BC Association of Clinical Counsellors

Legal Commentary *

THE NEW FAMILY LAW ACT

What clinical counsellors need to know about BC’s new legislation

before they provide counselling services to families undergoing separation or divorce.

Prepared by George K. Bryce, BCACC Legal Counsel

July 26, 2013

* This commentary is intended to help clinical counsellors gain a better understanding of legal issues that

are relevant to their practice. It is not meant to be a substitute for legal advice. If a counsellor has a particular concern about an issue that he or she is facing in practice, that counsellor should seek independent legal advice from a lawyer. Neither Mr. Bryce nor the BCACC can provide individual counsellors with legal advice.

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TABLE OF CONTENTS

Introduction ......................................................................................................................... 2

1) Changes in Terminology ................................................................................................ 3

1.1) Why new terminology? ............................................................................................3

1.2) Neutral terminology ..................................................................................................4

1.3) Parents as guardians .................................................................................................5

1.4) Parental responsibilities ............................................................................................6

1.5) Parenting time and contact .......................................................................................8

1.6) Parenting arrangements ............................................................................................8

1.7) Guardians consulting with each other ....................................................................10

1.8) Contact with a child ................................................................................................11

1.9) Translating old terms to new ones ..........................................................................12

1.10) Use of custody and access in the federal Divorce Act .........................................13

2) Agreements ................................................................................................................... 15

2.1) Agreements about guardianship .............................................................................15

2.2) Agreements about parenting arrangements ............................................................16

2.3) Agreements about parenting time ...........................................................................17

2.4) Agreements about contact with a child ..................................................................18

2.5) Relying on agreements ...........................................................................................20

3) Counsellors as Parenting Coordinators......................................................................... 21

3.1) Counsellors can be parenting coordinators .............................................................21

3.2) Practice standards ...................................................................................................22

3.3) What counsellors can do as parenting coordinators ...............................................22

3.4) Why was the BCACC listed as one of the regulators? ...........................................24

5) Counsellors Preparing Assessment Reports ................................................................. 26

5.1) Assessment reports .................................................................................................27

5.2) Can counsellors prepare section 211 reports? ........................................................27

6) Other Noteworthy Provisions ....................................................................................... 29

Additional Readings.......................................................................................................... 30

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INTRODUCTION

On March 18, 2013, BC’s new Family Law Act1 (FLA) came into force. The new FLA

replaced the old Family Relations Act2 (FRA), which had not been substantially revised

in decades and was sadly out-of-date.

Several changes to family law resulting from the new FLA will be of interest to

counsellors. For example, changes have been made to the terminology used to describe

the legal status of parents who are undergoing a separation or divorce, in particular the

terms that define their responsibilities concerning any children of their relationship.

Other changes within the new FLA are likely to have an impact on clinical practice; such

as the role clinical counsellors can play as parenting coordinators. Counsellors who

provide assessment reports in a family law dispute should also be aware that section 211

has replaced section 15 from the repealed FRA and provides new directions on the

matters to be canvassed in those reports.

In this Commentary, I will discuss the new terminology that will impact on counselling

practice, and describe where clinical practice may need to change. Subsequent legal

commentaries will address in more detail other changes to counselling practice that will

flow from the new FLA. Counsellors are encouraged to keep an eye on the membership

side of the BCACC website for the following new or revised commentaries:

Legal Commentary on Consent to Counselling Therapy Services;

Legal Commentary on Counselling Expert Reports (second edition).

This Commentary will not discuss family violence or protection orders (these replace

“restraining orders” under the FRA, which remain effective under the FLA), nor will it

consider how the new Act addresses child support, spousal support or the division of

property, pensions and debt. Counsellors who require information on these issues, in

particular if any of these matters have an impact on the counselling services they are

providing to clients, should consult independent legal counsel.

Finally, I would like to thank respected family law lawyer, John-Paul E. Boyd,3 for his

helpful comments and suggestions on an earlier draft of this Commentary. Any errors or

omissions remain my responsibility.

1 SBC 2011, c.25. 2 RSBC 1996, c.128. 3 Mr. Boyd is an associate with the law firm Aaron Gordon Daykin Nordlinger LLP in Vancouver, BC.

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1) CHANGES IN TERMINOLOGY

The new FLA effectively requires those who use terms such as “parental rights,”

“custody” and “access” to adopt new terminology, because these old terms are no longer

used under the new Act. In particular, the Act places emphasis on the rights of children to

be properly cared for rather than on the legal entitlements of their parents. Counsellors

should no longer use the terms custody or access. Before discussing the new terminology,

it is useful to consider why the FRA was replaced and the old terms were changed.

1.1) Why new terminology?

The FLA has changed the terms used in family law disputes for two main reasons. First, a

great deal of negative connotations was attached to the old terms. For example, parents

who were granted by the courts “access” to but not “custody” of their children under the

old FRA, felt that they had lost much of their status as parents. The new FLA uses less

inflammatory and more appropriately descriptive and flexible terminology. The

government has described these changes as:

The change is more than just a wording substitution - it is a new way of looking at parenting after separation. The change encourages respect for each parent’s role - even where they have different roles and levels of responsibility.4

Second, Part 4 of the FLA creates a new model for making decisions concerning the care

of children and the time that can be spent with them. This model puts children at the

centre of the picture. The new FLA provides new guidance to help determine what is in

“the best interests of a child.” For example:

Subsection 37(1) makes it clear that, when making an agreement respecting

guardianship, parenting arrangements or contact with a child, the child’s parents

or guardians must consider the best interests of the child only. The same rule

applies to situations when the court is called upon to make an order.

Subsection 37(2) then lists a number of the child’s specific needs and

circumstances that must be considering in making a decision in the best interests

of a child.

Subsection 37(3) goes further and emphasizes that an agreement or court order is

presumed not to be in the best interests of a child “unless it protects, to the

greatest extent possible, the child's physical, psychological and emotional safety,

security and well-being.”

The question of family violence must also be taken into consideration when

considering what are the best interests of a child. Section 38 sets out a series of

4 JusticeBC “Parenting Apart” (undated).

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additional factors the court must consider if rendering an order that responds to

the existence of family violence that may affect a child.

Division 2 of Part 4 of the FLA provides a new approach for addressing parenting roles

and responsibilities after a couple has separated, and is the source of the new

terminology.5 Further details will be provided under each of the following headings.

1.2) Neutral terminology

The terms “husband” and “wife” used in the old FRA have been replaced with the gender

neutral term “spouse,” and similar changes have been made to a number of other BC

statutes. “Spouse” includes certain kinds of unmarried couples as well as married

couples.6 Further, the words “father” and “mother” have been changed to “parent”7 and

“guardian.”8

The change to gender neutral language within the new FLA provides a foundation for a

series of new terms that replace “custody” and “access” that were used under the now

repealed FRA.

