Family Law Act

Family Law Act

There is no easy way to summarize the new Family Law Act, it is unique and has new terminology and all persons having a family dispute, and those assisting these people, have to understand the new legislation and its regulations in great detail.

The Family Law Act has replaced the Family Relations Act and ushered in major changes with regard to:

Emphasis on out of court settlement of family disputes through:

The use of parenting co-ordinators

Written agreements

Mediation

Arbitration

How are existing custody, guardianship and access orders dealt with under the Family Law Act;

As per section 37 of the Family Law Act, the best interests of a child is the only consideration. Like section 24 of the Family Law Act, section 37 lists various criteria the court considers in the determination of a child’s best interests but there are some additional factors as well;

Assessing family violence;

Care of and time with a child;

Guardianship of a child;

Contact with a child;

Parenting time with a child;

Allocation of parental responsibilities with regard to a child;

Protection orders;

Property division;

Screening for family violence;

Relocation of a child outside of the jurisdiction of the Province of British Columbia to another city, province or country (commonly referred to as a “mobility application”).

NOTE: Unless indicated otherwise, all Italic notations with regard to the Family Law Act are referenced to the Ministry of Justice explanations and commentary.

Resolution of Family Law Disputes outside of the court process

Where appropriate, as per part 2 of the Family Law Act places an emphasis on out of court resolution/settlement of family disputes and mentions 2 specific processes.

The Ministry of Justice comments as follows on Part 2:

Commentary

This Part encourages the use of out-of-court dispute resolution processes—family dispute resolution—where appropriate. It includes obligations to disclose information to ensure that family dispute resolution is effective. It also includes obligations on family justice professionals to assess for family violence to ensure that the use of family dispute resolution processes is appropriate.

It clearly states that agreements may be used to resolve disputes under the FLA and sets the stage for out-of-court dispute resolution.

Family dispute resolution offers simpler, speedier, and less costly ways to resolve post-separation disputes and will further the best interests of children.

Parties can settle their family dispute through an agreement as provided for by section 6 of the Family Law Act:

Agreements respecting family law disputes generally

6 (1) Subject to this Act, 2 or more persons may make an agreement

(a) to resolve a family law dispute, or

(b) respecting

(i) a matter that may be the subject of a family law dispute in the future,

(ii) the means of resolving a family law dispute or a matter that may be the subject of a family law dispute in the future, including the type of family dispute resolution to be used, or

(iii) the implementation of an agreement or order.

(2) A single agreement may be made respecting one or more matters.

(3) Subject to this Act, an agreement respecting a family law dispute is binding on the parties.

(4) Subsection (3) applies whether or not

(a) there is consideration,

(b) the agreement has been made with the involvement of a family dispute resolution professional, or

(5) A child who is a parent or spouse may enter into and be bound by an agreement, including an agreement respecting the division of property or debt.

Explanation from the Ministry of Justice

Section 6 provides the general framework for agreements and emphasizes that agreements are a viable, independent and binding option for resolving any family law dispute. In addition to expanding the role of agreements in family law, the FLA simplifies and clarifies the rules respecting agreements.

An agreement may be verbal or written, unless specified. A “written agreement” is defined in s. 1 as a written and signed agreement. Some written agreements can be filed at a court registry so they can be enforced like a court order.

An agreement may only be set aside by a court, and replaced with an order, in certain circumstances, which are set out in other parts of the Act. There are different thresholds for overturning an agreement depending on the subject-matter. For example, an agreement about parenting arrangements may be set aside by the court at any time if the agreement is not, or is no longer, in the best interests of the child. On the other hand, a written agreement respecting property or spousal support that has been signed and witnessed may only be set aside under limited circumstances, such as where there was a lack of financial disclosure or one party took unfair advantage of the other.

There ae additional rules respecting specific types of agreements in other parts of the Act:

s. 44 [Agreements respecting parenting arrangements]

s. 50 [Agreements respecting guardianship]

s. 58 [Agreements respecting contact]

s. 92 [Agreements respecting property division]

s. 127 [Agreements respecting (pension) division]

s. 148 [Agreements respecting child support]

s. 163 [Agreements respecting spousal support]

This section carries over from the Family Relations Act the exception to general contract law that family law agreements are binding whether or not consideration is exchanged.

It allows that a minor, who is also a parent or spouse, may enter into agreements with regard to matters covered by the Family Law Act. The section eliminates the current need for the minor to seek consent of the Supreme Court. These changes were made to better reflect the case law.

Commentary

The emphasis on, and encouragement of, agreements respecting family law disputes is reflected by the fact that there are at least eight different sections, including this cover-all section dealing with family law agreements. The interest in promoting the finality of agreements is emphasized in some of these other sections which state that agreements governing property division (s. 93(5)) and spousal support (s. 164(5)) will not be interfered with (barring certain statutory exceptions) unless the agreements are significantly unfair. This raises the threshold from the “unfair” standard that governed agreements under the Family Relations Act.

With respect to varying agreements, section 7 reads as follows:

Replacing agreements

7 If an agreement changes a previous agreement,

(a) each part of the previous agreement that is changed is deemed to have been revoked, and

(b) the remainder of the previous agreement, if any, remains effective.

Explanation from the Ministry of Justice

Section 7 makes clear that an agreement can be used to change a previously made agreement. It clarifies that, unless otherwise stated, the new agreement replaces only the terms changed, while the remainder of the agreement continues.

This clarification is especially important for agreements related to the care of children because parenting arrangements will need to change as children grow and change.

Section 214 enables a court to set aside, incorporate all or part of an agreement into an order

Parenting coordinators

There is a specific reference to the use of parenting coordinators by way of section 14 which reads as follows:

Parenting coordinators

14 A person meeting the requirements set out in the regulations may be a parenting coordinator.

Explanation from the Ministry of Justice

Section 14 establishes that requirements to be a parenting coordinator will be set out in the regulations.

Parenting coordination is a relatively new dispute resolution mechanism that is being practised in British Columbia. Parenting coordinators help high-conflict families implement agreements or orders respecting parenting arrangements using a mediation-arbitration approach. It is being used in many other jurisdictions in North America and originated in the United States.

Section 15 sets out when a parenting coordinator may assist and reads as follows:

When parenting coordinators may assist

15 (1) In this Division, “parenting coordination agreement or order” means a written agreement or an order to use a parenting coordinator.

(2) A parenting coordinator may assist only

(a) if there is a parenting coordination agreement or order in place, and

(b) for the purpose of implementing an agreement or order respecting parenting arrangements, contact with a child or other prescribed matters.

(3) A parenting coordination agreement or order may be made at the same time as, or after, an agreement or order respecting parenting arrangements, contact with a child or other prescribed matters is made.

(4) A parenting coordinator’s authority to act ends 2 years after the parenting coordination agreement or order is made, unless the parenting coordination agreement or order specifies that the parenting coordinator’s authority is to end on an earlier date or on the occurrence of an earlier event.

(5) Despite subsection (4), a parenting coordination agreement or order may be extended by a further parenting coordination agreement or order, but each extension may be for no more than 2 years.

(6) Despite subsection (4), a parenting coordination agreement or order may be terminated at any time as follows:

(a) in the case of an agreement, by agreement of the parties or by an order made on application by either of the parties;

(b) in the case of an order, by an order made on application by either of the parties;

(c) in any case, by the parenting coordinator, on giving notice to the parties and, if the parenting coordinator is acting under an order, to the court.

Explanation from the Ministry of Justice

Section 15 establishes the general rules respecting when parenting coordinators may act, how long the parenting coordinators may act for, and how parenting coordination ends.

Parenting coordinators do not assist the parties in coming to agreement about their parenting arrangements; they help parents carry out their already determined parenting arrangements.

A parenting coordinator may become involved by way of a written agreement or court order.

This section allows judges to order parenting coordination whether or not the parties consent. It is important to give judges the authority to require attendance because the couples who benefit most from this process usually have high levels of conflict and are unlikely to agree to attend.

The term of a parenting coordination process is limited because it not designed to be permanent but to end when parents become able to resolve disagreements on their own.

Commentary

This section limits the jurisdiction of parenting coordinators to circumstances in which there is already a parenting arrangement in place. The powers of a parenting coordinator are different from those of other family dispute resolution professionals. As a result, parenting coordinators will not be authorized by the FLA to help create parenting arrangements. Nor do parenting coordinators have the jurisdiction to make decisions that will fundamentally change a governing agreement or order. The role of the parenting coordinator is not to replace judges, but to manage ongoing parenting issues that are not suited to the court process. Some examples include scheduling summer holidays, choice of extracurricular activities, and bedtimes. (See P. (S.L.) v. P. (C.W.), 2007 BCSC 1963.)

The powers of the parenting coordinator depend on the terms of the appointment. Some appointments are more limited (to mediate and cajole), whereas others allow the parenting coordinator to make determinations on issues, provided the issue is within his or her jurisdiction.

The court has appointed parenting coordinators without the consent of both parties. The scope of authority varies, but has included decision-making powers. (See Hunter v. Hunter, 2008 BCSC 403, P. (G.) v. P. (M.J.R.), 2009 BCSC 659; Betz v. Joyce, 2009 BCSC 1199; McClaughry v. McClaughry, 2009 BCSC 501; T. (B.) v. L. (B.), 2010 BCSC 1813; J. (E.P.) v. E. (A.P.), 2010 BCSC 1121 (para 42); R. (S.) v. E. (B.), 2011 BCSC 1586; and Sukul v. Sukul, 2011 BCSC 507.)

The language in the Act does not draw a distinction between interim agreements or orders and consequently it would appear to be the intention of the Legislature that a parenting coordinator could be appointed, or agreed on, to implement interim parenting arrangements pending trial or final agreement of the parties.

Section 15(4) of the Act limits the parenting coordinator’s term to two years. Experience in British Columbia and other jurisdictions has led practitioners to try to ensure a long enough term of appointment to enable the parenting coordinator to acquire knowledge of the family dynamics, the parties themselves, and their children. The risk of a short term of appointment is that one or the other of the parents may not be successful when a determination is made under an agreement or court order; whereas in a longer appointment, it is more likely that disagreements will have been resolved by consensus or determinations will have been made that hopefully lead to both parties feeling their needs are being addressed.

It is important, given the potential two-year duration of the appointment, that the agreement or court order provide for sufficient financial resources to enable the two-year mandate to be fulfilled. A lack of provision for financial resources will generally limit the involvement of the parenting coordinator.

Section 15(6) discusses termination of the parenting coordination agreement. At the date of publication there are no reported cases on applications to terminate the appointment of a parenting coordinator.

Section 16 sets out when a party must provide information to a parenting coordinator and reads as follows:

Information sharing for parenting coordination

16 A party must, for the purposes of facilitating parenting coordination, provide the parenting coordinator with

(a) information requested by the parenting coordinator, and

(b) authorization to request and receive information, respecting a child or a party, from a person who is not a party.

Explanation from the Ministry of Justice

Section 16 ensures that parenting coordinators will be able to obtain the information they need to make determinations.

Commentary

Information may be obtained from non-parties such as teachers, therapists, family justice counsellors, police officers, medical doctors, coaches, and others. Given the principles of natural justice as they will apply to determinations made under s.18 of the Act, it remains to be seen how input from those persons will be managed in the parenting coordination process. Absent any power to compel providing information from those who are not parties to the parenting coordination, there may be reluctance to produce information that is sensitive and may negatively impact one of the parties or children involved in the parenting coordination process.

Section 17 deals with what a parenting coordinator may assist with and reads as follows:

Assistance from parenting coordinators

17 A parenting coordinator may assist the parties in the following manner:

(a) by building consensus between the parties, including by

(i) creating guidelines respecting how an agreement or order will be implemented,

(ii) creating guidelines respecting communication between the parties,

(iii) identifying, and creating strategies for resolving, conflicts between the parties, and

(iv) providing information respecting resources available to the parties for the purposes of improving communication or parenting skills;

(b) by making determinations respecting the matters prescribed for the purposes of section 18 [determinations by parenting coordinators].

Explanation from the Ministry of Justice

Section 17 establishes that parenting coordinators may resolve issues that arise in implementing parenting agreements and orders in two ways. They may help the parties negotiate a resolution and, where resolution through agreement is not possible, they may, within a limited scope, make a binding decision for the parties. The limited scope is set out in s. 18.

For example, if the parenting arrangements say that dad will pick up the children on Thursday, but the parents cannot agree where the pickup will be, the parenting coordinators could decide and the parties would be bound by that decision.

Commentary

Consensus building involves the use of mediation, negotiation, and collaborative law principles, the characteristics of which set them apart from determination making. The parenting coordination process is not without prejudice. The determination making potential of the parenting coordination process under s. 18 of the Act requires that all input relied on by the parenting coordinator be available such that the discussions or documentation produced in the consensus building process be with prejudice.

The potential impact on families of the determination making power is such that adherence to the principles of natural justice is required and there must be clarity at the point where the consensus building phase ends and the determination making process outlined in s. 18 commences.

Section 18 deals with what a parenting can determine and reads as follows:

Determinations by parenting coordinators

18 (1) A parenting coordinator

(a) may make determinations respecting prescribed matters only, subject to any limits or conditions set out in the regulations,

(b) must not make a determination respecting any matter excluded by the parenting coordination agreement or order, even if the matter is a prescribed matter, and

(c) must not make a determination that would affect the division or possession of property, or the division of family debt.

(2) In making a determination respecting parenting arrangements or contact with a child, a parenting coordinator must consider the best interests of the child only, as set out in section 37 [best interests of child].

(3) A parenting coordinator may make a determination at any time.

(4) A parenting coordinator may make an oral determination, but must put the determination into writing and sign it as soon as practicable after the oral determination is made.

(5) Subject to section 19 [confirming, changing or setting aside determinations], a determination

(a) is binding on the parties, effective on the date the determination is made or on a later date specified by the parenting coordinator, and

(b) if filed in the court, is enforceable under this Act as if it were an order of the court.

Explanation from the Ministry of Justice

Section 18 establishes the rules relating to determinations made by parenting coordinators.

Parenting coordinators may only make determinations respecting implementation of an agreement or order respecting parenting arrangements, contact with the child, or other matters which are included in the regulations. They may not make any decisions respecting property.

Providing for the possibility of allowing parenting coordinators to determine other matters by way of regulations provides flexibility to make changes as the practice evolves.

The scope of the matters for which a parenting coordinator may resolve or determine must be set out in the agreement or included in an order.

Section 18 provides that, in making determinations, a parenting coordinator must consider only the best interests of the child.

A parenting coordinator may make determinations at any time, including without having attempted consensual resolution first, if appropriate.

The section allows for oral determinations, but they must be put in writing as soon as practicable.

A determination is binding on the parties from the date it is made, or another date specified by the parenting coordinator.

If filed in the court, a parenting coordinator’s determination is enforceable as though it were an order. This is the same way agreements respecting parenting arrangements are treated in the Act.

Commentary

Section 18(1)(b) contemplates a separate regulation regarding “prescribed matters” since the wording of this section suggests orders or parenting coordination agreements may be more limited than the list of prescribed matters. “Prescribed matters” are not defined in the Act and have not to date been identified by regulation which is contemplated by s. 245(1)(g) of the Act.

