Guide to the New BC - Family Law in British Columbia

Transcription

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.
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
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.
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
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.
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
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.
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
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).
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
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
the length of time the child lived with the step-parent, and
o
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.
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
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,
•
•
control stalking-type behaviour, or
•
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.
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/D3.4/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
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.
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
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.
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
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.
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
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.
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,
control stalker-type behaviour, or
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
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.
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
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
best interests of the child,
o
settling disputes out of court,
o
addressing family violence,
o
time with a child,
o
property division, and
o
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
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
How to get
and other LSS publications:
Read online: www.legalaid.bc.ca/publications
Order online: www.crownpub.bc.ca
(under Quick Links, click Legal Services Society)
Questions or bulk orders?
Phone:604-601-6000
Email:distribution@lss.bc.ca
Guide to the New BC Family Law Act is available
in English and French (online only) and is coming
soon in other languages.
Follow us
@ legalaid.bc

Guide to the New BC - Family Law in British Columbia

Transcription

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