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Canada
Alberta
British Columbia
| Copyright (c) Queen's Printer, Victoria, British Columbia, Canada | IMPORTANT INFORMATION |
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Family Relations Act
[RSBC 1996] CHAPTER 128
Part 1 — Definitions and Jurisdiction
Definitions
1 (1) In this Act:
"child" means a person who is under the age of 19 years;
"child support guidelines" means the child support guidelines established by regulation under section 129 for the calculation of maintenance awards;
"child support order" means a maintenance order, as defined in section 87, for the maintenance and support of a child;
"court" means the Provincial Court exercising the jurisdiction referred to in section 6, or the Supreme Court;
"guardian" means the person who has all the powers and duties under section 25 respecting a child;
"guardian of the estate of a child" means the person who has all the powers and duties under section 25 respecting the estate of a child;
"guardian of the person of a child" means the person who has all the powers and duties under section 25 respecting the person of a child;
"Nisga'a child" has the same meaning as in the Nisga'a Final Agreement;
"Nisga'a Final Agreement" has the same meaning as in the Nisga'a Final Agreement Act;
"Nisga'a law" has the same meaning as in the Nisga'a Final Agreement;
"Nisga'a Lisims Government" has the same meaning as in the Nisga'a Final Agreement;
"parent" includes
(a) a guardian or guardian of the person of a child, or
(b) a stepparent of a child if
(i) the stepparent contributed to the support and maintenance of the child for at least one year, and
(ii) the proceeding under this Act by or against the stepparent is commenced within one year after the date the stepparent last contributed to the support and maintenance of the child;
"spouse" means a person who
(a) is married to another person,
(b) except under Parts 5 and 6, lived with another person in a marriage-like relationship for a period of at least 2 years if the application under this Act is made within one year after they ceased to live together and, for the purposes of this Act, the marriage-like relationship may be between persons of the same gender,
(c) applies for an order under this Act within 2 years of the making of an order
(i) for dissolution of the person's marriage,
(ii) for judicial separation, or
(iii) declaring the person's marriage to be null and void, or
(d) is a former spouse for the purpose of proceedings to enforce or vary an order.
(2) For the purpose of paragraph (b) of the definition of "parent" in subsection (1), a person is the stepparent of a child if the person and a parent of the child
(a) are or were married, or
(b) lived together in a marriage-like relationship for a period of at least 2 years and, for the purposes of this Act, the marriage-like relationship may be between persons of the same gender.
Family advocate
2 (1) The Attorney General may appoint a person who is a member in good standing of the Law Society of British Columbia to be a family advocate.
(2) Despite any other Act and subject to the law of Canada, a family advocate may attend a proceeding under this Act or respecting the
(a) adoption of a child,
(b) guardianship of a child, guardianship of the person of a child or guardianship of the estate of a child,
(c) custody of, maintenance for or access to a child,
(d) alleged commission by a child of a Provincial or federal offence, or
(e) Child, Family and Community Service Act,
and may intervene at any stage in the proceeding to act as counsel for the interests and welfare of the child.
Family court counsellor
3 (1) The Attorney General may appoint a person to be a family court counsellor.
(2) A family court counsellor
(a) if he or she has knowledge of a dispute that has given or may give rise to a proceeding described in section 2 or respecting a similar family matter, may offer the parties to the dispute any advice and guidance that, in the opinion of the family court counsellor, will assist in resolving the dispute, and
(b) may offer to refer parties involved in those disputes to a public or private family counselling service or agency if, in the opinion of the family court counsellor, the service or agency is qualified to assist in resolving the dispute.
(3) Subject to the law of Canada, if
(a) a family court counsellor receives under subsection (2) evidence, information or a communication in confidence from a person who is a party to the proceeding, or from a child, and
(b) the person who gave the evidence, information or communication to the family court counsellor under subsection (2) does not consent to the family court counsellor disclosing the evidence, information or communication,
the family court counsellor must not disclose the evidence, information or communication in a proceeding in a court or tribunal, and a person must not examine the family court counsellor for the purpose of compelling him or her to disclose that evidence, information or communication.
(4) Despite the Freedom of Information and Protection of Privacy Act, other than section 44 (1) (b), (2), (2.1) and (3) of that Act, no person may disclose information received by a family court counsellor in the course of providing services under subsection (2) of this section unless the person who provided the information first consents to the disclosure of the information.
(5) Subsection (4) does not apply to
(a) personal information, as defined in the Freedom of Information and Protection of Privacy Act, that has been in existence for 100 or more years,
(b) information not described by paragraph (a) that has been in existence for 50 or more years, or
(c) information for research purposes disclosed in accordance with section 33.2 (k) of the Freedom of Information and Protection of Privacy Act.
Legal capacity
4 (1) No woman is under a legal disability with respect to a matter under this Act merely because she is a married or unmarried woman.
(2) A child who is or has been married has the capacity to make, conduct or defend an application under this Act without the intervention of a next friend or litigation guardian.
Supreme Court jurisdiction
5 (1) The Supreme Court continues, subject to the Divorce Act (Canada), to have jurisdiction in all matters concerning the custody of, access to and guardianship of children, dissolution of marriage, nullity of marriage, judicial separation, alimony and maintenance.
(2) The Supreme Court has jurisdiction in all matters under this Act.
(3) This Act must not be construed as limiting or restricting the inherent jurisdiction of the Supreme Court to act in a parens patriae capacity respecting a child before the court.
Provincial Court jurisdiction
6 (1) The Provincial Court has jurisdiction in all matters under this Act, except sections 31 and 38 (1) (c) (iv), Parts 5 and 6 and section 125, respecting
(a) guardianship of the person of a child,
(b) custody of or access to a child,
(c) the parentage of a child,
(d) maintenance,
(e) occupancy of the family residence and the use of its contents, and
(f) the making of orders that a person must not enter premises while they are occupied by a spouse, parent or child.
(2) Nothing in this Act gives the Provincial Court the inherent jurisdiction described in section 5 (3).
Concurrent proceedings
7 (1) If a proceeding may be brought in either the Provincial Court or the Supreme Court, the commencement of the proceeding in the Supreme Court is not a bar to a proceeding in the Provincial Court unless the Supreme Court makes an order granting or refusing to grant the same relief being applied for in Provincial Court.
(2) If the Supreme Court and Provincial Court may each make an order for the same relief, the making of a Supreme Court order is not a bar to an application for a Provincial Court order in respect of relief that has neither been granted nor refused by the Supreme Court order.
Joining proceedings
8 (1) If, in a proceeding under this Act, it appears to the court that other matters under this Act or under any other Act or law of British Columbia or of Canada should be determined first or simultaneously with the matters at issue in the proceeding, the court may, on its own motion, or on application of a party to the proceeding,
(a) join and hear all proceedings together, in so far as this is within the court's jurisdiction, or
(b) direct that the application stand over until other proceedings are brought or determined
as the court, in its discretion, considers appropriate.
(2) The Supreme Court may, on application by a party to a proceeding under Part 2 or 5, join and hear an application under section 20 to vary or rescind an order made by the Provincial Court under section 93 (1), 96 or 121 (4) (b), even though an application has not been made to the Provincial Court.
(3) An order of the Provincial Court that is varied by the Supreme Court, for the purposes of any subsequent application to vary, rescind or enforce the order, is deemed to have been varied by the Provincial Court.
Interim orders
9 (1) If an application is made for an order under this Act, the court may, as it considers reasonable, make an interim order for the relief applied for and may direct that the interim order be served on the persons and in the manner it may specify in the interim order.
(2) In its discretion, the court may make an interim order under subsection (1) on an application made without notice to any other person.
(3) If the application referred to in subsection (1) is for an order under section 93 (1) (a), any interim order made must be in accord with the child support guidelines and section 93.2 to the extent that this is practicable given the need for interim maintenance and the records and other information available at the time of the hearing.
Consent orders
10 (1) With the written consent of the person against whom the order is made, a court may make an order under this Act against the person without a hearing, the completion of a hearing or the giving of evidence.
(2) An order made by consent must not exceed the terms of the consent.
(3) Unless the ground is specifically admitted in the consent, the giving of a written consent under this section must not be considered to be an admission of a ground alleged in the proceeding.
(4) This section is subject to section 93.1.
Incorporation of terms of agreements in court orders
11 If a court makes an order under this Act, the court may incorporate in its order all or part of a provision in a written agreement previously made by 2 or more parties to the proceeding, if the provision is relevant to the proceeding.
Enforcement of Supreme Court orders by Provincial Court
12 If a copy of an order for custody or access made by or registered for enforcement with the Supreme Court is certified by a proper officer of that court and filed with the Provincial Court, the order may be enforced by the Provincial Court in the manner in which it enforces its own orders under this Act.
Order need not be served to be enforced
13 If a proceeding is taken to enforce an order, it is not necessary to prove that the person against whom the order was made was served with the order.
Order under appeal remains in force
14 Despite any other enactment, if an order made under this Act is appealed, unless the court that made it otherwise orders, the order remains in full force and effect until the determination of the appeal.
Expert witnesses in family matters
15 (1) In a proceeding under this Act, the court may, on application, including an application made without notice to any other person, direct an investigation into a family matter by a person who
(a) has had no previous connection with the parties to the proceeding or to whom each party consents, and
(b) is a family counsellor, social worker or other person approved by the court for the purpose.
(2) A person directed to carry out an investigation under subsection (1) must report the results of the investigation in the manner that the court directs.
(3) A person must not report to a court the result of an investigation under subsection (1) unless, at least 30 days before the report is to be given to the court, the person serves a copy of the report on every party to the proceeding.
(4) If satisfied that circumstances warrant, the court may grant an exemption from subsection (3).
Appeals and commencement of other proceedings
16 (1) Subject to this Act, a proceeding under this Act, other than an appeal, may be commenced at any time.
(2) A party may appeal to the Supreme Court from an order of the Provincial Court made under this Act, except an interim order.
(3) The time limit for bringing an appeal under subsection (2) is 40 days, beginning on the day after the order of the Provincial Court is made.
(4) An appeal is brought by doing the following:
(a) filing a notice of appeal in a registry of the Supreme Court;
(b) serving a copy of the notice of appeal on the parties to the proceeding in which the order of the Provincial Court was made, unless a judge of the Supreme Court orders otherwise;
(c) filing a copy of the notice of appeal in the registry of the Provincial Court at the location where the order was made.
(5) The Supreme Court Family Rules apply to an appeal under subsection (2) to the extent that they are consistent with this section.
(6) After hearing the appeal, the Supreme Court may do one or more of the following:
(a) confirm the order of the Provincial Court;
(b) set aside the order of the Provincial Court;
(c) make any order that the Provincial Court could have made;
(d) direct the Provincial Court to conduct a new hearing.
(7) On application, the Supreme Court may extend the time limit for bringing an appeal.
Order for relief on behalf of child
17 If a court is satisfied that an application made to it by or on behalf of a spouse or parent for relief under this Act should also have been made on behalf of a child, the court may make an order for relief on behalf of the child.
Intervention by Attorney General or other person
18 (1) The Attorney General may intervene in a proceeding and contest or argue a question or matter arising in the proceeding that affects the public interest.
(2) Any person may apply to the court for leave to intervene in a proceeding and the court may make an order entitling that person to intervene.
(3) An order under subsection (2) is subject to the terms and conditions the court, in its discretion, considers appropriate.
(4) The Attorney General or another person who intervenes under this section in a proceeding becomes a party to the proceedings.
Spouse compellable as witness
19 In proceedings under this Act, spouses are competent and compellable witnesses for or against each other.
Variation or rescission of order
20 Subject to this Act, if a court has made an order under this Act, except an order under Part 5 or 6, the court may, on application, vary or rescind the order if circumstances have changed since the order was made or last varied.
Part 2 — Child Custody, Access and Guardianship
Definitions for Part
21 In this Part:
"access" includes visitation;
"child" includes a child not yet born on the death of the child's father or mother but subsequently born alive;
"director under the Child, Family and Community Service Act" means a director designated under that Act for the purposes of sections 23 (1) and (2) and 29 (3) of this Act;
"Public Guardian and Trustee" means the Public Guardian and Trustee appointed under the Public Guardian and Trustee Act.
