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Revamped family law 12-18 months from applying

Nov 15 2011

Dramatic changes to B.C.'s separation and child custody laws won't come into effect for more than a year, under legislation introduced Monday.

The government officially unveiled its much-anticipated rewrite of the province's 33-year-old Family Relations Act.

The bill, which is all but assured passage into law next week, makes sweeping changes to provincial laws but won't take effect for between 12 and 18 months, Attorney General Shirley Bond said.

"The heart of the bill is really that the child's interest will come first," said Bond.

"While that sounds rather simplistic, it really is a profound shift in how cases and disputes will be looked at.

"It's also about looking at different ways to find resolution to complex and emotional family issues. Currently, the courts are used to a great degree. We want to see the court used as a last resort, not a first resort."

Family lawyers and the Opposition NDP have expressed support for the bill.

Here's how it will change family law in a variety of situations:

FIGHTING OVER PROPERTY

Those in common-law relationships (people who have lived together for more than two years) will have to fairly split their property 50/50 when they separate, similar to married and divorced couples.

Currently, that's not spelled out in law and common-law couples are forced to go before a judge in a complicated process, with rulings that are "all over the place," said Nancy Carter, executive director of the attorney general's legislation office.

The bill sets out a new list of excluded property that doesn't have to be shared, including: Inheritance, gifts, certain insurance-policy and damage settlements, property held in trust, and pre- and post-relationship property.

Debt will also be split between a separating couple.

AMICABLE SEPARATIONS

Once the law is in effect, couples will be encouraged to try mediated or arbitrated separation before going to court.

That could mean visiting one of the province's 24 family-justice centres, staffed with family-justice counsellors, or hiring your own mediator or arbitrator. Low-income citizens would be provided services for free, said Carter.

Half of those who pursue mediation are expected to conclude their cases for less than $2,000, compared with more than $15,000 to hire lawyers and commence court action, the government estimates.

If a deal on mediated separation is struck, the couple don't have to go to court.

ACCESS TO A CHILD AS PART OF SEPARATION

Courts get involved when mediation fails.

The bill makes a child's best interests the "only consideration" in a dispute, said Carter — a considerable shift in emphasis from the current law, where parents vie for their own access rights.

The formula used to determine a child's best interest will define and include family violence, which isn't currently mentioned. It will also include related civil or criminal proceedings, emotional well-being, the child's views, nature and strength of relationships, and history of child care, the bill reads.

The terms child "custody" and "access" will be replaced with more neutral "guardianship" and "parenting responsibilities."

Child-support payments won't change, because those rules are set federally, said Carter.

HIGH-CONFLICT SEPARATIONS

Judges will have new powers under the bill to make "conduct orders" for high-conflict separations that repeatedly tie up the court system, as well as appoint "parenting co-ordinators" and lawyers to represent the child's interests.

If one guardian wants to move a child, they'll require 60 days' notice for the matter to be considered and debated.

New sanctions are also introduced for parents who fail to show up for — or deny the other parent access to — allotted child time. Those penalties, administered by a judge, range from court-ordered recovery of parenting time and expenses to $5,000 fines and potential jail time.

The bill also clarifies the definition of parents in assisted-reproduction cases. A sperm or embryo donor will not automatically become a legal parent, but the "intended parent" will.

ALREADY SEPARATED, OR CURRENTLY SEPARATING

Nothing will change unless your separation or divorce occurs a year from now, after the law goes into effect. Whatever agreements are struck before then, including those involving property division and child custody, won't be affected unless you end up back in court in the future.

rshaw@timescolonist.com

lkines@timescolonist.com

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