The federal government has been contemplating a polar shift in the custody aspects of divorce law litigation for decades but have never been able to pull the trigger on changing and aging law, although the 2008 Spousal Support Advisory Guidelines are a good step in the right direction.
Modernizing custody and access concepts seems an impossible task, a conundrum for politicians and their legislative drafters.
Out west ... far west ... in the land of British Columbia, along the shores of the Pacific Ocean, the tide of new family law change looms large - this will be a tsunami. What other jurisdictions dream of, play with, issue white, black and purple papers on, BC is actually doing.
The avant-garde reform package is not some small change - it is a massive paradigm shift.
It does come clothed in the same uniform all reform necessarily adorns: a statute, to be precise, Bill 16 - 2011 Family Law Act.
But this one has behind it not one but three readings and a royal assent.
Not only is it revving on the start line but the provincial government has announced an implementation date: March 18, 2013. By the calendar of change in the law, that's as good as tomorrow.
The family law legal dictionary will have some new-comers. The legal terms custody and access will be repealed and replaced with guardianship and "parenting time" (the term parenting time will be used to describe access time by the other parent).
Contact will refer to a child’s time with someone who is not a guardian. It replaces the concept of “access” for non-guardians in the Family Relations Act. A contact person does not have parental responsibilities for the child.
The best interests of the child will no longer be the lead factor in making guardianship and parenting time decision. It will be the only factor. But the change appears to be mostly cosmetic to all but the most stubborn observor since best interests is immediately subject to a variety of factors.
The present "who's on first" list of who is legal guardian in the event of separation (barring a court order or contract between the parties, it is the parent with whom the child ordinarily resides) will be replaced by a statement that the parents of a child who reside with the child are automatically the co-guardians and do not lose these responsibilities if they separate.
This is backed-up by the proposal that unless an agreement or court order provides for a different allocation, each guardian has the full toolbox of parental responsibilities.
But there is no presumption of equal parenting time so in terms of access ... oops, we meant parenting time, the role of the Courts is far from over.
In order to allow the Court's to effectively police errant parents who can't seem to avoid ignoring the terms of an agreement or Court order without sufficient cause, the new law sets out an arsenal of incremental judicial tools to get the errant parent's attention in the event of wrongful denial of parenting time:
- Mandatory attendance at family dispute resolution, counseling or other services;
- Compensatory time between the child and the aggrieved parent;
- Reimbursement of expenses incurred as a result of the denial; and
- Requiring the offending party to provide security or pay a fine of up to $5,000.
This will be very helpful because it is a real challenge in Court now to convince a judge to impose corrective measures on a parent who denies access. They are reasonably reluctant to write family law.
The list of novel elements of new law continues.
Relocation, a huge bugaboo of family law, is addressed in the imminent statute so the legacy of Gordon v Goertz and., more recently, the Court of Appeals' judgment in n R.E.Q. v. G.J.K., can finally be given a Christian burial, at least in Lotus Land. Formalized notice periods are introduced and the requirement of a formal objection to trigger the infamous and dreaded relocation court proceedings.
One of the helpful sections, albeit toothless, is the hope that the new statute will:
"... encourage parties to a family law dispute to resolve the dispute through agreements and appropriate family dispute resolution before making an application to a court (and) encourage parents and guardians to resolve conflict other than through court intervention...."
Out-of-court settlement is specifically preferred and promoted by requiring accelerated disclosure and elevating agreements as a real and equal option to a Court order. The bill gives a glimpse of the future by referring to "mandatory family dispute" resolution regulations yet to come.
Given other initiatives in BC (i.e. DUI adjudicators), this may be a long-range teaser to the partial replacement of the Court system with extra-judicial processes or the adjudication of family disputes by family law lawyers or non-lawyer, public servant mediators. The soldiers of this new army even have names: family dispute resolution professionals, family justice counsellor and parenting coordinators, the latter to step in to manage the ongoing disputes which often arise when a custody and access order or agreement:
"Parenting coordinators help high-conflict families implement agreements or orders respecting parenting arrangements using a mediation-arbitration approach.... It does not involve creating or changing parenting arrangements, but attempts to help parents resolve any disagreements that arise with regard to how parenting agreements or orders are put into effect. It requires a legislative framework because it involves a form of adjudication."
Change is often a challenge in the law. That is simply the nature of the beast.
How these particular changes will work out is still guesswork but some jurisdiction, somewhere, had to experiment with creative change in family law in order to keep the fire burning and foster the evolution of family law.
As Benjamin Franklin once said:
"I failed my way to success."
Doing nothing was not an option.