5 It is worth noting that both married and unmarried couples that have lived together can employ the

provisions of the new FLA; the new Act does not discriminate between them. However, couples that have had a child together and have lived together for less than two years are not included in the property division rules of the FLA, but may now apply for and be entitled to receive spousal support. Most other areas of BC law, such as wills and estates, income tax and spousal support, already treat unmarried spousal relationships the same as married relationships. 6 The term “spouse” is defined in section 3, as follows:

Spouses and relationships between spouses

3(1) A person is a spouse for the purposes of this Act if the person (a) is married to another person, or

(b) has lived with another person in a marriage-like relationship, and

(i) has done so for a continuous period of at least 2 years, or

(ii) except in Parts 5 [Property Division] and 6 [Pension Division], has a child with the other person.

(2) A spouse includes a former spouse.

(3) A relationship between spouses begins on the earlier of the following: (a) the date on which they began to live together in a marriage-like relationship;

(b) the date of their marriage.

(4) For the purposes of this Act,

(a) spouses may be separated despite continuing to live in the same residence, and (b) the court may consider, as evidence of separation,

(i) communication, by one spouse to the other spouse, of an intention to

separate permanently, and (ii) an action, taken by a spouse, that demonstrates the spouse's intention to

separate permanently. 7 The term “parent” is determined by way of a series of provisions set out in Part 3 – Parentage. 8 The term “guardian” is defined in section 1 as meaning a guardian under section 39 of the FLA [parents

are generally guardians], discussed next, as well as Division 3 [Guardianship] of Part 4 – Care of and Time with Children.

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1.3) Parents as guardians

Subsection 39(1) of the FLA states that the parents of a child are presumed to be the

child’s guardians “while a child’s parents are living together and after the child’s parents

separate.” Thus, there is an assumption that cohabitating parents are the guardians of a

child and will remain the child’s guardians if they separate, but this assumption can be

changed or modified depending on the family’s circumstances. In other words, joint

guardianship for a child’s parents is the default legal position, unless it is otherwise

changed.

For example, section 39(2) of the FLA allows an agreement9 or court order to provide

that one parent is no longer a child’s guardian. Further, section 39(3) states that a “parent

who has never resided with his or her child is not the child’s guardian,” but goes on to list

some limited exceptions to this rule, such as if the non-resident parent regularly cared for

the child or if the person is a parent under an assisted reproduction agreement. Finally,

section 39(4) addresses new relationships and provides that, if a child’s guardian

becomes a spouse in a new relationship, the new partner does not automatically “become

a guardian of that child by reason only of the marriage or marriage-like relationship.”

Section 39 of the FLA establishes, as a starting position, that parents who live (or have

lived) with their children are their legal guardians, both during their relationship and after

their separation. Thus, a parent remains a guardian until such time as an agreement or

court order directs otherwise. This is different from the general rule under the former

FRA, which stated that when parents separate, the parent with whom the child then

resided would have sole custody and guardianship of the child, absent an order or

agreement to the contrary.

Further, under the terms of an agreement or court order, a parent can be added or

removed as a child’s guardian. However, someone who is not parent can only become a

guardian of a child by way of a court order. A non-parent cannot become a guardian by

way of an agreement.10

In summary, there is no difference in status between the parent the child lives with and

the parent the child no longer lives with, at least so long as both parents are guardians. As

noted above, a parent can be removed as a guardian by agreement or court order.

9 While the FLA does not define “agreement,” it does encourage parents to establish defined parenting

arrangements in writing to allocate, if they so choose, the parenting responsibilities and parenting time as may be appropriate for their child. For details see the next chapter on Arrangements and Agreements. 10 Under a parent’s Last Will and Testament or by a signed Form 2 under the FLA Regulations, a non-

parent can be appointed as the guardian of the child to act during the child’s minority, without the need for a court order.

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There are different legal consequences for people who are guardians versus those who are

not. Under the Act, the terms parent and guardian are not synonymous; it is a parent’s

status as a guardian that is important and leads to that parent’s subsequent legal

responsibilities.11 Herein I will use the term “guardian” (or “guardians”) when discussing

the application of Part 4 of the FLA, rather than “parent” (or “parents”), unless the Act

itself refers to or uses the word parent. From time-to-time I may refer to a “guardian

parent” or a “non-guardian parent” where such a distinction is necessary.

As will be discussed next, a parent’s responsibility toward a child does not necessarily

change simply because the parents have separated.

1.4) Parental responsibilities

While the new FLA continues the term “guardianship” that was used in the old FRA, the

meaning of guardianship is much different under the new Act and focuses on the interests

of children rather than the rights of parents.12 The new Act no longer uses divisive

language such as custody and access that was part of the old Act, and a person no longer

has “sole guardianship” of a child, the person is either a guardian or not.

The rights of a guardian to make decisions concerning a child are now defined under the

new FLA through the distribution of “parental responsibilities.” More importantly,

parental responsibilities can be distributed in a more nuanced way so as to ensure the

roles and responsibilities for each parent as may be appropriate for any particular child.

With clarity as to who is or is not a guardian, section 40(1) goes on to state “only a

guardian may have parental responsibilities and parenting time with respect to a child.” I

will discuss other aspects of section 40 in more detail below. For now, it is useful to

focus on what constitutes “parental responsibilities” as this is a significant, new term in

BC family law.

Section 1 of the FLA defines parental responsibilities as meaning “one or more of the

parental responsibilities listed in section 41.” In turn, section 41 lists the following as the

parental responsibilities that may concern a child:

11 It is also important to remember that the term parent can mean more than a biological parent (the scope

of that term is defined in Part 3 “Parentage”) and may include the donors of reproductive material and surrogate mothers. 12 Under the FRA, a guardian was the guardian of the estate of a child and a guardian of the person of the

child. Under the new FLA, guardians are guardians of the person of the child and do not automatically act as trustee of the child’s property except for property worth less than $10,000. (For more valuable property, the court may appoint a property trustee, who may be a guardian.) Guardianship of the person of the child generally is defined through a distribution of parenting responsibilities as per section 41; see below. And the limited authority to act as the personal guardian of a child is addressed separately in section 51 of the Infants Act in cases where a child (under the age of 19) has no legal guardian.

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(a) making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child; (b) making decisions respecting where the child will reside; (c) making decisions respecting with whom the child will live and associate; (d) making decisions respecting the child's education and participation in extracurricular activities, including the nature, extent and location; (e) making decisions respecting the child's cultural, linguistic, religious and spiritual upbringing and heritage, including, if the child is an aboriginal child, the child's aboriginal identity; (f) subject to section 17 of the Infants Act, giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the child; (g) applying for a passport, licence, permit, benefit, privilege or other thing for the child; (h) giving, refusing or withdrawing consent for the child, if consent is required; (i) receiving and responding to any notice that a parent or guardian is entitled or required by law to receive; (j) requesting and receiving from third parties health, education or other information respecting the child; (k) subject to any applicable provincial legislation,

(i) starting, defending, compromising or settling any proceeding relating to the child, and (ii) identifying, advancing and protecting the child's legal and financial interests;

(l) exercising any other responsibilities reasonably necessary to nurture the child's development.

