The "c" word may soon be a thing of the past, at least for families negotiating the most painful aspect of separation and divorce: custody of their children.

Changes proposed for B.C.'s Family Relations Act include eliminating the terms "custody" and "access," and replacing them with new concepts of "guardianship" and "parental responsibilities."

"It is a profound shift from a rights-based consideration to a parenting obligation from a child's point of view," said J.P. Boyd, a Vancouver family lawyer.

Using the terms "custody" and "access" to define post-divorce parenting implies ownership of children, said Boyd.

"When you talk about kids with those words it creates a win/lose mentality and it promotes litigation. You have parents that fight tooth and nail to have the "c" word," said Boyd.

The parent awarded custody is viewed as the winner; the parent who loses custody and has "access" is viewed as the loser.

The real losers in custody battles are the kids.

Under the proposed changes, joint "guardianship" will be a presumed starting point for negotiating how shared "parental responsibilities" will be determined.

A child's right to have unimpeded contact with both parents will come first.

There will be provisions to punish parents who deny contact, as well as those who don't exercise their access or "parental responsibilities."

The new guidelines are intended to encourage parents to cooperate when it comes to raising the kids, no matter how acrimonious their personal relationship.

For Maureen Palmer, who wrote and directed the documentary How To Divorce and Not Wreck the Kids, having the change in terminology embedded in the law is crucial.

"For so many couples I spoke to that are warring, it becomes about rights, about what they need, want, desire, not about the kids."

Even the most embittered parents can begin to shift their paradigm, Palmer believes. "Changing the language goes a long way to changing the adversarial process."

Palmer went through a painful divorce from the father of her two children in 1996.

"It takes a village to divorce," said Palmer. "People start talking to their family, their friends. Everyone has an opinion."

Palmer's family had a difficult time understanding that she wanted an amicable co-parenting relationship with her ex.

"They see you've been hurt, they don't want you to have an continuing relationship with that person, they think you won't move on."

The people she most wanted to protect, however, were her two school-aged daughters.

The girls stayed in the family home in Edmonton with their father, and Palmer moved to Vancouver.

"I visited every other weekend and stayed in the basement," recalled Palmer. "It couldn't have been easy for my ex to have his ex in the basement, but we viewed the situation from how we could make it best for the kids.

"The arrangement wasn't easy for the first two years," said Palmer, but eventually it morphed into something "very fluid," with the kids developing strong bonds with each parent.

Palmer said parents are striving to find new ways to put the kids first. "The legislation, some of these changes are designed for the 10 per cent that are pathologically addicted to fighting."

By changing the terminology, Palmer said "you remove the ability to take it to the next angry level. First we have a change in the court system, and then we will see a change in the lexicon of the group that wars over their kids."

The proposals follow similar recent changes to Alberta's Family Law Act, and puts Canada's two westernmost provinces at the forefront of a whole new way of approaching family law, said Boyd.

"Only Australia, which has engaged in groundbreaking family law advances, trying laws that presume joint custody and guardianship out of the gate, is ahead of us on this."

Boyd said he is surprised that the B.C. government is advancing at such a "blistering pace" with these proposals.

"What the provincial government has bravely decided to do is jettison an archaic mindset," said Boyd, who has seen firsthand the devastating effects that hostile parents can have on children. "I love it."

dryan@vancouversun.com

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