November 24, 2011

1198514681/11016/104281841

E4tlc11025

Interpretation

Definitions

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;

companion animal means, subject to

section 3.1 [companion animals] , an animal that is kept primarily for the purpose of companionship;

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

the Supreme Court, or

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

assistance from a family justice counsellor under Division 2 [Family Justice Counsellors] of

Part 2,

the services of a parenting coordinator under Division 3 [Parenting Coordinators] of

Part 2,

mediation, arbitration, collaborative family law and other processes, and

prescribed processes;

family dispute resolution professional means any of the following:

a family justice counsellor;

a parenting coordinator;

a lawyer advising a party in relation to a family law dispute;

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

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

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

the person's spouse or former spouse,

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

a parent or guardian of the person's child,

a person who lives with, and is related to,

the person, or

a person referred to in any of paragraphs (

a) to (c), or

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, with or without an intent to harm a family member,

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,

sexual abuse of a family member,

attempts to physically or sexually abuse a family member,

psychological or emotional abuse of a family member, including

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

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

iii

stalking or following of the family member, and

intentional damage to property, and

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 ,

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

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

A reference to an agreement or order

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

includes part of an agreement or order.

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

each parent or guardian of the child, or

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

Spouses and relationships between spouses

A person is a spouse for the purposes of this Act if the person

is married to another person, or

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

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

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

A spouse includes a former spouse.

A relationship between spouses begins on the earlier of the following:

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

the date of their marriage.

For the purposes of this Act,

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

the court may consider, as evidence of separation,

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

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

Companion animals

3.1

For the purposes of this Act, the following are not companion animals:

a guide dog or service dog within the meaning of the Guide Dog and Service Dog Act ;

an animal that is kept as part of a business;

an animal that is kept for agricultural purposes.

Resolution of Family Law Disputes

Resolution Out of Court Preferred

Purposes of Part

The purposes of this Part are as follows:

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

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;

to encourage parents and guardians to

resolve conflict other than through court intervention, and

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

Duty to disclose

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.

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

Subject to this Act, 2 or more persons may make an agreement

to resolve a family law dispute, or

respecting

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

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.

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

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

Subsection (3) applies whether or not

there is consideration,

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

the agreement is filed with a court.

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

If an agreement changes a previous agreement,

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

the remainder of the previous agreement, if any, remains effective.

Duties of family dispute resolution professionals

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

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

the ability of the party to negotiate a fair agreement.

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

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

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.

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:

guardianship;

parenting arrangements;

contact with a child.

Duties of parties respecting family dispute resolution

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.

Family Justice Counsellors

Family justice counsellors

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

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

information respecting a family law dispute;

family dispute resolution, including respecting

guardianship,

parenting arrangements,

iii

contact with a child, and

child and spousal support;

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.

A family justice counsellor may assist the court under

section 211 [orders respecting reports] .

For the purpose of providing assistance under this section, the following persons may collect, from a person relevant to the matter, personal information about any other person:

a family justice counsellor;

a person within a class of persons prescribed for the purposes of

section 11 (1) (b) [confidentiality of information] .

Confidentiality of information

Except in accordance with the regulations,

a family justice counsellor must not disclose information obtained in the course of providing assistance under

section 10 (2) [family justice counsellors] , and

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

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

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 family justice counsellor;

a person within a class of persons prescribed for the purposes of

section 11 (1) (b) [confidentiality of information] .

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

Information obtained while receiving assistance

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

mediation, or

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.

Subsection (1) does not apply

if the other party consents to the use of the information,

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

was obtained at the expense of either or both parties,

contains expert advice or opinions, or

iii

was provided solely for the purposes of receiving assistance under

section 10 (2) (b),

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

to a written agreement between the parties

to mediate, or

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

Parenting Coordinators

Parenting coordinators

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

When parenting coordinators may assist

In this Division, parenting coordination agreement or order means a written agreement or an order to use a parenting coordinator.

A parenting coordinator may assist only

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

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

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.

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.

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.

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

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

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

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

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

information requested by the parenting coordinator, and

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

Assistance from parenting coordinators

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

by building consensus between the parties, including by

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

creating guidelines respecting communication between the parties,

iii

identifying, and creating strategies for resolving, conflicts between the parties, and

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

by making determinations respecting the matters prescribed for the purposes of

section 18 [determinations by parenting coordinators] .

Determinations by parenting coordinators

A parenting coordinator

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

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

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

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] .

A parenting coordinator may make a determination at any time.

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.

