Last July British Columbia’s Attorney-General Mike DeJong held a press conference to announce his Liberal government’s intention to update British Columbia’s “Family Relations Act”, an announcement that was welcomed in most quarters.
After months of meetings with stakeholders and detailed input from a blue-ribbon committee made up of government representatives and some of British Columbia’s senior family law lawyers, the recommendations for change were challenged, debated and then fine-tuned. To the government’s credit, they listened well.
Lieutenant-Governor Steven Point, in his recent Throne Speech, advised British Columbians that a new “Family Law Act” will be introduced this Fall to replace the 1979 Family Relations Act, news that many of us have been long waiting to hear.
How important is the new law to families in crisis? While tinkering with language may not seem innovative, in the area of custody and access it is significant. Many progressive lawyers already avoid words like “custody” and “access” because of their clients’ negative reaction to language that suggests one parent has ownership of the child, a “custodial” parent, and the other has “access”, a term that has become pejorative over time. The new legislation removes this language, replacing “custody” with “guardianship” and “access” with “parenting time”.
The drafters of the new law hope that the abandonment of these traditional expressions will eliminate conflict between parents based merely on semantics.
Some of the other substantive changes include:
1. New rights granted to common law spouses that will treat them the same as legally married spouses. Currently common law spouses are not entitled to apply for a division of family property upon the breakdown of their relationship. A complicated and ponderous legal concept may be invoked, but it is more expensive and provides nominal compensation. (the doctrine of unjust enrichment)
The new law will open the door for common law spouses to enjoy the same property law benefits as legally married spouses. The law will ensure that common law spouses who live in a marriage-like relationship for two years or less than two years, but have a child, will be treated like married spouses in respect of their family assets. This change will, of course, also apply to same-sex couples. British Columbia will lead the way as the first province in Canada to grant equal property rights to separating common law spouses.
2. Issues arising from reproductive technology will be covered in the new law. For example, where a child has three parents i.e. a birth mother, the birth mother’s partner and a sperm donor, each of them may have parental rights if they enter into an agreement. As well, a surrogate mother will not be forced to give up her child, just because she has signed an agreement to do so. None of these important social issues have previously been addressed in British Columbia’s family law.
3. Spousal support will not terminate upon the death of a payor spouse, but may continue and be paid from the estate of the deceased spouse. Today in British Columbia it is very difficult to convince a judge that a long-term spouse should be protected from the sudden termination of spousal support because of the payor’s death. A 60-year-old divorced woman who has no employment skills and has spent years as a stay-at-home mom can be left with no financial resources if her husband dies. This change in the law may positively impact the feminization of poverty.
4. Overall, the focus will move from a court-centered approach to out-of court resolutions. Mediation and collaborative law will continue to be highlighted. Family law arbitration will be introduced, a process where “private judges”, usually senior lawyers or retired judges, will have authority to make decisions for warring couples who wish to avoid the expense, delay, and lack of privacy intrinsic to court proceedings.
Bringing family law into the 21st century is long overdue, however, the success of the new Family Law Act will depend on lawyers and judges recognizing the policy shift that underscores this legislation. It is time to admit that a court-centred, adversarial approach simply is not working for most Canadians caught in the throes of divorce.
Lawdiva aka Georgialee Lang