2011 Legislative Session: Fourth Session, 39th Parliament
HANSARD

The following electronic version is for informational purposes only.

The printed version remains the official version.

official report of

Debates of the Legislative Assembly

(hansard)

Thursday, November 17, 2011

Morning Sitting

Volume 28, Number 2

[ Page 8845 ]

THURSDAY, NOVEMBER 17, 2011

The House met at 10:03 a.m.

[Mr. Speaker in the chair.]

Prayers.

Orders of the Day

Hon. M. Polak: I call second reading of the Family Law Act.

Second Reading of Bills

Bill 16 — FAMILY LAW ACT

Hon. S. Bond: I move that Bill 16, the Family Law Act, now be read a second time.

Mr. Speaker: Proceed.

Hon. S. Bond: I will. I am very delighted that today we'll start a process of, I think, important debate and discussion here in the Legislature. Monday, November 14, was a very important day for the Ministry of Attorney General, the legal community and, most importantly, for families across British Columbia, with the introduction of a new act that will modernize family law in our province.

I want to begin by offering my heartfelt thanks to the individuals in our ministry, the advisory committee members, the public consultation participants, stakeholders and advocates for their hard work over the past number of years to help us respond to the changing dynamics of British Columbian families and keep pace with reforms in other provinces and throughout the world.

[D. Black in the chair.]

I want to offer a special thanks and our appreciation to the individuals from the ministry, some of whom will join me during committee stage debate, for their tireless effort and their commitment in preparing this very significant piece of legislation. Without them, simply put, we would not be in the position we are in today.

The new Family Law Act has been 30 years in the making, and it will replace the Family Relations Act, which has not been substantially reviewed since 1978.

[1005]

This legislation is a chance to make a difference in the lives of British Columbians across our beautiful province. This is a chance to put children first and keep families safe. I'm very proud of the work that has gone into the legislation and truly feel that this is a signature piece of how this government is committed to putting families first.

This new act has been the subject of extensive consultation with British Columbians, the legal community, including recent consultation on a White Paper outlining the policy of a new act. I'm very pleased to hear the support this bill has had from lawyers, stakeholders, advocates and especially the child and youth representative.

I know that the opposition also wants to discuss — and, hopefully, will show their support for — this important bill. I also want to recognize the opposition critic for not only his interest in the subject, which I know is very personal in terms of family law, but also the input he has provided to our ministry in the creation and the completion of this bill.

So I recognize the opposition critic today for the work he has done to pursue modernizing the Family Law Act in family law practice in British Columbia, and I appreciate that.

Some of the key things that we will be doing in the bill include promoting agreements as a way of resolving family law disputes, including parenting arrangements and financial issues. The act will also clarify the criteria for making fair and sustainable agreements, adding new factors to the children's-best-interest test, including, very importantly, the history of family violence and consideration of civil or criminal proceedings relevant to the safety of children. The best interests of a child will be the only consideration when making decisions affecting children.

Changing the terminology we have historically used in resolving parenting disputes, this act eliminates existing win-lose terminology. That includes custody and access. And we will replace that with guardianship, parental responsibility and parenting time, creating a framework for courts to make decisions on whether a parent can or should relocate with a child. It also creates a new protection order aimed at protecting safety when there is a risk of violence.

To ensure that there is a consistent and effective approach in cases where safety is at risk, both the Family Relations Act and the Child, Family and Community Service Act restraining orders will be replaced by protection orders. Breaches of these orders will be an offence under the Criminal Code. There are also changes in the act that will further include provisions to allow guardians to manage children's property where the property value is small.

Major reforms are proposed to the division of family property. The property division regime will include a category of excluded property, such as pre-relationship property and inheritances that will generally not be divisible. Judicial discretion around dividing family property will be reduced so that the law will be more certain and separated spouses will be better able to predict court outcomes.

Statutory property division provisions will now include unmarried couples who qualify as spouses under
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the new act, meaning those who have lived together for two years in a marriage-like relationship. Similarly, pension division provisions will also be extended to common-law spouses. Many technical amendments are proposed that are in line with the B.C. Law Institute's recommendations on family pension division.

Minor amendments will be made to child support and spousal support provisions to modernize the language, reflect the case law and more closely align the spousal support provisions with the Divorce Act. The act will also establish a broader range of remedies and consequences for non-compliance with orders, including remedies for failure to comply with orders or agreements setting out time spent with a child, currently known as access enforcement.

There is always more that we can do to improve the justice system in British Columbia. We're always striving to better support British Columbians and to make the justice system more effective and responsive to the needs of individuals. As a northern MLA, I'm looking for ways to ensure that we have appropriate resources in place to serve those in smaller, in northern or in rural communities. I'm proud of the work that has gone into the legislation before us today and for the positive change that this will make in the lives of so many.

[1010]

I'm very much looking forward to the comments that we'll receive in second reading and also to the committee stage debate, which is important and critical. This is a very large bill, and I know there are, I'm sure, many comments and questions that will be important and will help us ensure that there is complete clarity about the bill as we move forward.

With that, I will take my seat and allow other members of the House to make comments respecting our bill.

L. Krog: I want to extend, first, my thanks to the minister for the introduction of this bill and her kind remarks in her opening. I want to echo her comments about the work of the ministry staff and the incredible consultative process that went into the creation of this bill. It has been no small undertaking.

This bill will not attract the kind of vigorous and sometimes vociferous debate that legislation often does when it's proposed in this chamber, but it is, I would suggest, as important and probably more important than the Wills, Estates and Succession Act, which was, again, a significant change to law that actually — and I don't mean this in a sarcastic way — impacts on British Columbians in a very real way in their daily lives.

Some of the legislation we pass in this place may affect you if you're working in the mining industry. It may touch you if you have a small business. But legislation that deals with the breakdown of relationships…. Based on statistical evidence, it means that it's going to impact on literally hundreds of thousands of British Columbians over the course of their lifetimes, often many times.

I would be remiss if I didn't indicate that in my practice it always amazes me how many people are willing to take a second or third run at a relationship. The old joke is that a second marriage is the triumph of hope over experience, but many seem to be prepared to do that. As you divide assets more and more, the complications that arise from that and who brought what and the age at which you enter into those relationships become incredibly complex.

I'm not going to spend as much time as I would like to this morning talking about this bill in second reading. The minister has wisely pointed out to the chamber this morning that much of this is in the detail, because there is so much detail. There are substantive changes in some respects and, basically, confirmation of what has existed before.

What we do know about family law in British Columbia is that, notwithstanding the best of intentions when the original Family Relations Act was brought in and some changes made again, we have attained a rather unpopular designation as one of the most litigious provinces in the country when it comes to family law litigation. British Columbia is a leader.

Now, I'm not going to lay blame on the courts or my fellow members of the bar or the legislation in particular or British Columbians in general, who seem to like litigation, but the reality is that many of our family law disputes, particularly over property division, have ended up in the court system.

The court system is there for that very purpose — to resolve those difficult issues that arise when relationships break down, whether they be under the benefit of marriage or common law or otherwise. But the cost and the damage that is done — the economic loss; the pain and suffering on an emotional level; and most importantly, I would suggest, the damage to children in relationships — are certainly not insignificant.

One of the things that I think…. I'm speaking, really, not to this House when I say this, this morning but to British Columbians in general who are interested in this bill. Indeed, my office has received a number of e-mails already — people questioning what the bill means, what impact it's going to have.

I want to speak to British Columbians generally and say that in a perfect world — where we didn't have this divided jurisdictional issue where the federal government is responsible for divorce law and the provincial governments are responsible for the division of property arising out of a marriage and now being extended, happily, to common-law relationships — there wouldn't be that split jurisdiction and litigants, if it becomes necessary, wouldn't be forced into Supreme Court, as they are now, because of those jurisdictional issues.

What it means is that even if you have a paltry amount of property to be divided and you cannot divide it for whatever reason, you cannot take that issue to our Provincial
[ Page 8847 ]
Court. That's not the fault of the government. That's not the fault of the lawyers in the province or the litigants. That is simply a constitutional reality.

[1015]

So what we don't have and what we can't have and what this bill can't do is create a unified family court that would allow one person, one judge, to deal with the property issues, the divorce and all the related issues that arise from marriage breakdown. But this bill goes a long way to giving guidance now in situations where it has become extremely problematic over the last few years.

