Save the Date! New Course on Difficult Family Law Issues Coming to Vancouver

A new one-day course on difficult family law issues, "A Rock & A Hard Place: Complex Issues in Family Law Practice" is coming to the Pan Pacific in Vancouver, British Columbia in April. The course is being put on by the Trial Lawyers Association of BC and is being chaired by lawyers Magal Huberman and Zara Suleman.

Here's how the promo material from TLABC describes the course:

Family law practice can be challenging. Sometimes (or often) we can have files that have no easy answers. TLABC's 2016 Family Law Seminar A Rock & A Hard Place: Complex Issues in Family Law Practice is designed to address some of the more advanced issues in family law. With problems to solve that are as diverse as our clients, we benefit from the enriching perspectives of the judiciary, family counsel, criminal lawyers, Crown counsel, community advocates, police and the Ministry of Justice.

Faculty include:

• Megan Ellis, QC and Bill Story, noted Vancouver family law lawyers;
• The Honourable Judge Patricia Bond, from the Surrey Registry of the BC Provincial Court;
• Professor Margaret Jackson from Simon Fraser;
• Vicky Law from Battered Women's Support Services;
• Dr. Susan Gamache, a marriage and family therapist based in Vancouver;
• Jack Hittrich, a noted Surrey family law lawyer; and,
• Penelope Lipsack from the BC Ministry of Justice.

Topics include:

• family violence and projections orders;
• using counselling and collaborative tools in litigation; 
• interjurisdictional issues in custody matters; and,
• allegations of child alienation.

Here are the details...

Date

22 April 2016

Place

Pan Pacific Hotel, Vancouver

Price

$111.60 to $471.60, varying depending on membership status with TLABC and year of call; additional discounts available to articled students and law students

Register

www.tlabc.org

Supreme Court Releases Important Decision on Jurisdiction in Property Cases Under the FLA

Over the winter break, Madam Justice Donegan of the British Columbia Supreme Court handed down her judgment in Cockerham v Hanc, an  important decision discussing some of the more difficult parts of the new Family Law Act on when the court should take jurisdiction in disputes about property division and spousal support. "Jurisdiction" has a number of meanings. For the purposes of this post, I mean jurisdiction in the sense of the court's authority to hear a particular case when the same case could potentially also be heard by a different court. Courts don't like to be stepping on each other's toes — with good reason! — and whether to take jurisdiction when jurisdiction is challenged is among the more important and more difficult decisions the court has to make.

Cockerham involved an unmarried couple who began to live together in Ontario in 2007 and separated in early 2014, following which Cockerham, who was unemployed, moved to British Columbia while Hanc stayed in Ontario where his job was. Cockerham started court proceedings in British Columbia a few months later, following a contact from Hanc's lawyer in Ontario. In her claim, Cockerham asked for:

• an equal division of the family property, including a house and a condominium in Ontario;
• an interest in Hanc's other property;
• an equal apportionment of responsibility for her student loans, amounting to some $200,000; and,
• spousal support.

Hanc replied to Cockerham's claim with a Jurisdictional Response, a court form under the Supreme Court Family Rules which is filed when a party to a lawsuit, usually a respondent, believes that the court should not or cannot take jurisdiction in the case. Hanc subsequently applied for an order under SCFR 18-2 that Cockerham's case be dismissed or suspended, "on the grounds that this court does not have jurisdiction or that the court ought to decline to exercise its jurisdiction," and it is this application which gave Madam Justice Donegan reason to consider some of the more complicated parts of the Family Law Act.

The reasons for Hanc's application are probably obvious from the short facts I've given. Here, however, is the court's concise synopsis:

"[26] Mr. Hanc submits that the appropriate forum for these issues to be decided is Ontario. The parties resided in Ontario until their separation, when Ms. Cockerham moved to Kamloops. Mr. Hanc has no ties to British Columbia and owns no property here. He is not, and has never been, a resident of British Columbia. He has no connection to this province. With respect to Ms. Cockerham’s claim for spousal support, Mr. Hanc submits that it must be claimed pursuant to the provisions of the [Interjurisdictional Support Orders Act]. The [Family Law Act], he submits, does not empower a British Columbia court to make an original order for support against a non-resident.

