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Family Law Act

[SBC 2011] CHAPTER 25

Part 4 — Care of and Time with Children

Division 1 — Best Interests of Child

Best interests of child

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

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

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

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

(c) the nature and strength of the relationships between the child and significant persons in the child's life;

(d) the history of the child's care;

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

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

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

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

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

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

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

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

Assessing family violence

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

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

(b) how recently the family violence occurred;

(c) the frequency of the family violence;

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

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

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

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

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

(i) any other relevant matter.

Division 2 — Parenting Arrangements

Parents are generally guardians

39  (1) While a child's parents are living together and after the child's parents separate, each parent of the child is the child's guardian.

(2) Despite subsection (1), an agreement or order made after separation or when the parents are about to separate may provide that a parent is not the child's guardian.

(3) A parent who has never resided with his or her child is not the child's guardian unless one of the following applies:

(a) section 30 [parentage if other arrangement] applies and the person is a parent under that section;

(b) the parent and all of the child's guardians make an agreement providing that the parent is also a guardian;

(c) the parent regularly cares for the child.

(4) If a child's guardian and a person who is not the child's guardian marry or enter into a marriage-like relationship, the person does not become a guardian of that child by reason only of the marriage or marriage-like relationship.

Parenting arrangements

40  (1) Only a guardian may have parental responsibilities and parenting time with respect to a child.

(2) Unless an agreement or order allocates parental responsibilities differently, each child's guardian may exercise all parental responsibilities with respect to the child in consultation with the child's other guardians, unless consultation would be unreasonable or inappropriate in the circumstances.

(3) Parental responsibilities may be allocated under an agreement or order such that they may be exercised by

(a) one or more guardians only, or

(b) each guardian acting separately or all guardians acting together.

(4) In the making of parenting arrangements, no particular arrangement is presumed to be in the best interests of the child and without limiting that, the following must not be presumed:

(a) that parental responsibilities should be allocated equally among guardians;

(b) that parenting time should be shared equally among guardians;

(c) that decisions among guardians should be made separately or together.

Parental responsibilities

41  For the purposes of this Part, parental responsibilities with respect to a child are as follows:

(a) making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child;

(b) making decisions respecting where the child will reside;

(c) making decisions respecting with whom the child will live and associate;

(d) making decisions respecting the child's education and participation in extracurricular activities, including the nature, extent and location;

(e) making decisions respecting the child's cultural, linguistic, religious and spiritual upbringing and heritage, including, if the child is an aboriginal child, the child's aboriginal identity;

(f) subject to section 17 of the Infants Act , giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the child;

(g) applying for a passport, licence, permit, benefit, privilege or other thing for the child;

(h) giving, refusing or withdrawing consent for the child, if consent is required;

(i) receiving and responding to any notice that a parent or guardian is entitled or required by law to receive;

(j) requesting and receiving from third parties health, education or other information respecting the child;

(k) subject to any applicable provincial legislation,

(i) starting, defending, compromising or settling any proceeding relating to the child, and

(ii) identifying, advancing and protecting the child's legal and financial interests;

(l) exercising any other responsibilities reasonably necessary to nurture the child's development.

Parenting time

42  (1) For the purposes of this Part, parenting time is the time that a child is with a guardian, as allocated under an agreement or order.

(2) During parenting time, a guardian may exercise, subject to an agreement or order that provides otherwise, the parental responsibility of making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child.

Exercise of parental responsibilities

43  (1) A child's guardian must exercise his or her parental responsibilities in the best interests of the child.

(2) If a guardian is temporarily unable to exercise any of the parental responsibilities described in section 41 (a), (c), (d), (f) to (j) or (l) [parental responsibilities], the child's guardian, in writing, may authorize a person to exercise, in the best interests of the child, one or more of those responsibilities on that guardian's behalf while the guardian is unable to do so.

Agreements respecting parenting arrangements

44  (1) Two or more of a child's guardians may make an agreement respecting one or more of the following:

(a) the allocation of parental responsibilities;

(b) parenting time;

(c) the implementation of an agreement made under this section;

(d) the means for resolving disputes respecting an agreement made under this section.

(2) An agreement respecting parenting arrangements is binding only if the agreement is made

(a) after separation, or

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

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

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

Orders respecting parenting arrangements

45  (1) On application by a guardian, a court may make an order respecting one or more of the following:

(a) the allocation of parental responsibilities;

(b) parenting time;

(c) the implementation of an order made under this Division;

(d) the means for resolving disputes respecting an order made under this Division.

(2) An order under subsection (1) must not be made if the child's guardians are the child's parents and are not separated.

(3) The court may make an order to require that the transfer of a child from one party to another, or that parenting time with a child, be supervised by another person named in the order if the court is satisfied that supervision is in the best interests of the child.