A number of cases that went to the Supreme Court of Canada particularly involved women who worked long and hard on the family farm in Alberta and Saskatchewan, years and years, and literally left their marriages, sanctioned by the Supreme Court saying, at the end of the day: "Tough luck. You don't get anything. It was your husband's farm when it started out, and it's going to be your husband's farm. Yes, we'll give you some support."

Women in particular — who devoted their lives to building up family farms, to raising children, to fulfilling all the roles expected of them and their generation — suffered.

The Supreme Court of Canada, in the famous Pettkus and Becker case, dealt with the issue of common-law relationships and decided in that case — which went all the way to the Supreme Court of Canada, as I say — that after a 20-year-plus relationship, when you build something up from nothing…. In that case the plaintiff was entitled to half.

Now, the sad ending of that story, which many people don't know, is that through various legal means the husband, we'll call him, in that case defeated her claim in the sense that she was never able to actually collect, even though the Supreme Court of Canada had done it.

I want to pay honour to her today, in some respects, and her lawyers for getting it to the Supreme Court of Canada, for pointing out to Canadians that fairness should apply across the board, whether you're married or not married.

What this bill does is recognize the reality. Many of us have chosen the benefit of marriage. I think most Canadians, regardless of whether they want the benefit of marriage or a common-law relationship or a gay or lesbian relationship or whatever kind of relationship they want, expect that at the end of the day, if that relationship fails, there will be some fundamental fairness; that our law will recognize that in the complexity of human relationships, someone at the end of it should not suffer unduly; that someone should not be able to use the law as a shield so successfully that the efforts of one should be not recognized, should be denied, and that in fact you walk out of a relationship, after many years of all the intimate and unusual contributions we make to one another in a relationship, with nothing.

What — courageously, I think, and quite appropriately and, indeed, in keeping with what some British Columbians believe but didn't in fact exist — this bill is basically saying: "Look. If you're going to be in a common-law relationship" — and defining a common-law relationship is always a difficult issue — "then you are going to share in the financial benefit of that relationship."

This is a fairly significant change, obviously, because it's codifying the kinds of decisions that courts have been making, not with the same certainty that you have under the Family Relations Act by being married but avoiding, hopefully, continuing litigation down the road. The rules are clearer now.

It is my sincere hope, not that I wish ill on any members of the bar, that the family bar in this province will not see an increase in work, apart from the necessary case law to determine and interpret this legislation as it rolls out, but will in fact see a decrease in the kind of litigation that sees parties literally spend tens into hundreds of thousands of dollars litigating property issues, particularly in common-law relationships which are becoming more and more common.

Indeed, I think I'm correct when I say that in the province of Quebec more people, for instance, live together than are married. I might suggest to the legislature of Quebec that they might want to consider making some progressive changes as are being proposed here in British Columbia to catch up with the reality of modern family life.

If we can keep people out of court, if we can let them settle their affairs in a more friendly and amicable way, then this is all to the good. It means that people can get on with their lives. It will mean less emotional damage to children. It will mean less emotional damage to the parties.

Candidly, I'd be remiss if I didn't say there are not a lot of lawyers who, even when they win a case for their clients, take any great pleasure in seeing parties divided forever, who will never be on speaking terms again because of what's gone on in the courtroom because of the necessary cross-examination that takes place.

[1020]

I think any of us who practise law sometimes have been the subject of remarks made by litigants on the other side, if you've been "successful," that are not the kinds of thing you wish to go home and share with your children or your spouse, but that is the reality of the practice.

Far better a system that promotes, at the end of the day, the kind of camaraderie that hopefully and generally does, notwithstanding what people see in question period, exist in this chamber. You can walk out, shake hands, have dinner together and talk. That should exist not just between the lawyers in the courtroom. It should exist between the litigants themselves.

A system that promotes a peaceful, if you will, resolution and a resolution of family disputes that isn't costly
[ Page 8848 ]
is the right road to take, the right thing to do. Certainly, that's what this legislation does.

I just want to go through what I think is an important message to the public — the structure of the bill itself. Part 1 is "Interpretation," but part 2, "Resolution of Family Law Disputes" — bang, right there.

Most of us know that the way legislation is drafted in this place, you can find the meat in the first few sections, and then the rest tends to drift off. It's kind of like some of my stories, hon. Speaker. They're interesting for the first few minutes, and when you get towards the end, they're not quite as exciting.

In fact, the message being sent by the structure of this bill is, very simply: we want you to resolve family law disputes, and we want you to resolve them in a new way; we want lawyers in the province and we want litigants in the province, and those who wish to avoid litigation, to look at it in a new way.

I am a member of Her Majesty's Loyal Opposition, so I have to be somewhat critical and have to raise this as an issue, of course, because it can't be all peace and love in here, notwithstanding that we might wish to occupy the chamber for a while.

Interjections.

L. Krog: My friend from Nechako says…

An Hon. Member: Are you applying for a divorce?

L. Krog: …it's about family law.

Applying for divorce. I wish to assure the member that after 38 years my lovely wife and I have no intention of going through this, if not for love, for the logic of having seen the devastation that results from marriage breakdown.

But that aside, back on the track here. Family justice counsellors — very important, fine concept. I appreciate the fiscal circumstances that governments of every stripe face, but we have to be assured that there is money available to make it work.

One of the Attorney General's predecessors announced with great fanfare the creation of the justice access centre in Nanaimo. Then, not long after, its funding was cut, and we didn't get the results that we'd like to.

I am sincerely hopeful that we will train the people and have the people available and have parenting coordinators which are referred to in part 2 of the bill. Right off the bat, we've got division 1, "Resolution Out of Court Preferred"; division 2, "Family Justice Counsellors"; division 3, "Parenting Coordinators." That there will be the funding to ensure these people are available….

Some will cynically say that this is a design to get the matters entirely out of the court system, reduce the costs to the Attorney General's ministry, etc. That may be an aspect of that, and we can talk more about that during committee stage.

But if these people are in place to provide assistance to the majority of British Columbians because the statistics would indicate the majority of British Columbians simply cannot afford family law lawyers…. If these are available generally and people get into the way of thinking that if they go there first, as opposed to phoning a lawyer — and I don't mean that in a criticism of the bar by any stretch — just that change in thinking is a positive thing.

To come back to where I started when I talked about Rathwell v. Rathwell and other cases involving the breakdown of long-term relationships. When the original Family Relations Act was introduced in British Columbia, with great deference to my gender, there were an awful lot of men who found it very difficult to accept the concept that a pension that was accumulated during a long-term marriage — or any marriage, for that matter — should be shared.

But over time that legislation, just by its very existence, became a tool of public education. So as time went on — and I practised for many years — you didn't have to have that argument, particularly with males, about sharing family assets. It was driven home: "Oh yeah. I guess I have to share my pension." It may have been said with resignation and no great pleasure, but you didn't have to spend a long time with a client telling them: "Look, this is the law. This is the reality. Get over it, and let's get on with it."

[1025]

By the introduction of the original Family Relations Act, we moved society forward. We moved society forward in its thinking about what the entitlements are that arise out of a relationship, particularly, in that context, only with married couples. That was always a difficult concept to explain to many who accepted the regime of splitting, if you will. When you explained to them that in a common-law relationship the rights were not the same, that came as a surprise to many.

That is why, as I've already mentioned, this bill is so important. It is recognizing the reality of the numbers of relationships so that people in common-law relationships, after a period of two years, will enjoy the same property regime that married couples formerly enjoyed upon relationship or marriage breakdown.

My point is that this bill furthers that public understanding. It will promote a way of thinking, I would hope, that says: "Look. The first thing we do is we don't go off and find our lawyers, load up our guns and start firing. We go off to someone who can help us resolve this dispute." That is to say not to delay justice but to enable people to arrive at different means, earlier solutions rather than later solutions.

The other challenging thing that this bill addresses, of course, is parentage. In a world that is much changed in the last few decades, where many families are having children not directly as a result of their own efforts, if I
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can put it that way, but with assistance, whether through surrogates or otherwise, in vitro fertilization — all of the new technology, if you will — this bill addresses what is a very growing area of the law and a very difficult and complex area of the law.