"[27] With respect to the claim for division of family property and debt, Mr. Hanc asserts that there is no real and substantial connection between British Columbia and the facts on which the proceeding against him is based. As such, he submits that this court lacks territorial jurisdiction under either the provisions of the Court Jurisdiction and Proceedings Transfer Act ... or the FLA. In the alternative, if the court determines that it does have jurisdiction in respect of this claim, Mr. Hanc submits that this court ought to decline jurisdiction in favour of Ontario."

Fair enough. Now the Court Jurisdiction and Proceedings Transfer Act, which deals with the court's authority to hear a case, has been around since 2003. We've had enough court decisions on the act to understand it fairly well. The Family Law Act, on the other hand is fairly new and the parts of the act that deal with property located outside the province, and the ability of British Columbia courts to make orders about that property, are ridiculously complex, which is what makes this decision so important. If you want to read them in their entirety for yourself — which you should — look for Division 6 of Part 5. It's harder to read than the federal Income Tax Act, and just as likely to keep you awake at night.

Determining Whether to Take Jurisdiction under Part 5 of the Family Law Act

Here is the step-by-step analysis taken by Justice Donegan with respect to the property portion of Cockerham's claim.

1. The burden of proving that the court has the jurisdiction to hear a case is on the person who claims that the court has jurisdiction. (Para. 31) 

2. The first place to look is normally the Court Jurisdiction and Proceedings Transfer Act, unless there is legislation that applies to the case which specifically addresses the jurisdiction issue. (Para. 32) 

3. The Family Law Act specifically addresses the jurisdiction issue at Division 6 of Part 5. (Para. 33)  

4. The test for the court to decide whether it should make orders under Part 5, the part of the act dealing with property and debt, is set out in s. 106. (Para. 42) Here's what s. 106 says:

(1) This section applies if an order respecting property division, respecting the same spouses, may be made in more than one jurisdiction. 

(2) Despite any other provision of this Part, the Supreme Court has authority to make an order under this Part only if one of the following conditions is met: 

(a) a spouse has started another proceeding in the Supreme Court, to which a proceeding under this Part is a counterclaim; 

(b) both spouses submit, either in an agreement or during the proceeding, to the Supreme Court's jurisdiction under this Part; 

(c) either spouse is habitually resident in British Columbia at the time a proceeding under this Part is started; 

(d) there is a real and substantial connection between British Columbia and the facts on which the proceeding under this Part is based.

   (3) For the purposes of subsection (2) (d), a real and substantial connection is presumed to exist if one or more of the following apply:

(a) property that is the subject of the proceeding is located in British Columbia; 

(b) the most recent common habitual residence of the spouses was in British Columbia; 

(c) a notice of family claim with respect to the spouses has been issued under the Divorce Act (Canada) in British Columbia.

   (4) Despite subsection (2), a court may decline to make an order under this Part if the court, having regard to the interests of the spouses and the ends of justice, considers that it is more appropriate for jurisdiction to be exercised outside British Columbia. 

(5) In determining whether to decline jurisdiction under subsection (4), the court must consider all of the following: 

(a) [Repealed. 2014-9-15(b)]. 

(b) the relative convenience and expense for the spouses and their witnesses; 

(c) if section 108 [choice of law rules] applies, the law to be applied to issues in the proceeding; 

(d) the desirability of avoiding multiple proceedings or conflicting decisions in different courts or tribunals; 

(e) the extent to which an order respecting property or debt

(i) made in another jurisdiction would be enforceable in British Columbia, and 

(ii) made in British Columbia would be enforceable in another jurisdiction;

    (f) the fair and efficient working of the Canadian legal system as a whole; 

(g) any other circumstances the court considers relevant.

