The Crawford Model of Shared Parental Responsibilities

In a recently-released decision, Mr. Justice Crawford of the Supreme Court appears to have crafted the first model guardianship order under the new Family Law Act. In the case of G.P. v. M.J.R.P., a rather toxic case featuring a mother described as "an outgoing, volatile, aggressive and sometimes bellicose character," the court was asked to change a Family Relations Act order which gave custody to the father and joint guardianship, on the Joyce model, to both parties.

Mr. Justice Crawford observed that both parties were now the guardians of the child as a result of the transitional provisions of the Family Law Act at s. 251, and that the new act focuses on "the parents' 'parenting'." The mother's parenting capacity having improved, but the conflict between the parties persisting, His Lordship directed an approach to parental responsibilities allocating some to the father alone and adopting a modified version of the Joyce model with respect to the others, and required the parties to use this form of order (terms specific to the parties removed):

UPON THE COURT being advised that the name and birth date of each child is as follows:

Name, born on date, and
Name, born on date 

(the "Child(ren)") 

AND UPON being satisfied that name of party and name of party are the guardians (the "Guardians") of the Child(ren) under s. 39(1)/s. 39(3) of the Family Law Act; 

THIS COURT ORDERS THAT: 

1. Party shall have primary responsibility for parental responsibility and shall terms of primary responsibility, such as a requirement to consult the other party or to advise the other party. 

2. Both Guardians may request and receive from third parties health, education or other information respecting the Children. 

3. During a Guardian’s parenting time, that Guardian may exercise the parental responsibility of making day-to-day decisions affecting the Child(ren) provided however that such Guardian must advise the other Guardian(s) of any matters of a significant nature affecting the Child(ren) occurring during his/her parenting time. 

4. Each Guardian will consult the other Guardian(s) about any important decisions that must be made in respect of the Child(ren) and will try to reach agreement concerning these important decisions. 

5. In the event the Guardians cannot reach agreement with respect to any major decision despite their best efforts, party will have final decision-making power, provided however that the other Guardian(s) may seek mediation or, under s. 49 of the Family Law Act, seek a review of any such decision if he/she believes that such decision is contrary to the best interests of the Child(ren).

To break this down somewhat, the highlights of this model are:

1. a declaration that each party is a guardian of the children;
2. an order allowing each party to obtain information about the children from third parties;
3. an order confirming the parties' right to make day-to-day decisions about the children during their parenting time, as is provided by s. 42(2) of the act;
4. an order imposing a reciprocal obligation to attempt to reach an agreement on decisions; and,
5. an order giving one party decision-making authority in the event of an impasse, while allowing the other party to right to either compel a course of mediation or apply to court for directions on the decision.

The declaration about the parties' status as guardians is particularly important as, in my view, such declarations are the only practical way to let doctors, teachers and border guards know that a particular individual is the guardian of a child when he or she is not appointed by court order.

I have provided templates for the Joyce and Horn models of guardianship adapted for joint custody under the Divorce Act and shared parental responsibilities under the Family Law Act in the blog of Courthouse Libraries BC.

My thanks to my friend and colleague Agnes Huang for letting me know about this interesting decision.

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Backbencher's Bill on Grandparental Rights Tabled in Ontario

The Globe & Mail has reported on a bill tabled by Liberal MPP Kim Craitor and NDP MPP Cheri DiNovo in the Ontario legislative assembly. The bill would amend the Children's Law Reform Act, a law dealing with the consequences of separation like our Family Law Act but limited to matters concerning children, to allow for "the formation or the continuation of a personal relationship between a grandparent and a grandchild."

The Globe article describes Craitor as saying that grandparents' access to their children can be cut off "when children are used as pawns in a nasty divorce," and provides the following rather melodramatic quotes:

"Far too often what I have seen is that when a couple separates or gets a divorce ... sadly what happens is the relationship between the grandparent and the grandchild diminishes." 

"If you can imagine, a grandparent is no longer allowed to see their grandchild. It's just a horrible thing." 

"I could spend 30 hours telling you all the stories that I've heard and you'd probably shed a lot of tears when you hear from grandparents who've been denied access to their grandchildren." 

"[Grandparents are] more than just relatives. They can provide guidance, they can provide security that the children lack sometimes at home, they provide support, stability a sense of self to the children seeking love and understanding."

Our Family Law Act, like the Family Relations Act before it, says that grandparents can apply for contact (or even guardianship) but provides them no privileged status over other extended family members or even unrelated strangers, and the courts have approached the issue from the perspective that the people with the primary entitlement to time with a child are the child's parents.