Who is going to be responsible? Should a sperm donor have legal responsibility for child support? The average person would say no. This legislation deals with those very complex realities, and if we're ever going to have a series of interesting questions in this chamber, it will be about the complexities of the law related to that area.

We're also going to talk about care and time with children. We're not going to talk about custody and access.

Now, we face those issues with the Divorce Act, and this comes back to my point earlier about the problems with the Divorce Act and federal legislation and the new Family Law Act, presently the Family Relations Act in B.C. That is a change that, again, I believe this bill will promote — a change in the thinking.

You often have to sit down with a client and say: "Look. Don't think of this as custody and access. Examine the reality of the time you spend with your child or the time you can spend with your child in the modern world, where most parents are both working outside the home. What is it that is going to satisfy your needs and your responsibilities as a parent?" But most importantly, what is going to satisfy the needs of that child to have contact with both parents, assuming both parents are available to provide that kind of guidance and nurturing?

What this legislation does — when it talks about parenting arrangements, when it talks about guardianship, when it talks about parenting time — is…. The concept that somebody somehow has ownership and control and somebody else gets to knock on the door and come and visit or take you away for a little while, I would hope, will be confined, over time, to the ash heap of family law history. This bill takes us forward.

What this bill says is: "Look, think about the parenting time. Let's have a presumption of guardianship." Many couples, in fairness, are, as often is the case, already ahead of the legislation. Many couples are making arrangements about dividing the time with children equally without the necessity of litigation, without the benefit of lawyers, without the benefit of even justice access centres or whatever. So society is moving ahead.

Now, I'd be the first to admit that just sticking two people together doesn't make them equally qualified to be parents, and I'm not talking about a gender bias or basis here. I'm talking about the reality of parenting skills. Some have more patience. Some have more knowledge. Some have more ability. Some have more opportunity. Some couples arrange their affairs so that one will have more opportunity.

[1030]

I think someone said in my community some years ago, waggishly, that they were very, very lucky. They could afford the ultimate luxury. They could afford for one of them to stay home, whereas the reality in most parents' lives, with both parties working, is that accommodating your parenting responsibilities and, most importantly, the needs of your children is a juggling act that on the family farm a hundred years ago didn't exist. But it certainly does exist in the reality of modern life.

What the bill is trying to do is encourage people to take that seriously. It is talking about the best interests of the child being the only test. There are factors to be considered, and it's not as simple as that. I hope anyone listening doesn't get the impression that this is going to be just, you know, serving up a dish of ice cream — it will all be sweet, and you'll all be happy at the end of it. It's still going to be complex.

The courts will have difficulty changing, if you will, and the case law will teach us something about the adequacy or the inadequacies of the legislation, as case law always does. But it is a recognition of the reality of modern parenting, and that is a step forward.

The other issue. There are some very specific pieces dealing with contact with a child, recognizing the world of the modern family and recognizing, candidly, ethnic communities, where a greater role is played in parenting by grandparents than has been the norm, I would suggest, in Canadian society for many decades. This bill recognizes the rights of those, if a relationship has broken down, to seek solace, if you will, and support from the courts in ensuring that those relationships continue.

I've jokingly always said that I was raised on Walton's Mountain. We lived next door to one set of grandparents — my maternal grandparents on one side — and across the road from them, my paternal grandparents. It couldn't have been more ideal. I think most of the members of the House would agree that their own personal circumstances were not so lucky, but I had that great benefit.

But when marriages break down — mercifully, my parents' didn't — sometimes those grandparents, whether they live close or far, or others — aunts and uncles who have a close relationship, cousins, whatever — perhaps lose contact or lose the ability to exercise the contact which the bill talks about.

What this bill recognizes is that those relationships are important, that if you really care about children, just because you don't get along with your spouse anymore doesn't mean that that grandchild doesn't want to get along with their grandparents or spend time with their grandparents or that aunt and uncle perhaps with whom the child has spent a significant portion of summer holidays or who has provided free child care from time to time.

Those relationships are important and need to be protected and preserved. Indeed, the parties who have been providing that nurturing and that care and love to a child deserve and should have the legal right to enforce
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that because it will be, and it obviously is, in the best interests of the child.

I've talked a great deal already about property division and, to some extent, pensions, and I think there's no sense repeating what I've had to say in those areas. It, I hope, will encourage people to spend less money in court and more money on their respective families, and I think that is going to be true.

There will certainly be court decisions that are going to have to deal with it. The exclusion of inheritances and gifts is very much a live issue. Most family law cases recognize the unique circumstances of particular cases, but the law presently says you can consider the extent to which property was acquired through inheritance or gift so that you may not bring the whole inheritance into the split when it comes to the family pot being divided at the end of a marriage. And I use "marriage" because that's the way the law applies now.

But what we are saying with this legislation is: "Look, that is going to be excluded." The courts are going to have to deal with that complexity, depending on how that money comes in to the family, how it's dealt with, how it's used. The previous test around a family purpose, used for a family purpose, is gone. Courts are going to have some difficulty, and lawyers are going to have some difficulty, just as parties may have some difficulty interpreting what it means.

[1035]

Another reform aspect of this legislation which cannot be discounted and which is important is that prior, courts had no jurisdiction to deal with family debt. Now, a court could wiggle around and try and play and look at somebody who was stuck with a family debt and inferentially consider it and all of those things. But from a commonsense perspective, a person involved in family breakdown says: "Look, I'm the only one who signed on this big truck loan. We wanted the truck to haul the camper, and now you're saying I'm stuck with all the debt? This just doesn't seem fair."

What this legislation is…. Look, we can determine family debt, and we can deal with it. The courts now have jurisdiction to do so. Again, that will provide for some complexities and, no doubt, decisions that will keep our Court of Appeal and Supreme Court busy, and maybe even the Supreme Court of Canada for a little while. But it is, again, an important recognition of the reality of what people are looking for from our legal system in family law, and that is, essentially, fairness.

That's the import of the existing act, but sometimes that fairness has had an extraordinary cost associated with it. Hopefully, this legislation, by dealing with the issue of debt, will remove some of that complexity and enable the courts to make decisions that will satisfy parties. The decisions that flow from the legislation will be such that people will feel they've received the guidance necessary and will spend less time arguing and litigating. They will simply say, "Look, this is what the law is. It seems pretty logical. This is fair. We can fit our assets into this regime. We can figure it out. We can divide them, and we can go our separate ways," as the case may be.

On the issue of children's property, which the Attorney General mentioned specifically, that, again, is a very important recognition of the reality of small amounts of property that have to be dealt with, in some cases, by the Public Guardian and Trustee — small trusts having to be set up — rising out of estates and things of that nature.

What this does is allow a regime which makes sense, which is common sense, and will hopefully be practical. So I think that's a very…. It's a modest change in the sense that it's not earth-shattering, and it's not going to apply to as many people, as many provisions of the act will, but it does provide a solution to situations which are common enough that the law needs to pay attention to it.

On spousal support we have to some extent incorporated all the provisions of the Divorce Act of Canada — the same kinds of considerations. I think that is all appropriate.

One of the things that I think needs to be noted is that when it comes to misconduct, section 166 says: "In making an order respecting spousal support, the court must not consider any misconduct of a spouse, except conduct that arbitrarily or unreasonably (a) causes, prolongs or aggravates the need for spousal support, or (b) affects the ability to provide spousal support." It provides a nice, clear definition around the issue of conduct, and I think that's important.

In terms of protection from family violence, this has been an ongoing issue for a long time. What the change proposed does is essentially to clarify and allow, if you will, the police to intervene in a more effective way once called upon to do so, which will, hopefully, lead to protection of persons who are being victimized by family violence.

The other thing that has been asked for, for a long time, and most often by males who, given our historical practice…. What males have asked for is some regime to enforce access. Now, I say males only because until recently, as time has shifted, historically women often received custody or sought custody and obtained it, whatever, and men were on the access end. We're moving away from that regime entirely, but where there is an order made for parenting time, the bill provides a regime for some enforcement.

That is important. As I said earlier, I think we have all come to agree and understand that as much time as is reasonably possible should be spent by each parent with the child, having regard to all of the grim circumstances of modern life and work and often jurisdiction and home, etc. But ensuring that there is a workable
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regime that says that you don't get to deny access or contact — or parenting time, properly speaking, using the language — is a good thing. It sends a signal: children are not to be used.

