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This Act is current to July 19, 2017
See the Tables of Legislative Changes for this Act’s legislative history, including any changes not in force.

Family Law Act

[SBC 2011] CHAPTER 25

Part 10 — Court Processes

Division 1 — Jurisdiction of Court Generally

Supreme Court jurisdiction

192  (1) Subject to the Divorce Act (Canada), the Supreme Court has jurisdiction in all matters under this Act.

(2) Subject to the Divorce Act (Canada), the Supreme Court continues to have jurisdiction in all matters respecting marriage and divorce.

(3) Nothing in this Act limits or restricts the inherent jurisdiction of the Supreme Court to act in a parens patriae capacity.

Provincial Court jurisdiction

193  (1) Subject to the Divorce Act (Canada) and subsection (2) of this section, the Provincial Court has jurisdiction in all matters under this Act.

(2) The Provincial Court does not have jurisdiction to make an order under

(a) Part 3 [Parentage], except as necessary to determine another family law dispute over which the Provincial Court has jurisdiction, or

(b) Part 5 [Property Division], 6 [Pension Division] or 8 [Children's Property].

(3) Nothing in subsection (2) (b) of this section prevents the Provincial Court from making an order under Part 9 [Protection from Family Violence] restricting access to a residence for the purpose of protecting the safety of a family member occupying the residence.

Overlapping court jurisdiction

194  (1) If a proceeding respecting a family law dispute may be started in either the Supreme Court or the Provincial Court, the starting of a proceeding in one court does not prevent the starting of a second proceeding in the other court, unless the relief applied for in the second proceeding has already been granted or refused in the first proceeding.

(2) If proceedings are started in both courts and each court may make an order for the same relief, the making of an order by one court does not prevent an application for an order in the other court unless the relief that is the subject of the application to the other court has already been granted or refused by the first court.

(3) If proceedings are started in both courts, a court, on application and to the extent that the matter is within the court's jurisdiction under section 192 [Supreme Court jurisdiction] or 193 [Provincial Court jurisdiction], as applicable, may do one or more of the following:

(a) decline to hear a matter;

(b) decline to hear a matter until another matter under this Act, or under any other law of British Columbia or Canada, has been heard in the other court;

(c) consolidate proceedings started in the other court with proceedings started in the court;

(d) hear a matter.

(4) Despite subsection (2), the Supreme Court may change, suspend or terminate, under section 215 [changing, suspending or terminating orders generally], an order of the Provincial Court if

(a) the Supreme Court is making an order that affects an order of the Provincial Court, and

(b) the parties would have to go back to the Provincial Court to have the Provincial Court's order changed, suspended or terminated as a result.

(5) If the Supreme Court acts under subsection (4), the Supreme Court's order is deemed to be an order of the Provincial Court for all purposes.

(6) Nothing in this section authorizes the Supreme Court to change, suspend or terminate an order of the Provincial Court if the Provincial Court has refused to change, suspend or terminate the order, except as provided under section 233 [appeals from Provincial Court orders].

Joining proceedings

194.1  If a proceeding under this Act and a proceeding under this Act or another Act are started in the same court, the court, on application or on the court's own initiative, may consolidate the proceedings.

Provincial Court enforcement of Supreme Court orders

195  An order made by the Supreme Court respecting parenting arrangements or contact with a child may be enforced by the Provincial Court in the manner in which the Provincial Court enforces its own orders under this Act, if a copy of the order is certified by the Supreme Court and filed with the Provincial Court.

Certain actions must not be maintained

196  A proceeding must not be started or maintained for any of the following:

(a) restitution of conjugal rights;

(b) loss of consortium;

(c) criminal conversation;

(d) jactitation of marriage;

(e) enticement of a spouse;

(f) harbouring of a spouse;

(g) breach of promise of marriage.