The jurisdiction of the parenting coordinator will not, in any event, exceed what is going to appear on the list of prescribed matters. A parenting coordination agreement will not be permitted to go beyond the prescribed matters but can be more limited than the prescribed matters.

Section 18(4) should be interpreted as exceptional in that only where time limitations dictate should oral determinations be pronounced, given the enforceability of determinations as court orders under subsection (5).

Because they may be reviewed by the court under s. 19, determinations should be formalized, not only with written reasons for the determination, but also in a format appropriate for filing with the court registry. No format has been mandated to date by either the Legislature or the courts.

Section 19 sets out the grounds by which a court may change or set aside a determination by a parenting coordinator and reads as follows:

Confirming, changing or setting aside determinations

19 (1) On application by a party to a determination made by a parenting coordinator, the court may change or set aside the determination if satisfied that the parenting coordinator

(a) acted outside his or her authority, or

(b) made an error of law or of mixed law and fact.

(2) If the court sets aside a determination, the court may make any order that the court may make under this Act to resolve a dispute between the parties in relation to the subject matter of the determination.

(3) If the court does not set aside a determination, the court may make any order that the court may make under this Act to enforce compliance with the determination.

Explanation from the Ministry of Justice

Section 19 allows parties to ask a court to review determinations made by parenting coordinators.

This section limits the grounds on which the court may change or set aside determinations made by parenting coordinators in order to enhance the success of out-of-court settlement processes.

These limits are similar to those covering family law arbitration awards.

Commentary

“Acting outside his or her authority” will be determined based on whether the limitations on the jurisdiction of the parenting coordinator are based on the “prescribed matters” or something more narrowly defined by either the court order or the parenting coordination agreement.

Where to find a parenting coordinator

If the court does not appoint a parenting coordinator, parties can locate one at the following website of the BC Parenting Coordinators Roster Society:

Home Page

Mediation

Mediation is a dispute resolution process where a neutral third party, the mediator, facilitates a discussion between the parties and assists them to try to negotiate a settlement of the issues in dispute. The mediator is not the decision-maker; the mediator’s role is to assist the parties to negotiate fairly. The mediator will not give legal advice to the parties or act as a lawyer to either party.

See the following websites as a starting point to see if mediation process is right for you:

http://www.ag.gov.bc.ca/dro/publications/bulletins/family-mediation.htm

http://www.ag.gov.bc.ca/dro/mediation-in-bc/index.htm

Party to Party Negotiation

A four way meeting between the lawyers and parents may also result in a settlement of most if not all family law issues.

Arbitration

A process in which parties present evidence, arguments and proposed solutions to a neutral third party (the arbitrator), who has the power to make a binding decision.

Needless to say, this process may be more appropriate for property matters, spousal support and child maintenance (child support) issues. However, it is open for parents to make private arrangements for the custody, guardianship and access for a child but such agreements, or arbitration of the same, will not bind a court.

Arbitration is used by persons who wish to keep their matters private on religious grounds or other reasons.

How are existing custody, guardianship and access orders deal with under the Family Law Act?

Existing orders dealing with custody, guardianship, access, property division are caught by the transitional provisions of the Family Law Act at ss. 250-256.

Explanation from the Ministry of Justice

This Part creates rules for transitioning from using the Family Relations Act to using the Family Law Act. It deals with the application of the Act with regard to ongoing court proceedings as well as how to deal with orders and agreements made under Family Relations Act.

The Interpretation Act provides a default that the Act will be used upon its becoming effective.

Therefore, all new proceedings will be brought under the Family Law Act after it comes into effect (March 18, 2013), unless otherwise provided in these transition provisions. Any issue not specifically addressed in this Part will be dealt with under the Act once it comes into effect.

Generally, the transition provisions support the immediate use of the Family Law Act for family law disputes, even when they have been started under the Family Relations Act or when there are existing agreements or orders made under the Family Relations Act. This promotes a speedy transition to the new regime and ensures the tools and benefits of the new law can be realized immediately by all families.

There are a couple of exceptions to this general transition rule:

With the exception of pensions, property division proceedings that were commenced under the Family Relations Act will be determined by a court under the Family Relations Act unless the parties agree to use the Family Law Act.

Restraining orders granted under the Family Relations Act will remain effective as per their terms.

Section 251(1) of the Family Law Act deals with existing orders under the Family Relations Act that deal with custody, guardianship and access.

Section 251(1)(a) of the Family Law Act now defines custody and guardianship as guardian and as a person who has parental responsibilities and parenting time with respect to a child.

Section 251(1)(b) of the Family Law Act now classifies access as “contact with a child”.

Explanation from the Ministry of Justice

Section 251 addresses how orders or agreements made for custody, guardianship or access under the Family Relations Act will be dealt with under the Family Law Act.

This section provides that orders or agreements which refer to custody, guardianship, and access that were made under the Family Relations Act, before the coming into force of the Family Law Act, will be considered and interpreted according to the new language under the Family Law Act as follows:

A person who had custody or guardianship under the Family Relations Act will be a guardian with parental responsibilities under the Family Law Act. The time that such a person has with the child under the old order or agreement will be their parenting time.

A person who has access but not custody or guardianship under the Family Relations Act will have contact with the child under the Family Law Act. They will not be a guardian.

Details of a party’s parental responsibilities, parenting time or contact will be determined as best as can be through consideration of how the terms and conditions of custody, guardianship and access orders or agreements are described.

Under s. 254, a judge may not change the wording of an existing agreement or order based only on a wish to use the new terminology respecting care of and time with children. However, if a future dispute arises due to a change in circumstances, the court will resolve the issue under the Family Law Act. For example, if there is an order respecting access made under the Family Relations Act and a dispute arises after the Family Law Act is in effect, the access will be interpreted as either parenting time or contact, according to s. 251, and the new rules respecting changing or enforcing arrangements for time with a child will apply.

Proceedings regarding parenting arrangements or contact that have been started, but not determined, before the Family Law Act is in force, do not need special transition sections.

Section 4 of the Interpretation Act provides a default rule that the Act will be used upon its becoming effective, so cases started under the Family Relations Act will be determined under the Family Law Act.

Best interests of a child the only consideration

Family violence

One of the very unique and helpful sections of the Family Law Act are sections 37 and 38 which deals with, in part, the assessment of family violence.

Lawyers, and other professionals that come within the definition of a “family dispute resolution professional”, will be required to screen for family violence on and after March 18, 2013.

Section 37 mandates that the best interests of a child is the only consideration of the parties and the court and should be read in conjunction with section 38 of the Family Law Act.

When drafting pleadings and affidavit material, the factors set out in Section 37 should be addressed if applicable.

As per section 37 of the Family Law Act, the best interests of a child is the only consideration.

Like section 24 of the Family law Act, section 37 lists various criteria the court considers in the determination of a child’s best interests but there are some additional factors as well.

Section 37 of the Family Law Act reads as follows:

Best interests of child

37 (1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only.

(2) To determine what is in the best interests of a child, all of the child’s needs and circumstances must be considered, including the following:

(a) the child’s health and emotional well-being;

(b) the child’s views, unless it would be inappropriate to consider them;

(d) the history of the child’s care;

(e) the child’s need for stability, given the child’s age and stage of development;

(f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;

(g) the impact of any family violence on the child’s safety, security or well-being, whether the family violence is directed toward the child or another family member;

(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child’s needs;

(i) the appropriateness of an arrangement that would require the child’s guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;

(j) any civil or criminal proceeding relevant to the child’s safety, security or well-being.

(3) An agreement or order is not in the best interests of a child unless it protects, to the greatest extent possible, the child’s physical, psychological and emotional safety, security and well-being.

(4) In making an order under this Part, a court may consider a person’s conduct only if it substantially affects a factor set out in subsection (2), and only to the extent that it affects that factor.

Explanation from the Ministry of Justice

Section 37 carries over and expands s. 24 of the Family Relations Act. In the Family Relations Act, the best interests of the child were the “paramount consideration.” Section 37 directs that, in making decisions about parenting arrangements or contact with a child, a decision-maker must consider only the best interests of the child.

This section expands the requirement to consider the best interests of the child beyond decision-making by judges, to include decision-making by guardians and all individuals party to a child-related agreement. A child’s best interests must always be in the forefront when parenting issues are discussed.

Section 37 provides an overarching direction to “ensure the greatest possible protection of the child’s physical, psychological and emotional safety” and provides a list of factors to consider when determining what is in a child’s best interest. The expanded list modernizes the Family Relations Act to better reflect current social values and research.

Important changes to the best interests of the child factors include:

a change in determining whether to consider the views of the child from “if appropriate” in the Family Relations Act to “unless it would be inappropriate”. This change shifts the presumptive starting point: the child’s views will be considered unless there is a reason why they should not be, rather than starting from the position that the views will not be considered unless justified;

inclusion of family violence as a factor. The addition of family violence addresses an important gap in the law and recognizes that violence—even if directed exclusively at the spouse—can still be harmful to a child; and

inclusion of any relevant prior civil or criminal proceedings as a factor. This requires decision-makers to consider the involvement of parties in other proceedings that are relevant to the safety, security or well-being of the child and promotes greater information-sharing between the family, child protection and criminal systems where children are involved.

Commentary

Section 37(1) carries over and expands s. 24 of the Family Relations Act. The best interests of a child is now the only factor to be taken into consideration when making an order or agreement, rather than the prior “paramount consideration”. This section also provides an overarching direction to protect, as much as possible, “the child’s physical, psychological and emotional safety, security and well-being”.

The new factors include the history of the child’s care, the child’s need for stability, and the existence of any civil or criminal proceedings relevant to the child’s safety, security, and well-being. The FLA also provides that the child’s views are a factor, unless it would be inappropriate to consider them. Previously s. 24 of the FRA would include the child’s views only where it was appropriate. The expansion of the list of considerations is intended to modernize the family law legislation to better reflect current social values and research.

Family violence is also considered in s. 37(2)(g)–(i). This recognizes that family violence, even if not directed at a child, can be harmful to a child. The inclusion of relevant prior civil or criminal proceedings as a factor under s. 37(2)(j) requires decision-makers to consider the parties’ involvement in other proceedings relevant to the safety, security, or well-being of the child. It also promotes greater information-sharing between the family, the Ministry of Children and Family Development, and criminal systems where children are involved.

Sections 37 and 38 of the Act are complementary provisions. Section 37 provides a list of factors that the court must consider when assessing whether a parenting arrangement or contact with a child is in that child’s best interests. Several of these factors specifically address family violence. Section 37(2)(g) states, “the impact of any family violence on the child’s safety, security or well-being, whether the family violence is directed toward the child or another family member”. Section 37(2)(h) states, “whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child’s needs”. Section 37(2)(i) states “the appropriateness of an arrangement that would require the child’s guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members”. This section expands the consideration of safety concerns beyond the child. It considers the impact of any risks guardians or other family members may face if certain parenting arrangements are ordered. Section 37(2)(j) states “any civil or criminal proceeding relevant to the child’s safety, security or well-being.” This new section highlights a departure from courts focusing only on civil family law matters in exclusion of criminal proceedings that may parallel or impact the family law proceeding. This section now mandates that the court “must” address both civil and criminal proceedings that centre on the issue of the child’s best interests.

Section 38 of the Family Law Act reads as follows:

Assessing family violence

38 For the purposes of section 37 (2) (g) and (h) [best interests of child], a court must consider all of the following:

(a) the nature and seriousness of the family violence;

(b) how recently the family violence occurred;

(d) whether any psychological or emotional abuse constitutes, or is evidence of, a pattern of coercive and controlling behaviour directed at a family member;

(e) whether the family violence was directed toward the child;

(f) whether the child was exposed to family violence that was not directed toward the child;

(g) the harm to the child’s physical, psychological and emotional safety, security and well-being as a result of the family violence;

(h) any steps the person responsible for the family violence has taken to prevent further family violence from occurring;

(i) any other relevant matter.

Explanation from the Ministry of Justice

Section 38 provides guidance for decision-makers on how to assess family violence as a factor in considering the best interests of the child.

This approach is designed to produce a more nuanced risk assessment and avoid a one-size-fits-all approach regarding parenting arrangements in cases where there has been family violence. Research shows that family violence is not all the same. This approach takes into account research showing that different types of violence carry different levels of future risk.

This section is adapted from a similar provision in New Zealand’s family law, which is often considered to be a best-practice.

Commentary

Section 38 provides factors to assist decision-makers in assessing family violence. These factors were adapted from New Zealand’s family law act and reflect the reality that family violence is not all the same. Interestingly, s. 38 provides the opportunity to put before the court social science material in the area of family violence in order for the court to assess risk, future risk, and security for the child.

The following case law from other jurisdictions provides some insight into how other courts have assessed the best interests of children when violence is present:

M. (N.G.) v. M. (W.A.), 2000 ABQB 328: The court considered the impact of verbal, emotional, and psychological abuse and the necessity for “healthy contact” in order to preserve the best interests of the children.

W. (C.L.) v. P. (K.P.), 2007 ABQB 591: The court “ventures into the grey area of psychological damage” and engages in an assessment that prioritizes the best interests of the children.

H. (H.) v. C. (H.), 2002 ABQB 426: The court engaged in an analysis of the impact of violence experienced against one parent by the other in the context of children witnessing family violence. The case contains significant social science research that was put before the court and the court’s appreciation for such evidence in their assessment process of family violence and the best interests of the child.

Abdo v. Abdo (1993), 126 N.S.R. (2d) 1 (C.A.) : The court engaged in an analysis of the long-term impact for children when exposed to parental violence and the detrimental effect on children’s psychological development.

Griffiths v. Leonard, 2010 ONSC 4824: The court emphasized the father’s historically violent behavior towards the child’s mother in its determination that he should be denied access.

Lidder v. Lidder, [2009] O.J. No. 2896 (QL) (S.C.J.): The court ordered that the father should have continued supervised access because of his failure to address his wife’s reasonable concerns as to whether his anger and tendency to express himself by violence would pose a danger to the child. The court put an obligation on the father to have taken steps to address his wife’s concerns.

Family law legislation in Alberta and Ontario parallels s. 37(2)(j) and the court’s requirement to consider other existing civil and criminal proceedings in the assessment of family violence and the safety and best interests of children.

The positive duty to screen for family violence by family dispute resolution professionals is found at section 8 of the Family Law Act:

Duties of family dispute resolution professionals

8 (1) A family dispute resolution professional consulted by a party to a family law dispute must assess, in accordance with the regulations, whether family violence may be present, and if it appears to the family dispute resolution professional that family violence is present, the extent to which the family violence may adversely affect

(a) the safety of the party or a family member of that party, and

(b) the ability of the party to negotiate a fair agreement.

(2) Having regard to the assessment made under subsection (1), a family dispute resolution professional consulted by a party to a family law dispute must

(a) discuss with the party the advisability of using various types of family dispute resolution to resolve the matter, and

(b) inform the party of the facilities and other resources, known to the family dispute resolution professional, that may be available to assist in resolving the dispute.

