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Property and Debt in Family Law Matters

2024-05-21T19:27:55Z

Jpboyd:

{{JP Boyd on Family Law TOC|expanded = assets}}{{JPBOFL Editor Badge
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| link = [http://www.clicklaw.bc.ca/resource/1639 How to divide property and debts]
}}This chapter focuses on the division of property and debt between spouses according to the provincial ''[[Family Law Act]]''. Under these parts of the ''Family Law Act'', the term "spouse" includes both ''married couples'' and ''people who lived together in a marriage-like relationship for at least two years''.

The basic approach to property under the ''Family Law Act'' is pretty straightforward. When spouses separate, each spouse keeps the property they brought into the relationship, as well as specific kinds of assets they got during the relationship, and the spouses equally share the rest of the property they own together or separately. The property that each spouse keeps is called "excluded property." The property they accumulated during their relationship and share is called "family property."

The same rules apply to debts. Spouses are presumed to share responsibility for the debts that accumulated during their relationship, but remain separately responsible for debts they had before the relationship began.

The federal ''[[Divorce Act]]'' doesn't deal with the division of property or debt, so when you're looking at who gets what after separation you need to look at the ''Family Law Act''.

The ''Family Law Act'' is still relatively new, having replaced the old ''Family Relations Act'' in 2013. If what you've read so far about property division seems unfamiliar, it might be because you know more about the rules for dividing property under the old law. The ''Family Relations Act'' talked about "matrimonial property," which made sense because it only applied to married people. Property qualified as shareable matrimonial property if it was "ordinarily used for a family purpose," regardless of whether it was brought into the relationship or acquired afterward. The ''Family Law Act'' takes a very different approach to how property is divided.

This introductory section of the chapter provides basic information about property and debt, including the new rules about pets. It also talks about the rules about property that apply to couples who aren't spouses, and looks at some of the income tax issues that can come up when dividing property. The sections of the chapter that follow will go into:
* [[Basic Principles of Property and Debt in Family Law]], which covers the rules around the division of property and debt in a lot more detail,
* [[Protecting Property and Debt in Family Law Matters]], which discusses the steps you can take to protect family property before and after separation, and
* [[Dividing Property and Debt in Family Law Matters]], which explains how property and debt are divided by judges and arbitrators (when things end with a court order or an arbitrator's award) or by spouses (when the spouse reach an agreement).

==Division of property and debt under the ''Family Law Act''==

The two parts of the ''[[Family Law Act]]'' that talk about the division of property and debt only apply to people who are ''spouses''. Note that the definition of spouse for these two parts of the Act are a bit different from the rest of the Act (for example the parts of the Act that deal with child or spousal support). When it comes to the division of property and debt, a spouse is either:

*someone who is married or was married to someone else, or
*someone who is or was living in a "marriage-like relationship" with someone else for at least two years.

People who lived together for less than two years are ''not'' spouses for these parts of the ''[[Family Law Act]]'', whether they've had a child together or not.

Property and debt can be divided under the terms of a cohabitation agreement or a marriage agreement that the spouses made around the time they began to live together, or under the terms of a separation agreement that they made around the time they separated. If the spouses can't reach an agreement, a court can make an order about the division of property and debt.

Court proceedings for the division of property and debt must be started within two years of:

#the date of ''divorce'' or ''annulment'' for married spouses, or
#the date of ''separation'' for unmarried spouses.

===Categories of property and debt in family law===

The ''[[Family Law Act]]'' talks about three things when it comes to dividing property and debt: ''family property'', ''excluded property'', and ''family debt''.

All property owned by either or both spouses (including property owned by a spouse jointly with a third party such as a parent) at the date of separation is ''family property'' unless it is ''excluded property''. Family property includes things like real property, bank accounts, pensions, businesses, debts owing to a spouse, and so forth. Family property is presumed to be shared equally between spouses, regardless of their use of or contribution to that property.