[1040]

That parenting time should not be abused. Children have to be number one in this. Children don't marry; they don't move into common-law relationships. They are born. They don't ask for their parents' relationships to break down. They don't ask to be the victims of a family dispute. They are in the middle. And ensuring that their best interests are paramount — that there's opportunity for each parent to spend as much time as is reasonably possible with them — is absolutely crucial.

What it means is that we will, hopefully, encourage a regime of parenting that is more responsible, that is more thoughtful and — obviously, it goes without saying — frankly, more mature. There is nothing sadder than dealing with parents who are frankly — and I don't use it too pejoratively — childlike themselves in terms of their maturity level when it comes to dealing with their own children and who are utterly insensitive to the needs of others, particularly their own children, when it comes to family breakdown.

Giving a tool, if you will, to, I will call it, an aggrieved parent, who is not getting the parenting time with the child that is appropriate and that either a court has already ordered or the parents themselves have wisely agreed to…. Giving that person an opportunity and a regime to enforce that is a very positive step.

We're not going to solve all the problems of relationships. I think all of us, getting to the stage of life that we have, with the exception of a couple members of this chamber who are still very young….

Interjection.

L. Krog: One member who's more confident of his youth than he should be, hon. Speaker, has perked up, I notice, this morning. I'm delighted he's listening to my dulcet tones.

You realize that life is complex, and if the law can make things simpler for people, as opposed to more complex, that is a good thing, and that is to be respected and acknowledged. And I would believe and hope and I think what this bill does is exactly that.

Now, I do wish to put the Attorney General on notice, however, notwithstanding what I think — and I say this in kindness and as a compliment to her — of the unreasonable burden placed on her by the Premier of the province in terms of all her many hats. But that's a question for another day. Notwithstanding that, I'm still going to have to ask a number of questions, because this is a significant change in the law.

I think this places…. It is indeed incumbent upon the opposition, notwithstanding whether we support this wholeheartedly or not, to use this chamber in the way it is to be used. That is to ensure that all the questions are asked; that British Columbians receive, as much as they can, the education, through the process, that they deserve about this incredible change in our law; that hopefully, there will be a better understanding; and, indeed, that it may lay the groundwork for necessary reform or change down the road.

Who knows? We may discover, notwithstanding the best efforts of the legislative drafters and all the consideration by the cabinet and the wonderful work of the public servants involved in this and of all of the participants in the process, that we've missed a few things and that we could do a better job.

So I encourage other members to comment about aspects of this bill. I want to thank the Attorney General for introducing it, too, and thank her again for her kind words this morning.

Hon. M. Polak: I want to begin, as I rise to speak in support of the Family Law Act, by thanking those who have put the work into this legislation.

It's not often that a piece of legislation is not only so comprehensive and so challenging in terms of the balance it strikes but is also one that has taken significant time around consultation, around research and, in the case of this bill, an unprecedented amount of interaction with the public — first through extensive research over the course of about five years and discussions with various stakeholder groups, those who would have been important to have input into this, and then with the release of a White Paper, draft legislation, in July of 2010, which also elicited many, many responses that those in the civil service working on the bill had to go through, analyze and then attempt to incorporate into their thinking as they drafted this legislation. So I want to begin by thanking them for that work.

[1045]

I also want to thank the minister, in particular, for putting this bill forward. It takes an awful lot of courage to address in legislation something so very personal as the families that we all hold near and dear.

We know that while our families elicit from us deep caring, deep love — they give us affirmation and support — when there are problems in families and emotions run high, that's when we find out that families and thinking about families and the way we deal with families in law can also elicit great negative responses and can have people feeling pretty passionate about their views with respect to the way that they see family in society.

So I commend the minister, the Attorney General, for bringing this forward, because I know it has been difficult to manage how one can, in policy, balance the very delicate interests of something so personal as family and yet something where government needs to provide guidance to the courts and guidance that will hopefully
[ Page 8852 ]
strike that balance between the parties who are experiencing a breakdown in their relationship and yet have government be out of the way far enough that we're not interfering, again, in something so deeply personal.

The family, of course, is the foundational structure of our entire society. It has changed the way it looks over the years, but nevertheless, all of us have something that we would hold on to and call our family. Some look very traditional and represent the way in which we have seen families for hundreds of years. Some look very different from what they would have looked in 1978, the point being that for all of us, a family is a wonderful thing when it's working together.

It is not necessarily such a wonderful thing when it begins to fall apart. The strong feelings that arise at that moment, unfortunately, can also mean there are casualties in a marriage breakdown that go far beyond the individual parties who were the origin of that relationship. Many occasions show us the need for thinking about children in the best way that we possibly can.

It is for that reason that I am so very pleased to see that one of the most significant changes this new Family Law Act makes is to turn the tables on how we look at children when a relationship is breaking down. Rather than looking at children as some kind of property to be divided, rather than looking at children as something to be owned and something to fight over, instead we now come to a place, in this act, where children are looked upon in the way in which we truly should as a society — as those who are vulnerable, as those who are deserving of our protection and our caring.

It's difficult to construct that in law, but I believe this Family Law Act goes a long way to doing that. First of all, of course, there's the change in language. We have heard from…. Well, if I think back, probably the first time I began thinking of it was when I was young and watching a movie called Kramer vs. Kramer. It's the iconic movie about the damage that parents can do when they're fighting over a child — a wonderful movie but really, when you think about what was at stake, also very gut-wrenching.

It's not nearly as gut-wrenching as the real circumstance can be for a child and the family. Indeed, the damage can go beyond the parents and to the extended family — aunts, uncles, grandparents as well.

Instead of talking about custody and access and all that that brings to mind, we now in this act start to focus on the responsibility, the obligation, that arises as a result of being a parent. It's amazing to me, really, that we haven't cottoned on to that long ago.

[1050]

I suppose that from time to time there are those who have tried very hard to push that in their own way. I know very many lawyers in my acquaintance, many who practise family law, and I know that many of them have advocated for years that we begin to take out the adversarial nature of the existing legislation. I'm very pleased that this new Family Law Act does that. It begins to talk about parenting responsibilities and parenting time. It lists out the kinds of obligations, the kinds of responsibilities that parents have when they're making arrangements that will see the best interests of their children represented as they go forward. That's some of the important guidance that will now be given to the courts as they deal with the unfortunate reality of family and relationship breakdown. It means that from now onward courts will be directed to consider primarily the best interests of the children.

By taking away that adversarial language, I think we come close in law to reflecting what families are originally intended to be. They are not bodies that exist because of a contractual relationship. In fact, it is government legislators who come in after the fact and begin to try to assist with guidance that they can give to the courts, but they are not what originate the family. The family is there, and we come in and try to provide guidance. This guidance to say that one must reflect most prominently on the best interests of the child when making these decisions is a fundamental shift and, I think, an all-important one if we are going to truly support families in our province.

One of the things, as well, that becomes extremely important when determining how relationships will move forward after a breakup…. And let's remember. Even if the adult parties don't wish to speak to one another ever again, the relationship of parent and child is ongoing. It lasts. It remains in spite of the fact that a relationship or a family has broken down. Of course that means there are decisions that need to be made about how people will maintain meaningful relationships with their children. It would be wonderful to think that at a time when parents are dissolving their relationship that they would always fundamentally recognize the importance of the child's relationship with all parties. Madam Speaker, unfortunately, we know that's not the case.

So now, as a result of the changes in this Family Law Act and what it represents, those decisions around how the children will be given the opportunity to maintain meaningful relationships with their parents will go beyond a strict regulatory type of approach, where we saw children's time parceled and allocated and, again, dealt with much like one would property or assets in the breakdown of a relationship. Instead, there is true priority given to trying to stay out of the courts.

I don't think there's anyone in this chamber — certainly, probably no one listening as we debate this legislation — who would believe that it is ever in the best interests of the child to be in a courtroom or have their parents in a courtroom discussing who's going to get a piece of them this Thanksgiving or next Christmas. At the same time, as a government, we have to recognize that there are cases where the adults in the relationship are unable to come to an amicable agreement.
[ Page 8853 ]

So now there will be additional presumptions that start with assuming that both parents are going to continue in a meaningful relationship with the child, that start with the default position that you have two guardians — that you have parents who still love you — who still want that meaningful relationship. It gives parents in those circumstances a much greater opportunity to reach an amicable arrangement, to do that outside of a court situation.