As will be discussed in more detail below, the parental responsibility of “giving, refusing

or withdrawing consent to medical, dental and other health-related treatments for the

child” set out in section 41(f) is likely the one that will be of greatest interest to clinical

counsellors.

Each of these parental responsibilities can be shared between guardians or allocated to

one guardian only, so that only that guardian may make decisions on issues covered by

the responsibility. A child’s guardians are presumed to share all parental responsibilities

in consultation with each other unless or until an agreement or court order says otherwise.

Subsection 43(1) states a fundamentally important new rule: “A child's guardian must

exercise his or her parental responsibilities in the best interests of the child.”

In section 43(2), the Act states that if a guardian is temporarily unable to exercise any of

the parental responsibilities described in sections 41(a), (c), (d), (f) to (j) or (l) (as listed

above), the child's guardian may then authorize in writing another person to temporarily

exercise, in the best interests of the child, one or more of those responsibilities on that

guardian's behalf while the guardian is unable to do so. This will most commonly be used

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where a child must travel away from home to go to school and it is necessary to authorize

someone to make decisions about these responsibilities on behalf of the child’s parents.

What might be “in the best interest of the child” will vary, but could include ensure the

child is provided with emergency medical or other care. (See the companion Legal

Commentary on Consent to Counselling Therapy Services for more details.)

These changes should be welcomed improvements to family law, because the old FRA

did not provide much guidance in relation to the range or nature of responsibilities that

guardians had toward children. Sections 41 and 43 fill those legal gaps.

1.5) Parenting time and contact

Parenting time is the time a guardian has with a child. Section 42 of the FLA states:

Parenting time 42(1) For the purposes of this Part, parenting time is the time that a child is with a guardian, as allocated under an agreement or order. (2) During parenting time, a guardian may exercise, subject to an agreement or order that provides otherwise, the parental responsibility of making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child.

Thus, the key policy set out in section 42 is that, when a guardian has parenting time with

a child, that guardian is then authorized to make day-to-day decisions affecting the child

and is responsible for the day-to-day care, control and supervision of the child, unless

these responsibilities have been assigned to another guardian by an agreement or court

order.

If a parent is not a guardian, because of an arrangement or a court order, or because that

parent did not reside with the other parent and the child, that non-guardian parent’s time

with the child is known as “contact with a child” and that non-guardian parent will not

have any parental responsibilities or be authorized to make day-to-day decisions when the

child is with him or her. This will be discussed in more detail below.

1.6) Parenting arrangements

Section 1 defines “parenting arrangements” to mean arrangements respecting the sharing between guardians of parental responsibilities and parenting time as set out in an agreement or court order.13 As noted above, section 40 then sets out the framework for establishing parenting arrangements:

13 “Parenting arrangements” does not include arrangements for contact.

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Parenting arrangements 40(1) Only a guardian may have parental responsibilities and parenting time with respect to a child. (2) Unless an agreement or order allocates parental responsibilities differently, each child's guardian may exercise all parental responsibilities with respect to the child in consultation with the child's other guardians, unless consultation would be unreasonable or inappropriate in the circumstances. (3) Parental responsibilities may be allocated under an agreement or order such that they may be exercised by

(a) one or more guardians only, or (b) each guardian acting separately or all guardians acting together.

(4) In the making of parenting arrangements, no particular arrangement is presumed to be in the best interests of the child and without limiting that, the following must not be presumed:

(a) that parental responsibilities should be allocated equally among guardians; (b) that parenting time should be shared equally among guardians; (c) that decisions among guardians should be made separately or together.

As noted above, section 40(1) states that only a guardian (most often a parent) is entitled

to parental responsibilities and parenting time in relation to a child.

Subsection 40(2) provides that, unless an agreement or court order allocates parental

responsibilities differently, “each child's guardian may exercise all parental

responsibilities with respect to the child in consultation with the child's other guardians,

unless consultation would be unreasonable or inappropriate in the circumstances.” (The

implications for counselling practice of the section 40(2) “duty to consult” will be

discussed under the next sub-heading.) In effect, this section creates a default position:

unless an agreement or court order provides otherwise, each guardian holds and can

exercise all parental responsibilities.14

Section 40(3) provides that parental responsibilities may be allocated by an agreement or

under court order so that one or both guardians may exercise these responsibilities.

Finally, section 40(4) says that, in making such parental arrangements, no particular

arrangement is to be presumed to be “in the best interests of the child.” This section also

states that it must not be presumed that (a) parental responsibilities must always be

allocated equally among guardians, (b) parenting time must always be shared equally

14 Under the old FRA, the parent who usually had care of the child was presumed to be the sole guardian of

the child’s person after separation, unless an agreement or order provided that the parents would be joint guardians. This presumption no longer applies under the new FLA.

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among guardians, or (c) decisions among guardians must always be by one guardian

alone or by the guardians together. In other words, there are to be no presumptions that

equal parenting time and an equal sharing of parental responsibilities are always best for

children. As the Ministry of Justice has noted:

The parenting arrangements must be made in the child’s best interests considering their particular circumstances. The act allows for a flexible and tailored approach to making parenting arrangements and allocating parental responsibilities.15

Collectively, section 40 sets out a series of important general principles concerning

parental responsibilities and parenting time with children that were not articulated in the

old FRA. Parents who are guardians are presumed to both hold all the parenting

responsibilities as listed in section 41 (see above), during their relationship and after their

separation. The guardian parents can agree to allocate parental responsibilities between

them so that they share some or all responsibilities or only one parent will have one or

more responsibilities. For example, one parent could hold most of the parenting

responsibilities and parenting time, with the other having limited right to participate in

making decisions about a limited number of responsibilities and having less time with the

child.

In summary, parenting arrangements prescribe how the guardians (most often the parents)

will share parenting time and parental responsibilities after separation. When a child’s

guardians are deciding how to share parental responsibilities and parenting time after

separation, the FLA says they must only consider the best interests of the child.

Collectively, these are amongst the most import reforms within the new Act.

1.7) Guardians consulting with each other

As noted above, section 40(2) provides that unless an agreement or court order allocates

parental responsibilities differently, “each child's guardian may exercise all parental

responsibilities with respect to the child in consultation with the child's other guardians,

unless consultation would be unreasonable or inappropriate in the circumstances.” There

are several points that flow from this requirement as it relates to section 41(f) of the FLA

that speaks to “giving, refusing or withdrawing consent to medical, dental and other

health-related treatments for the child.”

Section 40(2) of the FLA does not go further and require the counsellor to actively seek

out or obtain the approval of the guardians. The counsellor is entitled to rely on the

guardian who advises the counsellor that he or she has either been awarded sole parental

15 BC Ministry of Justice, Section 40 Parenting Arrangements.

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responsibilities to consent to health care services for the child, or has consulted with the

other parent as required by the Act. Section 40(2) simply requires the guardians with

parental responsibility for giving, refusing or withdrawing consent to consult with each

other.16

If parental responsibility for matters falling under section 41(f) of the FLA regarding

consenting to health care have been allocated only to one guardian,17 then the counsellor

only needs to obtain the consent of that guardian. In this situation, the guardian with

authority under section 41(f) is not required to consult with the child’s other guardians or

with a non-guardian parent.

