The Family Law Act has been completely integrated into the new wiki, JP Boyd on Family Law, a Clicklaw Wikibook hosted by Courthouse Libraries BC. Read the wiki to learn about the new act in the larger context of family law disputes.
This page was last updated on 6 May 2013.
I. THE NEW ACT IN A NUTSHELL
A. An Emphasis on Out-of-Court Dispute Resolution
The act encourages the resolution of family law problems by means other than litigation. The act gives equal emphasis to agreements and court orders, and provides better support for out of court negotiations by making complete disclosure mandatory in all cases and by imposing penalties for failures to make disclosure which result in the court setting aside an agreement.
The act will give the court new authority to refer parties to counselling and to out-of-court dispute resolution services like counselling and mediation, including as a means of helping parties comply with court orders. The court will be able to appoint a parenting coordinator to manage the implementation of orders and agreements involving children, even over the objection of a party.
The act also provides improved support for the arbitration of family law disputes and will make a host of changes to the Commercial Arbitration Act to better accommodate family law disputes.
B. Caring for Children after Separation
1. A child-focused approach to parenting after separationThe new act throws out conflict-laden terms like "custody" and "access" and replaces them with a new model of parenting after separation which prioritizes a child's entitlement to proper parenting and meaningful time with each parent over a parent's right to control the child's upbringing and have a schedule of contact with the child.
Under the act, parents who have lived together after their child was born will be the child's guardians until they agree or a court orders otherwise.
People who are guardians, which may include people other than parents, have parental responsibilities in respect of the child, including the duty to raise the child, to make decisions about where the child lives and with whom the child spends time, and to make choices about the child's medical care, school, religion and so forth. Parental responsibilities can be divided or shared between guardians. The time a child is with a guardian is parenting time, and references in the legislation to parenting arrangements means arrangements made in respect of parental responsibilities and parenting time.
People who are not guardians, including parents who are not guardians, have contact with a child and do not have parental responsibilities. "Parenting arrangements" does not include arrangements made in respect of contact.
2. A new approach to the best interests of childrenDecisions about parenting arrangements and contact, whether in an order or an agreement, are to be made in the best interests of the child. The best interests of the child are no longer the "paramount" consideration but the only consideration the court or the parties may take into account when making an order or agreement affecting a child.
The act provides a new, expanded definition of best interests which, among other things, requires consideration of: the child's views and wishes, the history of the child's care, the capacity of the child's parents, and any history of family violence. The act requires the court to assess the nature, extent and impact of family violence on the child's well being and provides a list of factors which the court must consider in making this assessment.
3. Planning for a guardians's incapacityThe act allows guardians to appoint stand-by guardians to take over a guardian's parental responsibilities in the event the guardian is no longer able to manage those responsibilities. The appointment may take effect on the guardian's incapacity and may be permanent or last only for the duration of incapacity.
A guardian may also appoint a person to take over in the event of the guardian's death. Testamentary guardians may be appointed by the deceased guardian's will or through the execution of a new form.
4. Managing children's propertyUnder the new act, parents and guardians are not presumptively entitled to manage their children's property, except for property with a value less than $10,000. Property guardians, who may include parents, must be appointed by the court in consultation with the Public Guardian and Trustee.
5. Moving with or without a childThe act provides a test to address mobility issues. This is very a welcome development as the law on this extremely difficult issue has so far been entirely governed by case law, much of which is inconsistent to the point of being contradictory, despite the Supreme Court of Canada's decision in Gordon v. Goertz.
Under the new act, a guardian wishing to "relocate" with or without a child will have to give 60 days' notice to anyone else who is a guardian or has contact with the child. Relocation means a change in a child's or guardians's residence “that can be reasonably be expected to have a significant impact on a child’s relationship” with a guardian or another significant person. A guardian who opposes a proposed relocation will have 30 days to from delivery of the notice to file an objection.
The act provides a test to determine whether the court should allow a proposed relocation when negotiations between the parties have failed: the guardian wishing to move must prove that the proposed move is being made in good faith and that reasonable arrangements have been made to preserve the child's relationship with the parent who is not moving. When the guardians have equal or almost equal parenting time, the guardian wishing to move must also prove that the move is in the child's best interests.
