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This Act is current to November 18, 2020
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

Assented to November 24, 2011

Contents
Part 1 — Interpretation
1Definitions
2General interpretation
3Spouses and relationships between spouses
Part 2 — Resolution of Family Law Disputes
Division 1 — Resolution Out of Court Preferred
4Purposes of Part
5Duty to disclose
6Agreements respecting family law disputes generally
7Replacing agreements
8Duties of family dispute resolution professionals
9Duties of parties respecting family dispute resolution
Division 2 — Family Justice Counsellors
10Family justice counsellors
11Confidentiality of information
12Family justice counsellors not to be compelled
13Information obtained while receiving assistance
Division 3 — Parenting Coordinators
14Parenting coordinators
15When parenting coordinators may assist
16Information sharing for parenting coordination
17Assistance from parenting coordinators
18Determinations by parenting coordinators
19Changing or setting aside determinations
Division 4Arbitration
19.1Definition
19.2Arbitration agreements respecting family law disputes
19.3 Setting aside arbitration agreements
19.4 Stay of court proceedings
19.5Orders respecting protection of persons or property
19.6Order for appointment of arbitrator
19.7No revocation of appointment
19.8Independence and impartiality of arbitrator
19.9Order revoking appointment
19.10Law applicable to substance of dispute
19.11Evidence
19.12Production and evidence from non-parties
19.13Powers of arbitrator
19.14Form, content and delivery of arbitration award
19.15Correction and interpretation of arbitration award
19.16Arbitration award binding
19.17Termination of arbitration
19.18Orders respecting arbitration awards
19.19Appeal
19.20Enforcement of arbitration awards
19.21Immunity
19.22Confidentiality
Part 3 — Parentage
Division 1 — General Matters
20Interpretation
21Void and voidable marriages
22Effect of Part
Division 2 — Determining Parentage
23Parentage to be determined by this Part
24Donor not automatically parent
25Parentage if adoption
26Parentage if no assisted reproduction
27Parentage if assisted reproduction
28Parentage if assisted reproduction after death
29Parentage if surrogacy arrangement
30Parentage if other arrangement
31Orders declaring parentage
32New evidence
33Parentage tests
Division 3 — Orders Made Outside British Columbia
34Definitions
35Recognition of Canadian extraprovincial declaratory orders
36Recognition of non-Canadian extraprovincial declaratory orders
Part 4 — Care of and Time with Children
Division 1 — Best Interests of Child
37Best interests of child
38Assessing family violence
Division 2 — Parenting Arrangements
39Parents are generally guardians
40Parenting arrangements
41Parental responsibilities
42Parenting time
43Exercise of parental responsibilities
44Agreements respecting parenting arrangements
45Orders respecting parenting arrangements
46Changes to child's residence if no agreement or order
47Changing, suspending or terminating orders respecting parenting arrangements
48Informal parenting arrangements
49Referral of questions to court
Division 3 — Guardianship
50Agreements respecting guardianship
51Orders respecting guardianship
52Who is entitled to notice
53Appointment of guardian in case of death
54Loss of guardian
55Appointment of standby guardian
56Limits on appointments
57Appointments must be accepted to take effect
Division 4 — Contact with a Child
58Agreements respecting contact
59Orders respecting contact
60Changing, suspending or terminating orders respecting contact
Division 5 — Compliance Respecting Parenting Time or Contact with a Child
61Denial of parenting time or contact
62When denial is not wrongful
63Failure to exercise parenting time or contact
64Orders to prevent removal of child
Division 6 — Relocation
65Definition and application
66Notice of relocation
67Resolving issues arising from relocation
68Child may be relocated unless guardian objects
69Orders respecting relocation
70If relocation permitted
71Not a change in circumstances
Division 7 — Extraprovincial Matters Respecting Parenting Arrangements
72Definitions and interpretation
73Purposes
74Determining whether to act under this Part
75Recognition of extraprovincial orders
76Superseding extraprovincial orders
77Wrongful removal of child
78Extraprovincial evidence
79Referral to court
Division 8 — International Child Abduction
80International child abduction
Part 5 — Property Division
Division 1 — General Rules
81Equal entitlement and responsibility
82Rights and remedies of third parties
Division 2 — Determining Family Property and Family Debt
83Interpretation
84Family property
85Excluded property
86Family debt
87Valuing family property and family debt
Division 3 — Before Agreement or Final Order is Made
88Orders under this Division
89Orders for interim distribution of property
90Temporary orders respecting family residence
91Temporary orders respecting protection of property
Division 4 — Dividing Family Property and Family Debt
92Agreements respecting property division
93Setting aside agreements respecting property division
94Orders respecting property division
95Unequal division by order
96Division of excluded property
97Giving effect to property division
Division 5 — Enforcing and Protecting Property Interests
98Definitions
99Filing in land title office
100Filing in personal property registry
101Orders for postponement, cancellation or discharge
102Donor of gift is party to agreement
103Enforceability of interest in property
104Rights under this Part
Division 6 — Jurisdiction and Choice of Law Rules
105Definitions and interpretation
106Determining whether to act under this Part
107Proper law of relationship
108Choice of law rules
109Extraprovincial property
Part 6 — Pension Division
Division 1 — General Matters
110Definitions
111Benefits to be determined in accordance with this Part
112Original agreements and orders
113Designation of limited members
Division 2 — Division of Benefits under Local Plans
114Benefits determined under defined contribution provision
115Benefits determined under benefit formula provision
116Local hybrid plans
117Local plans after pension commencement
Division 3 — Division of Other Benefits
118Annuities
119Supplemental plans
120Compensation for lost supplemental benefits
121Benefits for specified individuals
122Disability benefits
123Extraprovincial plans
Division 4 — Death of Member or Limited Member
124Death of member or limited member
125Entitlement to survivor benefits
126Waiving pension or survivor benefits
Division 5 — Other Matters Respecting Pension Division
127Agreements respecting division
128Determining compensation
129Reapportioning benefits
130Clarifying division of benefits
131Changing division of benefits in unusual circumstances
132Retroactive division of benefits
Division 6 — Administrative Matters
133Information from plan
134Agreement or order required for division of benefits
135Information required by plan
136Notice or waiver
137Implementing division of benefits
138Adjustment of member's pension
139Transfer of commuted value of separate pension or share
140Administrative costs
141Income tax
142Claim does not relieve duty to administer benefits
143Administrator's duties
144Trust of survivor and pension benefits
145No further entitlement after division of benefits
Part 7 — Child and Spousal Support
Division 1 — Definitions
146Definitions
Division 2 — Child Support
147Duty to provide support for child
148Agreements respecting child support
149Orders respecting child support
150Determining child support
151If parentage at issue
152Changing, suspending or terminating orders respecting child support
Division 3 — Child Support Service
153Definitions
154Establishment of child support service
155Recalculation of child support
156Correction of recalculation
157Changing, suspending or terminating recalculated amounts
158Information to be given to child support service
159Notices
Division 4 — Spousal Support
160Duty to provide support for entitled spouse
161Objectives of spousal support
162Determining spousal support
163Agreements respecting spousal support
164Setting aside agreements respecting spousal support
165Orders respecting spousal support
166Misconduct of spouse
167Changing, suspending or terminating orders respecting spousal support
168Review of spousal support
169Review of spousal support if pension benefits
Division 5 — General
170Matters that may be provided for in support orders
171Support obligations after death
172Separate support amounts required
173Priority of child support
174Reducing or cancelling arrears
Part 8 — Children's Property
175Definitions
176Guardian not automatically entitled to receive property
177Delivery of any property to trustee
178Delivery of small property
179Appointment of trustee by Supreme Court
180Subsequent applications respecting trustee
181When child's property must be delivered to child
Part 9 — Protection from Family Violence
182Definitions
183Orders respecting protection
184Whether to make protection order
185If child a family member
186Orders without notice
187Changing or terminating orders respecting protection
188Enforcing orders respecting protection
189Conflict between orders
190Rights not affected by Act
191Extraprovincial orders
Part 10 — Court Processes
Division 1 — Jurisdiction of Court Generally
192Supreme Court jurisdiction
193Provincial Court jurisdiction
194Overlapping court jurisdiction
194.1Joining proceedings
195Provincial Court enforcement of Supreme Court orders
196Certain actions must not be maintained
Division 2 — Procedural Matters
197Complying with duties respecting family dispute resolution
198Time limits
199Conduct of proceeding
200Applications may be heard in party's absence
201Legal capacity of children
202Court may decide how child's evidence is received
203Children's lawyer
204Intervention by Attorney General or other person
205Spouse compellable as witness
206Exclusion of the public or from publication
207Information accompanying orders
Division 3Standing in Indigenous Matters
208Guardianship of Nisa'a child
209Guardianship of treaty first nation child
210Property proceeding involving treaty lands
Division 4 — General Orders the Court May Make
211Orders respecting reports
212Orders respecting disclosure
213Enforcing orders respecting disclosure
214Orders respecting agreements
215Changing, suspending or terminating orders generally
216Court may make interim orders
217Interim orders before changing, suspending or terminating orders
218Terms and conditions of orders
219Persons may consent to order being made
220Court may make order on behalf of child
221Misuse of court process
Division 5 — Orders Respecting Conduct
222Purposes for which orders respecting conduct may be made
223Orders respecting case management
224Orders respecting dispute resolution, counselling and programs
225Orders restricting communications
226Orders respecting residence
227Other orders respecting conduct
228Enforcing orders respecting conduct
Division 6 — Enforcement Generally
229Service need not be proved
230Enforcing orders generally
231Extraordinary remedies
232Offence Act application
Division 7 — Appeals
233Appeals from Provincial Court orders
234Order under appeal remains in effect
Part 11 — Search Officers
235Definitions
236Search officers
237Searchable information
238Requesting and disclosing searchable information
239Requesting searchable information
240Disclosing searchable information
241Information-sharing agreements
242Orders respecting searchable information
243Restrictions on disclosure of information
244Offences
Part 12 — Regulations
245Regulations respecting family dispute resolution
246Regulations respecting pension division
247Regulations respecting child support
248General regulation-making powers
249Other regulation-making powers
Part 13 — Transitional Provisions
250Definition
251Transition — care of and time with children
252Transition — proceeding respecting property division
253Transition — pension benefits
254Transition — changing, suspending or terminating orders
255Transition — restraining orders
256Transition — regulations
Part 14 — Repeals, Related Amendment and Consequential Amendments
257-259 Repeals
260 Related Amendment
261-481 Consequential Amendments
482Commencement
Schedule

Part 1 — Interpretation

Definitions

1   In this Act:

"child", except in Parts 3 [Parentage] and 7 [Child and Spousal Support] and section 247 [regulations respecting child support], means a person who is under 19 years of age;

"child support guidelines" means the child support guidelines, provided for under section 247, for calculating child support;

"contact with a child" or "contact with the child" means contact between a child and a person, other than the child's guardian, the terms of which are set out in an agreement or order;

"court" means

(a) the Supreme Court, or

(b) to the extent that it has jurisdiction to make an order, the Provincial Court;

"excluded property" means property that would otherwise be family property but is excluded under section 85 [excluded property];

"family debt" means family debt as described in section 86 [family debt];

"family dispute resolution" means a process used by parties to a family law dispute to attempt to resolve one or more of the disputed issues outside court, and includes

(a) assistance from a family justice counsellor under Division 2 [Family Justice Counsellors] of Part 2,

(b) the services of a parenting coordinator under Division 3 [Parenting Coordinators] of Part 2,

(c) mediation, arbitration, collaborative family law and other processes, and

(d) prescribed processes;

"family dispute resolution professional" means any of the following:

(a) a family justice counsellor;

(b) a parenting coordinator;

(c) a lawyer advising a party in relation to a family law dispute;

(d) a mediator conducting a mediation in relation to a family law dispute, if the mediator meets the requirements set out in the regulations;

(e) an arbitrator conducting an arbitration in relation to a family law dispute, if the arbitrator meets the requirements set out in the regulations;

(f) a person within a class of prescribed persons;

"family justice counsellor" means a person appointed as a family justice counsellor under section 10 (1) [family justice counsellors];

"family law dispute" means a dispute respecting a matter to which this Act relates;

"family member", with respect to a person, means

(a) the person's spouse or former spouse,

(b) a person with whom the person is living, or has lived, in a marriage-like relationship,

(c) a parent or guardian of the person's child,

(d) a person who lives with, and is related to,

(i) the person, or

(ii) a person referred to in any of paragraphs (a) to (c), or

(e) the person's child,

and includes a child who is living with, or whose parent or guardian is, a person referred to in any of paragraphs (a) to (e);

"family property" means family property under section 84 [family property];

"family violence" includes

(a) physical abuse of a family member, including forced confinement or deprivation of the necessities of life, but not including the use of reasonable force to protect oneself or others from harm,

(b) sexual abuse of a family member,

(c) attempts to physically or sexually abuse a family member,

(d) psychological or emotional abuse of a family member, including

(i) intimidation, harassment, coercion or threats, including threats respecting other persons, pets or property,

(ii) unreasonable restrictions on, or prevention of, a family member's financial or personal autonomy,

(iii) stalking or following of the family member, and

(iv) intentional damage to property, and

(e) in the case of a child, direct or indirect exposure to family violence;

"guardian" means a guardian under section 39 [parents are generally guardians] and Division 3 [Guardianship] of Part 4;

"parent" means a parent under Part 3 [Parentage];

"parental responsibilities" means one or more of the parental responsibilities listed in section 41 [parental responsibilities];

"parenting arrangements" means arrangements respecting the allocation of parental responsibilities or parenting time, or both;

"parenting coordinator" means a person who may act as a parenting coordinator under section 14 [parenting coordinators];

"parenting time" means parenting time as described in section 42 [parenting time];

"police officer" means a person who, under the Police Act,

(a) is a provincial constable or municipal constable or has the powers of a provincial constable or municipal constable, or

(b) is a constable other than a constable referred to in paragraph (a) and is within a prescribed class of constables;

"spouse" means a person who is a spouse within the meaning of section 3 [spouses and relationships between spouses];

"written agreement" means an agreement that is in writing and signed by all parties.

General interpretation

2   (1) A reference to an agreement or order

(a) is to be read as a reference to that part of an agreement or order that is relevant to the subject matter of the provision, of this Act or of the regulations made under it, in which the reference is made, and

(b) includes part of an agreement or order.

(2) A reference to a child's parent or guardian is to be read, as the context requires, as a reference to

(a) each parent or guardian of the child, or

(b) the parent or guardian who is the subject of the provision in which the reference is made.

Spouses and relationships between spouses

3   (1) A person is a spouse for the purposes of this Act if the person

(a) is married to another person, or

(b) has lived with another person in a marriage-like relationship, and

(i) has done so for a continuous period of at least 2 years, or

(ii) except in Parts 5 [Property Division] and 6 [Pension Division], has a child with the other person.

(2) A spouse includes a former spouse.

(3) A relationship between spouses begins on the earlier of the following:

(a) the date on which they began to live together in a marriage-like relationship;

(b) the date of their marriage.

(4) For the purposes of this Act,

(a) spouses may be separated despite continuing to live in the same residence, and

(b) the court may consider, as evidence of separation,

(i) communication, by one spouse to the other spouse, of an intention to separate permanently, and

(ii) an action, taken by a spouse, that demonstrates the spouse's intention to separate permanently.

Part 2 — Resolution of Family Law Disputes

Division 1 — Resolution Out of Court Preferred

Purposes of Part

4   The purposes of this Part are as follows:

(a) to ensure that parties to a family law dispute are informed of the various methods available to resolve the dispute;

(b) to encourage parties to a family law dispute to resolve the dispute through agreements and appropriate family dispute resolution before making an application to a court;

(c) to encourage parents and guardians to

(i) resolve conflict other than through court intervention, and

(ii) create parenting arrangements and arrangements respecting contact with a child that is in the best interests of the child.

Duty to disclose

5   (1) A party to a family law dispute must provide to the other party full and true information for the purposes of resolving a family law dispute.

(2) A person must not use information obtained under this section except as necessary to resolve a family law dispute.

Agreements respecting family law disputes generally

6   (1) Subject to this Act, 2 or more persons may make an agreement

(a) to resolve a family law dispute, or

(b) respecting

(i) a matter that may be the subject of a family law dispute in the future,

(ii) the means of resolving a family law dispute or a matter that may be the subject of a family law dispute in the future, including the type of family dispute resolution to be used, or

(iii) the implementation of an agreement or order.

(2) A single agreement may be made respecting one or more matters.

(3) Subject to this Act, an agreement respecting a family law dispute is binding on the parties.

(4) Subsection (3) applies whether or not

(a) there is consideration,

(b) the agreement has been made with the involvement of a family dispute resolution professional, or

(c) the agreement is filed with a court.

(5) A child who is a parent or spouse may enter into and be bound by an agreement, including an agreement respecting the division of property or debt.

Replacing agreements

7   If an agreement changes a previous agreement,

(a) each part of the previous agreement that is changed is deemed to have been revoked, and

(b) the remainder of the previous agreement, if any, remains effective.

Duties of family dispute resolution professionals

8   (1) A family dispute resolution professional consulted by a party to a family law dispute must assess, in accordance with the regulations, whether family violence may be present, and if it appears to the family dispute resolution professional that family violence is present, the extent to which the family violence may adversely affect

(a) the safety of the party or a family member of that party, and

(b) the ability of the party to negotiate a fair agreement.

(2) Having regard to the assessment made under subsection (1), a family dispute resolution professional consulted by a party to a family law dispute must

(a) discuss with the party the advisability of using various types of family dispute resolution to resolve the matter, and

(b) inform the party of the facilities and other resources, known to the family dispute resolution professional, that may be available to assist in resolving the dispute.

(3) A family dispute resolution professional consulted by a party to a family law dispute must advise the party that agreements and orders respecting the following matters must be made in the best interests of the child only:

(a) guardianship;

(b) parenting arrangements;

(c) contact with a child.

Duties of parties respecting family dispute resolution

9   The parties to a family law dispute must comply with any requirements set out in the regulations respecting mandatory family dispute resolution or prescribed procedures.

Division 2 — Family Justice Counsellors

Family justice counsellors

10   (1) Subject to the regulations, the minister by order may appoint as family justice counsellors persons employed under the Public Service Act.

(2) A family justice counsellor may provide the following assistance to a person:

(a) information respecting a family law dispute;

(b) family dispute resolution, including respecting

(i) guardianship,

(ii) parenting arrangements,

(iii) contact with a child, and

(iv) child and spousal support;

(c) referrals to other service providers or agencies.

(2.1) Subject to a court order, a family justice counsellor may grant to a person an exemption from a requirement to participate in all or part of a prescribed process.

(3) A family justice counsellor may assist the court under section 211 [orders respecting reports].

Confidentiality of information

11   (1) Except in accordance with the regulations,

(a) a family justice counsellor must not disclose information obtained in the course of providing assistance under section 10 (2) [family justice counsellors], and

(b) a person within a prescribed class of persons must not disclose information obtained from, or in the course of assisting, a family justice counsellor.

(2) With respect to personal information, this section applies despite the Freedom of Information and Protection of Privacy Act, other than section 44 (1) (b), (2), (2.1) and (3) of that Act.

Family justice counsellors not to be compelled

12   (1) Except as permitted under the regulations, the following persons must not be compelled to disclose, or to testify in any proceeding respecting, information obtained in the course of providing assistance under section 10 (2) [family justice counsellors]:

(a) a family justice counsellor;

(b) a person within a class of persons prescribed for the purposes of section 11 (1) (b) [confidentiality of information].

(2) For greater certainty, subsection (1) applies to the notes and records of the persons referred to in that subsection.

Information obtained while receiving assistance

13   (1) Subject to subsection (2) of this section, information obtained by a party during

(a) mediation, or

(b) negotiation or settlement discussions

under section 10 (2) (b) [family justice counsellors] is confidential and must not be used by the party in a proceeding respecting a family law dispute.