It's worth noting that, of course, that's a benefit to society overall, when we have people sitting down through mediation, through counselling, and getting to the heart of issues that can damage not only their relationship with their children but some long-term relationships going forward and certainly have an impact on the kind of emotional well-being their child experiences long term. That has a benefit to all of society.

[1055]

The fact that families have changed dramatically in the way that they look in 2011 doesn't mean that their importance, their significance and their influence on society at large has changed. In fact, supporting parents in attempting to make amicable arrangements around the time they will spend with their children I believe has a spillover benefit to all of society as we again strengthen that unit of parent and child.

We also know that very often it isn't just about parents wanting to spend time with their children and not being able to. There are times when the use of the old term "access" indicated an opportunity, unfortunately, for some parents to play games with when access would be granted but also when access would be utilized.

We probably all have experiences, unfortunately, with friends, with relatives, who have been through that very traumatic circumstance, where perhaps they are waiting with a child in their home for the other parent to come and pick up the child for an opportunity to spend time with them, and the other parent doesn't show.

Now, there are very practical concerns there. A parent can end up losing time from work because the other parent was supposed to be looking after the child. But imagine the feelings, especially if repeated — bad enough once, but especially if repeated — of the child who has been thinking all night about the time when that parent would come to pick them up and take them home, about the time when that parent would walk through the door and they would give them a hug.

It's not often that we deal with legislation in this House that gets so very close to our hearts, but all of us can imagine that circumstance and imagine how awful it would be to be the parent there with the child, trying to explain to them why the other parent didn't want to come and get them that day.

We are not going to be able to fix all those problems from here in Victoria with an act. But what we can do is begin to bring a different way of thinking about family breakdown. We can bring a different philosophy to the courts as they address these kinds of negative circumstances that arise, and hopefully, we can also change some minds and hearts as we do that.

Hopefully, we can bring a focus that calls upon parents to shift the way in which they're thinking at the time when they're angry at their former partner, at the time when they want to take it out on someone else. Hopefully, this will go a ways to addressing that kind of thinking and encouraging something very different, something cooperative and something that, again, puts the best interests of the child first.

There are times, of course, when that's going to mean that action has to be taken, when a party who is not even coming close to that cooperative, collaborative kind of parenting situation needs to be addressed by a court. I believe that the kinds of tools and remedies that are in place in this new Family Law Act are going to provide significant support to the parent who is attempting to enforce the agreements that have been made.

It's unfortunate when that happens, but this act also recognizes that at times it will be necessary to enforce the kinds of orders and agreements that we've been speaking about thus far.

It focuses first on some preventative measures, means that can be taken, whether that's through makeup time, counselling, helping to resolve some of the underlying issues, recognizing that these things are usually far more complex than just the parenting time that is at stake and in the forefront, and at the same time recognizing that there will be times when it is necessary to take more punitive measures, such as fines and redress for the parent who incurred some expenses or some other negative consequences as a result of another parent not utilizing their parenting time.

Hopefully, the occasions when that has to occur will be lessened. Hopefully, parents will take the opportunities that are now afforded to them through this new Family Law Act to ensure that they don't have to be on the pointy end of that and, rather, can work out their difficulties, again, in the best interest of the child.

One of the issues that I have heard about frequently in my constituency office — more often than I actually care to remember, because it's not pleasant — is parental alienation.

[1100]

For those who don't know, parental alienation often occurs when there is an acrimonious dissolution of a relationship, there are children involved, and one or other of the parents takes it upon themselves to demonize the other parent to the child. Here again we see the example of the vulnerable, in this case the child, being literally taken advantage of as a tool to be used in a dispute between adults.

Now, while the act doesn't specifically reference parental alienation, I do believe that the various remedies
[ Page 8854 ]
and tools that we've discussed so far, as I've taken it with the Family Law Act, also help us to deal far better with the issues of parental alienation. I believe that as we shift focus to a more mediated type of approach to disputes, to the courts encouraging collaborative and cooperative arrangements that parents can make, this, again, will have a very positive impact on addressing an issue that tears up the hearts of very many parents and has some extremely long-term negative impacts on the children of relationships that break down.

No one would have imagined in 1978 that there would be an issue around who the parents of a child are. In 1978 I think I was in about grade 4, and the most that you really learned about families in school was through your textbook, your grade reader, that told you that families were made up of Dick and Jane and Spot. It really was never contemplated that we would be in a world as complex as we are today when it comes to families, but we are.

[L. Reid in the chair.]

More often than ever, we are seeing children as the result of the use of assisted reproductive technology. Now, people have a variety of views as to the advisability of utilizing assisted reproductive technology, but nevertheless, we have a responsibility to consider what impact that has with respect to a law from 1978 that doesn't recognize the existence of the use of those kinds of technologies and, therefore, the varied structures of families that that can potentially create.

Of course, we have been discussing this as a focus on the best interests of the child, so, naturally, as the Family Law Act approaches this dilemma, it again takes that as its central focus. We ask, then: what would happen if the current law had to try and deal with a situation where a sperm donor was claiming to be the legal parent? Well, in fact we have an example of that in some recent case law coming out of other provinces. We see that the courts, in the absence of guidance from the legislators, is really stuck with trying to be as wise as Solomon in the old story and determine who on earth is going to be the parent of this child.

Rather than leaving those kinds of decisions to a court of law, where they are attempting to use an outdated tool such as our previous Family Relations Act set out in 1978, instead, this Family Law Act chooses to delve very carefully into how one might determine the best interests of the child as it relates to identifying their parents. It allows for the opportunity for those who are in relationships where more than the usual biological two parents could be identified, recognizing that in many cases now in our society there are more than two individuals who would claim parentage for various reasons.

It sets out limitations that allow for families to agree as to a model of parenting that they wish to see. Perhaps, as happens in some cases today, there would be two people, two individuals, who for many reasons could not or did not wish to have their own biological child and have taken the opportunity that is afforded by modern technology and utilized the genetic material from one or more other individuals.

[1105]

This act now allows for an agreement to be made in order to identify who will be the parents of this child who has resulted from the use of this technology. But it's very specific in terms of saying that that agreement must be reached prior to conception.

There's a hugely important distinction being made here. It's recognizing that while adults may choose to configure their lives in many different ways, the child still has a right to understand their identity, and the child still has a right to know with certainty who is responsible to be their parent and who has the obligation to provide for that care and nurturing that a parent does.

So rather than leave it up to a court to try and wade through with a not-so-sufficient instrument in the old Family Relations Act from 1978, instead, this new act sets out the obligations that parents have to consider, what that relationship will be with perhaps a sperm donor or an egg donor ahead of time — make the appropriate arrangement. And those are the people who are then determined to be the parent of that child — a much better circumstance than leaving that open to the courts, providing the child with some security around their identity and the rights and responsibilities that go along with being a parent.

It also takes some of the confusion out for those who have taken the opportunity to utilize assisted reproductive technology, not realizing that they may be at risk under current law of someone coming forward with a lawsuit to claim parentage who was never intended to be the parent.

When we look to the varying types of relationships that exist, in 1978, although there were different forms of relationships occurring out in society, really, the traditional marriage relationship was the one of primary consideration, and that's reflected in the Family Relations Act from 1978.

One of the unfortunate realities of that, though, is that for those, mainly women, who were in common-law relationships and had made the assumption that being in that common-law relationship for two years entitled them to a certain amount of property division, a very unhappy surprise met them when that relationship would break down. I have, unfortunately, heard of many cases of men, I have to say, who have proudly told me that they are remaining in a common-law relationship in order to avoid the obligations that they might have in terms of property division if they were to be married.
[ Page 8855 ]

I am pleased to note that in this new Family Law Act we have recognized that there is a fundamental unfairness there. So common-law relationships will now be treated the same as married families. Indeed, I believe that that will not only be better for the individuals involved in that relationship directly but for their children as well. Again we see the best interests of the child coming forward, as we recognize that those who are the offspring of a common-law relationship are indeed entitled to the same kinds of expectations. Of course, the children of those relationships are affected by the property divisions of their parents as well.