''Excluded property'' is any property that is excluded from the pool of family property to be split between spouses. This includes the property a spouse owned before the date of marriage or the date the spouses began living together, whichever is earlier, plus certain kinds of property acquired during the spouses' relationship, including:

*property that was bought using property that one spouse already owned before the relationship,
*inheritances and gifts (provided that the gift is a gift to just the spouse and not to the couple), and
*certain kinds of insurance proceeds and court awards.

Excluded property is presumed to remain the property of the one spouse who owns it, but the increase in value of the excluded property becomes family property and is shared.

All debt incurred by either or both spouses from the date of marriage or the date the spouses began living together, whichever is earlier, to the date of separation is ''family debt''. Responsibility for family debt is presumed to be shared equally between spouses, regardless of their use of or contribution to that debt.

====Special treatment for pets====
As of 15 January 2024, the ''Family Law Act'' also addresses family pets, which used to be treated as any other property under the Act. Before this time, pets were like any other asset. If one person brought a dog into the relationship, the animal was excluded property. If two spouses got a cat while they were together, the cat was family property.

The Act now imposes special rules around what happens to pets after spouses separate, and refers to these animals as ''companion animals''. Section 1 defines a companion animal as "an animal that is kept primarily for the purposes of companionship". Section 3.1 further clarifies that dogs under the ''[https://canlii.ca/t/8v18 Guide Dog and Service Dog Act]'', any animal that kept "as part of a business", and agricultural animals are not ''companion animals''.

See the section discussion on these special rules for companion animals under the [[Dividing Property and Debt in Family Law Matters]] section of this chapter. Meanwhile, as you read this page just keep in mind that the information about excluded property and family property will not necessarily apply to these animals.

===Beginning and ending a spousal relationship===

As you can see, certain dates in a couple's relationship are really important. The date a relationship begins ― the earlier of the dates the spouses begin to live together or marry ― is the date that separates the excluded property brought into the relationship from the family property acquired during their relationship and is the date when spouses begin to share responsibility for new debts. The date the spouses separate, generally speaking, marks the end of the accumulation of shared property and shared debt.

====Living together and marrying====

Under section 3(3) of the ''[[Family Law Act]]'', a relationship between spouses begins

<blockquote><tt>... on the earlier of the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) the date on which they began to live together in a marriage-like relationship;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the date of their marriage.</tt></blockquote></blockquote>

Since the definition of ''spouse'' at section 3(1)(b)(i) includes people who have lived together "for a continuous period of at least 2 years," once you have reached the two-year mark:

*you and your partner are spouses, and
*your relationship as spouses began two years earlier, on the date you began to live together.

====Separating====

Although a married couple are married until they get a divorce, the key date for the division of property and debt under the ''[[Family Law Act]]'' is the date of separation. The ''separation date'' is important for both married spouses and unmarried spouses.

Although many people move out when they separate, some couples separate and remain living under the same roof. A physical separation is not necessary to prove separation. What is necessary is an intention to end both the relationship and the intimacies that go along with it. Often the decision to separate is made by both spouses, but it only takes one spouse to decide to end a relationship, and one spouse's decision to separate doesn't require the consent of the other spouse.

Section 3(4) of the ''Family Law Act'' says this:

<blockquote><tt>(a) spouses may be separated despite continuing to live in the same residence, and</tt></blockquote>
<blockquote><tt>(b) the court may consider, as evidence of separation,</tt></blockquote>
<blockquote><blockquote><tt>(i) communication, by one spouse to the other spouse, of an intention to separate permanently, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) an action, taken by a spouse, that demonstrates the spouse's intention to separate permanently.</tt></blockquote></blockquote>

In other words, to separate, one spouse should announce the end of the relationship and then take steps that would demonstrate an intention to end the relationship. Separation is discussed in more detail in the chapter [[Separating and Getting Divorced]].

===Property brought into the relationship===

Under section 85(1)(a), property that was brought into a relationship is excluded from the pool of family property that is supposed to be divided equally between spouses. Under section 96, the court "must not" order a division of excluded property, except in limited circumstances. A spouse is therefore normally entitled to keep the excluded property they owned when the relationship began. Under section 85(2), however, it is up to the person who's saying that property is excluded property to prove that the property is excluded property.

