Criticism of British Columbia's Proposed Family Law Reform

This is a follow up to the Library Boy post of September 8, 2010 entitled British Columbia Proposes Massive Family Law Overhaul.

As part of its ambitious family law reform package, the province of British Columbia is proposing a new idea of "guardianship" to replace the concepts of custody and access when it comes to children from a failed relationship.

According to the article B.C.’s proposed guardianship concept raises red flags in this week's issue of The Lawyer's Weekly, that idea is highly problematic.

Author Susan Boyd, law professor at the University of British Columbia, writes:

"Despite its nuanced approach to children’s best interests, it [the government White Paper] proposes that, on separation, parents would share guardianship unless an order or agreement says otherwise. The concepts of 'custody' and 'access' would be absorbed into 'guardianship.' If separating parents have lived together with the child, they would both be guardians and able to exercise an extensive list of parental responsibilities, including day-to-day care and control."

"The white paper states that it does not intend to introduce a presumption in favour of a 50-50 split of parental responsibilities or time. However, this is what would result from the current proposal. Studies raise concerns about any unreflective embrace of either joint legal or physical custody as a panacea in the difficult field of post-separation parenting. Although parents can vary the shared guardianship, in circumstances of conflict, it is less than likely that parents will pay close attention to the best interests factors itemized above (...)"

"The current system does not prevent parents from agreeing to a more shared scenario — many do — nor does it prevent court orders for joint custody and guardianship, which are made quite often. The proposed law has a radically different default — of joint guardianship — regardless of the past history of parenting or the quality of the relationship between the parents. This default would generate serious problems for a parent caregiver who is dealing with a manipulative or abusive spouse, or one who has not demonstrated commitment to a child in the past."