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 New Family Law Act Implications for Anti-Violence Workers, June 2012 3 • 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. New Family Law Act Implications for Anti-Violence Workers, June 2012 4 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. New Family Law Act Implications for Anti-Violence Workers, June 2012 5 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