So this is, again, a very important change, recognizing that common-law families in British Columbia are far more common. I'm told that common-law families in British Columbia are growing at a rate three times faster than the number of married couples. Who knows? For those who long for the nostalgic days when marriages, as they felt, were the traditional and best way to go, perhaps this will encourage more people to tie the knot, and perhaps the jewelry stores will be doing better business in engagement rings. But certainly, there will no longer be the potential for financial advantage being taken through avoiding marriage.

We move on to something that is much more distressing to talk about. Of course, that's how the Family Law Act addresses family violence. I know that when I was the Minister of Children and Family Development, one of the most troubling cases that we dealt with was the case of young Christian Lee.

[1110]

Christian Lee was a young child, I believe six years old, just beginning school. It should have been the happiest time of his life and, indeed, his family's life. Unfortunately, there were issues of violence that were very prominent between mom and dad. It got to a point where dad had even attempted to murder the mother.

The mother had sought the usual restraining orders that we would expect someone in that position to seek. But as a result of a weakness in our statutes and a lack of guidance to the courts that was appropriate, instead of Christian Lee and his family being protected from their father, the courts placed the family in the untenable position of requiring a restraining order with respect to the husband and the wife, yet allowing visitation and access of the father with the child even when the mother was there to be present and the father was to pick up the child — absolutely untenable situation.

In part recognizing that horrific circumstance that resulted in the husband eventually murdering the entire family and killing himself, but also recognizing some long-standing challenges with addressing family violence, this new act creates a new type of protection order. We know from consultations with police forces around the province that they view this type of protection order as a much better tool for them to address the kind of circumstance that, unfortunately, we did not and were not able to address in the tragedy that was Christian Lee's death.

It helps to define family violence, and very importantly, it guides the courts to make family violence a consideration when they are making a decision about children and about guardianship and about parenting time. It also requires — and this is equally important — that those who are involved in dispute resolution, be they lawyers or be they mediators, are now required to screen for violence and ensure that the processes they are using are appropriate. In part, I see this as broadening the responsibility beyond simply the courts and the law and saying that to a certain extent we are all responsible for what happens in families.

Madam Speaker, we've unfortunately spent all this time talking about the ending of relationships, and it's a sad topic. I thought I would end by telling you a brief story about probably the best relationship I ever saw. It's that of my parents.

My mother was a paraplegic. My father met her on the ham radio. They had a two-year relationship on the radio and then met. Six months later they got married, much to the chagrin of both sides of their families who couldn't understand why these two people would want to be together.

Thirty years later my mother was dying of cancer. She was in the palliative care ward, and it was their anniversary. I had been the night shift with my mom. My dad came to the hospital that morning, and being my dad, he couldn't think to go and buy 30 red roses in one place. He'd gone to every little store all the way to the hospital and had little cellophane wrappings of two roses and one rose, and under his arm in a newspaper he had the crystal vase they were given when they got married. While she slept, he set up the vase. He unwrapped the roses, put them all in there, and he sat down like a little boy and couldn't wait till she woke up and saw them.

I wanted to finish with that because I think, although we have to deal with the unfortunate nature of the breakdown of families, in the end it's because we all believe that families and love and caring is really what are most important. Hopefully, this new act encourages families to think about that with respect to their children and to think about the importance of resolving their disputes in a way that doesn't do further damage but perhaps recalls the love that they, hopefully, had for one another early on in their time.

So I am glad to support this bill. I do believe it's in the best interests of the child. That, in turn, is in the best interest of the family and in the best interests of our province.

Deputy Speaker: Recognize the member for North Coast.
[ Page 8856 ]

C. Trevena: North Island, Madam Speaker.

Deputy Speaker: North Island.

C. Trevena: Thank you. I know I shouldn't correct the Speaker, but in this case I have to.

I thank the Speaker for giving me the opportunity to speak on Bill 16, the Family Law Act. I think the Minister of Aboriginal Relations gave us a very touching story to end her remarks, bringing it back down to what we are all hoping for, which is that families can work through whatever difficulties they're going through so that the strength of relationships can be maintained in whatever way.

[1115]

I'm hopeful, as this side of the House is, that this new act will help create that and build on those foundations. Yes, the ideal world is that a family can stay together and can raise their children together in whatever formation that family takes these days, but in many cases that isn't what happens. Relationships do break down, and the time and emotions that go into dealing with that breakdown are significant. It's significant for the families, and it's significant for our communities and our society as a whole. Hopefully, this bill will help to work through some of that stress, some of those problems, and take out the formalities, take the courts away from the system as much as possible. It's an important act for children and families.

What I'm also finding interesting is that we're talking about how it's putting the child first. It's also written in a way that is actually quite user-friendly. My colleague from Nanaimo talked about the structure of the act and the importance of the way it was structured, that it's come straight in after the definitions and straight in with the issues of resolution — out of court preferred — of how you go to resolve disputes and continues onward.

The language is actually quite accessible to families. But I think what was also very significant is that it does put the interests of the child central to any of the decisions that are being made. This is something that as the critic for Children and Family Development I hear so often and believe in so strongly. When you're making decisions where children are involved, the interests of that child, that young person, really have to be taken as central. This bill recognizes that, and I think it is something that has to be supported.

It's also very interesting. As I say, we on this side of the House are supporting the act. As mentioned by my colleague from Nanaimo, it's a very weighty bill. It's come quite late in this part of the session. Hopefully, we'll be able to continue into the spring with the debate on this — many, many sections and many questions that we will have on it. But it is also significant to note that it has been welcomed by people who are frequently quite critical of the government or holding the government to account — the Representative for Children and Youth, who at times has obviously been very supportive of measures and active on issues but has often been very critical.

The representative has come out in support of this piece of legislation, as has the Ending Violence Association, as have other organizations. So I think it really is something that we should be welcoming. We should be working very constructively where there are pieces that we have questions about. There are pieces where there may be gaps that we can work constructively with the government, as others have, to make sure it can be fulsome.

This act hasn't been changed. The Family Relations Act was brought in, in 1978, as has been noted by the Minister of Aboriginal Relations. A lot has changed since 1978. The structures of families and our perception of families have changed significantly since then. It's taken a while to get to this stage with the White Paper that was fully discussed in a very good way. I hope we do take the time to go through this thoroughly and look at all of the pieces there and the pieces that need to be, I think, tweaked. I'll get to those in a moment.

What is very central to this act…. It goes through very many different sections. It goes through issues of custody. It goes through parentage and how to determine parentage, which is very significant for many, many families. It goes through the care and time with children when couples do break up, what's in the best interest of the child, the guardianship, talking about issues of guardianship rather than custody, about contact.

[1120]

We're talking about how to divide property when a family breaks up, dividing pensions, dividing support for spouses and the children, and also the court process, if the court comes into it, and so on — as well as the significant issue of protection from family violence.

On the family violence note, I would like to talk about this for just a few moments. This is significant. It has been noted that there was the case on the lower Island, where Christian Lee and his mother and grandparents were killed by his father a few years ago. It was a horrible case. I think it shook everybody in the province. It shook people across the country — how this could have happened.

Lessons, luckily, were learned from that, and the results of those lessons are in this piece of legislation. It creates a protection order, which should help stop that occurrence happening again. It would be wonderful to say that it could stop family violence. Sadly, I can't see that we're ever going to completely stop it. But if we can make moves through our legislation in this House that will make it safer for women and their children…. I say women because it is most often women and their children who are victims of violence. If we can do anything in this House to make it safer for them, I think it is an
[ Page 8857 ]
important piece of legislation that we should be working on and should be supporting.

I'm very pleased to see that we are seeing, through this legislation, a change that will make it safer for women and their children, will make it safer for them to be living in their homes if there's been a threat of violence.

I do, however, raise a couple of concerns on this. There is the flip side in some of the sections on family violence. I'm looking forward, when we do get into the committee stage, to asking the Attorney General for a bit more specifics on this.