(3) A family dispute resolution professional consulted by a party to a family law dispute must advise the party that agreements and orders respecting the following matters must be made in the best interests of the child only:

(a) guardianship;

(b) parenting arrangements;

Family dispute resolution professional is defined as follows:

“family dispute resolution professional” means any of the following:

(a) a family justice counsellor;

(b) a parenting coordinator;

(d) a mediator conducting a mediation in relation to a family law dispute, if the mediator meets the requirements set out in the regulations;

(e) an arbitrator conducting an arbitration in relation to a family law dispute, if the arbitrator meets the requirements set out in the regulations;

(f) a person within a class of prescribed persons;

“Family dispute resolution” in the Family Law Act is defined as follows:

“family dispute resolution” means a process used by parties to a family law dispute to attempt to resolve one or more of the disputed issues outside court, and includes

(a) assistance from a family justice counsellor under Division 2 [Family Justice Counsellors] of Part 2,

(b) the services of a parenting coordinator under Division 3 [Parenting Coordinators] of Part 2,

(d) prescribed processes;

Allocation of parenting arrangements

Sections 39 through 49 of the Family Law Act deals with the allocation of parenting arrangements.

The terms “custody” and “access” have been replaced by “guardianship” and “parenting time” respectively.

The term guardian is not defined in the Family Law Act and as such, one may be forced to look to the common law to determine who is a guardian or not.

As per the Family Law Act, a guardian may include the child’s parents.

Section 39(1) states that when a child’s parents are living together and after the separation of the parents, each parent of the child is a child’s guardian.

Section 39(2) states that following a separation or when the parents are about to separate, one parent may not be a guardian by way of an agreement or court order.

Section 39(3) states that if one parent has not resided with a child, that parent is not a guardian unless they meet three exceptions: parentage is determined by reference to section 30 of the Family Law Act; by agreement; or the parent regularly cares for the child.

Section 39(4) states, in essence, that a person does not become a guardian of a child from a previous relationship.

Explanation from the Ministry of Justice

Section 39 carries over s. 29 of the Family Relations Act with some important changes.

A guardian is legally responsible for their child’s care and upbringing. This section establishes the starting position that parents who live with their child are guardians. This is different from the general rule under the Family Relations Act, which provides that when parents separate, the parent with whom the child usually resided has, by operation of law, sole custody and guardianship of the person of the child.

The change emphasizes that a parent’s responsibility towards their child does not change only because the parents have separated. If the parent was a guardian before separation, the parent remains a guardian after separation, unless the parents make an agreement, or the court orders that the parent is not a guardian of the child.

This section clarifies that a parent who has never lived with a child is not that child’s guardian. There are three exceptions:

where the parent is an additional parent under s. 30 of the Act, which allows for three parents in limited assisted reproduction circumstances. This is important because these three parents may never have had the intention to live together but all intended to be the child’s parents and guardians;

where the person is a parent, they may become a guardian by agreement. This is the only circumstance in which a person may become a guardian by agreement under the Act; and

where a parent regularly cares for their child but does not live with the child. This may occur where a child is born in a short relationship where the parents did not live together, but both parents have been involved in the child’s life.

If there is only one parent who has lived with the child, that child will have only the one guardian, unless the other parent meets one of the exceptions.

Although in many cases both parents will be guardians, this is not intended to mean “joint guardianship”, which under the Family Relations Act tended to reflect a requirement to act in concert with the other parent at all times. Rather, each parent is a guardian and continues to have the same authority they had prior to the separation, and each parent has their parenting responsibilities, which may be shared or exercised separately.

In some cases, it may not be appropriate for a parent to remain a guardian. A parent can be removed as guardian by agreement or court order. If a parent is not a guardian, they can still have time with the child—contact—but will not have any parental responsibilities.

This section also clarifies that a stepparent does not become a guardian by virtue of the marriage or marriage-like relationship with a child’s guardian.

Commentary

Division 2 includes changes to the terms used to describe individuals who are responsible for children and to describe the time spent with children. The terminology used has been generally adopted from Alberta’s Family Law Act.

There is a movement away from emotionally charged terms such as “custody” and “access”. Those terms have been replaced with “guardianship” and “parenting time”. In the context of the FLA, “guardianship” refers generally to the responsibility for children while “parenting time” describes the specific responsibilities that guardians have. Guardianship of the person and of the estate of the child, which appear in the FRA, have not been included in the FLA.

Section 39 carries forward ss. 27, 28(1), 29(4), and 34 of the FRA and provides that parents who live with their child remain guardians following a separation. This differs from the FRA where, following a separation, the parent with whom the child usually resides has sole custody and guardianship of the person of the child. Under the FLA, a parent who was a guardian before separation remains a guardian after separation, unless there is an agreement or court order that the parent is not a guardian of the child. As such, it is possible for a parent to lose guardianship status by agreement or court order.

Section 39 states that a parent who has never lived with a child is not that child’s guardian unless one of three exceptions applies. The first exception is a parent under s. 30 of the FLA which allows for additional parents in limited assisted reproductive circumstances. This addresses situations where there may have been the intention for three individuals to be the child’s parents and guardians, but it was not intended that they would all live together. The second exception is where a parent who has not lived with the child makes an agreement with the child’s guardian providing that the parent is a guardian. This is the only circumstance where a person may become a guardian by agreement under the FLA. The final exception is where a parent regularly cares for their child but does not live with the child. This may occur in instances where there was a short relationship and, while the parents never lived together, both were involved in the child’s life.

Section 39 also carries over s. 29(4) of the FRA to clarify that a stepparent does not become a guardian by virtue of marriage or a marriage-like relationship with the child’s guardian.

Sections 50 through 57 of the Family Law Act deals with guardianship of a child.

Agreements respecting guardianship

50 A person cannot become a child’s guardian by agreement except

(a) if the person is the child’s parent, or

(b) as provided under this Division, the Adoption Act or the Child, Family and Community Service Act.

Explanation from the Ministry of Justice

Section 50 allows for agreements respecting guardianship to be made between parents of the child. This carries forward the policy in s. 28 of the Family Relations Act.

It also allows for the transfer of guardianship through agreement under the Adoption Act or the Child, Family and Community Service Act to allow the director to transfer guardianship to the prospective parents or guardians under those Acts.

This section prevents the transfer of guardianship by agreement in all other cases. Under the Act, unless the person is a parent of the child, a court order is needed for guardianship. This is more restrictive than s. 34(2)(b) of the Family Relations Act, which did not restrict who could obtain custody under an agreement. This additional restriction was added to promote children’s safety by ensuring there is court oversight in all cases where a non-parent is seeking guardianship of a child.

Orders respecting guardianship

51 (1) On application, a court may

(a) appoint a person as a child’s guardian, or

(b) except in the case of a director who is a child’s guardian under the Adoption Act or the Child, Family and Community Service Act, terminate a person’s guardianship of a child.

(2) An applicant under subsection (1) (a) of this section must provide evidence to the court, in accordance with the Supreme Court Family Rules or the Provincial Court (Family) Rules, respecting the best interests of the child as described in section 37 [best interests of child] of this Act.

(3) Subsection (2) of this section applies regardless of whether there is consent to the application under section 219 [persons may consent to order being made].

(4) If a child is 12 years of age or older, a court must not appoint a person other than a parent as the child’s guardian without the child’s written approval, unless satisfied that the appointment is in the best interests of the child.

(5) A person who has custody of a child under section 54.01 (5) or 54.1 of the Child, Family and Community Service Act is deemed, for the purposes of this Act, to be a guardian appointed under subsection (1) of this section.

Explanation from the Ministry of Justice

This section authorizes the court to make a guardianship order or to terminate a person’s guardianship. The authority to remove a guardian does not apply to removing the director’s guardianship under the Adoption Act and the Child, Family and Community Service Act. This prevents a person, after the child has been adopted or removed, from bringing an application to have the director’s guardianship terminated.

Subsection (2) provides the ability to establish rules to ensure information relevant to the best interests of the child is brought before the court, including in relation to criminal or child protection history. This section applies to all non-parents as well as to the few parents who are not guardians by default (i.e., those who have never lived with the child). This section also applies where the parties are seeking an order by consent. This responds to recommendations made by the Representative for Children and Youth.

Section 51 requires the consent of a child who is 12 years or older to the appointment of a person as the child’s guardian, unless the person seeking guardianship is a parent or the court is satisfied that the child’s best interests require the appointment.

This section addresses s. 54.1 of the Child, Family and Community Service Act which refers to a situation in which, after a continuing custody order has been made, the director grants “custody” to another person. Section 51 equates this to a grant of “guardianship” under the Family Law Act.

Section 51 carries forward ss. 30 and 35 of the Family Relations Act with respect to appointing or revoking guardianship and making custody orders.

Commentary

Section 51 carries over ss. 30, 30.1, and 35 of the FRA, which deal with appointing and revoking guardianship and making custody orders. Section 51 provides for the appointment or termination of a guardian. Non-parents and parents who have never lived with the child may apply for guardianship under this section. The ability to remove a guardian under s. 51(1)(b) does not apply to removing a director who is a guardian under the Adoption Act or the Child, Family and Community Service Act. This prevents applications for the removal of the director as guardian after a child has been removed or adopted.

A person applying for guardianship under s. 51 must demonstrate why the appointment is in the best interests of the child, even in cases where there is consent to the order being made. The application must be made on notice to all of the child’s guardians and adults with whom the child lives. The consent of the child age 12 and older is required, unless the applicant is a parent or the court is satisfied that the appointment is in the child’s best interests.

Who is entitled to notice

52 (1) Subject to subsections (2) and (3), if an application is made under this Division, the following persons must be served with notice of the application:

(a) each parent or guardian of the child affected by the application;

(b) each adult person with whom the child usually lives and who generally has care of the child;

(2) Subsection (1) does not apply to a parent of a child if any of the following apply:

(a) the parent’s guardianship was terminated by a continuing custody order under the Child, Family and Community Service Act;

(b) another person has temporary custody of the child under section 54.1 of the Child, Family and Community Service Act;

(c) another person has permanent custody of the child under section 54.01 (5) of the Child, Family and Community Service Act.

(3) The court may grant an exemption from a requirement to give notice under subsection (1) if the court considers it appropriate.

Explanation from the Ministry of Justice

This section lists those people who, subject to a court-ordered exemption, must be served with notice of an application for guardianship.

It requires that notice be given to all parents, guardians or others with whom the child resides and who have care of the child, unless the child is the subject of a continuing custody order or another person has temporary custody of the child under s. 54.1 of the Child, Family and Community Service Act or permanent custody under s. 54.01(5) of that Act.

Section 52 carries forward s. 22(1) of the Family Relations Act as well as the policy objective of s. 30.1(2) of the Family Relations Act.

Appointment of guardian in case of death

53 (1) A child’s guardian may appoint a person to be the child’s guardian on the death of the appointing guardian

(a) in a will made in accordance with the Wills, Estates and Succession Act, or

(b) in the prescribed form,

(i) signed at its end by the guardian, or the signature at the end must be acknowledged by the guardian as his or hers, in the presence of 2 or more witnesses present at the same time, and

(ii) signed by 2 or more of the witnesses in the presence of the guardian.

(2) For the purposes of subsection (1) (b),

(a) a witness may not be a person appointed to be the child’s guardian, and

(b) a reference to the signature of a guardian includes a signature made by another person in the guardian’s presence and by the guardian’s direction, and the signature may be either the guardian’s name or the name of the person signing.

(3) If a child’s guardian dies without having made an appointment under subsection (1) of this section or under section 55 (1) [appointment of standby guardian], and there is

(a) one surviving guardian who is also the child’s parent, the surviving guardian has all parental responsibilities with respect to the child, unless an order provides otherwise, or

(b) more than one surviving guardian who are also the child’s parent, each of the surviving guardians has the parental responsibilities that the deceased guardian had with respect to the child, unless an agreement or order provides otherwise.

Explanation from the Ministry of Justice

Section 53 provides a way for guardians to appoint a guardian to take over responsibility for their child upon their death and, if there is no such appointment, provides a default to determine who exercises the parenting responsibilities of a deceased guardian.

In addition to authorizing the use of a will, it allows a guardian to use a prescribed form to make the appointment.

The section eliminates the limitation currently in s. 50(1) of the Infants Act that allows only a “parent” of a child to appoint a testamentary guardian. Under the Act, all guardians, whether or not they are also parents, have the ability to appoint a testamentary guardian. The British Columbia Law Institute’s report recommended elimination of the distinction between parents and non-parent guardians.

The section says that if a guardian dies without appointing a guardian and there are surviving parent-guardians, those parent-guardians take all the parental responsibilities that the deceased guardian had.

Commentary

Section 53 carries over s. 29 of the FRA. A guardian may appoint a person as guardian effective on the appointing guardian’s death. The appointment is done by will or form, to be prescribed by regulation.

If a guardian dies and there is no such appointment, s. 53 provides the mechanism for redistributing the parenting responsibilities previously held by the deceased guardian.

Loss of guardian

54 If a child’s guardian dies, a surviving parent of the child who is not a guardian of that child does not become that child’s guardian unless appointed under section 51 [orders respecting guardianship] or 53 [appointment of guardian in case of death].

Explanation from the Ministry of Justice

This section provides that on the death of a child’s guardian, if a surviving parent is not also a guardian he or she does not automatically become the child’s guardian and therefore does not take the parental responsibilities of the deceased guardian.

Section 54 carries over s. 29(2) of the Family Relations Act.

Commentary

The surviving parent who is not a guardian would need to make an application under s. 51 if he or she was not appointed under s. 53.

Appointment of standby guardian

55 (1) A guardian facing terminal illness or permanent mental incapacity may appoint a person to become, when the conditions set out in the appointment are met, a child’s guardian, in addition to the appointing guardian.

(2) An appointment under subsection (1)

(a) must be made in the prescribed form,

(i) signed at its end by the guardian, or the signature at the end must be acknowledged by the guardian as his or hers, in the presence of 2 or more witnesses present at the same time, and

(ii) signed by 2 or more of the witnesses in the presence of the guardian,

(b) must state the conditions that must be met for the appointment to take effect, and

(c) may provide that a designated person certify that a condition referred to in paragraph (b) has been met and that, if such a certification is made, it is conclusive.

(3) For the purposes of subsection (2) (a),

(a) a witness may not be a person appointed to be the child’s guardian, and

(4) In carrying out his or her parental responsibilities, a guardian appointed under this section must consult with the appointing guardian to the fullest possible extent regarding the care and upbringing of the child.

(5) Unless the appointing guardian, while capable, has revoked the appointment or the appointment provides otherwise, a guardian appointed under this section continues as the child’s guardian on the death of the appointing guardian despite any other instrument made by the appointing guardian.

Explanation from the Ministry of Justice

Section 55 authorizes a guardian facing a terminal illness or permanent mental incapacity to provide for the orderly transition respecting the care of their children by appointing a standby guardian. This is intended to promote certainty and stability in the care of children.

The appointment takes effect when the appointing guardian, while still alive, is unable because of the illness or mental incapacity to attend to their responsibilities. The standby guardian must consult with the appointing guardian, to the extent possible and appropriate. Upon the appointing guardian’s death, the standby guardian remains guardian of the child.

These appointments are executed in a prescribed form in the same way as a will. The appointment must include a description of conditions on which the standby guardian takes responsibility and may include a requirement for a medical doctor or other designated person to verify that conditions have been met.