Frankly, I'm not sure that this isn't appropriate. I do recognize that grandparents have a special role in a child's life, but the legislation that is designed to guide parents and the courts in handling family breakdown is complicated enough. Family law disputes are quite complex and take an enormous amount of time to resolve as it is; do we really need to add four more parties to the dispute between a child's parents? I have no issue with statements recognizing the special value of relationships between grandparents and grandchildren, but if the new bill proposes to give grandparents a particular standing in the legal dispute between separated parents, I cannot see how the extension of conflict and cost could possibly be in the best interests of the children.

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Consolidated Rules and Forms Now Available

The Queen's Printer has almost finished assembling versions of the Supreme Court Family Rules and the Provincial Court Family Rules which consolidate the existing rules and forms with the series of amendments that came into effect with the Family Law Act. The Supreme Court forms are still missing Form F101, the affidavit required for applications for appointment as the guardian of a child.

A list of additional electronic resources is available in my post "Family Law Act Online Resources".

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BC Family Law Resource Relaunched as Wiki with Courthouse Libraries

I am very excited to announce that today Courthouse Libraries BC has relaunched my former website, JP Boyd's BC Family Law Resource, under their Clicklaw Wiki banner as JP Boyd on Family Law. This new wiki is completely up to date for the Family Law Act and the amended rules of the Provincial Court and the Supreme Court.

BC Family Law Resource

In early 2001 I got the bright idea of setting up a public legal education website that would provide a stem-to-stern overview of family law, written in plain language that would be accessible to as many British Columbians as possible. This was long before the Ministry of Justice had put together its brilliant website on family justice and five or six years before the Legal Services Society released its excellent Family Law in British Columbia website.

After months of writing and coding webpages by hand — using the high technology of Microsoft's WordPad no less! — I hit the "send" key in November, and my idea was up and running as JP Boyd's BC Family Law Resource at www.bcfamilylawresource.com.

As time passed, I added more and more pages and more and more features, such as editable templates for common court forms as well as examples of what the forms looked like when finished, child support and spousal support calculators, a table of cases mentioned in the website, an alphabetical index, a glossary of eight- or nine-hundred legal words and phrases, a list of websites run by British Columbia family law lawyers and law firms, an internal search engine powered by Google and more.

As my website grew, so did traffic. Over the past year, traffic has regularly peaked at over 1,000 unique sessions per day during the work week and a total of more than 27,000 sessions per month. Taking my annual expenses and this volume of traffic, plus the traffic to my blog, into account, I figure my costs are around six ten-thousandths of a cent per visitor.

The New Family Law Act

Needless to say, the enactment of the Family Law Act in 2011, though undoubtedly a very, very good thing for most British Columbians, became the source of much soul-searching for me. Not only was I aghast by the prospect of retooling the 58 primary pages and 15 or so subsidiary pages in my website, some of which are really quite lengthy, I began to be concerned about how my website would survive in the event I was hit by a bus, left practice or lost the energy to maintain the website for some other reason altogether.

Courthouse Libraries BC to the rescue!

JP Boyd on Family Law

I've had very a cordial working relationship with Courthouse Libraries for a number of years now and have collaborated with them on a number of training programs for lawyers, public librarians and the general public, working with wonderful people like Janet Freeman (the LawMatters program coordinator), Nate Russell (a legal community liaison), Meghan Maddigan (a legal community liaison) and Drew Jackson (the redoubtable director of client services). One of them, likely Nate or Drew, had the masochistic idea of converting my website to a wiki platform — the rather robust and user-friendly platform that makes Wikipedia work — under the Courthouse Libraries banner.

After some thought, I realized that the proposal was brilliant. It would give me the comfort of knowing that my website would survive any career changes or a cataclysmic loss of enthusiasm; it would expand the pool of people contributing to the website beyond myself, and perhaps create a sense of community ownership; and, the content I had created would be significantly enriched with the input of people with different voices and different opinions. Even better, the wiki platform included a nifty book mode that would allow readers and libraries to make a print copy of all or part of the wiki in a smartly-designed, user-friendly book format. How cool is that? I accepted their proposal and Nate and Drew went to work.

Over the past year or so, Courthouse Libraries has worked to collect the funding needed to buy a new server and the software to go with it, and hire the graphic designers and copy editors needed to take my amateurish efforts to a more polished level. An advisory committee composed of Megan Ellis QC, a senior and well-respected family law lawyer, and representatives from the British Columbia Library Association, the Legal Services Society and Courthouse Libraries was established in late 2012, and has provided invaluable guidance for the transition. More recently, Megan has begun to assemble a stellar editorial team of experienced family law lawyers and family law lawyers new to practice to nurture and grow the wiki into the future.

