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Custody and Access in British Columbia

When parents separate, arrangements have to be made for the custody and care of the children. Usually, the parents by themselves or with the help of their lawyers or a mediator can settle these issues by agreement. The agreement can be legally recognized in a court order or separation agreement.

In a minority of cases there are serious allegations or complex issues that cannot be resolved by agreement. The court is asked to intervene in these contested case and to determine what the arrangements will be for custody of and access to the children who are caught in the middle of the dispute.

Both the B.C. Family Relations Act and the federal Divorce Ace address custody and access. Three subsections of the Divorce Act speak directly to these issues:

Subsection 16(8) of the Divorce Act provides that the court, in making an order respecting custody or access, "shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child."

Subsection 16(9) deems the past conduct of any person to be irrelevant unless the conduct relates directly to the ability of that person to act as a parent of a child.

Subsection 16(10) indicates that a child should have as much contact with each parent as is consistent with his/her best interests and that the court should consider the willingness of the person from whom custody is sought to facilitate such contact.

The Family Relations Act pronounces that the "best interests of the child are paramount" and outlines the factors to be considered in Sec.24:

a)	the health and emotional well-being of the child, including any special needs for care and treatment;
b)	where appropriate, the views of the child;
c)	the love, affection and similar ties that exist between the child and other persons;
d)	education and training for the child;
e)	the capacity of each person to whom guardianship custody or access rights and duties may be granted to exercise these rights and duties adequately.

In an environment of increased awareness of the prevalence and dynamics of family violence, courts and court affiliated workers are criticized for failing to consider the issues of violence in families and the effects of that violence on the children. This has become a major issue for organizations and agencies that work with battered women.

The B.C. Task Force on Family Violence (1991) and the B.C. Law Society Report on Gender Equality in the Justice System (1993) articulated this issue of failing to adequately identify violence within the family and the negative emotional and psychological effects on the children. Both reports make recommendations to the government for policy and legislation that would focus attention on abusive behaviour, hold the perpetrator responsible, and provide safety and security for the victims of abuse.

The Ministry of the Attorney General Family Justice Reform project, in co-operation with the Ministry of Social Services and the Ministry of Women's equality, is now reviewing all family justice services and making recommendations to the government on how services ought to be delivered. The concept of a Community Family Justice Centre has been proposed, and four pilot sites have been identified to test as many of the nine recommended reforms as is possible. Among the reforms being tested are:

• "one stop shopping," pulling like services together under one roof so that clients won't have to go to a variety of agencies to receive the services they need;

• expanded and enhanced mediation and conflict resolution services with an emphasis on identifying and addressing power imbalances in relationships. This would involve screening for violence and abuse, holding the abusive party responsible and providing for the safety needs of the woman and children;

• supervised access centres with trained and qualified supervisors;

• educational programs which would cover, among other topics, the effects of separation on children, problems that typically accompany separation.

The implementation of these concepts are intended to better serve families in conflict around issues of custody, access and maintenance. If parents are still unable to find their own solution to their dispute, the court has the power to order what is termed a "custody and access report." These reports are usually prepared by an officer of the court known as a Family Court Counsellor. The FCC is appointed by the Attorney General and must meet training and performance standards.

In preparing a custody and access report, the counsellor interviews the parents or parties applying for custody and/or access and interviews a variety of references for both sides (including professionals such as doctors, teachers and social workers), observes the child in the company of each party , and makes a recommendation to the court focusing on the "best interests of the child" criteria. If violence or abuse is a presenting dynamic, that history is recorded and presented in the report to the court, and the recommendation would reflect the effect the violence has had or potentially has on the children.

The Ministry of Attorney General, in its Violence Against Women in Relationships policy, has made it clear that relationship violence will not be tolerated. The goal in carrying out the policy is to hold the offender responsible and to provide for the safety of the victim.

Fortunately, not all family separations involve violence, and the justice system is working to provide a range of services responding to the unique needs of every family, helping each to achieve safety, fairness, and a healthy emotional environment for their children.

Catherine Coulis, Policy Analyst
Corrections Branch, Ministry of Attorney General