   (6) A determination of authority under subsection (2) or of whether to decline jurisdiction under subsection (4) is to be made solely by reference to this section.

Bit of a mouthful, isn't it? 

5. However, under s-s. (1), s. 106 only applies if an order about property division between the same people can be made in more than one jurisdiction. (Para. 46) 

6. If s. 106 applies, the court must then decide whether one or more of the conditions in s-s. (2) are met, giving it the authority to make orders under Part 5. (Para. 49) 

7. Even if the court has jurisdiction under s. 106(2), under s-s. (4) it must then decide whether it should exercise that jurisdiction or "it is more appropriate for jurisdiction to be exercised outside British Columbia," considering the factors set out in s-s. (5). (Paras. 57 and 59)

Application to the Case

Following this reasoning, the judge held that Cockerham had the burden of establishing that the British Columbia court could take jurisdiction over property mostly located in Ontario. She held that the Family Law Act has specific provisions addressing jurisdiction over that property and that the Family Law Act applied rather than the Court Jurisdiction and Proceedings Transfer Act.

She then turned to s. 106 and concluded that the section applied to the case before her as orders between Cockerham and Hanc about the family property could be made in both Ontario, where the parties had lived during the whole of their relationship and where the bulk of their property was located, and in British Columbia, where Cockerham lived now and where the proceeds of an RRSP account and some jewelry were located.

The judge then decided that Cockerham was "habitually resident within British Columbia," under s. 106(2)(c), which would allow the court to take jurisdiction and make orders about the Ontario property under Part 5.

Habitual Residence

I'm going to pause here to dwell on "habitual residence" and "ordinary residence" for a moment. These terms are used in the Court Jurisdiction and Proceedings Transfer Act, pop up in the case law about jurisdiction all the time, and can be confusing. Here's Justice Donegal's handy summary of the case law, cites omitted as usual:

"[51] What is meant by habitual residence? 'Habitual' and 'ordinary' residence are two expressions that have been used interchangeably ... 

"[52] In [S.R.L. v. K.J.T.] Madam Justice Fenlon summarized the principles governing the determination of ordinary residence at para. 30 as follows:

I now turn to the principles governing the determination of ordinary residence.

a) Preponderance of time spent at a residence is not determinative; 

b) A person may be ordinarily resident without being actually resident; 

c) It is where a person regularly, normally or customarily lives his or her customary mode of life as opposed to a special, occasional, or casual residence; 

d) It is where a person intends to make a home for an indefinite period; an intention to reside there permanently is not required."

Accordingly, Her Ladyship concluded that:

"[53] On the basis of these authorities, I am satisfied that at the time of filing her claim, Ms. Cockerham was habitually resident in British Columbia. 

"[54] In March of 2014, Ms. Cockerham left the home she had previously shared with Mr. Hanc in Ontario. With nowhere to go, she moved to [city], British Columbia and into the home of her mother and step-father, residents of [city] for several years. Having spent time here in the past with family and friends, it was a place familiar to her, a place where she now receives financial and emotional support. 

"[55] Ms. Cockerham's evidence is clear that she is not a visitor or tourist here — this is her home. Her activities following her arrival here all support the conclusion that British Columbia is where she now normally and customarily resides. She obtained a British Columbia driver's licence. She secured a family doctor, who is currently treating her for a medical condition. She has applied for a multitude of jobs in [city] in fields related to her degree. She has significant and meaningful family ties here. That Ms. Cockerham may be accepted to a residency program next year that may see her away from [city] temporarily does not affect a finding that she was, and remains, habitually resident in British Columbia pursuant to s. 106(2)(c) of the FLA."

