BC Family Practice Manual - Sample Excerpt

B R I T I S H C O L U M B I A FA M I LY P R AC T I C E M A N U A L EXCERPT FROM CHAPTER 9

Obtaining Court-ordered Interim Relief VI. Types of Interim Relief Available in a Family Law Case [§9.49] … E. Applications for Interim Orders for the Care and Responsibility for Children [§9.62] 1. Best Interests of the Child [§9.63] 2. Interim Applications to Change a Child’s Residence [§9.64] 3. Remedies for Denial of Parenting Time [§9.65] 4. Application for a s. 211 Report [§9.66]

E.

APPLICATIONS FOR INTERIM ORDERS FOR THE CARE AND RESPONSIBILITY FOR CHILDREN [§9.62]

Interim orders for custody and access are available under the Divorce Act. Part 4 of the Family Law Act governs “Care and Time with Children”. Under the Family Law Act, unless there is a court order or agreement to the contrary, both parents, upon separation, are the child’s guardians (s. 39(1)). Only a guardian may have parental responsibilities and parenting time (both defined terms). The parental responsibilities as defined in s. 41 are to be exercised equally unless an agreement or court order provides for a different allocation. Section 41 sets out a comprehensive list of parental responsibilities, including making day-to-day decisions for the child; making decisions about where the child will reside, and with whom the child will live and associate; and making decisions about education, religion, etc. Parenting time is the time that a child is with a guardian as allocated under an agreement or order. Interim applications under the Family Law Act are often for the allocation of parental responsibilities and parenting time for guardians. Orders for interim contact with a child may be sought under s. 59, which applies to any person who is not a guardian under the Family Law Act, which could be a parent or a grandparent. Section 59(3) allows the court to order supervised contact with a child if in the child’s best interests. Supervision is also available when sought as against a guardian (see s. 45(3)). When a claim is made for custody of or access to children under the Divorce Act, either spouse or any other person may apply for an interim order for custody or access (Divorce Act, s. 16(2)). A person who is not a parent and does not stand presumptively in place of a parent must obtain leave of the court to apply for interim custody or access (Divorce Act, ss. 2(2) and 16(3)). Under s. 49 of the Family Law Act, a guardian may seek directions from the court regarding an issue affecting a child. This is done by filing a notice of application and affidavit, and unless it is an urgent matter, it should be brought on the usual notice requirements under the Supreme Court Family Rules. Applications for interim custody and matters concerning guardians, or access are brought by notice of application and affidavit (as described at “Methods for Applying for Interim Relief in a Family Law Case” in this chapter). With the new relief available under the Family Law Act, counsel should look to the provision

OBTAINING COURT-ORDERED INTERIM RELIEF

BC FAMILY PRACTICE MANUAL

under which the application is brought for the specific factors the court is required to take into account on the application. An interim order may be for a definite period, until the happening of a specified event, or until the matter goes to trial. The court may impose any terms or conditions it thinks fit and just, such as requiring that access be supervised or that a parent abstain from consuming alcohol or drugs before and during access visits. Under s. 218 of the Family Law Act, any order may be made on terms and conditions the court deems appropriate. It is clear there are differences between the custody and guardianship provisions of the Divorce Act and the provisions of the Family Law Act on the issue of parenting rights and responsibilities after separation. J-P. Boyd’s paper “A Regime of Peaceful Co-existence: Disentangling Custody and Guardianship under the Divorce Act and the Family Law Act”, in The Family Law Act: Everything You Always Wanted to Know (CLEBC, 2013) is a valuable reference on this issue. For further discussion of custody or access under the Divorce Act and of guardianship and parenting time under the Family Law Act, see chapter 3 (Assessing the Legal Issues in a Family Law File) at “Standing under the Divorce Act” and “Standing under the Family Law Act”. 1.

