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1997 Legislative Session: 2nd Session, 36th Parliament

FIRST READING

The following electronic version is for informational purposes only.

The printed version remains the official version.

HONOURABLE UJJAL DOSANJH

ATTORNEY GENERAL AND

MINISTER RESPONSIBLE FOR

MULTICULTURALISM,

HUMAN RIGHTS AND

IMMIGRATION

BILL 31 – 1997

FAMILY RELATIONS AMENDMENT ACT, 1997

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province

of British Columbia, enacts as follows:

Section 1 of the Family Relations Act, R.S.B.C. 1996, c. 128, is amended

(

a) by adding the following definition:

"child support guidelines" means the child support guidelines established by

regulation under

section 129 for the calculation of maintenance awards; ,

(

b) by repealing paragraph (

b) in the definition of "parent" and substituting the

following:

(

b) a stepparent of a child if

(

i) the stepparent contributed to the support and maintenance of the child

for at least one year, and

(ii) the proceeding under this Act by or against the stepparent is

commenced within one year after the date the stepparent last

contributed to the support and maintenance of the child; ,

(

c) by repealing the definition of "spouse" and substituting the following:

"spouse" means a person who

(

a) is married to another person,

(

b) except under Parts 5 and 6, lived with another person in a marriage-like

relationship for a period of at least 2 years if the application under this Act

is made within one year after they ceased to live together and, for the

purposes of this Act, the marriage-like relationship may be between persons

of the same gender,

(

c) applies for an order under this Act within 2 years of the making of an order

(

i) for dissolution of the person's marriage,

(ii) for judicial separation, or

(iii) declaring the person's marriage to be null and void, or

(

d) is a former spouse for the purpose of proceedings to enforce or vary an

order. , and

(

d) by renumbering the

section as

section 1 (1) and by adding the following subsection:

(2) For the purpose of paragraph (

b) of the definition of "parent" in subsection (1), a

person is the stepparent of a child if the person and a parent of the child

(

a) are or were married, or

(

b) lived together in a marriage-like relationship for a period of at least 2 years

and, for the purposes of this Act, the marriage-like relationship may be

between persons of the same gender.

Section 3 (5) is repealed and the following substituted:

(5) Subsection (4) does not apply to

(

a) personal information, as defined in the Freedom of Information and

Protection of Privacy Act, that has been in existence for 100 or more years,

(

b) information not described by paragraph (

a) that has been in existence for 50

or more years, or

(

c) information for research purposes disclosed in accordance with

section 35

of the Freedom of Information and Protection of Privacy Act .

Section 9 is amended by adding the following subsection:

(3) If the application referred to in subsection (1) is for an order under

section 93 (1) (a), any interim order made must be in accord with the child

support guidelines and

section 93.2 to the extent that this is practicable given the

need for interim maintenance and the records and other information available at

the time of the hearing.

Section 10 is amended by adding the following subsection:

(4) This

section is subject to

section 93.1.

Section 39 is amended

(

a) in subsection (1) by striking out "address or location" and substituting "location,

address or place of employment" , and

(

b) in subsection (3) by striking out "must provide" and substituting "must within 10 days

provide" .

Section 41 (3) is repealed and the following substituted:

(3) Subsections (1) and (2) do not apply to

(

a) personal information, as defined in the Freedom of Information and

Protection of Privacy Act, that has been in existence for 100 or more years,

(

b) information not described by paragraph (

a) that has been in existence for 50

or more years, or

(

c) information for research purposes disclosed in accordance with

section 35

of the Freedom of Information and Protection of Privacy Act .

Section 70 is amended

(

a) in subsection (1) by repealing the definition of "extraprovincial plan" and substituting the following definition:

"extraprovincial plan" means a plan that is not a local plan and includes

(

a) a supplemental pension plan to a local plan or extraprovincial plan, or

(

b) a plan whose only members are "specified individuals" as defined in the

regulations under the Income Tax Act (Canada); , and

(

b) by repealing subsection (2) (

a) and substituting the following:

(a) "administrator" , "benefit" , "defined

contribution plan" , "former member" , "member" and "supplemental

pension plan" have the same meaning as they have in

section 1 (1) of the

Pension Benefits Standards Act , .