However, although the judge held that she could take jurisdiction under s. 106(2)(c), she declined to exercise that jurisdiction in favour of the courts of Ontario under s. 106(4):

"[61] Other than the engagement ring that Ms. Cockerham kept and a small RRSP that she has now cashed and spent, the property and debts at issue are all located and based in Ontario. Mr. Hanc's real and other property is all located in Ontario. Ms. Cockerham's claims, as they have been pled, relate substantially to that real property, but also include claims to Mr. Hanc's RRSPs, pensions, chattels, insurance, savings, business interests, options, shares, and club memberships. Neither party owns any real property in British Columbia. 

"[62] If this matter were to proceed in British Columbia, the inconvenience and expense to the parties would be very high, particularly to Mr. Hanc. The parties lived their lives together in Ontario. Civilian witnesses that may be required would largely be from Ontario. Mr. Hanc's financial information is all in Ontario. Expert witnesses from Ontario would be required in relation to appraisals of the real property and possibly his other assets. The significant family debt that is claimed is based upon a contract signed by the parties in Ontario. Bank representatives involved in the contract and/or in keeping of the records may be required to testify. To hear this matter, with nearly all Ontario witnesses, would be very inconvenient and expensive to many people, significantly Mr. Hanc. 

"[63] Further, s. 108 of the FLA applies to this case and leads to the inevitable conclusion that the applicable internal law that would apply to Ms. Cockerham's claims under Part 5 of the FLA is the law of Ontario."

Of course this means that we need to talk about s. 108 as well.

Applicable Law

Section 108 is another difficult part of Division 6. In a nutshell, when the court takes jurisdiction under s. 106, s. 108 is used to figure out the law that should be used to divide the property, which might be the rules about the division of family property set out in the rest of Part 5 or might be the laws of the jurisdiction in which the parties had their "last common habitual residence" — the last place they lived together. Here's s. 108, which is just as difficult to read as s. 106:

(1) In this section, "regime of community of property" means a system of law, including a regime of partnership of acquests, in which property owned or acquired and debt owing or acquired during the relationship between the spouses 

(a) are deemed to be owned or owing by both spouses, and 

(b) are divided, on separation of the spouses, as if both spouses equally owned the property or owed the debt,

but does not include a regime of separate property or a system of law under which a spouse's interest is deferred until or after the occurrence of an event that signifies the end of the relationship between the spouses. 

(2) If the Supreme Court takes jurisdiction under this Division, the Supreme Court must act in accordance with the rules set out in this section. 

(3) Subject to subsection (4), if spouses make an agreement respecting the division of property or debt, the substantive rights of the spouses in a proceeding under this Part are determined by the agreement. 

(4) The enforcement of an agreement under subsection (3) is subject to any restriction that the proper law of the relationship places on the ability of spouses to determine the division of property or debt by agreement. 

(5) Subject to subsection (3), if the spouses' first common habitual residence during the relationship between the spouses was in a jurisdiction in which a regime of community of property applies, property owned or acquired and debt owing or acquired during the relationship between the spouses that is property or debt to which the regime of community of property applies must be divided at the end of the relationship between the spouses according to that regime of community of property. 

(6) If neither subsection (3) nor (5) applies, the substantive rights of spouses in a proceeding under this Part must be determined according to the proper law of the relationship.

In other words, if the parties have an agreement about property, their property should be divided according to their agreement. If the parties used to live in a place that had rules like the old Family Relations Act, where all property used for a family purpose was divided, whether bought before or during the relationship, those are the rules that should be used. If neither of these situations apply, you then have to figure out the "proper law of the relationship," according to the test set out in s. 107:

The proper law of the relationship between the spouses for the purposes of section 108 is 

(a) the internal law of the jurisdiction in which the spouses had their most recent common habitual residence, 

(b) if the jurisdiction under paragraph (a) is outside Canada and is not the jurisdiction most closely associated with the relationship between the spouses, the internal law of the jurisdiction that is most closely associated with the relationship between the spouses, or 

(c) if the spouses did not have a common habitual residence, the internal law of the jurisdiction in which the spouse making an application for an order under this Part was most recently habitually resident.