BEST INTERESTS OF THE CHILD [§9.63]

In making an interim custody or access order under the Divorce Act, the court must consider only the best interests of the child (Divorce Act, s. 16(8)). See also Divorce Act, s. 16(9) and (10). In Fitzgibbon v. Fitzgibbon, 2014 BCCA 403, the court stated (at para. 22): “Interim orders are primarily designed to maintain the status quo and to provide short-term solutions until issues regarding the best interests of a child can be fully canvassed at trial”. Under s. 37(1) of the Family Law Act, the only consideration in making an order about the care of children is the best interests of the child. The factors that must be taken into account in assessing the best interests of a child are set out at s. 37(2). Further, the court must assess and consider a list of factors set out in s. 38 of the Family Law Act to determine whether there is family violence that affects the best interests of the child. Guardianship of children is dealt with in Part 4, Division 3 of the Family Law Act. A person cannot become a child’s guardian by agreement unless the person is the child’s parent, or as provided for under Division 3 of the Family Law Act, the Adoption Act, or the Child, Family and Community Service Act (s. 50 of the Family Law Act). The court may appoint a person as a guardian of a child on evidence respecting the child’s best interests as described in s. 37 of the Family Law Act. When interim applications for guardianship of a child are brought under that part, SCFR Rule 15-2.1 applies. Under Rule 15-2.1, the court may make an interim order for guardianship with or without affidavit evidence provided that it is in the best interests of a child that the order be made. Rule 15-2.1 and Form F101 set out the material to be included in an affidavit in support of a guardianship application. When drafting material in support of applications for parental responsibility, parenting time, or contact under the Family Law Act, material should include particulars that allow the court to make findings on the factors the court must consider under ss. 37(2) and 38. See B. (G.) v. P. (L.A.), 2013 BCSC 1490, for a consideration of s. 37 factors in the selection of schools for a child; and C. (T.) v. C. (S.), 2013 BCPC 217, for a consideration of those same factors concerning relocation. Generally, preservation of the status quo pending trial is considered to be in the best interests of the child unless there is a compelling reason to change the existing parenting arrangements (see Marsden v. Bercovitz, 2013 BCSC 1246 (Master); Betz v. Joyce, 2008 BCSC 1704 (Master); M. (S.M.) v. M. (K.C.), 2004 BCSC 134, which follows Eaton v. Eaton, 1987 CanLII 2950 (BC CA); and Graham v. Dillon, 1985 CanLII 824 (BC CA)). See also Poole v. Poole, 1999 BCCA 203, for a discussion of a broad consideration of what constitutes “status quo”. For example, interim custody was varied in Rutherford v. Rutherford, 1998 CanLII 2960 (BC SC) (Master), and in H. (W.G.) v. H. (J.L.), 2008 BCSC 1007 (Master), where the mother had consistently frustrated the father’s access to the children. Counsel must weigh the benefit of seeking an interim order to SAMPLE EXCERPT



change the status quo against obtaining an early trial date to settle the matter in a final order. See also Kalafchi v. Yao, 2015 BCCA 524, where the court dismissed an appeal of a judge’s order setting aside a master’s order, which would have created a new status quo pending trial. In Vujicic v. Vucicevic, 2015 BCSC 402 (Master), where, concerned about the well-being of the child, the court “erred on the side of caution” by making an interim parenting order based on the status quo, until the credibility issues in the affidavit materials could be determined at trial. 2.

INTERIM APPLICATIONS TO CHANGE A CHILD’S RESIDENCE [§9.64]

Changes to a child’s residence (or “mobility” or “relocation” issues) are addressed in the Family Law Act under Part 4, in s. 46 and in Division 6. Section 46(1) applies when there is no pre-existing agreement or order in place on parenting arrangements. Division 6 deals with relocation applications when there are agreements or orders in place for parenting arrangements. See K. (D.R.) v. G. (S.G.), 2013 BCSC 2107 (Master), where a master stated in obiter that mobility should not be dealt with on an interim application. Contrast K. (D.R.) with Jones v. Gillespie, 2015 BCSC 1825 (Master) and P. (C.A.) v. P. (M.S.), 2015 BCSC 183 (Chambers), where the court allowed the relocation on an interim application. Ultimately, whether or not relocation is entertained on an interim application is fact-driven. Section 66 of the Family Law Act provides for specific notice requirements that must be given by a relocating guardian where there is a written agreement or order. The court addressed the issue of the interim application of Division 6 in R. (L.J.) v. R. (S.W.), 2013 BCSC 1344. On interim applications, evidence of notice must be produced. The court may grant an exemption of the notice requirement (with or without notice) if there is family violence or a risk of it, or when there is no ongoing relationship between the child and the other guardian or person having contact with the child. On a relocation application, in addition to considering the factors in s. 37(2), the court must consider the reasons for the change in the location of the child’s residence (s. 69(6)(a)), and must not consider whether the guardian who is planning to move would do so without the child (s. 69(7)). The court may also make interim orders preventing the removal of a child from a specified geographical area (s. 64). On application the court may require a party to give security as directed by the court and surrender passports or other travel records. 3.

