The Proposed Family Law Act: Changes to the Best Interests of the Child and Guardianship

Baby sleeping with their guardian

Commencing in 2006 the British Columbia Ministry of Attorney General has been formulating a new Family Law Act to replace the present Family Relations Act. The proposed new legislation introduces sweeping changes to issues of child custody and guardianship, property division and spousal support, among other issues.

Whether the proposed new legislation will be passed into law remains to be seen. However, at present, it appears as though there is at least a realistic possibility that sweeping changes to family law in British Columbia of the nature proposed in the new Family Law Act will come into force in the coming years.

Under the present law, the terms custody, access and guardianship are used. Many people become confused as to the meaning and purpose of the term “custody”. A brief explanation of all 3 terms is useful.

  1. Guardianship

Guardianship is the right to play a full and active parenting role in a child’s life, including participating in and directing the child’s moral, religious and social education, and being involved in matters involving the child’s formal schooling, health care, social environment and sports and recreational activities. Guardianship includes guardianship of both “the person of the child.” meaning the care and control of the child, and “the estate of the child,” meaning the management of the child’s assets. A person with guardianship can get information from and give instructions to the people involved in the child’s care, such as teachers, doctors, dentists and therapists.

A person with the guardianship of a person of a child is under a duty to act in the child’s best interests and has:

(a) the right to get information from and give instructions to the people involved in a child’s life, like teachers, doctors, dentists and therapists;

(b) the right to discipline the child and direct his or her health care and religious instruction; and

(c) the authority to direct the course of the child’s life, morally and socially, including the child’s education and extracurricular activities.

  1. The “Joyce Model” of Joint Guardianship

The most common terms of joint guardianship follow what is known as the “Joyce model”. Mr. Justice Joyce developed these terms as a standard guide for parents who share joint guardianship of their child. The Joyce Model of Joint Guardianship includes the following terms:

1) the parents are to be the joint guardians of the estate of the child;
2) in the event of the death of either parent, the remaining parent will be the sole guardian of the person of the child;
3) the parent who has the primary responsibility for the day to day care of the child will have the obligation to advise the other parent of any matters of a significant nature affecting the child;
4) the parent who has primary care will have the obligation to discuss with the other parent any significant decisions which have to be made concerning the child, including significant decisions concerning the health (except emergency decisions), education, religious instruction, and general welfare of the child;
5) the parent who does not have primary care will have the obligation to discuss the foregoing issues with the parent and each parent shall have the obligation to try to reach agreement on those major decisions;
6) in the event that the parents cannot reach agreement with respect to any major decision despite their best efforts, the primary care parent shall have the right to make such decisions;
7) the other parent shall have the right, under s. 32 of the Family Relations Act, to seek a review of any decision which that parent considers contrary to the best interest of the child; and,
8) each parent will have the right to obtain information concerning the child directly from third parties, including but not limited to teachers, counsellors, medical professionals, and third party care givers.

Under the foregoing terms, the parent with primary residence has the right to make decisions where the parents are unable to agree and the other parent has the right to apply in court to challenge that decision.

  1. Custody

Custody includes all of the rights associated with guardianship plus the right to have physical care and control of the child. In a joint custody arrangement, these rights and responsibilities are shared.

  1. Shared Custody

Shared custody is a kind of joint custody in which the children spend an equal or almost equal amount of time with each parent. With such an order the children usually spend a certain amount of time with one parent at that home and a similar amount of time with the other parent at their home. These orders can require that the children switch homes every three or four days, every other week, every two weeks or every other month; the amount of time the children spend with each parent will depend on the circumstances of each case, the age of the children, and how the amount of time spent with each parent impacts on the children’s best interest.

Shared custody usually requires that:

(a) the parents live fairly close to one another;

(b) the parents have adequate communication skills with one another;

(c) both parents are able to put the children’s needs ahead of their own;

(d) the children are old enough to be able to tolerate the disruption of living in two different homes; and

(e) the arrangement is in the best interests of the children.

The New Family Law Act 

Under the new Family Law Act, the terms “custody” and “access” are replaced with the terms “guardianship” and “parenting time.” Guardianship is defined through a list of parental responsibilities that can be allocated between parents to allow for customized parenting arrangements. “Parenting time” defines the actual time that each parent spends with the children.

Interestingly, the new Family Law Act proposes that where parents have lived together with the child after the child’s birth (presumably, for any period of time) then the parents share guardianship of the child. This introduces new default provisions with respect to guardianship of the child.

Some of the parental responsibilities the guardian may exercise, which can be allocated between the parents, include the following:

    1. Making day to day decisions affecting the child including supervising the child’s daily activities;
    2. To decide the child’s place of residence and change to the child’s residence;
    3. To make decisions about the child’s education;
    4. To make decisions about the cultural, linguistic, religious and spiritual upbringing and heritage of the child;
    5. To decide with whom the child is to live and with whom the child is to associate; and
    6. To consent to medical, dental and other health related treatment for the child.

Interestingly, the new Family Law Act introduces a range of new dispute resolution provisions including a role for parenting coordinators. A parenting coordinator may act as an arbitrator in deciding a number of issues with respect to parenting and with respect to the child including (but not limited to) a child’s daily routine and time with each parent, education of the child, provision of routine medical, dental and other health care and transportation and exchange of the child between parents. If the parties cannot resolve their dispute with the help of the parenting coordinator, the parenting coordinator can make a determination for the parents. The parents would then have the right to apply in court for judicial review of the parenting coordinator’s decision.

Parenting coordinators could provide an innovative solution to expensive and often acrimonious litigation presently crowding the Courts regarding such parenting issues. The cost of consulting a parenting coordinator would be substantially lower than an opposed Court application where both parties have lawyers and must each pay legal fees.

The Family Law Act adopts specific provisions for the use of arbitration in family law. Arbitration is defined as a process by which a disagreement between two or more parties is resolved by impartial individuals, called arbitrators, in order to avoid costly and lengthy litigation.

Under the present legislation, the Family Relations Act, the paramount consideration for the Courts in determining issues of custody is the best interests of the child based on an analysis of a number of factors including the health and emotional well being of a child, the views of the child, the love and affection and similarities of the child, education and training for the child etc. The new factors proposed under the Family Law Act place heavy emphasis on family violence including violence between adults that may not be directed towards the child or children.

All of these changes may be reviewed by accessing the White Paper on Family Relations ActReform online at Family-Law-White-Paper.pdf.