Division 2 — Procedural Matters

Complying with duties respecting family dispute resolution

197  (1) If a lawyer is acting on behalf of a party in a proceeding under this Act, the lawyer must provide, at the time the proceeding is started, a statement, signed by the lawyer, certifying that the lawyer has complied with section 8 (2) [duties of family dispute resolution professionals].

(2) A person making or intending to make an application under this Act must comply with any requirements set out in the regulations respecting mandatory family dispute resolution or prescribed procedures.

Time limits

198  (1) Subject to this Act, a proceeding under this Act may be started at any time.

(2) A spouse may start a proceeding for an order under Part 5 [Property Division] to divide property or family debt, Part 6 [Pension Division] to divide a pension, or Part 7 [Child and Spousal Support] for spousal support, no later than 2 years after,

(a) in the case of spouses who were married, the date

(i) a judgment granting a divorce of the spouses is made, or

(ii) an order is made declaring the marriage of the spouses to be a nullity, or

(b) in the case of spouses who were living in a marriage-like relationship, the date the spouses separated.

(3) Despite subsection (2), a spouse may make an application for an order to set aside or replace with an order made under Part 5, 6 or 7, as applicable, all or part of an agreement respecting property or spousal support no later than 2 years after the spouse first discovered, or reasonably ought to have discovered, the grounds for making the application.

(4) The time limits set out in subsection (2) do not apply to a review under section 168 [review of spousal support] or 169 [review of spousal support if pension benefits].

(5) The running of the time limits set out in subsection (2) is suspended during any period in which persons are engaged in family dispute resolution with a family dispute resolution professional.

Conduct of proceeding

199  (1) A court must ensure that a proceeding under this Act is conducted

(a) with as little delay and formality as possible, and

(b) in a manner that strives to

(i) minimize conflict between, and if appropriate, promote cooperation by, the parties, and

(ii) protect children and parties from family violence.

(2) If a child may be affected by a proceeding under this Act, a court must

(a) consider the impact of the proceeding on the child, and

(b) encourage the parties to focus on the best interests of the child, including minimizing the effect on the child of conflict between the parties.

Applications may be heard in party's absence

200  (1) If permitted under this Act, the Supreme Court Family Rules or the Provincial Court (Family) Rules, a court, in the absence of a party, may hear an application and make any order the court has authority to make under this Act.

(2) If an order was made in the absence of a party, the court, in accordance with the Supreme Court Family Rules or the Provincial Court (Family) Rules, as applicable, may change, suspend or set aside the order.

Legal capacity of children

201  (1) A child has the capacity to make, conduct or defend a proceeding under this Act without a litigation guardian if the child is

(a) 16 years of age or older,

(b) a spouse, or

(c) a parent.

(2) Nothing in subsection (1) prevents a court, if the court considers it appropriate, from

(a) appointing a litigation guardian for a child described in subsection (1), or

(b) allowing a child who is not described in subsection (1) to make, conduct or defend a proceeding under this Act without a litigation guardian.

Court may decide how child's evidence is received

202  In a proceeding under this Act, a court, having regard to the best interests of a child, may do one or both of the following:

(a) admit hearsay evidence it considers reliable of a child who is absent;

(b) give any other direction that it considers appropriate concerning the receipt of a child's evidence.

Children's lawyer

203  (1) The court may at any time appoint a lawyer to represent the interests of a child in a proceeding under this Act if the court is satisfied that

(a) the degree of conflict between the parties is so severe that it significantly impairs the capacity of the parties to act in the best interests of the child, and

(b) it is necessary to protect the best interests of the child.

(2) If the court appoints a lawyer under this section, the court may allocate among the parties, or require one party alone to pay, the lawyer's fees and disbursements.

Intervention by Attorney General or other person

204  (1) The Attorney General may intervene in a proceeding under this Act and make submissions respecting any matter, arising in the proceeding, that affects the public interest.

(2) Any person may apply to the court for leave to intervene in a proceeding under this Act and the court may make an order entitling the person to intervene.