Section 71 is amended in subsection (3) by striking out "for the purposes of subsection (2)

(a)," and substituting "for the purposes of this Part," .

Section 74 (

a) is repealed and the following substituted:

(

a) is entitled to have, before the member retires, a proportionate share of the

commuted value of the pension transferred from the plan to the credit of the

spouse when the member

(

i) is eligible to retire, or

(ii) terminates his or her membership in the pension plan, or .

Section 75 is amended by repealing subsection (2) and substituting the following:

(2) Despite subsection (1), a spouse may elect, with the consent of the administrator,

to have the pension divided as if it were in a defined benefit plan.

11 The following

section is added:

Supreme Court retains a discretion

75.1

(1) If, in the circumstances, the method of division required under this Part and the

regulations is inappropriate because of the terms of the plan, the Supreme Court,

despite the Pension Benefits Standards Act or any other Act purporting to limit

the jurisdiction of a court to make an appropriate order respecting pension

entitlement of the member and the spouse on marriage breakdown, may direct an

appropriate method of division of the pension and the order of the court is binding

on the plan.

(2) Unless the application of

section 65 requires the share to the spouse to be larger,

an order under subsection (1) must leave the member with at least half of

(

a) the value the pension would have had, or

(

b) the periodic benefits that would have been paid under the pension on

retirement

had there been no division of the pension between the member and the spouse.

Section 76 (2) is repealed and the following substituted:

(2) Despite subsection (1), if no other spouse is entitled to receive a proportionate

share of benefits paid under the pension, the spouse who is the designated

beneficiary of a postretirement survivor benefit under the pension is entitled to

the whole of the postretirement survivor benefit.

Section 78 (1) is repealed and the following substituted:

(1) If a member dies before the limited member receives a share of the pension under

section 74, and the limited member is not entitled to the whole of any preretirement survivor benefit payable under the member's pension, then the limited

member is entitled to a proportionate share of that preretirement survivor benefit

in the form of

(

a) a separate benefit, or

(

b) if the preretirement survivor benefit is in the form of an annuity, a separate

pension determined in accordance with the regulations.

Section 79 is amended by striking out "section 40 (1)" and substituting "section 33 (5) or

40 (1)" .

Section 80 is amended

(

a) by repealing subsection (1) (

a) and substituting the following:

(

a) an arrangement for sharing the pension that departs from the shares required

under this Act so long as the share to the spouse leaves the member with at

least half of

(

i) the value the pension would have had, or

(ii) the periodic benefits that would have been paid under the pension on

retirement

had there been no division of the pension between the member and spouse; ,

(

b) in subsection (2) by striking out "section 72 (1)" and substituting "section 72 (1) or

73" , and

(

c) by adding the following subsections:

(2.1) If the spouse and member agree under subsection (2) to divide the pension in

accordance with this Part, then, unless the spouse and member otherwise agree,

for the purposes of this Part

(

a) the original agreement or order dividing the pension applies as if it were

made as of the date of the agreement under subsection (2),

(

b) despite paragraph (c), subsection (1) or

section 75.1, the spouse's proportionate share of the pension is determined by the share or formula set out in

the original agreement or order,

(

c) the original agreement or order dividing the pension is of no further effect

to the extent that it contains provisions that are inconsistent with division

under this Part because they

(

i) provide for a different method of pension division, or

(ii) are inapplicable because of changed circumstances, and

(

d) to the extent that the original agreement or order dividing the pension

contains provisions that clarify, supplement or are collateral to division

under this Part, those provisions continue in effect.