Subject to

section 19 [changing or setting aside determinations] , a determination

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

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

Changing or setting aside determinations

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

acted outside the parenting coordinator's authority, or

made an error of law or of mixed law and fact.

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.

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.

Arbitration

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

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.

Subject to subsection (3),

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

if the requirement under paragraph (

a) is not met, the arbitration agreement and any arbitration award arising from it are not enforceable.

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:

an order made under this Act;

an arbitration award respecting a family law dispute;

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

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

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

the matters or disputes that are to be submitted to arbitration;

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;

the procedures for conducting the arbitration, including the following:

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;

the process for financial disclosure by the parties;

iii

the form and manner in which evidence and argument are presented;

the process for the examination of witnesses;

the use of expert evidence;

the form of an arbitration award;

the authority of the arbitrator in respect of the following matters:

the administration of an oath or affirmation;

issuance of arbitration awards, including interim awards;

iii

conducting the arbitration in the absence of one or more of the parties;

costs of the arbitration, including awarding costs against a party.

Setting aside arbitration agreements

19.3

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

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

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

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

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.

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:

an order under

section 91 [temporary orders respecting protection of property] ;

an order under

Part 9 [Protection from Family Violence] ;

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:

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

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

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

An arbitrator must be independent of the parties.

An arbitrator must be impartial and act impartially.

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.

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

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.

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

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

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

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.

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.

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.

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

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

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

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.

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

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

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

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.

A subpoena under subsection (1) (

a) must set out, and a request under subsection (1) (

b) must propose, the following, as applicable:

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

the records the person is to produce;

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

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

A subpoena under subsection (1) (

a) has the same effect as if it were issued in a court proceeding.

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

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

make an interim arbitration award, and

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

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

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

An arbitrator must provide reasons for an arbitration award, unless

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

the award is an arbitration award on agreed terms.

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

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

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

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.

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.

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.

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).

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

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

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

the parties agree on the termination of the arbitration, or

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

Orders respecting arbitration awards

19.18

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

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

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

the award was obtained by fraud or duress;

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;

the arbitrator acted outside the arbitrator's authority.

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.

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

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.

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

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

confirm, amend or set aside the arbitration award;

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

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.

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

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

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

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

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

Confidentiality

19.22

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.

Subsection (1) does not apply if disclosure is

required by law,

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

authorized by a court order.

Parentage

General Matters

Interpretation

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

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

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

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

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.

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

For the purposes of this Part, if

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

the 2 persons live together during the marriage, and

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.

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

This Part does not affect a disposition of property under an enactment or instrument before the date this

section comes into force.

Determining Parentage

Parentage to be determined by this Part

For all purposes of the law of British Columbia,

a person is the child of the person's parents,

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

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

For the purposes of an instrument or enactment that refers to a person, described in terms of the person's 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

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

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

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

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

For the purposes of an instrument or enactment that refers to a person, described in terms of the person's 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

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

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.

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:

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

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

by his death,

by a judgment of divorce, or

iii

as referred to in

section 21 [void and voidable marriages] ;

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

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;

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 ;

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.

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

This

section applies if

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

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

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.

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

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

withdrew the consent to be the child's parent.

Parentage if assisted reproduction after death

This

section applies if

a child is conceived through assisted reproduction,

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

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

died before the child's conception, and

there is proof that the person

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,

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.

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 deceased person, and

regardless of whether the person 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

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

This

section applies if,

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

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,

the surrogate will not be a parent of the child,

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.

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:

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

after the child's birth,

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

an intended parent or the intended parents take the child into the intended parent's or parents' care.

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

is deceased or incapable of giving consent, or

cannot be located after reasonable efforts to locate the surrogate have been made.

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.

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.

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

the circumstances set out in

section 28 (1) [parentage if assisted reproduction after death] apply,

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

subsections (2) (

b) and (3) (

a) and (

b) apply.

Parentage if other arrangement

This

section applies if there is a written agreement that

is made before a child is conceived through assisted reproduction,

is made between

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

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

provides that

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

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

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.

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

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:

the Supreme Court;

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

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

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

each guardian of the child;

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

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

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

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.

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.

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

New evidence

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.

On application, a court may confirm or set aside an order made under

section 31, or make a new order under that section.

The setting aside of an order under subsection (2) of this

section does not affect

rights or duties that have already been exercised, or

property interests that have already been distributed.

Parentage tests

In this section, parentage tests are tests used to identify inheritable characteristics, and include

human leukocyte antigen tests,

tests of the deoxyribonucleic acid (DNA), and

any other test the court considers appropriate.