(3) The Attorney General or another person who intervenes in a proceeding becomes a party to the proceeding.

Spouse compellable as witness

205  In a proceeding under this Act, spouses are competent and compellable witnesses for or against each other.

Exclusion of the public or from publication

206  A court may make an order

(a) excluding any person, other than a party, from attending a hearing, or

(b) prohibiting publication of the identity of a party or child in reports of a hearing if the court considers that publication would have an adverse effect on, or cause undue hardship to, the party or child.

Information accompanying orders

207  If a court makes an order under this Act, prescribed information, if any, respecting the order must be given to each party by a prescribed person in the prescribed manner.

Division 3 — Standing in Aboriginal Matters

Guardianship of Nisga'a child

208  (1) [Repealed 2014-32-28.]

(2) If an application for guardianship is made respecting a Nisga'a child,

(a) the Nisga'a Lisims Government must be served with notice of the proceeding, and

(b) the Nisga'a Lisims Government has standing in the proceeding as provided in paragraph 94 of the Nisga'a Government Chapter of the Nisga'a Final Agreement.

(3) In a proceeding to which subsection (2) applies, the court must consider, in addition to any other matters it is required by law to consider, any evidence or representations respecting Nisga'a laws and customs as provided in paragraph 94 of the Nisga'a Government Chapter of the Nisga'a Final Agreement.

(4) As provided in paragraph 95 of the Nisga'a Government Chapter of the Nisga'a Final Agreement, the participation of the Nisga'a Lisims Government in a proceeding to which subsection (2) applies must be in accordance with the Supreme Court Family Rules or the Provincial Court (Family) Rules, as applicable, and does not affect the court's ability to control the court's process.

Guardianship of treaty first nation child

209  (1) If an application for guardianship is made respecting a treaty first nation child and the final agreement of the treaty first nation to which the child belongs provides for it, the treaty first nation

(a) must be served with notice of the proceeding, and

(b) has standing in the proceeding.

(2) In a proceeding to which subsection (1) applies, the court must consider, in addition to any other matters it is required by law to consider and subject to any limits or conditions set out in the final agreement, any evidence or representations respecting the laws and customs of the treaty first nation.

Property proceeding involving treaty lands

210  (1) If provided for by the final agreement of a treaty first nation, the treaty first nation has standing in a proceeding under Part 5 [Property Division], in which

(a) the treaty first nation is entitled under its final agreement to make laws restricting alienation of its treaty lands,

(b) a parcel of its treaty lands is at issue, and

(c) at least one spouse is a treaty first nation member of the treaty first nation.

(2) In a proceeding to which subsection (1) applies, the Supreme Court must consider, among other matters, any evidence or representations respecting the applicable treaty first nation's laws restricting alienation of its treaty lands.

(3) The participation of a treaty first nation in a proceeding to which subsection (1) applies must be in accordance with the Supreme Court Family Rules and does not affect the court's ability to control the court's process.

Division 4 — General Orders the Court May Make

Orders respecting reports

211  (1) A court may appoint a person to assess, for the purposes of a proceeding under Part 4 [Care of and Time with Children], one or more of the following:

(a) the needs of a child in relation to a family law dispute;

(b) the views of a child in relation to a family law dispute;

(c) the ability and willingness of a party to a family law dispute to satisfy the needs of a child.

(2) A person appointed under subsection (1)

(a) must be a family justice counsellor, a social worker or another person approved by the court, and

(b) unless each party consents, must not have had any previous connection with the parties.

(3) An application under this section may be made without notice to any other person.

(4) A person who carries out an assessment under this section must

(a) prepare a report respecting the results of the assessment,

(b) unless the court orders otherwise, give a copy of the report to each party, and

(c) give a copy of the report to the court.

(5) The court may allocate among the parties, or require one party alone to pay, the fees relating to an assessment under this section.

Orders respecting disclosure

212  (1) A court may at any stage of a proceeding make an order to disclose information in accordance with the Supreme Court Family Rules or the Provincial Court (Family) Rules.