The section also deals with the possibility of a competition between appointments. The section provides that, unless the standby appointing document indicates otherwise, the standby guardian becomes the child’s guardian on the death of the appointing guardian despite any other document, such as a will, that contains a different appointment

Standby guardianship developed in the United States and a number of states have legislation surrounding its use. The British Columbia Law Institute’s report supported the use of standby guardianship.

Commentary

A guardian facing permanent incapacity, such as a terminal illness or mental incapacity, may appoint a person as guardian effective when specified conditions are met, such as the guardian’s incapacity, by a form to be prescribed by regulation. The appointment will require a description of the conditions on which the standby guardian will step in and take responsibility. Under s. 55(2)(c), the appointment may include a requirement that a medical practitioner or similar designated person verify that certain conditions have been met.

Section 55 is intended to promote certainty and stability in the care of children following incapacity of a guardian. The appointment would take effect when the appointing guardian, while still alive, is unable to attend to their responsibilities. The standby guardian must consult with the appointing guardian, to the extent possible and appropriate, during the appointment. Upon the appointing guardian’s death, the standby guardian remains guardian of the child. The death of a guardian does not vest guardianship in a parent who is not a guardian as set out in s. 54.

Section 55(5) addresses the possibility that there may be a competition between appointments. Unless the appointment documents provide otherwise or the appointment has been revoked, the standby guardian becomes the child’s guardian on the death of the appointing guardian despite any other document, such as a will, that contains a different appointment.

Limits on appointments

56 In making an appointment under section 53 [appointment of guardian in case of death] or 55 [appointment of standby guardian], the appointing guardian

(a) must consider the best interests of the child only, and

(b) may not grant greater parental responsibilities than the appointing guardian has with respect to the child.

Appointments must be accepted to take effect

57 An appointment under section 53 [appointment of guardian in case of death] or 55 [appointment of standby guardian] does not take effect unless the appointed person, either expressly or impliedly by the person’s conduct, accepts the appointment.

Sections 58 through 60 of the Family Law Act deals with contact with a child.

Agreements respecting contact

58 (1) A child’s guardian and a person who is not a child’s guardian may make an agreement respecting contact with a child, including describing the terms and form of contact.

(2) An agreement respecting contact with a child is binding only if the agreement is made between all of a child’s guardians having parental responsibility for making decisions respecting with whom the child may associate.

(3) A written agreement respecting contact with a child that is filed in the court is enforceable under this Act as if it were an order of the court.

(4) On application by a party, the court must set aside or replace with an order made under this Division all or part of an agreement respecting contact with a child if satisfied that the agreement is not in the best interests of the child.

Explanation from the Ministry of Justice

Section 58 sets out the specific rules about agreements between guardians and non-guardians respecting contact with a child to encourage parties to use written agreements to manage their affairs.

It requires that an agreement with respect to contact must be made with all of the guardians who have parental responsibility under s. 41(c) of the Act for making decisions about who the child may associate with.

An agreement respecting contact with a child may be filed in the court registry, so that it may be treated and enforced like a court order. This streamlines the enforcement of agreements.

The section provides a safeguard in that if an agreement respecting contact is not in the best interests of the child, it must be set aside and replaced by an appropriate court order.

Section 58 carries over the policy of ss. 121(2)(a) and 122(1)(a) of the Family Relations Act.

Commentary

Section 58 carries forward ss. 121(2) and 122(1) of the FRA, allowing agreements to be filed, and replaces the concept of access with contact. Contact refers to time with a child by a non-guardian and is not included in the term “parenting arrangements”, which applies only to guardians.

Section 58 sets out the specific rules about agreements between guardians and non-guardians respecting contact. Agreements with respect to contact must be made with all of the guardians who have parental responsibility under s. 41(c) of the FLA for making decisions about who the child may associate with. This prevents a guardian from making an agreement with a non-guardian, who is likely to be a non parent, for contact without the consent of other guardians or a court order. A likely class of individuals seeking such an agreement or order is extended family members, who may not have a positive relationship with all of the guardians.

As always, the agreement must be in the best interests of the child or the court has the authority to set it aside and replaced by an appropriate order.

Orders respecting contact

59 (1) On application, a court may make an order respecting contact with a child, including describing the terms and form of contact.

(2) A court may grant contact to any person who is not a guardian, including, without limiting the meaning of “person” in any other provision of this Act or a regulation made under it, to a parent or grandparent.

(3) The court may make an order to require the parties to transfer the child under the supervision of, or require contact with the child to be supervised by, another person named in the order if the court is satisfied that supervision is in the best interests of the child.

(4) An access order referred to in section 54.2 (2.1) or (3) of the Child, Family and Community Service Act is deemed, for the purposes of this Act, to be an order made under subsection (1) of this section for contact with a child.

Explanation from the Ministry of Justice

This section authorizes a court to make orders for contact including the type of contact and terms associated with it. For example, contact might take the form of time with the child or telephone or written contact.

It clarifies that non-guardian parents and grandparents may apply for contact. The inclusion of grandparents in this section does not prevent grandparents from applying for orders for guardianship, parenting arrangements, or parenting time in appropriate circumstances.

The section authorizes orders for supervised contact, if appropriate.

It provides that an “access” order made under the Child, Family and Community Service Act is a “contact” order for the purposes of the FLA.

Section 59 carries forward and clarifies s. 35 of the Family Relations Act.

Commentary

Section 59 carries forward and clarifies s. 35 of the FRA, which provides the jurisdiction to make custody or access orders. It authorizes the court to make orders for contact as well as any associated terms, such as supervision.

Section 60 deals with changing, suspending or terminating order respecting contact and reads as follows:

Changing, suspending or terminating
orders respecting contact

60 On application, a court may change, suspend or terminate an order respecting contact with a child if satisfied that, since the making of the order, there has been a change in the needs or circumstances of the child, including because of a change in the circumstances of another person.

Explanation from the Ministry of Justice

Section 60 carries over from s. 20 of the Family Relations Act the need to establish a “change in circumstance” to change an order respecting contact.

Commentary

Section 60 elaborates on the earlier requirement “if circumstances have changed since the order was last made” set out in s. 20 of the FRA and expands it to the court being satisfied that since the making of the order there has been a “change in the needs or circumstances” of a child.

A person with contact may also apply under this section to vary a contact order on being notified of a guardian’s intention to relocate with the child.

Sections 61 through 64 of the Family Law Act deals with the compliance respecting parenting time and contact with a child.

Denial of parenting time or contact

61 (1) An application under this section may be made only

(a) by a person entitled under an agreement or order to parenting time or contact with a child, and

(b) within 12 months after the person was denied parenting time or contact with a child.

(2) If satisfied that an applicant has been wrongfully denied parenting time or contact with a child by a child’s guardian, the court on application may make an order to do one or more of the following:

(a) require the parties to participate in family dispute resolution;

(b) require one or more parties or, without the consent of the child’s guardian, the child, to attend counselling, specified services or programs;

(c) specify a period of time during which the applicant may exercise compensatory parenting time or contact with the child;

(d) require the guardian to reimburse the applicant for expenses reasonably and necessarily incurred by the applicant as a result of the denial, including travel expenses, lost wages and child care expenses;

(e) require that the transfer of the child from one party to another be supervised by another person named in the order;

(f) if the court is satisfied that the guardian may not comply with an order made under this section, order that guardian to

(i) give security in any form the court directs, or

(ii) report to the court, or to a person named by the court, at the time and in the manner specified by the court;

(g) require the guardian to pay

(i) an amount not exceeding $5 000 to or for the benefit of the applicant or a child whose interests were affected by the denial, or

(ii) a fine not exceeding $5 000.

(3) If the court makes an order under subsection (2) (a), (b) or (e), the court may allocate among the parties, or require one party alone to pay, the fees relating to the family dispute resolution, counselling, service, program or transfer.

Explanation from the Ministry of Justice

The Family Relations Act did not have specific remedies for disputes over time with a child. The remedies were quasi-criminal tools, such as contempt proceedings or applications under s. 128(3) of the Family Relations Act, which provided for enforcement of access orders through the Offence Act. They were rarely used and were ineffective and ill-suited to this type of parenting dispute.

Section 61 establishes an enforcement regime for judges to ensure parties respect each other’s parenting time and contact arrangements.

This section provides a limit to ensure that applications are made with regard to recent denials only by requiring applications to be brought within 12 months of the denial.

It provides a range of remedies, from preventative to punitive, that a judge can order when there is a denial of parenting time or contact, including:

requiring parties or their children or both to attend family dispute resolution, counseling, or other services;

compensatory time;

reimbursement of expenses incurred as a result of the denial, which could include, for example, payment to the other parent for their wasted travel costs or daycare costs where the parent does not fulfill their parenting time commitments; and

requiring the offending party to provide security or pay a fine of up to $5,000.

This section gives judges the discretion to allocate the cost, if any, of family dispute resolution, counselling, or supervised transfer of children to facilitate parenting time or contact.

Commentary

Division 5 provides a variety of remedial tools to address problems exercising parenting time and contact that was notably absent from the FRA. The range of remedies in this part provides the court sufficient flexibility to address the unique facts of each case. Options such as counselling may help resolve the underlying issues and reduce future difficulties whereas financial penalties are more punitive in nature.

The remedies under the FRA for circumstances where there were ongoing access problems were rarely used and ill-suited to parenting disputes regarding access. In addition, contempt orders were difficult to obtain in part because the test required that there be no ambiguity in the order from which the contempt arose. Further, the applicants were often able to provide quasi-legitimate reasons for the failure to abide by the order, such as a child’s illness or miscommunication between the parties.

Section 61 provides a variety of remedies the court may order in circumstances where there has been a wrongful denial of parenting time or contact. Remedies include preventative measures as well as escalating sanctions. Section 61 also provides a time limit to ensure that applications are only in relation to denials that occurred in the previous 12 months. Further, it allows the court the discretion to allocate any costs of family dispute resolution, counseling, or supervised transfer of children to facilitate parenting time.

When denial is not wrongful

62 (1) For the purposes of section 61 [denial of parenting time or contact], a denial of parenting time or contact with a child is not wrongful in any of the following circumstances:

(a) the guardian reasonably believed the child might suffer family violence if the parenting time or contact with the child were exercised;

(b) the guardian reasonably believed the applicant was impaired by drugs or alcohol at the time the parenting time or contact with the child was to be exercised;

(c) the child was suffering from an illness when the parenting time or contact with the child was to be exercised and the guardian has a written statement, by a medical practitioner, indicating that it was not appropriate that the parenting time or contact with the child be exercised;

(d) in the 12-month period before the denial, the applicant failed repeatedly and without reasonable notice or excuse to exercise parenting time or contact with the child;

(e) the applicant

(i) informed the guardian, before the parenting time or contact with the child was to be exercised, that it was not going to be exercised, and

(ii) did not subsequently give reasonable notice to the guardian that the applicant intended to exercise the parenting time or contact with the child after all;

(f) other circumstances the court considers to be sufficient justification for the denial.

(2) If, on an application under section 61, the court finds that parenting time or contact with a child was denied, but was not wrongfully denied, the court may make an order specifying a period of time during which the applicant may exercise compensatory parenting time or contact with the child.

Explanation from the Ministry of Justice

Section 62 provides examples of circumstances in which a denial of parenting time or contact is not wrongful.

Most remedies for denial of parenting time or contact are available only when the parenting time or contact was wrongfully denied. However, even when the denial was not wrongful, the court may, if appropriate, order compensatory time to the guardian to make up for the missed time with the child.

Commentary

With the exception of make-up parenting time or contact, the remedies set out in s. 61 for a denial of parenting time or contact are not available where the denial was not wrongful.

Failure to exercise parenting time or contact

63 (1) If a person fails repeatedly to exercise the parenting time or contact with the child to which the person is entitled under an agreement or order, whether or not reasonable notice was given, the court on application may make an order to do one or more of the following:

(a) require one or more of the things described in section 61 (2) (a), (b) or (e) [denial of parenting time or contact];

(b) require the person to reimburse any other person for expenses reasonably and necessarily incurred by the other person as a result of the failure to exercise the parenting time or contact with the child, including travel expenses, lost wages and child care expenses;

(c) if the court is satisfied that the person who failed to exercise the parenting time or contact with the child may not comply with an order under this section, order that person to do one or more of the things described in section 61 (2) (f).

(2) In making an order under subsection (1) (a), the court may allocate among the parties, or require one party alone to pay, the fees relating to the family dispute resolution, counselling, service, program or transfer.

Explanation from the Ministry of Justice

Section 63 lists orders that can be made when a person fails repeatedly to exercise the parenting time or contact agreed to or granted in an order.

These remedies are more limited than those for denial of time, since it may be at odds with the child’s best interests to force a relationship with an uninterested adult by using punitive remedies.

This section gives judges the discretion to allocate the cost, if any, to facilitate parenting time or contact.

Commentary

Section 63 sets out orders that can be made by the court when there is repeated failure by a person to exercise parenting time or contact that has been agreed on or granted in an order.

This is notwithstanding whether the parent not exercising the time has provided reasonable notice.

The orders the court can make are more restrictive than those set out in s. 62. They include requiring the parties to participate in family dispute resolution, require one or more parties to attend counseling or specified programs, or require that the transfer of the child be supervised.

The remedies are more limited than those under s. 62 since it may be at odds with a child’s best interests to force a relationship with an uninterested adult by using punitive remedies.

Orders to prevent removal of child

64 (1) On application, a court may make an order that a person not remove a child from a specified geographical area.

(2) On application, if satisfied that a person proposes to remove a child from, and is unlikely to return the child to, British Columbia, the court may order the person who proposes to remove the child to do one or more of the following:

(a) give security in any form the court directs;

(b) surrender, to a person named by the court, passports and other travel records of the person who proposes to remove the child or of the child, or of both;

(d) if there is an agreement or order respecting child support, pay the child support to a trustee named by the court.

(3) This section does not apply in relation to the relocation of a child within the meaning of Division 6 [Relocation] of this Part.

(4) A person required by an order made under this section to hold passports, travel records or other property delivered under the order must do so in accordance with the directions set out in the order.

Explanation from the Ministry of Justice

Section 64 provides for two types of orders with respect to removal of a child.

The first type allows a court to restrict a person from taking a child out of a certain area. This type of order is often used currently. For example, an order might say that neither parent may take the child out of the Lower Mainland without the other parent’s consent. This type of order is generally about parenting together and making sure each guardian knows where the child is.

The second type is used where there is concern that a person may remove and not return that child. In these circumstances, the court may take action to stop the person from leaving with the child, such as surrendering passports or providing security to motivate the person to stay.

This section clarifies that these orders do not apply to the situation where one parent wants to move as those applications are different and are to be dealt with under Division 6 (Relocation). This ensures a person cannot thwart the effect of a relocation order by inappropriately making a non-removal application.

Commentary

The court may make an order preventing a person from removing a child from a specified area.

Two types of orders are specified. In the first, a court is restricting a person from taking a child out of a specified area. These would likely be mutual non-removal clauses, which would apply to both parties.

The second form of order is where the court is concerned that a person may flee with a child and not return. If the conclusion is that a person intends to remove a child and is unlikely to return, the court may, under s. 64(2), also require the person to post security, surrender travel documents, transfer property to a trustee, or pay child support to a trustee. The court may also require the posting of security to motivate a person to stay in the jurisdiction or specified area.