B. Assisted Reproduction
The new act makes extensive provisions for people having children by assisted reproduction. Until now assisted reproduction has been governed only by the federal Assisted Human Reproduction Act and the common law; there was no provincial legislation on the subject.
Under the Family Law Act, people will be able to contract for the donation of sperm or eggs, or for a woman to act as a surrogate mother carrying an embryo created with any combination of donated gametes, including or not the gametes of the people wishing to have the child. These contracts, as long as they are executed prior to conception, will be sufficient to determine the legal parentage of a child, and, if the parties to the agreement wish, can name more than just the people wishing to have the child as parents. A donor or surrogate may also be a legal parent.
C. Child Support
1. Prioritizing child support obligationsUnder the new act, as under the current law, parents as well as stepparents and guardians are responsible to pay child support. The new act will make the duty of a guardian who isn't a parent secondary to that of a parent, and a stepparent's duty to pay child support secondary to that of a non-parent guardian.
A payor's obligation to pay child support will continue to take priority over any obligation to pay spousal support, meaning that if a payor can't pay both amounts only child support will be payable. However, the end of a child support obligation may result in a reconsideration of the payor's spousal support obligation.
2. Independent children under the age of majorityChildren younger than age 19 may stop being entitled to child support where they have voluntarily withdrawn from their parents' care, for reasons other than family violence or intolerable living conditions.
3. Children under the age of majority who become spouses
Children younger than age 19 may stop being entitled to child support where they have become spouses. See the definition of "spouse" below.
D. Spousal Support
1. An expanded definition of "spouse""Spouses" are entitled to apply for spousal support. Spouse, for all purposes of the new act other than the division of property and debt, includes:
- people who are married or who used to be married;
- unmarried people who have lived together in marriage-like relationships for more than two years; and,
- unmarried people who have lived together in a marriage-like relationship for less than two years and have had a child together.
2. Harmonizing spousal support with the Divorce ActThe provisions for spousal support in the new legislation mirror those set out in the federal Divorce Act. A spouse's entitlement to support is determined by reference to a list of objectives and, once entitlement is found, the amount of support payable and the length of time it will be payable for are determined by reference to a list of factors.
The Spousal Support Advisory Guidelines is not referenced in the new legislation. This continues the present status of the Advisory Guidelines, which is not a law and has been formally adopted by neither the Divorce Act nor the Family Relations Act.
3. A limited revival of misconductSpousal misconduct has been a forbidden consideration since introduction of the no-fault amendments to the Divorce Act in 1968; before those amendments, spousal misconduct, such as committing adultery or being abusive, was a legitimate consideration in making or refusing to make a spousal support order.
The new act will allow the court to consider misconduct which causes or prolongs a spouse's need for support as well as misconduct which unreasonably affects the capacity of a spouse to pay support. The point here, I think, is to penalize: goldbricking spouses who fail to take meaningful steps to become self-sufficient within a reasonable period of time; oppressive behaviour which hinders or delays a spouse's ability to be self-sufficient; and, spouses who arrange a decrease in personal income to duck a support obligation.
4. Reviewable arrangements for spousal supportOrders and agreements on spousal support may require that provisions for spousal support be reviewable. A review can happen at a certain date or upon the occurrence of a specific event, and the order or agreement can specify how the review will occur — such as by a court hearing or by a process of mediation — and what issues or circumstances will be considered at the review.
Under the act, spousal support will also be reviewable when a spouse becomes entitled to receive benefits from a pension, whether the order or agreement provides for a review in those circumstances or not.
E. Support Obligations and the Effect of Death
Orders and agreements for child support and spousal support can be made binding on a payor's estate. The court can also require a payor to maintain a life insurance with a spouse or child named as the beneficiary of the policy.
F. Dividing Property and Allocating Debt
1. A new scheme for property divisionUnder the new act, there will be two categories of asset, assets presumptively excluded from division and assets that are presumed to be divided equally. Under the Family Relations Act, almost all property owned by either or both spouses was up for division, regardless of who owned an asset or when it was acquired; all that mattered was whether the property was "ordinarily used for a family purpose."
Under the new act, excluded property includes assets acquired by a spouse before the relationship, gifts and inheritances received by a spouse, certain kinds of court awards and certain kinds of insurance payments. Except for the increase in value of excluded property during the relationship, excluded property remains the property of the spouse who acquired it.