A guardian’s duty to consult with the other guardian is subject to an exception in section

40(2) of the FLA: “unless consultation would be unreasonable or inappropriate in the

circumstances.” Again, it is not the counsellor’s responsibility to decide if it was

reasonable or appropriate for one guardian not to consult with the other. A guardian who

does not believe it was reasonable or appropriate for the other guardian not to consult can

take that issue to the court for adjudication.

The scope and limit of a guardians’ duty to consult is addressed in more detail in the

separate Legal Commentary on Consent to Counselling Therapy Services.

1.8) Contact with a child

Section 1 of the FLA defines contact with a child as being “contact between a child and a

person, other than the child’s guardian, the terms of which are set out in an agreement or

order.”

Division 5 of Part 4 of FLA goes on to set out the rules as they apply to how contact with

a child is to be determined. In general terms, a non-guardian parent may have contact

with a child. But others can also be granted contact through an agreement or by court

order, such as grandparents, stepparents or other persons who are important in the life of

that child.

16 For example, if a guardian parent advises the counsellor that she has the sole responsibility to give

consent to her child seeing the counsellor, but later the counsellor finds out this responsibility was in fact shared with another guardian parent, the counsellor would not be expected to have taken steps to confirm what that parent first said. In most situations, it would be reasonable for the counsellor to rely on the information that the consenting parent provided. 17 For example, this is likely to be the parent who remains as the child’s guardian in situations where the

other parent is no longer a guardian because of a history of conflict or violence.

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1.9) Translating old terms to new ones

With a few exceptions,18 the new FLA applies to any new case, to any case that was

started under the FRA and to any agreement or order that was made under the FRA.

Therefore, counsellors and their clients should use the new terminology now, even if an

old agreement or order continues to use the old terminology.

Section 251 of the FLA sets out the rules for interpreting agreements and court orders

made under the old FRA applying the new terminology:19

(a) a person who has joint or sole custody of a child under an old agreement or order

is a “guardian” under the FLA;

(b) a person who has joint or sole guardianship of a child under an old agreement or

order is also a “guardian” under the FLA;

(c) for parents and other persons who are guardians, the allocation of “parental

responsibilities” is the allocation of guardianship or decision-making

responsibilities as set out in the old agreement or order;

(d) for parents and other persons who are guardians, the allocation of “parenting

time” is the allocation of access as set out in the old agreement or order; and,

(e) a parent or another person who has access but neither custody nor guardianship

under an old agreement or order is not a guardian, and that person’s access is

“contact with a child” under the new Act.

There is not a direct concordance in terminology because the old terms do not directly

translate to the new ones. Even the meaning of “guardianship” is not the same under the

new FLA as it was under the old FRA. But, in general terms, if an original agreement or

court order under the FRA granted someone custody or guardianship of a child, then that

person will be a guardian of the child under the new FLA.20

Depending on the wording of an agreement or an order granted under the old FRA, a

parent may now hold some if not all of the parental responsibilities listed under the new

FLA.21 Therefore, it is possible that a parent who is a guardian under the new Act may

now have broader parental responsibilities, and a less restricted role in exercising parental

18 The exceptions will not arise in clinical practice, as they relate to proceedings started and agreements

made under the FRA concerning the division of pensions or property. 19 If there is a dispute as to how an agreement or court order under the old FRA should now be interpreted

or applied under the new FLA, the parties can apply to court to resolve that disagreement and the court would then apply the new terminology in resolving that dispute. 20 Section 251(1)(a) of the FLA states that if a prior agreement or order under the FRA provided one parent

with custody or guardianship of a child, then that parent will be considered a guardian of the child under the new FLA. 21 Section 251(1)(a) of the FLA goes on to indicate that a parent with custody or guardianship under the

FRA now has parental responsibilities and parenting time with respect to that child under the new Act.

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responsibilities than the he or should would have had in exercising “guardianship” under

the FRA. If a counsellor is not sure what parental responsibilities a particular agreement

or court order has allocated, the counsellor should obtain advice from either the

guardian’s lawyer or from independent legal counsel.

When discussing family law matters and the application of the new FLA with families

during counselling sessions, counsellors should now use the new terminology. In the

years to come, the old terms will eventually fall out of use.22

The companion Legal Commentary on Consent to Counselling Therapy Services will

provide more detail on a parent’s authority to give consent for counselling services to a

child in relation to the four different types of status that parents may hold that now flow

from the FLA, as well as the limits of a counsellor’s obligations to confirm parental status

to give such consent.

1.10) Use of custody and access in the federal Divorce Act

It is worth noting that terms like “custody” and “access” are still used within the federal

Divorce Act23 (DA). Generally speaking, under the DA:

“custody” refers to a parent’s right to have the child and direct the upbringing of

the child;

a parent with “sole custody” has the exclusive right to raise the child and make

decision on his or her behalf, and the child usually lives primarily with that

parent;

parents with “joint guardianship” both have the right to raise the child and make

decisions, however joint guardianship does not mean that the child lives equally

in both homes;

“access” means the time a child spends with the divorced parent the child does not

usually live with, and a parent with access has the right to be informed of and

receive information about the child’s education, health and welfare; and,

people other than spouses can apply under the DA for access to a child, such as

grandparents, aunts and uncles, and other relatives but this is unusual and these

people must obtain the court’s permission to make the application.

Because the FLA is likely to be the primary legislation that counsellors who are assisting

families in crisis need to be familiar with, it is not necessary for counsellors to be overly

concerned about the continued use of the old terms under the Divorce Act. But

22 Again, the only exception would be where the terms custody and access may continue to be used under

proceedings pursuant to the federal Divorce Act. 23 R.S.C. 1985, c 3 (2nd Supp).

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counsellors should be aware of the different legal context if these old terms continued to

be used by their married clients with claims under the DA.

For the foreseeable future, the FLA and DA will continue to use different terminology

when setting out their respective rules regarding the care and control of children.

However, the DA applies only to married couples; the FLA applies to married spouses,

unmarried spouses and other unmarried relationships. And only the FLA provides for

protection orders and the division of property, debt and pensions.

Counsellors who require further guidance on divorce proceedings or the impact the DA

may have on their practice are encouraged to consult with an independent legal advisor.

15

2) AGREEMENTS

With an appreciation for the new terminology, another major development of the FLA is

its focus on encouraging separating parents to establish their own arrangements and, in

particular, to document those arrangements in written, formal agreements. If such

arrangements are not established or any resulting agreements are not followed, the Act

provides mechanisms for the court to step in and issue orders.