(2) If an order is made under subsection (1), the court may order a party to pay, to the other party or to another person, all or part of the expenses reasonably and necessarily incurred in complying with the order.

(3) A person must not disclose information obtained under an order made under this section except

(a) as necessary to resolve a family law dispute, and

(b) in accordance with the order.

Enforcing orders respecting disclosure

213  (1) This section applies if a person

(a) fails to comply with

(i) an order for disclosure made under section 212 [orders respecting disclosure], or

(ii) a requirement to disclose information in accordance with the Supreme Court Family Rules or the Provincial Court (Family) Rules,

within the time or in the manner required by the order or Rules, or

(b) provides information that is incomplete, false or misleading.

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

(a) make an order under section 212;

(b) draw an inference that is adverse to the person, including attributing income to that person in an amount that the court considers appropriate, and make an order based on the inference;

(c) require a party to give security in any form that the court directs;

(d) make an order requiring the person described in subsection (1) to pay

(i) a party for all or part of the expenses reasonably and necessarily incurred as a result of the non-disclosure of information or the incomplete, false or misleading disclosure, including fees and expenses related to family dispute resolution,

(ii) an amount not exceeding $5 000 to or for the benefit of a party, or a spouse or child whose interests were affected by the non-disclosure of information or the incomplete, false or misleading disclosure, or

(iii) a fine not exceeding $5 000;

(e) make any other order the court considers appropriate.

Orders respecting agreements

214  (1) If an order is made to set aside part of an agreement, the part is deemed to be severed from the remainder of the agreement.

(2) A court may incorporate into an order all or part of a written agreement respecting a family law dispute made by the parties to the proceeding and, unless the court orders otherwise,

(a) the order replaces that part of the agreement that is incorporated, and

(b) the remainder of the agreement remains effective.

(3) Unless the court orders otherwise, if an agreement and an order made after the agreement provide differently for the same subject matter,

(a) the order replaces the part of the agreement that provides differently for the same subject matter, and

(b) the remainder of the agreement remains effective.

(4) A court may on application by a party to family dispute resolution make an order requiring the other party to pay all or part of the applicant's expenses in relation to the family dispute resolution if satisfied that

(a) the other party knowingly failed to disclose relevant information, and

(b) an order is made under section 93 [setting aside agreements respecting property division] or 164 [setting aside agreements respecting spousal support] to set aside all or part of an agreement arising from the family dispute resolution.

Changing, suspending or terminating orders generally

215  (1) Subject to this Act, a court on application by a party may change, suspend or terminate an order, if there has been a change in circumstances since the order was made.

(2) A court may not change, suspend or terminate an order made under Part 5 [Property Division] or 6 [Pension Division] except as provided under those Parts.

Court may make interim orders

216  (1) Subject to this Act, if an application is made for an order under this Act, a court may make an interim order for the relief applied for.

(2) In making an interim order respecting a family law dispute, the court, to the extent practicable, must make the interim order in accordance with any requirements or conditions of this Act that would apply if the order were not an interim order.

(3) On application by a party, a court may change, suspend or terminate an interim order made under subsection (1) if satisfied that at least one of the following circumstances exists:

(a) a change in circumstances has occurred since the interim order was made;

(b) evidence of a substantial nature that was not available at the time the interim order was made has become available.

(4) In making an order under subsection (3), the court must take into account all of the following:

(a) the change in circumstances or the evidence, or both, referred to in subsection (3);

(b) the length of time that has passed since the interim order was made;

(c) whether the interim order was made for the purpose of having a temporary arrangement in place, with the intention that the arrangement

(i) would not adversely affect the position of either party during negotiations, during family dispute resolution or at trial, and

(ii) would not necessarily reflect the final arrangement between the parties;

(d) whether a trial has been scheduled;

(e) any potential adverse effect, on a party or a child of a party, of either making or declining to make an order under subsection (3).