Family property is primarily composed of the assets acquired by either spouse during the relationship and is owned by a spouse at the date of separation. Family property is presumptively shared equally between spouses.
The court can divide excluded property or reapportion family property but only when it would be "significantly unfair" not to do so. The point here, I think, is to raise the threshold of unfairness that must be met before the court can depart from the presumptive property division scheme.
As if these changes weren't enough, the new scheme for property division will apply to married spouses as well as unmarried people who have lived together for more than two years! This is a really important feature of the new law because unmarried couples are cut out of the parts of the Family Relations Act which divide property between married spouses, largely leaving unmarried people stuck with difficult and often unsatisfactory claims based on unjust enrichment and trust law.
2. An expanded definition of "spouse""Spouses" are entitled to apply for spousal support. Spouse, for the purposes of the act dealing with the division of property and debt, includes:
- people who are married or who used to be married; and,
- unmarried people who have lived together in marriage-like relationships for more than two years.
3. DebtsThe act will also allow the court to divide responsibility for "family debts" between spouses. Family debts are debts incurred during the relationship, or incurred to maintain family property after separation, and is presumptively shared equally between spouses
G. Family Violence
The act has a new definition of family violence which includes, in addition to physical abuse, sexual, emotional and psychological abuse, forcible confinement and restriction of a person's autonomy, and withholding the necessities of life.
When a person is at risk of family violence, the court may make a protection order which can include provisions restricting contact between the parties, restraining a party from going to the family home, restraining stalking-type behaviour, or restraining a party from possessing weapons. The new act provides that where another order under the Family Law Act conflicts with a protection order, the terms of that order are suspended to the extent of the conflict. This could mean, for example, that a protection order preventing communication between the parties might result in the suspension of a separate order for contact or parenting time if that order would normally require communication between the parties.
The Family Law Act contains no provisions to enforce protection orders. Instead, such orders can only be enforced by the police through s. 127(1) of the Criminal Code which makes it an offence to breach a court order.
H. Management of Court Processes
Under the act, the court will be able to make a number of conduct orders intended to help the court manage its processes, manage the parties before it and encourage the settlement of disputes. Among other things, the court can order that parties attend counselling, impose restrictions on how they communicate with each other, and require that a party post a bond to secure his or her good behaviour.
Conduct orders include case management orders such as an order striking or dismissing all or part of a claim, an order prohibiting a party from bringing further applications without permission from the court, or an order requiring all further applications to be heard by the same judge.
The new act enhances the court's ability to enforce its own orders — except for the enforcement of protection orders — and the court may order that a party post security for the party's compliance with an order, pay the other party's expenses for enforcing an order, or pay a fine of up to $5,000. Where nothing else will secure a party's compliance, the court may order that the party be jailed for up to 30 days. These provisions apply to the provincial court as well as a the supreme court, and will significantly improve the provincial court's ability to deal with parties in contempt of court.
II. TOPICAL DIGEST WITH SECTION REFERENCES
A. Children
1. Parentage
- Family Law Act determines parentage for all purposes within province except adoption, and therefore binds Vital Statistics Agency (s. 23)
- Parents are presumed to be biological father and birth mother (s. 26)
- Presumptions of paternity carried forward from Family Relations Act (s. 26)
- Paternity test carried forward, but are now available whenever there is “any dispute or uncertainty” (s. 33)
- Donor is not parent, unless assisted reproduction agreement provides to contrary (ss. 24, 30)
- Surrogate mother is parent, unless assisted reproduction agreement to contrary (ss. 29, 30)
- Assisted reproduction agreement may name all of intended parents, donors and surrogate mother as parents; act does not mark distinctions as to parenthood
- Foreign declarations of parentage may be recognized and given effect as a local declaration of parentage (ss. 35, 36)
2. Best Interests of the Child and Family Violence
- Best interests of child are “only” consideration, not “paramount” consideration (s. 37)