The judge's conclusions under s. 108 merely confirm her decision to decline to act made under s. 106(4):

"[64] Section 108(2) mandates that if the court takes jurisdiction under Division 6 of Part 5, it must act in accordance with s. 108. As there is no agreement between the parties regarding the applicable internal law, only subsections (5) and (6) are relevant. ... 

"[65] The parties' first common habitual residence was in Ontario. It was their only residence together where they lived and participated in everyday family life. If Ontario has a 'regime of community property', the applicable internal law is that of Ontario. If Ontario does not have a 'regime of community property', the applicable internal law is determined by s. 107 of the FLA. Also known as the 'proper law' of the spousal relationship, this too would be Ontario law because Ontario is the jurisdiction where the parties had their most recent common habitual residence. 

"[66] As I have concluded the law of Ontario would apply to Ms. Cockerham's claims under Part 5, additional inconvenience and expense would be required if this matter proceeded in British Columbia. As Mr. Hanc points out, an expert in Ontario family law would be required to offer opinion evidence on the law of property and debt division."

I should mention that at this point in her reasons, the judge analyses Cockerham's claim under the Court Jurisdiction and Proceedings Transfer Act, reaching an identical conclusion. Her analysis of this act will be helpful for anyone looking into whether there is a "real and substantial connection" — another cryptic phrase bedevilling the case law on jurisdiction! — between British Columbia and the facts of a particular case. 

Determining Whether to Take Jurisdiction under Part 7 of the Family Law Act

As for Cockerham's claim for spousal support — spousal support and child support are covered in Part 7 of the act — the court rejected this as well, on the basis that the Interjurisdictional Support Orders Act, a law which has been passed by each province and territory, provided the appropriate mechanism for a resident of British Columbia to obtain a support order against someone living in another province.

Following the Court of Appeal's decision on the Interjurisdictional Support Orders Act and the Family Relations Act in a 2006 case called Nurani v Virani, Justice Donegan held that:

"[92] Neither the [Supreme Court Family Rules] nor the FLA alters the [Interjurisdictional Support Orders Act] scheme or renders it now inapplicable. Express statutory language would be required for such a result. No such language exists. Although Ms. Cockerham argues that the ISOA mechanisms are inconsistent with the object of the Family Rules, describing them as slow and cumbersome, one can also see how its scheme is consistent with the object as well. A process whereby no court appearance in British Columbia or another jurisdiction is required in order to obtain a support order could be seen as promoting a just and inexpensive determination of the issue. 

"[93] In any event, in the absence of express statutory language rendering the ISOA inapplicable in light of the FLA, [the Court of Appeal's decisions in Nurani] remain binding authority on this court. Mr. Hanc is not a resident of British Columbia, nor has he ever been. He has no connections to British Columbia whatsoever. In these circumstances, this court has no jurisdiction to make an original order for support against him pursuant to the FLA. ... Ms. Cockerham has the mechanisms of the ISOA available to her should she so chose."

Summary

I am grateful to Justice Donegan for her clear analysis of Division 6. It is a very difficult part of the act and her decision in Cockerham is, I believe, the first treatment of the division by the court. Here is a short summary of the steps required to analyze a claim involving property located outside British Columbia.

1. The burden of proving that the court has the jurisdiction to hear a case lies on the person who claims that the court has jurisdiction.

2. Claims about the interests of spouses in property located outside of British Columbia brought under the Family Law Act should be analyzed under that act rather than the Court Jurisdiction and Proceedings Transfer Act.

3. Determine if s. 106 of the Family Law Act applies by examining whether an order about property division between the same people can be made in more than one jurisdiction. 

4. If s. 106 applies, determine whether one or more of the conditions in s-s. (2) are met to give the court authority to make orders under Part 5 of the Family Law Act. 

