F AMILY L AW AND C HILD C USTODY IN B RITISH C OLUMBIA Yuki Matsuno Mediator · Facilitator · Lawyer November 27, 2015

T OPICS Background to the New BC Family Law Act Child-centred approach New framework Best interests of the child Custody and access in Hague Convention cases

F AMILY L AW A CT - B ACKGROUND 2002 – Justice Review Task Force 2003 – Family Justice Reform Working Group 2005 – FJRWG Report: A New Justice System for Children and Families 2006 – Review of the Family Relations Act begins 2007 – 14 discussion papers released for public comment 2010 – White Paper on Family Relations Act Reform: Proposals for a New Family Law Act March 18, 2013: The Family Law Act, S.B.C. 2011, c. 25 came into force

A C HILD -C ENTRED APPROACH One of the main themes of the Family Law Act is to focus exclusively on the best interests of the child instead of the “rights” of the parents It is the child who has the right to parenting in the child’s best interests, not the parent who has a right to custody or access

N O M ORE C USTODY AND A CCESS CUSTODY ACCESS

N EW F RAMEWORK GUARDIAN Parenting arrangements Parental responsibilities Parenting time CONTACT

P ARENTS ARE GENERALLY GUARDIANS Family Law Act, Section 39 If the parent lived with the child before separation, the parent is a guardian of the child If the parent did not live with the child, the parent is not the child’s guardian unless The parent is a parent under the parentage rules (s. 30) The parent and all of the child’s guardians make an agreement providing the parent is a guardian The parent regularly cares for the child

P ARENTING A RRANGEMENTS Family Law Act, section 40 Only a guardian may exercise parental responsibilities and have parenting time Unless there is an order or an agreement to the contrary, each parent may exercise all parental responsibilities with respect to the child in consultation with the child’s other guardians Guardians may make agreements with respect to parental responsibilities and no particular arrangement is presumed to be in the best interests of the child, e.g. equal allocation of responsibilities/time

P ARENTAL RESPONSIBILITIES Family Law Act, section 41 Day-to-day decisions and care, control and supervision of child Decisions about Where and with whom the child will live with Education, extracurricular activities Cultural, linguistic, religious, spiritual upbringing, heritage Health, medical and dental treatments Etc. Parental responsibilities must be exercised in the best interests of the child (section 43)

P ARENTING T IME Family Law Act, section 42 Parenting time is the time that a child is with a guardian During parenting time, a guardian may exercise the parental responsibility of making day-to-day decisions affecting the child and having day-to- day care, control and supervision of the child

C ONTACT Family Law Act, section 58 “Contact with a child” means contact between a child and a person who is not a child’s guardian, the terms of which are in an order or an agreement E.g. grandparents, non-guardian parents All guardians with parental responsibility for deciding with whom the child associates must agree to the contact

B EST I NTERESTS OF THE C HILD “An agreement or order is not in the best in interests of a child unless it protects, to the greatest extent possible, the child’s physical, psychological and emotional safety, security and well-being” Family Law Act, s. 37

B EST I NTERESTS OF THE C HILD All of the child’s needs and circumstances must be considered, including… Health and emotional well being Views of the child unless inappropriate Nature and strength of relationships between child and significant persons History of the child’s care Need for stability given the child’s age and developmental stage Ability of parents to fulfill parental responsibilities

B EST I NTERESTS OF THE C HILD All of the child’s needs and circumstances must be considered, including… Impact of family violence on child’s safety, security and well being Whether actions of person responsible for family violence impacts the ability to fulfil parental responsibilities Appropriateness of arrangements that requires guardians to cooperate – risks to safety Civil or criminal proceedings relevant to child’s safety

H AGUE C ONVENTION C ASES Family Law Act, section 80 Hague Convention applies respecting a child who, immediately before a breach of custody or access rights, was habitually resident in a contracting state The definitions in the convention in relation to custody and access apply to this part of the Family Law Act for the purpose of applying the convention

Thank you!