- Much expanded list of factors includes: views of child, history of care, capacity of person to exercise responsibilities for child, impact of family violence, and any civil or criminal proceedings relevant to the child’s safety or well-being (s. 37)
- Order or agreement presumed not to be in best interests unless protects child’s safety and well-being to maximum extent possible (s. 37)
- When family violence is factor, court must apply prescribed test to assess impact of violence on child and on party’s capacity to care for child (s.38)
3. Guardianship
- Parents living together at child’s birth are both guardians of child; parent may lose this status by agreement or order (s. 39)
- Parent never living with child is not guardian without appointing agreement or order (s. 39)
- Non-parent may only be appointed guardian by court order, agreements are ineffective to appoint (s. 50)
- A guardian may appoint a person to act as guardian in the event of the guardian’s death (s. 53)
- A guardian may appoint a person as a standby guardian to act in the event of terminal illness or permanent loss of mental capacity (s. 55)
- A guardian cannot pass any more parental responsibilities than the guardian’s parental responsibilities (s. 56)
- A parent without guardianship does not become a guardian on the death of a guardian (s. 54)
4. Parental Responsibilities and Parenting Time
- Guardians have parental responsibilities, the duty to make decisions respecting a child in the best interests of the child (s. 41)
- Parental responsibilities may be allocated among or shared between guardians (s. 40)
- Guardians have duty to consult each other unless consultation would be unreasonable or inappropriate (s. 40)
- Guardians may apply to court for directions on issue concerning child (s. 49)
- The time a guardian is with a child is parenting time (s. 42)
- During parenting time, guardian has care and control of child and responsibility for day to day decision-making (s. 42)
- Parenting time may be supervised (s. 45)
- Parenting arrangements are arrangements for parental responsibilities or parenting time under agreement or order; does not include contact (s. 1)
- No presumptions are to be made that parenting time should be shared equally or that parenting responsibilities should be allocated equally or shared equally (s. 40)
- Foreign orders for parental responsibilities or parenting time can be recognized and enforced as if local order (s. 75)
- Family Relations Act provisions about foreign orders and superseding foreign orders carried forward mostly intact (ss. 72 to 76)
5. Contact
- People who are not guardians, including parents who are not guardians, have contact with a child (s. 59)
- A person may have contact as a result of court order or agreement among all of child’s guardians (ss. 58, 59)
- Contact may be on terms and conditions, including supervision (ss. 59, 218)
- Foreign orders for contact can be recognized and enforced as if local order (s. 75)
- Family Relations Act provisions about foreign orders and superseding foreign orders carried forward mostly intact (ss. 72 to 76)
6. Assessments
- Court may order assessment of needs and views of a child and capacity of person to meet those needs (s. 211)
- Application for assessment may be made without notice (s. 211)
7. Enforcement of Parenting Time and Contact
- Unreasonable withholding of parenting time or contact may be remedied by order for makeup time, counselling, payment of expenses (s. 61)
- Withholding not unreasonable if child ill, party is impaired, party habitually failed to exercise rights (s. 62)
- Failure to exercise parenting time or contact may be remedied by order for counselling, payment of expenses (s. 63)
8. Mobility Disputes
- Court may make order preventing relocation of child or guardian and may require person to post security, surrender passports (s. 64)
- Guardians wishing to relocate with or without child must give 60 days’ notice to guardians and persons with contact (s. 66)
- Only guardian may object to move; if no objection is filed within 30 days of notice, move may occur (s. 68)
- Moving guardian must show that (1) move is made in good faith, and (2) reasonable arrangements are proposed to preserve relationship with other guardians (s. 69)
- May be opposed on basis move is not in child’s best interests (s. 69)
- If guardians have equal time or near-equal time, moving guardian must show that (1) move is made in good faith, (2) reasonable arrangements are proposed to preserve relationship with other guardians, and (3) move is in child’s best interests (s. 69)
- Definition of “good faith” includes reasons for move and whether move will enhance child’s or moving guardian’s quality of life (s. 69)
9. Children’s Property
- Guardian is not trustee of child’s property except for property in prescribed class or of value less than prescribed amount (s. 176)
- Trustee may be appointed by court or by trust instrument (ss. 175, 179)
- Trustee must deliver property and accounting to child at age 19 unless order or trust instrument to contrary (s. 180)
10. Agreements
- Agreements for parenting arrangements or contact must be set aside if not in the best interests of the child (ss. 44, 58)
1. Entitlement to Child Support and Obligation to Pay
- Support obligation may terminate where minor voluntarily withdraws from parental charge or becomes a spouse (s. 147)