On application by a party to a proceeding under this Part,

the Supreme Court, or

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.

An order under subsection (2) of this

section may require a party to pay all or part of the cost of the parentage tests.

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.

Orders Made Outside British Columbia

Definitions

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

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

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] .

A court may decline to recognize an extraprovincial declaratory order made in Canada and make an order under

section 31, if

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

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

Recognition of non-Canadian extraprovincial declaratory orders

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

was habitually resident in the jurisdiction of the extraprovincial tribunal, or

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

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] .

A court may decline to recognize an extraprovincial declaratory order made outside Canada and make an order under

section 31, if

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

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

the extraprovincial declaratory order is contrary to public policy.

Care of and Time with Children

Best Interests of Child

Best interests of child

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.

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:

the child's health and emotional well-being;

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

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

the history of the child's care;

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

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 the person's responsibilities;

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;

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

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;

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

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.

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

For the purposes of

section 37 (2) (

g) and (h) [best interests of child] , a court must consider all of the following:

the nature and seriousness of the family violence;

how recently the family violence occurred;

the frequency of the family violence;

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

whether the family violence was directed toward the child;

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

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

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

any other relevant matter.

Parenting Arrangements

Parents are generally guardians

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.

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.

A parent who has never resided with the parent's child is not the child's guardian unless one of the following applies:

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

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

the parent regularly cares for the child.

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

Only a guardian may have parental responsibilities and parenting time with respect to a child.

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.

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

one or more guardians only, or

each guardian acting separately or all guardians acting together.

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:

that parental responsibilities should be allocated equally among guardians;

that parenting time should be shared equally among guardians;

that decisions among guardians should be made separately or together.

Parental responsibilities

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

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

making decisions respecting where the child will reside;

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

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

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;

subject to

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

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

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

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

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

subject to any applicable provincial legislation,

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

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

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

Parenting time

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.

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

A child's guardian must exercise parental responsibilities in the best interests of the child.

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

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

the allocation of parental responsibilities;

parenting time;

the implementation of an agreement made under this section;

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

An agreement respecting parenting arrangements is binding only if the agreement is made

after separation, or

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

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.

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

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

the allocation of parental responsibilities;

parenting time;

the implementation of an order made under this Division;

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

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

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.

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

This

section applies if all of the following circumstances exist:

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

an application is made for an order described in

section 45 (1) (

a) or (b) [orders respecting parenting arrangements] ;

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.

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

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

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

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

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

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.

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

an agreement respecting parenting arrangements, or

an order under

section 45 [orders respecting parenting arrangements] .

Referral of questions to court

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.

Guardianship

Agreements respecting guardianship

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

if the person is the child's parent, or

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

Orders respecting guardianship

On application, a court may

appoint a person as a child's guardian, or

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.

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.

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] .

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.

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

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:

each parent or guardian of the child affected by the application;

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

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

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

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

another person has custody of the child under

section 54.1 of the Child, Family and Community Service Act ;

another person has custody of the child under

section 54.01 (5) of the Child, Family and Community Service Act .

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

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

in a will made in accordance with the Wills, Estates and Succession Act , or

in the prescribed form,

signed at its end by the guardian, or the signature at the end must be acknowledged by the guardian as the guardian's, in the presence of 2 or more witnesses present at the same time, and

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

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

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

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.

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

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

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

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

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.

An appointment under subsection

(1) must be made in the prescribed form,

signed at its end by the guardian, or the signature at the end must be acknowledged by the guardian as the guardian's, in the presence of 2 or more witnesses present at the same time, and

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

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

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.

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

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

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.

In carrying out 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.

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

In making an appointment under

section 53 [appointment of guardian in case of death] or 55 [appointment of standby guardian] , the appointing guardian

must consider the best interests of the child only, and

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

Appointments must be accepted to take effect

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.

Contact with a Child

Agreements respecting contact

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.

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.

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.

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

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

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.

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.

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

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.

Compliance Respecting Parenting Time or Contact with a Child

Denial of parenting time or contact

An application under this

section may be made only

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

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

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:

require the parties to participate in family dispute resolution;

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

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

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;

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

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

give security in any form the court directs, or

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

require the guardian to pay

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

a fine not exceeding $5 000.

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

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:

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

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;

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;

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;

the applicant

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

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;

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

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

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:

require one or more of the things described in

section 61 (2) (a), (

b) or (e) [denial of parenting time or contact] ;

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;

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).