(2) Subsection (1) does not apply

(a) if the other party consents to the use of the information,

(b) to information, including a report, that is provided by a person who is not a party to the family law dispute, regardless of whether the information

(i) was obtained at the expense of either or both parties,

(ii) contains expert advice or opinions, or

(iii) was provided solely for the purposes of receiving assistance under section 10 (2) (b),

(c) in any circumstance under which the information is compellable by law, or

(d) to a written agreement between the parties

(i) to mediate, or

(ii) that resolves one or more issues relating to a family law dispute.

Division 3 — Parenting Coordinators

Parenting coordinators

14   A person meeting the requirements set out in the regulations may be a parenting coordinator.

When parenting coordinators may assist

15   (1) In this Division, "parenting coordination agreement or order" means a written agreement or an order to use a parenting coordinator.

(2) A parenting coordinator may assist only

(a) if there is a parenting coordination agreement or order in place, and

(b) for the purpose of implementing an agreement or order respecting parenting arrangements, contact with a child or other prescribed matters.

(3) A parenting coordination agreement or order may be made at the same time as, or after, an agreement or order respecting parenting arrangements, contact with a child or other prescribed matters is made.

(4) A parenting coordinator's authority to act ends 2 years after the parenting coordination agreement or order is made, unless the parenting coordination agreement or order specifies that the parenting coordinator's authority is to end on an earlier date or on the occurrence of an earlier event.

(5) Despite subsection (4), a parenting coordination agreement or order may be extended by a further parenting coordination agreement or order, but each extension may be for no more than 2 years.

(6) Despite subsection (4), a parenting coordination agreement or order may be terminated at any time as follows:

(a) in the case of an agreement, by agreement of the parties or by an order made on application by either of the parties;

(b) in the case of an order, by an order made on application by either of the parties;

(c) in any case, by the parenting coordinator, on giving notice to the parties and, if the parenting coordinator is acting under an order, to the court.

Information sharing for parenting coordination

16   A party must, for the purposes of facilitating parenting coordination, provide the parenting coordinator with

(a) information requested by the parenting coordinator, and

(b) authorization to request and receive information, respecting a child or a party, from a person who is not a party.

Assistance from parenting coordinators

17   A parenting coordinator may assist the parties in the following manner:

(a) by building consensus between the parties, including by

(i) creating guidelines respecting how an agreement or order will be implemented,

(ii) creating guidelines respecting communication between the parties,

(iii) identifying, and creating strategies for resolving, conflicts between the parties, and

(iv) providing information respecting resources available to the parties for the purposes of improving communication or parenting skills;

(b) by making determinations respecting the matters prescribed for the purposes of section 18 [determinations by parenting coordinators].

Determinations by parenting coordinators

18   (1) A parenting coordinator

(a) may make determinations respecting prescribed matters only, subject to any limits or conditions set out in the regulations,

(b) must not make a determination respecting any matter excluded by the parenting coordination agreement or order, even if the matter is a prescribed matter, and

(c) must not make a determination that would affect the division or possession of property, or the division of family debt.

(2) In making a determination respecting parenting arrangements or contact with a child, a parenting coordinator must consider the best interests of the child only, as set out in section 37 [best interests of child].

(3) A parenting coordinator may make a determination at any time.

(4) A parenting coordinator may make an oral determination, but must put the determination into writing and sign it as soon as practicable after the oral determination is made.

(5) Subject to section 19 [changing or setting aside determinations], a determination

(a) is binding on the parties, effective on the date the determination is made or on a later date specified by the parenting coordinator, and

(b) if filed in the court, is enforceable under this Act as if it were an order of the court.

Changing or setting aside determinations

19   (1) On application by a party to a determination made by a parenting coordinator, the court may change or set aside the determination if satisfied that the parenting coordinator

(a) acted outside his or her authority, or

(b) made an error of law or of mixed law and fact.

(2) If the court sets aside a determination, the court may make any order that the court may make under this Act to resolve a dispute between the parties in relation to the subject matter of the determination.

(3) If the court does not set aside a determination, the court may make any order that the court may make under this Act to enforce compliance with the determination.

Division 4Arbitration

Definition

19.1   In this Division, "arbitration agreement" means an agreement described in section 19.2 (1).

Arbitration agreements respecting family law disputes

19.2   (1) Subject to this Act, 2 or more persons may make an agreement to resolve, by arbitration, a family law dispute or a matter that may be the subject of a family law dispute in the future.

(2) Subject to subsection (3),

(a) an arbitration agreement may be made only after the dispute to be arbitrated has arisen, and

(b) if the requirement under paragraph (a) is not met, the arbitration agreement and any arbitration award arising from it are not enforceable.

(3) Subsection (2) does not apply in relation to any of the following that provides for arbitration of a future dispute respecting a matter provided for in the order, arbitration award or agreement:

(a) an order made under this Act;

(b) an arbitration award respecting a family law dispute;

(c) an agreement respecting the implementation of an order, an arbitration award or an agreement to resolve a family law dispute.

(4) Subject to this Act, an arbitration agreement may include provisions respecting any of the following:

(a) the name of the arbitrator or a procedure for selecting an arbitrator;

(b) the matters or disputes that are to be submitted to arbitration;

(c) the law applicable to the substance of a dispute or that a matter in dispute be decided on the basis of equitable grounds, grounds of conscience or some other basis;

(d) the procedures for conducting the arbitration, including the following:

(i) the form and manner in which the parties are to identify the matters or disputes to be submitted to arbitration and the positions of the parties in relation to those matters or disputes;

(ii) the process for financial disclosure by the parties;

(iii) the form and manner in which evidence and argument are presented;

(iv) the process for the examination of witnesses;

(v) the use of expert evidence;

(vi) the form of an arbitration award;

(e) the authority of the arbitrator in respect of the following matters:

(i) the administration of an oath or affirmation;

(ii) issuance of arbitration awards, including interim awards;

(iii) conducting the arbitration in the absence of one or more of the parties;

(iv) costs of the arbitration, including awarding costs against a party.

Setting aside arbitration agreements

19.3   (1) On application by a party to an arbitration agreement, the Supreme Court may set aside or replace with an order made under this section all or part of the arbitration agreement if satisfied that one or more of the following circumstances existed when the parties entered into the agreement:

(a) a party took improper advantage of the other party's vulnerability, including the other party's ignorance, need or distress;

(b) a party did not understand the nature or consequences of the agreement;

(c) other circumstances existed that would, under the common law, cause all or part of a contract to be voidable.

(2) The Supreme Court may decline to act under subsection (1) if, on consideration of all of the evidence, the Supreme Court would not replace the arbitration agreement with an order that is substantially different from the terms set out in the agreement.

Stay of court proceedings

19.4   (1) If a party starts legal proceedings in a court in respect of a matter agreed to be submitted to arbitration, a party to the legal proceedings may, before submitting the party's first response on the substance of the dispute, apply to that court to stay the legal proceedings.

(2) In an application under subsection (1), the court must make an order staying the legal proceedings unless it determines that the arbitration agreement is void, inoperative or incapable of being performed.

Orders respecting protection of persons or property

19.5   It is not incompatible with an arbitration agreement for a party, before or during an arbitration, to apply to a court for an order referred to in paragraph (a) or (b) or to enforce any of the following orders, and for the court to make or enforce the order, as applicable:

(a) an order under section 91 [temporary orders respecting protection of property];

(b) an order under Part 9 [Protection from Family Violence];

(c) an order of a court or tribunal, made under an enactment of any jurisdiction, that is similar in nature to an order referred to in paragraph (b).

Order for appointment of arbitrator

19.6   On application by a party, the Supreme Court may appoint an arbitrator if satisfied that any of the following apply:

(a) the arbitrator named in the arbitration agreement is, for any reason, unable to act;

(b) the procedure for selecting an arbitrator set out in the arbitration agreement does not, for any reason, result in the appointment of an arbitrator;

(c) the arbitration agreement does not name an arbitrator or set out a procedure for selecting an arbitrator and the parties fail to agree on the appointment of an arbitrator.

No revocation of appointment

19.7   Subject to section 19.9, a party may not revoke the appointment of an arbitrator unless all other parties consent.

Independence and impartiality of arbitrator

19.8   (1) An arbitrator must be independent of the parties.

(2) An arbitrator must be impartial and act impartially.

(3) If a person is approached in connection with the person's possible appointment as an arbitrator, the person must, without delay, disclose any circumstances likely to give rise to justifiable doubts as to the person's independence or impartiality.

(4) An arbitrator, from the time of the arbitrator's appointment and throughout the arbitration, must, without delay, disclose to the parties any circumstances referred to in subsection (3).

Order revoking appointment

19.9   (1) On application by a party, the Supreme Court may revoke the appointment of an arbitrator if satisfied that there are justifiable doubts as to the arbitrator's independence or impartiality.

(2) For the purposes of subsection (1), there are justifiable doubts as to the arbitrator's independence or impartiality only if there is a real danger of bias on the part of the arbitrator in conducting the arbitration.

Law applicable to substance of dispute

19.10   (1) In an arbitration of a family law dispute, the law applicable to the substance of the dispute is the law designated by the parties.

(2) If the parties have not designated the law applicable to the substance of the dispute, the arbitrator may choose the applicable law.

(3) An arbitrator must decide the substance of a family law dispute in accordance with the applicable law, including any equitable rights or defences available under that law.

(4) An arbitrator may grant relief or remedies under the applicable law, including orders of specific performance, injunctions, declarations or other equitable remedies available under that law.

(5) Despite subsection (3), if the arbitration agreement provides that the matter in dispute be decided on equitable grounds, grounds of conscience or some other basis, the arbitrator must decide the matter on that basis.

(6) Despite subsections (1) to (5) and any agreement of the parties, an arbitrator, in making an arbitration award that deals with a matter referred to in

(a) any of Divisions 1 to 5 of Part 4, must consider the best interests of the child, as set out in section 37 [best interests of child] only, and

(b) Division 6 of Part 4, must consider, in addition to section 37, the factors set out in section 69 (4) (a) [orders respecting relocation].

Evidence

19.11   (1) The arbitrator may decide all evidentiary matters, including the admissibility, relevance, materiality and weight of any evidence, and may draw such inferences as the circumstances justify.

(2) Unless otherwise agreed by the parties, the arbitrator is not required to apply the law of evidence other than the law of privilege.

Production and evidence from non-parties

19.12   (1) If, on application by a party or on the arbitrator's own initiative, an arbitrator determines that a person who is not a party should give evidence or produce records, the arbitrator may

(a) issue a subpoena to a person in British Columbia requiring the person to give evidence or produce for inspection records in the person's possession or control, or

(b) request a court of competent jurisdiction to assist the arbitrator by requiring a person in or outside British Columbia to give evidence or produce for inspection records in the person's possession or control.

(2) A subpoena under subsection (1) (a) must set out, and a request under subsection (1) (b) must propose, the following, as applicable:

(a) how, where and when the person is to give evidence;

(b) the records the person is to produce;

(c) how, where and when the records are to be produced and copied;

(d) conditions for the payment of the expenses of the person named in the subpoena or request.

(3) A subpoena under subsection (1) (a) has the same effect as if it were issued in a court proceeding.

(4) A subpoena under subsection (1) (a) may be set aside on application by the person named in the subpoena to the arbitrator or the Supreme Court.

Powers of arbitrator

19.13   Subject to this Act and any agreement of the parties, an arbitrator may

(a) establish procedures and make procedural orders for the conduct of the arbitration and, without limiting that, may administer an oath or affirmation,

(b) make an interim arbitration award, and

(c) at any time during the arbitration, make a costs award and make costs payable at any time.

Form, content and delivery of arbitration award

19.14   (1) An arbitration award must be in writing, signed by the arbitrator and delivered to the parties.

(2) The arbitrator must, on request of a party, deliver an original signed copy of the arbitration award to each party.

(3) An arbitrator must provide reasons for an arbitration award, unless

(a) the parties to the arbitration have agreed that no reasons are to be provided, or

(b) the award is an arbitration award on agreed terms.

(4) An arbitration award must state the place of arbitration and the date on which the award is made.

Correction and interpretation of arbitration award

19.15   (1) Within 30 days after receipt of an arbitration award, unless another period of time has been agreed to by the parties,

(a) a party may request the arbitrator to correct in the arbitration award any computation, clerical or typographical errors or any other errors of a similar nature, and

(b) a party may, if agreed by the parties, request the arbitrator to give an interpretation of a specific point or part of the arbitration award.

(2) If the arbitrator considers the request made under subsection (1) to be justified, the arbitrator must make the correction or give the interpretation within 30 days after receipt of the request, and the interpretation forms part of the arbitration award.

(3) The arbitrator may correct, on the arbitrator's own initiative, any type of error described in subsection (1) (a) within 30 days after the date of the arbitration award.

(4) The arbitrator may, if necessary, extend the period of time within which the arbitrator must make a correction or give an interpretation under subsection (2).

(5) Section 19.14 applies to a correction or interpretation of an arbitration award made under this section.

Arbitration award binding

19.16   Subject to this Act, an arbitration award is final and binding on all the parties to the award.

Termination of arbitration

19.17   (1) An arbitration of a family law dispute is terminated by the final arbitration award or by an order of the arbitrator under subsection (2).

(2) The arbitrator must issue an order for the termination of the arbitration if

(a) the parties agree on the termination of the arbitration, or

(b) the arbitrator finds that the continuation of the arbitration has for any other reason become unnecessary or impossible.

Orders respecting arbitration awards

19.18   (1) On application by a party, the Supreme Court may change or set aside an arbitration award if satisfied that any of the following apply:

(a) there are justifiable doubts as to the arbitrator's independence or impartiality;

(b) a party was not provided a reasonable opportunity to be heard respecting the award;

(c) the award was obtained by fraud or duress;

(d) the award deals with a dispute not falling within the terms of the arbitration agreement or contains a decision on a matter that is beyond the scope of the arbitration agreement;

(e) the arbitrator acted outside the arbitrator's authority.

(2) For the purposes of subsection (1) (a), there are justifiable doubts as to the arbitrator's independence or impartiality only if there was a real danger of bias on the part of the arbitrator in conducting the arbitration.

(3) On application by a party, the Supreme Court may change, suspend or terminate all or part of an arbitration award for any reason for which an order in relation to the same matter could be changed, suspended or terminated under this Act.

Appeal

19.19   (1) A party to an arbitration may appeal to the Supreme Court an arbitration award on any question of law or on any question of mixed law and fact.

(2) The time limit for starting an appeal is 40 days, beginning on the day after the arbitration award is received by the party.

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

(a) confirm, amend or set aside the arbitration award;

(b) remit the arbitration award to the arbitrator together with the court's opinion on the question of law that was the subject of the appeal.

Enforcement of arbitration awards

19.20   (1) Subject to this Act, if an arbitration award is filed in the court, the award is enforceable under this Act as if it were an order of the court.

(2) Despite any agreement of the parties to a family law dispute, a provision of an arbitration award that is inconsistent with this Act or the Divorce Act (Canada) is not enforceable.

Immunity

19.21   (1) Subject to subsection (2), no legal proceeding for damages lies or may be commenced or maintained against an arbitrator because of anything done or omitted

(a) in the performance or intended performance of any duty under this Division or under an arbitration agreement, or

(b) in the exercise or intended exercise of any power under this Division or under an arbitration agreement.

(2) Subsection (1) does not apply to an arbitrator in relation to anything done or omitted in bad faith.

Confidentiality

19.22   (1) Subject to this Act and any agreement of the parties, the parties and the arbitrator must not disclose proceedings, evidence, documents and information in connection with the arbitration that are not otherwise in the public domain.

(2) Subsection (1) does not apply if disclosure is

(a) required by law,

(b) required for the purposes of a proceeding under this Act, or

(c) authorized by a court order.

Part 3 — Parentage

Division 1 — General Matters

Interpretation

20   (1) In this Part:

"assisted reproduction" means a method of conceiving a child other than by sexual intercourse;

"birth mother" means the person who gives birth to, or is delivered of, a child, regardless of whether her human reproductive material was used in the child's conception;

"donor" means a person who, for the purposes of assisted reproduction other than for the person's own reproductive use, provides

(a) his or her own human reproductive material, from which a child is conceived, or

(b) an embryo created through the use of his or her human reproductive material;

"embryo" means a human organism during the first 56 days of its development following fertilization or creation, excluding any time during which its development has been suspended, and includes any cell derived from such an organism that is used for the purpose of creating a human being;

"human reproductive material" means a sperm, an ovum or another human cell or human gene, and includes a part of any of them;

"intended parent" or "intended parents" means a person who intends, or 2 persons who are married or in a marriage-like relationship who intend, to be a parent of a child and, for that purpose, the person makes or the 2 persons make an agreement with another person before the child is conceived that

(a) the other person will be the birth mother of a child conceived through assisted reproduction, and

(b) the person, or the 2 persons, will be the child's parent or parents on the child's birth, regardless of whether that person's or those persons' human reproductive material was used in the child's conception.

(2) A child born as a result of assisted reproduction is deemed to have been conceived on the day the human reproductive material or embryo was implanted in the birth mother.

Void and voidable marriages

21   (1) For the purposes of this Part, if

(a) 2 persons go through a form of marriage to each other, with at least one of them doing so in good faith,

(b) the 2 persons live together during the marriage, and

(c) the marriage is void,

the 2 persons are deemed to have been married during the period they were living together, and the marriage is deemed to have ended when the persons stopped living together.

(2) For the purposes of this Part, if a voidable marriage is declared a nullity, the persons who went through the form of marriage are deemed to be married until the date of the declaratory order of nullity.

Effect of Part

22   This Part does not affect a disposition of property under an enactment or instrument before the date this section comes into force.

Division 2 — Determining Parentage

Parentage to be determined by this Part

23   (1) For all purposes of the law of British Columbia,

(a) a person is the child of his or her parents,

(b) a child's parent is the person determined under this Part to be the child's parent, and

(c) the relationship of parent and child and kindred relationships flowing from that relationship must be as determined under this Part.

(2) For the purposes of an instrument or enactment that refers to a person, described in terms of his or her relationship to another person by birth, blood or marriage, the reference must be read as a reference to, and read to include, a person who comes within the description because of the relationship of parent and child as determined under this Part.

Donor not automatically parent

24   (1) If a child is born as a result of assisted reproduction, a donor who provided human reproductive material or an embryo for the assisted reproduction of the child

(a) is not, by reason only of the donation, the child's parent,

(b) may not be declared by a court, by reason only of the donation, to be the child's parent, and

(c) is the child's parent only if determined, under this Part, to be the child's parent.

(2) For the purposes of an instrument or enactment that refers to a person, described in terms of his or her relationship to another person by birth, blood or marriage, the reference must not be read as a reference to, nor read to include, a person who is a donor unless the person comes within the description because of the relationship of parent and child as determined under this Part.

Parentage if adoption

25   If a child is adopted, sections 26 to 30 of this Act do not apply and the child's parents are as set out in the Adoption Act.

Parentage if no assisted reproduction

26   (1) On the birth of a child not born as a result of assisted reproduction, the child's parents are the birth mother and the child's biological father.

(2) For the purposes of this section, a male person is presumed, unless the contrary is proved or subsection (3) applies, to be a child's biological father in any of the following circumstances:

(a) he was married to the child's birth mother on the day of the child's birth;

(b) he was married to the child's birth mother and, within 300 days before the child's birth, the marriage was ended

(i) by his death,

(ii) by a judgment of divorce, or

(iii) as referred to in section 21 [void and voidable marriages];

(c) he married the child's birth mother after the child's birth and acknowledges that he is the father;

(d) he was living with the child's birth mother in a marriage-like relationship within 300 days before, or on the day of, the child's birth;

(e) he, along with the child's birth mother, has acknowledged that he is the child's father by having signed a statement under section 3 of the Vital Statistics Act;

(f) he has acknowledged that he is the child's father by having signed an agreement under section 20 of the Child Paternity and Support Act, R.S.B.C. 1979, c. 49.

(3) If more than one person may be presumed to be a child's biological father, no presumption of paternity may be made.