Who is entitled to notice of proceeding
22 (1) If an application is made to a court under this Part or Part 3, each parent of the child affected by the application and each adult person with whom the child usually resides must be served with notice of the proceeding.
(2) Despite subsection (1), on an application made without notice to any other person, the court may, by order,
(a) exempt the applicant from the requirement to serve notice on a parent or adult person, or
(b) direct the persons to be served with notice and the manner of service, including substituted service.
(3) Subsection (1) does not apply to a parent of a child affected by an application if
(a) the parent's guardianship powers, rights and duties with respect to the child were terminated by a continuing custody order under the Child, Family and Community Service Act, and
(b) another person has custody of the child under section 54.1 of the Child, Family and Community Service Act.
Guardianship or custody of Nisga'a child
22.1 (1) If an application is made to a court under this Part or Part 3 in respect of the guardianship or custody of a Nisga'a child
(a) the Nisga'a Lisims Government must be served with notice of the proceeding, and
(b) the Nisga'a Lisims Government has standing in the proceeding as provided in paragraph 94 of the Nisga'a Government Chapter of the Nisga'a Final Agreement.
(2) In a proceeding to which subsection (1) applies, the court must consider, in addition to any other matters it is required by law to consider, any evidence or representations in respect of Nisga'a laws and customs as provided in paragraph 94 of the Nisga'a Government Chapter of the Nisga'a Final Agreement.
(3) As provided in paragraph 95 of the Nisga'a Government Chapter of the Nisga'a Final Agreement, the participation of the Nisga'a Lisims Government in a proceeding to which subsection (1) applies must be in accordance with the applicable Rules of Court and does not affect the court's ability to control its process.
Guardianship or custody of treaty first nation child
22.2 (1) If an application is made to a court under this Part or Part 3 in respect of the guardianship or custody of a treaty first nation child and the final agreement of the treaty first nation of which the child is a treaty first nation child so provides, the treaty first nation
(a) must be served with notice of the proceeding, and
(b) has standing in the proceeding.
(2) Subject to any limitations or conditions set out in the final agreement, in a proceeding to which subsection (1) applies, the court must consider, in addition to any other matters it is required by law to consider, any evidence or representations in respect of the laws and customs of the treaty first nation.
Roles of Public Guardian and Trustee and director as guardians
23 (1) Subject to subsection (2), if a person other than the father or mother of a child is granted custody of the child by a court, the court in its order may direct that the director under the Child, Family and Community Service Act is guardian of the person of the child or that the Public Guardian and Trustee is guardian of the estate of the child.
(2) An order must not be made under subsection (1) unless the director under the Child, Family and Community Service Act or Public Guardian and Trustee named in the order has been given a prior opportunity to be represented in the proceeding.
Best interests of child are paramount
24 (1) When making, varying or rescinding an order under this Part, a court must give paramount consideration to the best interests of the child and, in assessing those interests, must consider the following factors and give emphasis to each factor according to the child's needs and circumstances:
(a) the health and emotional well being of the child including any special needs for care and treatment;
(b) if appropriate, the views of the child;
(c) the love, affection and similar ties that exist between the child and other persons;
(d) education and training for the child;
(e) the capacity of each person to whom guardianship, custody or access rights and duties may be granted to exercise those rights and duties adequately.
(1.1) The references to "other persons" in subsection (1) (c) and to "each person" in subsection (1) (e) include parents, grandparents, other relatives of the child and persons who are not relatives of the child.
(2) If the guardianship of the estate of a child is at issue, a court must consider as an additional factor the material well being of the child.
(3) If the conduct of a person does not substantially affect a factor set out in subsection (1) or (2), the court must not consider that conduct in a proceeding respecting an order under this Part.
(4) If under subsection (3) the conduct of a person may be considered by a court, the court must consider the conduct only to the extent that the conduct affects a factor set out in subsection (1) or (2).
Authority of guardian
25 (1) A guardian is both guardian of the person of the child and guardian of the estate of the child.
(2) Subject to this Act, a guardian of the estate of a child has all powers over the estate of the child as a guardian appointed by will or otherwise had on May 19, 1917 in England under Acts 12, Charles the Second, chapter 24, and 49 and 50 Victoria, chapter 27, section 4.
(3) Subject to this Act, a guardian of the person of a child has all powers over the person of the child as a guardian appointed by will or otherwise had on May 19, 1917 in England under Acts 12, Charles the Second, chapter 24, and 49 and 50 Victoria, chapter 27, section 4.
Extended references
26 References to a guardian in this section and sections 27 to 33, except in section 31, apply equally to a guardian of a person of a child or a guardian of the estate of a child.
Parental guardianship
27 (1) Subject to section 28, whether or not married to each other and for so long as they live together, the mother and father of a child are joint guardians unless a tribunal of competent jurisdiction otherwise orders.
(2) Subject to subsection (4), section 28 and section 30, if the father and mother of a child are or have been married to each other and are living separate and apart,
(a) they are joint guardians of the estate of the child, and
(b) the one of them who usually has care and control of the child is sole guardian of the person of the child unless a tribunal of competent jurisdiction otherwise orders.
(3) If the father and mother of a child
(a) have not married each other,
(b) are living separate and apart, and
(c) have been joint guardians under subsection (1) or under the order of a tribunal of competent jurisdiction,
subsection (2) applies to the father, mother and child as though the father and mother were married.
(4) If a tribunal of competent jurisdiction
(a) makes absolute a decree of divorce,
(b) renders judgment granting a divorce and a certificate has been or could be issued under the Divorce Act (Canada) stating that the marriage was dissolved,
(c) makes an order for judicial separation, or
(d) declares a marriage to be null and void,
a person granted custody by order in the proceeding is sole guardian unless a tribunal of competent jurisdiction transfers custody or guardianship to another person.
(5) Subject to section 28, if the father and mother of a child
(a) have not been married to each other during the life of the child or 10 months before the child's birth,
(b) are living separate and apart, and
(c) do not share joint guardianship under this section or under an order of a tribunal of competent jurisdiction,
the mother is sole guardian unless a tribunal of competent jurisdiction otherwise orders.
Guardianship agreement
28 (1) The father and mother described in section 27 (2) or (5) may, by a written agreement between them, provide that, during the term of the agreement,
(a) they are joint guardians of their child, or
(b) one of them is sole guardian of their child.
(2) The making of an agreement under subsection (1) does not bar the jurisdiction of a court to make an order respecting guardianship.
Loss of guardian
29 (1) Subject to subsection (2), if a joint guardian dies, the survivors or sole survivor continue as joint or sole guardians respectively.
(2) If a guardian dies, a surviving mother or father of the child who is not a guardian at the time of the deceased's death does not become a guardian unless the surviving mother or father has been appointed under section 50 of the Infants Act or is, by order, appointed under section 30 of this Act.
(3) If a child otherwise has no guardian or if the guardian appointed is dead, refuses or is incompetent at law to act,
(a) the director under the Child, Family and Community Service Act is guardian of the person of the child,
(b) the Public Guardian and Trustee is guardian of the estate of the child, or
(c) paragraphs (a) and (b) both apply,
as circumstances require, unless a tribunal of competent jurisdiction otherwise orders.
(4) If a guardian and a person who is not a guardian of a child marry, the marriage in no way
(a) diminishes the powers, rights or duties of the guardian, or
(b) vests in the other person the powers, rights or duties of a guardian.
Jurisdiction of courts to make or give effect to guardianship
30 (1) Subject to this Act, a court may, on application,
(a) appoint a guardian, or
(b) remove from office a guardian appointed or acting by virtue of this Part or a deed or testamentary appointment.
(2) If a child is over 12 years of age, a court must not make or give effect under subsection (1) to an appointment unless
(a) the child consents in writing to the appointment, or
(b) if the child withholds consent to the appointment, the court is satisfied that the appointment is necessary in the best interests of the child.
(3) A person other than the father or mother of a child must not, under subsection (1) (a), be appointed guardian unless the court is satisfied that each parent of the child consents in writing to the appointment or, if a necessary consent has not been given, that
(a) the parent who could give or withhold consent is not reasonably available, or
(b) the consent is being unreasonably withheld.
(4) An order must not be made under subsection (1) unless the present and prospective guardians have been given notice and an opportunity to be heard in the proceeding.
(5) If satisfied that circumstances warrant, the court may grant an exemption from subsection (4) respecting a present guardian.
Guardian under a Child, Family and Community Service Act order
30.1 (1) Despite section 30 (3), a person who has custody of a child under section 54.1 of the Child, Family and Community Service Act is for the purposes of this Act, a guardian appointed under section 30 (1).
(2) Despite section 30 (3), the consent of a parent of a child is not necessary under that section if
(a) the parent's guardianship powers, rights and duties with respect to the child were terminated by a continuing custody order under the Child, Family and Community Service Act, and
(b) another person has custody of the child under section 54.1 of the Child, Family and Community Service Act.
Security
31 (1) The Supreme Court may order a guardian or guardian of the estate of a child to give the security the court considers necessary for the proper discharge of the guardianship powers, rights and duties and may order the guardian or guardian of the estate, as the case may be, or the personal representative of that person to
(a) render a true and just account of all property of the child administered by him or her, and
(b) deliver and pay over the property to the person entitled after deducting only such reasonable amount for his or her expenses and charges that the court may approve
on the termination of the guardianship.
(2) If the giving of security is ordered under subsection (1), the Public Guardian and Trustee is guardian of the estate of the child until the security is given.
(3) Despite subsection (1), the court must not order the Public Guardian and Trustee to give security under this section.
Referral of questions to court
32 A guardian may apply to a court for directions concerning a question affecting the child and the court may make the order in that regard it considers proper.
Resignation of guardian
33 A guardian whose appointment is made by order of a court under sections 25 to 32 may, by leave of the court, resign his or her office on the terms and conditions the court may impose.
Persons who may exercise custody
34 (1) Subject to subsection (2), the persons who may exercise custody over a child are as follows:
(a) if the father and mother live together, the father and mother jointly;
(b) if the father and mother live separate and apart, the parent with whom the child usually resides;
(c) if custody rights exist under a court order, the person who has those rights;
(d) if custody rights exist under a written agreement, the person to whom those rights are given.
(2) If persons have conflicting claims to custody under subsection (1), the following persons may exercise custody to the exclusion of the other persons unless a court otherwise orders:
(a) the person who has custody rights under a court order;
(b) if paragraph (a) does not apply, the person granted custody by an agreement;
(c) if paragraphs (a) and (b) do not apply, the person claiming custody with whom the child usually resides;
(d) if paragraph (c) applies and 2 persons are equally entitled under it, the person who usually has day to day personal care of the child.
Jurisdiction to make custody or access orders
35 (1) Subject to Part 3, a court may, on application, order that one or more persons may exercise custody over a child or have access to the child.
(1.1) The reference to "persons" in subsection (1) includes parents, grandparents, other relatives of the child and persons who are not relatives of the child.
(2) An order for access may be made whether or not a custody order is made.
(3) If a person has not received notice of a proceeding or has not been given opportunity to be heard in the proceeding, custody must not be granted to that person.
(4) An order for custody or access may include terms and conditions the court considers necessary and reasonable in the best interests of the child.
(5) An access order referred to in section 54.2 (3) of the Child, Family and Community Service Act is, for the purposes of this Act, an order for access made under this section.
Civil enforcement of custody rights
36 (1) If custody of a child is awarded to a person by an order made or enforceable under this Act and the person is denied the exercise of custody, a court may, on an application made without notice to any other person, order that the child be apprehended by a peace officer and taken to the person awarded custody.
(2) For the purposes of locating and apprehending a child in accordance with an order under subsection (1), a peace officer may enter and search any place where he or she has reasonable and probable grounds for believing the child may be.