5. If the court has jurisdiction under s. 106(2), determine whether the court should exercise that jurisdiction or leave the matter to a court in another jurisdiction under s. 106(4), considering the factors set out in s. 106(5). 

6. If the court decides to act, determine the law to apply under ss. 107 and 108. Note that the applicable law may be a factor in determining whether to decline to act under s. 106(4).

My thanks to my colleague Mary Fus, a lawyer with a thriving family law practice in Kamloops, for bringing this important case to my attention.

Important Legislation About Matrimonial Property on Reserves Coming Into Effect

The Family Homes on Reserves and Matrimonial Interests or Rights Act, a fairly new piece of federal legislation, allows First Nations to make rules about homes on First Nations lands and attempts to address a problem that's festered for almost 150 years. Sections 91 and 92 of the Constitution Act, 1867 divides the powers involved in running a country between the federal and provincial governments and, among other things, gives the federal government exclusive authority over "Indians, and Lands reserved for the Indians" and the provincial governments exclusive authority over "Property and Civil Rights in the Province," thereby allowing the provinces to make all the rules they wish about family law and the division of property between spouses but making those rules ineffective on First Nations lands.

The Family Homes on Reserves Act became law on 16 June 2013, with the first bits coming into force on 16 December 2013 and a huge swack, the remainder of the act, coming into force on 16 December 2014. The act applies only to the First Nations that are "bands" as defined by the Indian Act.

Although the act doesn't affect the underlying title to First Nations lands, which continues to be held by the Queen in most of Canada, it does allow First Nations governments to establish laws about how family homes on reserve lands will be used and occupied when a relationship between married or unmarried spouses has broken down. Here's what s. 4 of the act says:

The purpose of this Act is to provide for the enactment of First Nation laws and the establishment of provisional rules and procedures that apply during a conjugal relationship, when that relationship breaks down or on the death of a spouse or common-law partner, respecting the use, occupation and possession of family homes on First Nation reserves and the division of the value of any interests or rights held by spouses or common-law partners in or to structures and lands on those reserves.

(I don't know why federal legislation must be written in such clunky, hard-to-parse language, but there it is.) For First Nations that are listed in the schedule to the First Nations Land Management Act and have the right to manage their lands under a self-government agreement with Canada, the act also provides a lengthy set of provisional rules that apply when the laws the act entitles them to make are not in effect.

Here are the important parts of the act. Sections 1 to 11 and 53 came into force in 2013, sections 12 to 52 come into force tomorrow.

• Sections 7, 8 and 9: First Nations governments can make laws about the use, occupation and possession of family homes located on reserve lands during and after the breakdown of a "conjugal relationship." The laws must be put to a plebiscite, are approved with the support of a majority of the members of the First Nation.
• Section 12: The provisional rules about the use, occupation and possession of family homes set out in sections 13 to 52 apply to First Nations with rights of self-government and are listed in the First Nations Land Management Act and do not have laws about family homes that are in effect.
• Section 13: Each spouse or partner may occupy the family home during their relationship, whether the person is a First Nation member or a status Indian or not. However, the 
• Section 15: A spouse or partner with an interest in or right to the family home, must not sell it or use it as collateral for a lone without the consent of the other person.
• Sections 16 and 17: A spouse or partner can apply for a temporary exclusive occupancy order, including an order for the removal of a person's belongs from the home and an order that a person not go near the home, without notice to the other person if family violence has occurred and order should be made right away. If the judge making the order is a provincially-appointed judge, the judge must send the order and all supporting materials to a judge with the power to make orders under the Divorce Act for a review of the order.
• Section 18: Either spouse or parter can apply to change an exclusive occupancy order.
• Sections 20 and 21: A spouse or partner can apply for a permanent exclusive occupancy order, and the judge hearing the application must consider, among other things, the best interests of the children living in the home, any agreement between the parties, the collective interests of the First Nations members in their reserve lands, the length of time that the person has lived on the reserve and the availability of other accommodation, family violence. The order can include a term requiring the person with exclusive occupancy to keep the home in good condition or requiring either party to pay for the costs of the home. The order can be made to survive the death of the spouse or partner with the interest in or right to the family home.
• Section 23: Exclusive occupancy orders do not change who holds an interest in or right to the family home.
• Sections 28 and 29: When a conjugal relationship breaks down, each party is entitled to an amount equal to one-half of the value of the family home, plus extra rights to the other person's interests in property located on First Nations lands that change depending on whether the party is a member of the First Nation. A court order a different sharing of property interests depending on factors like the length of the relationship, the terms of an agreement between the parties and the debts incurred by each party. 
• Section 30: Applications must be made within 3 years of the date the parties ceased to cohabit. 
• Sections 30 and 31:The court can order that an amount payable under ss. 28 or 29 be paid as a lump-sum, be paid in instalments, be set-off by another amount or be satisfied by the transfer of a property interest or right. The court's ability to transfer property interests or rights is subject to a number of factors relating to the the status of the First Nation, the applicant's status as a member of the First Nation and the circumstances of the parties' relationship.
• Sections 34 to 40: These sections establish rules about estates and the rights of person upon the death of their spouses and partners.
• Section 43: A court with jurisdiction under the Divorce Act has jurisdiction to deal with applications under the Family Homes on Reserves Act.
• Section 48: The court may determine whether a person has a right in a home or land situated on First Nations lands on the application of a spouse or partner, a survivor, an executor of a will, or the counsel of the First Nation on whose lands the home or land is located.