(2.2) A term in an order or agreement, whenever made, that requires the member to

sever, or to assist the spouse in severing, the spouse's share from the member's

pension as soon as it becomes possible to do so is conclusively deemed to be an

agreement referred to in subsection (2), unless the parties otherwise agree or the

court otherwise orders, made as of the date the plan receives notice in the

prescribed form under subsection (2).

Section 87 is amended by adding the following definition:

"child" includes a person who is 19 years of age or older and, in relation to the

parents of the person, is unable, because of illness, disability or other cause, to

withdraw from their charge or to obtain the necessaries of life; .

Section 88 (1) is repealed and the following substituted:

(1) Each parent of a child is responsible and liable for the reasonable and necessary

support and maintenance of the child.

Section 93 is repealed and the following substituted:

Order for support and maintenance

(1) Subject to the Divorce Act (Canada), a court may make an order on application,

or if the court makes or refuses an order for judicial separation or dissolution of

marriage or a declaration that a marriage is null and void, requiring a party to the

proceeding to discharge his or her liability

(

a) under

section 88 by paying to the person designated in the order the amount

the court ascertains, using the child support guidelines, and

(

b) under

section 89 or 90, as the case may be, by paying to the person

designated in the order the amount the court considers reasonable.

(2) Despite subsection (1) (a), a court may make an order to discharge a liability

under

section 88 by paying to the person designated in the order an amount that

differs from the amount the court ascertains, using the child support guidelines,

if the court is satisfied that

(

a) provisions in an order, a judgment or a written agreement respecting the

financial obligations of the parents, or the division or transfer of their

property, directly or indirectly benefit the child, or that special provisions

have otherwise been made for the benefit of the child, and

(

b) the application of the child support guidelines would be inequitable in the

circumstances of the provisions to which paragraph (

a) refers.

(3) If the court makes an order under subsection (2), it must record its reasons for

having done so.

(4) If a spouse will be living separate and apart from the spouse against whom the

application is made, the court may, as it considers appropriate, adjust the amount

of its order under subsection (1) (

b) to take into account the needs, means,

capacities and economic circumstances of each spouse, including the following:

(

a) the effect on the earning capacity of each spouse arising from responsibilities assumed by each spouse during cohabitation;

(

b) any other source of support and maintenance for the applicant spouse;

(

c) the desirability of the applicant spouse having special assistance to achieve

financial independence from the spouse against whom the application is

made;

(

d) the obligation of the spouse against whom application is made to support

another person;

(

e) the capacity and reasonable prospects of a spouse obtaining education or

training.

(5) An order under this

section may also provide for one or more of the following:

(

a) payment periodically, annually or otherwise, and either for an indefinite or

limited period or until the happening of a specified event;

(

b) payment of a lump sum directly or in trust on terms provided;

(

c) charging of property with payment under the order;

(

d) payment of support and maintenance beginning on the date the application

in the proceeding was served on the respondent;

(

e) payment for expenses arising from and incidental to

(

i) the prenatal care of the mother or child, or

(ii) the birth of a child.

(6) If an order under this

section benefits more than one person, the court must

specify the amount payable, as the case may be, for a spouse, a parent or the

children.

Consent orders

93.1

(1) In proceedings under

section 93 or 96 a court may award an amount that is

different from the amount calculated under the child support guidelines, on the

consent of the parties to the proceedings, if the court is satisfied that reasonable

arrangements have been made for the support of the children to whom the order

relates.

(2) For the purposes of subsection (1) the court must consider the child support

guidelines in determining whether reasonable arrangements have been made for

the support of the children to whom the order relates but must not consider the

arrangements to be unreasonable solely because the amount calculated under the

child support guidelines differs from the amount to which the parties consent.

Priority

93.2

(1) If a court is considering making an order under

section 93, or in proceedings

under

section 96, the court must give priority to maintenance under

section 88.