Order restraining harassment
37 On application, a court may
(a) make an order restraining any person from molesting, annoying, harassing, communicating or attempting to molest, annoy, harass or communicate with the applicant or a child in the lawful custody of the applicant or both the applicant and a child, and
(b) require a person named in an order under paragraph (a)
(i) to enter into a recognizance, with or without sureties, or to post a bond, and
(ii) to report to the court or a person designated by the court, at the times and places and for the period of time the court directs.
Order prohibiting interference with child
38 (1) If a court makes a custody order or a custody order or separation agreement is enforceable by a court, the court may
(a) order that a person must not enter premises, including premises the person owns or has a right to possession of, where the child resides from time to time,
(b) order that a person must not make contact or endeavour to make contact with or otherwise interfere with either the child or any person who has custody of or access to the child, or
(c) if the court concludes that the person named in its custody order may not comply with an order under paragraph (a) or (b), further order that the person
(i) enter into a recognizance, with or without sureties, in any reasonable amount that the court thinks necessary,
(ii) report to the court or person designated for the period of time, and at the times and places, as the court considers necessary and reasonable,
(iii) deliver up to the court, or a person designated by the court, any documents that the court thinks fit, or
(iv) transfer specific property to a trustee named by the court to be held subject to the terms and conditions specified in the order
or any combination of these.
(2) The Provincial Court must not make an order under subsection (1) (c) (iv).
(3) In an order under subsection (1) (c) (iv), the court may specify terms and conditions for the return or the disposition of the property that the court considers appropriate.
(4) A court, or a person designated by the court in an order under subsection (1) (c) (iii), must hold documents delivered in accordance with the order in safekeeping in accordance with any directions set out in the order.
(5) In an order under subsection (1), a court may give any directions it considers appropriate in respect of the safekeeping of the documents or property.
Access to information
39 (1) An enforcement officer designated under section 98 may, for the purpose of assisting a person
(a) to bring an application respecting custody of or access to a child or respecting guardianship of a child or of the person of a child, or
(b) to enforce an order respecting custody of or access to a child or respecting guardianship of a child or of the person of a child,
demand from any person or public body, including the government, information that is in a record in the possession or control of that person or public body and that concerns the location, address or place of employment of the proposed respondent to the application referred to in paragraph (a) or of the person who has actual custody of the child in respect of whom the order referred to in paragraph (b) is made.
(2) Subsection (1) does not apply in respect of the following:
(a) personal correspondence between the person respecting whom the information is sought and a parent, child, spouse, brother or sister of that person;
(b) information in the possession or control of
(i) a solicitor of the person respecting whom the information is sought, or
(ii) a family court counsellor;
(c) information the disclosure of which is forbidden by section 9 (1) (b) of the Statistics Act.
(3) Despite any other enactment or any common law rule of privilege or confidentiality, any person or public body, including the government, that receives a demand under subsection (1) must within 10 days provide any of the demanded information that is in any record in the possession or control of the person or public body.
(4) The enforcement officer may disclose information provided under subsection (3) to a person performing in a reciprocating state functions similar to those of the enforcement officer.
Order of court for access to information
40 (1) If, on application, the court is satisfied that
(a) an enforcement officer has been refused information after making a demand under section 39 (1), or
(b) a person needs an order under this section to bring an application referred to in section 39 (1) (a) or to enforce an order referred to in section 39 (1) (b),
despite any other enactment or any common law rule of privilege or confidentiality, the court may order any person or public body, including the government, to provide to the applicant or to an individual named by the court, any information that is in the possession or control of that person or public body and that concerns the address or location of the proposed respondent to the application referred to in section 39 (1) (a) or of the person who has actual custody of the child in respect of whom the order referred to in section 39 (1) (b) is made.
(2) The court must not make an order under subsection (1)
(a) against a solicitor of the person respecting whom the information is sought or against a family court counsellor, or
(b) if it appears to the court that the purpose of the application under this section is to enable the applicant to identify or to obtain information as to the identity of a person who has custody of a child, rather than to learn or confirm the whereabouts of the proposed respondent to an application referred to in section 39 (1) (a) or to facilitate the enforcement of an order referred to in section 39 (1) (b).
Confidentiality
41 (1) A person must not disclose information provided under section 39 or 40 except
(a) to the extent necessary for the purpose of
(i) bringing an application referred to in section 39 (1) (a), or
(ii) enforcing an order referred to in section 39 (1) (b), or
(b) as provided in section 39 (4).
(2) Subsection (1) applies despite any provision of the Freedom of Information and Protection of Privacy Act other than section 44 (1) (b), (2), (2.1) and (3) of that Act.
(3) Subsections (1) and (2) do not apply to
(a) personal information, as defined in the Freedom of Information and Protection of Privacy Act, that has been in existence for 100 or more years,
(b) information not described by paragraph (a) that has been in existence for 50 or more years, or
(c) information for research purposes disclosed in accordance with section 35 of the Freedom of Information and Protection of Privacy Act.
Part 3 — Extraprovincial Custody and Access Orders
Definitions for Part
42 In this Part:
"child" includes a child not yet born on the death of the child's father or mother but subsequently born alive;
"extraprovincial order" means an order, or that part of an order, of an extraprovincial tribunal that grants to a person custody of or access to a child;
"extraprovincial tribunal" means a court or tribunal outside British Columbia that has jurisdiction to grant to a person custody of or access to a child.
Purposes of Part
43 The purposes of this Part are
(a) to ensure that applications to the courts in respect of custody of, access to and guardianship of children will be determined on the basis of the best interests of the children,
(b) to recognize that the concurrent exercise of jurisdiction by judicial tribunals of more than one province, territory or state in respect of the custody of or access to the same child ought to be avoided, and to make provision so that the courts of British Columbia will, unless there are exceptional circumstances, refrain from exercising or decline jurisdiction in cases where it is more appropriate for the matter to be determined by a tribunal that has jurisdiction in another place with which the child has a closer connection,
(c) to discourage the abduction of children as an alternative to the determination of custody rights by due process, and
(d) to provide for the more effective enforcement of custody and access orders and for the recognition and enforcement of custody and access orders made outside British Columbia.
Jurisdiction
44 (1) A court must exercise its jurisdiction to make an order for custody of or access to a child only if
(a) the child is habitually resident in British Columbia at the commencement of the application for the order, or
(b) although the child is not habitually resident in British Columbia, the court is satisfied that
(i) the child is physically present in British Columbia at the commencement of the application for the order,
(ii) substantial evidence concerning the best interests of the child is available in British Columbia,
(iii) no application for custody of or access to the child is pending before an extraprovincial tribunal in another place where the child is habitually resident,
(iv) no extraprovincial order in respect of custody of or access to the child 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.
(2) A child is habitually resident in the place where the child resided
(a) with both parents,
(b) if the parents are living separate and apart, with one parent under a separation agreement or with the implied consent of the other parent or under a court order, or
(c) with a person other than a parent on a permanent basis for a significant period of time,
whichever last occurred.
(3) The removal or withholding of a child without the consent of the person who has custody of the child does not alter the habitual residence of the child unless there has been acquiescence or undue delay in commencing due process by the person from whom the child is removed or withheld.
Jurisdiction — serious harm
45 Despite sections 44 and 48, a court may exercise its jurisdiction to make or to vary an order in respect of the custody of or access to a child if
(a) the child is physically present in British Columbia, and
(b) the court is satisfied that the child would, on the balance of probability, suffer serious harm if the child
(i) remains in the custody of the person legally entitled to custody of the child,
(ii) is returned to the custody of the person legally entitled to custody of the child, or
(iii) is removed from British Columbia.
Declining jurisdiction
46 A court that has jurisdiction in respect of custody or access may decline to exercise its jurisdiction if the court is of the opinion that it is more appropriate for jurisdiction to be exercised outside British Columbia.
Interim powers of court
47 On application for custody of or access to a child, a court
(a) that is satisfied that the child has been wrongfully removed to or is being wrongfully retained in British Columbia, or
(b) that may not exercise jurisdiction under section 44 or that has declined jurisdiction under section 46 or 49 (2),
may do any one or more of the following:
(c) make any interim order in respect of the custody or access that the court considers is in the best interests of the child;
(d) stay the application subject to
(i) the condition that a party to the application promptly commence a similar proceeding before an extraprovincial tribunal, or
(ii) any other conditions the court considers appropriate;
(e) order a party to return the child to a place the court considers appropriate and, in the discretion of the court, order payment of the cost of the reasonable travel and other expenses of the child and any parties to or witnesses at the hearing of the application.
Enforcement of extraprovincial orders
48 (1) On application by any person in whose favour an order for the custody of or access to a child has been made by an extraprovincial tribunal, a court must recognize the order unless the court is satisfied that
(a) the respondent was not given reasonable notice of the commencement of the proceeding in which the order was made,
(b) the respondent was not given an opportunity to be heard by the extraprovincial tribunal before the order was made,
(c) the law of the place in which the order was made did not require the extraprovincial tribunal to have regard for the best interests of the child,
(d) the order of the extraprovincial tribunal is contrary to public policy in British Columbia, or
(e) the extraprovincial tribunal would not have jurisdiction under section 44 if it were a court in British Columbia.
(2) An order that is made by an extraprovincial tribunal and that is recognized by a court is deemed to be an order of the court and enforceable as such.
(3) A court presented with conflicting orders made by extraprovincial tribunals for the custody of or access to a child that, but for the conflict, would be recognized and enforced by the court under subsections (1) and (2), must recognize and enforce the order that appears to the court to be most in accord with the best interests of the child.
(4) A court that has recognized an extraprovincial order may make any further orders under this Act that the court considers necessary to give effect to the order.
Superseding order — material change in circumstances
49 (1) On application, a court may by order supersede an extraprovincial order in respect of custody of or access to a child if the court is satisfied that there has been a material change in circumstances that affects, or is likely to affect, the best interests of the child and if
(a) the child is habitually resident in British Columbia at the commencement of the application for the order, or
(b) although the child is not habitually resident in British Columbia, the court is satisfied that
(i) the child is physically present in British Columbia at the commencement of the application for the order,
(ii) the child no longer has a real and substantial connection with the place where the extraprovincial order was made,
(iii) substantial evidence concerning the best interests of the child is available in British Columbia,
(iv) the child has a real and substantial connection with British Columbia, and
(v) on the balance of convenience, it is appropriate for jurisdiction to be exercised in British Columbia.
(2) A court may decline to exercise its jurisdiction under this section if it is of the opinion that it is more appropriate for jurisdiction to be exercised outside British Columbia.
Superseding order — serious harm
50 On application, a court may by order supersede an extraprovincial order in respect of custody of or access to a child if the court is satisfied that the child would, on the balance of probability, suffer serious harm if the child
(a) remains in the custody of the person legally entitled to custody of the child,
(b) is returned to the custody of the person legally entitled to custody of the child, or
(c) is removed from British Columbia.
Further evidence
51 (1) If a court is of the opinion that it is necessary to receive further evidence from a place outside British Columbia before making a decision respecting an application for custody of or access to a child, the court may send to the Attorney General, Minister of Justice or similar officer of the place outside British Columbia any supporting material that may be necessary together with a request that
(a) the Attorney General, Minister of Justice or similar officer take any action that may be necessary in order to require a named person to attend before the proper tribunal in that place and produce or give evidence in respect of the subject matter of the application, and
(b) the Attorney General, Minister of Justice or similar officer or the tribunal send to the court a certified copy of the evidence produced or given before the tribunal.
(2) A court that acts under subsection (1) may assess the cost of so acting against one or more of the parties to the application or may deal with the cost as costs in the cause.
Referral to court
52 (1) If the Attorney General receives from an extraprovincial tribunal a request similar to that referred to in section 51 (1) and any supporting material that may be necessary, the Attorney General must refer the request and the material to the proper court.
(2) A court to which a request is referred by the Attorney General 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.
True copy of extraprovincial order
53 A copy of an extraprovincial order certified as a true copy by a judge, other presiding officer or registrar of the tribunal that made the order, or by a person charged with keeping the orders of the tribunal, is evidence of
(a) the making of the order,
(b) the content of the order, and
(c) the appointment and signature of the judge, presiding officer, registrar or other person.
