the Offence Act. (2) A police officer having reasonable and probable grounds to believe that a person has contravened a term of an order made under this Part may

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(a) take action to enforce the order, whether or not there is proof that the order has been served on the person, and (b) if necessary for the purpose of paragraph (a), use reasonable force.

Conflict between orders 189 (1) In this section, "protection order" means any of the following orders: (a) an order made under this Part; (b) an order, made under the Criminal Code, that restricts a person from contacting or communicating with another person; (c) an order, made by a court in British Columbia or another jurisdiction in Canada, that is similar in nature to an order made under this Part. (2) If there is a conflict or an inconsistency between a protection order and an order made under a Part of this Act other than this Part, the other order is suspended, to the extent of the conflict or inconsistency, until (a) either the other order or the protection order is varied in such a way that the conflict or inconsistency is eliminated, or (b) the protection order is terminated.

F. FLA Part 10 - Court Processes Family Law Act s.199 Conduct of proceeding s.221 (1) Misuse of court process s.222 Purposes for which orders respecting conduct may be made s.223 (1) Orders respecting case management s.228 (2) Enforcing orders respecting conduct

Division 2 – Procedural Matters

Conduct of proceeding

The FLA takes into consideration the impact that family law proceedings may have on children and families, particularly where there is a history of family violence. It states: 199 (1) A court must ensure that a proceeding under this Act is conducted (a) with as little delay and formality as possible, and (b) in a manner that strives to (i) minimize conflict between, and if appropriate, promote cooperation by, the parties, and (ii) protect children and parties from family violence.

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(2) If a child may be affected by a proceeding under this Act, a court must (a) consider the impact of the proceeding on the child, and (b) encourage the parties to focus on the best interests of the child, including minimizing the effect on the child of conflict between the parties

Division 4 – General Orders the Court May Make

Misuse of court process

Under the FLA the court can make orders to help manage the court process and encourage the settlement of disputes. These orders are called “case management” and “conduct orders”. These orders may assist women in situations where proceedings have been deliberately prolonged for years or where their abusive spouse has misused the process or failed to comply with the court’s instructions. 221 (1) A court may make an order prohibiting a party from making further applications or continuing a proceeding without leave of the court if satisfied that the party (a) has made an application that is trivial, (b) is conducting a proceeding in a manner that is a misuse of the court process, or (c) is otherwise acting in a manner that frustrates or misuses the court process.

Division 5 – Orders Respecting Conduct

Purposes for which orders respecting conduct may be made 222 At any time during a proceeding or on the making of an order under this Act, the court may make an order under this Division for one or more of the following purposes: (a) to facilitate the settlement of a family law dispute or of an issue that may become the subject of a family law dispute; (b) to manage behaviours that might frustrate the resolution of a family law dispute by an agreement or order; (c) to prevent misuse of the court process; (d) to facilitate arrangements pending final determination of a family law dispute.

Orders respecting case management 223 (1) A court may make an order to do one or more of the following: (a) dismiss or strike out all or part of the party's claim or application; (b) adjourn a proceeding while (i) the parties attempt to resolve one or more issues before the court, or (ii) a party complies with an order made under this Division;

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(c) require that all further applications be heard by the judge or master making the order unless that judge or master directs otherwise; (d) prohibit a party from making an application, without leave of the court, respecting any matter over which a parenting coordinator has authority to act under an agreement or order. A range of enforcement options are made available. As a last resort, the court may enforce these orders by ordering the party to be jailed for up to 30 days. Enforcement of provisions regarding conduct and case management do not apply to protection orders, which are addressed in Part 9 — Protection from Family Violence, and which must be enforced by police.

Enforcing orders respecting conduct

Regarding enforcement of conduct orders: 228 (2) If a party fails to comply with an order made under section 225 [orders restricting communications], the court must consider whether it would be appropriate to make an order under Part 9 [Protection from Family Violence].

G. FLA Part 12 – Regulations Family Law Act s. 245 (1) Regulations respecting family dispute resolution

Regulations respecting family dispute resolution

It is expected that FLA regulations will address accreditation, training, and practice of family dispute resolution professionals. Part 12 of the Act states that: 245 (1) The Lieutenant Governor in Council may make regulations respecting family dispute resolution as follows…. (e) for the purposes of section 8 [duties of family dispute resolution professionals], (i) prescribing the training, experience and other qualifications that a person must have to assess whether family violence is present, (ii) requiring that a family dispute resolution professional who does not have the training, experience and other qualifications required under subparagraph (i) ensure that the parties to the family law dispute are assessed for family violence by a person who does have the required training, experience and other qualifications, (iii) respecting records to be made in relation to an assessment for family violence and any assistance provided, (iv) respecting the matters that must be considered in assessing whether family violence may be present, and (v) respecting actions to be taken after an assessment, and putting limits and conditions on the taking of those actions;

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H. FLA Part 13 – Transitional Provisions Family Law Act s.255 Transition – restraining orders

In terms of the transition to the new FLA: • Previous protection orders will remain in force in accordance with the terms of the order. • Applications to change Family Relations Act (FRA) orders will be made under the new FLA. 255 An order made under section 37, 38, 124 or 126 of the former Act continues in force in accordance with the terms of the order.

Workers should speak with clients about the advisability of obtaining a new protection order under the FLA as it is anticipated that these orders will be more easily enforceable than the old FRA restraining orders.