- Withdrawing minor may requalify for support on returning to charge of parents (s. 147)
- Duty of non-parent guardians secondary to obligation of parents (s. 147)
- Duty of stepparents secondary to both (s. 147)
- Stepparent’s liability assessed considering length of time child and stepparent cohabited and standard of living enjoyed by child during relationship (s. 147)
- Foreign orders dealt with under Interjurisdictional Support Orders Act
2. Entitlement to Spousal Support, Amount and Duration
- Spouse includes married spouses, persons cohabiting in marriage-like relationship for more than two years, persons cohabiting in marriage-like relationship shorter than two years who have had a child together (s. 3)
- Claim must be brought within two years of divorce or nullity for married spouses or separation for unmarried spouses (s. 198)
- Entitlement determined by Divorce Act objectives (s. 161)
- If entitlement found, amount and duration determined by Divorce Act factors (s. 162)
- Court must not consider spousal misconduct, except for misconduct (1) that unreasonably causes, prolongs or aggravates need for support, or (2) that unreasonably affects ability to pay (s. 166)
- Advisory Guidelines not referenced
- Foreign orders continue to be dealt with under Interjurisdictional Support Orders Act
3. Reviews of Spousal Support
- Orders and agreements can provide for review of spousal support obligation upon fixed date or occurrence of defined event (s. 168)
- Review provisions may address manner of review and considerations on review (s. 168)
- Order or agreement for spousal support may be reviewed upon party becoming eligible to receive pension benefits if silent as to effect (s. 169)
4. Support Obligations After the Payor's Death
- Where payor has insurance policy, court may order that policy be maintained and that child or spouse be named as beneficiary (s. 170)
- Support obligation may be made binding on payor’s estate, either at making of original child support order or upon recipient’s application after death of payor (s. 170)
- Test to bind estate: (1) will need of recipient survive the payor’s death, (2) is payor’s estate sufficient to meet support obligation, taking into account beneficiaries and creditors, and (3) are there any other means by which recipient’s need may be addressed? (s. 171)
- Payor’s personal representative may apply to vary or cancel order binding on estate (s. 171)
5. Agreements
- Court may set aside an agreement on child support if it would make a different order (s. 148)
- Court may not make an order in the face of an agreement on spousal support until agreement is set aside (s. 165)
- Agreement may be set aside for reasons including failure to make full disclosure, want of fundamental fairness in negotiation or execution process or defence to contact; absent which agreement may still be set aside if significantly unfair not to set agreement aside in light of factors including change in circumstance of spouse, parties’ expectations or performance of agreement over time (s. 164)
C. Property and Debt
1. Entitlement
- Spouse includes married spouses, persons cohabiting in marriage-like relationship for more than two years (s. 3)
- Claim must be brought within two years of divorce or nullity for married spouses or separation for unmarried spouses (s. 198)
2. Property and Debt
- All property owned by either party at the date of separation is family property, including assets acquired afterward with family property (s. 84)
- Family property includes corporate interests, ventures and partnerships, bank accounts, annuities, RRSPs and private pensions (s. 84)
- Family property includes the increase in value of excluded property (s. 84)
- All debt incurred by a spouse during the spousal relationship is family debt, including debt incurred after separation to maintain family property (s. 86)
- All property owned by a spouse prior to the commencement of the spousal relationship is excluded property (s. 85)
- Excluded property includes gifts and inheritances received during the relationship, certain court awards, certain insurance proceeds and certain trusts (s.85)
- Excluded property includes property bought with excluded property (s. 85)
- Court may make certain orders affecting foreign real property (s. 109)
3. Triggering Event and Valuation Date
- One-half of all family assets vests in each spouses as tenants in common on separation, as well as responsibility for one-half of family debt (s. 81)
- Value of family property is fair market value; valuation date is date of agreement or trial dividing property or allocating debt (s. 87)
4. Presumptions
- Spouses are presumed to each be entitled to half of family property, regardless of use or contribution (s. 81)
- Spouses are presumed to each be half liable for family debt, regardless of use or contribution (s. 81)
- Excluded property remains the property of the owning spouse (s. 96)
5. Ignoring the Presumptions
- The court may divide family property or family debt unequally if equal division would be significantly unfair (s. 95)
- Factors include length of spousal relationship, spouse’s contribution to other’s career, family debt exceeding family property, spouse’s responsibility for increase or decrease in value of property or debt (s. 95)