I've been talking to organizations. Looking at the best interests of the child…. It isn't explicitly saying — and maybe it will not need to be explicitly said, so I look forward to the rationale — that violence is never in the best interests of the child — whether there's any consideration of having that line to say that violence is never in the best interests of the child. There is an inference there, but in my reading of it and in the reading of others that I've consulted, that isn't there. This is something that I'll be raising in the committee stage, whether it's being — passing words and passing phrases — a little too critical. It is significant that we have this move on family violence.

The other issue that I think would help deal with family violence and deal with some of the particularly vulnerable sectors, some of the particularly vulnerable women, is the ability for translation services in those situations where there is violence in non-English-speaking communities. I think that would be very helpful.

Likewise, one of the things that was brought up in discussions about the White Paper…. West Coast LEAF brought this up in the discussions of the White Paper, and it doesn't seem to be in the bill. Again, I'll be asking the Attorney General a bit more about this when we get to that. It's the translation services generally.

To make sure this works and make sure we can keep the systems out of the court is to ensure that there are translation services. When we're talking about mediation and parenting guidance and any stage that we are dealing with to try and keep families together, or to do as conflict-free a breakup as possible, we do need to ensure that people get the fullest supports if English is not their first language — that we are seeing that there is the full support for translations so that they can get the complete understanding of what is happening and what is being described.

[1125]

The other issue where we are talking about women in relationships that are violent and are breaking up because of violence — or there are threats of violence — is the psychological threat that is often given to a woman that if she doesn't agree, she'll be deported or be sent home. Her security isn't safe.

Again, whether this is a piece of legislation that we could be looking at as giving women that sort of security, that sort of safety net, by ensuring that we're putting that language in — that that is threatening language, that is violent language, that is not acceptable when we are talking about trying to create safe situations…. Whether this is the legislation that that should be included in….

These are the areas I'm talking about. On a whole, this is a bill that we are very much in favour of and that I will be working on with the government. It's these sorts of areas where I'll be asking whether this is the appropriate place to have those sorts of issues taken up. We're looking at the safety and protection of women and children to ensure that families are kept safe under this act.

We are making sure that it is for everybody. It's great to have the extra strength of the protection order, but I think there are other areas where we can give stronger foundations so that more women can feel secure.

The other area I just wanted to comment on is that the Attorney General has been very honest and said that it's going to take about 12 to 18 months, once we've passed this legislation in this House. Hopefully, because it's a very lengthy piece of legislation, we won't be rushing through it. We will be taking the opportunity that we have with an early throne speech, so that we can take this through to the session in the spring and discuss this very fully, debate this very fully through committee stage as well as through debate.

So we're not going to see it for 12 to 18 months after it becomes law, which could be, as I say, in the spring. We're talking about taking this into 2013 for this to take effect.

This is a very substantial piece of legislation and makes substantial changes, and it will mean there will have to be…. People need to be trained. People need to understand what they're doing. There are going to be people taking on new roles. The mediation role will broaden. We're going to be seeing less use of the courts. We're going to be seeing parental guidance.

In the definitions there are a number of areas that, again, I'm going to look for a bit of clarification on, on just what they mean. But there are many, many roles. There are going to be many areas where people are going to be working.

I'm hoping, in this 12 to 18 months before it becoming law, not just that we are going to be setting up the system but that there will be substantial resources to make this act work. It's great to have something we can agree on that is a substantial piece of legislation, but unless we are willing to put those supports in place — the training, the education both for the families and for the people providing the services…. Unless we're willing to really commit to that, we're shortchanging ourselves and shortchanging every family in this province who may need the assistance and the guidance of this act.

The other issue I would like to raise when I'm talking about resources is that this is a best-case scenario. It's
[ Page 8858 ]
to keep families and keep children out of the court system. It is something that we really should applaud and encourage wherever possible. The separation, the dissolving of a family — keep it out of the courts wherever possible. Ensure that we have the supports there from mediators and from other options.

[1130]

That being said, there are times when inevitably, sadly, courts get involved. I have to raise the concerns from this side of the House that there are not the resources to help the people who need to go through the courts and navigate family courts. There is no legal aid in family cases. People find themselves financially…. Well, if they hire a lawyer, they almost bankrupt themselves, if they can afford a lawyer. Otherwise, they're trying to navigate the system themselves.

There are still going to be times when we do need the courts there, when families will need to go to court. I would hope that if the government is looking seriously at ensuring the best possible outcomes for families across the province when a family relationship does break up — when you are talking about the divisions of property and talking about guardianship for the children, when you're talking about the next steps — the families do get the financial support needed to navigate the court system.

So often we hear about those families who are trying to do it on their own. In the end it costs the courts much more because of the length of time it takes. It would be much more sensible to have a fully funded legal aid system that allows for legal aid for family law, allows the legal aid for women and for people who are trying to navigate the family court system. If the government would commit to this, I think it would show a real commitment to ensuring that we do get a family law system and a Family Law Act that is thorough and is strong.

That being said, this Family Law Act, I think, is very full. There are areas where, as I've noted, I will have questions.

I'm hoping that we will have adequate time to go through the various sections, to go through the questions, and that the government will listen to ideas where, maybe — I know that it's gone a long time in the making of this — we do need to make some changes, where we need to be able to strengthen it, whether it's to ensure that the resources are there — whether it's to ensure that all women are going to be protected through the language of this act; or whether, when we get to the unfortunate stage that families are facing the court system, they can get the legal aid to navigate that court system. I think that would be very helpful.

I think that we should take this rare occasion to applaud the government for making the very significant move of bringing forward this Family Law Act. I think — as I've mentioned at the beginning, and I will close on this — that very significant is the central role that has been given to the child when we are talking about the interests of the child — that those interests are put front and centre.

I hope that the government will continue being as open for input on this act as they have been on the White Paper and that we can continue to have a dialogue through the debates in this chamber and through the committee stage.

J. Thornthwaite: I am pleased to rise today to support this new Family Law Act. I want to reiterate that I am entirely in support of the fact that this law takes the best interests of the child as the only consideration when dealing with child matters.

This act will update and replace the Family Relations Act, which, believe it or not, is more than 30 years old. We all know that families have changed a lot in 30 years.

It responds to a lot of social and legal change that has occurred in federal law, in the family and attitudes — attitudes towards marriage, towards living together. No longer does the mom just stay at home and the dad goes to work and is the primary provider for the finances for the family.

[1135]

There certainly are families that are like that right now, and they're very, very fortunate. But the reality is that that's not the way it is right now. Leave It to Beaver is no longer here, so we have to update our family law accordingly.

I was also quite impressed when our Attorney General explained the consultation procedures that had occurred in order to get support for this bill. I understand that since 2006 the B.C. Ministry of Attorney General has been researching and consulting on how to modernize the bill, and 156 stakeholders were consulted from the legal community, community groups, citizen-focused groups, faith-based groups — 140 submissions. Then, in fact, there was a White Paper released last year that people could also respond to. So I'm quite satisfied that all the groups, stakeholders, are well represented in this act.

But I think one of the most important things that is of concern and to mention is that the language has changed. No longer are we dealing with the two terms that are very adversarial: custody and access. "I have custody. You have to apply for access." It's almost like an ownership thing. "I own the child. I determine when you are going to see that child." Now the terms are "guardianship" and "shared parenting."

There are parental responsibilities that are out there that come along with that shared parenting. Some of those are making decisions respecting where the child will reside; making decisions respecting the child's education; making decisions respecting the child's cultural, linguistic, religious and spiritual upbringing, including whether or not that child is an aboriginal child and the
[ Page 8859 ]
child's aboriginal identity; and then everything in between, including extracurricular activities. There are a lot of responsibilities of parenting that are included in this act, so being a parent makes you stand up and be a parent and have those responsibilities.

As I mentioned, it centres on the best interests of the child. The act expressively states that when making decisions involving the child, the best interests of the child should be the only consideration. And when determining the best interests of the child, factors that will be considered are "the impact of any family violence on the child's safety, security or well-being" — the child's views, unless it would be inappropriate.

I think that's quite significant, because a lot of times the child's views have not been considered. If you actually ask the child what they want, then maybe you might get a good answer. I think that this is an important step.

It emphasizes out-of-court dispute resolution. In many cases disputes are best resolved out of the courtroom. The financial costs, the emotional tolls associated with a mediated dispute resolution are almost always significantly less than going to court. It creates the tools to address family violence.

