A new ruling out of Provincial Court has addressed one of the pressing issues for the transition from the previous Family Relations Act (FRA) to the current Family Law Act (FLA): how should the courts interpret older orders that don’t address all the relevant issues?
This issue arises with interim orders that grant access, but say nothing about custody or guardianship. Under the transition rules of the FLA, if you had access under the old act, you now have contact with a child under the new act and are not a guardian of your child. The problem is that if you’re not a guardian, you don’t get to make important decisions about their life (such as how the child is raised or where they live).
Interim orders only for access might have been made, for example:
- to allow one parent to see their child when the ex refused to let it happen and it wasn’t necessary to make orders about custody or guardianship,
- if making a decision about custody and guardianship too soon in a case would make the conflict between the parents worse, or
- if there wasn’t enough evidence available for the judge to make an informed decision about custody or guardianship.
These interim orders can have serious effects now that the law has changed.
In this case, a father had an interim access order made under the FRA as the first stage in his family law case. By the time the matter came back to court, the FLA was in place and the mother’s lawyer argued that the father was not a guardian because the FRA order only gave him access. However, since the father had lived with the mother after the child’s birth, he would normally be a guardian under the FLA, but an order hadn’t been made for custody or guardianship under the FRA.
The judge ruled that the most important aspect to consider was whether the transition from the old to the new act took away any rights that the father may have had that had not been determined by the court under the FRA. The judge concluded that it did not, so the father was ruled to be the child’s guardian. This ruling sets a precedent that will affect all future cases that touch upon this subject.
You can read all the details and an explanation of the decision on JP Boyd’s blog.