Court may take notice of foreign law
54 For the purpose of an application under this Part, a court may take notice, without requiring formal proof, of the law of a jurisdiction outside British Columbia and of a decision of an extraprovincial tribunal.
Part 4 — International Child Abduction
International Child Abduction
55 (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) Subject to subsection (4), the provisions of the convention have the force of law in British Columbia.
(3) The Attorney General is the Central Authority for British Columbia for the purpose of the convention.
(4) The government is not bound to assume any costs resulting from the participation of legal counsel or advisers or from court proceedings 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.
(5) Subsections (1) to (4) and the convention apply in respect of a child who, immediately before a breach of custody or access rights, was habitually resident in a contracting state but do not apply in respect of a child described in subsection (6).
(6) Part 3 applies in respect of
(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 in respect of whom subsections (1) to (4) and the convention apply.
(7) The Attorney General must publish, in Part II of the Gazette, a copy of the convention and the day on which the convention extends to British Columbia.
Equality of entitlement to family assets on marriage breakup
56 (1) Subject to this Part and Part 6, each spouse is entitled to an interest in each family asset on or after March 31, 1979 when
(a) a separation agreement,
(b) a declaratory judgment under section 57,
(c) an order for dissolution of marriage or judicial separation, or
(d) an order declaring the marriage null and void
respecting the marriage is first made.
(2) The interest under subsection (1) is an undivided half interest in the family asset as a tenant in common.
(3) An interest under subsection (1) is subject to
(a) an order under this Part or Part 6, or
(b) a marriage agreement or a separation agreement.
(4) This section applies to a marriage entered into before or after March 31, 1979.
Declaratory judgment
57 On application by 2 spouses married to each other or by one of the spouses, the Supreme Court may make a declaratory judgment that the spouses have no reasonable prospect of reconciliation with each other.
Family asset defined
58 (1) Subject to section 59, this section defines family asset for the purposes of this Act.
(2) Property owned by one or both spouses and ordinarily used by a spouse or a minor child of either spouse for a family purpose is a family asset.
(3) Without restricting subsection (2), the definition of family asset includes the following:
(a) if a corporation or trust owns property that would be a family asset if owned by a spouse,
(i) a share in the corporation, or
(ii) an interest in the trust
owned by the spouse;
(b) if property would be a family asset if owned by a spouse, property
(i) over which the spouse has, either alone or with another person, a power of appointment exercisable in favour of himself or herself, or
(ii) disposed of by the spouse but over which the spouse has, either alone or with another person a power to revoke the disposition or a power to use or dispose of the property;
(c) money of a spouse in an account with a savings institution if that account is ordinarily used for a family purpose;
(d) a right of a spouse under an annuity or a pension, home ownership or retirement savings plan;
(e) a right, share or an interest of a spouse in a venture to which money or money's worth was, directly or indirectly, contributed by or on behalf of the other spouse.
(4) The definition of family asset applies to marriages entered into and property acquired before or after March 31, 1979.
Excluded business assets
59 (1) If property is owned by one spouse to the exclusion of the other and is used primarily for business purposes and if the spouse who does not own the property made no direct or indirect contribution to the acquisition of the property by the other spouse or to the operation of the business, the property is not a family asset.
(2) In section 58 (3) (e) or subsection (1) of this section, an indirect contribution includes savings through effective management of household or child rearing responsibilities by the spouse who holds no interest in the property.
Onus of proof
60 The onus is on the spouse opposing a claim under section 56 to prove that the property in question is not ordinarily used for a family purpose.
Marriage agreements
61 (1) This section defines marriage agreement for the purposes of this Part and this definition applies to marriages entered into, marriage agreements made and to property of a spouse acquired before or after March 31, 1979.
(2) A marriage agreement is an agreement entered into by a man and a woman before or during their marriage to each other to take effect on the date of their marriage or on the execution of the agreement, whichever is later, for
(a) management of family assets or other property during marriage, or
(b) ownership in, or division of, family assets or other property during marriage, or on the making of an order for dissolution of marriage, judicial separation or a declaration of nullity of marriage.
(3) A marriage agreement, or an amendment or rescission of a marriage agreement, must be in writing, signed by both spouses, and witnessed by one or more other persons.
(4) Except as provided in this Part, if a marriage agreement is made in compliance with subsection (3), the terms described by subsection (2) (a) and (b) are binding between the spouses whether or not there is valuable consideration for the marriage agreement.
(5) A minor who has capacity to marry has, with the prior consent of the Supreme Court, capacity to enter into a valid marriage agreement.
(6) If a minor who has capacity to marry has purported to enter into a marriage agreement without the consent required under subsection (5), the Supreme Court may at any time order that the marriage agreement is binding on and is for the benefit of the minor.
(7) In a marriage agreement, a dum casta provision that applies if the spouses are living separate and apart is void.
(8) A provision of a marriage agreement that is void or voidable is severable from the other provisions of the marriage agreement.
(9) If a marriage agreement provides that specific gifts made to one or both spouses are not disposable without the consent of the donor, the donor is deemed to be a party to the marriage agreement for the purpose of enforcement or amendment of the provision.
Canada Pension Plan
62 A marriage agreement or other written agreement between spouses entered into on or after June 4, 1986 may provide that, despite the Canada Pension Plan, there be no division of unadjusted pensionable earnings under that Act.
Filing in land title office
63 (1) A spouse who is a party to a marriage agreement or separation agreement may sign and file a notice in the prescribed form setting out
(a) the full name and last known address of each spouse who is a party to the marriage agreement or separation agreement,
(b) a description of land to which the marriage agreement or separation agreement relates, and
(c) the provisions of the marriage agreement or separation agreement that relate to the land described in the notice
in the land title office of the land title district in which land described in the notice is located.
(2) On the filing of a notice under subsection (1), accompanied by payment of the prescribed fee and any fees payable under the Land Title Act, the registrar may register the notice, in the same manner as a charge is registered, against the land described in the notice.
(3) If a notice is registered under subsection (2), the registrar must not allow registration of a transfer, mortgage, agreement for sale or conveyance of the fee simple in the land, or lease of the land, unless each spouse or former spouse who is a party to the marriage agreement or separation agreement signs and files in the land title office a cancellation or postponement notice in the prescribed form.
(4) If a spouse or former spouse
(a) cannot, after a reasonable search is made, be located,
(b) unreasonably refuses to sign or file a cancellation notice under subsection (3) or register a financing change statement, as defined in the Personal Property Security Act, under subsection (7), or
(c) is a mentally incompetent person,
the Supreme Court may, on application, order the appropriate registrar to cancel or postpone the notice of marriage agreement or separation agreement or discharge the registration under subsection (6), as the case may be.
(5) If a cancellation or postponement notice is filed under subsection (3) or an order is made under subsection (4), the registrar must cancel or postpone the registration of the notice of marriage agreement or separation agreement in the same manner as the registration of a charge is cancelled or postponed.
(6) If a provision of a marriage agreement or separation agreement relates to a manufactured home, a financing statement, as defined in the Personal Property Security Act, may be registered in the personal property registry established under the Personal Property Security Act in the form and manner prescribed under that Act.
(7) If a financing statement is registered in the personal property registry under subsection (6),
(a) sections 43 (1) to (3), (6) to (8) and (12) to (15), 46 to 48, 52 and 54 of the Personal Property Security Act apply, and
(b) any security interest created after that in a manufactured home is subordinate to an interest in the manufactured home created by the marriage agreement or separation agreement, unless the parties to the marriage agreement or separation agreement register a financing change statement in the personal property registry discharging or postponing the registration referred to in subsection (6) in the form and manner prescribed under the Personal Property Security Act.
(8) If a financing statement is registered under subsection (6), the registrar of manufactured homes must not register a transfer of a manufactured home unless each spouse or former spouse who is a party to the marriage agreement or separation agreement registers a financing change statement in the personal property registry discharging or subordinating the registration referred to in subsection (6) in the form and manner prescribed under the Personal Property Security Act.
(9) If, immediately before October 1, 1990, a notice was registered or filed under this section in the manufactured home registry office,
(a) this section, as it was immediately before October 1, 1990, continues to apply to the notice before and after reregistration under paragraph (c),
(b) a security interest created under the Personal Property Security Act in the manufactured home is subordinate to an interest in the manufactured home created by the marriage agreement or separation agreement unless,
(i) before the notice is reregistered under paragraph (c), the parties to the marriage agreement or separation agreement file in the manufactured home registry office a cancellation or subordination notice in the form and manner prescribed under the Manufactured Home Act, or
(ii) after the notice is reregistered under paragraph (c), the parties to the marriage agreement or separation agreement register a financing change statement in the personal property registry, discharging or subordinating the interest registered, in the form and manner prescribed under the Personal Property Security Act, and
(c) the notice must be reregistered by the registrar of the personal property registry in the personal property registry on a date to be prescribed and after reregistration subsections (7) (a) and (8) apply.
Enforceability of interest in property
64 (1) In this section, "interest of a spouse" means the interest of a spouse arising under section 56, a marriage agreement or a separation agreement.
(2) Section 29 of the Land Title Act applies to an interest of a spouse in land.
(3) If, on the acquisition of property other than land, a person does not have actual notice of the interest of a spouse in the property, the interest is not enforceable against that person.
(4) Despite subsections (2) and (3), the interest of a spouse is enforceable against the other spouse from the date the interest comes into being.
Judicial reapportionment on basis of fairness
65 (1) If the provisions for division of property between spouses under section 56, Part 6 or their marriage agreement, as the case may be, would be unfair having regard to
(a) the duration of the marriage,
(b) the duration of the period during which the spouses have lived separate and apart,
(c) the date when property was acquired or disposed of,
(d) the extent to which property was acquired by one spouse through inheritance or gift,
(e) the needs of each spouse to become or remain economically independent and self sufficient, or
(f) any other circumstances relating to the acquisition, preservation, maintenance, improvement or use of property or the capacity or liabilities of a spouse,
the Supreme Court, on application, may order that the property covered by section 56, Part 6 or the marriage agreement, as the case may be, be divided into shares fixed by the court.
(2) Additionally or alternatively, the court may order that other property not covered by section 56, Part 6 or the marriage agreement, as the case may be, of one spouse be vested in the other spouse.
(3) If the division of a pension under Part 6 would be unfair having regard to the exclusion from division of the portion of a pension earned before the marriage and it is inconvenient to adjust the division by reapportioning entitlement to another asset, the Supreme Court, on application, may divide the excluded portion between the spouse and member into shares fixed by the court.
Determination of ownership, possession or division
66 (1) In proceedings under this Part or Part 6 or on application, the Supreme Court may determine any matter respecting the ownership, right of possession or division of property under this Part, including the vesting of property under section 65, or under Part 6 and may make orders that are necessary, reasonable or ancillary to give effect to the determination.
(2) Without limiting subsection (1), the court may do one or more of the following in an order under this section:
(a) declare the ownership of or right of possession to property;
(b) order that, on a division of property, title to a specified property granted to a spouse be transferred to, or held in trust for, or vested in the spouse either absolutely, for life or for a term of years;
(c) order a spouse to pay compensation to the other spouse if property has been disposed of, or for the purpose of adjusting the division;
(d) order partition or sale of property and payment to be made out of the proceeds of sale to one or both spouses in specified proportions or amounts;
(e) order that property forming all or a part of the share of either or both spouses be transferred to, or in trust for, or vested in a child;
(f) order that a spouse give security for the performance of an obligation imposed by order under this section, including a charge on property and may order that the spouse waive or release in writing any right, benefit or protection given by section 23 of the Chattel Mortgage Act, R.S.B.C. 1979, c. 48, or section 19 of the Sale of Goods on Condition Act, R.S.B.C. 1979, c. 373;
(g) if property is owned by spouses as joint tenants, sever the joint tenancy.
(3) If the Supreme Court, on application, is satisfied that a spouse has made or intends to make a gift of property to a third person, or has transferred or intends to transfer property to a third person who is not a purchaser in good faith for value, for the purpose of defeating a claim to an interest in the property the other spouse may then or in the future have under this Part, the Supreme Court may make an order under this section to restrain the making of the gift or transfer, or vest all or a portion of the property in, or in trust for, the other spouse.