For most couples, property brought into a relationship will form the largest component of a spouse's excluded property. However, when most people marry or move in together, counting up their assets is not the foremost thing on their mind. This means that you may wind up having to do some historical accounting to figure out what you each owned years ago. Whether you're just starting a relationship or are trying to figure out what you once had, these are the documents you need to look for:

*bank statements for the period that includes the date you began to live together or got married, whichever came first,
*RRSP, RIF, LIRA, and other retirement savings account statements for the same period,
*any employee pension statements that cover the date you began to live together or got married,
*mutual fund and other investment account statements for that period,
*any BC Assessment statements for the year in which you began to live together or got married,
*mortgage and line of credit statements for the period that includes the date you began to live together or got married, and
*credit card and loan statements for that period.

It will be a harder to look back in time to figure out the value of things like cars, motorcycles, trailers, boats, snowmobiles, and so on. If you're entering a relationship now, it will be helpful to look up the [https://www.canadianblackbook.com/ Canadian Black Book] or [https://www.kbb.ca/ Kelley Blue Book] estimated values for vehicles. Boats and trailers may need to be specially valued by a dealer. It is important to note that you cannot exclude the ''value'' of the property calculated from the start of the relationship. For example, let's assume one party owned a car worth $20,000 at the beginning of the relationship. Say it is only worth $10,000 at the time of separation. That party gets to keep the car itself, but does not get $20,000 worth of property out of ''family property''. If the car was traded in towards the purchase of a second car during the relationship, however, the trade-in value would be ''excluded property''.

===Property and debt acquired during the relationship===

In most circumstances, the property either or both spouses acquire during their relationship will be family property, but there are some important exceptions.

====Understanding family property====

Under section 84(1) of the ''[[Family Law Act]]'', family property is broadly defined as the property owned by one or both spouses on the date of their separation, including any property bought after separation with family property. Section 84(2) gives some examples of specific assets that are family property, including:

*interests in companies, businesses, partnerships, and ventures,
*money owed to a spouse, and
*bank accounts, savings, pensions, and RRSPs.

While that sounds pretty broad, you have to read section 84 as being "subject to section 85" to understand that ''family property'' does not actually include ''excluded property''. Family property does, however, include the amount that any excluded property grows in value during the relationship.

Under section 81, family property is presumed to be shared between the spouses equally, regardless of their use or contribution to that property. Note that while sharing equally is the presumption, there are circumstances (discussed in section 95) where it would be ''significantly unfair'' to do so, in which case a judge can order that family property be divided unequally. This is also called ''reapportionment'' of family property.

For information on how to share CPP credits see [[How Do I Divide Our CPP Pensions after We're Divorced?]]. It's located in the Helpful Guides & Common Questions part of this resource.

====Understanding excluded property====

Under section 85(1), excluded property is property acquired by a spouse before the relationship began, plus specific kinds of property that was acquired during the relationship, namely:

*gifts from a third party (provided that the gift is a gift to the spouse and not to the couple),
*inheritances,
*certain court awards and settlements,
*certain insurance payments, and
*property held in trust, providing that the spouse didn't put the property into the trust.

Excluded property also includes any new assets that were ''derived'' from other excluded property. This is also contained in section 85(1)(g). For example, if you owned a house before the relationship, but sold it during the relationship and used some of the money to buy a condo, and the rest of the money to top up your RRSPs, then both the condo and the money that's now in RRSPs would be excluded property. This is true even if you registered the new condo in your spouse's name, or in both your names. Provided that the money used to acquire this new property is clearly derived from the excluded property, the ''Family Law Act'' treats this newly acquired property as excluded property.

Excluded property that is acquired during a relationship is presumed to remain the property of the spouse who owns it. While section 85(2) says that it's up to the person claiming excluded property to ''prove'' that it is in fact excluded, the legislation is clear — especially since the ''Family Law Act'' was amended and section 85(3) was added in May 2023 — that transferring it into the name of the other spouse, using it to buy new property, or using it to pay down the mortgage on the family home, does not mean that the asset itself (or its cash equivalent) ceases to qualify as excluded property.