(2) If, as a result of subsection (1), the court is unable to make an order under

section 93 (1) (

b) or makes an order under

section 93 (1) (

b) in an amount that is

less than it would have otherwise been,

(

a) the court must record its reasons for having done so, and

(

b) any subsequent reduction or termination of the obligation to pay under the

order made under

section 93 (1) (

a) constitutes a change described in

section 96 (1) for the purposes of applying for

(

i) an order under

section 93 (1) (b), if one was not made previously, or

(ii) a variation of the order under

section 93 (1) (b), if one was made in

an amount that is less than it would have been otherwise.

Section 96 is amended

(

a) in subsection (1) by striking out "maintenance order," and substituting "maintenance

order not described in subsection (1.1)," , and

(

b) by adding the following subsections:

(1.1) To vary or rescind a maintenance order as defined in

section 87 respecting the

obligation under

section 88 to support and maintain children, a court must

(

a) be satisfied that a change in circumstances as provided for under the child

support guidelines has occurred since the making or last variation of the

maintenance order, and

(

b) if satisfied that a change in circumstances as provided for under the child

support guidelines has occurred, apply only the child support guidelines to

determine the change of the amount of the maintenance obligation under the

order.

(1.2) Despite subsection (1.1) (b), a court may vary a maintenance order, as defined in

section 87 respecting the obligation under

section 88 to support and maintain

children, to an amount that differs from the amount the court ascertains using the

child support guidelines, if the court is satisfied that

(

a) provisions in an order, a judgment or a written agreement respecting the

financial obligations of the parents, or the division or transfer of their

property, directly or indirectly benefit the child, or that special provisions

have otherwise been made for the benefit of the child, and

(

b) the application of the child support guidelines would be inequitable in the

circumstances of the provisions to which paragraph (

a) refers.

(1.3) If the court makes an order under subsection (1.2), it must record its reasons for

doing so.

Section 99 is amended

(

a) in subsection (3) by striking out "or" at the end of paragraph (

a) and by adding the

following paragraph:

(a.1) the particulars of the assets or income, or , and

(

b) in subsection (5) by striking out "must provide" and substituting "must within 10 days

provide" .

Section 100 is amended

(

a) in subsection (1) by striking out "or" at the end of paragraph (

c) and by adding the

following paragraph:

(c.1) the particulars of the assets or income, or , and

(

b) by repealing subsection (6) and substituting the following:

(6) Subsections (4) and (5) do not apply to

(

a) personal information, as defined in the Freedom

of Information and Protection of Privacy Act , that has been in existence

for 100 or more years,

(

b) information not described by paragraph (

a) that has been in existence for 50

or more years, or

(

c) information for research purposes disclosed in accordance with

section 35

of the Freedom of Information and Protection of Privacy Act .

22 The following

section is added:

Property agreements

120.1

(1) If spouses who are not married to each other make an agreement, Parts 5 and 6

apply to

(

a) the agreement, and

(

b) if covered by the agreement,

(

i) an annuity,

(ii) a pension or an interest in a pension plan,

(iii) a home ownership savings plan, or

(iv) property not described in subparagraphs (

i) to (iii).

(2) In this section:

"agreement" means an agreement that would be

(

a) a marriage agreement for the purposes of

Part 5 if the spouses were married

to each other, or

(

b) a separation agreement if the spouses were married to each other or

separated after marriage;

"property" means property of a spouse that would be a family asset under

Part 5 if

the spouses were married to each other.

Section 121 (1) is amended by repealing the

definitions of "child" and "spouse" and

substituting the following

definitions:

"child" means a person who is acknowledged in a written agreement filed under this

section to be the responsibility of a party to the agreement and who is

(

a) under the age of 19 years, or

(b) 19 years of age or older and, in relation to the party to the agreement, is

unable, because of illness, disability or other cause, to withdraw from that

party's charge or to obtain the necessaries of life;

"spouse" means a spouse as described in paragraph (a), (

b) or (

c) of the definition

of "spouse" in

section 1 (1) and includes a person who acknowledges in a written

agreement filed under this

section that he or she is or was a spouse of another

person, whether or not they are or were married.