Proceedings involving treaty lands
66.1 (1) If the final agreement of a treaty first nation so provides, in proceedings under this Part in which
(a) a parcel of the treaty lands of a treaty first nation that is entitled under its final agreement to make laws restricting alienation of its treaty lands is at issue, and
(b) at least one spouse is a treaty first nation member of the treaty first nation,
that treaty first nation has standing in the proceeding.
(2) In a proceeding to which subsection (1) applies, the court must consider, among other matters, any evidence or representations in respect of the applicable treaty first nation's laws restricting alienation of its treaty lands.
(3) The participation of a treaty first nation in a proceeding to which subsection (1) applies must be in accordance with the applicable Rules of Court and does not affect the court's ability to control its process.
Interim orders
67 (1) On application by a party to a proceeding under this Part or Part 6, the court must make an order restraining another party to the proceeding from disposing of a family asset or any other property at issue under this Part or Part 6 until or unless the other party establishes that a claim made by the applicant under this Part or Part 6 will not be defeated or substantially impaired by the disposal of that family asset or other property.
(2) On application by a party to a proceeding under this Part or Part 6, the court may make an order for the possession, delivery, safekeeping and preservation of a family asset or other property at issue under this Part or Part 6.
(3) The court may make an order under this section before notice of the application is served on the other party or may order that notice of the application be served on the other party.
(4) On application by a party to a proceeding under this Part or Part 6, the court may vary or rescind an order made under this section on terms it considers appropriate.
Variation of marriage settlements
68 (1) This section applies to an ante nuptial or post nuptial settlement that is not a marriage agreement under this Part.
(2) The Supreme Court may, on application, not more than 2 years after an order for dissolution of marriage, for judicial separation or declaring a marriage null and void, inquire into an ante nuptial or post nuptial settlement affecting either spouse and, whether or not there are children, make any order that, in its opinion, should be made to provide for the application of all or part of the settled property for the benefit of either or both spouses or a child of a spouse or of the marriage.
(3) The Supreme Court may, on application, if circumstances warrant, extend the period during which an application may be made or power exercised under this section.
Application of this Part
69 (1) If there is a conflict between this Part and the Partition of Property Act, or the Married Woman's Property Act, R.S.B.C. 1979, c. 252, this Part prevails.
(2) The rights under this Part are in addition to and not in substitution for rights under equity or any other law.
Part 6 — Division of Pension Entitlement
Definitions for Part
70 (1) In this Part:
"administrator", "benefit", "defined contribution plan", "former member", "member" and "supplemental pension plan" have the same meaning as they have in section 1 (1) of the Pension Benefits Standards Act;
"beneficiary" means a person, or the estate of a member, entitled under the terms of a plan to receive preretirement survivor benefits or postretirement survivor benefits on the death of the member;
"commuted value" means the value of a benefit determined in accordance with the Pension Benefits Standards Act;
"defined benefit plan" means a plan that is not a defined contribution plan or a hybrid plan;
"disability pension" means a benefit paid to a member under a plan as a consequence of a member's disability;
"extraprovincial plan" means a plan that is not a local plan and includes
(a) a supplemental pension plan to a local plan or extraprovincial plan, or
(b) a plan whose only members are "specified individuals" as defined in the regulations under the Income Tax Act (Canada);
"hybrid plan" means a plan under which
(a) some benefits, but not all of the benefits, are determined as if the plan were a defined contribution plan, and
(b) some benefits, but not all of the benefits, are determined by a defined benefit formula;
"limited member" means a person designated as a limited member of a local plan under section 72 (1);
"local plan" means one of the following:
(a) a plan that is established by the government;
(b) a plan that must be registered under the Pension Benefits Standards Act;
(c) a plan that is subject to this Part
(i) by the terms of the plan,
(ii) by the operation of legislation that regulates the plan, or
(iii) by reason of a reciprocal agreement under the Pension Benefits Standards Act;
"matured pension", or "matured" with reference to a pension, means a pension under which benefits are being paid to a retired member or a beneficiary and includes a payment of a disability pension when the member reaches a prescribed age;
"member" includes a former member;
"pension" means a series of payments that continue for the life of a member, whether or not it is afterward continued to any other person;
"plan" means a plan, scheme or arrangement organized and administered to provide pensions for members;
"postretirement survivor benefit" means lump sum or periodic benefits paid by a plan to a beneficiary when a member dies after the pension matures;
"preretirement survivor benefit" means lump sum or periodic benefits paid by a plan to a beneficiary when a member dies before the pension matures;
"proportionate share" means a fraction calculated in accordance with the regulations, the agreement of the spouse and member under section 80 or a court order;
"retirement" or "retire" means the date a member begins to receive a pension under a plan, whether or not the receipt of benefits has been deferred;
"separate pension" means the share of a member's pension that is established in a separate account in favour of a spouse;
"spouse" includes a former spouse of a member;
"transfer" means, when referring to the payment of a proportionate share of the commuted value of a pension to the credit of a spouse, a transfer made in accordance with the regulations.
(2) [Repealed B.C. Reg. 18/10.]
Application of Part
71 (1) Subject to subsection (2), if a spouse is entitled under Part 5 to an interest in a pension,
(a) the spouse's share of the pension, and
(b) the manner in which the spouse's entitlement in the pension is to be satisfied
must be determined in accordance with this Part.
(2) This Part applies only if a spouse
(a) was entitled under Part 5 to an interest in a pension before July 1, 1995 and on July 1, 1995 there is no allocation of the pension by agreement between the spouse and the member or by court order, or
(b) becomes entitled under Part 5 to an interest in a pension after June 30, 1995.
(3) An agreement between a spouse and member, or a court order, that is silent on pension entitlement but that represents a final settlement and separation of the financial affairs of the spouse and member in recognition of the end of their marriage is, for the purposes of this Part, an allocation of the entire pension to the member by agreement or court order but nothing in this subsection affects a court's jurisdiction under Part 5 to review such an agreement or order.
Local plans: limited members
72 (1) If a pension to be divided is
(a) an unmatured pension in a local plan that is a defined benefit plan, or
(b) a matured pension in a local plan,
a spouse may be designated a limited member of the local plan by delivering a notice in the prescribed form to the administrator.
(2) A limited member has the following rights:
(a) to receive from the plan direct payment of a separate pension or a proportionate share of benefits paid under the pension, as the case may be, as determined under this Part;
(b) to enforce rights against the plan and recover damages for losses suffered as a result of a breach of a duty owed by the plan to the limited member;
(c) except as modified by this Part, all of the rights of a member under the Pension Benefits Standards Act;
(d) the additional rights that are set out in this Part.
(3) Subject to an order of the Supreme Court, a designation of preretirement survivor benefits or postretirement survivor benefits under the member's pension in favour of a limited member may not be changed without the limited member's consent.
(4) Subsection (3) applies until the limited member ceases to be a limited member or becomes entitled to a separate pension.
(5) If the commuted value of the spouse's share in the pension is transferred under this Part to the credit of the spouse, the spouse ceases to be a limited member of the plan.
Local plans: division of an unmatured defined contribution plan
73 If a pension to be divided is in a local plan and has not matured and the plan is a defined contribution plan, a spouse, by delivering a notice in the prescribed form to the administrator, is entitled to have a prescribed portion of the member's account balance transferred from the plan in accordance with the regulations.
Local plans: division of an unmatured defined benefit plan
74 If a pension to be divided is in a local plan and has not matured and the plan is a defined benefit plan, a spouse, by delivering a notice in the prescribed form to the administrator,
(a) is entitled to have, before the member retires, a proportionate share of the commuted value of the pension transferred from the plan to the credit of the spouse when the member
(i) is eligible to retire, or
(ii) terminates his or her membership in the pension plan, or
(b) is entitled to receive,
(i) when the member retires, a separate pension from the plan determined in accordance with the regulations, and
(ii) during any applicable phased retirement period as defined in section 38.1 of the Pension Benefits Standards Act, a proportionate share of the phased retirement benefit paid to the member under and in accordance with that section.
Local plans: division of an unmatured hybrid plan
75 (1) If a pension to be divided is in a local plan and has not matured and the plan is a hybrid plan,
(a) to the extent that the pension in the hybrid plan is based on, or the member may choose to have it based on, principles applicable to a defined contribution plan, the pension must be divided in accordance with this Part and the regulations as if it were in a defined contribution plan, and
(b) the remainder of the pension must be divided in accordance with this Part and the regulations as if the pension were in a defined benefit plan.
(2) Despite subsection (1), a spouse may elect, with the consent of the administrator, to have the pension divided as if it were in a defined benefit plan.
Supreme Court retains a discretion
75.1 (1) If, in the circumstances, the method of division required under this Part and the regulations is inappropriate because of the terms of the plan, the Supreme Court, despite the Pension Benefits Standards Act or any other Act purporting to limit the jurisdiction of a court to make an appropriate order respecting pension entitlement of the member and the spouse on marriage breakdown, may direct an appropriate method of division of the pension and the order of the court is binding on the plan.
(2) Unless the application of section 65 requires the share to the spouse to be larger, an order under subsection (1) must leave the member with at least half of
(a) the value the pension would have had, or
(b) the periodic benefits that would have been paid under the pension on retirement
had there been no division of the pension between the member and the spouse.
Local plans: benefit split of a matured pension
76 (1) If a pension to be divided is in a local plan and has matured, a spouse, by delivering a notice in the prescribed form under section 72 (1), is entitled to receive from the plan a proportionate share of benefits paid under the pension until
(a) the death of the spouse, or
(b) the termination of the pension,
whichever occurs first.
(1.1) The reference in subsection (1) to "benefits" does not include a member's phased retirement benefit, paid under and in accordance with section 38.1 of the Pension Benefits Standards Act, if the condition in section 38.1 (4) (e) (i) of the Act has been met.
(2) Despite subsection (1), if no other spouse is entitled to receive a proportionate share of benefits paid under the pension, the spouse who is the designated beneficiary of a postretirement survivor benefit under the pension is entitled to the whole of the postretirement survivor benefit.
(3) A local plan that pays a proportionate share of benefits to a spouse must make separate source deductions with respect to deductions required under the Income Tax Act (Canada) for the spouse's share and the member's share of the benefits.
(4) Despite section 71 (2), a spouse who, before July 1, 1995, is entitled to receive from a member payment of a proportionate share of benefits paid under a matured pension, may, by delivering a notice in the prescribed form to the administrator, require the plan to administer the division in accordance with this section.
Division of an extraprovincial plan
77 (1) If a pension to be divided is in an extraprovincial plan, a spouse is entitled to receive from the plan a proportionate share of benefits paid under the pension until
(a) the death of the spouse, or
(b) the termination of the pension,
whichever occurs first, and the member is a trustee of the proportionate share of benefits for the spouse.
(2) Despite subsection (1), if no other spouse is entitled to receive a proportionate share of benefits paid under the pension, the spouse who is the designated beneficiary of a postretirement survivor benefit under the pension is entitled to the whole of the postretirement survivor benefit.
(3) Subject to subsection (4), subsection (1) does not apply if the plan, or legislation establishing or regulating the plan, provides an alternative method of satisfying the interest of the spouse in the pension.
(4) If, having regard to the principles that apply to pension division under this Part, the alternative method under subsection (3) would operate unfairly, the Supreme Court may order the spouse's share in the pension be satisfied under subsection (1).
Death of a member or limited member
78 (1) If a member dies before the limited member receives a share of the pension under section 74, and the limited member is not entitled to the whole of any preretirement survivor benefit payable under the member's pension, then the limited member is entitled to a proportionate share of that preretirement survivor benefit in the form of
(a) a separate benefit, or
(b) if the preretirement survivor benefit is in the form of an annuity, a separate pension determined in accordance with the regulations.
(2) If a member dies after the limited member receives a share of the pension under section 74, the limited member is entitled to no further share of the member's pension except to the extent that the member has designated the limited member to be a beneficiary of the pension.