(4) Despite subsection (1), a person applying for guardianship may apply, at the same time, for an order under this section.

Changes to child's residence if no agreement or order

46  (1) This section applies if all of the following circumstances exist:

(a) no written agreement or order respecting parenting arrangements applies in respect of a child;

(b) an application is made for an order described in section 45 (1) (a) or (b) [orders respecting parenting arrangements];

(c) the child's guardian plans to change the location of that child's residence and the change can reasonably be expected to have a significant impact on that child's relationship with another guardian.

(2) To determine the parenting arrangements that would be in the best interests of the child in the circumstances set out in subsection (1) of this section, the court

(a) must consider, in addition to the factors set out in section 37 (2) [best interests of child], the reasons for the change in the location of the child's residence, and

(b) must not consider whether the guardian who is planning to move would do so without the child.

Changing, suspending or terminating orders respecting parenting arrangements

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

Informal parenting arrangements

48  (1) If

(a) no agreement or order respecting parenting arrangements applies in respect of a child, and

(b) the child's guardians have had in place informal parenting arrangements for a period of time sufficient for those parenting arrangements to have been established as a normal part of that child's routine,

a child's guardian must not change the informal parenting arrangements without consulting the other guardians who are parties to those arrangements, unless consultation would be unreasonable or inappropriate in the circumstances.

(2) Nothing in subsection (1) prevents a child's guardian from seeking

(a) an agreement respecting parenting arrangements, or

(b) an order under section 45 [orders respecting parenting arrangements].

Referral of questions to court

49  A child's guardian may apply to a court for directions respecting an issue affecting the child, and the court may make an order giving the directions it considers appropriate.

Division 3 — Guardianship

Agreements respecting guardianship

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

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

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

Orders respecting guardianship

51  (1) On application, a court may

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

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

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

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

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

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

Who is entitled to notice

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

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

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

(c) any other person to whom the court considers it appropriate to serve with notice.

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

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

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

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

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

Appointment of guardian in case of death

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

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

(b) in the prescribed form,

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

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

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

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

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

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

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

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

Loss of guardian

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

Appointment of standby guardian

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

(2) An appointment under subsection (1)

(a) must be made in the prescribed form,

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

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

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

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

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

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

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

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

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

Limits on appointments

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

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

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

Appointments must be accepted to take effect

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

Division 4 — Contact with a Child

Agreements respecting contact

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

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

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

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

Orders respecting contact

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

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

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

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

Changing, suspending or terminating orders respecting contact

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

Division 5 — Compliance Respecting Parenting Time or Contact with a Child

Denial of parenting time or contact

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

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

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

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

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

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

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

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

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

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

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

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

(g) require the guardian to pay

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

(ii) a fine not exceeding $5 000.

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

When denial is not wrongful

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

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

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

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

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

(e) the applicant

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

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

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

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

Failure to exercise parenting time or contact

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

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

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

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

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

Orders to prevent removal of child

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

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

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

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

(c) transfer specific property to a trustee named by the court;

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

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

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

Division 6 — Relocation

Definition and application

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

(a) a guardian, or

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

(2) This Division applies if

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

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

Notice of relocation

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

(a) the date of the relocation, and

(b) the name of the proposed location.

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

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

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

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

Resolving issues arising from relocation

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

(2) Nothing in subsection (1) prevents

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

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

Child may be relocated unless guardian objects

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

Orders respecting relocation

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

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

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

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

(a) the relocating guardian must satisfy the court that

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

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

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

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

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

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

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

(a) the reasons for the proposed relocation;

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

(c) whether notice was given under section 66 [notice of relocation];

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

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

If relocation permitted

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

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

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

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

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

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

Not a change in circumstances

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

Division 7 — Extraprovincial Matters Respecting Parenting Arrangements

Definitions and interpretation

72  (1) In this Division:

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

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

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

(a) with his or her parents,

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

(i) under an agreement,

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

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

(c) with a person other than a parent on a permanent basis for a significant period of time.

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

Purposes

73  The purposes of this Division are as follows:

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

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

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

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

Determining whether to act under this Part

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

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

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

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

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

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

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

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

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

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

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

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

(ii) be removed from British Columbia.

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

Recognition of extraprovincial orders

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

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

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

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

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

(c) the extraprovincial tribunal was required by law to consider the best interests of the child;

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

(2) On recognition by a court,

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

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

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

Superseding extraprovincial orders

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

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

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

(ii) be removed from British Columbia, or

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

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

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

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

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

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

Wrongful removal of child

77  (1) This section applies if a court

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

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

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

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

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

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

(ii) any other conditions the court considers appropriate;

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

Extraprovincial evidence

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

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

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

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

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

Referral to court

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

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

Division 8 — International Child Abduction

International child abduction

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

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

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

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

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

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

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

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

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

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

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

Contents | Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14