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Moving with children: Provincial Court’s first decision on relocation

The new Family Law Act (FLA) came into force a little over three months ago. Since then we’ve seen a slow trickle of rulings come through Provincial Court that clarify the law and will be used to inform future rulings. The most recent of these rulings was S.G. v. J.P, which dealt with moving with children. In this case, two divorced parents shared equal parenting time of their daughter and the mother wanted to move from the interior to the lower mainland with the child.

Under the FLA, a guardian who wants to relocate with a child must give 60 days’ notice to every other guardian or person who has contact with the child. The exception to this is if there is a court order in place exempting this procedure. Under the Act, “relocation” is any move that will have a “significant impact” on the child’s relationship with the other guardian or person with contact.

After receiving the notice, any other guardian then has 30 days to file an objection with the court. Assuming you don’t share “substantially equal” parenting time, then the guardian proposing the move must prove:

  • the move is in good faith, and
  • reasonable arrangements have been proposed to preserve the child’s relationship with the other guardian.

If you do share equal parenting time, then you must also demonstrate that the move is in the best interest of the child.

In this specific case, the judge was satisfied that the first two conditions were met: the mother had a good reason to move, wasn’t making the decision out of spite, and had proposed a schedule that would preserve the daughter’s relationship with her father and extended family. The judge found, however, that the mother had not satisfied the third criteria due to uncertainties in the mother’s plan and the closeness of the daughter to her extended family in the interior.

As JP Boyd points out in his Family Law Blog, this shows us two important things:

  • a failure in just one of the three criteria may be enough to stop a move;
  • the third criterion —the best interest of the child — requires more thought and consideration than the first two criteria . Each of the best interests factors should be taken into account when determining the best interest of the child.

A full list of the criteria considered for determining the best interest of the child can be found in s. 37(2) of the FLA. You can find more information on relocation and the Family Law Act in our publications Guide to the New BC Family Law Act and Living Together or Living Apart.

Defending Yourself in court

Defending-Yourself-Breach-of-a-Court-Order-443-lssDefending Yourself, our newly redesigned and updated criminal law series, is now available online and in print. Each of these booklets walks the reader through a specific offence: the penalties they could face, the possible defences, and what the prosecutor will say and do. The charges covered in this series are:

As part of our accessibility initiative, we’ve been working to make all our new publications easier to understand and to use. This includes a new format and more visuals for this series, and a flowchart that shows which LSS publications can help at every stage in the criminal court process. The Defending Yourself booklets are meant to be used with Representing Yourself in a Criminal Trialand can be conveniently tucked inside that booklet’s new cover pocket.

These booklets replace the What to Do If You Are Charged series. The French translations of that series are still legally accurate and What to Do If You Are Charged With a Drinking and Driving Offence is also still available in English.

All of our criminal publications can be found on our website and are available, for free, in print and online.

Court harassment, family violence, and the Family Law Act

upset couple

Family law cases can be very contentious. There is a lot of emotion involved in these cases and, unfortunately, some people find it hard to see the forest for the trees when they’re involved in a case that involves their children or a former partner.

Sometimes this can lead to court harassment. Court harassment is when one person uses the legal system to harass the other party. This could, for example, be someone filing multiple unnecessary court applications as a way to waste their ex’s time and money. A case like this made its way through BC’s Supreme Court recently, and the ruling has important implications for family law cases in BC.

The case, M.W.B. v. A.R.B, looks at a couple who continued to go to court even after their divorce. Over the two and a half years since their divorce, the wife had delayed the sale of joint property (leading to a loss in value), hindered the father’s access to his children, and was the cause of four additional court hearings. The main point of contention in this case, however, was the father’s application to have one of the two children relocate across the province to live with him.

The interesting bit comes in here though; while the case had previously been started under the Family Relations Act, by the time it was heard, the Family Law Act applied. The new act mandates that the best interests of the child is the only factor that can be taken into account in parenting matters. One of the factors in determining the child’s best interests is the presence of family violence.