Interim orders before changing, suspending or terminating orders

217  If an application is made to change, suspend or terminate an order, an interim order for the relief applied for may be made only if the court is satisfied that

(a) a change in circumstances has occurred since the order that is the subject of the application was made, and

(b) the hardship to a party of denying interim relief before the application is heard outweighs the hardship to any party of granting interim relief.

Terms and conditions of orders

218  Subject to section 183 (3) (e) [orders respecting protection], a court may include in an order any terms or conditions the court considers appropriate in the circumstances.

Persons may consent to order being made

219  (1) A person may consent to the making of an order under this Act.

(2) Consent under subsection (1) must not be considered an admission of a fact alleged in a proceeding unless the fact is specifically admitted.

Court may make order on behalf of child

220  If a court is satisfied that an application for an order under this Act should also have been made on behalf of a child, the court may make an order on behalf of the child.

Misuse of court process

221  (1) A court may make an order prohibiting a party from making further applications or continuing a proceeding without leave of the court if satisfied that the party

(a) has made an application that is trivial,

(b) is conducting a proceeding in a manner that is a misuse of the court process, or

(c) is otherwise acting in a manner that frustrates or misuses the court process.

(2) If an order is made under subsection (1), the court may do one or more of the following:

(a) make the order apply

(i) for a specified period of time, or

(ii) until the party has complied with an order made under this Act;

(b) impose any terms and conditions respecting the granting of leave to make further applications or to continue a proceeding;

(c) require the party to pay

(i) the other party for all or part of the expenses reasonably and necessarily incurred as a result of the party's actions, including fees and expenses related to family dispute resolution,

(ii) an amount not exceeding $5 000 to or for the benefit of the other party, or a spouse or child whose interests were affected by the party's actions, or

(iii) a fine not exceeding $5 000.

Division 5 — Orders Respecting Conduct

Purposes for which orders respecting conduct may be made

222  At any time during a proceeding or on the making of an order under this Act, the court may make an order under this Division for one or more of the following purposes:

(a) to facilitate the settlement of a family law dispute or of an issue that may become the subject of a family law dispute;

(b) to manage behaviours that might frustrate the resolution of a family law dispute by an agreement or order;

(c) to prevent misuse of the court process;

(d) to facilitate arrangements pending final determination of a family law dispute.

Orders respecting case management

223  (1) A court may make an order to do one or more of the following:

(a) dismiss or strike out all or part of the party's claim or application;

(b) adjourn a proceeding while

(i) the parties attempt to resolve one or more issues before the court, or

(ii) a party complies with an order made under this Division;

(c) require that all further applications be heard by the judge or master making the order unless that judge or master directs otherwise;

(d) prohibit a party from making an application, without leave of the court, respecting any matter over which a parenting coordinator has authority to act under an agreement or order.

(2) Subsection (1) (d) of this section does not apply to an application made under section 19 [changing or setting aside determinations].

(3) Nothing in this section limits any other order a court may make under an enactment or the common law for the purpose of controlling a proceeding before the court.

Orders respecting dispute resolution, counselling and programs

224  (1) A court may make an order to do one or both 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, a child, to attend counselling, specified services or programs.

(2) If the court makes an order under subsection (1), the court may allocate among the parties, or require one party alone to pay, the fees relating to the family dispute resolution, counselling, services or programs.

Orders restricting communications

225  Unless it would be more appropriate to make an order under Part 9 [Protection from Family Violence], a court may make an order setting restrictions or conditions respecting communications between parties, including respecting when or how communications may be made.

Orders respecting residence

226  A court may make an order to do one or more of the following:

(a) require a party to make payments respecting rent, mortgage, specified utilities, taxes, insurance and other expenses related to a residence;

(b) prohibit a party from terminating specified utilities for a residence;

(c) require a specified person to supervise the removal of personal belongings, by another person, from a residence.