(3) If a limited member dies before the member and before receiving a share of the pension under section 74, the plan must transfer to the credit of the limited member's estate a proportionate share of the commuted value of the pension.
Transfer of the commuted value of a separate pension or a share of a pension
79 If a limited member is entitled to a separate pension or a proportionate share of benefits paid under the pension, a plan may require the limited member to accept a transfer of the commuted value of the separate pension or of the proportionate share of the benefits, as the case may be, in the same manner that a plan can require a member to do so under section 33 (5) or 40 (1) of the Pension Benefits Standards Act.
Agreements
80 (1) A spouse may enter into a written agreement with a member respecting one or more of the following:
(a) an arrangement for sharing the pension that departs from the shares required under this Act so long as the share to the spouse leaves the member with at least half of
(i) the value the pension would have had, or
(ii) the periodic benefits that would have been paid under the pension on retirement
had there been no division of the pension between the member and spouse;
(b) a waiver by the spouse of any right to or interest in a member's pension or any benefit under it;
(c) a waiver by the spouse under section 62 of any right to or interest in a division of the unadjusted pensionable earnings under the Canada Pension Plan;
(d) the satisfaction of the spouse's interest in the pension by the payment of compensation in money or money's worth by the member to the spouse.
(2) Despite section 71 (2), if
(a) a spouse became entitled under Part 5 to an interest in family assets before July 1, 1995,
(b) the pension is to be divided by having the member pay the spouse a proportionate share of benefits payable under the pension, and
(c) the member has not yet retired or the spouse is not yet receiving benefits,
the spouse and member may agree to divide the pension in accordance with this Part and, in that case, a notice in the prescribed form issued under section 72 (1) or 73 is as valid as if entitlement to an interest in family assets arose after June 30, 1995.
(2.1) If the spouse and member agree under subsection (2) to divide the pension in accordance with this Part, then, unless the spouse and member otherwise agree, for the purposes of this Part
(a) the original agreement or order dividing the pension applies as if it were made as of the date of the agreement under subsection (2),
(b) despite paragraph (c), subsection (1) or section 75.1, the spouse's proportionate share of the pension is determined by the share or formula set out in the original agreement or order,
(c) the original agreement or order dividing the pension is of no further effect to the extent that it contains provisions that are inconsistent with division under this Part because they
(i) provide for a different method of pension division, or
(ii) are inapplicable because of changed circumstances, and
(d) to the extent that the original agreement or order dividing the pension contains provisions that clarify, supplement or are collateral to division under this Part, those provisions continue in effect.
(2.2) A term in an order or agreement, whenever made, that requires the member to sever, or to assist the spouse in severing, the spouse's share from the member's pension as soon as it becomes possible to do so is conclusively deemed to be an agreement referred to in subsection (2), unless the parties otherwise agree or the court otherwise orders, made as of the date the plan receives notice in the prescribed form under subsection (2).
(3) If the spouse and member agree, or the Supreme Court makes an order under section 66, that the member must pay compensation to the spouse in satisfaction of part or all of the spouse's interest in the pension, the compensation payment must be calculated in accordance with the regulations unless the spouse and member otherwise agree or the court otherwise orders.
(4) If the plan and a spouse enter into an agreement under which the spouse accepts from the plan compensation, or a transfer of a share of the pension, in satisfaction of the spouse's interest in any circumstances not specifically dealt with under this Part, the compensation payment or amount transferred must be calculated in accordance with the regulations unless the Supreme Court otherwise orders.
(5) If, for the purposes of this Part, a form of notice or waiver is prescribed by the regulations, the notice or waiver is of no effect unless it is in the prescribed form.
Administrative costs
81 (1) The spouse and member are responsible for paying to the plan a prescribed amount to offset administrative costs incurred by the plan in satisfying the share of the spouse under this Part.
(2) A spouse or member who pays more than a half share of the administrative costs may recover from the other the additional amount paid.
Information from plan
82 (1) A limited member, or a spouse claiming an interest in a pension who has delivered to the plan a notice in the prescribed form, is entitled to receive from the administrator
(a) at the time of marriage breakdown, and
(b) on an annual basis,
prescribed information in respect of the plan.
(2) Despite subsection (1), the Supreme Court may order that an administrator provide some or all of the information required by subsection (1) at any time.
Trust of survivor benefits
83 If a spouse is entitled to a share of preretirement survivor benefits or postretirement survivor benefits paid to another person, the recipient holds them in trust for the spouse.
Adjustment of member's pension
84 If under this Act a spouse or the spouse's estate receives a share of a member's pension directly from a plan, the interest in the pension of the member, or of any person claiming an interest through the member, must be adjusted in accordance with the regulations.
Plan and administrator not liable
85 No plan or administrator of a plan is liable for loss or damage suffered by any person because of anything done or omitted to be done by an administrator who relies and acts in good faith on
(a) a notice or waiver given under this Part, or
(b) a court order or separation agreement attached to a notice given under this Part.
Power to make regulations
86 The Lieutenant Governor in Council may make regulations for the following purposes and respecting the following matters:
(a) the methods and assumptions to be followed for the valuation, division and transfer of a pension and benefits, or the calculation of any compensation payment or commuted value, at the end of a marriage;
(b) the procedures to be followed by a spouse, member and plan when dividing a pension or satisfying a spouse's entitlement to a pension;
(c) the kinds of information a plan must make available to a spouse or limited member about a plan or pension entitlement and when the information must be provided, and requiring that different information be provided at different times;
(d) the form, content and manner of giving any notice or waiver under this Part;
(e) the procedures to be followed for failing to give or failing to comply with a notice under this Part;
(f) the method of calculating the proportionate share of benefits under a plan;
(g) the method of calculating a compensation payment or a transfer of a share of a pension for the purposes of section 80 (4);
(h) the prescribing of any age requirement under this Part;
(i) the prescribing of the amount of any administrative cost.
Part 7 — Maintenance and Support Obligations
Definitions for Part
87 In this Part:
"child" includes a person who is 19 years of age or older and, in relation to the parents of the person, is unable, because of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life;
"enforcement officer" means an enforcement officer designated under section 98;
"maintenance order" means an order made under sections 88 to 96.
Obligation to support child
88 (1) Each parent of a child is responsible and liable for the reasonable and necessary support and maintenance of the child.
(2) The making of an order against one parent for the maintenance and support of a child does not affect the liability of another parent for the maintenance and support of the child or bar the making of an order against the other parent.
Obligation to support spouse
89 (1) A spouse is responsible and liable for the support and maintenance of the other spouse having regard to the following:
(a) the role of each spouse in their family;
(b) an express or implied agreement between the spouses that one has the responsibility to support and maintain the other;
(c) custodial obligations respecting a child;
(d) the ability and capacity of, and the reasonable efforts made by, either or both spouses to support themselves;
(e) economic circumstances.
(2) Except as provided in subsection (1), a spouse or former spouse is required to be self sufficient in relation to the other spouse or former spouse.
Obligation to support parent
90 (1) In this section:
"child" means an adult child of a parent;
"parent" means a father or mother dependent on a child because of age, illness, infirmity or economic circumstances.
(2) A child is liable to maintain and support a parent having regard to the other responsibilities and liabilities and the reasonable needs of the child.
Application for an order
91 (1) A person may apply for an order under this Part on his or her own behalf.
(2) The Attorney General may designate in writing those persons who may make applications for orders under this Part on behalf of a spouse.
(2.1) A designated agency, as defined in the Adult Guardianship Act, may apply for an order under this Part on behalf of a parent described in section 90 of this Act after an investigation is conducted under Part 3 of that Act.
(2.2) A representative may apply for an order under this Part on behalf of a parent described in section 90 of this Act, if the representative is authorized under the Representation Agreement Act to make decisions about the routine management of the parent's financial affairs.
(3) Any person may apply for an order under this Part on behalf of a child.
(4) A spouse or parent affected by an order under this Part or a person described in subsection (1), (2) or (3) may apply for an order altering, varying or rescinding the order or cancelling or reducing arrears under it.
(5) If the right to apply for an order under this Part 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 may apply for the order in the name of the government or the name of the person who made the assignment.
Failing to comply with rules respecting disclosure of information
92 (1) If a person fails to comply with rules respecting disclosure information in proceedings under this Act that are made under the authority of the Court Rules Act, the court may order an amount not exceeding $5 000 for the benefit of the spouse, parent or child on whose behalf the request was made.
(2) The award under subsection (1) is additional to and not in place of any other remedy.
Order for support and maintenance
93 (1) Subject to the Divorce Act (Canada), a court may make an order on application, or if the court makes or refuses an order for judicial separation or dissolution of marriage or a declaration that a marriage is null and void, requiring a party to the proceeding to discharge his or her liability
(a) under section 88 by paying to the person designated in the order the amount the court ascertains, using the child support guidelines, and
(b) under section 89 or 90, as the case may be, by paying to the person designated in the order the amount the court considers reasonable.
(2) Despite subsection (1) (a), a court may make an order to discharge a liability under section 88 by paying to the person designated in the order an amount that differs from the amount the court ascertains, using the child support guidelines, if the court is satisfied that
(a) provisions in an order, a judgment or a written agreement respecting the financial obligations of the parents, or the division or transfer of their property, directly or indirectly benefit the child, or that special provisions have otherwise been made for the benefit of the child, and
(b) the application of the child support guidelines would be inequitable in the circumstances of the provisions to which paragraph (a) refers.
(3) If the court makes an order under subsection (2), it must record its reasons for having done so.
(4) If a spouse will be living separate and apart from the spouse against whom the application is made, the court may, as it considers appropriate, adjust the amount of its order under subsection (1) (b) to take into account the needs, means, capacities and economic circumstances of each spouse, including the following:
(a) the effect on the earning capacity of each spouse arising from responsibilities assumed by each spouse during cohabitation;
(b) any other source of support and maintenance for the applicant spouse;
(c) the desirability of the applicant spouse having special assistance to achieve financial independence from the spouse against whom the application is made;
(d) the obligation of the spouse against whom application is made to support another person;
(e) the capacity and reasonable prospects of a spouse obtaining education or training.
(5) An order under this section may also provide for one or more of the following:
(a) payment periodically, annually or otherwise, and either for an indefinite or limited period or until the happening of a specified event;
(b) payment of a lump sum directly or in trust on terms provided;
(c) charging of property with payment under the order;
(d) payment of support in respect of any period before the order is made;
(e) payment for expenses arising from and incidental to
(i) the prenatal care of the mother or child, or
(ii) the birth of a child.
(6) If an order under this section benefits more than one person, the court must specify the amount payable, as the case may be, for a spouse, a parent or the children.
Consent orders
93.1 (1) In proceedings under section 93 or 96 a court may award an amount that is different from the amount calculated under the child support guidelines, on the consent of the parties to the proceedings, if the court is satisfied that reasonable arrangements have been made for the support of the children to whom the order relates.
(2) For the purposes of subsection (1) the court must consider the child support guidelines in determining whether reasonable arrangements have been made for the support of the children to whom the order relates but must not consider the arrangements to be unreasonable solely because the amount calculated under the child support guidelines differs from the amount to which the parties consent.
Priority
93.2 (1) If a court is considering making an order under section 93, or in proceedings under section 96, the court must give priority to maintenance under section 88.
(2) If, as a result of subsection (1), the court is unable to make an order under section 93 (1) (b) or makes an order under section 93 (1) (b) in an amount that is less than it would have otherwise been,
(a) the court must record its reasons for having done so, and
(b) any subsequent reduction or termination of the obligation to pay under the order made under section 93 (1) (a) constitutes a change described in section 96 (1) for the purposes of applying for
(i) an order under section 93 (1) (b), if one was not made previously, or
(ii) a variation of the order under section 93 (1) (b), if one was made in an amount that is less than it would have been otherwise.