Note that while the presumption is you don't share excluded property, there are circumstances (discussed in section 96) where the judge can order that excluded property be divided and shared with the other spouse. This is another form of ''reapportionment'', and can happen when a judge decides that:
* family property or debt exists outside of BC and cannot practically be divided, or
* it would be significantly unfair not to divide the excluded property given the duration of the relationship and:
** the other spouse's contributions to the preservation, maintenance, improvement, operation or management of the excluded property,
** any agreement the spouses had about the excluded property, or
** if unequal reapportionment of family property or debt under section 95 would not be enough to address the extent significant unfairness.

====understanding family debt====

Under section 86, family debt is all debt incurred by either or both spouses during their relationship up to the date of their separation, but can include debt incurred after separation if the debt was incurred to maintain family property, like a loan taken out to pay the property taxes.

This definition means that debt incurred by a spouse before the spouses married or began to live together is that spouse's personal debt; it's only the new debt that they share. Under section 81, responsibility for family debt is presumed to be shared between the spouses equally, regardless of their use or contribution to that debt. This said, there are circumstances (discussed in section 95) where it would be ''significantly unfair'' to make the parties equally responsible for a debt, in which case a judge can order that family debt be divided unequally. This is called ''reapportionment'' of family debt.

===Dividing property and debt: an example===

Let's look at an example to make things a bit easier to understand.

<blockquote>Harkamal moved in with Baljinder in 2018, when Baljinder's home was worth $800,000 and had no mortgage.</blockquote>
<blockquote>Harkamal starts going to college in 2019 and takes a personal loan to help pay for her tuition fees, lab fees, and textbook costs. Baljinder keeps working while Harkamal is at school and not working. With his income, Baljinder pays property taxes, car insurance, utilities, groceries, and so forth. He's also able to put some money away into RRSPs for the first time ever.</blockquote>
<blockquote>Harkamal and Baljinder separate in 2022. When they separate, Harkamal owes $18,000 for her personal loan, Baljinder's house is worth $1,000,000 and Baljinder has saved $30,000 in RRSPs.</blockquote>

In this example, Baljinder's house is his ''excluded property''. It was worth $800,000 when Harkamal began living with him, and it has increased in value by $200,000. The ''family property'' is the RRSPs that Baljinder saved, plus the increase in value of Baljinder's house during the relationship. The ''family debt'' is Harkamal's loan which was incurred entirely during the parties' relationship and is now up to $18,000.

Boiling this all down, subject to a claim for reapportionment, Baljinder would get:

*$800,000 as the value of the home he brought into the relationship,
*$100,000 for one-half of the growth in the value of his house to the date of separation,
*RRSPs worth $15,000, and
*responsibility for $9,000 of Harkamal's loan.

Harkamal would, subject to a claim for reapportionment, get:

*$100,000 for one-half of the growth in the value of Baljinder's house,
*RRSPs worth $15,000, and
*responsibility for the remaining $9,000 of her loan.

==Property claims and people who aren't spouses==

People who are not spouses within the ''[[Family Law Act]]'' definition at section 3, described above, cannot make a claim for the division of property or debt through that act. When people who aren't spouses own an asset jointly, like a house or a car, they are presumed to each be entitled to half of the value of that property. Where a person claims a share of property owned only by the other person, they will have to prove an entitlement to that asset through the principles of the common law.

===Jointly-owned assets===

Where a couple are both on the title of an asset, whether the family home, a car, or a bank account, they are each assumed to have an equal interest in the asset. When one party refuses to give the other their share of that asset, it is open to that person to start a court proceeding for either:

#an order for the sale of the asset and the division of the proceeds of the sale, or
#an order for payment in compensation for their interest in the asset.

