Family Law

Today I head to court for a parent for the 6th time to try and obtain some financial support from the other parent.  Family Maintenance Enforcement Program is available, but an order or agreement is required for FMEP has something to enforce.  The parent and I sought to obtain an Order to file with FMEP.  We went to court at least 4 times only to get told the court does not have time to hear us...4 times.  Given the parent's situation and other extenuating circumstances, I was doing it for free.  However, lot's of people are intimidated by the system or need legal representation because they have no idea how the system works.

If you think about how much lawyer's typically cost, anywhere from $175 - $400 an hour, going to court and not being heard on 4 occasions is very expensive.  In fact, in this case, it would not even be worth going to court because it would cost more but the parent would receive less in support.  The matter was a BC Provincial Court proceeding.  BC Supreme Court proceedings are no better.

In BC Supreme Court, if you bring on an application for temporary orders (arrangements pending a final resolution), you go on a list with other cases that are to be called that day.  Shorter time estimates typically go first, longer after.  Generally foreclosure applications (banks calling on house mortgages) go first.  The time estimates for applications that are 5 minutes usually so these go first.  But home owners looking to save their home show up to court and plead with the court.  So a 5 minute application turns into a 15 minute application. Then what you have are these applications taking a good chunk of the morning of the court's time. Than the rest is up for grabs which means you have a number of applications with different time estimates looking to be heard.  However, the court does not have enough time to hear them all.  So what ends up happening?  You may or may not be called on that day.  If your application is not called, you have to come back another day.  This is simply not affordable for people in family legal matters.  We need a court designated for "family" matters; OR applications by financial institutions (e.g. foreclosures) or that involve insurance companies (like ICBC claims, etc) should be called AFTER family matters with similar time estimates, not before.

This cased involved a number of assets including fishing licences and companies.  Two arguments were advanced:  1.  that property brought into the marriage ("excluded property") that depreciates should be considered in the division of property - an argument that failed.  2.  that excluded property transferred from the sole name of one spouse into the joint names of both constituted a "gift" (i.e. the principal of advancement) - this failed as well.

The BC Family Law Act provides an avenue for guardians (typically parents) to temporarily authorize a person to exercise most parental responsibilities listed in the Act; these "parental responsibilities" are really the legal authority to make decisions with respect to a child.

The ability to give authority may only be done by a "guardian" of the child and must be "in writing".  This concept is similar to that of granting a Power of Attorney.

Granting the temporary authority to a person is useful for guardians that are temporarily unable to exercise parental responsibilities.  This may arise in a number of circumstances including:  the guardian will be out of the country or in situations where the guardian is dealing with issues which is affecting their capacity to parent (which may avoid involvement of the Ministry of Families and Children Development).

At this time, there are no forms prescribed under the Family Law Act or its Regulations except that it be in writing.  I recommend use of an authorization granting the parental responsibilities which is signed by the guardian granting authorization and signed before a notary or lawyer (much like an affidavit).  The person receiving authorization should also sign a document accepting the authority to exercise parental responsibilities also sworn before a notary.  However, as far as the Family Law Act is concerned, it provides at a minimum that it is only required to be in writing.  Swearing before a notary or lawyer simply ensures to anyone else that it is formal and "official".

The section is produced below.  If you require further information, there are a number of resources at the Ministry of the Attorney General website.

The above is general information only.  Please contact a lawyer for legal advice for your particular situation.

To contact me:

Shawn Bobb 604.635.1333 or [email protected]

43  1) A child's guardian must exercise his or her parental responsibilities in the best interests of the child.

A BC Judge found that the dad had cut his ties to Canada and that there was evidence that he intended to reside in India.  The Judge also found that the dad put his interests over his obligations to his wife and children.  In the end, the Judge ordered that safeguards be imposed to ensure that the dad did not take the children to India.  The Judge also made child-related orders for both custody and access under the Divorce Act, and guardianship orders under the Family Law Act.  Thus, the Judge imposed orders relating to the children under the BC provincial statute (Family Law Act) and the Canada federal statute (the Divorce Act).

Mental health issues can be a legitimate concern in child "custody" cases; they can also be a basis to make false claims to gain an advantage over the other parent.

In this case, the parties were separated but continued to live together in the family residence.  Without notice to the mom, he obtained an order for the mom to leave the property and he obtained orders granting him care and authority over the children.  The mom was limited to specified time and potential supervision to their children.

The mom applied to set aside the order obtained without notice.  She was successful.  Although she suffered from a psychiatric condition, the Court found that it was speculation that her condition would cause emotional harm to the child and that to limit her time with the children would not be in their best interests.

Maximum contact with the parents was the overriding consideration.

A BC Supreme Court judge opined that separated parents in the referred case were using the court room to demonstrate each other's superiority over the other to (as we see too often) the detriment of the children.  The father alleged parental alienation and made a number of allegations against the mother with respect to their counselling.  Expert evidence was tendered into evidence.  Among the result: the mother was granted authority over the parental responsibilities for the children.

If you have an agreement or court order that was made under the old Family Relations Act that speaks to custody, access or guardianship, then under the Family Law Act enacted in March 2013 it has the following effect:

1.  if there is custody or guardianship of a child, the parent is a "guardian" of the child and has "parental responsibilities" and "parenting time" (no longer called "access") to the child;

2. if there is no order for a parent to have "guardianship" (or "custody") but the parent has "access", then under the new Act that parent has "contact".   

BC Supreme Court Judge - Decision on limitation period under the Family Law Act