Section 129 is repealed and the following substituted:

Power to make regulations

(1) The Lieutenant Governor in Council may make regulations referred to in

section 41 of the

Interpretation Act .

(2) Without limiting subsection (1), the Lieutenant Governor in Council may make

regulations establishing child support guidelines for the making or variation of

maintenance orders as defined in

section 87 respecting the obligation under

section 88 to support and maintain children, including interim orders to support

and maintain children, and these may include regulations as follows:

(

a) respecting the way in which an award for maintenance for children is to be

calculated;

(

b) respecting the particulars that must be included in a maintenance order;

(

c) respecting the circumstances in which discretion may be exercised in the

making or variation of maintenance orders;

(

d) respecting the circumstances that may justify the variation or rescission of

a maintenance order;

(

e) respecting the determination of income for the purposes of the application

of the child support guidelines;

(

f) authorizing a court to impute income for the purposes of the application of

the child support guidelines;

(

g) respecting the production of income information and providing for

sanctions if that information is not provided.

(3) A regulation under this

section may incorporate by reference, with any changes

the Lieutenant Governor in Council considers appropriate, all or any part of a

code, rule or standard as published by a provincial, national or international body

as amended from time to time before or after the making of the regulation and

relating to the subject matter of this Act.

Commencement

25 This Act comes into force by regulation of the Lieutenant Governor in Council.

Explanatory Notes

[This Bill amends the Revised Statutes of British Columbia,

1996. The Revised Statutes of British Columbia, 1996 came into force on April

21, 1997.]

SECTION 1: [Family Relations Act, amends

section 1] adds the definition of "child support

guidelines" for use principally in

Part 7 of the Act and amends the

definitions

of "spouse" and "parent" to more clearly include same gender relationships.

SECTION 2: [Family Relations Act, repeals and replaces

section 3 (5)] provides that information disclosed to a family court counsellor may be provided to a valid

research project in a form that does not personally identify persons referred to

in the information.

SECTION 3: [Family Relations Act, adds

section 9 (3)] provides that in making an interim

maintenance order for children the court will adhere to the child support guidelines but do so only to the extent that is practicable given the immediate need

of the children for maintenance and possible deficiencies in the records and

other verifiable information available to the court for purposes of applying the

guidelines.

SECTION 4: [Family Relations Act, adds

section 10 (4)] ensures that the child maintenance

provisions in an order made by a court by consent of the parties to the proceedings are made in a manner consistent with the requirements of

section 93.1 of

the Act.

SECTION 5: [Family Relations Act, amends

section 39] ensures that an enforcement

officer under the Act will be able to seek information respecting the place of

employment of the proposed respondent in a child custody proceeding and that

any available information sought under

section 39 of the Act will be provided

to an enforcement officer within 10 days.

SECTION 6: [Family Relations Act, repeals and replaces

section 41 (3)] provides that

information disclosed under

section 39 or 40 of the Act may be provided to a

valid research project in a form that does not personally identify persons

referred to in the information.

SECTION 7: [Family Relations Act, amends

section 70] clarifies the meaning of a number

of terms used in

Part 6 of the Act.

SECTION 8: [Family Relations Act, amends

section 71 (3)] confirms that an order or

agreement that is silent about pension division will not trigger the operation of

Part 6.

SECTION 9: [Family Relations Act, repeals and replaces

section 74 (a)] confirms that a

limited member of a local plan is also entitled to receive a share of the pension

if the member terminates employment before retiring.

SECTION 10: [Family Relations Act, repeals and replaces

section 75 (2)] repeals the portion

section 75 (2) of the Act which this Bill re-enacts as part of

section 75.1 of

the Act. The amendments made by this

section also allows a spouse and the

plan administrator greater flexibility in dealing with the spouse's share of a

pension in a hybrid plan.