Other orders respecting conduct

227  A court may make an order requiring a party to do one or more of the following:

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

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

(c) do or not do anything, as the court considers appropriate, in relation to a purpose referred to in section 222 [purposes for which orders respecting conduct may be made].

Enforcing orders respecting conduct

228  (1) If a party fails to comply with an order made under this Division, the court may do one or more of the following:

(a) make a further order under this Division;

(b) draw an inference that is adverse to the party, and make an order based on the inference;

(c) make an order requiring the party to pay

(i) the other party for all or part of the expenses reasonably and necessarily incurred as a result of the non-compliance, including fees and expenses related to family dispute resolution,

(ii) an amount not exceeding $5 000 to or for the benefit of the other party, or a spouse or child whose interests were affected by the non-compliance, or

(iii) a fine not exceeding $5 000;

(d) make any other order the court considers necessary to secure compliance.

(2) If a party fails to comply with an order made under section 225 [orders restricting communications], the court must consider whether it would be appropriate to make an order under Part 9 [Protection from Family Violence].

Division 6 — Enforcement Generally

Service need not be proved

229  For the purposes of enforcing an order made under this Act, it is not necessary to prove that the person against whom the order was made was served with the order.

Enforcing orders generally

230  (1) Subject to section 188 [enforcing orders respecting protection], an order under this section may be made only if no other provision of this Act applies for the purposes of enforcing an order made under this Act.

(2) For the purposes of enforcing an order made under this Act, the court on application by a party may make an order to do one or more of the following:

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

(b) require a party to pay

(i) the other party for all or part of the expenses reasonably and necessarily incurred as a result of the party's actions, including fees and expenses related to family dispute resolution,

(ii) an amount not exceeding $5 000 to or for the benefit of the other party, or a spouse or child whose interests were affected by the party's actions, or

(iii) a fine not exceeding $5 000.

Extraordinary remedies

231  (1) This section applies if

(a) a person fails to comply with an order made under this Act, and

(b) the court is satisfied that no other order under this Act will be sufficient to secure the person's compliance.

(2) Subject to section 188 [enforcing orders respecting protection], the court may make an order that a person be imprisoned for a term of no more than 30 days.

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

(a) a person must first be given a reasonable opportunity to explain his or her non-compliance and show why an order under this section should not be made,

(b) for the purpose of bringing a person before the court to show why an order for imprisonment should not be made, the court may issue a warrant for the person's arrest, and

(c) imprisonment of a person under this section does not discharge any duties of the person owing under an order made under this Act.

(4) If satisfied under section 61 [denial of parenting time or contact] that a person has been wrongfully denied parenting time or contact with a child by the child's guardian, a court may make an order requiring a police officer to apprehend the child and take the child to the person.

(5) If satisfied that a person having contact with a child has wrongfully withheld the child from a guardian of the child, a court may make an order requiring a police officer to apprehend the child and take the child to the guardian.

(6) For the purpose of locating and apprehending a child in accordance with an order made under subsection (4) or (5), a police officer may enter and search any place he or she has reasonable and probable grounds for believing the child to be.

Offence Act application

232  Sections 4 and 5 of the Offence Act do not apply in respect of this Act or the regulations made under it.

Division 7 — Appeals

Appeals from Provincial Court orders

233  (1) A party may appeal to the Supreme Court an order of the Provincial Court made under this Act, except an interim order.

(2) The time limit for starting an appeal is 40 days, beginning on the day after the order of the Provincial Court is made.

(3) After hearing the appeal, the Supreme Court may do one or more of the following:

(a) confirm or set aside the order of the Provincial Court;

(b) make any order that the Provincial Court could have made;

(c) direct the Provincial Court to conduct a new hearing.

(4) On application by a party, the Supreme Court may extend the time limit for starting an appeal.

Order under appeal remains in effect

234  Despite any other enactment, if an order made under this Act is appealed, the order remains in effect until the determination of the appeal unless the court that made it orders otherwise.

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