This chapter discusses the sorts of agreements (or parts of agreements) that counsellors

are now likely to see in their clinical practice.24

2.1) Agreements about guardianship

Sections 39 and 50 of the FLA allows parents to make an agreement that states whether a

parent is or not a guardian of a child, however guardians may not make an agreement

appointing someone who is not a parent as a guardian of a child. A non-parent can

become a guardian only by way of court order under section 51 of the FLA, by

appointment in a guardian’s will,25 or by an order under the Adoption Act or the Child,

Family and Community Services Act.26

A guardianship agreement could be part of a general agreement or a separate agreement,

although removing a parent as a guardian can only be done after the parents have

separated.

In brief, subject to a formal agreement or court order, the FLA states that both parents of

a child are the guardians of that child, so long as they lived with that child. A person can

also be a guardian if he or she is a parent pursuant to an assisted reproduction agreement

or regularly cares for the child. An informal arrangement does not change the legal status

of a parent as the presumed guardian of the child. Such a change can only be done

through an agreement or by way of court order.27

The court may also make an order under section 51 appointing someone, including a

parent, as the guardian of a child or removing someone as the guardian of a child,

24 Court orders will not be discussed in this Commentary. In general terms, a court order may adopt all or

part of an agreement, or it may vary or revoke any term and condition in an agreement. If a counsellor needs assistance in interpreting a court order, the counsellor should consult with independent legal counsel. 25 A guardian can also appoint someone as a guardian in the event of his or her death or incapacity by filling out and signing Form 2 of the FLA Regulation. 26 Under section 53, a child’s guardian through his or her Last Will and Testament may appoint someone

else to be a guardian. This can also be done by Form 2, as prescribed in the accompanying FLA Regulation. These appointments are not supervised by the courts under the new FLA. 27 In addition to a testamentary guardian, the FLA also allows for and standby guardianship in case of

incapacity of a guardian. Counsellors who are presented with such situations should confirm the new guardian is acting under appropriate authority.

16

although this authority does not apply to guardianship or custody granted to a director

under the Adoption Act or the Child, Family and Community Services Act. The court’s

power to remove a guardian is likely to be exercised only as a last resort.

Subsection 51(4) requires that a child who is 12 years of age or older consent to an order

appointing someone as his or her guardian. Such consent is not required, however, where

the person seeking guardianship is that child’s parent or the court is otherwise satisfied

that it is in the best interests of the child to grant the appointment.

2.2) Agreements about parenting arrangements

Under section 44, guardians are encouraged to set out in a written agreement any

settlement they reach in relation to the allocation of parental responsibilities or parenting

time, or both:

Agreements respecting parenting arrangements 44(1) Two or more of a child's guardians may make an agreement respecting one or more of the following:

(a) the allocation of parental responsibilities; (b) parenting time; (c) the implementation of an agreement made under this section; (d) the means for resolving disputes respecting an agreement made under this section.

(2) An agreement respecting parenting arrangements is binding only if the agreement is made

(a) after separation, or (b) when the parties are about to separate, for the purpose of being effective on separation.

(3) A written agreement respecting parenting arrangements that is filed in the court is enforceable under this Act as if it were an order of the court. (4) On application by a party, the court must set aside or replace with an order made under this Division all or part of an agreement respecting parenting arrangements if satisfied that the agreement is not in the best interests of the child.

Subsection 44(3) clarifies that agreements concerning parenting arrangements are

enforceable in the courts as if they were court orders. This should encourage separating

parents to create their own binding agreements and to reach their own settlement to

define their parenting arrangements without resort to the courts.

If the separated parties cannot create an agreement under section 44, either guardian can

apply to the court under section 45 for an order that would then allocate parental

responsibilities or define parenting time, as well as other matters.

17

Section 48 speaks to maintaining informal parenting arrangements, where the separated

parents have not yet established a written parenting agreement, but have conducted

themselves under an informal arrangement “a period of time sufficient for those parenting

arrangements to have been established as a normal part of that child's routine,” a guardian

must not change those arrangements without consulting the child’s other guardians. This

provision thus creates a stopgap measure to address parenting arrangements until such

time as a written agreement has been signed or a court order can be obtained.

2.3) Agreements about parenting time

The time that a guardian spends with a child may be set out within either an agreement or

court order. Guardians may including terms about parenting time as part of a separation

agreement that deals with all of the issues arising from the breakdown of their

relationship, or in an agreement just about how parenting issues will be managed. If the

guardians cannot agree on parenting time, a guardian may apply under section 45 to the

court for an order to thus prescribe such time.

Under Division 5 of the FLA (Compliance Respecting Parenting Time or Contract with a

Child), section 61 provides a process for enforcing orders and agreements about

parenting time when the parenting time is improperly withheld. Under section 61(2) the

court may order one or more of the following remedies:28

(a) require the parties to participate in family dispute resolution; (b) require one or more parties or, without the consent of the child's guardian, the child, to attend counselling, specified services or programs; (c) specify a period of time during which the applicant may exercise compensatory parenting time or contact with the child; (d) require the guardian to reimburse the applicant for expenses reasonably and necessarily incurred by the applicant as a result of the denial, including travel expenses, lost wages and child care expenses; (e) require that the transfer of the child from one party to another be supervised by another person named in the order; (f) if the court is satisfied that the guardian may not comply with an order made under this section, order that guardian to

(i) give security in any form the court directs, or (ii) report to the court, or to a person named by the court, at the time and in the manner specified by the court;

(g) require the guardian to pay (i) an amount not exceeding $5 000 to or for the benefit of the applicant or a child whose interests were affected by the denial, or (ii) a fine not exceeding $5 000.

28 And section 61(3) provides that for court orders made under section 61(2) (a), (b) or (e), the court may

allocate among the parties, or require one party alone to pay, the fees relating to the family dispute resolution, counselling, service, program or transfer.

18

While the court can grant such remedial orders, section 62 describes a number of

circumstances when the denial of a guardian’s parenting time or contact with a child

would be acceptable:29

(a) the guardian reasonably believed the child might suffer family violence if the parenting time or contact with the child were exercised; (b) the guardian reasonably believed the applicant was impaired by drugs or alcohol at the time the parenting time or contact with the child was to be exercised; (c) the child was suffering from an illness when the parenting time or contact with the child was to be exercised and the guardian has a written statement, by a medical practitioner, indicating that it was not appropriate that the parenting time or contact with the child be exercised; (d) in the 12-month period before the denial, the applicant failed repeatedly and without reasonable notice or excuse to exercise parenting time or contact with the child; (e) the applicant

(i) informed the guardian, before the parenting time or contact with the child was to be exercised, that it was not going to be exercised, and (ii) did not subsequently give reasonable notice to the guardian that the applicant intended to exercise the parenting time or contact with the child after all;

(f) other circumstances the court considers to be sufficient justification for the denial.

Finally, if someone who is entitled to parenting time with a child under agreement or

court order fails repeatedly to exercise that entitlement, the court may enforce the

agreement or order under section 63 of the FLA by directing the parties to participate in

family dispute resolution, to attend counselling, specified services or programs, or

requiring that the transfer of the child from one party to another be supervised. The court

can also order reimbursement of expenses that one party may have incurred because of

the other party’s failure.