Child support service
93.3 (1) In this section and in section 129 (4):
"child support" means the amount awarded in a child support order, or the amount agreed to in a child support agreement, for the maintenance and support of a child;
"child support agreement" means an agreement filed under section 121 for the maintenance and support of a child;
"child support service" means a child support service established under subsection (2);
"notification date" means the date on which both the payor and the payee are deemed, under the regulations, to have received a statement of recalculation;
"payee" means a person to whom child support is to be paid;
"payor" means a person who is obliged to pay child support;
"prescribed registry" means a court registry prescribed under section 129 (4) (a);
"recalculated amount" means the child support that is payable after that amount has been recalculated by the child support service under subsection (3) (b);
"statement of recalculation" means a written notice by which the child support service notifies the parties of a recalculation under subsection (3) (b).
(2) The minister may establish a child support service for the purposes set out in this section.
(3) A child support service may do the following:
(a) assist courts in the determination of child support;
(b) subject to subsection (4), recalculate child support
(i) on the basis of updated income information, and
(ii) in accordance with this Act, the regulations and the child support guidelines;
(c) perform additional duties and functions as may be required by the minister.
(4) Subject to regulations made under section 129 (4) (i), the child support service may recalculate child support under subsection (3) (b) if
(a) the child support was determined under the child support guidelines, and
(b) the child support was established by
(i) a child support order made after the coming into force of this section and issued out of a prescribed registry, or
(ii) a child support agreement that has been filed with a prescribed registry of the court under section 121 and with the child support service and that includes the provisions prescribed by the regulations.
(5) If a child support order is issued out of a prescribed registry, the registry must promptly provide a copy of the child support order to the child support service.
(5.1) A child support order issued out of a prescribed registry must indicate the provision of the child support guidelines under which the order is made.
(6) The following persons, including, without limitation, the government, must, promptly after being requested to do so by the child support service, provide or cause to be provided to the child support service the information prescribed by the regulations at the times and in the manner set out in the regulations:
(a) each party to a proceeding, brought out of a prescribed registry, in which a child support order is made and the assignee of such a party;
(b) each party to a child support agreement referred to in subsection (4) (b) (ii) and the assignee of such a party.
(7) If a person who is required under subsection (6) to provide information does not do so at the time and in the manner required, the child support service may recalculate the amount of the child support and, in doing so, may make the assumptions, and may apply any factors or criteria, set out in the regulations.
(8) A person who is or may be liable to provide information to the child support service under subsection (6) may, by providing an authorization in the prescribed form to the child support service in the prescribed manner, authorize the child support service to request and receive that information from a third party.
(9) Subject to subsection (11), if child support is recalculated by the child support service under subsection (3) (b) and the recalculated child support differs from the current child support by at least the prescribed amount,
(a) the recalculated child support, or
(b) if the recalculated amount is corrected under subsection (9.1), the corrected recalculated child support,
is, 31 days after the notification date, deemed for all purposes to be the amount payable under the child support order or the child support agreement, as the case may be.
(9.1) The child support service may amend a statement of recalculation to correct one or more of the following:
(a) a clerical or typographical error;
(b) an arithmetical error made in the computation of the recalculated amount;
(c) an accidental or inadvertent error, omission or other similar mistake.
(9.2) The child support service may only make a correction under subsection (9.1) on the request of a party, made in the prescribed manner and form and within the prescribed time period.
(9.3) If a statement of recalculation is corrected under subsection (9.1), the child support service must notify the parties of the correction.
(10) If the payor or payee of child support does not agree with
(a) the recalculated amount, or
(b) if the recalculated amount is corrected under subsection (9.1), the corrected recalculated amount,
either party may, within 30 days after the notification date, apply to the court that made the child support order for an order under section 96.
(11) If an application is made under subsection (10), the operation of subsection (9) is suspended, and the child support order or child support agreement, as it read before recalculation, continues in effect until one of the following occurs:
(a) the application is determined;
(b) the application is dismissed;
(c) the application is withdrawn;
(d) the period prescribed by the regulations has passed without the applicant having taken any further steps in the application.
(12) If subsection (11) (a) applies to an application under subsection (10), the payor is liable to pay the child support ordered by the court on and after the effective date of the order.
(13) If subsection (11) (b), (c) or (d) applies to an application under subsection (10), the payor is liable to pay the recalculated amount on and after the day on which he or she would have become liable had the application not been made.
(14) A notice or other document required to be given or delivered under this section or the regulations is deemed to be received on the date at the end of the period prescribed by regulation.
Parentage
94 If parentage of a child is denied in a proceeding for an order under this Part, the court may determine the parentage issue under section 95, on the balance of probabilities, as part of the proceeding for that order.
Presumptions of paternity
95 (1) If a male person denies responsibility under section 88 (1) on the basis that he is not the father of the child, the court must, unless the contrary is proved on a balance of probabilities, presume that the male person is the father of the child in any one of the following circumstances:
(a) the person is married to the mother of the child at the time of the birth of the child;
(b) the person was married to the mother of the child and the marriage was terminated
(i) by death of the person or judgment of nullity within 300 days before the birth of the child, or
(ii) by divorce if the decree nisi was granted or the divorce took effect within 300 days before the birth of the child;
(c) the person marries the mother of the child after the birth of the child and acknowledges that he is the natural father;
(d) the person was cohabiting with the mother of the child in a relationship of some permanence at the time of the birth of the child, or the child is born within 300 days after the person and the mother ceased to cohabit;
(e) the person has been found or recognized in his lifetime by a court of competent jurisdiction in Canada to be the father of the child;
(f) the person has acknowledged paternity of the child by having signed a statement under section 3 of the Vital Statistics Act;
(g) the person has acknowledged paternity of the child by having signed an agreement under section 20 of the Child Paternity and Support Act, R.S.B.C. 1979, c. 49.
(2) For the purposes of this section, if
(a) a man and woman go through a form of marriage to each other in good faith and cohabit during the marriage, and
(b) the marriage is void,
they are deemed to have been married during the period of cohabitation, and the marriage is deemed to have terminated when the period of cohabitation ended.
(3) If circumstances give rise to a presumption or presumptions of paternity by more than one male person under this section, a presumption must not be made as to paternity.
Paternity tests
95.1 (1) In this section, "paternity tests" include human leukocyte antigen tissue tests and tests of the deoxyribonucleic acid (DNA) in tissue or blood to identify the inheritable characteristics of the tissue or blood.
(2) If a male person denies responsibility under section 88 (1) on the basis that he is not the father of the child, the court may order putative parents and the child to have tissue or blood samples, or both, taken by a medical practitioner or other qualified person so that paternity tests can be done on the samples.
(3) An order under subsection (2) may include any terms or conditions the court considers appropriate and may require a putative parent to pay all or part of the cost of the paternity tests.
(4) The results of paternity tests done under subsection (2) may be introduced as evidence in a proceeding for an order under this Part.
(5) If a putative parent named in an order under subsection (2) fails to comply with the order, the court may draw any inference from that failure that the court considers appropriate.
Variation proceedings
96 (1) If an application is made to vary or rescind a maintenance order not described in subsection (1.1), the court must consider changes in the needs, means, capacities and economic circumstances of each person affected by the order and make the appropriate change, if any.
(1.1) To vary or rescind a maintenance order as defined in section 87 respecting the obligation under section 88 to support and maintain children, a court must
(a) be satisfied that a change in circumstances as provided for under the child support guidelines has occurred since the making or last variation of the maintenance order, and
(b) if satisfied that a change in circumstances as provided for under the child support guidelines has occurred, apply only the child support guidelines to determine the change of the amount of the maintenance obligation under the order.
(1.2) Despite subsection (1.1) (b), a court may vary a maintenance order, as defined in section 87 respecting the obligation under section 88 to support and maintain children, to an amount that differs from the amount the court ascertains using the child support guidelines, if the court is satisfied that
(a) provisions in an order, a judgment or a written agreement respecting the financial obligations of the parents, or the division or transfer of their property, directly or indirectly benefit the child, or that special provisions have otherwise been made for the benefit of the child, and
(b) the application of the child support guidelines would be inequitable in the circumstances of the provisions to which paragraph (a) refers.
(1.3) If the court makes an order under subsection (1.2), it must record its reasons for doing so.
(2) If an application is made to reduce or cancel arrears under a maintenance order, the court may reduce or cancel the arrears but only if it is satisfied that it would be grossly unfair not to do so.
(3) For the purpose of subsection (2), the court may take into consideration
(a) the efforts the applicant has made to comply with the maintenance order,
(b) the applicant's explanation for any delay in applying for variation of the maintenance order, and
(c) any special circumstances that the court considers relevant.
(3.1) If the court reduces arrears under a maintenance order, the court may order that interest does not accrue on the reduced amount of arrears but only if, taking into consideration the factors listed in subsection (3), the court is satisfied it would be grossly unfair not to make that order.
(3.2) If the court cancels arrears under a maintenance order, the court may cancel interest that has accrued on the arrears under section 11.1 of the Family Maintenance Enforcement Act but only if, taking into consideration the factors listed in subsection (3), the court is satisfied it would be grossly unfair not to make that order.
(4) A spouse or former spouse receiving maintenance under an order must make reasonable efforts to become self sufficient as required by section 89 (2) without prejudice to the continuing application, if any, of section 89 (1).
(5) If the court finds that a spouse or former spouse is not making reasonable efforts under subsection (4), the court may reduce the amount of maintenance payable on behalf of the spouse or former spouse under a maintenance order.
Enforcement officers
98 The Lieutenant Governor in Council may designate public service employees as enforcement officers for the purposes of this Part.
Maintenance orders in sections 99 and 100
98.1 In sections 99 and 100, "maintenance order" includes a support order made under the Interjurisdictional Support Orders Act.
Powers of enforcement officer
99 (1) On the written request of any person, an enforcement officer may, if he or she considers it appropriate, do any one or more of the following:
(a) assist the person to obtain a maintenance order or a variation of a maintenance order;
(b) assist the person to enforce a maintenance order;
(c) for the purposes of section 93.3, assist the person, including, without limitation, a government employee acting in the course of employment, in obtaining information respecting the location or address of
(i) a party to a proceeding in which a child support order has been made, or
(ii) a party to a child support agreement.
(1.1) An order, application or other document received by a designated authority under the Interjurisdictional Support Orders Act is deemed to be a written request under this section.
(2) A request under subsection (1) may be revoked by a written notice signed by the person who made the request.
(3) An enforcement officer may demand from any person or public body, including the government, the following information that is in a record in the possession or control of that person or public body:
(a) for the purposes of assisting a person to obtain a maintenance order or a variation of a maintenance order or to enforce a maintenance order, information that concerns
(i) the location, address or place of employment,
(ii) the particulars of the assets or income, or
(iii) the location of the assets or the source of income
of the proposed respondent or person against whom the maintenance order is made;
(b) for the purposes of subsection (1) (c), information that concerns the location, address or place of employment of
(i) a party to a proceeding in which a child support order has been made, or
(ii) a party to a child support agreement.
(3.1) For the purpose of protecting the safety of a person that an enforcement officer is assisting under this section or of the proposed respondent or person against whom the maintenance order is made, or of a child of any of them, the enforcement officer may demand from any person or public body, including the government, information that
(a) is in a record in the possession or control of that person or public body, and
(b) concerns an order made for the protection of the person or child under section 810, 810.1 or 810.2 of the Criminal Code or section 37, 38 or 126 of this Act.
(4) Subsections (3) and (3.1) do not apply in respect of
(a) personal correspondence between the person against whom assistance is requested under subsection (1) and a parent, child, spouse, brother or sister of that person,
(b) information in the possession or control of
(i) a solicitor of the person against whom assistance is requested under subsection (1), or
(ii) a family court counsellor, or
(c) information the disclosure of which is forbidden by section 9 (1) (b) of the Statistics Act.
(5) Despite any other enactment or any common law rule of privilege or confidentiality, any person or public body, including the government, that receives a demand under subsection (3) or (3.1) must within 10 days provide any of the demanded information that is in any record in the possession or control of the person or public body.
(6) An enforcement officer may disclose information provided under subsection (5) to a person in another jurisdiction performing functions similar to those of the enforcement officer.