I. FLA Part 14 — Repeals, Related Amendment and Consequential Amendments

Family Law Act s. 290 Child, Family and Community Service Act

Consequential Amendments

Child, Family and Community Service Act

In a significant percentage of child protection cases, domestic violence is also present. In these cases, protective orders are available under the Child, Family and Community Service Act (CFCSA). Under section 28 of that act, the Ministry of Children and Family Development may apply for a “protective intervention order” where they believe that contact between a child and another person would result in the child needing child welfare protection. This section 28 order may prohibit contact for six months or prohibit the abuser and the child from living together. Under CFCSA section 98, the court may impose these same conditions in a “restraining order” where there are reasonable grounds to believe a child7 is being exploited, abused or coerced to engage in prostitution. The new FLA does not change the thrust of these child welfare protection orders. What it does do, is simplify the enforcement process for CFCSA order breaches. CFCSA enforcement provisions are repealed. This clears the way for police to enforce these orders and Crown counsel to prosecute

7 For the purposes of s. 98, “child” is defined to include: a child in care or subject to a temporary custody order, or a youth who has made an agreement with a director under s. 12.2.

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breaches pursuant to the Criminal Code (s. 127) rather than pursuant to the provincial Offence Act.

290 Sections 28 (3.1) to (3.6) and (4) (a.1), 98 (4.1) to (4.6) and (6.1) (b) and 102 (1) (a) and (e), (1.1) and (2) are repealed.

V. Implementation Issues

The practical implementation of the legislation is still under discussion by the BC Ministry of Justice (formerly the Ministry of Attorney General and the Ministry of Public Safety and Solicitor General).

EVA BC and CCWS continue to engage in dialogue with ministry personnel and members of the legal community to monitor implementation of the family law reform package. It is important to acknowledge that passage of the new FLA is an important landmark for women. It is also important to ensure that the intent of the new law is realized through a comprehensive implementation plan.

In our written brief in response to the government White Paper, EVA BC and CCWS identified a number of key considerations for implementation including the following: a) Training and practice standards for family dispute resolution practitioners regarding risk assessment. An under-resourced or patchwork approach to risk assessment combined with a strong legislated mandate to move away from a court-based model, could result in family violence cases being inappropriately streamed into mediation, thereby putting women and children at further risk.

b) Training and policy development for justice system personnel, particularly with regard to: new strategies for enforcement of FLA and CFCSA protection orders pursuant to the Criminal Code; and potential family court access to appropriate criminal court proceeding information that is relevant to best interest of the child in family court (FLA s. 37 (2) (j)). There is also a need for a policy direction provided to other sectors such as Crown counsel, Court Services and Corrections personnel regarding circumstances under which such information should be shared with family law practitioners and providing the grounds upon which it can be released. c) Training and policy development for child protection social workers specifying when and how CFCSA s. 28 Protective Intervention Orders and CFCSA s. 98

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Restraining Orders will be used in child protection cases where domestic violence is also present.

d) Legal Services Society funding sufficient to ensure that enhanced Legal Aid coverage for representation in both Provincial and Supreme Court is provided for women who are victims of domestic violence and particularly for marginalized women, including aboriginal women, immigrant and refugee women and poor women. In particular it is critical to ensure that:

o abused immigrant and refugee women engaged in child custody or other serious family law matters who cannot afford counsel to represent them are provided with Legal Aid representation in family law hearings. o abused immigrant and refugee women facing removal from Canada who cannot afford counsel are provided with Legal Aid representation in immigration hearings.

e) The 2010 White Paper on Family Relations Act reform acknowledged the importance of programs and services that help families respond to and manage issues related to separation and divorce (p.6). This is commendable. With the significant changes now being proposed, the ongoing service pressures related to cuts in legal aid services and a move towards non-court based strategies, it is critical that programs and services are adequately funded so that the important principles contained in the proposed Family Law Act can be realized.

For many marginalized women, mainstream legal structures or personnel will not be the context for disclosing critical information about past violence or perceived risk. Community-based programs can play an important bridging role. Implementation of the Family Law Act reform package should include additional support for community based programs and services such as aboriginal and multicultural outreach services, victim support programs and other programs specifically designed to address the needs of marginalized women. f) There is also a need to ensure that the transition between old protection orders and new FLA protection orders is a smooth and safe one so that women do not fall through the cracks as a result of confusion between the two.

VI. Conclusion

The Ministry of Justice, formerly Ministry of Attorney General, has done an exemplary job in providing opportunities for input on the development of this groundbreaking

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Bill. We anticipate that effective implementation accompanied by training, policy development and adequate resources, will increase safety for women and children in British Columbia.

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References

For more detailed information on the new FLA, the development and consultation process, its current status, implementation, and the legislation itself, you can go to a number of websites, including: http://www.leg.bc.ca/39th4th/3rd_read/gov16-3.htm http://www.courthouselibrary.ca http://bcfamilylawresource.blogspot.com/ http://www.familylaw.lss.bc.ca/utility/whats_new_law.php http://www.ag.gov.bc.ca/legislation/family-law/index.htm http://www.bclaws.ca http://www.endingviolence.org/node/1225

Please cite the source if you quote from this document or if you reproduce some or all of it.

Practice and policies are subject to change. We make every effort to update CCWS documents accordingly. Please visit our website regularly for the most up-to-date versions of our materials: www.endingviolence.org.

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