2.4) Agreements about contact with a child

Under section 58(1) of the FLA, the guardians of a child can enter into an agreement with

a parent who is not a guardian, or any other person who is not a guardian, that would

specify terms and form of that person’s contact with the child. Subsection 58(2) goes on

to provided that: “An agreement respecting contact with a child is binding only if the

agreement is made between all of a child's guardians having parental responsibility for

making decisions respecting with whom the child may associate.” Collectively, these

provisions encourage guardians and people who are not guardians to set out the terms and

conditions for non-guardians’ contact with a child.

29 Section 62(2) goes on to provide that if the court finds that parenting time was wrongfully denied, it may

then specifying a period of time during which the applicant may exercise compensatory parenting time with the child.

19

Where the parties are both parents, terms about contact may be included as part of a

separation agreement that deals with all of the issues arising from the breakdown of their

relationship, or in an agreement that speaks to only how contact will be managed. If the

parties include people who are not parents, terms about contact will usually be in an

agreement about just that issue.

As with agreements about parenting arrangements, an agreement for contact with a child

can be filed in court and enforced like a court order. Subsection 58(3) states: “A written

agreement respecting contact with a child that is filed in the court is enforceable under

this Act as if it were an order of the court.” But a court can also set aside, replace or vary

the terms of a contact with a child agreement if it determines under section 58(4) that the

agreement is not in the best interests of the child. And as with other decisions that affect

children, if an agreement for contact is not in the best interests of the child, it can be set

aside by court order.

If the guardians cannot agree among themselves about someone’s contact with a child, or

cannot reach an agreement with someone seeking contact, section 59(1) of the FLA

allows the court to make an order for contact with the child that, as with an agreement,

will specify the terms and form of contact that a non-guardian may have with the child.

For example, a non-guardian’s contact with a child might take the form of time with that

child at specified times or be restricted to telephone or written contact, and even time-

limited forms of either.

Subsection 59(2) makes it clear that any person who is not the child’s guardian can be

granted contact, and this includes grandparents and other persons. Court orders respecting

supervised contact can also be obtained under section 59(3).

Section 60 allows the court to “change, suspend or terminate an order respecting contact

with a child if satisfied that, since the making of the order, there has been a change in the

needs or circumstances of the child, including a change in the circumstances of another

person.” Thus, it is necessary for someone who wants to vary an order to prove a change

in circumstances before a contact with a child order may be issued or changed.

As noted above in relation to parenting time disputes, sections 61 and 63 provides the

process and criteria that allows a parent to apply to court to enforce an agreement or order

for contact where the contact has been wrongfully withheld or has not been exercised.

20

2.5) Relying on agreements

Counsellors may be presented with copies of the various agreements that can now be

established under the FLA. As discussed above, a written agreement for parenting

arrangements and, in some respects, contact can address one or more of the following

topics:

Guardianship, in particular whether a parent is or is not a guardian of a child;

Parental responsibilities, the allocation of such responsibilities between guardians

and the resolution of disputes about such responsibilities;

Parenting time and the allocation of parenting time between guardians;30

Contact with a child for someone who is not a guardian, including a parent who is

not a guardian.

Counsellors are not expected to be lawyers and to correctly interpret the terms and

conditions of an agreement that is presented to them. In most situations, counsellors are

entitled to rely on a parent’s description as to what a presented agreement authorizes that

parent to do or restricts what another parent may do. If the need arises, counsellors may

ask a parent to provide a lawyer’s description of the rights and responsibilities provided

in an agreement. This may be necessary if a counsellor learns that an agreement has been

varied by a subsequent court order.

If a counsellor has concerns about the bona fides of someone who is claiming to be the

parent (specifically, claiming to be a guardian of a child), the counsellor should consult

with a lawyer to ensure that such a person is in fact the child’s guardian. For example, the

counsellor might ask for a letter from that parent’s lawyer to confirm his or her legal

status under the FLA.

In a similar fashion, if a counsellor has concerns about the scope of parental

responsibilities, or the nature of parenting time or contact with a child as may be set out

in an agreement, the counsellor should consult with a lawyer before proceeding. Again,

this could be information that is provided by a parent’s lawyer.

30

It is equally critical to have agreements on parenting time whether such time is shared equally or not.

21

3) COUNSELLORS AS PARENTING COORDINATORS

Under Division 3 of the new FLA, parenting coordinators are given the authority to assist

the parties in a family law dispute by helping them resolve their disputes (“building

consensus”) and by making certain decisions (“making a determination”) as prescribed in

the regulations and Division 3. It is therefore useful to consider whether counsellors can

become parenting coordinators, and, if so, what functions they can and cannot perform in

this role under the Act.

3.1) Counsellors can be parenting coordinators

Clinical counsellors in good standing with the BCACC and who meet other prescribed

criteria are permitted to act as parenting coordinators pursuant to section 6(1) of the FLA

Regulation.31 This section of the Regulation goes on to require that, before acting as a

parenting coordinator, the counsellor must also:

meet the training requirements of, and be eligible for membership in, the Mediate

BC Family Roster or Family Mediation Canada;

have at least 10 years of experience in family-related practice;

complete at least 40 hours of training in parenting coordination through a training

provider that is recognized as providing high quality training in that field;32

complete at least 21 hours of family law training;33

complete at least 14 hours of family violence training, including training on

identifying, assessing and managing family violence and power dynamics in

relation to dispute resolution process design;34

maintain professional liability insurance that provides coverage as a parenting

coordinator.

In addition, the Regulation requires that, every calendar year, the counsellor must

complete at least 10 hours of continuing professional development applicable to family

31

BC Reg. 347/2012. 32 This prescribed training must include training in relation to the role and responsibilities of a parenting

coordinator, arbitration and decision making, communication skills development, the effects of separation and divorce on parents and children, high conflict family dynamics and child development and developmental needs. 33 This training must be provided by the Justice Institute of British Columbia, by the Continuing Legal

Education Society of British Columbia or by any other training provider that is recognized as providing high quality training in that field. 34 This training must be provided by the Justice Institute of British Columbia, by the Continuing Legal

Education Society of British Columbia or by any other training provider that is recognized as providing high quality training in that field.

22

dispute resolution practice, at least 7 hours of which must be in the form of a prescribed

course.35

Counsellors who want to become parenting coordinators will have until January 1, 2014

to meet these minimum training requirements.36

3.2) Practice standards

The Regulation also sets out two requirements in section 6(2) that describe what a

parenting coordinator must do before assisting the parties in a family law dispute:

enter into a written agreement with the parties to the family law dispute to provide

them with parenting coordination services;

provide to the parties written confirmation that the counsellor meets the

professional requirements set out in section 6(1) of the Regulation (as listed

above).

3.3) What counsellors can do as parenting coordinators

As noted above, counsellors acting as parenting coordinators under the FLA are

authorized to provide two types of services in relation to specific kinds of disputes: (a) to

help build consensus, and (b) to make determinations. In doing so, section 18(2) states

that: “In making a determination respecting parenting arrangements or contact with a

child, a parenting coordinator must consider the best interests of the child only….”