Where real property is jointly owned, it is possible to make a claim under the provincial ''[http://canlii.ca/t/848q Partition of Property Act]''. Section 2 of this act says that:

<blockquote><tt>(1) All joint tenants, tenants in common, coparceners, mortgagees or other creditors who have liens on, and all parties interested in any land may be compelled to partition or sell the land, or a part of it as provided in this Act.</tt></blockquote>
<blockquote><tt>(2) Subsection (1) applies whether the estate is legal or equitable or equitable only.
This act allows a co-owner, including someone with only an equitable interest in the property, potentially including an interest under the law of trusts as discussed below, to apply for an order that the property be sold and the proceeds of the sale divided.</tt></blockquote>

In other words, if you jointly own real property with your partner, you can apply to court for an order that the property be sold and the proceeds of the sale be split between you.

===Individually-owned assets===

Where a person who is not a spouse believes that they should have an interest in property owned only by the other person, a claim against that property can only be made under the common law, specifically the law of equity and the law of trusts.

The essential point of this sort of claim is that the non-owning party has, or should be considered to have, a stake in property owned by the other party. The non-owning party's interest in that property is said to be held ''in trust'' for the non-owning party by the person who owns the property on paper. The non-owning party is the beneficiary of that trust and should be entitled to receive compensation for their interest in the property under the trust.

There are three kinds of trust claim that may be made:

*a constructive trust,
*an express trust, and
*a resulting trust.

A ''resulting trust'' happens when the behaviour of the parties will let the court infer the existence of a trust relationship; an ''express trust'' is a trust relationship that people intentionally enter into; and, a ''constructive trust'' is imposed in order to compensate someone for their interest in property when the interest can't be paid out immediately. Resulting and constructive trusts are the most common kinds of trusts involved in family law disputes about property.

Needless to say, this area of the law can be complex. If you find yourself in a situation where your only claim to an asset or a share of an asset is through trust law, it is recommended that you consult with a lawyer to handle your claim.

====Resulting trusts====

A resulting trust can be created in the following circumstances:

*one party loans or gives money to the other party to allow them to buy an asset, and the person buying the asset owns the asset in their name alone, or
*one party transfers property to another without payment.

In each case, the person who transfers the money or asset to the other party is said to retain an interest, called a ''beneficial interest'', in the property even though the property is held by the other party in their name alone. In a court proceeding based on a resulting trust, the person making the claim, the ''claimant'', is asking for compensation for their beneficial interest in the property owned by the ''respondent'', the person against whom the claim is brought.

====Unjust enrichment and constructive trusts====

A constructive trust is called ''constructive'' because the claimant is asking the court to create or impose a trust on the respondent where there wasn't one before. According to the Supreme Court of Canada's decision in the 1980 case of [https://canlii.ca/t/1mjvp ''Pettkus v. Becker''], [1980] 2 S.C.R. 834, one of the most important cases on constructive trusts, the court will impose a trust on a respondent where the claimant is able to show that the respondent has been ''unjustly enriched'' as a result of the claimant's labour or other services. Unjust enrichment is shown by proving that:

#the respondent was enriched as a result of the claimant's contributions,
#the claimant was correspondingly deprived, and
#there is no legal reason for the respondent's enrichment.

''Enrichment'' means to have received a benefit or advantage, such as money or the benefit of unpaid labour or other services. ''Deprivation'' means to have lost the value that might have been otherwise received for the claimant's benefit or advantage, such as the loss of the money or the wages that might have been paid for labour or other services. The deprivation must ''correspond'' to the enrichment, in the sense that the claimant was deprived of exactly the thing from which the respondent benefited. If the claimant can show these things, they will have established that the respondent was ''unjustly enriched'' by their contributions, and the court may impose a constructive trust to fix the situation.

(There are two other cases from the Supreme Court of Canada that are critical in understanding constructive trusts, a 1993 case called ''[http://canlii.ca/t/1fs3f Peter v. Beblow]'', [1993] 1 S.C.R. 980, and a 2011 case called ''[http://canlii.ca/t/2fs3h Kerr v. Baranow]'', [2011] 1 S.C.R. 269. To get a proper understanding of the law relating to constructive trusts, you should read all of ''Pettkus v. Becker'', ''Peter v. Beblow'', and ''Kerr v. Baranow''.)