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

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

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:

give security in any form the court directs;

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;

transfer specific property to a trustee named by the court;

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

This

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

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.

Relocation

Definition and application

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 guardian, or

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

This Division applies if

a child's guardian plans to relocate themselves or the child, or both, and

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

Notice of relocation

Subject to subsection (2), a child's guardian who plans to relocate themselves 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

the date of the relocation, and

the name of the proposed location.

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

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

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

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

Resolving issues arising from relocation

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.

Nothing in subsection (1) prevents

a guardian from making an application under

section 69 [orders respecting relocation] , or

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

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

In this section, relocating guardian means a guardian who plans to relocate a child.

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

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.

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,

the relocating guardian must satisfy the court that

the proposed relocation is made in good faith, and

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

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.

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

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

that the relocation is in the best interests of the child.

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

the reasons for the proposed relocation;

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;

whether notice was given under

section 66 [notice of relocation] ;

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

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

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:

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;

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:

give security in any form the court directs;

transfer specific property to a trustee named by the court.

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

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] .

Extraprovincial Matters Respecting Parenting Arrangements

Definitions and

interpretation

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.

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

with the child's parents,

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

under an agreement,

with the implied consent of the other parent, or

iii

under an order of a court or tribunal, or

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

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

The purposes of this Division are as follows:

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;

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

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

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

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.

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:

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

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

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

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,

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

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

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

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

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

be removed from British Columbia.

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

A court must recognize an extraprovincial order if all of the following apply:

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

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

reasonable notice that the order would be made, and

a reasonable opportunity to be heard respecting the order;

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

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

On recognition by a court,

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

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

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

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

the child would suffer serious harm if that child were to

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

be removed from British Columbia, or

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

section applies.

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

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

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

the circumstances described in

section 74 (2) (b) (i), (ii), (

v) and (vi) [determining whether to act under this Part] apply, and

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

Wrongful removal of child

This

section applies if a court

may not make an order or declines to make an order under

section 74 [determining whether to act under this Part] , or

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

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

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

stay an application to the court for an order, subject to

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

any other conditions the court considers appropriate;

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

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

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

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

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

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

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.

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.

International Child Abduction

International child abduction

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

The

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

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

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

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.

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).

Division 7 [Extraprovincial Matters Respecting Parenting Arrangements] applies respecting

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

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

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

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.

Property Division

General Rules

Equal entitlement and responsibility

Subject to an agreement or order that provides otherwise and except as set out in this Part and

Part 6 [Pension Division] ,

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

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.

Certain presumptions not to be applied

81.1

The rule of law applying a presumption of advancement must not be applied in questions respecting the ownership of property as between spouses.

The rule of law applying a presumption of resulting trust must not be applied in questions respecting the ownership of property as between spouses.

Rights and remedies of third parties

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

Determining Family Property and Family Debt

Interpretation

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

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

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

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.

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.

In this Part, property includes a beneficial interest in property unless a contrary intention appears.

Family property

Subject to

section 85 [excluded property] , family property is all real property and personal property as follows:

on the date the spouses separate,

property that is owned by at least one spouse, or

a beneficial interest of at least one spouse in property;

after separation,

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

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.

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

a share or an interest in a corporation;

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

property owing to a spouse

as a refund, including an income tax refund, or

in return for the provision of a good or service;

money of a spouse in an account with a financial institution;

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

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;

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

the relationship between the spouses began, or

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.

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

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

the spouse has a power to transfer to themselves that part of the trust property, or

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

Excluded property

The following is excluded from family property:

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

inheritances to a spouse;

b.1

gifts to a spouse from a third party;

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

loss to both spouses, or

lost income of a spouse;

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

loss to both spouses, or

lost income of a spouse;

property referred to in any of paragraphs (

a) to (

d) that is held in trust for the benefit of a spouse;

a spouse's beneficial interest in property held in a discretionary trust

to which the spouse did not contribute, and

that is settled by a person other than the spouse;

property derived from property or the disposition of property referred to in any of paragraphs (

a) to (f).

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

If property is excluded from family property under subsection (1), the exclusion applies despite any transfer of legal or beneficial ownership of the property from a spouse to the other spouse.

Family debt

Family debt includes all financial obligations incurred by a spouse

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

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

Valuing family property and family debt

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

Part 6,

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

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

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

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

Before Agreement or Final Order is Made

Orders under this Division

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

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

family dispute resolution,

all or part of a proceeding under this Act, or

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

Temporary orders respecting family residence

For the purposes of this section, family residence means a residence that is

owned or leased by one spouse or both, and

the ordinary place of residence of the spouses.