Although a determination may be made orally, which might be the case where a dispute

involves a significant degree of urgency, the determination must be put into writing as

soon as possible after it is made.37

Section 17(a) of the Act describes the consensus-building role of a parenting coordinator

as including:

creating guidelines respecting how a parenting agreement or court order will be

implemented;

creating guidelines respecting communication between the parties;

identifying, and creating strategies for resolving conflicts between the parties;

35 This continuing professional development course must be provided by the Justice Institute of British

Columbia, by the Continuing Legal Education Society of British Columbia or by any other training provider that is recognized as providing high quality training in that field. 36 As of the date of this Commentary, the BCACC is considering the types of programs and standards that

will be needed to support and assist counsellors who want to become parenting coordinators under the FLA. Details will be announced later. In the meantime, some guidance may be had from the websites of the BC Parenting Coordinators Roster Society and the Association of Family and Conciliation Courts. 37 Section 18(4) of the FLA states that: “A parenting coordinator may make an oral determination, but must

put the determination into writing and sign it as soon as practicable after the oral determination is made.”

23

providing information respecting resources available to the parties for the

purposes of improving communication or parenting skills.

Subsection 6(3) of the Regulation provides that, as parenting coordinators, counsellors

are permitted to make determinations concerning parenting arrangements and contact

with a child. Subsection 6(4) of the Regulation goes on to list the scope and limits of such

determinations:

(4) For the purposes of section (3), a parenting coordinator (a) may make determinations in respect of

(i) a child's daily routine, including a child's schedule in relation to parenting time or contact with the child, (ii) the education of a child, including in relation to the child's special needs, (iii) the participation of a child in extracurricular activities and special events, (iv) the temporary care of a child by a person other than

(A) the child's guardian, or (B) a person who has contact with the child under an agreement or order,

(v) the provision of routine medical, dental or other health care to a child, (vi) the discipline of a child, (vii) the transportation and exchange of a child for the purposes of exercising parenting time or contact with the child, (viii) parenting time or contact with a child during vacations and special occasions, and (ix) any other matters, other than matters referred to in paragraph (b), that are agreed on by the parties and the parenting coordinator, and

(b) must not make determinations in respect of (i) a change to the guardianship of a child, (ii) a change to the allocation of parental responsibilities, (iii) giving parenting time or contact with a child to a person who does not have parenting time or contact with the child, (iv) a substantial change to the parenting time or contact with a child, or (v) the relocation of a child.

Finally, if a counsellor was working as a parenting coordinator under an agreement or

court order made before the Act came into force, section 6(5) of the Regulation allows

the counsellor to continue to so act.

The determinations that counsellors can make as parenting coordinators under the FLA

can have a significant impact on the parties and their children, and should be made with

24

consideration and care. Subsection 18(4) of the Act states: “…a determination (a) is

binding on the parties, effective on the date the determination is made or on a later date

specified by the parenting coordinator, and (b) if filed in the court, is enforceable under

this Act as if it were an order of the court.” However, section 19(1) allows either party

affected by a determination to apply to the court to have a determination set aside if the

counsellor “(a) acted outside his or her authority, or (b) made an error of law or of mixed

law and fact.” If the counsellor so acted, the court can then set aside the determination

and make an order in substitution. But if the determination is not set aside, the court can

then issue a compliance order.

3.4) Why was the BCACC listed as one of the regulators?

As noted above, section 6(1)(a) of the Regulation lists seven organizations, one of which

someone must be a member in good standing if he or she wants to act as a parenting

coordinator under the FLA:

(i) the Law Society of British Columbia,

(ii) the College of Psychologists of British Columbia,

(iii) the British Columbia College of Social Workers,

(iv) the BC Association of Clinical Counsellors,

(v) Family Mediation Canada,

(vi) the Mediate BC Family Roster, and

(vii) the BC Parenting Coordinators Roster Society.

So long as a clinical counsellor meets additional training and experience specific to these

services as set out later in the Regulation (as described above), clinical counselling is thus

one of the professions authorized to act as parenting coordinators under the FLA.

The BC Ministry of Justice identified the BCACC as an appropriate regulatory body to be

listed in the Regulation because the Association had a proven track record of regulating

clinical counsellors in the public interest. Not only do many counsellors provide services

in support of separating or divorcing parents and their children, but, through its Bylaws,

the BCACC (a) sets minimum education and experience requirements for persons to

become clinical counsellors, (b) has a Code of Ethics and numerous Practice Standards its

members must follow, and (c) administers an investigation, mediation and discipline

program to deal with bona fide complaints filed against counsellors. These are the

minimum criteria for the BCACC to regulate clinical counsellors who work as parenting

coordinators under the FLA and were the same qualities the government was seeking for

any organization that was to be listed under section 6(1)(a) of the Regulation.

25

The first three regulatory bodies listed above were established pursuant to dedicated

professional legislation, being the Legal Professions Act,38 the Health Professions Act39

and the Social Workers Act,40 respectively. The next three are registered societies (one

registered nationally, the other two, including the BCACC, under BC’s Society Act41),

and all three regulate their members pursuant to bylaws or internal procedures.

The BC Parenting Coordinators Roster Society is the newest society and was established

by an interdisciplinary group of lawyers and mental health professionals, including

clinical counsellors. Like the other societies, the Roster Society maintains an internal

complaints and discipline process.

In every respect but one, the BCACC provides the same regulatory oversight of its

members as that provided by the Law Society of BC, the College of Psychologists of BC,

and the BC College of Social Workers under their respective legislation. The one feature

of the BCACC’s regulatory program that is different is that the Association would lose

jurisdiction over a member who has given up his or her membership in the face of a

complaint investigation or disciplinary hearing. (However, the two mediation societies

and the Roster Society also suffer from the same jurisdictional problem.) This

jurisdictional shortcoming would be met when clinical counsellors are eventually

regulated by a new College of Counselling Therapists to be established under the Health

Professions Act.

38 SBC 1998, c.9. 39 RSBC 1996, c.183. 40 SBC 2008, c.31. 41 RSBC 1996, c.433.

26

5) COUNSELLORS PREPARING ASSESSMENT REPORTS

Under section 15 of the former FRA, the courts could order an investigation “into a

family matter” and the production of a subsequent assessment report. While section 15 of

the FRA did not use these terms, the types of reports that counsellors were most often

directed to prepare were commonly referred to as “custody and access reports” or “views

of the child reports,” depending on their purpose. (Collectively, these were also

sometimes referred to as “section 15 reports.”)

Section 211 of the FLA provides for the ordering and filing of assessments, although

there have been some important changes to the earlier section 15 of the FRA wording.

For example, it is likely that reports created under section 211 of the FLA will now be

named differently, in particular because custody and access are terms that are no longer

used. This section states (emphasis added):

Orders respecting reports 211(1) A court may appoint a person to assess, for the purposes of a proceeding under Part 4 [Care of and Time with Children], one or more of the following:

(a) the needs of a child in relation to a family law dispute; (b) the views of a child in relation to a family law dispute; (c) the ability and willingness of a party to a family law dispute to satisfy the needs of a child.