Remember that the provisional rules do not apply to all First Nations, and that both the provisional rules and the First Nations laws on family homes apply in place of the matrimonial property provisions of any provincial legislation.

Court Comments on Records Requirements for Guardianship Applications

Regular readers will recall that under the new Family Law Act, people who must apply to be appointed as a guardian of a child — remember that some people are automatically guardians — are required to prepare a specific form of affidavit with certain documents attached to it. Section 51 of the new act says this:

(1) On application, a court may

(a) appoint a person as a child's guardian ...

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

To figure out what evidence must be provided to the court, you have to look at Provincial Court Family Rule 18.1 if you're making your application in the Provincial Court, or Supreme Court Family Rule 15-2.1 if you're in the Supreme Court. Both rules say that:

1. you must file a special affidavit, Form 34 in the Provincial Court or Form F101 in the Supreme Court, within a certain number of days of the hearing; and,
2. "any records check, criminal records check or protection orders records check" attached to the affidavit must have been prepared within a certain number of days of the hearing.

To figure out what checks are required, you then have to look at the special affidavit. 

This overall arrangement is somewhat peculiar, as none of s. 51(2), PCFR 18.1 or SCFR 15-2.1 state that the records checks must be provided or explain the sort of checks that are required. This task is left to the affidavit forms and the affidavit forms are, in hindsight, not as clear as they could be. This is what PCFR Form 34 says on the issue (the text in italics is the instructions provided by the form) :

9 Attached to this affidavit and marked as Exhibit ______ is a copy of a British Columbia Ministry of Children and Family Development records check dated ______ . [Note that under rule 18.1, if there is to be no hearing for this application, this records check must be dated within 60 days of the date on which this affidavit is filed.] 

10 Attached to this affidavit and marked as Exhibit ______ is a copy of a Protection Order Registry protection order records check dated ______ . [Note that under rule 18.1, if there is to be no hearing for this application, this records check must be dated within 60 days of the date on which this affidavit is filed.]

11 Attached to this affidavit and marked as Exhibit ______ is a copy of a criminal records check dated ______ obtained from the ______ [name and location of police force or department from which the criminal records check was obtained]. [Note that under rule 18.1, if there is to be no hearing for this application, this records check must be dated within 60 days of the date on which this affidavit is filed.]