This act will increase the court's ability to deal with family violence by identifying the child's safety as an overarching objective in the child's best interest, considering the impact of family violence and other civil or criminal procedures relevant to the child's safety and well-being.

I was struck by the comments that were made by the Representative for Children and Youth, who has come out in support of this bill. She says:

"I think this can save lives, without a doubt. It could be meaningful not only in cases where there is the potential for lethal violence but in cases where there is ongoing conflict and violence."

Mary Ellen Turpel-Lafond, our provincial Representative for Children and Youth.

[1140]

She goes on to say:

"This much-needed reform addresses significant social safety net gaps by ensuring that the family law lens will be focused on the best interests and safety of children, including those not living with their birth families. I am pleased that government has worked closely with my office to address domestic violence concerns raised in my past reports.

"This bill marks a significant turning point for B.C. in addressing domestic violence by introducing an explicit definition and provisions that send a clear message about the importance of courts considering all factors that might affect a child's safety. It will also put in place a much stronger system for addressing the safety of women and children through protective orders, with criminal consequences for those who disregard them."

I was also taken by the support that we also received on this bill from Tracy Porteous, who is the executive director, Ending Violence Association of B.C. "I completely believe that this legislation has the potential to save lives," she says.

"The Ending Violence Association of B.C. applauds the Ministry of Attorney General for ensuring that domestic violence has been addressed in concrete ways in the newly updated Family Law Act. The act defines family violence in a way that it never has in the past, and this represents an important step forward. We believe such changes pertaining to the 'best interests of the child' test, for one, will promote better coordination of information and responses and increase the safety of women and their children in British Columbia."

The other fact of the act that I thought was very important is that it responds to the concerns about enforcing arrangements for time with the child. This new law will provide a range of remedies and tools for non-compliance with parenting-time arrangements and will ensure that parents receive and follow through on the parenting time that they are given. Again, the best interests of the child should be the only consideration.

I like what the member for Nanaimo said: "Let's talk about care and time with children versus ownership and control." You don't get to deny access to punish your ex-spouse. You don't get to bully your ex-spouse or emotionally abuse your child in order to make yourself feel good. Again, the best interests of the child are the only consideration when making child-related decisions.

Then lastly, I just wanted to mention a brief thing about assisted reproduction. Currently the way that the law is enacted is that if somebody does adopt a child, legally it is the birth parents that actually are classified as the parents of that child. Imagine the fear that a mother or a father who have adopted a child may feel about the surrogate or the birth mother coming and saying: "No, I want to have that child."

Now what this law provides is that if a donor intends to parent, there must be an agreement prior to conception. Before, that agreement is made. So you can't come back. If you're a surrogate or a birth parent, you can't come back one, two or three years later and say that you want that child. I can just imagine the fear that a lot of these current parents that have adopted a child are having — that in fact, that could happen.

In conclusion, I think that this law makes the law more relevant to the modern family. It takes full advantage of what has been learned about managing family conflict over the last 30 years, when parenting has changed, family law has changed and the attitudes towards families and the attitudes towards marriage and living together have changed.

Plus, there has been extensive consultation and broad community engagement in the development of the proposed act. Lastly, the most important thing is that the best interests of the child should always be taken into consideration when dealing with issues to do with the children.

Deputy Speaker: I thank the member and recognize the member for Powell River–Sunshine Coast. [Applause.]

N. Simons: It's not necessary, not necessary. Maybe afterwards, if you still feel like applauding, you can go ahead.
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It's my pleasure to rise and speak on Bill 16, the Family Law Act. I'd like to echo some words of my colleagues in standing in support of an act that puts the best interests of the child paramount. I might point out that the Child, Family and Community Service Act does the same thing.

[1145]

I'll have a lot of questions when we come to committee stage, specifically around the sections dealing with family violence. But why don't I start with some of the things that I believe to be a long time in coming? I applaud the government for taking steps towards remedying some situations in family law that have needed that remedy.

First, on the issue of custody, clearly, the best interests of the child should always be paramount, and I think that all practitioners in the area would likely have put that near the top anyway. I think it's important to note that best interests are perhaps subjective and require, in all cases, careful evaluation of facts. It is likely not to always be agreed to by all parties as to what the best interests of the child are. We're dealing with complex, interpersonal and in some cases dynamics within families that are complicated, and simply referring to best interests, you might be able to get a different perspective from every family member.

Having been involved and enmeshed in some complicated family disputes, I can only say that family members or spouses who are sparring with one another, metaphorically, do not see the situation the same way. In many cases extended families don't either, and you see the fractious nature of family disputes continues to take place. The determination of what is in the best interests of the child, I think, is something that we need to take careful note of.

I'm a bit confused as to how we include a number of provisions around family violence in the Family Relations Act, when in fact so many of the provisions around violence are dealt with in the Child, Family and Community Service Act, and there are statutory obligations for social workers to intervene.

I don't see mention of social workers having any part in assessing whether or not a child is harmed psychologically or neglected or physically abused or sexually abused. I'm wondering what contemplation has been put to the significant overlaps that appear to exist. If we refer specifically to issues around custody and access, clearly many of the determinations of the existence or not of family violence will be made by the social worker, who is bound by law to determine that and to put those facts before a court. Yet I don't see in here any reference to an evaluation by a social worker in the determination of well-being of a child.

There are also new positions, it seems, that have been introduced. The name of these positions escapes me.

Interjection.

N. Simons: Family justice counsellor. My learned friend, as they refer to lawyers, to my far right assists me. I ask for forgiveness for my slightly halting eloquent discourse.

In terms of resolutions for family situations, I think that clearly, there has been a need for an improvement of the system, and the ability to divert these cases from the court system I think is laudable.

I remember preparing kids for entering court on matters that were not necessarily Family Relations Act but Child, Family and Community Service Act situations, and it's a very stressful situation for kids. They're often put in a position of having to express in their mind an opinion as to where they're happier.

[1150]

Clearly, if we can make those kinds of decisions for kids easier, less dramatized, in the perhaps more comfortable confines of a mediator's office, as opposed to with a judge raised off the floor in an elevated status, I think that perhaps we'd find faster and more appropriate and longer-lasting resolutions to family disputes. I think, ultimately, that's the goal of government in this particular piece of legislation, and it would likely be the goal of anyone involved in working with kids.

I know that as social workers, we sometimes get drawn into custody-and-access, as the words used to be, issues, and I have to say that on those Monday morning meetings with social workers to determine who gets which cases, there are two — I speak from my own perspective — that I knew were going to be labour-intensive and complicated. The first, of course, was working with teenage girls, and the second was working with Family Relations Act matters — families that had problems resolving their issues without relying on the court.

You know, you have allegations flying back and forth about whether the one parent drinks too much or uses drugs and the other parent doesn't take the child to the appropriate doctor's appointment or hasn't been bringing them to the bus stop for school or forgets to make lunch for them, and the other one says that they don't give their child their favourite pillow and don't allow them to participate in family activities. You see these going back and forth and back and forth. The most difficult thing is to assess the validity of any one of those complaints.

Ultimately, except by having social workers involved with those families and part of helping those families resolve those disputes, I'm not completely convinced that simply another level of mediation is going to resolve those. However, I know that in these next few days perhaps we'll have an opportunity to go into depth into the various divisions of this, the various parts of this act, which I have to say is extensive.

While there has been consultation with some groups on the outside, I would like to see a system of creating legisla-
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tion that actually involves, maybe, committees that can go into greater depth and where the opposition, representing a significant portion of the province, could have their own specific input as Members of the Legislative Assembly, as legislators — that we could be part of making legislation, that we could be welcomed into that whole process, as opposed to waiting until a few days before the act would be put through to offer comment.

[Mr. Speaker in the chair.]

I know that as private citizens we can do that, but we've been duly elected by our constituents, and they have an expectation that we're going to be part of the creation of legislation and not just stand up at the end and say that this is simply a done deal.

With that, recognizing the time, I would like to reserve my right to continue this debate, and I move adjournment of the debate.

N. Simons moved adjournment of debate.

Motion approved.

Hon. M. Polak moved adjournment of the House.

Motion approved.

Mr. Speaker: This House stands adjourned until 1:30 this afternoon.

The House adjourned at 11:54 a.m.

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