Thanks

I am extremely grateful for the expertise and time devoted to this project by Megan, Nate and Drew, and the not insignificant resources that Courthouse Libraries has allocated to establishing the new wiki. I am also humbled that the content of my former website, www.bcfamilylawresource.com, could possibly have been worthy of such attention and care.

I would like to extend my most sincere thanks to everyone involved, and in particular to Nate and Drew for their patience, energy and professionalism and dedication to this project. Thank you.

Get Involved!

If you're interested in contributing as as writer, commentator or as a member of the editorial team please contact Courthouse Libraries at:

1.800.665.2570
editor@clicklaw.bc.ca

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Provincial Court Announces Scheduling Reform Project

The Provincial Court has announced a project to overhaul how court time is scheduled. The aptly named Provincial Court Scheduling Project has just release the first issue of a newsletter (PDF) intended to keep court users and other stakeholders up to date on the status of the project and address common questions and concerns. According to the newsletter,

"The Provincial Court Scheduling Project will restructure court scheduling. The new model will provide more timely access to justice by reducing waiting times to trial and returning case management responsibilities to counsel. The latter will promote discussion between parties and foster earlier case resolution.  

"Currently, the PCS Project Team is developing the details of the new scheduling model and designing new software, the Provincial Court Scheduling System (PCSS), to support the new model. ..."

Implementation is set to begin in later 2013 with the province-wide roll out continuing through 2014. Questions and comments can be directed to the PCSP Project Team at pcss@provincialcourt.bc.ca.

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Family Law Act Online Resources

Now the dust has begun to settle, I thought it would be helpful to put together a collection of links related to the new legislation. Here it is, and I will be updating it as the Queen's Printer is able to generate updated material. Bookmark this post by clicking on the title.

Legislation and Regulations

• Family Law Act
• Family Law Act Regulation
• Family Law Act Division of Pensions Regulation

Rules of Court and Practice Materials

Rules of Court

• Provincial Court Family Rules
• Supreme Court Family Rules

Practice Directions

• Provincial Court Practice Directions
• Supreme Court Practice Directions

Court Forms

• Provincial Court: fillable forms from the Ministry of Justice (PDF)
• Provincial Court: forms from the Rules of Court
• Supreme Court:  fillable forms from the Ministry of Justice (PDF)
• Supreme Court: forms from the Rules of Court

Ministry of Justice Resources

• JusticeBC Family Justice Information and Support
• The Family Law Act Explained
• The Family Law Act Regulations Explained
• Amendments to the Rules of Court Explained
• Press Release and Backgrounder announcing the new act

Me

• A Very Brief Introduction to the Family Law Act for Justice System Workers and Advocates (PDF)
• Family Law Act Information & Resources

Legal Services Society

• Family Law in BC after March 18, 2013
• Guide to the New BC Family Law Act (PDF)
• Living Together or Living Apart: Common-Law Relationships, Marriage, Separation and Divorce
• Family Law in BC: Quick Reference Tool

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Guest Column: Attorney General on the New Family Law Act

by the Honourable Shirley Bond,

Minister of Justice and Attorney General

For the first time in more than three decades, British Columbia has brought in landmark legislation introducing new, modernized family law.

If you’re a frequent visitor to this blog, you are probably aware of the broad scope of changes that take effect under the new Family Law Act today. Over the past six years, JP Boyd has provided an abundance of information on the subject and this blog has served as a valuable family law resource in our province. His work to explain in plain language the changes under the new act has significantly contributed to the public understanding of new law, and I would like to take this opportunity to thank him for his work and highlight some of the key pieces in this new legislation.

The Family Law Act is centered on supporting modern B.C. families, no matter how they are defined. The unfortunate reality is that the number of families going through separation and divorce is on the rise. Family life and society in general, has changed significantly since 1979, which is when the outdated Family Relations Act took effect. Over time, the courts have stepped in and made rulings that reflect our modern society.

Our new family law reflects family justice reform in a way that better represents the values of our citizens, and it addresses and provides clarity around important topics like out-of-court dispute resolution, property division and parenting arrangements and family violence. Most importantly, the new family law is about ensuring children’s interests and safety are given the utmost priority when families go through the emotional turmoil that often comes with separation and divorce.

Our government’s work to replace the old Family Relations Act and replace it with today’s Family Law Act has been underway since 2006, and has been guided by four B.C. attorneys general along the way.