REMEDIES FOR DENIAL OF PARENTING TIME [§9.65]

Section 61(2) gives the court the authority to make a variety of orders upon concluding that contact/ parenting time has been wrongfully denied. The court may: require parties to participate in family dispute resolution or attend counselling; allow compensatory parenting time or contact; require reimbursement for expenses incurred by the applicant; or require the guardian to pay a fine of up to $5,000. This section has been primarily concerned with restoring parenting time denied “rather than punishing past denial” (S. (L.) v. S. (G.), 2014 BCSC 187, affirmed 2014 BCCA 334, though the Court of Appeal declined to consider the argument relating to s. 61(2)(g) not raised in the court below). In R. (K.) v. W. (J.), 2016 BCSC 225 the court fully analyzed the application of ss. 61 and 62, concluding that the object of the provisions is to give the court a broad discretion that can be adapted to each unique situation. Further, the court found that a pattern of wrongful conduct that frustrates an agreement or order such that parenting time is not fully available is a wrongful denial (see paras. 58 to 64). The defence to an application brought under s. 61 is set out in s. 62: that the denial was not wrongful. The defending party will need to ensure their affidavit material sets out why the denial of parenting time or contact was not wrongful, having regard to the considerations set out in s. 62(1)(a) to (f). Section 63 of the Family Law Act allows the court to provide a remedy when a person repeatedly fails to exercise parenting time or contact with a child. The remedies available under this section include requiring a party to participate in a family dispute resolution or attend counselling, and to reimburse the other person for

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expenses reasonably and necessarily incurred by the other person as a result of the failure to exercise the parenting time or contact with the child, including travel expenses, lost wages, and child care expenses. An application under this section is brought by notice of application and affidavit. The material in the affidavit should include details of the parenting time or contact that the person had but did not exercise. When a person seeks reimbursement for expenses, details of the expense including the purpose for which the expense was incurred and proof of payment (receipt or invoice) should be included in the material. 4.

APPLICATION FOR A S. 211 REPORT [§9.66]

In a contested family dispute in which parenting responsibilities, contact, custody, matters concerning guardians, or access are in dispute, reports may be sought under s. 211 of the Family Law Act. Section 211 allows the court to appoint a person to assess one or more of the following: the needs of a child in relation to a family law dispute; the views of a child in relation to a family law dispute; and the ability and willingness of a party to a family law dispute to satisfy the needs of a child. The person appointed to carry out the assessment must be a family justice counsellor, a social worker, or another person approved by the courts and unless the parties consent, must not have had any previous contact with the parties. The court may defer making any interim orders respecting the care of children until the findings of the assessment are made available to the parties and to the court. However, if the report is unavoidably delayed, counsel may want to consider whether the lack of an interim order would adversely affects the client’s case. A party wishing to proceed with an application for a report under s. 211 should have a list of possible candidates to present to the court. This information should include the availability and qualifications of the person and the estimated cost. The production of a s. 211 report is not in and of itself a sufficient change in circumstance to support a variation of an interim parenting order (Marsden v. Bercovitz, 2013 BCSC 1246 (Master)(Chambers)). See the Forms and Precedents section for: •

Sample Provisions for Notice of Application—Custody, Parenting Time, Child and Spousal Support

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Sample Provisions for Affidavit—Custody, Parenting Time, and Support

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Sample Divorce Order with Corollary Relief—Supreme Court Family Rules, Form F52

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