Relocation or “mobility rights” cases

Sections 65 through 71 deals with the relocation of a child from outside the jurisdiction of the Province of British Columbia.

The Ministry of Justice comments about Division 6 – Relocation as follows:

Explanation from the Ministry of Justice

This Division addresses the issue of moving away after parenting arrangements have been established in an agreement or court order. Relocation is an increasingly common event in children’s lives after their parents separate or divorce, and disputes over relocation are difficult to resolve and tend to result in litigation.

Most often, this situation arises where one parent wishes to move to another city, province or country with the child. This move could impact the relationship between the child and the other parent and will require a change in the parenting arrangements. As a result, often the other parent does not agree with the move.

The Family Relations Act did not specifically address relocation, and the case law is unclear. Critics have called relocation law “rock, paper, scissors territory” and say that its uncertainty and unpredictability fuel litigation, prolong disputes, and interfere with parents’ ability to plan.

There is a difference between how guardians are treated under this Division and how persons with contact with the child are treated. Guardians have parental responsibilities toward the child and are charged with raising the child; whereas persons with contact have time with a child but do not have any parental responsibilities or decision-making authority. Although both guardians and persons who have contact with a child are entitled to notice of a relocation, only a guardian can apply to prevent a move. A person with contact is provided notice to ensure there is adequate opportunity to make appropriate contact arrangements.

The Division’s goal is to introduce some certainty to this area of the law by mandating notice of a proposed move, defining what constitutes a relocation and directing courts about both circumstances that should be considered and those that should not. The introduction of certainty will reduce the need for lengthy litigation and, thus, reduce the costs associated with disputes over relocation.

Definition and application

65 (1) In this Division, “relocation” means a change in the location of the residence of a child or child’s guardian that can reasonably be expected to have a significant impact on the child’s relationship with

(a) a guardian, or

(b) one or more other persons having a significant role in the child’s life.

(2) This Division applies if

(a) a child’s guardian plans to relocate himself or herself or the child, or both, and

(b) a written agreement or an order respecting parenting arrangements or contact with the child applies to the child.

Explanation from the Ministry of Justice

Section 65 establishes criteria for what is considered to be a “relocation”. “Relocation” is defined in a child-centred way that takes into account the specific circumstances of individual families. It focuses on the impact of the proposed move on the child’s primary relationships.

Usually relocation disputes arise where a guardian wants to move with the child. However, relocation includes situations in which a guardian intends to move but does not intend to move the child. Although these types of cases are often less disputed than cases where the guardian intends to move with the child, this provision ensures that notice is given so that appropriate adjustments to parenting arrangements may be made to minimize the impact on the child.

This section also makes clear that Division 6 applies only when parenting arrangements already exist. If parenting arrangements do not already exist, then parents must make an application to determine parenting arrangements

Commentary

Division 6, which addresses relocation, deals with situations where a guardian is seeking to move after parenting arrangements have been put in place either by agreement or order. Mobility cases are difficult to resolve and often result in litigation. The provisions of Division 6 are intended to introduce more certainty to this area of the law by mandating notice of a proposed move, defining what constitutes a relocation and providing directions about both circumstances that should be considered and those that should not if an application is made. It is hoped that these provisions will reduce the need for litigation; however, the all-or-nothing remedies sought in these types of matters may prevent this from coming to fruition.

Notice of relocation

66 (1) Subject to subsection (2), a child’s guardian who plans to relocate himself or herself or a child, or both, must give to all other guardians and persons having contact with the child at least 60 days’ written notice of

(a) the date of the relocation, and

(b) the name of the proposed location.

(2) The court may grant an exemption from all or part of the requirement to give notice under subsection (1) if satisfied that

(a) notice cannot be given without incurring a risk of family violence by another guardian or a person having contact with the child, or

(b) there is no ongoing relationship between the child and the other guardian or the person having contact with the child.

(3) An application for an exemption under subsection (2) may be made in the absence of any other party.

Explanation from the Ministry of Justice

Section 66 describes the circumstances in which notice of a proposed relocation must be given, and to whom.

This section requires a guardian of a child who plans to relocate, with or without the child, to give 60 days’ notice to other guardians or persons having contact with a child. The notice must contain the date of the proposed relocation and the name of the city, town or area of the new residence.

The notice period allows for an opportunity to discuss the issue and, if a relocation is agreed on, to work out new parenting arrangements.

The section allows a court to grant an exemption to the requirement to give notice if satisfied that either:

the existence of family violence would create a risk if notice were given; or

there is no ongoing relationship between the child and the person who would be entitled to notice.

Commentary

If a parent objects to the move, that parent must, under s. 68, file an application within 30 days for an order prohibiting the relocation, failing which the relocation may proceed. The exception to the requirement to provide notice is where there is a risk of family violence or where there is no ongoing relationship between the child and the guardian or the person authorized to have contact.

The notice period provides the parties the opportunity to discuss the move and, if the relocation is agreed on, the ability to work out new parenting arrangements. Hopefully the existence of this provision will greatly decrease the number of individuals who move with a child without providing notice in an attempt to prevent being stopped by an opposing party.

Resolving issues arising from relocation

67 (1) If notice is required under section 66 [notice of relocation], after the notice is given and before the date of the relocation, the child’s guardians and the persons having contact with the child must use their best efforts to cooperate with one another for the purpose of resolving any issues relating to the proposed relocation.

(2) Nothing in subsection (1) prevents

(a) a guardian from making an application under section 69 [orders respecting relocation], or

(b) a person having contact with the child from making an application under section 59 [orders respecting contact] or 60 [changing, suspending or terminating orders respecting contact], as applicable, for the purpose of maintaining the relationship between the child and a person having contact with the child if relocation occurs.

Explanation from the Ministry of Justice

Section 67 encourages co-operation between the guardian proposing to move and those whose relationship with the child may be affected by the move by imposing a duty to use best efforts to resolve issues arising from the move. The goal is to reduce the need for litigation and, thus, reduce the costs associated with disputes over relocation.

This section makes it clear that the obligation to attempt to resolve the dispute does not prevent the starting of an application for an order if that is necessary. If the parties resolve the issue before the court hearing, they do not need to continue in court.

Only guardians can ask the court to prevent a move. A person with contact must be given notice of a move, but this is to ensure they can make alternate arrangements for that contact.

Commentary

The object of specifying that the parties must use best efforts to resolve the issue is to reduce the need for litigation as historically mobility cases were difficult to resolve given the all-or-nothing nature of relocation. However, it is explicit in the section that the obligation to attempt to resolve the dispute does not prevent the starting of an application, if necessary. If the parties are able to resolve the issue prior to a hearing the litigation need not continue.

The section distinguishes between guardians and persons having contact. Only guardians can ask the court to prevent a move under s. 69. A person with contact must be given notice, but this is only to ensure they can make alternate arrangements for contact, although they are at liberty to make a variation application. This is one of the differences between guardians and individuals with contact that may cause the majority of parties in a family matter to seek guardianship and not settle for contact.

Child may be relocated unless guardian objects

68 If a child’s guardian gives notice under section 66 [notice of relocation] that the guardian plans to relocate the child, the relocation may occur on or after the date set out in the notice unless another guardian of the child, within 30 days after receiving the notice, files an application for an order to prohibit the relocation.

Explanation from the Ministry of Justice

Section 68 allows a move to occur unless an application is filed objecting to the move within 30 days after notice is given.

This eliminates the need for a moving guardian to wait the entire 60 days before planning the move if another guardian does not object to the move, by requiring the other guardian to raise their objection within 30 days. The parties would then have some time to resolve the dispute before the intended move date.

This section balances the needs of an objecting guardian to have sufficient time to object and the needs of the moving guardian to make plans for the move.

Orders respecting relocation

69 (1) In this section, “relocating guardian” means a guardian who plans to relocate a child.

(2) On application by a guardian, a court may make an order permitting or prohibiting the relocation of a child by the relocating guardian.

(3) Despite section 37 (1) [best interests of child], the court, in making an order under this section, must consider, in addition to the factors set out in section 37 (2), the factors set out in subsection (4) (a) of this section.

(4) If an application is made under this section and the relocating guardian and another guardian do not have substantially equal parenting time with the child,

(a) the relocating guardian must satisfy the court that

(i) the proposed relocation is made in good faith, and

(ii) the relocating guardian has proposed reasonable and workable arrangements to preserve the relationship between the child and the child’s other guardians, persons who are entitled to contact with the child, and other persons who have a significant role in the child’s life, and

(b) on the court being satisfied of the factors referred to in paragraph (a), the relocation must be considered to be in the best interests of the child unless another guardian satisfies the court otherwise.

(5) If an application is made under this section and the relocating guardian and another guardian have substantially equal parenting time with the child, the relocating guardian must satisfy the court

(a) of the factors described in subsection (4) (a), and

(b) that the relocation is in the best interests of the child.

(6) For the purposes of determining if the proposed relocation is made in good faith, the court must consider all relevant factors, including the following:

(a) the reasons for the proposed relocation;

(b) whether the proposed relocation is likely to enhance the general quality of life of the child and, if applicable, of the relocating guardian, including increasing emotional well-being or financial or educational opportunities;

(d) any restrictions on relocation contained in a written agreement or an order.

(7) In determining whether to make an order under this section, the court must not consider whether a guardian would still relocate if the child’s relocation were not permitted.

Explanation from the Ministry of Justice

Section 69 provides guidance to the court with regard to determining whether relocation should be granted or prohibited and introduces a degree of certainty into the law.

This section provides the factors that a court must consider when determining whether to grant a relocation. The court must consider the factors listed in the general best interests of the child test in s. 37 and must also specifically consider whether the proposal to move is made in “good faith” and whether reasonable and workable alternate parenting arrangements have been proposed.

It deals with situations in which the guardians of a child do not have substantially equal parenting time. The moving guardian, who has the majority of the time with and care of the child, must show “good faith” reasons for the move and must provide reasonable and workable alternate parenting arrangements that will maintain the relationship between the child and other guardian. If the court is satisfied that those two things are established then there is a presumption in favour of the move, unless the objecting guardian satisfies the court that the move is not in the best interests of the child.

The section also deals with situations in which the guardians have substantially equal parenting time. In such a case, both parents play a significant role in the child’s day-to-day life and it may be difficult to maintain this relationship if there were a move. Therefore, the threshold is higher and the moving guardian has full responsibility for satisfying the court that the proposal to move is made in “good faith,” reasonable and workable alternate parenting arrangements have been proposed, and the move is in the best interests of the child.

This section gives the court guidance about what to consider in determining whether the proposal to move is made in “good faith”, including the reasons for the move, whether the move is likely to enhance the general quality of life of the child and moving guardian, whether notice requirements were met, and whether the guardians’ written agreement or order restricts relocation. The good faith requirement is designed to prevent relocations from occurring where the moving guardian is trying to move in order to undermine or limit the child’s relationship with the other guardian.

It prohibits a court from inquiring into and considering whether a guardian would still relocate if the application to relocate the child were refused. This question is an impossible one for a guardian to answer, with very little probative value for the decision the court has to make.

Commentary

Good faith is measured in relation to reasons for the move and whether the move will enhance the quality of life of guardian or child. The court will also consider any provisions of a written agreement relating to relocation. Where these factors are established, the move is presumed to be in the best interests of the child unless the guardian seeking to prohibit the move establishes otherwise. The good faith provision is included in an effort to prevent relocation from occurring where the underlying reason is to undermine or limit the child’s relationship with the other guardian. The court is also prohibited from inquiring into and considering whether a guardian would still relocate if the application to relocate the child were refused. This was addressed in the common law and is generally considered to be an impossible question to answer with little probative value.

If relocation permitted

70 (1) If the court makes an order under section 69 [orders respecting relocation] that permits a child’s relocation, the court may make any of the following orders:

(a) subject to subsection (2) of this section, if the order made under section 69 affects an agreement or order that allocates parenting arrangements between the relocating guardian and another guardian, an order under section 45 [orders respecting parenting arrangements] or 47 [changing, suspending or terminating orders respecting parenting arrangements], as applicable;

(b) any order necessary to ensure that the relocating guardian complies with the terms of the order permitting relocation, including an order to do one or more of the following:

(i) give security in any form the court directs;

(ii) transfer specific property to a trustee named by the court.

(2) In making an order under subsection (1), the court must seek to preserve, to a reasonable extent, parenting arrangements under the original agreement or order.

Explanation from the Ministry of Justice

Section 70 authorizes the court to make necessary changes to the parenting arrangements to facilitate a relocation and to make orders to ensure compliance with a relocation order. Compliance is especially important in these cases, because otherwise the move could undermine the relationship between the child and the non-moving guardian.

This section restricts the court’s discretion to make fundamental changes to the parenting arrangements by requiring that the existing arrangements be preserved to the extent

reasonable.

Restricting the discretion that courts may exercise in adjusting existing parenting arrangements prevents a re-examination of the entire parenting arrangement structure. The existing parenting arrangements were either the result of an agreement between the guardians or a court order made in the child’s best interests. While the physical relocation of the child or one of the guardians will necessitate changes, the court must try to adjust the arrangements in such a way as to preserve the current roles played by the guardians.

Commentary

When an order for relocation is made, the court may make or vary the existing order for parenting arrangements with the object of preserving, to the extent possible, the parenting arrangements and roles played by the guardians under the original agreement or order. This is imperative as the relocation has the potential of undermining the relationship between the child and the non-moving guardian and prevents a re-examination of the entire parenting arrangement.

The court can also make orders to ensure compliance with a relocation order.

Not a change in circumstances

71 The fact that an order is made that prohibits a child’s relocation is not, in itself, a change in the child’s circumstances for the purposes of section 47 [changing, suspending or terminating orders respecting parenting arrangements].

Explanation from the Ministry of Justice

Section 71 prevents an application to change parenting arrangements based only on the fact that a court refused to allow a guardian to change the location of a child.

Section 47 of the FLA requires a change in circumstance before a change to an order respecting parenting arrangements is made. While an unsuccessful application to move coupled with other questionable decisions by a guardian may justify a change in parenting arrangements based on the best interests of the child, an unsuccessful proposal to move on its own is insufficient justification for such a change.

This section is important because, otherwise, a relocating guardian may forego a relocation where it would be in the child’s best interests because of fear an unsuccessful application could result in a significant change to the parenting arrangements. There have been challenging cases where a parent applied for permission to move the child, only to have the court reject the move and then transfer custody to the other parent without further basis for the decision. This section provides clarity and ensures that when a relocation is denied, the status quo is maintained with respect to the parenting arrangements unless there is another change of circumstances.

Extraprovincial court orders

Sections 72 through 79 deals with extraprovincial matters respecting parenting arrangements.

Definitions and interpretation

72 (1) In this Division:

“extraprovincial order” means an order of an extraprovincial tribunal that is similar in nature to an order respecting guardianship, parenting arrangements or contact with a child;

“extraprovincial tribunal” means a court or tribunal, outside British Columbia, having authority to make an extraprovincial order.

(2) For the purposes of this Division, a child is habitually resident in the place where the child most recently resided

(a) with his or her parents,

(b) if the parents are living separate and apart, with one parent

(i) under an agreement,

(ii) with the implied consent of the other parent, or

(iii) under an order of a court or tribunal, or

(3) The removal or withholding of a child without the consent of a guardian does not affect the child’s habitual residence unless the guardian from whom the child is being removed or withheld acquiesces or delays in applying for an order of a court or an extraprovincial tribunal.