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

exclusive occupation of a family residence, or

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

An order under this

section does not

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

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

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.

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

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

be postponed, and

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

change the order made under subsection (2).

Nothing in this

section prevents the filing of an entry under the Land (Spouse Protection) Act .

Temporary orders respecting protection of property

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.

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

for the possession, delivery, safekeeping and preservation of property;

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

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

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

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.

Despite

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

Dividing Family Property and Family Debt

Agreements respecting property division

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:

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

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

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

value family property or family debt differently than it would be valued under

section 87 [valuing family property and family debt] ;

jointly own a companion animal;

share possession of a companion animal;

give exclusive ownership or possession of a companion animal to one of the spouses.

Setting aside agreements respecting property division

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.

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

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

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

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

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

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.

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:

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

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

the degree to which the spouses relied on the terms of the agreement.

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

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

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

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

equally divide family property or family debt, or both, or

divide family property as required under

Part 6 [Pension Division] .

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

the duration of the relationship between the spouses;

the terms of any agreement between the spouses, other than an agreement described in

section 93 (1) [setting aside agreements respecting property division] ;

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

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

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;

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;

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

substantially reduced the value of family property, or

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;

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;

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

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

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

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

it would be significantly unfair not to divide excluded property on consideration of the duration of the relationship between the spouses and one or more of the following factors:

a spouse's direct contribution to the preservation, maintenance, improvement, operation or management of the excluded property;

the terms of any agreement between the spouses respecting the excluded property, other than an agreement described in

section 93 (1) [setting aside agreements respecting property division] , including but not limited to terms respecting the transfer of the excluded property;

iii

if the Supreme Court makes a determination under

section 95 (1) [unequal division by order] respecting significant unfairness, the extent to which the significant unfairness cannot be addressed by an unequal division of family property or family debt, or both.

Giving effect to property division

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

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

despite sections 94 (2) [orders respecting property division] and 215 (2) [changing, suspending or terminating orders generally] , and subject to subsections (3) to (4.3) of this section, as applicable, make any order that is necessary, reasonable or ancillary to give effect to the division.

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

declare who has ownership of, or right of possession to, property, including a companion animal;

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;

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;

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;

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;

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;

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 ;

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;

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

transfer property to a spouse.

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.

Nothing in this

section permits the Supreme Court to divide excluded property unless

division is permitted under

section 96 [division of excluded property] , or

the excluded property is a companion animal.

4.1

In determining whether to make an order under subsection (1) respecting a companion animal, the Supreme Court must consider the following factors:

the circumstances in which the companion animal was acquired;

the extent to which each spouse cared for the companion animal;

any history of family violence;

the risk of family violence;

a spouse's cruelty, or threat of cruelty, toward an animal;

the relationship that a child has with the companion animal;

the willingness and ability of each spouse to care for the basic needs of the companion animal;

any other circumstances the court considers relevant.

4.2

An order respecting a companion animal must not

declare that the spouses jointly own the companion animal, or

require the spouses to share possession of the companion animal.

4.3

Sections 95 [unequal division by order] and 96 do not apply to the making of an order respecting a companion animal.

Enforcing and Protecting Property Interests

Definitions

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

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

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

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

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.

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.

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.

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.

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

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.

If a registration is made,

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

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

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

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

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

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

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

cannot be located, after a reasonable search is made,

unreasonably refuses to

sign or file a cancellation notice under

section 99 (3), or

register a financing change statement under

section 100 (2) (b), or

is a person with a mental disorder.

Donor of gift is party to agreement

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

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.

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

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.

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

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

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

Jurisdiction and Choice of Law Rules

Definitions and

interpretation

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] .

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

This

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

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 spouse has started another proceeding in the Supreme Court, to which a proceeding under this

Part is a counterclaim;

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

either spouse is habitually resident in British Columbia at the time a proceeding under this

Part is started;

there is a real and substantial connection between British Columbia and the facts on which the proceeding under this

Part is based.

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

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

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

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

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.

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

[Repealed 2014-9-15.]

the relative convenience and expense for the spouses and their witnesses;

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

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

the extent to which an order respecting property or debt

made in another jurisdiction would be enforceable in British Columbia, and

made in British Columbia would be enforceable in another jurisdiction;

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

any other circumstances the court considers relevant.

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

The proper law of the relationship between the spouses for the purposes of

section 108 [choice of law rules] is

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

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

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

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 bet