- The court may divide excluded property if it cannot divide family property located outside province or if it would be significantly unfair not to divide excluded property (s. 96)
- Factors are length of spousal relationship and spouse’s direct contribution to excluded property (s. 96)
6. Agreements
- Court may not make an order in the face of an agreement on division of property or allocation of debt until agreement is set aside (s. 94)
- Agreement may be set aside for reasons including failure to make full disclosure, want of fundamental fairness in negotiation or execution process or defence to contact; absent which agreement may still be set aside if significantly unfair not to set agreement aside in light of factors such as parties’ expectations and performance of agreement over time (s. 93)
- Transitional provisions imply that actions to set aside property agreements between married spouses executed while Family Relations Act in force will be subject to Family Relations Act unless spouses agree otherwise (s. 252)
D. Dispute Resolution
1. Processes other than Court
- Duty to make full and frank disclosure imposed on parties resolving issues outside court (s. 5)
- Better legislative support of agreements generally, and significantly strengthened support for agreements on property and spousal support (ss. 6, 7)
- Family dispute resolution means services of family justice counsellor or parenting coordinator; mediation, collaborative law and arbitration; other processes prescribed by regulation (s. 1)
- Family dispute resolution professionals include lawyers, mediators, arbitrators, parenting coordinators (s. 1)
- Family dispute resolution professionals must assess for family violence and extent to which it impairs party’s capacity to bargain, inform party of dispute resolution processes and other resources, and advise that agreements and orders about children must be made in children’s best interests only (s. 8)
- Parties required to comply with any mandatory dispute resolution processes prescribed by regulation (s. 9)
- Court may require parties to engage in dispute resolution process (eg: s. 224)
- Court may adjourn proceeding while parties attempt to resolve issues before court (s. 223)
2. Parenting Coordination
- Parenting coordinators may assist with implementation of parenting arrangements or contact when appointed by order or agreement (s. 15)
- May be appointed for maximum renewable terms of two years (s. 15)
- May resolve disagreements by consensus or by determinations binding on parties (ss. 17, 18)
- Court may enforce, vary or set aside determinations (s. 19)
3. Arbitration
- Commercial Arbitration Act amended to better accommodate family law disputes (ss. 306-313)
- Awards inconsistent with Family Law Act of no effect (s. 309)
- Leave not required to enforce award under Commercial Arbitration Act s. 29 (s. 310)
- May appeal award on question of law, or law and fact, under Commercial Arbitration Act s. 31 (s. 312)
- Party may apply to vary award on same grounds as could vary apply to order under Family Law Act (s. 311)
4. Court Processes
- Court may make conduct orders for reasons including to: manage behaviour frustrating resolution, prevent misuse of court process, and facilitate settlement (s. 222)
- Conduct orders include: dismiss or strike pleadings or application, adjourn proceeding, judge seizing self, attend counselling, attend dispute resolution, restrict communications, restrict contact, maintain family home (ss. 223-226)
- Court may make order preventing a party from continuing a proceeding or making further application without leave if party has made frivolous applications or misuse court process (s. 221)
- Where no specific enforcement provision, may order may be enforced by (1) requiring security, (2) payment of party’s expenses, or (3) payment of up to $5,000 as a fine or to party (s. 230)
- Where nothing else will secure party’s compliance, court may order party be jailed (s. 231)
- All enforcement provisions apply to provincial court and supreme court
- Enforcement provisions not applicable to protection orders, may only be enforced by Criminal Code s. 127 (s. 188)
E. Protection Orders
- Protection orders may be applied for by party or person on behalf of party and may be brought independent of litigation, and may make order on behalf of child (ss. 183, 185)
- Court must consider prescribed risk factors in deciding whether to make protection order (s. 184)
- Protection orders include: restraints on communications, attending or entering place, following person, possessing weapons; directions to police to remove person from property, accompany person to remove belongings, seize weapons; requirement to report to the court (s. 183)
- Other Family Law Act orders conflicting with protection order are suspended to the extent of conflict (s. 189)
- Protection orders expire in one year unless otherwise ordered (s. 183)
- Foreign protection orders dealt with through Enforcement of Canadian Judgments and Decrees Act (s. 191)
- Protection orders enforceable under Criminal Code s. 127, no other remedy provided in Family Law Act and Offence Act inapplicable (s. 188)