SECTION 11: [Family Relations Act, enacts

section 75.1] re-enacts part of

section 75 (2) of

the Act as

section 75.1 (1) and enacts

section 75.1 (2) which extends to court

orders the rule that a member must ordinarily be left with 50% of the pension.

SECTION 12: [Family Relations Act, repeals and replaces

section 76 (2)] ensures that a

spouse who is a designated beneficiary of a postretirement survivor benefit will

receive the entire benefit unless another spouse is entitled to receive a proportionate share of it.

SECTION 13: [Family Relations Act, repeals and replaces

section 78 (1)] confirms the rules

that apply for sharing a preretirement survivor benefit among 2 or more former

spouses of the deceased.

SECTION 14: [Family Relations Act, amends

section 79] ensures that a plan administrator

may require a limited member to accept a transfer of the commuted value of

benefits in both situations in which the administrator may require a member to

do so.

SECTION 15: [Family Relations Act, amends

section 80] amends the threshold under

section 80 (1) (

a) of the Act which applies to a written agreement between a

member and spouse for pension sharing. The agreement must leave the

member with at least half the value the pension would have had or half the

periodic benefits that would have been paid if the agreement had not been

made.

Section 80 (2) of the Act is amended to confirm that a spouse and

member with an order or agreement made before July 1, 1995 can opt in to

Part

6 of the Act. The new

section 80 (2.1) and (2.2) set out general rules for

applying

Part 6 of the Act to an order or agreement made before

Part 6 was

enacted.

SECTION 16: [Family Relations Act, amends

section 87] makes the definition of "child" for

the purposes of

Part 7 of the Act consistent with the corresponding definition

in the Divorce Act (Canada) .

SECTION 17: [Family Relations Act, repeals and replaces

section 88 (1)] simplifies

section

88 (1) of the Act so that the general obligation of all parents to support their

children is not open to confusion with the criteria under child support guidelines applicable if a child maintenance order is to be made.

SECTION 18: [Family Relations Act, re-enacts

section 93 and enacts sections 93.1 and

93.2] rewrites

section 93 of the Act to better reflect the fact that different

criteria are applicable in the making of child maintenance orders and maintenance orders for spouses or dependent parents. The new sections 93.1 and 93.2

preserve flexibility in the making of child maintenance orders by consent

provided the interests of the children are protected and make adequate

provision for child support a priority in the making of a package of maintenance orders covering adults as well as children.

SECTION 19: [Family Relations Act, amends

section 96] rewrites

section 96 of the Act in an

analogous way to the rewriting of

section 93 of the Act by this Bill.

SECTION 20: [Family Relations Act, amends

section 99] entitles an enforcement officer to

receive information in a timely fashion, including information about the assets

or income of a person against whom a maintenance order may be sought.

SECTION 21: [Family Relations Act, amends

section 100] allows the court to require a

person having information about the assets or income of a proposed respondent

in a maintenance proceeding to disclose that information to the applicant in that

proceeding. The amendment to

section 100 (6) of the Act provides that information disclosed under

section 100 of the Act may be provided to a valid

research project in a form that does not personally identify persons referred to

in the information.

SECTION 22: [Family Relations Act, enacts

section 120.1] allows persons described by

paragraph (

b) of the definition of "spouse" in

section 1 of the Act as amended

section 1 (

c) of this Bill to opt into the application of Parts 5 and 6 of the

Act by making the equivalent of a marriage or separation agreement.

SECTION 23: [Family Relations Act, amends

section 121 (1)] restates

definitions of "child"

and "spouse" in a manner that is consistent with the use of those terms

elsewhere in the Act.

SECTION 24: [Family Relations Act, re-enacts

section 129] adds the capacity to make regulations to establish child support guidelines to be followed in making and

varying court orders, and consent orders or agreements that may be filed and

enforced as court orders, for child maintenance.

Copyright © 1997: Queen's Printer, Victoria, British Columbia, Canada