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guardianship

Living Together or Living Apart now available as an eBook

Living Together or Living  ApartOur popular, award-winning booklet (received the 2013 Apex Grand Award) Living Together or Living Apart is now available as an eBook! You can download it to any eBook reader, including Kindle, Kobo, or your smart phone, iPad, or tablet. This means you don’t need an Internet connection to access this publication, and you don’t need to make printouts to share information. Cross-references are linked and terms in bold link to the Glossary, making it easy to navigate to information your client needs. For more information about eBooks, check out Lifehack’s Ten Advantages of E-book Readers.

Living Together or Living Apart explains the basics of family law in BC. It includes information about:

  • being married or in a marriage-like relationship (also called a common-law relationship),
  • what separation and divorce mean,
  • how to work out parenting arrangements, and
  • how to sort out money matters.

It also explains your legal options and where to get help, and includes a chapter for Aboriginal families.

 

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.

Hot off the press: Our series on the new Family Law Act is now in booklet form!

As soon as the new BC Family Law Act was announced last year, there were questions. What’s new in the act? When does it come into effect? If I’m in the middle of applying for a court order, does it change anything? We were asking these questions, and so were many of you.

That’s why, beginning last February, with JP Boyd’s help, we began running a series of ELAN entries about the new law. After 8 months and 17 different entries, we’ve finally wrapped up the series.

For your convenience, we’ve combined all the entries into a single booklet, the Guide to the New BC Family Law Act. The booklet is now available for download as a pdf and will be available in print from Crown Publications by the end of this month.

In the coming months, we’ll be following up with more information and training on the Family Law Act. Stay tuned!

The new Family Law Act: Giving notice before moving with children

On November 24, 2011, BC’s new Family Law Act was introduced. This act will have wide-reaching effects on family law in the province. Here is a summary of one of the important changes. For more information, see the act itself and our introduction to the act.

The new Family Law Act sets out what must happen when a guardian wants to move with a child. (The current Family Relations Act does not talk about moving at all.)

Under the new act, a guardian who wants to relocate (move) with a child must give 60 days’ notice to every other guardian or person who has contact with the child, unless the guardian has obtained a court order that says he or she does not have to give notice before moving. A relocation is any move that will have a “significant impact” on the child’s relationship with the other guardian or person with contact (usually the child’s other parent).

A guardian who does not approve of the child’s move must file an objection in court within 30 days of receiving the notice. The guardian can object on the basis that the move is not in the child’s best interests.

If the guardians can’t settle their disagreement about the move and the guardian who is not moving has filed an objection, they will have to settle it in court.

The guardian who wants to move must prove to the court that he or she is moving “in good faith.” To determine whether someone is moving in good faith, the court must consider:

  • the reasons for the move,
  • whether the move is likely to improve the child’s or the guardian’s quality of life,
  • whether the guardian gave notice of the plan to move, and
  • whether the guardian has suggested reasonable arrangements to protect the child’s relationship with the person who is not moving.

If the person who is not moving is also a guardian, and the guardians have equal, or almost equal, parenting time, then the guardian who wants to move must prove that the move is in the child’s best interests.

Our thanks to JP Boyd for providing the background for this series. You can find more information on the new Family Law Act, as well as other family law issues, at his BC Family Law Resource Blog.

The new Family Law Act: Children’s property

On November 24, 2011, BC’s new Family Law Act was introduced. This act will have wide-reaching effects on family law in the province. This entry is about children’s property. For more information, see the act itself and our introduction to the act.

Under the new Family Law Act, a child’s guardian is not automatically the guardian of the child’s property (including money). However, the new Family Law Act will allow guardians, including parents who are guardians, to manage children’s property if it is a certain type of property or below a certain value (the type of property and value have not yet been set).

If the child has property that is of a different type or worth more, a trustee will be appointed by either the court or a will or other document (called a trust instrument). The trustee is then responsible for managing the child’s property.

Any property the trustee manages must be handed over to the child when he or she turns 19, unless the trust instrument sets a different date, along with documents that account for how the property was managed. Sometimes the trustee might be responsible for the property for a longer — or shorter — length of time if that is specified in the trust instrument.

Our thanks to JP Boyd for providing the background for this series. You can find more information on the new Family Law Act, as well as other family law issues, at his BC Family Law Resource Blog.

The new Family Law Act: Care of and time with children: guardianship, parenting arrangements, and contact (Part 2)

Here is part 2 of our entry about guardianship. This one is about guardianship and contact with children. For more information, see the act itself and our introduction to the act.

The Family Law Act describes the time spent with children as parenting time and contact.

The time that a guardian spends with the child is called parenting time. During parenting time, the guardian is responsible for caring for the child and for day-to-day decision making. In some cases, there may be conditions on parenting time, such as having someone else supervise the guardian’s parenting time with the child.

In the Family Law Act, the term parenting arrangements means the arrangements between guardians for sharing parental responsibilities and parenting time. The arrangement can be recorded in either an agreement or a court order. Under the new Family Law Act, parenting time or parental responsibilities do not have to be equally shared between guardians.

Contact refers to the time that a person who is not a guardian spends with a child. A parent who is not the child’s guardian might have contact. People who are not guardians don’t have parental responsibilities, so they can’t make major decisions about the child’s life, even during contact. Contact can be agreed to by all guardians and the person with contact, or may be granted in court. In some cases, there may be conditions on contact, such as having someone else supervise visits with the child.

All decisions about parenting arrangements and contact in court orders or agreements must be based on the child’s best interests. This includes:

  • what the child wants and needs
  • who cared for the child in the past
  • whether there is a history of family violence
  • what the parents are capable of.

Our thanks to JP Boyd for providing the background for this series. You can find more information on the new Family Law Act, as well as other family law issues, at his BC Family Law Resource Blog.

The new Family Law Act: Care of and time with children: guardianship, parenting arrangements, and contact (Part 1)

On November 24, 2011, BC’s new Family Law Act was introduced. This act will have wide-reaching effects on family law in the province. The first part of this entry is about guardianship and parental responsibilities. For more information, see the act itself and our introduction to the act.

The new Family Law Act does not use the words custody or access. Instead, it uses:

  • guardianship
  • parental responsibilities
  • parenting time
  • parenting arrangements

Parental responsibilities, parental time, and parenting arrangements are all part of guardianship. Guardianship, as the new Family Law Act explains it, is quite different from what it was under the Family Relations Act.

Under the Family Law Act, a guardian is a person who is responsible for caring for and making decisions for a child. Parents who live together after their child’s birth are both the child’s guardians. If the parents separate, they are both still considered to be the child’s guardians, unless an agreement or court order removes one of them as a guardian.

If a parent never lived with the child, then that parent is not a guardian unless he or she:

  • regularly cares for the child, or
  • is appointed as a guardian by a court order or agreement with the child’s other guardian(s).

People other than parents can sometimes be guardians, but they must have a court order naming them as guardians.

A guardian may name someone to be a stand-by guardian just in case he or she becomes unable to look after the child, or to be a testamentary guardian, to become the child’s guardian if the guardian dies.

Guardians have the responsibility to make decisions about their child’s life. These are called parental responsibilities and include decisions about daily care, as well as larger ones about, for example:

  • health care
  • education
  • religious upbringing
  • extracurricular activities
  • where the child lives, etc.

Parental responsibilities can be shared between guardians or one or more parental responsibilities can be assigned to only one guardian. Guardians must consult each other when making decisions, unless doing so would be inappropriate or unreasonable.

To be continued…