Order of court for access to information
100 (1) If, on application, the court is satisfied that
(a) an enforcement officer has been refused information after making a demand under section 99 (3), or
(b) a person needs an order under this section in order to obtain a maintenance order or a variation of a maintenance order,
the court may, despite any other enactment or any common law rule of privilege or confidentiality but subject to subsection (2), order any person or public body, including the government, to provide to the applicant or to an individual named by the court any information that is in any record in the possession or control of that person or public body and that concerns
(c) the location, address or place of employment,
(c.1) the particulars of the assets or income, or
(d) the location of the assets or of the source of income
of the proposed respondent or of the person against whom the maintenance order is made.
(2) The court must not make an order under subsection (1) in respect of information described in section 99 (4) (b) or (c).
(3) If the court makes an order under subsection (1) or under a similar provision in an enactment of Canada, it may make any order it considers appropriate with respect to the confidentiality to be maintained in connection with the information provided.
(4) A person must not disclose information provided under section 99 (5) or this section except
(a) to the extent necessary for the purpose of obtaining, varying or enforcing a maintenance order, or
(b) as provided in section 99 (6).
(5) Subsection (4) applies despite any provision of the Freedom of Information and Protection of Privacy Act other than section 44 (1) (b), (2), (2.1) and (3) of that Act.
(6) Subsections (4) and (5) do not apply to
(a) personal information, as defined in the Freedom of Information and Protection of Privacy Act, that has been in existence for 100 or more years,
(b) information not described by paragraph (a) that has been in existence for 50 or more years, or
(c) information for research purposes disclosed in accordance with section 33.2 (k) of the Freedom of Information and Protection of Privacy Act.
Part 9 — Procedure and Agreements
Proceedings to be heard summarily
120 Subject to this Act and the Provincial Court (Family) Rules, an application under this Act to the Provincial Court must be heard summarily or in the manner the court may direct.
Property agreements
120.1 (1) If spouses who are not married to each other make an agreement, Parts 5 and 6 apply to
(a) the agreement, and
(b) if covered by the agreement,
(i) an annuity,
(ii) a pension or an interest in a pension plan,
(iii) a home ownership savings plan, or
(iv) property not described in subparagraphs (i) to (iii).
(2) In this section:
"agreement" means an agreement that would be
(a) a marriage agreement for the purposes of Part 5 if the spouses were married to each other, or
(b) a separation agreement if the spouses were married to each other or separated after marriage;
"property" means property of a spouse that would be a family asset under Part 5 if the spouses were married to each other.
(3) In applying Part 5 or 6 for the purpose of this section, a reference to "marriage" in Part 5 or 6 must be deemed to be a reference to a marriage-like relationship between the spouses who are not married to each other.
Enforcement of agreement as court order
121 (1) In this section:
"child" means a person who is acknowledged in a written agreement filed under this section to be the responsibility of a party to the agreement and who is
(a) under the age of 19 years, or
(b) 19 years of age or older and, in relation to the party to the agreement, is unable, because of illness, disability or other cause, to withdraw from that party's charge or to obtain the necessaries of life;
"parent" means a person who acknowledges in a written agreement filed under this section a responsibility for a child;
"spouse" means a spouse as described in paragraph (a), (b) or (c) of the definition of "spouse" in section 1 (1) and includes a person who acknowledges in a written agreement filed under this section that he or she is or was a spouse of another person, whether or not they are or were married.
(2) If a signed copy of a written agreement containing a provision respecting
(a) the custody of or access to a child by a parent, or
(b) the maintenance of a child by a parent or of a person by the person's spouse
is filed in the Provincial Court in accordance with the Provincial Court (Family) Rules, the provision is enforceable under this Act or the Family Maintenance Enforcement Act as if it were contained in an order made under this Act.
(3) Subsection (2) applies in respect of
(a) a written agreement made after June 30, 1995, and
(b) a written agreement made before July 1, 1995, but only if a consent in the form prescribed by the Provincial Court (Family) Rules is filed with the agreement.
(4) A provision that is referred to in subsection (2) and is contained in a written agreement filed under this section may, at any time, be varied or rescinded
(a) by a new written agreement filed in the Provincial Court in accordance with the Provincial Court (Family) Rules, or
(b) by the Provincial Court, on application and subject to sections 20 and 96.
(5) The filing of a written agreement under this section does not
(a) restrict or prevent a court from making an order for the same relief as is provided for in the agreement, or
(b) prevent the agreement from being filed or enforced in the Supreme Court under section 122.
(6) If a provision referred to in subsection (2) is contained in an agreement that was filed under this section before July 1, 1995,
(a) the provision continues to be enforceable under this Act or the Family Maintenance Enforcement Act as if it were contained in an order made under this Act, and
(b) subsection (4) of this section applies.
(7) A written agreement filed under section 2 of the Unified Family Court Act, S.B.C. 1974, c. 99, before March 31, 1979 is a written agreement under this section.
Enforcement of agreements filed in Supreme Court
122 (1) If a signed copy of a written agreement containing a provision respecting
(a) the custody of or access to a child by a parent, or
(b) the maintenance of a child by a parent or of a person by the person's spouse
is filed in the Supreme Court in accordance with the Supreme Court Family Rules, the provision is enforceable under this Act or the Family Maintenance Enforcement Act as if it were contained in an order made under this Act.
(2) Subsection (1) applies in respect of
(a) a written agreement made after June 30, 1995, and
(b) a written agreement made before July 1, 1995, but only if a consent in the form prescribed by the Supreme Court Family Rules is filed with the agreement.
(3) The filing of a written agreement under this section does not prevent the agreement from being filed, enforced, varied or rescinded in the Provincial Court under section 121.
(4) If a provision referred to in subsection (1) is contained in an agreement that was filed under this section before July 1, 1995, the provision continues to be enforceable under this Act or the Family Maintenance Enforcement Act as if the provision were contained in an order made under this Act.
(5) The definitions in section 121 (1) apply in this section.
Remedies
123 (1) An action must not be maintained for restitution of conjugal rights, loss of consortium, criminal conversation or jactitation of marriage.
(2) An action must not be maintained for
(a) enticement of a spouse,
(b) harbouring of a spouse, or
(c) breach of promise of marriage.
(3) Subsection (2) applies whether or not the cause of action arose before June 2, 1986, but an action commenced before that day may be continued despite that subsection.
(4) If, in a proceeding for judicial separation or dissolution of marriage on grounds of adultery, the person with whom the adultery is alleged to have been committed is served with notice of the proceedings and adultery is proved, the court may order that person to pay all or a part of the cost of the proceeding.
Temporary property relief
124 (1) An order under this section is for temporary relief pending determination of the rights to the property of the spouses by agreement or by a court that has jurisdiction in those matters.
(2) A court may make an order under this section respecting property that is owned or leased by one or both spouses and is or has been
(a) occupied by the spouses as their family residence, or
(b) personal property used or stored at the family residence.
(3) On application, the court may order that one spouse for a stated period
(a) be given exclusive occupancy of the family residence, or
(b) to the exclusion of the other spouse may use all or part of the personal property at the family residence.
(4) An order under subsection (3) does not authorize the spouse to materially alter the substance of the family residence or personal property.
(5) A spouse does not acquire a proprietary interest on the making of an order under this section.
(6) Subject to section 125, a right of a spouse to exclusive occupancy or use ordered under this section does not continue after the rights of the other spouse, or of both spouses, as owner or lessee are terminated.
(7) Nothing in this section prevents the filing of an entry under the Land (Spouse Protection) Act.
Postponement of sale
125 If an order for exclusive occupancy or use has been made under section 124, the Supreme Court, on application, may order that the rights of a spouse to apply for partition and sale or to sell or otherwise dispose of or encumber the property be postponed and be subject to the right of exclusive occupancy or use and may, in its order, vary the order made under section 124.
Restriction of contact
126 (1) A court may, on application, order that, while the spouses continue to live separate and apart, one spouse must not enter premises while the premises are occupied by the other spouse or a child in the custody of the other spouse.
(2) Subsection (1) applies whether or not the spouse against whom the order is made owns or has a right to possession of the premises.
Responsibility for debts of former spouse
127 (1) After a court makes absolute a decree of divorce, or renders judgment granting a divorce and a certificate has been or could be issued under the Divorce Act (Canada) stating that the marriage was dissolved, or makes an order for judicial separation, or declares a marriage to be null and void, each former husband or wife, subject to this Act
(a) must be considered an unmarried person in respect of property, the right to contract, and rights and obligations in civil proceedings, and
(b) is not, except if the liability arose during the marriage, liable for a contract the other enters into, or for a wrongful act or omission by the other, or for costs incurred by the other in a proceeding.
(2) Despite subsection (1), if a person is in arrears under an order for alimony or support and maintenance, the person is also liable to a third person for necessaries supplied by the third person to a child or former husband or wife who is the beneficiary under the order.
Offences
128 (1) A person commits an offence by refusing or neglecting, without reasonable excuse, to comply with an order made against the person under section 37, 38, 124 or 126.
(2) A person commits an offence if the person
(a) contravenes section 39 (3) or 99 (5), or
(b) without reasonable excuse, refuses or neglects to comply with an order made under section 40 (1) or 100 (1).
(3) A person who, without lawful excuse, interferes with the custody of, or access to, a child in respect of whom an order for custody or access was made or is enforceable under this Act commits an offence.
(4) A person commits an offence if the person
(a) withholds information demanded under section 99 (3),
(b) contravenes section 41 or 100 (4), or
(c) knowingly provides to an enforcement officer false information pertaining to default or arrears under a maintenance order.
(5) An order, certified by a proper officer of the court that made the order, is proof of the order in a prosecution under this section.
Power to make regulations
129 (1) The Lieutenant Governor in Council may make regulations referred to in section 41 of the Interpretation Act.
(2) Without limiting subsection (1), the Lieutenant Governor in Council may make regulations establishing child support guidelines for the making or variation of maintenance orders as defined in section 87 respecting the obligation under section 88 to support and maintain children, including interim orders to support and maintain children, and these may include regulations as follows:
(a) respecting the way in which an award for maintenance for children is to be calculated;
(b) respecting the particulars that must be included in a maintenance order;
(c) respecting the circumstances in which discretion may be exercised in the making or variation of maintenance orders;
(d) respecting the circumstances that may justify the variation or rescission of a maintenance order;
(e) respecting the determination of income for the purposes of the application of the child support guidelines;
(f) authorizing a court to impute income for the purposes of the application of the child support guidelines;
(g) respecting the production of income information and providing for sanctions if that information is not provided.
(3) A regulation under this section may incorporate by reference, with any changes the Lieutenant Governor in Council considers appropriate, all or any part of a code, rule or standard as published by a provincial, national or international body as amended from time to time before or after the making of the regulation and relating to the subject matter of this Act.
(4) Without limiting subsection (1), the Lieutenant Governor in Council may make regulations respecting the child support service and its establishment, structure, operations, duties and functions, including, without limitation, the following regulations:
(a) prescribing court registries as prescribed registries for the purposes of section 93.3;
(b) respecting the provisions that must be included in child support agreements in order for the child support provided for in those agreements to be recalculated under section 93.3 (4) (b) (ii);
(c) respecting information that may be requested by the child support service under section 93.3 (6);
(d) respecting the manner and form in which, and the time within which, records and information may or must be provided to or from the child support service;
(e) respecting the assumptions, factors and criteria that the child support service may use in recalculating child support payable by or to a person referred to in section 93.3 (7);
(f) respecting the manner and form in which a person may authorize the child support service to request and receive information from a third party under section 93.3 (8);
(g) prescribing an amount for the purposes of section 93.3 (9);
(g.1) respecting the manner and form of request and time period referred to in section 93.3 (9.2);
(h) respecting the period referred to in section 93.3 (11) (d);
(h.1) prescribing when a notice or document is deemed to be received for the purposes of section 93.3 (14);
(i) respecting the circumstances in which the child support service must decline to recalculate child support;
(j) respecting the rights and duties, in relation to the child support service, of parties to a proceeding in which a child support order is made.
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