New family law legislation in British Columbia

New family law legislation in British Columbia

British Columbia’s new Family Law Act is now in effect.

It contains some very positive provisions with respect to custody and access and violence within the family as well as with respect to restraining orders. The legislation also eliminates any legal differences between married spouses and common-law spouses who have lived together for at least two years.

Custody and access

The language of custody and access is replaced by the terms parenting arrangements and parenting time. The best interests of the child test go farther than the test as it is set out in Ontario’s Children’s Law Reform Act:

  • Greater emphasis will be placed on the child’s views, which are to be considered unless it is inappropriate to do so
  • The issue of family violence will appear directly in the best interests test, unlike in Ontario’s legislation, which introduces family violence in a subsequent section as part of how the best interests test is to be interpreted
  • Family violence is to be considered whether it is directed to the child or other family members
  • The court is to consider whether the actions of the abuser indicated the person may be impaired in the ability to care for the child and the appropriateness of a custody and access arrangement that requires the parents to cooperate, including whether this would increase safety risks for the child or other family members
  • In assessing family violence, the court must look for any pattern of coercive and controlling behaviour on the part of the abuser
  • The best interests test must protect the child’s physical, psychological and emotional safety, security and well-being

The legislation spells out in some detail responses to access denial, including the following:

  • Family dispute resolution
  • Counselling
  • Compensatory time for the parent denied access
  • Supervision of exchanges
  • Financial compensation for costs associated with the access denial

Importantly, there is also a section detailing when denying access is “not wrongful:”

  • When a parent reasonably believes the child might suffer family violence
  • When apparent reasonably believes the other parent is impaired by drugs or alcohol
  • When the child is sick
  • When there have been repeated failures to exercise access in the preceding 12 months

Restraining orders

The new Family Law Act replaces restraining orders with protection orders. A number of the changes are similar to those introduced to Ontario’s Family Law Act in recent years, but the B.C. legislation also provides a lengthy list of factors the court must consider when deciding whether or not to issue a protection order. These include:

  • The history of family violence
  • Whether the family violence is repetitive or escalating
  • Whether psychological or emotional abuse constitutes or is evidence of a pattern of coercive and controlling behaviour
  • The current status of the relationship, including a recent or pending separation
  • Circumstances related to the abuser such as substance abuse, employment or financial problems, mental health problems associated with the risk of violence and access to weapons that could increase the risk of family violence
  • The at-risk person’s perceptions of the level of risk to self
  • Any circumstances increasing the at-risk person’s vulnerability such as pregnancy, age, family circumstances, health or economic dependence

Of course, as we have seen in Ontario, changing the written law does not always result in changed outcomes for women, at least in the short run. Nonetheless, it is interesting to see the ways in which British Columbia has built on work done in Ontario in recent years.

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