(2) A person appointed under section (1) (a) must be a family justice counsellor, a social worker or another person approved by the court, and (b) unless each party consents, must not have had any previous connection with the parties.

(3) An application under this section may be made without notice to any other person. (4) A person who carries out an assessment under this section must

(a) prepare a report respecting the results of the assessment, (b) unless the court orders otherwise, give a copy of the report to each party, and (c) give a copy of the report to the court.

(5) The court may allocate among the parties, or require one party alone to pay, the fees relating to an assessment under this section.

For the purposes of this Commentary, I will briefly (a) describe the three types of

assessment reports that can be ordered under section 211(1), and (b) discuss the role that

counsellors can play in undertaking these assessments. More details on counsellors

preparing the different types of section 211 reports will be provided in a revised version

of the 2011 Legal Commentary on Clinical Counsellors’ Expert Reports.42 In the months

42 Bryce, G. Legal Commentary on Clinical Counsellors’ Expert Reports: What Counsellors Need to Know

About the Law Before They Prepare Custody and Access or Other Expert Reports; publication of the BCACC (Feb. 2011, revised in part June 2011); available at the membership side of the BCACC website.

27

to come, the 2011 Commentary will be updated to reflect the new terminology and what

counsellors should do if a court orders or a guardian asks them to prepare one or more of

such assessment reports pursuant to section 211 of the FLA.

5.1) Assessment reports

The reports that can be ordered under sections 211(1) would usually end by the author

making a recommendation about the sort of parenting arrangements and contact with the

child that the approved professional believes to be in the best interests of the child. The

court is not bound by such a recommendation, but so long as the assessment was done

properly, is not obviously biased and the report did not apply flawed information or miss

critical facts, the resulting recommendations are likely to be accepted by the court and

then form the basis for a subsequent court order.

A views of a child report that can also be ordered under section 211(1) may be limited to

a non-evaluative description a child’s views and wishes, or it may provide the author’s

analysis of the child’s views and wishes, the extent to which the child’s stated wishes

reflect the child’s actual wishes, and may make recommendations as to how the child’s

needs and wishes could be met.

I will not discuss further here the family law reports that can be ordered under section

211(1) of the FLA. Again, the 2011 legal commentary on expert reports will be updated

to address this new provision in more detail.

5.2) Can counsellors prepare section 211 reports?

The second issue that is useful to discuss, albeit only generally, is the meaning of the

phrase “another person approved by the court” which is used in section 211(2)(a). An

obvious question is: Can a clinical counsellor be a person approved by the court to

prepare a family law dispute report under section 211?

In brief, the answer is: Yes. It is likely the court would approve any mental health

professional with recognized expertise and experience in family assessments to then

prepare the reports listed in section 211(1). Such mental health professionals would likely

include clinical counsellors, marriage and family therapists, psychologists and

psychiatrists.

28

While social worker is the only regulated profession that is specifically listed in section

211(1), which was also the case under section 15 of the FRA, this should not be taken as

meaning that only social workers or that any social worker can undertake these

assessments. Like any other person who also could be approved by the court under

section 211(2), a social worker asked to prepare an assessment would first have to have

proven knowledge, skills and abilities in this specialized area of clinical practice.

In the 2011 legal commentary on expert reports, I noted that in the reported court cases

over a ten-year period where a section 15 of the FRA report was mentioned, clinical

counsellors prepared about one half of those reports, and a handful of counsellors and

psychologists prepared the majority of those reports. Therefore, members of the BCACC

will continue to produce the reports that can now be ordered pursuant to section 211 of

the FLA.

For more detailed information on assessment reports that counsellors may now be asked

to prepare under section 211 of the FLA, please refer to the Legal Commentary on

Counselling Expert Reports (second edition) that will be posted at the BCACC website in

the near future.

29

6) OTHER NOTEWORTHY PROVISIONS

While counsellors may want to read the entire FLA to gain a more complete picture of

this new legislation (see the link to the Act under Additional Readings in the next chapter

of this Commentary), some of the other major provisions of the FLA that may impact on

clinical practice are the following:

Division 5 of Part 4 (“Care of and Time with Children”) speaks to how

agreements or orders regarding parenting time and contact with a child can be

enforced. The old FRA did not specifically address these challenges, but under the

new FLA various new remedies are available, ranging from a court order for

mediation or counselling through to more punitive measures such as an order for

payment of financial compensation or even fines and imprisonment.

Division 6 of Part 4 addresses the challenges that can arise when a guardian needs

to relocate after an agreement or order for parenting arrangements or contact has

been established. While the old FRA did not address relocation and the case law

was not clear on what factors should be applied, the FLA creates a new

mechanism to help facilitate parental relocation by such mechanisms as

mandatory notice of a proposed move, defining what is and is not a “relocation,”

and giving direction to the court about the factors that should be taken into

consideration before making orders about a proposed move. These changes

should reduce costs and improve the certainty of outcomes in relation to these

disputes.

Division 7 of Part 4 continues, with some revisions, the FRA rules regarding how

orders regarding parenting arrangements and contact that were issued by other

jurisdictions can be applied and changed within BC.

Division 8 of Part 4 also continues but updates the old FRA rules regarding

international child abductions. These changes are in keeping with the Hague

Convention on the Civil Aspects of International Child Abduction.

Part 3 (“Parentage”) provides the rules for determining the parentage of a child,

except in cases of adoption, and allows people wishing to have a child to make

assisted reproduction agreements that specify whether a donor or surrogate

mother is or is not a parent of the child.

Part 9 (“Protection from Family Violence”) allows the court to make protection

orders to protect a person from family violence committed by a family member.

The definitions of “family violence” and “family member” are important and are

set out in section one.

Division 5 of Part 10 (“Court Processes”) allows the court to make “conduct

orders,” including an order that the parties and/or a child attend counselling.

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ADDITIONAL READINGS

There are several additional sources of information that counsellors may find useful, in

particular if they want to obtain information about other changes to family law that flow

from the new FLA that were not discussed in this Commentary.

The new Act and government information:

Family Law Act, SBC 2011, c.25; Queen’s Printer, Victoria, BC;

Family Law Legislation, website of BC Ministry of the Justice (undated);

The Family Law Act Explained, website of BC Ministry of Justice (undated).

Parenting After Separation: A Handbook for Parents, BC Ministry of Justice

(undated);

The following are recommended additional readings on the FLA (alphabetical order):

Custody and Access, Guardianship, Parenting Arrangements and Contact,

website of the Canadian Bar Association, BC Branch;

Family Law Act Transition Guide, Continuing Legal Education Society of BC

(July 2012);

Guide to the New BC Family Law Act, Legal Services Society of BC (October

2012);

JP Boyd on Family Law, website of Courthouse Libraries BC;

Living Together and Living Apart, Legal Services Society of BC (March 2013).