The New Family Law Act As It Relates To Care And Time With Children

By Pushor Mitchell LLP
Categories: Blog, Family Law

As we have explained in earlier Legal Alert articles, in late 2011 the British Columbia Legislature passed Bill 16, which will be our new Family Law Act. Once in force, it will replace the Family Relations Act. The new legislation provides for many changes to family law in British Columbia.

One of the areas that will be most affected will be the law surrounding parenting time and care with children. Our existing framework uses terminology like “custody” and “access” and provides that the best interests of a child are the “paramount” consideration in making decisions about where and with whom a child ought to live and/or spend time with.

Part 4 of the new Family Law Act expands this concept, and provides that a person who is making a decision about parenting arrangements and contact with a child must consider only the best interests of that child. Under the old legislation, the term “best interests” was not well defined. Under the new legislation, decision makers must “ensure the greatest possible protection of the child’s physical, psychological and emotional safety”. A list of factors is provided for consideration. Here are some examples of those factors:

  • the views of the child ought to be considered, unless canvassing those views would be inappropriate. (note:  there are some fairly well established methods of obtaining the views of the child, which involves a neutral, trained professional interviewing each child and providing a written report to the parents and the decision maker);
  • if there is a history of family violence, this is a factor to consider;
  • if parties have been involved in prior criminal or civil court proceedings, this may be taken into account if they are relevant to the safety or well-being of the child in issue.

The new legislation brings us new terminology. Instead of talking about “custody” and “access”, we will talk about “guardianship”, “parenting time” and “contact”. In my experience, I find that when marriages break down, parents too often focus on who has “custody”, instead of on how they can share parenting time with their children,. The new legislation will allow parents and decision makers to focus on parenting plans, as well as on “contact” with non-parents, such as grandparents.

The new legislation also outlines “parental responsibilities”. The Family Law Act states that a parent must exercise those responsibilities in the best interests of the child. Parental responsibilities with respect to a child are set out as follows:

  • making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child;
  • making decisions respecting where the child will reside;
  • making decisions respecting with whom the child will live and associate;
  • making decisions respecting the child’s education and participation in extracurricular activities, including the nature, extent and location;
  • making decisions respecting the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including, if the child is an aboriginal child, the child’s aboriginal identity;
  • subject to section 17 of the Infants Act, giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the child;
  • applying for a passport, licence, permit, benefit, privilege or other thing for the child;
  • giving, refusing or withdrawing consent for the child, if consent is required;
  • receiving and responding to any notice that a parent or guardian is entitled or required by law to receive;
  • requesting and receiving from third parties health, education or other information respecting the child;
  • subject to any applicable provincial legislation,
    • starting, defending, compromising or settling any proceeding relating to the child, and
    • identifying, advancing and protecting the child’s legal and financial interests;
  • exercising any other responsibilities reasonably necessary to nurture the child’s development.

The incoming Family Law Act promotes mediation, written agreements, and a more collaborative approach to making parenting arrangements. Of course, the courts will always be there to resolve disputes, hear applications where no agreement can be reached, etc., however, they are now going to be able to refer disputes to parenting coordinators, keeping with the theme of alternate dispute resolution as a more effective means of dealing with family breakdown, particularly where children are concerned.

To discuss these matters, or the consequences of a breakdown of marriage or relationship, contact  Pushor Mitchell Lawyers.