Here's an example where a couple doesn't live together long enough for the ''Family Law Act'' to apply, and so (because they are not yet legally spouses) an ''unjust enrichment'' and ''resulting trust'' claim might be the only option:

<blockquote>Frank moves into a home owned by Lois. Frank's role in the relationship is that of a homemaker while Lois works outside the home and brings home the bacon. Frank also, out of the kindness of his heart, helps Lois with her web design company, doing her books because he used to be a bookkeeper.</blockquote>
<blockquote>Lois doesn't pay Frank for his labour; perhaps it's understood that Frank is helping out with a common cause, since Lois's company is what provides the family with its income, or perhaps Frank's help is just one of the things he does because he loves Lois. Either way, payment isn't offered and it's not asked for, as is often the case when people are in a relationship.</blockquote>
<blockquote>Frank's labour in the home, cooking, cleaning, and tidying, allows Lois to devote her time to the web design company, and saves her from having to hire a housekeeper and a cook, not to mention having to hire an office manager for the company.</blockquote>
<blockquote>Frank, on the other hand, is losing something. Frank could have sold his services as a housekeeper, a launderer, and a cook. Frank could certainly have worked as an office manager or bookkeeper for some other company. Furthermore, Frank has made a positive contribution to Lois' company and helped it thrive and prosper.</blockquote>
<blockquote>The months pass. Lois's company has grown in value, and the relationship comes to a tragic end when Frank discovers that Lois' trips to visit the handsome internet service provider in Alberta were for both business and pleasure.</blockquote>

In this example, Lois was unjustly enriched by Frank's labour in the home and his contribution to the web design company, as she didn't have to hire an office administrator or a housekeeper. Frank, on the other hand, lost out on months of wages as an office administrator, and months of wages as a housekeeper. Lois was enriched by exactly the thing Frank was deprived of: his labour, and the financial value and benefit of his labour.

Once an unjust enrichment has been found, the court must determine what the appropriate remedy would be to compensate the applicant for their interest in the property. The court will often determine the value of the trust based on the value of the contribution made by the applicant to the property or the purchase of the property.

In the example above, a concrete value can be attached to Frank's contributions to the company and to his labour in the home: what would it have cost to hire a housekeeper and a bookkeeper during that period? Or, how much did Lois' company grow in value as a result of Frank's efforts? This is the beginning of fixing a dollar value on Frank's interest in the company and in Lois's house.

Again, trust claims are complex and the case law supporting and opposing such claims is massive. If you are not married to the person, and if you have not lived with them long enough to qualify as an ''unmarried spouse'' under the ''Family Law Act'', but you still wish to make claim against property owned only by your partner, I recommend that you obtain help from a lawyer.

==Tax issues==

For many people, there will be no tax impact from the division of their assets. There will, however, be a tax impact if the division creates what the [https://www.canada.ca/en/revenue-agency.html Canada Revenue Agency] deems to be ''income''.

The most common kind of taxable income people have is employment income. Some other kinds of taxable income include:

*the money you get when you cash in an RRSP,
*money received by a shareholder from a company as a dividend or from the sale of their shares,
*the interest you get from a loan you've made to someone else, and
*the profit realized from the sale or transfer of real property that isn't the family's principle residence.

When you report this sort of income in your tax return, the CRA considers it to be taxable income, income that may be taxable at different rates.

The purpose of this part of this section is to alert you in a general way to the possibility that there may be tax implications as a result of family property being divided, and that there are sometimes ways to avoid this sort of unfairness. This is, however, a complex area of family law, and if you have a problem of this nature, you really should get the advice of a lawyer who specializes in tax issues; store-bought or online tax software will not identify these issues. You probably don't want to pay any more tax than is absolutely necessary!