Purposes

73 The purposes of this Division are as follows:

(a) to ensure that court applications respecting guardianship, parenting arrangements or contact with a child are determined on the basis of the best interests of the child;

(b) to avoid the making of orders respecting guardianship, parenting arrangements or contact with a child, respecting the same child, in more than one jurisdiction;

(c) to discourage child abduction as an alternative to determining by due process the guardianship of, or parenting arrangements with respect to, a child;

(d) to provide for effective enforcement of orders respecting guardianship, parenting arrangements or contact with a child, and for the recognition and enforcement of extraprovincial orders.

Determining whether to act under this Part

74 (1) This section applies if an order respecting guardianship, parenting arrangements or contact with a child may be made, respecting the same child, in more than one jurisdiction.

(2) Despite any other provision of this Part, a court may make an order under this Part respecting guardianship, parenting arrangements or contact with a child only if one of the following conditions is met:

(a) the child is habitually resident in British Columbia when the application is filed;

(b) the child is not habitually resident in British Columbia when the application is filed, but the court is satisfied that

(i) the child is physically present in British Columbia when the application is filed,

(ii) substantial evidence concerning the best interests of the child is available in British Columbia,

(iii) no application for an extraprovincial order is pending before an extraprovincial tribunal in a place where the child is habitually resident,

(iv) no extraprovincial order has been recognized by a court in British Columbia,

(v) the child has a real and substantial connection with British Columbia, and

(vi) on the balance of convenience, it is appropriate for jurisdiction to be exercised in British Columbia;

(c) the child is physically present in British Columbia and the court is satisfied that the child would suffer serious harm if the child were to

(i) remain with, or be returned to, the child’s guardian, or

(ii) be removed from British Columbia.

(3) A court may decline to make an order under this Part if the court considers that it is more appropriate for jurisdiction to be exercised outside British Columbia.

Recognition of extraprovincial orders

75 (1) A court must recognize an extraprovincial order if all of the following apply:

(a) the extraprovincial tribunal would have had jurisdiction to make the order under the rules that are applicable in British Columbia;

(b) each party to a proceeding in which the extraprovincial order was made had

(i) reasonable notice that the order would be made, and

(ii) a reasonable opportunity to be heard respecting the order;

(d) it would not be contrary to public policy in British Columbia to recognize the order.

(2) On recognition by a court,

(a) an extraprovincial order has the same effect, and may be enforced, as if it were an order made under section 45 [orders respecting parenting arrangements], 51 [orders respecting guardianship] or 59 [orders respecting contact], as applicable, and

(b) the court may, if necessary to give effect to the extraprovincial order, make any order that the court may make under this Act.

(3) If an application is made to recognize more than one extraprovincial order and the orders conflict, the court must recognize the order that is most consistent with the best interests of the child.

Superseding extraprovincial orders

76 (1) On application, a court may make an order that supersedes an extraprovincial order that has been recognized under section 75 [recognition of extraprovincial orders] if satisfied that

(a) the child would suffer serious harm if that child were to

(i) remain with, or be returned to, the child’s guardian, or

(ii) be removed from British Columbia, or

(b) a change in circumstances affects, or is likely to affect, the best interests of the child and subsection (2) of this section applies.

(2) For the purposes of subsection (1) (b), an order may be made only if

(a) the child is habitually resident in British Columbia when an application is filed, or

(b) the child is not habitually resident in British Columbia when the application is filed, but the court is satisfied that

(i) the circumstances described in section 74 (2) (b) (i), (ii), (v) and (vi) [determining whether to act under this Part] apply, and

(ii) the child no longer has a real and substantial connection with the place where the extraprovincial order was made.

Wrongful removal of child

77 (1) This section applies if a court

(a) may not make an order or declines to make an order under section 74 [determining whether to act under this Part], or

(b) is satisfied that a child has been wrongfully removed to, or is being wrongfully retained in, British Columbia.

(2) In the circumstances set out in subsection (1), a court may do one or more of the following:

(a) make any interim order that the court is satisfied is in the best interests of the child;

(b) stay an application to the court for an order, subject to

(i) the condition that a party to the application promptly start a similar proceeding before an extraprovincial tribunal, or

(ii) any other conditions the court considers appropriate;

(c) order a party to return the child to a place the court considers appropriate and, in the discretion of the court, order a party to pay all or part of the expenses reasonably and necessarily incurred for travel and other expenses of the child and of any parties to or witnesses in the proceeding.

Extraprovincial evidence

78 (1) In this section, “senior legal executive” means the Attorney General, Minister of Justice or similar officer of a place outside British Columbia.

(2) If a court considers it necessary to receive evidence from a place outside British Columbia before making an order respecting guardianship, parenting arrangements or contact with a child, the court may send to the senior legal executive of the place a request, along with any necessary supporting material, that

(a) the senior legal executive take any necessary action to require a named person to attend before the proper tribunal in that place and produce or give evidence respecting the subject matter of the application, and

(b) the senior legal executive, or the tribunal, send to the court a certified copy of the evidence produced or given before the tribunal.

(3) A court that acts under subsection (2) may order payment of all or part of the expenses reasonably and necessarily incurred for the purposes of this section.

Referral to court

79 (1) If the Attorney General receives from an extraprovincial tribunal a request similar to that referred to in section 78 [extraprovincial evidence], along with any necessary supporting material, the Attorney General must refer the request and the material to the proper court.

(2) A court to which the Attorney General refers a request under subsection (1) must require the person named in the request to attend before the court and produce or give evidence in accordance with the request.

Hague Convention cases or international child abduction cases

Section 80 deals with international child abduction and reads as follows:

International child abduction

80 (1) In this section, “convention” means the Convention on the Civil Aspects of International Child Abduction signed at The Hague on October 25, 1980.

(2) The definitions in the convention in relation to custody and access apply to this Division for the purpose of applying the convention.

(3) For the purpose of the convention, the Attorney General is the Central Authority for British Columbia.

(4) Subject to subsection (5), the provisions of the convention have the force of law in British Columbia.

(5) The government is not bound to assume any costs resulting from the participation of legal counsel or advisors, or from a court proceeding, in relation to applications submitted under the convention, except to the extent that the costs are covered under British Columbia’s system of legal aid and advice.

(6) Subsections (1) to (5) and the convention apply respecting a child who, immediately before a breach of custody or access rights, was habitually resident in a contracting state, but do not apply respecting a child described in subsection (7).

(7) Division 7 [Extraprovincial Matters Respecting Parenting Arrangements] applies respecting

(a) a child who is in Canada and who, immediately before a breach of custody or access rights, was habitually resident in Canada,

(b) a child who, immediately before a breach of custody or access rights, was habitually resident in a state other than a contracting state,

(c) a child who, immediately before a breach of custody or access rights, was resident, but not habitually resident, in a contracting state, and

(d) any other child affected by an extraprovincial order, other than a child respecting whom subsections (1) to (5) of this section and the convention apply.

Explanation from the Ministry of Justice

This section addresses the Hague Convention on the Civil Aspects of International Child Abduction to ensure the continued application of the Convention on the Civil Aspects of International Child Abduction in British Columbia.

It deals with administrative requirements of the convention such as appointing a “Central Authority”. The Central Authority is the office that assists parents and guardians with locating children in other jurisdictions. It is also responsible for communication and coordination with other jurisdictions with regard to ensuring the return of children to British Columbia.

This section identifies the Attorney General as the “Central Authority” for British Columbia.

Section 80 carries over s. 55 of the Family Relations Act.

Commentary

Part 4 of the FRA consisted of one section, s. 55, with a number of subsections. Division 8 of the FLA maintains this structure as it consists of one section, s. 80, with a number of subsections.

The heading of s. 55 of the FRA, “International Child Abduction”, remains the same for s. 80 of the FLA.

The purpose and effect of s. 80 of the FLA is the same as that of s. 55 of the FRA, which is to give full force and effect to the Hague Convention on the Civil Aspects of International Child Abduction in British Columbia. The wording of s. 80 of the FLA is essentially the same in most instances as the wording of s. 55 of the FRA and it would therefore appear that there will be little change in procedure or jurisprudence in cases of international child abduction under the Hague Convention in British Columbia resulting from the enactment of this division of the FLA.

Section 80(1) of the FLA, like s. 55(1) of the FRA, states that “convention” refers to the Hague Convention on the Civil Aspects of International Child Abduction and s. 80(4) of the FLA, like s. 55(2), states that the provisions of the convention have the force of law in British Columbia. Both subsections state that they are subject to another subsection, s. 80(5) in the FLA and s. 55(4) in the FRA. The effect of this in both instances is to provide that the Government of British Columbia is not liable for any costs related to Hague Convention proceedings, with the exception of cases in which legal aid may be provided where that is deemed to be appropriate.

Section 80(3) of the FLA, like s. 55(3) of the FRA, designates the Attorney General of British Columbia as the Hague Convention Central Authority.

Section 80(6) and (7) of the FLA, like s. 55(5) and (6) of the FRA, states that the Hague Convention is to be utilized only in cases in which the Convention is applicable while Division 7 applies in all other cases in which children have been wrongfully removed or wrongfully retained or are affected by extraprovincial orders.

A new subsection has been added, s. 80(2), stating that the definitions in the Convention that relate to custody and access apply to Division 8 for the purpose of applying the Convention. It appears that this subsection has been added because the FLA, unlike the FRA, no longer uses the terms “custody” and “access” and is designed to provide that those terms may still be used when dealing with applications under the Convention in British Columbia.

One subsection that was contained in the FRA has been deleted, s. 55(7). This subsection was originally included, it appears, to provide that the Attorney General was required to publish a notice in Part II of the Gazette stating the date on which the Convention was to come into force in British Columbia. As the Convention is in force and has been in force in British Columbia for many years, this subsection was no longer needed.

Child support pr child maintenance

Sections 147 through 152 deals with child support and read as follows:

Duty to provide support for child

147 (1) Each parent and guardian of a child has a duty to provide support for the child, unless the child

(a) is a spouse, or

(b) is under 19 years of age and has voluntarily withdrawn from his or her parents’ or guardians’ charge, except if the child withdrew because of family violence or because the child’s circumstances were, considered objectively, intolerable.

(2) If a child referred to in subsection (1) (b) returns to his or her parents’ or guardians’ charge, their duty to provide support for the child resumes.

(3) If a guardian who is not the child’s parent has a duty to provide support for that child, the guardian’s duty is secondary to that of the child’s parents.

(4) A child’s stepparent does not have a duty to provide support for the child unless

(a) the stepparent contributed to the support of the child for at least one year, and

(b) a proceeding for an order under this Part, against the stepparent, is started within one year after the date the stepparent last contributed to the support of the child.

(5) If a stepparent has a duty to provide support for a child under subsection (4), the stepparent’s duty

(a) is secondary to that of the child’s parents and guardians, and

(b) extends only as appropriate on consideration of

(i) the standard of living experienced by the child during the relationship between the stepparent and his or her spouse, and

(ii) the length of time during which the child lived with the stepparent.

Agreements respecting child support

148 (1) An agreement respecting child support is binding only if the agreement is made

(a) after separation, or

(b) when the parties are about to separate, for the purpose of being effective on separation.

(2) A written agreement respecting child support that is filed in the court is enforceable under this Act and the Family Maintenance Enforcement Act as if it were an order of the court.

(3) On application by a party, the court may set aside or replace with an order made under this Division all or part of an agreement respecting child support if the court would make a different order on consideration of the matters set out in section 150 [determining child support].

Orders respecting child support

149 (1) Subject to subsection (3), on application by a person referred to in subsection (2), a court may make an order requiring a child’s parent or guardian to pay child support to a designated person.

(2) An application may be made by

(a) a child’s parent or guardian,

(b) the child or a person acting on behalf of the child, or

(c) if the right to apply for an order under this section is assigned to a minister under the Employment and Assistance Act or the Employment and Assistance for Persons with Disabilities Act, the minister to whom the right is assigned in the name of the government or the name of the person who made the assignment.

(3) An order under subsection (1) may only be made against a stepparent if

(a) the stepparent has a duty to provide for the child under section 147 (4) [duty to provide support for child], and

(b) the stepparent and the child’s parent are separated.

(4) The making of an order against one person for the support of a child does not affect the liability of, or prevent the making of an order against, any other person responsible for the support of the child.

Determining child support

150 (1) If a court makes an order respecting child support, the amount of child support must be determined in accordance with the child support guidelines.

(2) Despite subsection (1), a court may order child support in an amount different from that required by the child support guidelines if

(a) the parties consent under section 219 [persons may consent to order being made] or have an agreement respecting child support, and

(b) the court is satisfied that reasonable arrangements have been made for the support of the child.

(3) The court must consider the child support guidelines for the purposes of subsection (2), but must not consider arrangements made for the support of the child to be unreasonable only because the amount required under the child support guidelines differs from those arrangements.

(4) Despite subsection (1), a court may order child support in an amount different from that required by the child support guidelines if satisfied that

(a) an agreement or order respecting the financial duties of the parents or guardians or the division or transfer of property, other than an agreement respecting child support, benefits the child directly or indirectly, or that special provisions have otherwise been made for the benefit of the child, and

(b) applying the child support guidelines would be inequitable on consideration of the agreement, order or special provisions.

(5) If a court makes an order respecting child support in an amount different from that required under the child support guidelines, it must give reasons for doing so.

If parentage at issue

151 If the parentage of a child is at issue in a proceeding for an order respecting child support, the court, regardless of whether an application is made under section 31 [orders declaring parentage], may do one or both of the following:

(a) make an order respecting the child’s parentage in accordance with that section;

(b) make an order under section 33 (2) [parentage tests].

Changing, suspending or terminating orders respecting child support

152 (1) On application, a court may change, suspend or terminate an order respecting child support, and may do so prospectively or retroactively.

(2) Before making an order under subsection (1), the court must be satisfied that at least one of the following exists, and take it into consideration:

(a) a change in circumstances, as provided for in the child support guidelines, has occurred since the order respecting child support was made;

(b) evidence of a substantial nature that was not available during the previous hearing has become available;

Spousal support or spousal maintenance

Sections 160 through 174 deals with spousal support and reads as follows:

Duty to provide support for entitled spouse

160 If, after considering the objectives set out in section 161 [objectives of spousal support], a spouse is entitled to spousal support, the other spouse has a duty to provide support for the spouse in accordance with section 162 [determining spousal support].

Objectives of spousal support

161 In determining entitlement to spousal support, the parties to an agreement or the court must consider the following objectives:

(a) to recognize any economic advantages or disadvantages to the spouses arising from the relationship between the spouses or the breakdown of that relationship;

(b) to apportion between the spouses any financial consequences arising from the care of their child, beyond the duty to provide support for the child;

(d) as far as practicable, to promote the economic self-sufficiency of each spouse within a reasonable period of time.

Determining spousal support

162 The amount and duration of spousal support, if any, must be determined on consideration of the conditions, means, needs and other circumstances of each spouse, including the following:

(a) the length of time the spouses lived together;

(b) the functions performed by each spouse during the period they lived together;

Agreements respecting spousal support

163 (1) An agreement respecting spousal support may provide for the circumstances under which spousal support will change or end, including if a spouse lives with another person or enters a relationship with another spouse, but a condition of spousal support that the spouse abstain from sexual relations after separation is not binding.