Parentage if assisted reproduction

27   (1) This section applies if

(a) a child is conceived through assisted reproduction, regardless of who provided the human reproductive material or embryo used for the assisted reproduction, and

(b) section 29 [parentage if surrogacy arrangement] does not apply.

(2) On the birth of a child born as a result of assisted reproduction in the circumstances described in subsection (1), the child's birth mother is the child's parent.

(3) Subject to section 28 [parentage if assisted reproduction after death], in addition to the child's birth mother, a person who was married to, or in a marriage-like relationship with, the child's birth mother when the child was conceived is also the child's parent unless there is proof that, before the child was conceived, the person

(a) did not consent to be the child's parent, or

(b) withdrew the consent to be the child's parent.

Parentage if assisted reproduction after death

28   (1) This section applies if

(a) a child is conceived through assisted reproduction,

(b) the person who provided the human reproductive material or embryo used in the child's conception

(i) did so for that person's own reproductive use, and

(ii) died before the child's conception, and

(c) there is proof that the person

(i) gave written consent to the use of the human reproductive material or embryo, after that person's death, by a person who was married to, or in a marriage-like relationship with, the deceased person when that person died,

(ii) gave written consent to be the parent of a child conceived after the person's death, and

(iii) did not withdraw the consent referred to in subparagraph (i) or (ii) before the person's death.

(2) On the birth of a child born as a result of assisted reproduction in the circumstances described in subsection (1), the child's parents are

(a) the deceased person, and

(b) regardless of whether he or she also provided human reproductive material or the embryo used for the assisted reproduction, the person who was married to, or in a marriage-like relationship with, the deceased person when that person died.

Parentage if surrogacy arrangement

29   (1) In this section, "surrogate" means a birth mother who is a party to an agreement described in subsection (2).

(2) This section applies if,

(a) before a child is conceived through assisted reproduction, a written agreement is made between a potential surrogate and an intended parent or the intended parents, and

(b) the agreement provides that the potential surrogate will be the birth mother of a child conceived through assisted reproduction and that, on the child's birth,

(i) the surrogate will not be a parent of the child,

(ii) the surrogate will surrender the child to the intended parent or intended parents, and

(iii) the intended parent or intended parents will be the child's parent or parents.

(3) On the birth of a child born as a result of assisted reproduction in the circumstances described in subsection (2), a person who is an intended parent under the agreement is the child's parent if all of the following conditions are met:

(a) before the child is conceived, no party to the agreement withdraws from the agreement;

(b) after the child's birth,

(i) the surrogate gives written consent to surrender the child to an intended parent or the intended parents, and

(ii) an intended parent or the intended parents take the child into his or her, or their, care.

(4) For the purposes of the consent required under subsection (3) (b) (i), the Supreme Court may waive the consent if the surrogate

(a) is deceased or incapable of giving consent, or

(b) cannot be located after reasonable efforts to locate her have been made.

(5) If an intended parent dies, or the intended parents die, after the child is conceived, the deceased intended parent is, or intended parents are, the child's parent or parents if the surrogate gives written consent to surrender the child to the personal representative or other person acting in the place of the deceased intended parent or intended parents.

(6) An agreement under subsection (2) to act as a surrogate or to surrender a child is not consent for the purposes of subsection (3) (b) (i) or (5), but may be used as evidence of the parties' intentions with respect to the child's parentage if a dispute arises after the child's birth.

(7) Despite subsection (2) (a), the child's parents are the deceased person and the intended parent if

(a) the circumstances set out in section 28 (1) [parentage if assisted reproduction after death] apply,

(b) before a child is conceived through assisted reproduction, a written agreement is made between a potential surrogate and a person who was married to, or in a marriage-like relationship, with the deceased person, and

(c) subsections (2) (b) and (3) (a) and (b) apply.

Parentage if other arrangement

30   (1) This section applies if there is a written agreement that

(a) is made before a child is conceived through assisted reproduction,

(b) is made between

(i) an intended parent or the intended parents and a potential birth mother who agrees to be a parent together with the intended parent or intended parents, or

(ii) the potential birth mother, a person who is married to or in a marriage-like relationship with the potential birth mother, and a donor who agrees to be a parent together with the potential birth mother and a person married to or in a marriage-like relationship with the potential birth mother, and

(c) provides that

(i) the potential birth mother will be the birth mother of a child conceived through assisted reproduction, and

(ii) on the child's birth, the parties to the agreement will be the parents of the child.

(2) On the birth of a child born as a result of assisted reproduction in the circumstances described in subsection (1), the child's parents are the parties to the agreement.

(3) If an agreement described in subsection (1) is made but, before a child is conceived, a party withdraws from the agreement or dies, the agreement is deemed to be revoked.

Orders declaring parentage

31   (1) Subject to subsection (5), if there is a dispute or any uncertainty as to whether a person is or is not a parent under this Part, either of the following, on application, may make an order declaring whether a person is a child's parent:

(a) the Supreme Court;

(b) if such an order is necessary to determine another family law dispute over which the Provincial Court has jurisdiction, the Provincial Court.

(2) If an application is made under subsection (1), the following persons must be served with notice of the application:

(a) the child, if the child is 16 years of age or older;

(b) each guardian of the child;

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

(d) each person, known to the applicant, who claims or is alleged to be a parent of the child;

(e) any other person to whom the court considers it appropriate to provide notice, including a child under 16 years of age.

(3) To the extent possible, an order under this section must give effect to the rules respecting the determination of parentage set out under this Part.

(4) The court may make an order under this section despite the death of the child or person who is the subject of the application, or both.

(5) An application may not be made respecting a child who has been adopted.

New evidence

32   (1) This section applies if evidence becomes available that was not available at the time an application for a declaration of parentage under section 31 [orders declaring parentage] was heard.

(2) On application, a court may confirm or set aside an order made under section 31, or make a new order under that section.

(3) The setting aside of an order under subsection (2) of this section does not affect

(a) rights or duties that have already been exercised, or

(b) property interests that have already been distributed.

Parentage tests

33   (1) In this section, "parentage tests" are tests used to identify inheritable characteristics, and include

(a) human leukocyte antigen tests,

(b) tests of the deoxyribonucleic acid (DNA), and

(c) any other test the court considers appropriate.

(2) On application by a party to a proceeding under this Part,

(a) the Supreme Court, or

(b) if necessary for the purposes of making an order under section 31 [orders declaring parentage], the Provincial Court,

may order a person, including a child, to have a tissue sample or blood sample, or both, taken by a medical practitioner or other qualified person for the purpose of conducting parentage tests.

(3) An order under subsection (2) of this section may require a party to pay all or part of the cost of the parentage tests.

(4) If a person named in an order under subsection (2) of this section fails to comply with the order, the court may draw from that failure any inference that the court considers appropriate.

Division 3 — Orders Made Outside British Columbia

Definitions

34   In this Division:

"extraprovincial declaratory order" means an order of an extraprovincial tribunal that declares whether a person is a child's parent;

"extraprovincial tribunal" means a court or tribunal, outside British Columbia, having authority to make orders declaring whether a person is a child's parent.

Recognition of Canadian extraprovincial declaratory orders

35   (1) Subject to subsection (3), a court must recognize an extraprovincial declaratory order made in Canada.

(2) On recognition by a court, an extraprovincial declaratory order made in Canada has the same effect as if it were an order made under section 31 [orders declaring parentage].

(3) A court may decline to recognize an extraprovincial declaratory order made in Canada and make an order under section 31, if

(a) evidence becomes available that was not available during the proceeding at which the extraprovincial declaratory order was made, or

(b) the court is satisfied that the extraprovincial declaratory order was obtained by fraud or duress.

Recognition of non-Canadian extraprovincial declaratory orders

36   (1) Subject to subsection (3), a court must recognize an extraprovincial declaratory order made outside Canada if, at the time the extraprovincial declaratory order or the application for the order was made, the child or at least one of the child's parents

(a) was habitually resident in the jurisdiction of the extraprovincial tribunal, or

(b) had a real and substantial connection with the jurisdiction of the extraprovincial tribunal.

(2) On recognition by a court, an extraprovincial declaratory order made outside Canada has the same effect as if it were an order made under section 31 [orders declaring parentage].

(3) A court may decline to recognize an extraprovincial declaratory order made outside Canada and make an order under section 31, if

(a) evidence becomes available that was not available during the proceeding at which the extraprovincial declaratory order was made,

(b) the court is satisfied that the extraprovincial declaratory order was obtained by fraud or duress, or

(c) the extraprovincial declaratory order is contrary to public policy.

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 Indigenous child, the child's Indigenous 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, Estates and Succession 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.

Part 5 — Property Division

Division 1 — General Rules

Equal entitlement and responsibility

81   Subject to an agreement or order that provides otherwise and except as set out in this Part and Part 6 [Pension Division],

(a) spouses are both entitled to family property and responsible for family debt, regardless of their respective use or contribution, and

(b) on separation, each spouse has a right to an undivided half interest in all family property as a tenant in common, and is equally responsible for family debt.

Rights and remedies of third parties

82   Nothing in this Part affects the rights and remedies of a spouse's creditors, guarantors or assignees in relation to family debt.

Division 2 — Determining Family Property and Family Debt

Interpretation

83   (1) For the purposes of this Part, spouses are not considered to have separated if, within one year after separation,

(a) they begin to live together again and the primary purpose for doing so is to reconcile, and

(b) they continue to live together for one or more periods, totalling at least 90 days.

(2) Nothing in this Part affects a division of property under an agreement or order in a circumstance where, after the agreement or order was made, spouses live together and then separate again.

(3) For the purposes of this Part, property received by a spouse from a trust in respect of the spouse's beneficial interest in property held in the trust must be considered to be property derived from that beneficial interest.

(4) In this Part, "property" includes a beneficial interest in property unless a contrary intention appears.

Family property

84   (1) Subject to section 85 [excluded property], family property is all real property and personal property as follows:

(a) on the date the spouses separate,

(i) property that is owned by at least one spouse, or

(ii) a beneficial interest of at least one spouse in property;

(b) after separation,

(i) property acquired by at least one spouse if the property is derived from property referred to in paragraph (a) (i) or from a beneficial interest referred to in paragraph (a) (ii), or from the disposition of either, or

(ii) a beneficial interest acquired by at least one spouse in property if the beneficial interest is derived from property referred to in paragraph (a) (i) or from a beneficial interest referred to in paragraph (a) (ii), or from the disposition of either.

(2) Without limiting subsection (1), family property includes the following:

(a) a share or an interest in a corporation;

(b) an interest in a partnership, an association, an organization, a business or a venture;

(c) property owing to a spouse

(i) as a refund, including an income tax refund, or

(ii) in return for the provision of a good or service;

(d) money of a spouse in an account with a financial institution;

(e) a spouse's entitlement under an annuity, a pension plan, a retirement savings plan or an income plan;

(f) property, other than property to which subsection (3) applies, that a spouse disposes of after the relationship between the spouses began, but over which the spouse retains authority, to be exercised alone or with another person, to require its return or to direct its use or further disposition in any way;

(g) the amount by which the value of excluded property has increased since the later of the date

(i) the relationship between the spouses began, or

(ii) the excluded property was acquired.

(2.1) For the purposes of subsection (2) (g), any increase in value of a beneficial interest in property held in a discretionary trust does not include the value of any property received from the trust.

(3) Despite subsection (1) of this section and subject to section 85 (1) (e), family property includes that part of trust property contributed by a spouse to a trust in which

(a) the spouse is a beneficiary, and has a vested interest in that part of the trust property that is not subject to divestment,

(b) the spouse has a power to transfer to himself or herself that part of the trust property, or

(c) the spouse has a power to terminate the trust and, on termination, that part of the trust property reverts to the spouse.

Excluded property

85   (1) The following is excluded from family property:

(a) property acquired by a spouse before the relationship between the spouses began;

(b) inheritances to a spouse;

(b.1) gifts to a spouse from a third party;

(c) a settlement or an award of damages to a spouse as compensation for injury or loss, unless the settlement or award represents compensation for

(i) loss to both spouses, or

(ii) lost income of a spouse;

(d) money paid or payable under an insurance policy, other than a policy respecting property, except any portion that represents compensation for

(i) loss to both spouses, or

(ii) lost income of a spouse;

(e) property referred to in any of paragraphs (a) to (d) that is held in trust for the benefit of a spouse;

(f) a spouse's beneficial interest in property held in a discretionary trust

(i) to which the spouse did not contribute, and

(ii) that is settled by a person other than the spouse;

(g) property derived from property or the disposition of property referred to in any of paragraphs (a) to (f).

(2) A spouse claiming that property is excluded property is responsible for demonstrating that the property is excluded property.

Family debt

86   Family debt includes all financial obligations incurred by a spouse

(a) during the period beginning when the relationship between the spouses begins and ending when the spouses separate, and

(b) after the date of separation, if incurred for the purpose of maintaining family property.

Valuing family property and family debt

87   Unless an agreement or order provides otherwise and except in relation to a division of family property under Part 6,

(a) the value of family property must be based on its fair market value, and

(b) the value of family property and family debt must be determined as of the date

(i) an agreement dividing the family property and family debt is made, or

(ii) of the hearing before the court respecting the division of property and family debt.

Division 3 — Before Agreement or Final Order is Made

Orders under this Division

88   A spouse may make an application to the Supreme Court under this Division at any time before a final agreement or final order is made in relation to a family law dispute respecting property division.

Orders for interim distribution of property

89   If satisfied that it would not be harmful to the interests of a spouse and is necessary for a purpose listed below, the Supreme Court may make an order for an interim distribution of family property that is at issue under this Part to provide money to fund

(a) family dispute resolution,

(b) all or part of a proceeding under this Act, or

(c) the obtaining of information or evidence in support of family dispute resolution or an application to a court.

Temporary orders respecting family residence

90   (1) For the purposes of this section, "family residence" means a residence that is

(a) owned or leased by one spouse or both, and

(b) the ordinary place of residence of the spouses.

(2) The Supreme Court may make an order granting a spouse, for a specified period of time,

(a) exclusive occupation of a family residence, or

(b) possession or use of specified personal property stored at the family residence, including to the exclusion of the other spouse.

(3) An order under this section does not

(a) authorize a spouse to materially alter the substance of the family residence or personal property,

(b) grant to a spouse a proprietary interest in the family residence or personal property, or

(c) subject to subsection (4), grant to a spouse any right that continues after the rights of the other spouse, or of both spouses, as owner or lessee are terminated.

(4) If an order has been made under subsection (2), the Supreme Court may

(a) order that the right of a spouse to apply for partition and sale of, or to sell or otherwise dispose of or encumber, the family residence or personal property

(i) be postponed, and

(ii) is subject to the order made under subsection (2), and

(b) change the order made under subsection (2).

(5) Nothing in this section prevents the filing of an entry under the Land (Spouse Protection) Act.

Temporary orders respecting protection of property

91   (1) On application by a spouse, the Supreme Court must make an order restraining the other spouse from disposing of any property at issue under this Part or Part 6 [Pension Division] until or unless the other spouse establishes that a claim made under this Part or Part 6 will not be defeated or adversely affected by the disposal of the property.

(2) The Supreme Court may make one or more of the following orders:

(a) for the possession, delivery, safekeeping and preservation of property;

(b) for the purpose of protecting the applicant's interest in property from being defeated or adversely affected,

(i) prohibiting the other spouse from disposing of, transferring, converting, or exchanging into another form, property in which the applicant may have an interest, or

(ii) vesting all or a portion of property in, or in trust for, the applicant.

(3) The Supreme Court may make an order under this section before notice of the application is served on the other spouse, or may order that notice of the application be served on the other spouse.

(4) Despite section 215 (2) [changing, suspending or terminating orders generally], the Supreme Court may change, suspend or terminate an order made under this section.

Division 4 — Dividing Family Property and Family Debt

Agreements respecting property division

92   Despite any provision of this Part but subject to section 93 [setting aside agreements respecting property division], spouses may make agreements respecting the division of property and debt, including agreements to do one or more of the following:

(a) divide family property or family debt, or both, and do so equally or unequally;

(b) include as family property or family debt items of property or debt that would not otherwise be included;

(c) exclude as family property or family debt items of property or debt that would otherwise be included;

(d) value family property or family debt differently than it would be valued under section 87 [valuing family property and family debt].

Setting aside agreements respecting property division

93   (1) This section applies if spouses have a written agreement respecting division of property and debt, with the signature of each spouse witnessed by at least one other person.

(2) For the purposes of subsection (1), the same person may witness each signature.

(3) On application by a spouse, the Supreme Court may set aside or replace with an order made under this Part all or part of an agreement described in subsection (1) only if satisfied that one or more of the following circumstances existed when the parties entered into the agreement:

(a) a spouse failed to disclose significant property or debts, or other information relevant to the negotiation of the agreement;

(b) a spouse took improper advantage of the other spouse's vulnerability, including the other spouse's ignorance, need or distress;

(c) a spouse did not understand the nature or consequences of the agreement;

(d) other circumstances that would, under the common law, cause all or part of a contract to be voidable.

(4) The Supreme Court may decline to act under subsection (3) if, on consideration of all of the evidence, the Supreme Court would not replace the agreement with an order that is substantially different from the terms set out in the agreement.

(5) Despite subsection (3), the Supreme Court may set aside or replace with an order made under this Part all or part of an agreement if satisfied that none of the circumstances described in that subsection existed when the parties entered into the agreement but that the agreement is significantly unfair on consideration of the following:

(a) the length of time that has passed since the agreement was made;

(b) the intention of the spouses, in making the agreement, to achieve certainty;

(c) the degree to which the spouses relied on the terms of the agreement.

(6) Despite subsection (1), the Supreme Court may apply this section to an unwitnessed written agreement if the court is satisfied it would be appropriate to do so in all of the circumstances.

Orders respecting property division

94   (1) The Supreme Court may make an order under this Division on application by a spouse.

(2) The Supreme Court may not make an order respecting the division of property and family debt that is the subject of an agreement described in section 93 (1) [setting aside agreements respecting property division], unless all or part of the agreement is set aside under that section.

Unequal division by order

95   (1) The Supreme Court may order an unequal division of family property or family debt, or both, if it would be significantly unfair to

(a) equally divide family property or family debt, or both, or

(b) divide family property as required under Part 6 [Pension Division].

(2) For the purposes of subsection (1), the Supreme Court may consider one or more of the following:

(a) the duration of the relationship between the spouses;

(b) the terms of any agreement between the spouses, other than an agreement described in section 93 (1) [setting aside agreements respecting property division];

(c) a spouse's contribution to the career or career potential of the other spouse;

(d) whether family debt was incurred in the normal course of the relationship between the spouses;

(e) if the amount of family debt exceeds the value of family property, the ability of each spouse to pay a share of the family debt;

(f) whether a spouse, after the date of separation, caused a significant decrease or increase in the value of family property or family debt beyond market trends;

(g) the fact that a spouse, other than a spouse acting in good faith,

(i) substantially reduced the value of family property, or

(ii) disposed of, transferred or converted property that is or would have been family property, or exchanged property that is or would have been family property into another form, causing the other spouse's interest in the property or family property to be defeated or adversely affected;

(h) a tax liability that may be incurred by a spouse as a result of a transfer or sale of property or as a result of an order;

(i) any other factor, other than the consideration referred to in subsection (3), that may lead to significant unfairness.

(3) The Supreme Court may consider also the extent to which the financial means and earning capacity of a spouse have been affected by the responsibilities and other circumstances of the relationship between the spouses if, on making a determination respecting spousal support, the objectives of spousal support under section 161 [objectives of spousal support] have not been met.

Division of excluded property

96   The Supreme Court must not order a division of excluded property unless

(a) family property or family debt located outside British Columbia cannot practically be divided, or

(b) it would be significantly unfair not to divide excluded property on consideration of

(i) the duration of the relationship between the spouses, and

(ii) a spouse's direct contribution to the preservation, maintenance, improvement, operation or management of excluded property.

Giving effect to property division

97   (1) For the purposes of giving effect to a division of property or family debt under this Part or Part 6 [Pension Division], the Supreme Court may

(a) determine any matter respecting the ownership, right of possession, or division of the property or family debt, and

(b) despite sections 94 (2) [orders respecting property division] and 215 (2) [changing, suspending or terminating orders generally], and subject to subsection (3) of this section, make any order that is necessary, reasonable or ancillary to give effect to the division.

(2) Without limiting subsection (1), the Supreme Court may make an order to do one or more of the following:

(a) declare who has ownership of, or right of possession to, property;

(b) require that title to a specified property granted to a spouse be transferred to, held in trust for, or vested in the spouse, absolutely, for life or for a term of years;

(c) require a spouse to pay compensation to the other spouse if property has been disposed of, transferred, converted, or exchanged into another form, or for the purpose of dividing the property;

(d) require partition or sale of property and payment to be made out of the proceeds of sale to one spouse or both in specified proportions or amounts;

(e) require property forming all or a part of the share of either or both spouses to be transferred to, held in trust for, or vested in a child;

(f) require a spouse to give security, in any form the court directs, for the performance of an obligation imposed by an order under this section, including a charge on property;

(g) require a spouse to waive or release in writing any right, benefit or protection given by section 23 of the Chattel Mortgage Act, R.S.B.C. 1979, c. 48, section 19 of the Sale of Goods on Condition Act, R.S.B.C. 1979, c. 373, or section 58 or 67 of the Personal Property Security Act;

(h) subject to subsection (3), declare that one spouse is responsible for payment of an item of family debt and must indemnify the other spouse for the item of family debt;

(i) require the sale of property for the purposes of paying an item of family debt;

(j) transfer property to a spouse.

(3) An order in relation to family debt applies only as between the spouses and does not affect an agreement between a spouse and any other person.

(4) Nothing in this section permits the Supreme Court to divide excluded property unless permitted under section 96 [division of excluded property].

Division 5 — Enforcing and Protecting Property Interests

Definitions

98   In this Division:

"described land" means land described in a notice of agreement;

"financing change statement" has the same meaning as in the Personal Property Security Act;

"financing statement" has the same meaning as in the Personal Property Security Act;

"notice of agreement" means a notice setting out

(a) the full name and last known address of each spouse who is a party to a property agreement,

(b) a description of land to which the property agreement relates, and

(c) the provisions of the property agreement that relate to the land described in the notice;

"personal property registry" means the personal property registry established under the Personal Property Security Act;

"property agreement" means a written agreement respecting division of property and debt, with the signature of each spouse witnessed by at least one other person;

"registration" means the registration, in the personal property registry, of a financing statement in relation to a manufactured home.

Filing in land title office

99   (1) A spouse who is a party to a property agreement may sign and file a notice of agreement in the land title office of the land title district in which described land is located.

(2) On filing a notice of agreement and on paying the prescribed fee and any fees payable under the Land Title Act, the registrar may register the notice of agreement, in the same manner as a charge is registered, against the described land.

(3) If a notice of agreement is registered, the registrar must not allow registration of a transfer, a mortgage, an agreement for sale or a conveyance of the fee simple in the land, or a lease of the land, unless each spouse who is a party to the agreement signs and files in the land title office a cancellation or postponement notice.

(4) If a cancellation or postponement notice is filed or an order is made under section 101 [orders for postponement, cancellation or discharge], the registrar must cancel or postpone the registration of the notice of agreement in the same manner as the registration of a charge is cancelled or postponed.

(5) A notice of agreement or cancellation or postponement notice under this section must be made in the form and manner approved, and contain the information required, by the Director of Land Titles.

Filing in personal property registry

100   (1) A spouse who is a party to a property agreement in relation to a manufactured home may register a financing statement in the personal property registry.

(2) If a registration is made,

(a) sections 43 (1) to (3), (6) to (8) and (12) to (15), 46 to 48, 52 and 54 of the Personal Property Security Act apply, and

(b) unless the parties to the property agreement register in the personal property registry a financing change statement discharging or postponing the registration,

(i) any security interest created in the manufactured home after registration is subordinate to the interest created by the property agreement, and

(ii) the registrar of manufactured homes must not register a transfer of the manufactured home.

(3) A financing statement and a financing change statement must be made in the form and manner prescribed under the Personal Property Security Act.

(4) If a financing change statement discharging or postponing the registration is registered or an order is made under section 101 [orders for postponement, cancellation or discharge], the registrar must discharge or postpone the registration.

Orders for postponement, cancellation or discharge

101   On application, the Supreme Court may order the appropriate registrar to cancel or postpone a notice of agreement under section 99 [filing in land title office], or discharge or postpone a registration in relation to a manufactured home under section 100 [filing in personal property registry], as applicable, if a spouse

(a) cannot be located, after a reasonable search is made,

(b) unreasonably refuses to

(i) sign or file a cancellation notice under section 99 (3), or

(ii) register a financing change statement under section 100 (2) (b), or

(c) is a mentally incompetent person.

Donor of gift is party to agreement

102   If a property agreement provides that specific gifts made to one spouse or both are not disposable by the spouse or spouses without the consent of the donor, the donor is deemed to be a party to the property agreement for the purposes of changing or enforcing the property agreement with respect to those gifts.

Enforceability of interest in property

103   (1) In this section, "spouse's interest" means the interest of a spouse arising under section 81 [equal entitlement and responsibility], a property agreement or an order respecting property division.

(2) Section 29 of the Land Title Act applies to a spouse's interest in land.

(3) If, on acquiring property other than land, a person does not have actual notice of a spouse's interest in the property, the spouse's interest is not enforceable against that person.

(4) Despite subsections (2) and (3), a spouse's interest is enforceable against the other spouse from the date of separation, unless a property agreement between the spouses, or an order, provides otherwise.

Rights under this Part

104   (1) If there is a conflict between this Part and the Partition of Property Act, this Part prevails.

(2) The rights under this Part are in addition to and not in substitution for rights under equity or any other law.

Division 6 — Jurisdiction and Choice of Law Rules

Definitions and interpretation

105   (1) In this Division:

"extraprovincial property" means property located outside British Columbia;

"proper law of the relationship" means the proper law of the relationship as determined under section 107 [proper law of relationship].

(2) For the purposes of this Division, spouses do not have a common habitual residence in a jurisdiction if they live separate and apart in the jurisdiction.

Determining whether to act under this Part

106   (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) 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.

Proper law of relationship

107   The proper law of the relationship between the spouses for the purposes of section 108 [choice of law rules] 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.

Choice of law rules

108   (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.

Extraprovincial property

109   (1) If the Supreme Court has authority under this Division to make an order respecting extraprovincial property, the Supreme Court may make an order respecting the ownership and division of the extraprovincial property.

(2) For the purposes of dividing extraprovincial property, the Supreme Court, on application by a spouse, may make an order to do one or more of the following:

(a) instead of dividing the extraprovincial property,

(i) require property or family debt within British Columbia to be substituted for rights in the extraprovincial property, or

(ii) require a spouse who has legal title to the extraprovincial property to pay compensation to the other spouse;

(b) if the court is satisfied that it would be enforceable against a spouse in the jurisdiction in which the extraprovincial property is located,

(i) preserve the extraprovincial property,

(ii) provide for the possession of the extraprovincial property,

(iii) require a spouse who has legal title to the extraprovincial property to transfer all or part of the spouse's interest in the extraprovincial property to the other spouse, or

(iv) provide for any other matter in connection with the extraprovincial property;

(c) if the court is satisfied that it would be enforceable in the jurisdiction in which the extraprovincial property is located, provide for non-monetary relief.

Part 6 — Pension Division

Division 1 — General Matters

Definitions

110   In this Part and the regulations made under section 246 [regulations respecting pension division]:

"administrator" means a person responsible for administering a plan

(a) under the terms of the plan,

(b) as required by the Pension Benefits Standards Act or equivalent legislation in another jurisdiction, or

(c) as required by the Pooled Registered Pension Plans Act or equivalent legislation in another jurisdiction,

and includes the administrator of a supplemental plan and the issuer of an annuity;

"beneficiary" means a person entitled to receive benefits on the death of a member;

"benefit", in relation to a plan, means a pension or other monetary amount a person is or may become entitled to receive under the plan, but does not include a refund of actuarial excess or surplus;

"benefit formula provision" means

(a) a defined benefit provision,

(b) a target benefit provision, or

(c) any provision of the plan text document of a plan that is prescribed under the Pension Benefits Standards Act to be a benefit formula provision;

"commuted value" means the commuted value of a benefit, determined in accordance with the Pension Benefits Standards Act;

"defined benefit provision" means a provision of the plan text document of a plan that establishes a formula by which the amount of the pension that is to be paid to a member is determined, but does not include a target benefit provision or a provision that is prescribed under the Pension Benefits Standards Act to be a benefit formula provision;

"defined contribution account" means the account referred to in paragraph (a) of the definition of "defined contribution provision";

"defined contribution provision" means a provision of the plan text document of a plan that

(a) contemplates that an actual or notional account will be maintained to record

(i) the contributions, other than additional voluntary contributions within the meaning of the Pension Benefits Standards Act, made by or on behalf of a member,

(ii) the interest, within the meaning of the Pension Benefits Standards Act, allocated to the account, and

(iii) administration expenses and other money deducted by payment, transfer or withdrawal from the money referred to in subparagraphs (i) and (ii), and

(b) provides that the benefits to which the member is entitled under the provision are determined solely by reference to the amount of that account;

"extraprovincial plan", subject to the regulations, means a plan that is not a local plan, and includes a supplemental plan to an extraprovincial plan;

"former Act" means the Family Relations Act, R.S.B.C. 1996, c. 128;

"hybrid plan", subject to the regulations, means any of the following:

(a) a plan if some of the benefits under the plan are determined under a defined contribution provision and other benefits under the plan are determined under a benefit formula provision;

(b) a plan if one of the following applies:

(i) a member may choose whether benefits are determined under either or both of a defined contribution provision and a benefit formula provision;

(ii) the plan text document contains rules that provide whether benefits are determined under either or both of a defined contribution provision and a benefit formula provision;

(c) a prescribed plan;

"joint and survivor pension" means a pension payable during the lives of the member and another person and, after the death of one of them, to the survivor for life;

"limited member" means a person designated under section 113 [designation of limited members] as a limited member of a local plan;

"local plan", subject to the regulations, means any of the following:

(a) a plan that is established by the government;

(b) a plan that

(i) is registered under the Pension Benefits Standards Act, the Pooled Registered Pension Plans Act or legislation equivalent to either in another jurisdiction, and

(ii) has members who accrue, or have accrued, entitlement to benefits under the plan from employment, or in the case of a pooled registered pension plan, self-employment, in British Columbia;

(c) a plan that is subject to this Part

(i) by the terms of the plan,

(ii) by the operation of legislation, in British Columbia or another jurisdiction, that regulates the plan,

(iii) by reason of the requirements of the Pension Benefits Standards Act and a reciprocal agreement between governments, or

(iv) by reason of the requirements of a reciprocal agreement between governments in respect of the Pooled Registered Pension Plans Act and equivalent legislation of the jurisdictions of the other governments;

(d) a prescribed plan;

(e) a plan for specified individuals that

(i) is registered under the Pension Benefits Standards Act, or

(ii) has members who accrue, or have accrued, entitlement to benefits under the plan from employment in British Columbia;

"member", in relation to a plan, means a person, other than a limited member, who

(a) has made contributions to the plan or on whose behalf an employer is or was required by the plan to make contributions, and who has not terminated membership or begun receiving a pension,

(b) retains a present or future entitlement to receive a benefit under the plan, or

(c) has begun

(i) receiving a pension, or

(ii) if the member is or was entitled to receive benefits under a defined contribution provision, making withdrawals from the member's defined contribution account;

"pension" means a series of periodic payments that, under the terms of the plan text document of a plan, is payable,

(a) in the case of payments under a benefit formula provision, for the life of a member, whether or not the pension is continued to another person,

(b) in the case of an annuity purchased by an administrator for a member, for the life of the member, whether or not the pension is continued to another person,

(c) in the case of payments under a defined contribution provision, until the earlier of

(i) the date on which the member dies, and

(ii) the date on which the balance in the member's defined contribution account is zero, or

(d) in the case of a supplemental plan, for the life of a member or for a shorter period, whether or not the payments are continued to another person;

"phased retirement benefit", in relation to a member of a plan who is at least 60 years of age, or is at least 55 years of age and entitled under the plan to receive a pension without reduction, means payments out of the plan of an amount that is payable periodically to the member for a period other than for the life of the member;

"phased retirement period" means the period during which phased retirement benefits are to be paid to a person who is eligible to receive them;

"plan" means a plan, a scheme or an arrangement, other than a prescribed plan, scheme or arrangement, organized and administered to provide pensions for members;

"plan text document", in relation to a plan, means the record that sets out the rights, obligations and entitlements under the plan;

"proportionate share" means a fraction calculated in accordance with the regulations, an agreement or an order;

"separate pension" means the share of a member's benefits, determined in accordance with the regulations, that is

(a) payable to a limited member until the earlier of the death of the limited member and the termination of benefits under the plan, and

(b) separate from the benefits payable to the member;

"specified individuals" has the same meaning as in section 8515 (4) of the Income Tax Regulations under the Income Tax Act (Canada);

"supplemental plan", subject to the regulations, means a plan

(a) under which initial and continuing membership is subject to first having membership in another plan, and

(b) under which benefits are provided that supplement those provided under the other plan;

"survivor benefits" means lump-sum or periodic benefits paid under a plan to a beneficiary when a member dies;

"target benefit provision" means a provision of the plan text document of a plan that

(a) establishes a formula by which the amount of the pension that is intended to be payable to a member is to be determined, and

(b) provides that the actual benefit under the plan may be reduced below the intended benefit;

"transfer" means a transfer made in accordance with the regulations.

Benefits to be determined in accordance with this Part

111   (1) If a spouse is entitled under Part 5 [Property Division] to an interest in benefits, the spouse's share of the benefits and the manner in which the spouse's entitlement to benefits is to be satisfied must be determined in accordance with this Part, unless an agreement or order provides otherwise.

(2) For the purposes of this Part, all of a member's benefits are deemed to be allocated to the member if an agreement between that member and that member's spouse, or if an order,

(a) is silent on entitlement to benefits, and

(b) represents a final settlement and separation of the financial affairs of the member and the spouse in recognition of the end of the relationship between the spouses.

(3) Nothing in subsection (2) affects a court's jurisdiction under Part 5 in relation to an agreement or order.

(4) Without limiting subsection (1) but subject to subsection (2), if

(a) a spouse of a member of a plan is entitled under Part 5 [Property Division] to an interest in benefits payable to the member, and

(b) before the spouse receives his or her share of those benefits, the member becomes entitled to receive additional amounts under the plan, including, without limitation, a refund of actuarial excess or surplus within the meaning of the Pension Benefits Standards Act,

the spouse is entitled to an interest in those additional amounts.

Original agreements and orders

112   (1) In this section, "original agreement or order" means an agreement or order, made at any time, that provides for the division of benefits, under a local plan, other than in accordance with this Part.

(2) If an original agreement or order provides that benefits are not divisible, provides for a method of division other than in accordance with this Part, or is silent on entitlement to benefits, a member and a spouse may agree to have benefits divided under this Part at any time before the earliest of the following:

(a) benefits are divided under the original agreement or order;

(b) the member or spouse dies;

(c) benefits are terminated under the plan.

(3) If the original agreement or order provides that the member must pay the spouse a proportionate share of benefits under a plan when the member's pension commences,

(a) if the member's pension has not commenced,

(i) the member and spouse may agree, by the spouse giving notice under Division 2 [Division of Benefits under Local Plans] of this Part, to divide benefits in accordance with this Part, and

(ii) unless the member and spouse agree otherwise, the original agreement or order must be administered in accordance with the regulations, or

(b) regardless of whether the member's pension has commenced, the spouse may choose to have benefits divided in accordance with section 117 [local plans after pension commencement].

(4) Subsection (3) (b) does not apply if the original agreement or order expressly prohibits the division of benefits under Part 6 of the former Act or under this Part.

(5) Unless an agreement or order provides otherwise, a term in the agreement or order that requires a member to sever, or to assist a spouse in severing, the spouse's share from the member's benefits under a plan as soon as it becomes possible to do so is conclusively deemed to be an agreement referred to in subsection (3) (a) (i) of this section, made as of the date the administrator receives notice that the spouse is to be designated as a limited member or is entitled to benefits under section 114 [benefits determined under defined contribution provision].

Designation of limited members

113   (1) This section applies if benefits

(a) are under a local plan or under a supplemental plan to a local plan, and

(b) are to be divided in any manner other than by way of an immediate transfer from a defined contribution account under section 114 (2) (a).

(2) A spouse may be designated as a limited member of the local plan or of a supplemental plan to the local plan by either the member or the spouse giving notice in accordance with section 136 [notice or waiver].

(3) A limited member has the following rights:

(a) to receive from the administrator benefits as determined under section 115 [benefits determined under benefit formula provision] or 117 [local plans after pension commencement], as applicable;

(b) to enforce rights under the plan and recover damages for losses suffered as a result of a breach of a duty owed by the administrator to the limited member;

(c) except as modified by this Part and the regulations made under it, all of the rights that a member, within the meaning of this Act, has under the Pension Benefits Standards Act or Pooled Registered Pension Plans Act, as applicable;

(d) the additional rights that are set out in this Part.

(4) A spouse ceases to be a limited member if the commuted value of the spouse's proportionate share of benefits is transferred under this Part to the credit of the spouse.

Division 2 — Division of Benefits under Local Plans

Benefits determined under defined contribution provision

114   (1) This section applies if the benefits to be divided

(a) are under a local plan, and

(b) are in a defined contribution account.

(2) A spouse is entitled, by giving notice in accordance with section 136 [notice or waiver],

(a) to have the spouse's proportionate share of the member's defined contribution account transferred from the plan to the credit of the spouse, or

(b) if the administrator consents, to have the spouse's proportionate share administered under the plan subject to the same terms and conditions that apply to members.

Benefits determined under benefit formula provision

115   (1) This section applies if

(a) the benefits to be divided are under a local plan and are determined under a benefit formula provision, and

(b) the pension has not commenced.

(2) Subject to subsection (3), a limited member is entitled, on giving notice in accordance with section 136 [notice or waiver],

(a) to receive the limited member's proportionate share of the benefits by a separate pension, or

(b) to have the limited member's proportionate share of the commuted value of the benefits transferred from the plan to the credit of the limited member.

(3) A separate pension under subsection (2) (a) may commence, or a transfer under subsection (2) (b) may be made, no earlier than the earliest date that the member could elect to have the member's pension commence.

(4) A limited member who chooses to receive a separate pension under subsection (2) (a) may choose, in the notice referred to in subsection (2), to receive benefits by any method the member could receive benefits.

(5) A limited member is entitled, before his or her separate pension commences and during any applicable phased retirement period, to receive a proportionate share of the phased retirement benefit paid to the member under the Pension Benefits Standards Act.

(6) If the member terminates membership in the plan and chooses to have his or her share of the benefits transferred from the plan, the limited member's proportionate share must be transferred from the plan to the credit of the limited member unless

(a) the administrator consents to continue administering, under the plan, the limited member's proportionate share, or

(b) the limited member has commenced receiving a separate pension before the member terminates membership in the plan.

Local hybrid plans

116   (1) This section applies if

(a) the benefits to be divided are under a local plan that is a hybrid plan, and

(b) the pension under the benefit formula provision has not commenced.

(2) A spouse is entitled, by giving notice in accordance with section 136 [notice or waiver], to a division of benefits as follows:

(a) if the member may choose to receive benefits under either or both of the defined contribution provision and the benefit formula provision, that choice is available to the spouse also;

(b) if the administrator consents, the spouse may choose to receive benefits as if all of the benefits were under

(i) the defined contribution provision, or

(ii) the benefit formula provision;

(c) if benefits are determined under either or both of the defined contribution provision and the benefit formula provision,

(i) to the extent that benefits are determined under a defined contribution provision, section 114 [benefits determined under defined contribution provision] applies, and

(ii) to the extent that benefits are determined under a benefit formula provision, section 115 [benefits determined under benefit formula provision] applies.

Local plans after pension commencement

117   (1) This section applies if

(a) the benefits to be divided

(i) are under a local plan, and

(ii) are not in a defined contribution account, and

(b) the pension has commenced.

(2) A spouse is entitled, by giving notice in accordance with section 136 [notice or waiver], to receive a proportionate share of benefits payable under the plan during the member's lifetime until the earlier of

(a) the death of the spouse, and

(b) the termination of benefits under the plan.

(3) The references in subsection (2) to "benefits" do not include a member's phased retirement benefit under the Pension Benefits Standards Act.

(4) If the member dies before the limited member and the limited member is entitled to survivor benefits under the plan, the limited member's entitlement is to be determined in accordance with section 124 (5) [death of member or limited member].

Division 3 — Division of Other Benefits

Annuities

118   Unless an agreement or order provides otherwise, if a member receives benefits under an annuity that is purchased by the member rather than by an administrator on behalf of the member, the provisions under this Part that apply to the division of benefits after pension commencement apply to the division of the annuity.

Supplemental plans

119   (1) This section applies if a member has or may acquire benefits under a supplemental plan to a local plan.

(2) A spouse who is entitled to a proportionate share of a member's benefits under a local plan is entitled, by giving notice in accordance with section 136 [notice or waiver],

(a) to be designated as a limited member of the supplemental plan, and

(b) to receive a proportionate share of benefits under the supplemental plan.

(3) The division of benefits under a supplemental plan is as follows:

(a) if the benefits to be divided are under the supplemental plan and not in a defined contribution account and if the pension has commenced, section 117 [local plans after pension commencement] applies;

(b) if the administrator consents, a limited member is entitled to receive the proportionate share of benefits by any other method that would apply to these benefits if they were provided under a local plan;

(c) in any other case, a limited member is entitled to receive a proportionate share of benefits by a separate pension when the member elects to have the member's pension commence.

(4) Despite any other provision, payment of a spouse's proportionate share of benefits under a supplemental plan

(a) is subject to the same terms and conditions that apply to the payment of benefits to members of the supplemental plan, and

(b) is adjusted, is suspended or ends if the member's benefits are adjusted, are suspended or end because the member violated a condition of the supplemental plan.

Compensation for lost supplemental benefits

120   (1) If an act or omission by a member of a supplemental plan causes a loss to a spouse respecting the spouse's proportionate share of benefits under the supplemental plan, the Supreme Court, on application by that spouse, may order the member to pay compensation to that spouse.

(2) In determining whether to make an order under subsection (1) and the amount of compensation to award if an order is made, the court must consider

(a) whether the member acted unreasonably or in bad faith,

(b) whether the member obtained an advantage as a result of the act or omission, and

(c) the financial arrangements and division of property respecting the member and the spouse when the relationship between the spouses ended.

Benefits for specified individuals

121   (1) This section applies

(a) in respect of a local plan whose only members are specified individuals, and

(b) if the pension has not commenced.

(2) A spouse is entitled, by giving notice in accordance with section 136 [notice or waiver],

(a) to be designated as a limited member of the plan, and

(b) to a proportionate share of benefits under the plan.

(3) A spouse who, as a limited member, is entitled under subsection (2) to receive a proportionate share of benefits may receive that proportionate share

(a) by a separate pension when the member elects to have the member's pension commence,

(b) in accordance with section 114 [benefits determined under defined contribution provision], if the benefits are in a defined contribution account, when the member makes withdrawals from that account, or

(c) if the administrator consents, by a method referred to in section 114 [benefits determined under defined contribution provision], 115 [benefits determined under benefit formula provision] or 116 [local hybrid plans].

Disability benefits

122   (1) This section applies if benefits are paid to a member under a plan as a consequence of the member's disability.

(2) If a spouse is entitled under an agreement or order to receive a proportionate share of disability benefits paid under the plan,

(a) the disability benefits are to be divided by giving notice in accordance with section 136 [notice or waiver],

(b) the disability benefits are to be divided in accordance with section 117 [local plans after pension commencement], and

(c) the division of the disability benefits continues until the earlier of

(i) the death of the spouse, and

(ii) the termination of disability benefits under the plan.

(3) If an agreement or order dividing benefits is silent on entitlement to disability benefits, all of a member's disability benefits are deemed to be allocated to the member.

(4) A member's entitlement to disability benefits does not affect how other benefits under a plan are divided between the member and the member's spouse.

(5) Nothing in subsection (3) affects a court's jurisdiction under Part 5 [Property Division] in relation to an agreement or order.

Extraprovincial plans

123   (1) This section applies if the benefits to be divided are under an extraprovincial plan.

(2) A spouse is entitled to a division of benefits under an extraprovincial plan as follows:

(a) subject to subsection (3), if the plan, or the legislation of any jurisdiction establishing or regulating the plan, provides a method of satisfying the interest of the spouse in the benefits, by that method;

(b) in any other case, to receive from the administrator during the member's lifetime a proportionate share of benefits paid under the plan until the earlier of

(i) the death of the spouse, and

(ii) the termination of benefits under the plan.

(3) If, having regard to the rules respecting the division of benefits under this Part, the method under subsection (2) (a) would operate unfairly, the Supreme Court may order that the spouse's proportionate share of the benefits be satisfied in accordance with subsection (2) (b) instead.

(4) If subsection (2) (b) applies,

(a) the member must designate the spouse as the beneficiary under the plan to the extent of the spouse's interest in the benefits, unless the designation is not possible,

(b) if the member's pension is in the form of a joint and survivor pension with a spouse, the spouse is the owner of the survivor benefits, and

(c) subject to the entitlement, if any, of another spouse, a spouse who is a beneficiary of survivor benefits is entitled to all of the survivor benefits.

Division 4 — Death of Member or Limited Member

Death of member or limited member

124   (1) This section applies if a limited member is entitled to a proportionate share of benefits under

(a) a plan in which benefits are determined under a benefit formula provision, or

(b) a supplemental plan

(i) to a local plan, and

(ii) under which survivor benefits are payable.

(2) If a member dies before

(a) the member's pension commences, and

(b) the limited member receives the limited member's proportionate share of the benefits,

the limited member is entitled to receive that proportionate share of benefits to which the limited member would have been entitled had the member not died, which proportionate share is to equal the commuted value of the limited member's proportionate share as calculated on the day before the death of the member.

(3) If a member dies after the limited member receives all of the limited member's proportionate share of benefits under sections 115 [benefits determined under benefit formula provision] and 119 [supplemental plans], the limited member is entitled to no further share of the member's benefits except to the extent that the member has designated the limited member as a beneficiary of the benefits.

(4) If a limited member dies before the member, before the member's pension commences and before receiving the limited member's proportionate share of benefits under sections 115 [benefits determined under benefit formula provision] and 119 [supplemental plans], the administrator must transfer to the credit of the limited member's estate the proportionate share of the commuted value of the benefits.

(5) Despite the division of benefits under this Part,

(a) if a member's pension is in the form of a joint and survivor pension with a spouse, the spouse is the owner of the survivor benefits, and

(b) a limited member who is a beneficiary of survivor benefits is entitled to all of the survivor benefits, subject to the entitlement, if any, of another limited member.

Entitlement to survivor benefits

125   If benefits are divided under this Part, entitlement to the member's share of the survivor benefits is to be determined in accordance with the law that governs the designation of beneficiaries, or the law that governs if there is no beneficiary designation, as applicable.

Waiving pension or survivor benefits

126   (1) Before an administrator implements the division of benefits under a plan, a limited member or the personal representative of his or her estate may waive the division of benefits by giving notice in accordance with section 136 [notice or waiver].

(2) If a member of a plan dies after pension commencement and his or her spouse is entitled to receive, or is receiving, survivor benefits, a waiver or an order does not affect that entitlement unless

(a) the spouse waives his or her entitlement by giving notice in accordance with section 136, or

(b) the Supreme Court, in allocating all or part of the survivor benefits to a person other than the spouse, refers expressly to this subsection in the order making the allocation.

(3) If a waiver or an order is made in accordance with subsection (2),

(a) the administrator may consent to pay survivor benefits to a person other than the spouse, but is not required to do so, and

(b) if a person becomes entitled to survivor benefits as a result of the waiver or order and receives an overpayment of the survivor benefits, the person is liable to the administrator to repay the overpayment.

Division 5 — Other Matters Respecting Pension Division

Agreements respecting division

127   (1) Despite any provision of this Part but subject to section 93 [setting aside agreements respecting property division], spouses may make a written agreement respecting the division of benefits under a plan, including a written agreement doing one or more the following:

(a) determining the spouse's proportionate share of benefits in a manner that would leave the member with less than half, or none, of the member's benefits;

(b) providing for the satisfaction of all or part of the spouse's interest in the benefits by the member providing compensation to the spouse.

(2) An agreement may provide that, despite the Canada Pension Plan, unadjusted pensionable earnings under that Act will not be divided between the spouses.

Determining compensation

128   (1) If, by an agreement or order, a member must provide compensation to a spouse in satisfaction of all or part of the spouse's interest in benefits under a plan, the compensation must be determined in accordance with the regulations unless the agreement or order provides otherwise.

(2) If an administrator and a spouse enter into an agreement under which the spouse accepts from the administrator compensation or a transfer of a share of benefits, in satisfaction of the spouse's interest in any circumstance not specifically dealt with under this Part, the compensation or transfer must be calculated in accordance with the regulations unless the Supreme Court orders otherwise.

Reapportioning benefits

129   The Supreme Court may reapportion to a spouse entitlement to all or part of a member's benefits under a plan for the purpose of providing the spouse with an independent source of income if

(a) it is necessary, appropriate or convenient in the circumstances, and

(b) the financial and property arrangements between the member and spouse to address the spouse's need to become or remain economically independent and self-sufficient would otherwise require an order

(i) respecting spousal support, or

(ii) requiring the member, after pension commencement, to pay the spouse a share of the benefits under the plan, or under another plan, as they are received.

Clarifying division of benefits

130   Despite section 215 (2) [changing, suspending or terminating orders generally], on application by a member or spouse, the Supreme Court may at any time give directions or make orders to facilitate or enforce the division of benefits in accordance with an agreement or order.

Changing division of benefits in unusual circumstances

131   (1) This section applies if the method of dividing benefits under this Part will operate in a manner that is inappropriate given

(a) the terms of the plan, or

(b) any change to the terms of the plan after the date an agreement or order is made to divide the benefits.

(2) Despite section 215 (2) [changing, suspending or terminating orders generally], on application by a member or spouse, the Supreme Court may direct by order an appropriate method of dividing benefits, and the order is binding on the administrator.

(3) An application under this section

(a) may be made at any time before benefits are divided, and

(b) must be served on the administrator at least 30 days before the date set for the hearing of the application.

(4) The administrator may attend and make representations respecting the effect on the plan of any proposed division of benefits under this section.

Retroactive division of benefits

132   (1) In this section, "pension commencement date" means the date chosen by a member, in accordance with the requirements of a plan, to have the member's pension commence.

(2) If commencement of a member's pension is delayed beyond the pension commencement date because the member and the member's spouse, or either of them, are seeking an agreement or order respecting the division of benefits, both the member and the spouse are entitled to receive their respective shares of benefits retroactive to the pension commencement date if all of the following conditions are met:

(a) before the pension commencement date, the member or spouse gives to the administrator a copy of an agreement or order that prohibits the member from dealing with benefits under the plan or with family property generally;

(b) on or before December 1 of the year following the year in which the pension commencement date falls, the member or spouse gives to the administrator a copy of an agreement or order

(i) setting out the final terms of the division of benefits, and

(ii) lifting the prohibition referred to in paragraph (a);

(c) if approval from the Canada Revenue Agency is required to divide the benefits as of the pension commencement date, the administrator, before dividing the benefits, obtains that approval.

(3) For the purposes of subsection (2), the rules respecting the division of benefits before pension commencement, as set out in sections 114 [benefits determined under defined contribution provision], 115 [benefits determined under benefit formula provision] and 116 [local hybrid plans], apply.

(4) Nothing in this section limits the discretion of an administrator to consent to, or the jurisdiction of a court to order, the retroactive division of benefits in circumstances other than those set out in subsection (2).

Division 6 — Administrative Matters

Information from plan

133   (1) A spouse who claims to be entitled to benefits and who has given notice under section 136 [notice or waiver] has a right to request and receive, from the administrator, prescribed information respecting the plan

(a) after the notice is given, and

(b) annually afterwards.

(2) Despite subsection (1), the Supreme Court may order that an administrator provide, at any time, some or all of the information required under subsection (1).

(3) An administrator must not disclose prescribed information respecting a member without the member's written consent.

(4) If there is a conflict between this section and a provision of the Freedom of Information and Protection of Privacy Act or the Personal Information Protection Act, this section prevails.

Agreement or order required for division of benefits

134   An administrator may administer the division of a member's benefits under this Part only if the administrator has first received a copy of an agreement or order respecting the division of benefits between the member and the member's spouse.

Information required by plan

135   (1) An administrator is not required to take any action under this Part until the administrator has sufficient information to identify the plan.

(2) If the plan is not identified by name in an agreement or order, information respecting the employment under which a member accrued the benefits is sufficient information to identify the plan.

(3) A person claiming to be entitled to receive a benefit under a plan must prove to the satisfaction of the administrator that the person is entitled to the benefit and, for this purpose, the administrator may require that person to provide evidence to establish the claim.

Notice or waiver

136   If a person is required to give notice or a waiver under this Part, the notice or waiver must be given to the administrator in the prescribed form and manner, if any.

Implementing division of benefits

137   (1) This section applies if an administrator must divide benefits under a local plan.

(2) Subject to section 132 [retroactive division of benefits] and subsection (3) of this section, an administrator is required to divide only those benefits that become payable within the prescribed period after the administrator receives all of the following:

(a) the documents required under section 134 [agreement or order required for division of benefits];

(b) the notice required under Division 2 [Division of Benefits under Local Plans] of this Part;

(c) the information required, if any, under section 135 [information required by plan];

(d) any documents required under any other enactment, or reasonably required by the administrator, to implement the division.

(3) An administrator may delay the division of benefits

(a) if delay is necessary until net investment returns affecting the spouse's share are allocated,

(b) if delay may avoid or reduce transaction costs associated with dividing benefits, or

(c) for any other reason that is reasonably likely to be advantageous to the spouse.

(4) Nothing in this section relieves the administrator from an obligation to pay benefits, or compensation for benefits, that were not paid through the fault of the administrator.

(5) Nothing in this section limits a member's duty to compensate a spouse under Part 5 [Property Division] for the spouse's share of benefits paid to the member before the date the administrator implements the division of benefits.

Adjustment of member's pension

138   If, under this Act, a spouse or the spouse's estate receives a share of a member's benefits directly from the administrator, the administrator must adjust, in accordance with the regulations,

(a) the member's interest in the benefits, or

(b) the interest of any person claiming an interest through the member.

Transfer of commuted value of separate pension or share

139   If a limited member is entitled to a separate pension or a proportionate share of benefits paid under the plan,

(a) the limited member may apply for a transfer of the commuted value of the separate pension or of the proportionate share, as applicable, in the same circumstances that a member may do so under the Pension Benefits Standards Act, in the case of a plan to which that Act applies, or the Pooled Registered Pension Plans Act, in the case of a plan to which that Act applies, and

(b) an administrator may require the limited member to accept a transfer of the commuted value of the separate pension or of the proportionate share, as applicable, in the same circumstances that an administrator may require a member to do so under the Pension Benefits Standards Act, in the case of a plan to which that Act applies, or the Pooled Registered Pension Plans Act, in the case of a plan to which that Act applies.

Administrative costs

140   (1) If the administrator requires a fee to be paid to offset administrative costs incurred in dividing benefits under this Part,

(a) the fee may be no more than the prescribed amount, and

(b) a member and spouse are each responsible for paying the fee.

(2) Unless the parties agree otherwise, a member or spouse who pays more than a half share of a fee under subsection (1) may recover from the other the additional amount paid.

(3) An administrator may deduct a fee under subsection (1) from the payment of benefits.

Income tax

141   (1) A member and spouse are each responsible for paying income tax on his or her own share of divided benefits.

(2) If, under the Income Tax Act (Canada), a member or spouse is required to pay income tax on the other person's share of divided benefits, the person who is required to pay the income tax on the other person's share must be reimbursed by the other person for the amount paid.

(3) An administrator who pays benefits to a spouse under this Part must make, with respect to a deduction required under the Income Tax Act (Canada), separate source deductions for each of the spouse's and member's shares of the benefits.

(4) An agreement or order may require a member to compensate a spouse for the spouse's property interest in benefits paid before the division of benefits is implemented by an administrator on a basis different from that required under subsection (1), if the different basis otherwise complies with applicable law.

Claim does not relieve duty to administer benefits

142   (1) An administrator is not relieved of the duty to administer benefits only because the administrator receives from a spouse a claim to an interest in the benefits.

(2) A claim under subsection (1) includes receipt, without a full application being made under this Part, of a copy of an agreement or order under which the spouse acquires an interest in the benefits or property under Part 5 [Property Division].

Administrator's duties

143   (1) Subsection (2) applies if an administrator

(a) has

(i) been given notice under Division 2 [Division of Benefits under Local Plans] or 3 [Division of Other Benefits] respecting a spouse's claim to an interest in benefits, or

(ii) received an incomplete or otherwise insufficient application for a spouse to become a limited member or to divide benefits, including receiving, without a full application being made, a copy of an agreement or order under which a spouse acquires an interest in benefits, and

(b) is required to administer the benefits.

(2) In a circumstance described in subsection (1), the administrator must not take any action, or omit to take an action, in relation to the benefits unless the administrator first gives notice to the spouse in accordance with the regulations.

(3) Subject to subsection (4), no legal proceeding for damages or other relief lies or may be commenced or maintained against an administrator by or on behalf of a spouse because of anything done or omitted to be done by the administrator if

(a) the thing done or omitted was the subject of the notice given under subsection (2), or

(b) notice is not required under this section for the administrator to do, or omit to do, the thing.

(4) Subsection (3) does not apply to an administrator in relation to anything done or omitted by the administrator in bad faith.

Trust of survivor and pension benefits

144   (1) If a spouse is entitled to a proportionate share of survivor benefits paid to another person, the other person holds them in trust for the spouse.

(2) If a spouse is entitled to a proportionate share of a member's benefits and the spouse's proportionate share is paid to the member or another person, the member or other person holds the spouse's proportionate share in trust for the spouse.

(3) If a person waives, under section 126 [waiving pension or survivor benefits], entitlement to survivor benefits but receives survivor benefits after the waiver takes effect, the person who waived entitlement holds them in trust for the person in whose favour the waiver has been made.

(4) A recipient holding benefits in trust under this section who has information respecting a person's interest in the benefits must immediately pay the benefits to the person.

(5) If a spouse receives benefits in an amount that exceeds the spouse's entitlement, the spouse holds the excess amount in trust for, and must immediately pay the excess amount to, the member or the person who is otherwise entitled to the amount.

No further entitlement after division of benefits

145   (1) This section applies

(a) to benefits regulated under the Pension Benefits Standards Act or the Pooled Registered Pension Plans Act, and

(b) despite any provision to the contrary in the Pension Benefits Standards Act, the Pooled Registered Pension Plans Act or any other Act.

(2) If

(a) a spouse has become a limited member of a plan under this Act or the former Act, or

(b) an agreement or order provides that the benefits are subject to division with a spouse under this Part or under Part 6 of the former Act,

the spouse has no further rights under the Pension Benefits Standards Act or the Pooled Registered Pension Plans Act, as applicable, arising solely from that spouse's status as a spouse, with respect to the member's share of the benefits under that plan, and the member is not required to obtain the consent or waiver of the spouse to make directions with respect to the member's benefits under that plan.

(3) [Repealed 2012-30-155.]

(4) An agreement or order that provides that

(a) a spouse has no share of benefits, or

(b) a spouse's share is satisfied by a means other than by dividing benefits under this Part or under Part 6 of the former Act

is to be treated for the purposes of this section as if the agreement or order provides that the benefits are subject to division under this Part or under Part 6 of the former Act, unless the agreement or order provides otherwise.

(5) In this section, "benefit" includes

(a) a benefit that has been transferred to a locked-in retirement account or a retirement income arrangement, as those terms are defined in the Pension Benefits Standards Act, or

(b) funds that have been transferred under the Pooled Registered Pension Plans Act to a retirement savings plan of the kind prescribed for the purposes of section 50 (1) (b), 50 (3) (b) or 54 (2) (b) of the applied Act, as that term is defined in the Pooled Registered Pension Plans Act, or to a life annuity of the kind prescribed for the purposes of section 50 (1) (c), 50 (3) (c) or 54 (2) (c) of that applied Act.

Part 7 — Child and Spousal Support

Division 1 — Definitions

Definitions

146   In this Part and section 247 [regulations respecting child support]:

"child" includes a person who is 19 years of age or older and unable, because of illness, disability or another reason, to obtain the necessaries of life or withdraw from the charge of his or her parents or guardians;

"guardian" does not include a guardian

(a) who is not a parent, and

(b) whose only parental responsibility is respecting the child's legal and financial interests;

"parent" includes a stepparent, if the stepparent has a duty to provide for the child under section 147 (4) [duty to provide support for child];

"stepparent" means a person who is a spouse of the child's parent and lived with the child's parent and the child during the child's life.

Division 2 — Child Support

Duty to provide support for child

147   (1) Each parent and guardian of a child has a duty to provide support for the child, unless the child

(a) is a spouse, or

(b) is under 19 years of age and has voluntarily withdrawn from his or her parents' or guardians' charge, except if the child withdrew because of family violence or because the child's circumstances were, considered objectively, intolerable.

(2) If a child referred to in subsection (1) (b) returns to his or her parents' or guardians' charge, their duty to provide support for the child resumes.

(3) If a guardian who is not the child's parent has a duty to provide support for that child, the guardian's duty is secondary to that of the child's parents.

(4) A child's stepparent does not have a duty to provide support for the child unless

(a) the stepparent contributed to the support of the child for at least one year, and

(b) a proceeding for an order under this Part, against the stepparent, is started within one year after the date the stepparent last contributed to the support of the child.

(5) If a stepparent has a duty to provide support for a child under subsection (4), the stepparent's duty

(a) is secondary to that of the child's parents and guardians, and

(b) extends only as appropriate on consideration of

(i) the standard of living experienced by the child during the relationship between the stepparent and his or her spouse, and

(ii) the length of time during which the child lived with the stepparent.

Agreements respecting child support

148   (1) An agreement respecting child support 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.

(2) A written agreement respecting child support that is filed in the court is enforceable under this Act and the Family Maintenance Enforcement Act as if it were an order of the court.

(3) On application by a party, the court may set aside or replace with an order made under this Division all or part of an agreement respecting child support if the court would make a different order on consideration of the matters set out in section 150 [determining child support].

Orders respecting child support

149   (1) Subject to subsection (3), on application by a person referred to in subsection (2), a court may make an order requiring a child's parent or guardian to pay child support to a designated person.

(2) An application may be made by

(a) a child's parent or guardian,

(b) the child or a person acting on behalf of the child, or

(c) if the right to apply for an order under this section is assigned to a minister under the Employment and Assistance Act or the Employment and Assistance for Persons with Disabilities Act, the minister to whom the right is assigned in the name of the government or the name of the person who made the assignment.

(3) An order under subsection (1) may only be made against a stepparent if

(a) the stepparent has a duty to provide for the child under section 147 (4) [duty to provide support for child], and

(b) the stepparent and the child's parent are separated.

(4) The making of an order against one person for the support of a child does not affect the liability of, or prevent the making of an order against, any other person responsible for the support of the child.

Determining child support

150   (1) If a court makes an order respecting child support, the amount of child support must be determined in accordance with the child support guidelines.

(2) Despite subsection (1), a court may order child support in an amount different from that required by the child support guidelines if

(a) the parties consent under section 219 [persons may consent to order being made] or have an agreement respecting child support, and

(b) the court is satisfied that reasonable arrangements have been made for the support of the child.

(3) The court must consider the child support guidelines for the purposes of subsection (2), but must not consider arrangements made for the support of the child to be unreasonable only because the amount required under the child support guidelines differs from those arrangements.

(4) Despite subsection (1), a court may order child support in an amount different from that required by the child support guidelines if satisfied that

(a) an agreement or order respecting the financial duties of the parents or guardians or the division or transfer of property, other than an agreement respecting child support, benefits the child directly or indirectly, or that special provisions have otherwise been made for the benefit of the child, and

(b) applying the child support guidelines would be inequitable on consideration of the agreement, order or special provisions.

(5) If a court makes an order respecting child support in an amount different from that required under the child support guidelines, it must give reasons for doing so.

If parentage at issue

151   If the parentage of a child is at issue in a proceeding for an order respecting child support, the court, regardless of whether an application is made under section 31 [orders declaring parentage], may do one or both of the following:

(a) make an order respecting the child's parentage in accordance with that section;

(b) make an order under section 33 (2) [parentage tests].

Changing, suspending or terminating orders respecting child support

152   (1) On application, a court may change, suspend or terminate an order respecting child support, and may do so prospectively or retroactively.

(2) Before making an order under subsection (1), the court must be satisfied that at least one of the following exists, and take it into consideration:

(a) a change in circumstances, as provided for in the child support guidelines, has occurred since the order respecting child support was made;

(b) evidence of a substantial nature that was not available during the previous hearing has become available;

(c) evidence of a lack of financial disclosure by a party was discovered after the last order was made.

Division 3 — Child Support Service

Definitions

153   In this Division and the regulations made under section 247 (2) [regulations respecting child support]:

"amended statement of recalculation" means a statement of recalculation given after a correction is made under section 156 [correction of recalculation];

"child support service" means the child support service established under section 154 [establishment of child support service];

"notification date" means the date on which both the payor and the recipient are deemed, under the regulations, to have received a statement of recalculation or an amended statement of recalculation;

"payor" means a person who, under an agreement or order, must pay child support;

"recalculated amount" means the child support a payor must pay after recalculation under section 155 [recalculation of child support] by the child support service;

"recipient" means a person to whom child support must be paid;

"statement of recalculation" means a written notice by which the child support service notifies payors and recipients of recalculated amounts.

Establishment of child support service

154   (1) The minister may establish a child support service for the purposes set out in this section.

(2) The child support service may do all of the following:

(a) assist courts in determining child support;

(b) recalculate child support under section 155 [recalculation of child support];

(c) perform additional duties as required by the minister.

Recalculation of child support

155   (1) Subject to the regulations, the child support service may recalculate child support if the child support was originally determined in accordance with the child support guidelines and established by

(a) an agreement that

(i) includes prescribed provisions, and

(ii) has been filed in a prescribed court registry and given to the child support service, or

(b) an order that is issued out of a prescribed court registry.

(2) The child support service may recalculate child support only

(a) on the basis of updated income information, and

(b) in accordance with this Act and the regulations made under it.

(3) After recalculating child support, the child support service must give a statement of recalculation to the payor and the recipient.

(4) Subject to section 157 [changing, suspending or terminating recalculated amounts], if the recalculated amount differs from the current child support by at least the prescribed difference, the recalculated amount, or if corrected under section 156 [correction of recalculation], the corrected recalculated amount,

(a) is deemed for all purposes to be the amount payable under an agreement or order respecting child support, and

(b) takes effect 31 days after the notification date, regardless of any effective date or other direction stated in an agreement or order respecting child support.

(5) If an order for child support is issued out of a prescribed court registry,

(a) the order must indicate which provision of the child support guidelines is relevant to the determination of child support by the court, and

(b) the registry must promptly provide a copy of the order to the child support service.

Correction of recalculation

156   (1) The child support service may amend a statement of recalculation to correct one or more of the following:

(a) a clerical or typographical error;

(b) an arithmetical error made in the computation of the recalculated amount;

(c) an error or accidental or inadvertent omission or other similar mistake.

(2) The child support service may make a correction

(a) on its own initiative within the prescribed period, or

(b) on the request of a payor or recipient, if the request is made

(i) in the form and manner prescribed, and

(ii) within the prescribed period.

(3) If a statement of recalculation is corrected, the child support service must notify the payor and recipient of the correction by sending to them an amended statement of recalculation.

Changing, suspending or terminating recalculated amounts

157   (1) On application by a payor or recipient who disagrees with a recalculated amount or, if corrected under section 156 [correction of recalculation], a corrected recalculated amount, a court may make an order under section 152 [changing, suspending or terminating orders respecting child support].

(2) An application under subsection (1)

(a) may be made no more than 30 days after the notification date, and

(b) must be made to the court that made the order respecting child support or in which the agreement respecting child support was filed.

(3) If an application is made under this section, the operation of section 155 (4) [recalculation of child support] is suspended, and the current child support continues in effect until

(a) an order is made under section 152, in which case, the payor is liable to pay child support as ordered by the court on and after the effective date of the order,

(b) the application is dismissed or withdrawn, in which case, the payor is liable to pay child support in the amount set out in the statement of recalculation as of 31 days after the notification date, or

(c) the prescribed period has passed without the applicant having taken a prescribed step in the application, in which case, the payor is liable to pay child support in the amount set out in the statement of recalculation as of 31 days after the notification date.

Information to be given to child support service

158   (1) The following persons must promptly provide, on request of the child support service, prescribed information to the child support service at the prescribed times and in the prescribed manner:

(a) the payor, the recipient, and the assignees of each of them, to a written agreement respecting child support that has been filed in a court;

(b) the payor, the recipient, and the assignees of each of them, to a proceeding started in a prescribed court registry in which an order for child support is made.

(2) If a person does not provide information as required under subsection (1), the child support service, in recalculating amounts of child support, may make the assumptions and apply any factors or criteria set out in the regulations.

(3) A person required to provide information under subsection (1) may authorize the child support service, by giving the prescribed form to the child support service in the prescribed manner, to request and receive the information from any other person.

Notices

159   (1) A notice or other record required to be given under this Division or the regulations made under section 247 [regulations respecting child support] is deemed to be received on the last date of the prescribed period.

(2) If a child support service is required to give a notice or other record, the notice or other record must be given in accordance with the regulations.

Division 4 — Spousal Support

Duty to provide support for entitled spouse

160   If, after considering the objectives set out in section 161 [objectives of spousal support], a spouse is entitled to spousal support, the other spouse has a duty to provide support for the spouse in accordance with section 162 [determining spousal support].

Objectives of spousal support

161   In determining entitlement to spousal support, the parties to an agreement or the court must consider the following objectives:

(a) to recognize any economic advantages or disadvantages to the spouses arising from the relationship between the spouses or the breakdown of that relationship;

(b) to apportion between the spouses any financial consequences arising from the care of their child, beyond the duty to provide support for the child;

(c) to relieve any economic hardship of the spouses arising from the breakdown of the relationship between the spouses;

(d) as far as practicable, to promote the economic self-sufficiency of each spouse within a reasonable period of time.

Determining spousal support

162   The amount and duration of spousal support, if any, must be determined on consideration of the conditions, means, needs and other circumstances of each spouse, including the following:

(a) the length of time the spouses lived together;

(b) the functions performed by each spouse during the period they lived together;

(c) an agreement between the spouses, or an order, relating to the support of either spouse.

Agreements respecting spousal support

163   (1) An agreement respecting spousal support may provide for the circumstances under which spousal support will change or end, including if a spouse lives with another person or enters a relationship with another spouse, but a condition of spousal support that the spouse abstain from sexual relations after separation is not binding.

(2) Despite section 160 [duty to provide support for entitled spouse], in making an agreement respecting spousal support, a spouse may agree to release the other spouse from liability for spousal support.

(3) A written agreement respecting spousal support that is filed in the court is enforceable under this Act and the Family Maintenance Enforcement Act as if it were an order of the court.

Setting aside agreements respecting spousal support

164   (1) This section applies if spouses have a written agreement respecting spousal support, with the signature of each spouse witnessed by at least one person.

(2) For the purposes of subsection (1), the same person may witness each signature.

(3) On application by a spouse, the court may set aside or replace with an order made under this Division all or part of an agreement described in subsection (1) only if satisfied that one or more of the following circumstances existed when the parties entered into the agreement:

(a) a spouse failed to disclose income, significant property or debts, or other information relevant to the negotiation of the agreement;

(b) a spouse took improper advantage of the other spouse's vulnerability, including the other party's ignorance, need or distress;

(c) a spouse did not understand the nature or consequences of the agreement;

(d) other circumstances that would under the common law cause all or part of a contract to be voidable.

(4) The court may decline to act under subsection (3) if, on consideration of all of the evidence, the court would not replace the agreement with an order that is substantially different from that set out in the agreement.

(5) Despite subsection (3), the court may set aside or replace with an order made under this Division all or part of an agreement if satisfied that none of the circumstances described in that subsection existed when the parties entered into the agreement but that the agreement is significantly unfair on consideration of the following:

(a) the length of time that has passed since the agreement was made;

(b) any changes, since the agreement was made, in the condition, means, needs or other circumstances of a spouse;

(c) the intention of the spouses, in making the agreement, to achieve certainty;

(d) the degree to which the spouses relied on the terms of the agreement;

(e) the degree to which the agreement meets the objectives set out in section 161 [objectives of spousal support].

(6) Despite subsection (1), the court may apply this section to an unwitnessed written agreement if the court is satisfied it would be appropriate to do so in all of the circumstances.

Orders respecting spousal support

165   (1) On application, the court may order a spouse to pay to a designated person the amount the court considers appropriate as spousal support after taking into consideration section 160 [duty to provide support for entitled spouse].

(2) An application under subsection (1) may be made

(a) by either spouse or both,

(b) on behalf of a spouse, by a designated agency under the Adult Guardianship Act after an investigation conducted under Part 3 of that Act, or

(c) if the right to apply for an order under this section is assigned to a minister under the Employment and Assistance Act or the Employment and Assistance for Persons with Disabilities Act, by the minister to whom the right is assigned in the name of the government or the name of the person who made the assignment.

(3) The court may not make an order respecting spousal support if the spouses have an agreement described in section 164 (1) [setting aside agreements respecting spousal support], unless all or part of the agreement is set aside under that section.

Misconduct of spouse

166   In making an order respecting spousal support, the court must not consider any misconduct of a spouse, except conduct that arbitrarily or unreasonably

(a) causes, prolongs or aggravates the need for spousal support, or

(b) affects the ability to provide spousal support.

Changing, suspending or terminating orders respecting spousal support

167   (1) On application, a court may change, suspend or terminate an order respecting spousal support, and may do so prospectively or retroactively.

(2) Before making an order under subsection (1), the court must be satisfied that at least one of the following exists, and take it into consideration:

(a) a change in the condition, means, needs or other circumstances of either spouse has occurred since the order respecting spousal support was made;

(b) evidence of a substantial nature that was not available during the previous hearing has become available;

(c) evidence of a lack of financial disclosure by either spouse was discovered after the order was made.

(3) Despite subsection (2), if an order requires payment of spousal support for a definite period or until a specified event occurs, the court, on an application made after the expiration of that period or occurrence of that event, may not make an order under subsection (1) for the purpose of resuming spousal support unless satisfied that

(a) the order is necessary to relieve economic hardship that

(i) arises from a change described in subsection (2) (a), and

(ii) is related to the relationship between the spouses, and

(b) the changed circumstances, had they existed at the time the order was made, would likely have resulted in a different order.

Review of spousal support

168   (1) An agreement or order respecting spousal support may provide for a review of spousal support, and for this purpose may provide for

(a) the review to occur on or after a specified date, after a specified period of time or after a specified event has occurred,

(b) the type of family dispute resolution by which the review will take place,

(c) the grounds on which a review will be permitted, and

(d) the matters to be considered for the purposes of a review.

(2) On review, a court, on application, may do one or more of the following:

(a) confirm an agreement or order respecting spousal support;

(b) set aside all or part of an agreement, or terminate an order, respecting spousal support;

(c) make an order under section 165 [orders respecting spousal support].

(3) In making an order under this section, the court is not required to consider any of the matters referred to in sections 164 [setting aside agreements respecting spousal support] and 167 (2) [changing, suspending or terminating orders respecting spousal support].

Review of spousal support if pension benefits

169   (1) This section applies if an agreement or order does not address whether spousal support may be reviewed under section 168 [review of spousal support] and if

(a) a spouse who must pay spousal support starts receiving benefits under a pension, or

(b) a spouse who is entitled to receive spousal support becomes eligible to receive benefits under a pension.

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

(a) confirm an agreement or order respecting spousal support;

(b) set aside all or part of an agreement, or terminate an order, respecting spousal support;

(c) make an order under section 165 [orders respecting spousal support].

(3) In making an order under this section, the court is not required to consider any of the matters referred to in sections 164 [setting aside agreements respecting spousal support] and 167 (2) [changing, suspending or terminating orders respecting spousal support].

Division 5 — General

Matters that may be provided for in support orders

170   In an order respecting child support or spousal support, the court may provide for one or more of the following:

(a) that payments be made periodically, annually or otherwise, for an indefinite or limited period or until a specified event occurs;

(b) that child support or spousal support be paid respecting any period of time before the date the application for the order is made;

(c) that payment of a lump sum be made, directly or in trust;

(d) that a charge be registered against specific property to secure payment;

(e) that a person who has a contract of life insurance within the meaning of Part 3 of the Insurance Act

(i) designate his or her spouse or child as a beneficiary, irrevocably or for the period designated by the court, and

(ii) either pay all premiums on the policy, or authorize his or her spouse to pay all premiums on the policy and to compensate the spouse for doing so;

(f) that expenses arising from and incidental to prenatal care of a mother or child, or the birth of a child, be paid, except in relation to the prenatal care of a surrogate within the meaning of section 29 (1) [parentage if surrogacy arrangement];

(g) subject to section 171 (1) [support obligations after death], that a duty to pay child support or spousal support continues after the death of the person having the duty, and is a debt of his or her estate for the period fixed by the court.

Support obligations after death

171   (1) Before making an order under section 170 (g) [matters that may be provided for in support orders], the court must consider all of the following factors:

(a) that the person receiving child support or spousal support has a significant need for support that is likely to continue past the death of the person paying child support or spousal support;

(b) that the estate of the person paying child support or spousal support is sufficient to meet the need referred to in paragraph (a) after taking into account all claims on the estate, including those of creditors and beneficiaries;

(c) that no other practical means exist to meet the need referred to in paragraph (a).

(2) If an agreement, or an order under section 170 (g), is made and the person having a duty to pay child support or spousal support dies, the person's personal representative may make an application, and the court may make an order, to

(a) set aside or replace with an order made under this Part all or part of the agreement, or

(b) change, suspend or terminate the order.

(3) If a person having a duty to pay child support or spousal support under an agreement or order dies and the agreement or order is silent respecting whether the duty continues after the death of the person and is a debt of his or her estate,

(a) the person receiving support may make an application under section 149 [orders respecting child support] or 165 [orders respecting spousal support], and

(b) if, on consideration of the factors set out in subsection (1) of this section, an order is made, the duty to pay child support or spousal support continues despite the death of the person and is a debt of his or her estate for the period fixed by the court.

Separate support amounts required

172   If the court makes both an order for child support and an order for spousal support, the court must specify the amounts of support separately rather than as a single amount.

Priority of child support

173   (1) In making an agreement or order respecting spousal support, the parties to the agreement and the court must give priority to any duty to pay child support.

(2) If, as a result of giving priority to a duty to pay child support, the parties do not make an agreement respecting spousal support or make an agreement respecting spousal support in an amount that is less than it otherwise would have been,

(a) the agreement must indicate that the circumstances referred to in this subsection apply, and

(b) if child support is subsequently reduced or terminated,

(i) the reduction or termination is a change in circumstances, and

(ii) the court may make an order under section 165 [orders respecting spousal support].

(3) If, as a result of giving priority to a duty to pay child support, a court is unable to make an order respecting spousal support or makes an order respecting spousal support in an amount that is less than it otherwise would have been,

(a) the court must give reasons for doing so, and

(b) if child support is subsequently reduced or terminated,

(i) the reduction or termination is a change in circumstances, and

(ii) the court may make an order under section 165 or 167 [changing, suspending or terminating orders respecting spousal support], as applicable.

(4) Section 164 [setting aside agreements respecting spousal support] does not apply to the making of an order under this section.

Reducing or cancelling arrears

174   (1) On application, a court may reduce or cancel arrears owing under an agreement or order respecting child support or spousal support if satisfied that it would be grossly unfair not to reduce or cancel the arrears.

(2) For the purposes of this section, the court may consider

(a) the efforts of the person responsible for paying support to comply with the agreement or order respecting support,

(b) the reasons why the person responsible for paying support cannot pay the arrears owing, and

(c) any circumstances that the court considers relevant.

(3) If a court reduces arrears under this section, the court may order that interest does not accrue on the reduced arrears if satisfied that it would be grossly unfair not to make such an order.

(4) If a court cancels arrears under this section, the court may cancel interest that has accrued, under section 11.1 of the Family Maintenance Enforcement Act, on the cancelled arrears if satisfied that it would be grossly unfair not to cancel the accrued interest.

Part 8 — Children's Property

Definitions

175   In this Division and the regulations made under section 248 (1) (c) [general regulation-making powers]:

"deliver property" includes pay money;

"person having a duty to deliver property to a child" means a person who

(a) is under a duty to deliver property to a child, or

(b) would be under a duty to deliver property to a child if the child were an adult;

"trust instrument" means a will, a deed, a declaration or another written record by which a person creates a trust;

"trustee" means a person authorized under

(a) a trust instrument,

(b) this Act or any other enactment, or

(c) an order made under this Act or any other enactment

to receive or hold property in trust for a child.

Guardian not automatically entitled to receive property

176   Except as set out in section 178 [delivery of small property], a child's guardian is not, by reason only of being a guardian,

(a) a trustee of the child's property, or

(b) entitled to give a valid discharge on receiving property on behalf of the child.

Delivery of any property to trustee

177   A person having a duty to deliver property to a child may discharge the duty by delivering the relevant property to a trustee who is authorized to receive that property.

Delivery of small property

178   (1) This section does not apply to any of the following property:

(a) property that a trustee has authority to receive or hold for a child;

(b) property whose value is more than the prescribed amount;

(c) property that is within a prescribed class of property.

(2) A person having a duty to deliver property to a child may discharge the duty by

(a) delivering the relevant property

(i) to the child, if the child has a duty to support another person, or

(ii) to a guardian having parental responsibilities with respect to the child as set out in section 41 (a) [parental responsibilities], and

(b) obtaining an acknowledgement in the prescribed form from the person to whom the property is delivered.

(3) A person who delivers property in accordance with subsection (2) is entitled to rely on a representation in the acknowledgement received under subsection (2) (b).

(4) Despite subsection (2) (a), a child or guardian may not receive property under that subsection if receiving the property would cause the child to hold, or the guardian to hold on behalf of the child, property whose value exceeds the amount prescribed for the purposes of subsection (1) (b).

(5) A guardian who receives property under this section holds the property in trust for the child.

(6) Nothing in this section

(a) affects the duty of a trustee to deal with trust property in accordance with the terms of the trust, or

(b) prevents a person having a duty to deliver property to a child from discharging the duty by delivering the property to the Public Guardian and Trustee in trust, if the Public Guardian and Trustee is willing to accept the property.

Appointment of trustee by Supreme Court

179   (1) Subject to subsection (2), the Supreme Court on application may appoint one or more persons as trustees over

(a) particular property to which the child is entitled, including any property derived from the property or from the disposition of the property, or

(b) all property to which the child is entitled at the time the order is made and to which the child becomes entitled while the order is in effect, except property

(i) identified in the order, or

(ii) over which a trustee already has authority.

(2) The Supreme Court may appoint a trustee only if satisfied that it is in the best interests of the child to do so, on consideration of all of the following:

(a) the apparent ability of the proposed trustee to administer the property;

(b) the merits of the proposed trustee's plan for administering the property;

(c) the views of the child, unless it would be inappropriate to consider them;

(d) the personal relationship between the proposed trustee and the child;

(e) the wishes of the child's guardians;

(f) the written comments of the Public Guardian and Trustee;

(g) the potential benefits and risks of appointing the proposed trustee to administer the property compared to other available options for administering the property;

(h) if the Supreme Court is considering making an order under subsection (1) (b), that the interests of the child are likely better served by an order made under that subsection than by an order made under subsection (1) (a).

(3) An order made under this section to appoint a trustee may do one or more of the following:

(a) require the trustee to deliver the trustee's accounts at specified intervals for the examination and approval of the court;

(b) limit the duration of the trusteeship;

(c) specify or limit the types of investment in which the trustee may invest the property;

(d) provide for compensation of the trustee including, without limitation, setting rates and specifying when the compensation may be taken;

(e) require the trustee to give security in any form the court directs;

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

(4) Except as provided for in an order made under this section, the Trustee Act applies to the trustee and the trust.

Subsequent applications respecting trustee

180   The Supreme Court on application may do one or more of the following, by order, respecting an order made under section 179 [appointment of trustee by Supreme Court], if satisfied that it would be in the best interests of the child to do so:

(a) change the order;

(b) require the trustee to deliver an account of the property over which the trustee has authority to another trustee appointed under section 179, to the Public Guardian and Trustee or to another person;

(c) require the trustee to reimburse the child for any loss caused by any act or omission of the trustee;

(d) remove or discharge the trustee;

(e) substitute or add a trustee;

(f) terminate the trustee's appointment and require any property held by the trustee to be transferred to another trustee appointed under section 179, to the Public Guardian and Trustee or to another person;

(g) make any other order or give any other directions the court considers appropriate.

When child's property must be delivered to child

181   Unless a trust instrument, an order or an enactment provides otherwise, a trustee must deliver to the child or the child's legal representative, when the child reaches the age of 19 years,

(a) the property, and

(b) an account of the property.

Part 9 — Protection from Family Violence

Definitions

182   In this Part and the regulations made under section 248 (1) (d) [general regulation-making powers]:

"at-risk family member" means a person whose safety and security is or is likely at risk from family violence carried out by a family member;

"firearm" has the same meaning as in the Criminal Code;

"residence" means a place where an at-risk family member normally or temporarily resides, including a place that was vacated because of family violence;

"weapon" has the same meaning as in the Criminal Code.

Orders respecting protection

183   (1) An order under this section

(a) may be made on application by a family member claiming to be an at-risk family member, by a person on behalf of an at-risk family member, or on the court's own initiative, and

(b) need not be made in conjunction with any other proceeding or claim for relief under this Act.

(2) A court may make an order against a family member for the protection of another family member if the court determines that

(a) family violence is likely to occur, and

(b) the other family member is an at-risk family member.

(3) An order under subsection (2) may include one or more of the following:

(a) a provision restraining the family member from

(i) directly or indirectly communicating with or contacting the at-risk family member or a specified person,

(ii) attending at, nearing or entering a place regularly attended by the at-risk family member, including the residence, property, business, school or place of employment of the at-risk family member, even if the family member owns the place, or has a right to possess the place,

(iii) following the at-risk family member,

(iv) possessing a weapon, a firearm or a specified object, or

(v) possessing a licence, registration certificate, authorization or other document relating to a weapon or firearm;

(b) limits on the family member in communicating with or contacting the at-risk family member, including specifying the manner or means of communication or contact;

(c) directions to a police officer to

(i) remove the family member from the residence immediately or within a specified period of time,

(ii) accompany the family member, the at-risk family member or a specified person to the residence as soon as practicable, or within a specified period of time, to supervise the removal of personal belongings, or

(iii) seize from the family member anything referred to in paragraph (a) (iv) or (v);

(d) a provision requiring the family member to report to the court, or to a person named by the court, at the time and in the manner specified by the court;

(e) any terms or conditions the court considers necessary to

(i) protect the safety and security of the at-risk family member, or

(ii) implement the order.

(4) Unless the court provides otherwise, an order under this section expires one year after the date it is made.

(5) If an order is made under this section at the same time as another order is made under this Act, including an order made under Division 5 [Orders Respecting Conduct] of Part 10, the orders must not be recorded in the same document.

Whether to make protection order

184   (1) In determining whether to make an order under this Part, the court must consider at least the following risk factors:

(a) any history of family violence by the family member against whom the order is to be made;

(b) whether any family violence is repetitive or escalating;

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

(d) the current status of the relationship between the family member against whom the order is to be made and the at-risk family member, including any recent separation or intention to separate;

(e) any circumstance of the family member against whom the order is to be made that may increase the risk of family violence by that family member, including substance abuse, employment or financial problems, mental health problems associated with a risk of violence, access to weapons, or a history of violence;

(f) the at-risk family member's perception of risks to his or her own safety and security;

(g) any circumstance that may increase the at-risk family member's vulnerability, including pregnancy, age, family circumstances, health or economic dependence.

(2) If family members are seeking orders under this Part against each other, the court must consider whether the order should be made against one person only, taking into account

(a) the history of, and potential for, family violence,

(b) the extent of any injuries or harm suffered, and

(c) the respective vulnerability of the applicants.

(3) For the purposes of subsection (2), the person who initiates a particular incident of family violence is not necessarily the person against whom an order should be made.

(4) The court may make an order under this Part regardless of whether any of the following circumstances exist:

(a) an order for the protection of the at-risk family member has been made previously against the family member against whom an order is to be made, whether or not the family member complied with the order;

(b) the family member against whom the order is to be made is temporarily absent from the residence;

(c) the at-risk family member is temporarily residing in an emergency shelter or other safe place;

(d) criminal charges have been or may be laid against the family member against whom the order is to be made;

(e) the at-risk family member has a history of returning to the residence and of living with the family member against whom the order is to be made after family violence has occurred;

(f) an order under section 225 [orders restricting communications] has been made, respecting the at-risk family member, against the family member against whom the order is to be made.

If child a family member

185   If a child is a family member, the court must consider, in addition to the factors set out in section 184 [whether to make protection order],

(a) whether the child may be exposed to family violence if an order under this Part is not made, and

(b) whether an order under this Part should also be made respecting the child if an order under this Part is made respecting the child's parent or guardian.

Orders without notice

186   (1) An application for an order under this Part may be made without notice.

(2) If an order is made under this Part without notice, the court, on application by the party against whom the order is made, may

(a) set aside the order, or

(b) make an order under section 187 [changing or terminating orders respecting protection].

Changing or terminating orders respecting protection

187   (1) On application by a party, a court may do one or more of the following respecting an order made under this Part:

(a) shorten the term of the order;

(b) extend the term of the order;

(c) otherwise change the order;

(d) terminate the order.

(2) An application under this section must be made before the expiry of the order that is the subject of the application.

(3) Nothing in subsection (2) of this section prohibits a person from making a subsequent application for an order under section 183 [orders respecting protection].

Enforcing orders respecting protection

188   (1) An order made under this Part may not be enforced

(a) by means of any order that may be made under this Act, or

(b) under the Offence Act.

(2) A police officer having reasonable and probable grounds to believe that a person has contravened a term of an order made under this Part may

(a) take action to enforce the order, whether or not there is proof that the order has been served on the person, and

(b) if necessary for the purpose of paragraph (a), use reasonable force.

Conflict between orders

189   (1) In this section, "protection order" means any of the following orders:

(a) an order made under this Part;

(b) an order, made under the Criminal Code, that restricts a person from contacting or communicating with another person;

(c) an order, made by a court in British Columbia or another jurisdiction in Canada, that is similar in nature to an order made under this Part.

(2) If there is a conflict or an inconsistency between a protection order and an order made under a Part of this Act other than this Part, the other order is suspended, to the extent of the conflict or inconsistency, until

(a) either the other order or the protection order is varied in such a way that the conflict or inconsistency is eliminated, or

(b) the protection order is terminated.

Rights not affected by Act

190   The making of an order under this Part does not affect any existing right of action of a person who has been the subject of family violence.

Extraprovincial orders

191   The Enforcement of Canadian Judgments and Decrees Act applies to an order, made by a court in another jurisdiction of Canada, that is similar to an order made under this Part.

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

(a) family dispute resolution with a family dispute resolution professional, or

(b) a prescribed process.

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 3Standing in Indigenous Matters

Guardianship of Nisa'a child

208   (1) [Repealed 2014-32-28.]

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

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

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

(4) As provided in paragraph 95 of the Nisa'a Government Chapter of the Nisa'a Final Agreement, the participation of the Nisa'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.

(3) The Provincial Court on application by a party may change, suspend or terminate an order, including an interim order, made by a decision maker who is

(a) appointed under the Provincial Court Act, and

(b) in a class of decision makers prescribed under this Act.

(4) For certainty, the Provincial Court may make an order under subsection (3) despite the following provisions:

(a) subsection (1);

(b) section 47 [changing, suspending or terminating orders respecting parenting arrangements];

(c) section 60 [changing, suspending or terminating orders respecting contact];

(d) section 152 (2) [changing, suspending or terminating orders respecting child support];

(e) section 167 (2) [changing, suspending or terminating orders respecting spousal support];

(f) section 216 (3) and (4) [court may make interim orders].

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.

Part 11 — Search Officers

Definitions

235   In this Part and the regulations made under section 248 (1) (f) [general regulation-making powers]:

"child care or support issue" means any matter related to, or similar in nature to, guardianship, parenting arrangements, contact with a child, child support or spousal support, including a matter in respect of which Division 8 [International Child Abduction] of Part 4 applies;

"party or potential party" means a party or potential party to an agreement or order in relation to a child care or support issue;

"public body" has the same meaning as in the Freedom of Information and Protection of Privacy Act;

"search officer" means a search officer appointed under section 236 [search officers];

"searchable information" means searchable information, including personal information, as described in section 237 [searchable information];

"support order" means any of the following:

(a) an order respecting child support or spousal support;

(b) a support order within the meaning of the Interjurisdictional Support Orders Act;

(c) an order of a court or tribunal, made in any jurisdiction, that is similar in nature to an order respecting child support or spousal support.

Search officers

236   For the purposes of this Part, the minister by order may appoint as search officers persons employed under the Public Service Act.

Searchable information

237   (1) Subject to subsection (2), the following information is searchable information:

(a) information necessary to identify or confirm a party's or potential party's identity or address, or both;

(a.1) a party's or potential party's social insurance number;

(b) information respecting

(i) a party's or potential party's location, address and contact information,

(ii) the name of a party's or potential party's employer, and the party's or potential party's location and address of employment,

(iii) the location of a party's or potential party's assets or source of income, and

(iv) the particulars of a party's or potential party's assets or income;

(c) for the purposes of section 238 (b) [requesting and disclosing searchable information], information respecting a protection order, within the meaning of section 189 [conflict between orders], made against a party or potential party.

(2) The following is not searchable information:

(a) personal correspondence between a party or potential party and a parent, child, spouse or sibling of the party or potential party;

(b) information in the possession or control of

(i) a party's or potential party's solicitor, if the information is subject to solicitor-client privilege,

(ii) a family justice counsellor, or

(iii) a person prescribed for the purposes of section 11 (1) (b) [confidentiality of information];

(c) information that cannot, under section 9 (1) (b) of the Statistics Act, be disclosed.

Requesting and disclosing searchable information

238   Searchable information may be requested or disclosed under this Part only to the extent necessary to do one or more of the following:

(a) provide information for the purposes of

(i) taking an action, or determining whether to take an action, in relation to a child care or support issue,

(ii) recalculating the amount of child support under an agreement or order,

(iii) enforcing rights or duties in relation to a child care or support issue, including under an enactment of any jurisdiction or under an international convention, or

(iv) fulfilling a duty under an international convention;

(b) protect the safety and security of a person who

(i) is a party to an agreement or order in relation to a child care or support issue, or is a child of a party,

(ii) is a search officer, or

(iii) is a person to whom information is being provided under paragraph (a);

(c) provide information for the purposes of assisting a party to a family law dispute to obtain

(i) an order under Part 9 [Protection from Family Violence], or

(ii) an order similar in nature to an order under Part 9 that may be made under an enactment of any jurisdiction or under an international convention;

(d) provide information for the purposes of assisting a party to a family law dispute to enforce an order described in paragraph (c).

Requesting searchable information

239   (1) A search officer may request searchable information from any person.

(2) A person in British Columbia who receives a request for searchable information under subsection (1) and who has possession or control of the information must provide the information in the manner and form requested, and within the time requested.

(3) Subsection (2) applies despite any other enactment or any common law rule of privilege or confidentiality.

Disclosing searchable information

240   (1) A search officer may disclose searchable information to the following persons:

(a) employees, officers and directors of a public body;

(b) a person who is entitled to apply for an order under this Act in relation to a child care or support issue;

(c) a person, a service or an agency to whom the director under the Family Maintenance Enforcement Act has delegated a power or duty under section 2 of that Act;

(d) an officer of a court;

(e) an employee of the ministry of the Government of Canada responsible for the administration of the Family Orders and Agreements Enforcement Assistance Act (Canada);

(f) a public officer of a jurisdiction outside British Columbia whose duties are related to child care or support issues;

(g) a prescribed person.

(2) If a search officer has reason to believe that the safety or security of a person may be at risk, the search officer may

(a) refuse to disclose searchable information that is relevant to a child care or support issue, or

(b) disclose searchable information on condition that the person to whom it is being disclosed not disclose it further, including to a person on whose behalf the person to whom the information is being disclosed is acting.

Information-sharing agreements

241   (1) The minister may enter into information-sharing agreements to facilitate requests for and disclosures of searchable information as authorized under this Part.

(2) An information-sharing agreement must identify all of the following:

(a) the nature and type of searchable information that may be requested or disclosed under the agreement;

(b) the persons, by name, title or position, who may request or disclose searchable information under the agreement;

(c) any limits or conditions on the use or disclosure of shared searchable information;

(d) the term of the agreement and the circumstances in which the agreement may be renewed, suspended or terminated.

Orders respecting searchable information

242   (1) If satisfied that a person has refused, or not adequately complied with, a request made under section 239 [requesting searchable information] for searchable information,

(a) a court on application by a search officer may order the person to provide to the applicant searchable information that is in the possession or control of that person, and

(b) the person subject to the order must provide the information in the manner and form required, and within the time required.

(2) Subsection (1) applies despite any other enactment or any common law rule of privilege or confidentiality.

(3) Sections 230 [enforcing orders generally] and 231 [extraordinary remedies] do not apply in respect of an order made under subsection (1) of this section.

Restrictions on disclosure of information

243   (1) A search officer must not disclose information obtained under this Part except

(a) as necessary for the purpose for which the information was obtained, or

(b) to protect a person or property if the search officer reasonably believes that there is a risk of imminent and serious harm.

(2) A person who is not a search officer must not disclose information obtained under this Part except

(a) as necessary for the purpose for which the information was obtained, and

(b) in accordance with any conditions imposed under section 240 (2) (b) [disclosing searchable information].

(3) Subsections (1) and (2) of this section apply despite any provision of the Freedom of Information and Protection of Privacy Act, other than section 44 (1) (b), (2), (2.1) and (3) of that Act.

(4) This section does not apply to

(a) personal information, as defined in the Freedom of Information and Protection of Privacy Act, that has been in existence for 100 years or more,

(b) information not described by paragraph (a) that has been in existence for 50 years or more, or

(c) information for research purposes disclosed under section 33.1 (1) (s) of the Freedom of Information and Protection of Privacy Act.

Offences

244   (1) A person commits an offence if the person does any of the following:

(a) contravenes section 239 (2) [requesting searchable information];

(b) without reasonable excuse, fails to comply with an order under section 242 (1) [orders respecting searchable information];

(c) contravenes section 243 (1) or (2) [restrictions on disclosure of information];

(d) knowingly provides false or misleading information to a search officer.

(2) Despite section 232 [Offence Act application] of this Act, section 4 of the Offence Act applies in respect of a conviction for an offence under subsection (1) of this section.

Part 12 — Regulations

Regulations respecting family dispute resolution

245   (1) The Lieutenant Governor in Council may make regulations respecting family dispute resolution as follows:

(a) prescribing processes to be included as family dispute resolution processes, and making regulations respecting those processes;

(b) prescribing classes of persons who may be family dispute resolution professionals;

(c) respecting the training, experience and other qualifications a person must have, and requirements a person must meet, to be qualified as a family dispute resolution professional;

(d) respecting practice standards that a family dispute resolution professional must meet

(i) to continue to be qualified as a family dispute resolution professional, and

(ii) while acting as a family dispute resolution professional;

(e) for the purposes of section 8 [duties of family dispute resolution professionals],

(i) prescribing the training, experience and other qualifications that a person must have to assess whether family violence is present,

(ii) requiring that a family dispute resolution professional who does not have the training, experience and other qualifications required under subparagraph (i) ensure that the parties to the family law dispute are assessed for family violence by a person who does have the required training, experience and other qualifications,

(iii) respecting records to be made in relation to an assessment for family violence and any assistance provided,

(iv) respecting the matters that must be considered in assessing whether family violence may be present, and

(v) respecting actions to be taken after an assessment, and putting limits and conditions on the taking of those actions;

(f) for the purposes of sections 11 [confidentiality of information] and 12 [family justice counsellors not to be compelled],

(i) prescribing classes of persons to which section 11 (1) (b) applies,

(ii) respecting the types of information to which sections 11 and 12 apply, and

(iii) providing for exceptions to the prohibitions set out in sections 11 and 12, and putting limits or conditions on those exceptions;

(g) for the purposes of sections 15 [when parenting coordinators may assist] and 18 [determinations by parenting coordinators],

(i) prescribing matters with which parenting coordinators may assist or in respect of which parenting coordinators may make determinations,

(ii) respecting limits and conditions on the giving of assistance or the making of determinations, and

(iii) prescribing matters with which, or circumstances in which, parenting coordinators must not assist, or matters in respect of which, or circumstances in which, parenting coordinators must not make determinations.

(2) For the purposes of subsection (1) of this section and without limiting section 249 (3) [other regulation-making powers], the Lieutenant Governor in Council may make different regulations for different classes of family dispute resolution.

(3) The Lieutenant Governor in Council may make regulations requiring parties to a family law dispute to engage in family dispute resolution or undertake prescribed procedures, and for this purpose, may make regulations respecting one or more of the following:

(a) the nature or type of mandatory family dispute resolution or procedures;

(b) limits or conditions on engaging in mandatory family dispute resolution or undertaking procedures;

(c) steps that a person must take before engaging in or during mandatory family dispute resolution or before undertaking or during procedures;

(d) requiring that a person do something, or prohibiting a person from doing something, before the person engages in mandatory family dispute resolution or undertakes procedures, or during mandatory family dispute resolution or mandatory procedures;

(e) exempting a person or class of persons, with or without conditions, from engaging in mandatory family dispute resolution or undertaking procedures, or respecting the circumstances in which a person or class of persons may be exempted;

(f) any other matter in relation to engaging in mandatory family dispute resolution or undertaking procedures as necessary for the purposes of section 9 [duties of parties respecting dispute resolution] or 197 [complying with duties respecting family dispute resolution].

(4) Without limiting this section, the Lieutenant Governor in Council may make regulations respecting arbitration of family law disputes.

Regulations respecting pension division

246   The Lieutenant Governor in Council may make regulations respecting the division of pension benefits as follows:

(a) respecting what is, or is not, a hybrid plan, local plan or plan;

(b) respecting the methods and assumptions to be followed for the valuation, division and transfer of benefits at the end of a relationship between spouses, including

(i) the determination of a separate pension,

(ii) the method of calculating the proportionate share of benefits under a plan,

(iii) the determination of the duration of a relationship between spouses for the purpose of determining a spouse's proportionate share,

(iv) the administration of an original agreement or order for the purposes of section 112 (3) (a) (ii) [original agreements and orders], and

(v) entitlement to a proportionate share of benefits under a supplemental plan;

(c) respecting the methods and assumptions to be followed for the calculation of any compensation payment or commuted value at the end of a relationship between spouses;

(d) respecting the rights of limited members, including providing that a limited member does not have a right of a member or modifying the rights of a limited member;

(e) respecting the procedures to be followed by a spouse, a member and an administrator when dividing benefits, satisfying a spouse's entitlement to benefits, or choosing a date to receive benefits under a plan;

(f) respecting the information an administrator must make available to a spouse or limited member about a plan or benefit entitlement and when the information must be provided, including

(i) requiring that different information be provided at different times, and

(ii) in relation to providing advance notice to a spouse before an administrator takes any action with respect to a pension;

(g) respecting the information respecting a member that an administrator must not disclose without the member's written consent;

(h) respecting the content of, and manner of giving or withdrawing, any notice or waiver under this Part;

(i) respecting the consequences and procedures to be followed for failing to give, or failing to comply with, a notice under Part 6 [Pension Division];

(j) respecting the method of calculating a compensation payment or a transfer of a share of benefits for the purposes of section 128 (1) [determining compensation];

(k) respecting the period for the purposes of section 137 (2) [implementing division of benefits];

(l) respecting the methods and assumptions to be followed for the adjustment of a member's benefits;

(m) prescribing the amount of any administrative fee.

Regulations respecting child support

247   (1) The Lieutenant Governor in Council may make regulations establishing child support guidelines, which may include regulations as follows:

(a) respecting the calculation of child support;

(b) respecting particulars that must be included in an order respecting child support;

(c) respecting the circumstances in which discretion may be exercised in the making or changing of an order respecting child support;

(d) respecting the circumstances that may justify changing, suspending or terminating an order respecting child support;

(e) respecting the determination of income for the purposes of applying the child support guidelines;

(f) authorizing a court to impute income for the purposes of applying the child support guidelines;

(g) respecting the disclosure of income information and providing for sanctions if that information is not provided.

(2) The Lieutenant Governor in Council may make regulations for the purposes of Division 3 [Child Support Service] of Part 7 as follows:

(a) respecting the child support service, including its establishment, structure, operations and duties;

(b) respecting the determination of the notification date;

(c) respecting the assumptions, factors and criteria that the child support service may use in recalculating child support;

(d) respecting the circumstances in which the child support service must decline to recalculate child support, including restricting the child support service from acting respecting agreements or orders made, filed or issued before a date set out in the regulations;

(e) respecting provisions that must be included in agreements respecting child support for child support to be recalculated;

(f) prescribing court registries;

(g) prescribing the difference for the purposes of section 155 (4) [recalculation of child support];

(h) respecting the steps to be taken for the purposes of section 157 (3) (c) [changing, suspending or terminating recalculated amounts];

(i) respecting information that may be requested by the child support service under section 158 [information to be given to child support service];

(j) respecting the manner in which, and the time within which, a thing may or must be done;

(k) prescribing the periods referred to in the Division;

(l) respecting the rights and duties, in relation to the child support service, of payors and recipients;

(m) respecting the giving of notice or other records, including waiving the requirement to give a notice or record.

General regulation-making powers

248   (1) The Lieutenant Governor in Council may make regulations as follows:

(a) prescribing one or more classes of constables for the purposes of the definition of "police officer" in section 1 [definitions];

(b) prescribing fees for the purposes of section 99 (2) [filing in land title office];

(c) for the purposes of section 178 (1) [delivery of small property],

(i) respecting the determination of the value of property,

(ii) prescribing an amount, including in relation to a single item of property, to more than one item of property or to all property delivered, received or held, and

(iii) prescribing classes of property;

(d) respecting the content of orders made under section 183 [orders respecting protection];

(e) for the purposes of section 207 [information accompanying orders], respecting the information that must be provided, the persons who must provide it and the manner in which it must be provided;

(f) prescribing persons for the purposes of section 240 (1) (g) [disclosing searchable information];

(g) defining "expenses" for the purposes of one or more provisions in this Act, including limiting expenses or putting conditions on what may be considered expenses.

(2) The Lieutenant Governor in Council may prescribe forms for the purposes of this Act, or authorize the minister to make forms.

(3) The Lieutenant Governor in Council may make regulations respecting any other matter for which regulations are contemplated by this Act.

Other regulation-making powers

249   (1) The Lieutenant Governor in Council may make regulations referred to in section 41 of the Interpretation Act.

(2) A person must not read any section of this Part as limiting the general powers to make regulations described in subsection (1).

(3) A regulation made under this Act may

(a) establish classes of persons, and

(b) make different regulations for different classes of persons.

(4) A regulation made under this Act may confer a discretion on the minister.

(5) A regulation made under this Act may adopt by reference, in whole or in part and with any changes the Lieutenant Governor in Council considers appropriate, a regulation, code, standard or rule

(a) enacted as or under a law of another jurisdiction, including a foreign jurisdiction, or

(b) set by a provincial, national or international body or any other body that may make codes, standards or rules.

(6) Unless stated otherwise, a regulation, code, standard or rule referred to in subsection (5) is adopted as amended from time to time.

Part 13 — Transitional Provisions

Definition

250   In this Part, "former Act" means the Family Relations Act, R.S.B.C. 1996, c. 128, as it read immediately before its repeal by this Act.

Transition — care of and time with children

251   (1) If an agreement or order, made before the coming into force of this section, provides a party with

(a) custody or guardianship of a child, the party is a guardian of the child under this Act and has parental responsibilities and parenting time with respect to the child under this Act, or

(b) access to, but not custody or guardianship of, a child, the party has contact with the child under this Act.

(2) For the purposes of subsection (1), a party's parental responsibilities, parenting time or contact with a child under this Act are as described in the agreement or order respecting custody, guardianship and access.

Transition — proceeding respecting property division

252   (1) This section applies despite the repeal of the former Act and the enactment of Part 5 [Property Division] of this Act.

(2) Unless the spouses agree otherwise,

(a) a proceeding to enforce, set aside or replace an agreement respecting property division made before the coming into force of this section, or

(b) a proceeding respecting property division started under the former Act

must be started or continued, as applicable, under the former Act as if the former Act had not been repealed.

Transition — pension benefits

253   (1) Subject to subsections (2) and (3), if forms prescribed under the former Act were delivered to the administrator before Part 6 [Pension Division] of this Act comes into force, the former Act continues to apply to the division of benefits between a member and spouse.

(2) If a spouse became a limited member under the former Act but benefits have not been divided as of the date Part 6 of this Act comes into force, Part 6 of this Act applies to the division of benefits.

(3) If, after an application was made under the former Act for the spouse to become a limited member, the administrator consulted with the member and spouse respecting how the former Act would apply to an agreement or order dividing benefits between the member and spouse, the former Act continues to apply to the extent of, and in accordance with, that consultation.

(4) If forms prescribed under the former Act are delivered to an administrator after Part 6 of this Act comes into force, the administrator may

(a) accept the forms as compliance with the requirements of Part 6 of this Act, or

(b) require the parties to give notice in accordance with section 136 [notice or waiver] of this Act.

Transition — changing, suspending or terminating orders

254   For greater certainty, the coming into force of this Act is not in itself a change in circumstances for the purposes of any section of this Act in relation to the changing, suspending or terminating of orders.

Transition — restraining orders

255   An order made under section 37, 38, 124 or 126 of the former Act continues in force in accordance with the terms of the order.

Transition — regulations

256   (1) The Lieutenant Governor in Council may make regulations the Lieutenant Governor in Council considers necessary or advisable for the orderly transition from the former Act to this Act.

(2) The authority to make or amend a regulation made under subsection (1), but not the authority to repeal a regulation made under subsection (1), ends 3 years after the date on which subsection (1) comes into force.

Part 14 — Repeals, Related Amendment and Consequential Amendments

Repeals

Section(s) Affected Act
257 Family Law Act
258-259 Family Relations Act

Related Amendment

Section(s) Affected Act
260 Family Law Act

Consequential Amendments

Section(s) Affected Act
261-278 Adoption Act
279-281 Adult Guardianship Act
282 Business Corporations Act
283 Carbon Tax Act
284 Child Care BC Act
285 Child Care Subsidy Act
286-304 Child, Family and Community Service Act
305-313 Commercial Arbitration Act
314 Consumption Tax Rebate and Transition Act
315 Court of Appeal Act
316-317 Court Order Enforcement Act
318 Court Rules Act
319 Credit Union Incorporation Act
320-321 Cremation, Interment and Funeral Services Act
322 Criminal Injury Compensation Act
323 Election Act
324 Employee Investment Act
325 Employment and Assistance Act
326 Employment and Assistance for Persons with Disabilities Act
327 Employment Standards Act
328-330 Enforcement of Canadian Judgments and Decrees Act
331-335 Estate Administration Act
336-338 Evidence Act
339 Expropriation Act
340 Family Compensation Act
341-351 Family Maintenance Enforcement Act
352-356 Family Relations Act
357 Financial Disclosure Act
358 Financial Institutions Act
359-360 Forest Act
361 Gaming Control Act
362 Health Care (Consent) and Care Facility (Admission) Act
363 Health Professions Act
364 Home Owner Grant Act
365 Hotel Room Tax Act
366 Human Tissue Gift Act
367 Independent School Act
368 Indian Self Government Enabling Act
369 Industrial Roads Act
370-376 Infants Act
377-378 Insurance Act
379-380 Insurance Amendment Act, 2009
381 Insurance (Vehicle) Act
382 Insurance Premium Tax Act
383-386 Interjurisdictional Support Orders Act
387 Judicial Compensation Act
388-392 Land (Spouse Protection) Act
393 Land Tax Deferment Act
394-395 Land Title Act
396-399 Law and Equity Act
400 Legal Profession Act
401 Local Government Act
402 Logging Tax Act
403-406 Marriage Act
407 Medicare Protection Act
408 Members' Conflict of Interest Act
409 Mental Health Act
410 Miscellaneous Statutes Amendment Act, 2009
411-412 Miscellaneous Statutes Amendment Act (No. 2), 2011
413 Motor Fuel Tax Act
414-416 Name Act
417 Notaries Act
418-419 Parental Responsibility Act
420-423 Pension Benefits Standards Act
424-425 Personal Property Security Act
426 Property Law Act
427-428 Property Transfer Tax Act
429-430 Provincial Court Act
431-433 Public Guardian and Trustee Act
434-436 Public Sector Pension Plans Act
437 Rent Distress Act
438-439 Representation Agreement Act
440 Residential Tenancy Act
441-443 School Act
444 Securities Act
445 Small Business Venture Capital Act
446 Social Service Tax Act
447 South Coast British Columbia Transportation Authority Act
448 Supplements Repeal Act
449 Taxation (Rural Area) Act
450 Tobacco Tax Act
451 Utilities Commission Act
452 Victims of Crime Act
453-462 Vital Statistics Act
463-464 Wills Act
465-469 Wills, Estates and Succession Act
470 Wills, Estates and Succession Amendment Act, 2011
471 Wills Variation Act
472-478 Workers Compensation Act
479-480 Youth Justice Act
481 Schedule to this Act

Commencement

482   The provisions of this Act referred to in column 1 of the following table come into force as set out in column 2 of the table:

ItemColumn 1
Provisions of Act
Column 2
Commencement
1Anything not elsewhere covered by this tableThe date of Royal Assent
2Sections 1 to 256By regulation of the Lieutenant Governor in Council
3Sections 259 and 260By regulation of the Lieutenant Governor in Council
4Sections 262 to 299By regulation of the Lieutenant Governor in Council
5Section 300 On the coming into force of section 24 of the Miscellaneous Statutes Amendment Act (No. 2), 2011, S.B.C. 2011, c. 13
6Sections 301 to 335By regulation of the Lieutenant Governor in Council
7Sections 338 to 351By regulation of the Lieutenant Governor in Council
8Sections 357 to 368By regulation of the Lieutenant Governor in Council
9Sections 370 to 380By regulation of the Lieutenant Governor in Council
10Sections 382 to 387By regulation of the Lieutenant Governor in Council
11Section 389 By regulation of the Lieutenant Governor in Council
12Sections 391 to 396By regulation of the Lieutenant Governor in Council
13Sections 398 to 402By regulation of the Lieutenant Governor in Council
14Sections 406 and 407By regulation of the Lieutenant Governor in Council
15Sections 412 and 413By regulation of the Lieutenant Governor in Council
16Sections 415 to 425By regulation of the Lieutenant Governor in Council
17Sections 427 to 436By regulation of the Lieutenant Governor in Council
18Sections 438 to 441By regulation of the Lieutenant Governor in Council
19Sections 443 to 462By regulation of the Lieutenant Governor in Council
20Sections 465 to 471By regulation of the Lieutenant Governor in Council
21Section 473By regulation of the Lieutenant Governor in Council
22Section 475By regulation of the Lieutenant Governor in Council
23Sections 478 to 481By regulation of the Lieutenant Governor in Council

Schedule

(Section 481)

ItemColumn 1
Act being amended
Column 2
Section or other provision
1Bee Act
R.S.B.C. 1996, c. 29
5 (3) (a)
2Community Care and Assisted Living Act
S.B.C. 2002, c. 75
21 (5)
3Community Charter
S.B.C. 2003, c. 26
41 (5)
43 (2)
4Cooperative Association Act
S.B.C. 1999, c. 28
208 (4)
5Emergency Program Act
R.S.B.C. 1996, c. 111
19 (3)
6Environmental Management Act
S.B.C. 2003, c. 53
87 (4) (b)
7Estate Administration Act
R.S.B.C. 1996, c. 122
103 (3)
8Fisheries Act
R.S.B.C. 1996, c. 149
21 (6)
9Forest Act
R.S.B.C. 1996, c. 157
60.93
155 (e)
10Forest and Range Practices Act
S.B.C. 2002, c. 69
22.3 (3) (b)
11Forest and Range Practices Amendment Act, 2003
S.B.C. 2003, c. 55
17, as it enacts section 27.2 (5) (b) of the Forest and Range Practices Act, S.B.C. 2002, c. 69
12Forestry Revitalization Act
S.B.C. 2003, c. 17
6 (6)
13Forests Statutes Amendment Act (No. 2), 2003
S.B.C. 2003, c. 56
2, as it enacts section 10.1 (4) (b) of the Forest Act, R.S.B.C. 1996, c. 157
14Heritage Conservation Act
R.S.B.C. 1996, c. 187
11 (4)
15Hospital Act
R.S.B.C. 1996, c. 200
48 (5)
49 (2)
16Industrial Operation Compensation Act
R.S.B.C. 1996, c. 222
3 (4)
17Labour Relations Code
R.S.B.C. 1996, c. 244
97
18Land Act
R.S.B.C. 1996, c. 245
91 (2) (b) and (3)
19Library Act
R.S.B.C. 1996, c. 264
29 (6)
20Limitation Act
R.S.B.C. 1996, c. 266
1, in paragraph (a) (v) of the definition of "local judgment"
21Local Government Act
R.S.B.C. 1996, c. 323
747.2 (8) (b)
813.13 (6)
939 (9)
969 (4)
22Manufactured Home Park Tenancy Act
S.B.C. 2002, c. 77
51 (5)
23Partnership Act
R.S.B.C. 1996, c. 348
27 (j)
24Property Transfer Tax Act
R.S.B.C. 1996, c. 378
37 (2) (o)
25Range Act
S.B.C. 2004, c. 71
41
26Residential Tenancy Act
S.B.C. 2002, c. 78
58 (5)
27South Coast British Columbia Transportation Authority Act
S.B.C. 1998, c. 30
46 (4) (f) (ii)
28Strata Property Act
S.B.C. 1998, c. 43
175 (2) (b)
211 (4)
214 (4)
29Vancouver Charter
S.B.C. 1953, c. 55
314 (1) (g) and (3) (a)
570 (3)
595 (4)
30Water Act
R.S.B.C. 1996, c. 483
47 (1)