On behalf of the B.C. government, I would like to offer gratitude and appreciation to JP Boyd, as well as other members of the Family Law Act Advisory Committee, for the countless hours they have devoted to helping us reform, prepare and train for the new Family Law Act. Their work has not gone unnoticed, and B.C. families will be better served as a result of their efforts.

About the Honourable Shirley Bond

Shirley Bond was elected in 2001 and 2005 as the MLA for Prince George-Mount Robson, and re-elected for a third term in 2009 as the MLA for Prince George-Valemount. Shirley was appointed Minister of Justice and Attorney General on 8 February 2012. Prior to her new role, she was appointed Minister of Public Safety and Solicitor General on 14 March 2011 and Acting Attorney General on 18 August 2011. She is the first woman in British Columbia to hold these positions.

As Minister of Justice and Attorney General, she is responsible for police and correctional services, the Superintendent of Motor Vehicles, crime prevention and victims’ assistance, and emergency management. As Attorney General, she is also responsible for criminal justice and family law, court administration, legal aid and public legal education, family maintenance and legal services to government.

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Regulation Amended: Family Law Act Regulation adjusted for guardianship applications

In my post "Amendments Amended: Rules of Court adjusted for guardianship applications," I mentioned that the Provincial Court Family Rules and the Supreme Court Family Rules had been amended to accommodate the unpleasant requirements of s. 51(2) of the Family Law Act for persons applying for appointment as the guardian of a child. My colleague Kathleen Packard has supplied the link I was missing to the amendments that were also made to the Family Law Act Regulation.

Here's a summary of the amendments:

• Order in Council 66-2013 amends the Provincial Court Family Rules to provide a new rule, Rule 18.1, and a new form of affidavit, Form 34, for guardianship applications. 
• Order in Council 67-2013 amends the Supreme Court Family Rules to provide a new rule, Rule 15-2.1, and a new form of affidavit, Form F101, for guardianship applications.
• Order in Council 68-2013 amends the Family Law Act Regulation to provide a new form, Form 5, to apply for child protection records checks, as required by the new Provincial Court and Supreme Court rules.

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Family Law Act Comes into Force in One Week

It's almost here, the date the new Family Law Act comes into force. I thought I would take the opportunity to review the complicated transitional provisions that will guide us gently from the Family Relations Act regime that has governed family law matters in British Columbia for more than thirty years into this brave new world.

This is a comprehensive summary of the transitional provisions applicable to proceedings in the Provincial Family Court:




This is a comprehensive summary of the transitional provisions applicable to proceedings in the Supreme Court:

• the parts of a court proceeding started under the Family Relations Act concerning the division of property continue under that act; and,
• the parts of a court proceeding respecting an agreement about the division of property made before the Family Law Act comes into force must be continued or started under the Family Relations Act.

These provisions only apply to married spouses, as only married spouses were able to start a claim under the Family Relations Act for the division of property or about agreements concerning the division of property.

No transitional provisions are made for any other issue, including with respect to the presumptions of guardianship, the care of children, the enforcement of parenting time or contact that has been wrongfully withheld, the relocation of children and guardians, child support and the new rules applicable to stepparents, spousal support and reviews of spousal support, protection orders and conduct orders. This was intentional. According to the Ministry of Justice in its online document The Family Law Act Explained:

"Generally, the transition provisions support the immediate use of the Family Law Act for family law disputes, even where they have been started under the Family Relations Act or where there are existing agreements or orders made under the Family Relations Act. This promotes a speedy transition to the new regime and ensures the tools and benefits of the new law can be realized immediately by all families."

"Speedy" is almost an understatement. When British Columbia wakes up on the morning of Monday 18 March 2013, the Family Law Act will be the law of the land. It will apply to:

• all proceedings before the Provincial Court that started before March 18th;
• all proceedings before the Supreme Court that started before March 18th, except for those claims about property that will continue under the old act;
• all applications set for hearing that day;
• all trials set to start that day; and,
• all trials that started before March 18th that will be continuing on or after March 18th.

Buckle up.

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Guide for Victims of Family Violence Published by UBC Centre for Feminist Legal Studies

The Centre for Feminist Legal Studies at the UBC Faculty of Law has just published a helpful new paper, The BC Family Law Act: A Plain Language Guide for Women Who Have Experienced Abuse (PDF). According to the paper's introductory comments, the paper deals with family violence as it is addressed by the Family Law Act and

"...was written for women who are leaving or thinking about leaving a relationship with an abusive man and need information on family law problems. However, the information in this  guide applies to a marriage-like relationship between any two people, for example, two people in a same sex relationship."

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