These ambiguities were before Judge Frame of the Provincial Court in Director and L.M.P. / L.M.P. v. K.P., a case involving a father who never resided with his child or regularly cared for the child, and accordingly was required to apply to be appointed as the guardian of his child. As the court put it,

"[2] During the course of the proceedings, the issue of [the father's] criminal record check arose. Clearly the criminal record checks conducted both by the Ministry of Children and Family Development, as well as the one obtained by [the father] pursuant to the family law legislation, do not disclose his criminal history. Thus, the issue arose whether a criminal record check was a mandatory or compellable requirement, what form of criminal record check was to be conducted, and what results are adequate for the purposes."

After reviewing the requirements of the act and the Rules of Court, the judge embarks on a very welcome discussion of the nature of police policies, and the available criminal record checks, their costs, their wait periods and their relative inadequacies. (This overview will be very helpful for anyone who must complete a Form 34 or Form F101, see paragraphs 12 to 39 of the judge's decision.) Here are the court's conclusions, with the particularly important bits in bold:

"[47] It is clear that in order to meet the purpose and requirements of the legislation, the criminal record check to be performed must include a vulnerable sector search [a special search that reports all police involvements, all information related to non-convictions and all charges regardless of what happened with them]. ... 

"[49] I am not satisfied that the existing legislation is sufficient to compel a person to obtain a criminal record check, much less the secondary fingerprint search. Where there is such a positive obligation upon an applicant to disclose such sensitive information, there ought to be mandatory language in some part of the legislation, be it the Family Law Act, the rules, or the regulations bringing the form into force. 

"[50] Furthermore, I am not satisfied that Form 34 contemplates any more than the preliminary criminal record check such as the one obtained by [the father]. Paragraph 12 of that affidavit form provides a section for the applicant to complete where the criminal record check omits some part of a person’s criminal history. It recognizes that the criminal record check may not be complete. The [applicant] is only required to disclose convictions for which there is no pardon. Presumably if a person were convicted of a sexual offence for which they were pardoned, there would be no obligation to disclose it. This defeats the whole apparent intention of protecting children who are members of a vulnerable sector.

"[51] I cannot tell from the evidence before me whether a person can obtain a vulnerable sector search for themselves through any other police agency, but it certainly cannot be obtained from the Vancouver Police Department for personal reasons. It appears this is based on RCMP policy. If applicants cannot obtain a vulnerable sector search, it seems to defeat the whole purpose of having the criminal record check done for a guardianship application. ... 

"[54] I am not satisfied that I have the authority to order [a] secondary fingerprint search absent any legislation empowering me to do so. There is no inherent jurisdiction in this court to make such orders. This goes beyond matters of procedure over which this court does have some inherent jurisdiction. ... 

"[56] The most practical procedure would be for [the father] to attend the detachment where he obtained his initial criminal record check and request a fingerprint search. While I cannot order him to do so, it is more practical than he or any other party trying to determine all of the detachments with which he had any engagements and make applications for disclosure of their records. ... "

In other words, the specific check an applicant for guardianship must obtain for the purposes of the Family Law Act is the particularly intrusive vulnerable sector search. However, an applicant cannot be compelled to request the vulnerable sector search, the form doesn't appear to require it, and policy policy appears to prevent applicants from getting it. Isn't this awkward. Making matters worse, the court's proposed solution — having the applicant attend at a police station to request a special search using fingerprint identification— is something that an applicant cannot be compelled to do.

It appears, then, that a person applying to be appointed as the guardian of a child is only required to provide the sort of brief check you can get by walking into a police station and asking for the check. It would be prudent to ask for the secondary fingerprint search; whether court can force you to do this or not, it will help to demonstrate your good faith in making the application.

Now, the Supreme Court is a court of inherent jurisdiction, which means that it is not limited by what the legislation says it can do when it makes orders. It is also a court of parens patriae jurisdiction, which means that it can make such orders as are necessary for the benefit of a child, usually when there is a gap in any applicable legislation. This may affect the outcome when similar issues arise in that court.