BC gets a new Family Law Act
Families, or at least the way we think about them, have changed a lot since BC’s Family Relations Act came into force in 1972. In the intervening 40 years, our understanding of child development, gender roles, the dynamics of power and control that underlie violence against women in intimate relationships and even the relationship between biology and parenthood have changed drastically. BC’s new Family Law Act aims to address some of those issues while lessening reliance on the courts to resolve family law disputes.
Despite the fact that the Family Law Act received royal assent within ten days of being introduced into the legislature, it has actually been a long time coming. Back in 2006, the Attorney General announced a review of the Family Relations Act . A series of consultations were undertaken and the following year, fourteen discussion papers where released in order to solicit stakeholder feedback. A few years later, the government released their "White Paper on Family Relations Act Reform" and offered a final opportunity for public comment.
When the new act was passed in November of 2011, my first question was what the changes would mean for women and children leaving abusive relationships. Earlier this month, Battered Women’s Support Services, the UBC Centre for Feminist Legal Studies and West Coast LEAF tackled that question by hosting “Women, Violence and BC’s New Family Law: Applying a Feminist Lens”, a free public forum that looked at the new legislation in terms of its potential impact on women survivors of abuse.
One of the most fundamental critiques of BC’s longstanding Family Relations Act has been its silence on the issue of violence against women. The new act includes a fairly broad definitionof family violence which, in addition to physical abuse, names sexual, emotional and psychological abuse, forcible confinement and restriction of a person's autonomy, and withholding the necessities of life. Perhaps most importantly, the history and impact of family violence are now explicitly included in the test for assessing the best interest of the child.
A major concern among women serving agencies during the long consultation process and after the government white paper was released was that the new legislation would include a presumption of joint custody. In the end, thanks in part to tireless advocacy by women-serving agencies, the act explicitly states that no particular arrangement to be presumed to be in child’s best interests. In particular, there is no presumptionthat time with the child or decision-making responsibility should be shared equally or that decisions impacting the child should be made jointly. Factors for the court to take into consideration include not only abuse of the mothers, but also the child’s wishes and the historic division of responsibility between the parents before the separation. Judges are also asked to consider the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child is requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members.
One of the dominant trends of the new act is the focus on alternatives to the court process. A judge may require parties to participate in non- court dispute resolution process and judges are given authority to appoint parenting coordinator without the consent of the parties involved in the dispute. Parenting coordinators are given authority to make binding orders. In many cases this may be a good alternative to the adversarial and costly court process, however there are concerns about reliance on alternative dispute resolution processes in cases involving abuse and/or significant power imbalances. While the act does state that dispute resolution professionals are required to assess for presence of violence and the impact on party’s ability to negotiate, concerns remain about the qualifications of parenting coordinators and well as the training the accountability mechanisms that will be put in place to ensure that they do so fairly and reliably.
When cases do go to court, there will now be some new provisions in place to prevent the court from being used to perpetuate abuse. Judges will be able to make an order prohibiting a party from bringing further applications without permission from the court, or an order requiring all further applications to be heard by the same judge. The new act also enhances the court's ability to enforce its own orders (with the notable exception of protection orders). Importantly, the new act also states that where another order under the Family Law Act conflicts with a protection order, the terms of that order are suspended to the extent of the conflict. This would mean that a protection order preventing communication between the parties could result in a suspension of another order allowing contact or parenting time with the child if that order would normally require communication between the two parents.
There are a lot of other interesting changes in the act including changes in the terminology used to describe parenting arrangements and time with the child new provisions dealing with assisted reproduction and changes to various provisions related to spousal support and division of property. But the big question at the end of the forum was what all the changes look like in practice for women survivors of violence.
The consensus among the panelists was that it is still too early to tell. For now, the Family Relations Act remains in force and the provisions of the new act will be rolled out slowly over the next year or more. The scope of the practical changes for women survivors of violence going through the family court process will depend a lot on how judges interpret the new legislation and the regulations that accompany it. As Laura Track, Legal Director at West Coast LEAF pointed out during the forum, this new act also does nothing to rectify the lack of legal aid, which makes it difficult for women to exercise their rights and protect their children not matter what the legal framework looks like.
All that aside, seeing some of the most common concerns of anti-violence organizations and the woment they work with reflected in the langauge and the spirit of the new act is a testiment to the hard work, dedication and continued importance of BC's feminist movement. It is also a reason for optimism that, going forward, the justice system will better meet the needs of women survivors of violence and their children.