(2) Despite section 160 [duty to provide support for entitled spouse], in making an agreement respecting spousal support, a spouse may agree to release the other spouse from liability for spousal support.

(3) A written agreement respecting spousal support that is filed in the court is enforceable under this Act and the Family Maintenance Enforcement Act as if it were an order of the court.

Setting aside agreements respecting spousal support

164 (1) This section applies if spouses have a written agreement respecting spousal support, with the signature of each spouse witnessed by at least one person.

(2) For the purposes of subsection (1), the same person may witness each signature.

(3) On application by a spouse, the court may set aside or replace with an order made under this Division all or part of an agreement described in subsection (1) only if satisfied that one or more of the following circumstances existed when the parties entered into the agreement:

(a) a spouse failed to disclose income, significant property or debts, or other information relevant to the negotiation of the agreement;

(b) a spouse took improper advantage of the other spouse’s vulnerability, including the other party’s ignorance, need or distress;

(d) other circumstances that would under the common law cause all or part of a contract to be voidable.

(4) The court may decline to act under subsection (3) if, on consideration of all of the evidence, the court would not replace the agreement with an order that is substantially different from that set out in the agreement.

(5) Despite subsection (3), the court may set aside or replace with an order made under this Division all or part of an agreement if satisfied that none of the circumstances described in that subsection existed when the parties entered into the agreement but that the agreement is significantly unfair on consideration of the following:

(a) the length of time that has passed since the agreement was made;

(b) any changes, since the agreement was made, in the condition, means, needs or other circumstances of a spouse;

(d) the degree to which the spouses relied on the terms of the agreement;

(e) the degree to which the agreement meets the objectives set out in section 161 [objectives of spousal support].

(6) Despite subsection (1), the court may apply this section to an unwitnessed written agreement if the court is satisfied it would be appropriate to do so in all of the circumstances.

Orders respecting spousal support

165 (1) On application, the court may order a spouse to pay to a designated person the amount the court considers appropriate as spousal support after taking into consideration section 160 [duty to provide support for entitled spouse].

(2) An application under subsection (1) may be made

(a) by either spouse or both,

(b) on behalf of a spouse, by a designated agency under the Adult Guardianship Act after an investigation conducted under Part 3 of that Act, or

(c) if the right to apply for an order under this section is assigned to a minister under the Employment and Assistance Act or the Employment and Assistance for Persons with Disabilities Act, by the minister to whom the right is assigned in the name of the government or the name of the person who made the assignment.

(3) The court may not make an order respecting spousal support if the spouses have an agreement described in section 164 (1) [setting aside agreements respecting spousal support], unless all or part of the agreement is set aside under that section.

Misconduct of spouse

166 In making an order respecting spousal support, the court must not consider any misconduct of a spouse, except conduct that arbitrarily or unreasonably

(a) causes, prolongs or aggravates the need for spousal support, or

(b) affects the ability to provide spousal support.

Changing, suspending or terminating orders respecting spousal support

167 (1) On application, a court may change, suspend or terminate an order respecting spousal support, and may do so prospectively or retroactively.

(2) Before making an order under subsection (1), the court must be satisfied that at least one of the following exists, and take it into consideration:

(a) a change in the condition, means, needs or other circumstances of either spouse has occurred since the order respecting spousal support was made;

(b) evidence of a substantial nature that was not available during the previous hearing has become available;

(3) Despite subsection (2), if an order requires payment of spousal support for a definite period or until a specified event occurs, the court, on an application made after the expiration of that period or occurrence of that event, may not make an order under subsection (1) for the purpose of resuming spousal support unless satisfied that

(a) the order is necessary to relieve economic hardship that

(i) arises from a change described in subsection (2) (a), and

(ii) is related to the relationship between the spouses, and

(b) the changed circumstances, had they existed at the time the order was made, would likely have resulted in a different order.

Review of spousal support

168 (1) An agreement or order respecting spousal support may provide for a review of spousal support, and for this purpose may provide for

(a) the review to occur on or after a specified date, after a specified period of time or after a specified event has occurred,

(b) the type of family dispute resolution by which the review will take place,

(d) the matters to be considered for the purposes of a review.

(2) On review, a court, on application, may do one or more of the following:

(a) confirm an agreement or order respecting spousal support;

(b) set aside all or part of an agreement, or terminate an order, respecting spousal support;

(3) In making an order under this section, the court is not required to consider any of the matters referred to in sections 164 [setting aside agreements respecting spousal support] and 167 (2) [changing, suspending or terminating orders respecting spousal support].

Review of spousal support if pension benefits

169 (1) This section applies if an agreement or order does not address whether spousal support may be reviewed under section 168 [review of spousal support] and if

(a) a spouse who must pay spousal support starts receiving benefits under a pension, or

(b) a spouse who is entitled to receive spousal support becomes eligible to receive benefits under a pension.

(2) In the circumstances set out in subsection (1), a court, on application, may do one or more of the following:

(a) confirm an agreement or order respecting spousal support;

(b) set aside all or part of an agreement, or terminate an order, respecting spousal support;

Division 5 — General

Matters that may be provided for in support orders

170 In an order respecting child support or spousal support, the court may provide for one or more of the following:

(a) that payments be made periodically, annually or otherwise, for an indefinite or limited period or until a specified event occurs;

(b) that child support or spousal support be paid respecting any period of time before the date the application for the order is made;

(d) that a charge be registered against specific property to secure payment;

(e) that a person who has a contract of life insurance within the meaning of Part 3 of the Insurance Act

(i) designate his or her spouse or child as a beneficiary, irrevocably or for the period designated by the court, and

(ii) either pay all premiums on the policy, or authorize his or her spouse to pay all premiums on the policy and to compensate the spouse for doing so;

(f) that expenses arising from and incidental to prenatal care of a mother or child, or the birth of a child, be paid, except in relation to the prenatal care of a surrogate within the meaning of section 29 (1) [parentage if surrogacy arrangement];

(g) subject to section 171 (1) [support obligations after death], that a duty to pay child support or spousal support continues after the death of the person having the duty, and is a debt of his or her estate for the period fixed by the court.

Support obligations after death

171 (1) Before making an order under section 170 (g) [matters that may be provided for in support orders], the court must consider all of the following factors:

(a) that the person receiving child support or spousal support has a significant need for support that is likely to continue past the death of the person paying child support or spousal support;

(b) that the estate of the person paying child support or spousal support is sufficient to meet the need referred to in paragraph (a) after taking into account all claims on the estate, including those of creditors and beneficiaries;

(2) If an agreement, or an order under section 170 (g), is made and the person having a duty to pay child support or spousal support dies, the person’s personal representative may make an application, and the court may make an order, to

(a) set aside or replace with an order made under this Part all or part of the agreement, or

(b) change, suspend or terminate the order.

(3) If a person having a duty to pay child support or spousal support under an agreement or order dies and the agreement or order is silent respecting whether the duty continues after the death of the person and is a debt of his or her estate,

(a) the person receiving support may make an application under section 149 [orders respecting child support] or 165 [orders respecting spousal support], and

(b) if, on consideration of the factors set out in subsection (1) of this section, an order is made, the duty to pay child support or spousal support continues despite the death of the person and is a debt of his or her estate for the period fixed by the court.

Separate support amounts required

172 If the court makes both an order for child support and an order for spousal support, the court must specify the amounts of support separately rather than as a single amount.

Priority of child support

173 (1) In making an agreement or order respecting spousal support, the parties to the agreement and the court must give priority to any duty to pay child support.

(2) If, as a result of giving priority to a duty to pay child support, the parties do not make an agreement respecting spousal support or make an agreement respecting spousal support in an amount that is less than it otherwise would have been,

(a) the agreement must indicate that the circumstances referred to in this subsection apply, and

(b) if child support is subsequently reduced or terminated,

(i) the reduction or termination is a change in circumstances, and

(ii) the court may make an order under section 165 [orders respecting spousal support].

(3) If, as a result of giving priority to a duty to pay child support, a court is unable to make an order respecting spousal support or makes an order respecting spousal support in an amount that is less than it otherwise would have been,

(a) the court must give reasons for doing so, and

(b) if child support is subsequently reduced or terminated,

(i) the reduction or termination is a change in circumstances, and

(ii) the court may make an order under section 165 or 167 [changing, suspending or terminating orders respecting spousal support], as applicable.

(4) Section 164 [setting aside agreements respecting spousal support] does not apply to the making of an order under this section.

Reducing or cancelling arrears

174 (1) On application, a court may reduce or cancel arrears owing under an agreement or order respecting child support or spousal support if satisfied that it would be grossly unfair not to reduce or cancel the arrears.

(2) For the purposes of this section, the court may consider

(a) the efforts of the person responsible for paying support to comply with the agreement or order respecting support,

(b) the reasons why the person responsible for paying support cannot pay the arrears owing, and

(3) If a court reduces arrears under this section, the court may order that interest does not accrue on the reduced arrears if satisfied that it would be grossly unfair not to make such an order.

(4) If a court cancels arrears under this section, the court may cancel interest that has accrued, under section 11.1 of the Family Maintenance Enforcement Act, on the cancelled arrears if satisfied that it would be grossly unfair not to cancel the accrued interest.

Protection orders

Restraining orders are now termed “Protection Orders” and dealt with by Part 9 of the Family Law Act.

The Ministry of Justice explanation reads as follows:

Explanation from the Ministry of Justice

Existing restraining orders, which prohibit harassment and contact in specified circumstances, are replaced with one type of order: a “protection order”. A protection order is a safety-related order. Breaches of a protection order will be a criminal offence and may be enforced under s. 127 of the Criminal Code.

Use of the Criminal Code to enforce protection orders will promote timely, effective enforcement, which can save lives. It streamlines enforcement and limits it to the criminal justice system, where the police and Crown counsel are familiar with the processes and tools. It sends the message that breaches of protection orders will be taken seriously.

As well, the new protection order scheme:

broadens the range of family members who are eligible to apply for protection orders;

clarifies the procedure to ensure protection orders are accessible, clear, and effective; and

provides guidance on risk factors to promote the use of protection orders in appropriate and safety-related situations.

The new regime responds to recommendations made in numerous reports, including the Keeping Women Safe report and the Representative for Children and Youth’s Honouring Christian Lee report, which say consistent enforcement of protection orders is critical to increasing victim safety. The previous scheme, which was enforced through civil law, was identified as problematic on a number of levels. Inconsistent enforcement of civil restraining orders was identified as an issue that impacts families’ safety and confidence in the justice system.

To ensure a consistent approach to enforcement of safety-related orders, breaches of orders to protect children made under the Child, Family and Community Service Act (Protective Intervention Orders under s. 28 or Restraining Orders under s. 98) will now also be enforced through s. 127 of the Criminal Code. This will allow for consistent and streamlined enforcement of civil orders to protect families and children regardless of whether they receive their protection order under the family law or the child protection law.

Protection from family violence

Sections 182 through 191 deals with the protection from family violence and reads as follows:

Definitions

182 In this Part and the regulations made under section 248 (1) (d) [general regulation-making powers]:

“at-risk family member” means a person whose safety and security is or is likely at risk from family violence carried out by a family member;

“residence” means a place where an at-risk family member normally or temporarily resides, including a place that was vacated because of family violence.

Explanation from the Ministry of Justice

Section 182 creates definitions necessary to support interpretation of the other sections in this Part.

Commentary

Section 182 broadens the definition of the range of persons who are eligible to apply for a protection order while also expanding the definition of “residence” for the “at-risk family member”. The definitions provided support the interpretations for the sections under Part 9.

Orders respecting protection

183 (1) An order under this section

(a) may be made on application by a family member claiming to be an at-risk family member, by a person on behalf of an at-risk family member, or on the court’s own initiative, and

(b) need not be made in conjunction with any other proceeding or claim for relief under this Act.

(2) A court may make an order against a family member for the protection of another family member if the court determines that

(a) family violence is likely to occur, and

(b) the other family member is an at-risk family member.

(3) An order under subsection (2) may include one or more of the following:

(a) a provision restraining the family member from

(i) directly or indirectly communicating with or contacting the at-risk family member or a specified person,

(ii) attending at, nearing or entering a place regularly attended by the at-risk family member, including the residence, property, business, school or place of employment of the at-risk family member, even if the family member owns the place, or has a right to possess the place,

(iii) following the at-risk family member, or

(iv) possessing a weapon or firearm;

(b) limits on the family member in communicating with or contacting the at-risk family member, including specifying the manner or means of communication or contact;

(i) remove the family member from the residence immediately or within a specified period of time,

(ii) accompany the family member, the at-risk family member or a specified person to the residence as soon as practicable, or within a specified period of time, to supervise the removal of personal belongings, or

(iii) seize from the family member any weapons or firearms and related documents;

(d) a provision requiring the family member to report to the court, or to a person named by the court, at the time and in the manner specified by the court;

(e) any terms or conditions the court considers necessary to

(i) protect the safety and security of the at-risk family member, or

(ii) implement the order.

(4) Unless the court provides otherwise, an order under this section expires one year after the date it is made.

(5) If an order is made under this section at the same time as another order is made under this Act, including an order made under Division 5 [Orders Respecting Conduct] of Part 10, the orders must not be recorded in the same document.

Explanation from the Ministry of Justice

Section 183 establishes the framework for the new protection order regime.

It provides that a protection order may be made against a family member where there is a safety concern. The broadened range of eligible family members (as defined in s. 1 of the Act) is consistent with domestic violence laws elsewhere in Canada.

The section allows for an application for a protection order to be made by the at-risk family member or by another person on behalf of the at-risk family member. For example, the mother could also apply for a protection order on behalf of her child. It also allows for the court to make an order on its own initiative, where a risk is identified.

The section clarifies that protection orders are available on a stand-alone basis; they may be made at any time and need not be connected to other family law proceedings.

Section 183 limits the terms that may be included in protection orders to ensure they are safety-focused and appropriate for enforcement by police and the criminal justice system. This is intended to promote more consistent, timely and effective enforcement. Under the Family Relations Act, many restraining orders also included provisions that were not safety-related, which undermined the seriousness of the order and resulted in enforcement challenges. The new regime creates a division between orders for risky and non-risky behaviours to promote more effective enforcement appropriate to the situation. If a person requires an order for non-safety-related issues, there are “conduct orders” available under Part 10 of the Family Law Act that are enforced through family law remedies, whereas the safety-related protection orders are enforced through the criminal law remedies.

The section provides a default expiry date of one year unless the court specifies a different duration. Under the Family Relations Act, many orders had no end date, which caused enforcement problems since police were unable to tell whether the order remained relevant. The default expiry date allows judges to tailor orders while providing greater clarity for the police in their enforcement role as compared to orders that do not provide an end-date. Peace bonds under the Criminal Code also expire after a year.

As with all orders, a protection order takes effect the moment the judge makes it and it must be complied with right away. Under s. 229 of the Act, an order may be enforced whether or not service has been proven. If the order was made without notice, and a police officer is called to enforce a protection order in the case where the person did not know about the order, the police officer can advise the person and take necessary steps to promote safety.