Family violence has a broader definition than just physical abuse. For this case, the judge homed in on the part of the definition that outlines emotional and psychological abuse; this includes harassment, restriction on a family member’s financial autonomy, intentional damage to property, and more. The judge ruled that the wife’s actions constituted harassment and was a form of family abuse — her actions caused financial and health issues for the husband, which indirectly affected the children’s best interests. The husband won the case.

What this means is that the court now has three ways of dealing with court harassment:

  1. The court can make an order to stop someone from taking further steps in a case if they are found to be misusing the court process.
  2. The court can strike an application or adjourn a proceeding until an order is complied with.
  3. As in this case, the court could determine that one party’s actions constitute family violence and take that into account to determine the child’s best interests or make a protection order.

For a full rundown of the judgment, you can read JP Boyd’s excellent post.

The 2nd Annual Courage in Law Award

Pam & JCB AwardOn March 20 of this year, the Indigenous Law Students’ Association at UBC Law gave out their annual Courage in Law Award. The award is given to recognize people who have shown leadership and courage in advancing legal services for indigenous people and fostering diversity in the legal profession.

Among the recipients was our very own Pamela Shields who manages Aboriginal services for LSS. Among her other work at LSS, Pamela has been instrumental in promoting and implementing Gladue rights throughout the province. Gladue rights are the Criminal Code rights to special consideration that a judge must give an Aboriginal person when setting bail or during sentencing.

The award was also given to retired Judge Cunliff Barnett and Gail Davidson. Judge Barnett is known for taking his court to Indigenous communities where he created space for indigenous legal traditions in his judicial decisions. He is currently involved with the First Nations Court in Kamloops. Gail Davidson serves as the executive director of Lawyers’ Rights Watch Canada and has worked to advocate for the protection of indigenous women’s rights in Canada.

Not content with just receiving an award that day, both Pamela Shields and Judge Barnett went on to give presentations to UBC law students, speaking about Gladue rights and how to make space for indigenous legal traditions in the criminal court system.

To learn more about Gladue, see Aboriginal legal rights — Gladue on the LSS website, as well as Are You Aboriginal? (fact sheet) and our Gladue Primer.

Hot off the press: Defending Yourself: Theft Under $5,000

theftUnder$5000

This revised booklet (formerly What to Do If You Are Charged with Theft Under $5,000) features a whole new look, an easy-to-read format, and strong visuals. The reorganized content includes a new flowchart that shows when various LSS publications can help at each stage of the criminal court process. The focus of this publication is how to prepare your defence for the charge of “theft under.”

This publication is the first in the new Defending Yourself series which will eventually replace the entire What to Do If You Are Charged series. Each Defending Yourself booklet is meant to be used together with the LSS booklet Representing Yourself in a Criminal Trial, and can be conveniently tucked inside that booklet’s new cover pocket.

Although this publication replaces What to Do If You Are Charged with Theft Under $5,000 (2011), that edition (and the French translation) are still legally accurate.

Hot off the press: If You Are Charged with a Crime

ifYouAreChargedWithACrimeThis revised brochure has an attractive new design, a larger format, and expanded content. If You Are Charged with a Crime outlines what someone needs to know if charged with a criminal offence. It describes the first steps in the court process, the different options that may be available, and how to get legal aid or other legal help.

 

Hot off the press: Representing Yourself in a Criminal Trial

This revised edition has a new look and additional content. The booklet is intended for an accused person who pleads not guilty to a summary offence. Its redesigned, two-column format improves readability, and the addition of more cross-references helps readers navigate through the information. The booklet now includes a glossary and a flowchart of the LSS criminal publications that can help the accused before he/she goes to court. It also contains a checklist to guide the accused through a trial, flow charts of the court process before and at the trial, and a sample letter to Crown counsel.

