Reforming family justice:
One judge for one family
MATTWATT / DREAMSTIME.COM
Lawyers and judges have
long been aware of very significant problems with our family
dispute resolution processes.
Ontario’s Chief Justice Warren
Winkler recently added his
voice to the calls for “dramatic
and pragmatic” reforms (see
The Lawyers Weekly, Oct. 8).
Understanding the difference
between family cases and other
types of litigation is essential, as
judges have a role in family cases
that differs from the traditional
judicial role. If this distinctive
role is understood, changes can
be made that will make the
family justice system more
effective in terms of outcomes
for kids and parents, and more
efficient in the use of public and
private resources.
In the short term, we need
more judicial case management
for family cases. In the longer
term, extension of unified family
courts throughout Canada is vital.
Both of these changes are reflected
in a slogan that has widespread
BC’s proposed
guardianship concept
NICHOLAS
BALA
&RACHEL
BIRNBAUM
acceptance in jurisdictions where
family justice is being reformed:
“One judge for one family.”
Why family disputes are different
Our family justice process is
grafted onto a court system that
historically dealt with very different types of cases. Most litigation is
retrospective, focused on ending a
relationship on just terms. Family
law cases are prospective—they
focus on what arrangements will
be best for the children and pro-
See Judge Page 10
SUSAN BOYD
RAISES RED FLAGS
British Columbia’s White Paper
on Family Relations Act Reform,
released in July, makes numerous
proposals to revamp the law on
child custody. The proposed
revision of the best interests of the
child test provides excellent direction, but the elimination of “
custody” and “access” and their
replacement by an enlarged concept of “guardianship” deserves
further consideration.
The white paper proposes that
the best interests of the child principle be made the “only” rather
than the “paramount” consideration. In determining a child’s best
interests, “the greatest possible
protection of the child’s physical,
psychological and emotional safety
and security must be ensured.” All
the child’s needs and circumstances
must be considered, including several listed factors, such as the
health and emotional well-being
and the views of the child.
New factors speak to the safety
and stability of the child—for
example, the history of care of the
child and the child’s need for stability. The impact of any family violence directed toward the child or
another family member on the
health, emotional well-being and
safety and security of the child must
also be considered. Family violence
would include psychological or
emotional abuse that constitutes a
pattern of coercive or controlling
behavior, in addition to physical or
sexual abuse. Acts of self-protection
are excluded from the definition if
the force does not exceed what is
reasonable in the circumstances.
The white paper also proposes
consideration of the impact of any
family violence on the ability of
the perpetrator to care for and
meet the needs of the child, as
well as on the appropriateness of
an arrangement that would
require the guardians to co-operate on issues affecting the child.
This latter point would include
consideration of whether requiring the guardians to co-operate
would increase the risk to the
safety and security of the child, or
other family members.
This wording is important,
given the move to make the best
interests of the child the only
consideration and given the current emphasis on joint custody,
shared parenting and co-operation. Any civil or criminal proceedings relevant to the safety or
well-being of the child would also
have to be considered.
So far, so good. The elaboration
of the best interests test is rooted in
a careful review of the research and
practice on custody decision-mak-ing. The white paper also proposes
that in addition to courts having to
consider only the best interests of
the child, so must parties to agreements on guardianship and the
allocation of parental responsibilities, parenting time or contact.
This is where the white paper
hits a snag. Despite its nuanced
approach to children’s best interests, it proposes that, on separation, parents would share guardianship unless an order or
agreement says otherwise. The
concepts of “custody” and “access”
would be absorbed into “
guardianship.” If separating parents
have lived together with the child,
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