===Avoiding unfairness===

The tax consequences of a particular arrangement in a court order or separation agreement can be taken into account when property is being divided, since the payment of tax by one party may fundamentally change the fairness of the agreement or order. Consider this example:

<blockquote>Say Eli receives $1,000,000 in cash and George receives a rental house worth $1,000,000, and the cash and the rental house are all part of the family property. At first glance, this seems like a fair, equal split of the family property, which together comes to a total of $2,000,000. In fact, it isn't.</blockquote>
<blockquote>No tax will be payable by Eli as a result of receiving the cash. Tax will be payable by George if the rental house has to be sold, since it was a rental property and not the family's primary residence. What if the capital gains tax that George has to pay when he sells the rental property is $200,000? In that case, Eli has received $1,000,000 and George has effectively received only $800,000. If you count the tax that George has to pay, the division of the family property wasn't equal at all.</blockquote>
<blockquote>To make the split equal, Eli should receive $900,000 and George should receive $100,000 plus the rental house so that each spouse will have $900,000 once the rental house is sold.</blockquote>

The same problem can arise if one spouse has to sell an asset in order to satisfy an order or agreement for the division of property and debt, such as making a lump-sum payment to equalize the value of the assets held by each party. This may result in the CRA assessing an extra amount of taxable income to the party who had to sell the asset, with the consequence of an additional tax debt owed by that party to the CRA.

There is an easy way to avoid unfair tax consequences and preserve the intention of the agreement or court order: the agreement or order can recognize the negative tax consequences of a particular term and compensate the affected spouse, as in the example involving the rental house above. If you need to convince a court to take tax considerations into account in dividing assets, there are three general rules you should keep in mind:

*each case will depend on the particular circumstances of the parties,
*you should be able to provide an estimate of the tax which will be payable, and
*you must be able to show that the sale or transaction that will result in tax being payable is likely to occur in the reasonably near future.

===Dividing RRSPs===

Normally, if you wish to cash out an RRSP, you have to pay tax on the RRSP as if the RRSP was taxable income, like employment income. Under the federal ''[http://canlii.ca/t/7vb7 Income Tax Act]'', transfers of RRSPs between spouses are tax neutral, under what are called the ''tax-free spousal rollover'' provisions of the act.

When RRSPs are to be transferred between spouses according to a separation agreement or court order, the RRSPs are simply transferred between the spouses' RRSP accounts without having to cash them out, and no tax is payable. Your bank or credit union can provide you with the form to do this.

===Real property===

When a piece of property is to be transferred between spouses according to a separation agreement or court order, the parties should consult the [https://www2.gov.bc.ca/assets/gov/taxes/property-taxes/property-transfer-tax/forms-and-publications/ptt-003-property-transfer-tax-exemptions.pdf Ministry of Finance's ''Tax Bulletin PTT 003'']. Spouses can take advantage of the tax-free status of transfer of real property if the transfer is required by a family agreement or court order. The form is normally completed during the process of transferring title to the property at the Land Title and Survey Authority, and no tax will be payable on the transfer. The Land Title and Survey Authority form needed to do this is now completed and submitted online, and a copy of the signed separation agreement or court order or divorce decree needs to be submitted with the return.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[http://canlii.ca/t/848q Partition of Property Act]''
* ''[http://canlii.ca/t/7vb7 Income Tax Act]''

===Links===

*[http://www.clicklaw.bc.ca/resource/1240 Dial-A-Law Script "Dividing Property and Debts"]
*[http://www.clicklaw.bc.ca/resource/1529 Justice Education Society's handbook ''Parenting After Separation: Finances'']
*[http://www.clicklaw.bc.ca/resource/4656 Legal Aid BC's Family Law in BC website's information page "Property & debt"]
** See "Dividing property and debts"
*[https://www2.gov.bc.ca/assets/gov/taxes/property-taxes/property-transfer-tax/forms-and-publications/ptt-003-property-transfer-tax-exemptions.pdf Ministry of Finance's ''Tax Bulletin PTT 003'']

{{REVIEWED | reviewer = [[Trudy Hopman]], October 19, 2023}}

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[[Category:JP Boyd on Family Law]]

Property and Debt in Family Law Matters

2024-05-21T19:13:19Z

Jpboyd:

{{JP Boyd on Family Law TOC|expanded = assets}}{{JPBOFL Editor Badge
|CoAuthor = [[Trudy Hopman]]
|ChapterEditors = [[Helen Chiu]] and [[Matthew Ostrow]]
}}
{{LSSbadge
| resourcetype = a fact sheet on
| link = [http://www.clicklaw.bc.ca/resource/1639 How to divide property and debts]
}}This chapter focuses on the division of property and debt between spouses according to the laws in parts 5 and 6 of the provincial ''[[Family Law Act]]''. Under these parts of the ''Family Law Act'', the term ''spouse'' refers to both married couples and people who lived together in a marriage-like relationship for at least two years.