A protection order is not to be combined within the same document as other types of orders.

This will ensure that the orders in the Protection Order Registry are safety related and that those safety-related provisions are easily identifiable.

Section 183 replaces ss. 37, 38 and 126 of the Family Relations Act.

Commentary

The concept of the protection order under this new regime provides that:

Another person can apply for a protection order for the at-risk family member.

A party may still be granted a protection order even though they may no longer reside with the opposing party; for example, if women are in a transition house they will still be able to apply for a protection order.

The court can make an order for protection on its own discretion.

The protection order can be made at any time and is available to those at risk on a “stand alone basis” without necessitating that a family court action has been commenced.

The orders have a one year expiry unless the court otherwise directs. The one-year expiry date reflects the time frame for peace bonds under the Criminal Code.

The orders provide for effective enforcement measures by all members of the criminal justice system including directions for police officers to protect the subject of the protection order.

Under this new regime the FLA distinguishes between safety-related orders—protection orders under this section—and non-safety related orders that can be addressed under “conduct orders” under Part 10 of the Act.

Most significantly, protection orders will be enforced through the criminal justice system, under s. 127 of the Criminal Code. A breach of a protection order under this new regime

will be a criminal offence.

Parties can apply for protection orders in Provincial or Supreme Court.

Peace bonds are still available for parties seeking to pursue safety-related orders through the criminal courts.

Whether to make protection order

184 (1) In determining whether to make an order under this Part, the court must consider at least the following risk factors:

(a) any history of family violence by the family member against whom the order is to be made;

(b) whether any family violence is repetitive or escalating;

(c) whether any psychological or emotional abuse constitutes, or is evidence of, a pattern of coercive and controlling behaviour directed at the at-risk family member;

(d) the current status of the relationship between the family member against whom the order is to be made and the at-risk family member, including any recent separation or intention to separate;

(e) any circumstance of the family member against whom the order is to be made that may increase the risk of family violence by that family member, including substance abuse, employment or financial problems, mental health problems associated with a risk of violence, access to weapons, or a history of violence;

(f) the at-risk family member’s perception of risks to his or her own safety and security;

(g) any circumstance that may increase the at-risk family member’s vulnerability, including pregnancy, age, family circumstances, health or economic dependence.

(2) If family members are seeking orders under this Part against each other, the court must consider whether the order should be made against one person only, taking into account

(a) the history of, and potential for, family violence,

(b) the extent of any injuries or harm suffered, and

(3) For the purposes of subsection (2), the person who initiates a particular incident of family violence is not necessarily the person against whom an order should be made.

(4) The court may make an order under this Part regardless of whether any of the following circumstances exist:

(a) an order for the protection of the at-risk family member has been made previously against the family member against whom an order is to be made, whether or not the family member complied with the order;

(b) the family member against whom the order is to be made is temporarily absent from the residence;

(d) criminal charges have been or may be laid against the family member against whom the order is to be made;

(e) the at-risk family member has a history of returning to the residence and of living with the family member against whom the order is to be made after family violence has occurred;

(f) an order under section 225 [orders restricting communications] has been made, respecting the at-risk family member, against the family member against whom the order is to be made.

Explanation from the Ministry of Justice

Section 184 provides guidance to courts on when protection orders should be ordered.

It lists risk factors courts must consider in determining whether family violence is likely to occur and whether it is appropriate to make a protection order. The risk factors are consistent with risk assessment research and tools used in British Columbia and across Canada by police and the justice system.

The section also provides factors for a court to consider when determining whether the order should be made against only one person in cases where both parties are seeking protection orders against each other. Mutual orders may not be appropriate where one person is the primary aggressor and one is repeatedly a victim.

Section 184 also provides examples of circumstances that should not preclude the making of a protection order, including whether the victim has previously returned to the home after incidents of family violence or whether criminal charges have been laid.

Commentary

Section 184 obligates the court to engage in an assessment of potential risk factors that may warrant ordering a protection order. This section provides a non-exhaustive list of risk factors that the court “must” “at least” consider in their determination process of either ordering or not ordering a protection order.

If child a family member

185 If a child is a family member, the court must consider, in addition to the factors set out in section 184 [whether to make protection order],

(a) whether the child may be exposed to family violence if an order under this Part is not made, and

(b) whether an order under this Part should also be made respecting the child if an order under this Part is made respecting the child’s parent or guardian.

Explanation from the Ministry of Justice

Section 185 adds additional factors to be considered when making a protection order where children are involved.

It requires the court to consider whether a child family member specifically requires protection in any circumstance where family violence may occur including to protect them from exposure to family violence.

This section responds to recommendations, such as those from the Representative for Children and Youth in the Honouring Christian Lee report, that challenge the assumption that the safety of a child is secured through the safety of the parent. It recognizes that children may specifically require protection as well.

Commentary

In addition to the factors outlined in s. 184, under s. 185 in the event the court is faced with assessing whether to order a protection order for a child, the court must assess whether the child will witness or be exposed to violence if an order is not made; and whether the child separately requires a protection order, regardless of whether an order is made for a child’s parent or guardian.

Again the court is obligated to review these factors; the legislation provides that the court “must” engage in this additional assessment where children may face a safety risk.

Orders without notice

186 (1) An application for an order under this Part may be made without notice.

(2) If an order is made under this Part without notice, the court, on application by the party against whom the order is made, may

(a) set aside the order, or

(b) make an order under section 187 [changing or terminating orders respecting protection].

Explanation from the Ministry of Justice

Section 186 clarifies that protection orders can be made without notice, and sets out how an order may be set aside, changed or terminated.

It establishes that in cases where family violence is a risk, orders without notice may be appropriate to promote safety.

Where an order is made without notice, the court may set aside or change the order if the order is not appropriate on consideration of the evidence of the party against whom the order was made. If the order is set aside, it is like the order never was and there is no prejudice to the party.

Changing or terminating orders respecting protection

187 (1) On application by a party, a court may do one or more of the following respecting an order made under this Part:

(a) shorten the term of the order;

(b) extend the term of the order;

(d) terminate the order.

(2) An application under this section must be made before the expiry of the order that is the subject of the application.

(3) Nothing in subsection (2) of this section prohibits a person from making a subsequent application for an order under section 183 [orders respecting protection].

Explanation from the Ministry of Justice

Section 187 allows the court to shorten, lengthen, terminate or otherwise change a protection order after it is made to address changing circumstances or evolving risk.

Commentary

The application must be made before the expiry of the protection order.

Enforcing orders respecting protection

188 (1) An order made under this Part may not be enforced

(a) by means of any order that may be made under this Act, or

(b) under the Offence Act.

(2) A police officer having reasonable and probable grounds to believe that a person has contravened a term of an order made under this Part may

(a) take action to enforce the order, whether or not there is proof that the order has been served on the person, and

(b) if necessary for the purpose of paragraph (a), use reasonable force.

Explanation from the Ministry of Justice

Restraining orders under the Family Relations Act were enforced through civil law. Enforcement of restraining orders under the Family Relations Act was identified as a critical justice system failure.

Section 188 replaces s. 128 of the Family Relations Act, which provides for civil enforcement through the Offence Act, with a section stating that neither the Offence Act nor the Family Law Act apply to the enforcement of a protection order.

The Act deliberately remains silent on how protection orders are to be enforced. This is necessary to allow for enforcement through the Criminal Code. Section 127 of the Criminal Code is a default enforcement mechanism that, by its terms, applies only where there is no other remedy available under the statute. Section 127 of the Criminal Code is successfully being used to enforce civil protection orders in Manitoba, and recently Ontario amended its legislation to do the same.

Police authority to act on a breach of a protection orders is also clearly provided for. This will avoid confusion and promote consistent police enforcement at the time of a breach.

The protection order itself will be a civil order. When the order is breached, the breach triggers the use of the Criminal Code. If the restrained party never breaches the protection order, they are never brought into the criminal system.

Using the Criminal Code to enforce protection orders will promote timely, effective enforcement, which can save lives. It streamlines enforcement and limits it to the criminal justice system, where the police and Crown counsel are familiar with the processes and tools, and it sends the message that breaches of protection orders will be taken seriously.

Conflict between orders

189 (1) In this section, “protection order” means any of the following orders:

(a) an order made under this Part;

(b) an order, made under the Criminal Code, that restricts a person from contacting or communicating with another person;

(c) an order, made by a court in British Columbia or another jurisdiction in Canada, that is similar in nature to an order made under this Part.

(2) If there is a conflict or an inconsistency between a protection order and an order made under a Part of this Act other than this Part, the other order is suspended, to the extent of the conflict or inconsistency, until

(a) either the other order or the protection order is varied in such a way that the conflict or inconsistency is eliminated, or

(b) the protection order is terminated.

Explanation from the Ministry of Justice

Section 189 gives priority to safety-related orders in cases where they conflict with another order relating to a family law dispute. These orders include: protection orders under the Family Law Act, orders under the Child, Family and Community Service Act and the Criminal Code, or safety-related orders made under legislation from another province.

For example, if a parent has parenting time but later bail conditions prohibit contact with the child, the safety-related bail conditions prevail and there is to be no contact with the child until the issue or inconsistency between the orders is resolved.

This will promote safety, eliminate confusion and provide for a consistent approach.

Rights not affected by Act

190 The making of an order under this Part does not affect any existing right of action of a person who has been the subject of family violence.

Explanation from the Ministry of Justice

Section 190 states that the making of a protection order does not affect any existing right of action of a person affected by family violence.

It clarifies that a person affected by family violence may continue to pursue civil or criminal proceedings in tandem with obtaining a protection order.

Extraprovincial orders

191 The Enforcement of Canadian Judgments and Decrees Act applies to an order, made by a court in another jurisdiction of Canada, that is similar to an order made under this Part.

Explanation from the Ministry of Justice

As part of the new protection order regime, consequential amendments have been made to the Enforcement of Canadian Judgments and Decrees Act which adopt the Uniform Law Conference of Canada’s recommendations. These amendments allow civil protection orders made by judges elsewhere in Canada to be enforced like protection orders from British Columbia without the need to register the out-of-province order. Manitoba, Saskatchewan and Nova Scotia have already enacted these amendments.

This section is intended to promote greater safety and consistency across Canada.

Commentary

Section 191 provides for the consistency of civil protection orders under the new protection order regime. This section provides that civil protection orders made by judges outside B.C. in other Canadian jurisdictions are to be enforced like B.C. protection orders. Furthermore, this section provides that out-of-province orders will not need to be registered to be enforced.

Consequential amendments have been made to the Enforcement of Canadian Judgments and Decrees Act to reflect the enforcement of such orders across Canada. Manitoba, Saskatchewan and Nova Scotia have enacted such amendments.

In I. (H.) v. I. (E.), 2011 NUCJ 32, the court provides detail on the basis for emergency protection orders and the determination of interim custody arrangements until further issues of violence could be evidenced at trial.

Some resources, which were highlighted in the White Paper, may help guide your practice as it relates to family violence:

M. Shaffer, “The Impact of Wife Abuse on Child Custody and Access Decisions”, (2004) 22 C.F.L. Q. 85.

N. Bala, P. Jaffe, and C. Crooks, “Spousal Violence and Child-Related Cases: Challenging Cases Requiring Differentiated Responses,” (2007) 27 (1) C.F.L.Q.

Additionally, the following organizations have produced significant resources related to family violence and children who witness violence:

Ending Violence Association of British Columbia http://www.endingviolence.org

Battered Women’s Support Services http://www.bwss.org

Legal Services Society British Columbia http://www.familylaw.lss.bc.ca/legal_issues/abuse.php

Clicklaw operated by the Courthouse Libraries British Columbia http://www.clicklaw.bc.ca/solveproblems/search?f=Abuse+%26+family+violence

Vancouver Family Arbitration

Websites summarizing these changes can be found at:

http://www.ag.gov.bc.ca/legislation/family-law/index.htm

http://resources.lss.bc.ca/pdfs/pubs/Guide-to-the-New-BC-Family-Law-Act-eng.pdf

http://www.ag.gov.bc.ca/legislation/family-law/pdf/notes-binder.pdf

Determining parentage of a child

The determination of who is a child’s parent is set out in Part 3 of the Family Law Act.

The parents of a child without the involvement of non-assisted reproduction (“sexual intercourse” in plain language), section 26 of the Family Law Act applies and reads as follows:

Parentage if no assisted reproduction

26 (1) On the birth of a child not born as a result of assisted reproduction, the child’s parents are the birth mother and the child’s biological father.

(2) For the purposes of this section, a male person is presumed, unless the contrary is proved or subsection (3) applies, to be a child’s biological father in any of the following circumstances:

(a) he was married to the child’s birth mother on the day of the child’s birth;

(b) he was married to the child’s birth mother and, within 300 days before the child’s birth, the marriage was ended

(i) by his death,

(ii) by a judgment of divorce, or

(iii) as referred to in section 21 [void and voidable marriages];

(d) he was living with the child’s birth mother in a marriage-like relationship within 300 days before, or on the day of, the child’s birth;

(e) he, along with the child’s birth mother, has acknowledged that he is the child’s father by having signed a statement under section 3 of the Vital Statistics Act;

(f) he has acknowledged that he is the child’s father by having signed an agreement under section 20 of the Child Paternity and Support Act, R.S.B.C. 1979, c. 49.

(3) If more than one person may be presumed to be a child’s biological father, no presumption of paternity may be made.

What if a male denies he is the child’s biological father? Section 33 of the Family Law Act applies and reads as follows:

Parentage tests

33 (1) In this section, “parentage tests” are tests used to identify inheritable characteristics, and include

(a) human leukocyte antigen tests,

(b) tests of the deoxyribonucleic acid (DNA), and

(2) On application by a party to a proceeding under this Part,

(a) the Supreme Court, or

(b) if necessary for the purposes of making an order under section 31 [orders declaring parentage], the Provincial Court,

may order a person, including a child, to have a tissue sample or blood sample, or both, taken by a medical practitioner or other qualified person for the purpose of conducting parentage tests.

(3) An order under subsection (2) of this section may require a party to pay all or part of the cost of the parentage tests.

(4) If a person named in an order under subsection (2) of this section fails to comply with the order, the court may draw from that failure any inference that the court considers appropriate.

Guardianship under the Family Law Act

The term “guardian” is defined as follows in the definition section of the Family Law Act:

“guardian” means a guardian under section 39 [parents are generally guardians] and Division 3 [Guardianship] of Part 4;

Section 39 reads as follows:

Parents are generally guardians

39 (1) While a child’s parents are living together and after the child’s parents separate, each parent of the child is the child’s guardian.

(2) Despite subsection (1), an agreement or order made after separation or when the parents are about to separate may provide that a parent is not the child’s guardian.

(3) A parent who has never resided with his or her child is not the child’s guardian unless one of the following applies:

(a) section 30 [parentage if other arrangement] applies and the person is a parent under that section;

(b) the parent and all of the child’s guardians make an agreement providing that the parent is also a guardian;

(4) If a child’s guardian and a person who is not the child’s guardian marry or enter into a marriage-like relationship, the person does not become a guardian of that child by reason only of the marriage or marriage-like relationship.

Family Law Act

The Family Law Act has replaced the Family Relations Act and ushered in major changes with regard to (click on each topic and you will be taken a more detailed discussion of the same).: