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This Act is current to October 21, 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

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(a) each part of the previous agreement that is changed is deemed to have been revoked, and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

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