Mediate BC Blog

8 Reasons Why Divorcing Fathers Can be Optimistic in BC

Posted by Bill.Larose

Separation and Divorce can be an emotionally and financially stressful life event, especially when children are involved, and parents can’t agree on how to move forward in their parenting roles. Under the previous family law legislation in BC, there was a significant amount of litigation regarding which parent was the most suitable. This resulted in a win/lose dynamic and created an atmosphere of pessimism particularly amongst fathers.

Thankfully in March 2013 new family law legislation came into effect BC in the form of the Family Law Act that took deliberate steps to reduce the law’s adversarial approach to resolving parenting issues. It put the focus solely on determination of what was in the best interests of the child.

 In this context it pains me to still see some websites using misinformation on the current state of family law in BC to market themselves and encourage a victim mentality and pessimism in men going through separation and divorce with children. For example, one recent article that I came across claims that men in divorce with children can expect to “lose custody and pay support for the rest of their lives and beyond”. Another article offers advice that fathers should hire female litigation lawyers as their “secret weapons” to beat the mother in court.

Below are eight reasons why the changes implemented by the new legislation give cause for parents in general, and fathers specifically, to be optimistic that their parenting roles will continue after separation:

 

1. BC LAW PRIORITIZES OUT OF COURT METHODS FOR RESOLVING CONFLICT

Court is discouraged as the primary means to resolve parenting issues in BC. Instead the Family Law Act steers separating parents away from court and towards family dispute resolution processes such as mediation, arbitration and collaborative family law. In fact, under the new Act, family law dispute professionals (including lawyers) are under a duty to inform clients of the appropriate dispute resolution options outside of the courtroom.

 

2. LEGAL TERMINOLOGY HAS IMPROVED

Under the former legislation, there were countless court battles to resolve the issue of which parent was the most suitable. The fuel on the fire for these court conflicts was the use of the fighting words “custody” and “access” to describe the roles of the parents after separation. This created a win/lose dynamic of one parent being granted the status of “custodial parent” and the other parent being granted only “access”. Under the new Act the adversarial language is gone and is replaced by the neutral terms of “parenting time” and “parenting responsibilities” which are to be shared by both parents in a manner that is aligned with the best interests of the child.

 

3. NEW DEFAULT GUARDIANSHIP PROVISION

Adding to the angst of the custody/access court battles under the old legislation was the perception by fathers that they were “behind the eight ball” from the “get-go” in winning this parenting contest against mothers. This pessimism had a basis in reality because under the old Family Relations Act, the starting point following separation was that the parent with whom the child usually resides (most often the mother) has sole custody and guardianship of the person of the child.

However, under the new Act, both parents start on equal footing, automatically remaining guardians of the child after separation.  Therefore, each parent continues to have the same parental authority that they had prior to separation, and each parent keeps their parenting responsibilities, which may be shared or exercised separately.

 

4. PARENTING ARRANGEMENTS ARE CUSTOMIZEABLE

The new Act makes no presumptions about what the parenting arrangements in each case should be. This opens the door for processes such as mediation and collaborative family law to help parents work out parenting arrangements that assign parenting time and responsibilities between the parents in a manner that fits with the best interests and developmental needs of their children.

 

5. THE CHILD NOW HAS A VOICE

Added to the new Act is an increased emphasis on hearing the voice of the child in order to assist in determining what is in that child’s best interest. For example, the legislation now states that the child’s views must be heard “unless it would be inappropriate to consider them”. Against this legal backdrop, professionals who have specialized training in obtaining the accurate, “uncoached” views of children going through divorce and separation are readily available to assist.

 

6. THERE ARE PROFESSIONAL RESOURCES TO ASSIST PARENTS BEFORE SETTLEMENT

Mediation and collaborative law can bring the expertise of Divorce Coaches and Child Specialists to the table to promote settlement between parents that cannot agree on what parenting time and parenting responsibilities should be. Divorce Coaches are licensed mental health professionals who have been trained in both the collaborative process and in mediation, and who work with parents to reduce their emotions so they may focus on developing parenting plans based on their children’s best interest. Child Specialists are also licensed mental health practitioners who have collaborative training, mediation training, and training in working with children and families. The Child Specialist focuses exclusively on the children's concerns and/or interests, is an advocate for the children, and a consultant to the parents and to the other collaborative professionals in their work with parents. The Child Specialist gives a "voice" to the children in the process to reach settlement.

 

7. THERE ARE PROFESSIONAL RESOURSES TO ASSIST PARENTS AFTER SETTLEMENT

Once parents have a signed a separation agreement, the new Act provides for an “out of court “dispute resolution mechanism called Parenting Coordination. Parenting coordinators are experienced family law lawyers, counsellors, social workers and psychologists who have special training in mediating and arbitrating parenting disputes, and in helping separated parents focus on the needs of their children after a parenting plan has been established. Parenting coordinators will make decisions when the parents can’t agree regarding a wide range of issues without the added expense to the family of involving their lawyers or the courts and provides a considerably more timely option to the court system. As with the Child Specialists, Parenting Coordinators take a “child centred” approach and also gives a “voice” to the child in resolving the specific dispute.

 

8. OUT OF COURT PROCESSES WILL BE ENFORCED

The new Act makes clear that separation agreements reached using mediation; arbitration and collaborative family law have the same force and effect as a court order. The only way judges would intervene in these agreements is if they go against the best interests of the child

In summary it has been my experience as a practicing mediator and lawyer that the changes to the family law legislation in BC referenced in this article have worked in providing a legal environment that promotes collaboration between separating parents versus the custody wars of old. Dispute resolving processes such as family law mediation and collaborative family law are the go-to methods for restructuring your family after separation in a manner that preserves relationships rather than tearing them down. When children are involved the importance of this cannot be overstated.

If you’d like more resources, we recommend exploring the Mediate BC website or finding a collaborative family law group near you.

 

About the Author

Bill Larose is an accredited family law mediator and collaborative family lawyer whose practice has focused on appropriate dispute resolution outside of the adversarial arena of court. As a former member of the Advisory Group to the Ministry of the Attorney General on the Family Law Act, he is a strong proponent of the measures this legislation took to prefer out of court settlement and create a legal environment where collaboration in family disputes would be fostered and the “best interests of the child” held to the highest importance. Bill also chaired the CBA ADR Nanaimo Section for many years and participated as legal counsel in bringing the first collaborative family law files to that region in 2014. Having earned a Master of Education degree prior to attending law school, Bill approaches mediation and collaborative family law practice from an educative perspective, assisting his clients learn to communicate constructively during one of the most stressful times in their lives. In addition to his family law practice Bill has also employed the principles of mediation and alternate dispute resolution in his role as claimant counsel in over 150 Indian Residential School adjudications and as an independent investigator in workplace human rights and harassment claims. See Bill’s Mediate BC Profile.

 

Photo by Jude Beck on Unsplash

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