Family Law Act regulations published

The new Family Law Act regulations have been released. The regulations answer many of the questions that arose when the act was first released. For example, they deal with:

  • training and standards for parenting coordinators and other professionals;
  • child support guidelines;
  • the form to appoint a testamentary or standby guardian; and
  • the division of pensions.

Accompanying the regulations on the Ministry of Justice website is a Q&A to address common questions.

These regulations will take effect on March 18, 2013, the same day as the new Family Law Act, with the exception of the training and standards provisions, which come into force on January 1, 2014. The Family Law Act regulations will replace all Family Relations Act regulations.

Vancouver’s Downtown Community Court turns four

Downtown Community Court (DCC) is celebrating its fourth anniversary today!

In the four years it’s been around, DCC has partnered with legal aid and social and health services organizations to help offenders successfully resolve their issues.

DCC is about testing new ways to reduce crime and improve public safety. It deals with offenders more quickly through a more co-ordinated and informed response. It focuses on reducing the harm done to the community by crime.

Sentences are designed to help offenders:

  • address the circumstances that caused them to commit the crime in the first place, and
  • make long-term changes to their behaviour that will keep them from reoffending.

This means that sentences can, and often do, include health and social services programs and community service to pay the community back for the damage done.

The DCC is run in partnership with many organizations, including the Legal Services Society, the Ministries of Justice and Social Development, Vancouver Coastal Health, BC Housing, the Vancouver Police Department, and more.

Find out more about the DCC on their website. Or see some examples of the cases they’ve seen in their newsletter.

My day in BC’s First Nations Court

Picture courtesy of Courthouse Libraries BC

A few months ago I had the opportunity to sit in on a session at BC’s First Nations Court (FNC). It was an experience I won’t soon forget.

Despite working for legal aid for a while now, I don’t have much experience with courtrooms. I realize it’s not like Law and Order in real life, but that doesn’t stop me from hearing the theme song whenever I pass by the courthouse. So, the FNC was a splash of cold (refreshing!) water.

The first thing you notice when you enter the room is that it’s not your traditional court set up. Instead of facing off against each other, the judge, Crown counsel, defendant, and others sit around a horseshoe-shaped conference table. This alternate setting is representative of the court as a whole.

FNC can be used by anyone who self-identifies as Aboriginal — status or non-status, First Nations, Metis, or Inuit, living on or off reserve — and who has or will plead guilty to, or has been found guilty of, a crime. The court is there only for sentencing and follow-up. It takes a more holistic and restorative approach to justice, one that respects and values Aboriginal culture and supports Aboriginal communities. (Editor’s note: FNC may also hear cases related to child protection in some circumstances.)

This means the judge, Crown counsel, community members, and family work with the individual and the lawyer to find a healing plan — a plan to address the root causes of the crime and help the accused, the community, and the victim move on. Succeeding as a result of a healing plan is not a sure thing, however. You have to show real commitment to improving yourself and taking part in the program to take advantage of FNC.

For example, one of the cases I saw was a young man who had pleaded guilty to assaulting his step-father. He explained that his step-father had been abusive to him and his mother in the past. One night, after an argument, he assaulted his step-father. As he explained what had happened, he displayed genuine regret over his actions. He then went on to talk about how he was attending anger management sessions.

After he spoke, his mother told everyone about his childhood and her relationship with the step-father. It was powerful to watch; at one point, she began to cry, which caused her son to cry. I don’t think there was a single person in the room who didn’t experience some chest-tightening.

After she had spoken, the rest of the participants were given a chance to speak. At every session of the court, a council of elders also attends to give support. A few of the elders stood up to offer information on different programs that they thought might help him deal with his issues.

This session wasn’t the end for him, however. The judge ordered that he come back in a month to report on his progress and finalize his healing plan. I’m pretty sure that I’ll be back too.

You can find more information on First Nations Court, as well as about Aboriginal legal issues and services, by visiting www.legalaid.bc.ca/aboriginal.

Nate Prosser is the online outreach coordinator at LSS.