Taking family law beyond the courts

TheGlobeandMail.com – Opinions/Editorial – The British Columbian government’s wide-ranging white paper on proposed changes to family law is promising, particularly on settlement of disputes and on the definition of parenthood.
July 21, 2010.

The British Columbian government’s wide-ranging white paper on proposed changes to family law is promising, particularly on settlement of disputes and on the definition of parenthood.

To a considerable extent, family law is about family breakdown and the disagreements that follow. No one thinks that courts of law are the ideal place to deal with these matters. But though the concept of alternative dispute resolution has been in currency since the 1980s, many of the attempts at it have still been very much inside the court context – what might be called “non-alternative alternative dispute resolution.”

The white paper presented on Tuesday by Michael de Jong, the Attorney-General of B.C., sets a forthright goal of dispute resolution processes that are genuinely independent of the courts. It says that the commencement of a lawsuit should no longer be the “presumptive” or “implied” starting point for sorting out the consequences of a separation of spouses. The principal device proposed to displace that default mode is to require lawyers to certify that they have presented to their clients the full spectrum of other ways to settle their differences, before they resort to judges by filing papers in court, thus starting litigation.

Many couples (that is, former couples) choose in any case to make consensual arrangements, and many others cannot agree without the intervention of judges – or at least the deterrent effect of what judges might do. But there are also many people in between, who may be swayed in favour of more flexible, informal methods.

On parenthood, the white paper sets out to fill in a lack of definition in B.C.’s current law, especially to take into account modern technologies of assisted conception. It starts from the premise that the birth mother is a child’s mother, rather the donor of ova, unless there is an agreement before the child is conceived. This, combined with various other criteria, opens up the prospect of more than two parents – a complex situation, but one that can be appropriate.

In spite of a naive hope that custody and access would be less contentious if renamed “guardianship” and “parenting time,” the white paper offers a well considered adaptation of family law to the 21st century.

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