Under the ''Family Law Act'', after spouses separate the presumption is:
* each spouse keeps the property they brought into the relationship, as well as specific kinds of assets they might have acquired during the relationship (this is called ''excluded property''), and
* the spouses equally share the rest, which means most of the assets either one of them acquired during the relationship, as well as any increase in value of excluded property (these assets are called ''family property'').

The same rules apply to debt. Spouses are presumed to share responsibility for the debts that accumulated during their relationship, but remain individually responsible for debts they had before the relationship began.

The federal ''[[Divorce Act]]'' doesn't deal with the division of property or debt, so when you're looking at who gets what after separation you need to look at the ''Family Law Act''.

'''Side note:''' The ''Family Law Act'' is still relatively new, having replaced the old ''Family Relations Act'' in 2013. If what you've read so far about property division seems unfamiliar, it might be because you are more familiar with how property division used to work in this province before 2013. The old legislation talked about ''matrimonial property'', which made sense because it only applied to married people. Another major difference was that all property that was "ordinarily used for a family purpose" (including what spouses owned before the marriage) was presumed to be divided up when the marriage ended. When the ''Family Law Act'' came in, it changed the law dramatically. It broadened property division to treat married couples and unmarried people in long term relationships the same. But it also narrowed down the entitlement period to focus on what was acquired, what accrued in value, and what debts were incurred while the parties were together in a relationship.

This introductory section of the chapter provides basic information about property and debt. It also looks at the rules about property that apply to couples who are not spouses, and reviews some of the income tax issues that can come up when dividing property. The sections of the chapter that follow will go into:
* [[Basic Principles of Property and Debt in Family Law]], which covers the rules around the division of property and debt in a lot more detail,
* [[Protecting Property and Debt in Family Law Matters]], which discusses the steps you can take to protect family property before and after separation, and
* [[Dividing Property and Debt in Family Law Matters]], which explains how property and debt are divided by judges (where things end with a court order) or by spouses (when they can reach a ''separation agreement'').

==Division of property and debt under the ''Family Law Act''==

The two parts of the ''[[Family Law Act]]'' that talk about the division of property and debt only apply to people who are ''spouses''. Note that the definition of spouse for these two parts of the Act are a bit different from the rest of the Act (for example the parts of the Act that deal with child or spousal support). When it comes to the division of property and debt, a spouse is either:

*someone who is married or was married to someone else, or
*someone who is or was living in a "marriage-like relationship" with someone else for at least two years.

People who lived together for less than two years are ''not'' spouses for these parts of the ''[[Family Law Act]]'', whether they've had a child together or not.

Property and debt can be divided under the terms of a cohabitation agreement or a marriage agreement that the spouses made around the time they began to live together, or under the terms of a separation agreement that they made around the time they separated. If the spouses can't reach an agreement, a court can make an order about the division of property and debt.

Court proceedings for the division of property and debt must be started within two years of:

#the date of ''divorce'' or ''annulment'' for married spouses, or
#the date of ''separation'' for unmarried spouses.

===Categories of property and debt in family law===

The ''[[Family Law Act]]'' talks about three things when it comes to dividing property and debt: ''family property'', ''excluded property'', and ''family debt''.

All property owned by either or both spouses (including property owned by a spouse jointly with a third party such as a parent) at the date of separation is ''family property'' unless it is ''excluded property''. Family property includes things like real property, bank accounts, pensions, businesses, debts owing to a spouse, and so forth. Family property is presumed to be shared equally between spouses, regardless of their use of or contribution to that property.

''Excluded property'' is any property that is excluded from the pool of family property to be split between spouses. This includes the property a spouse owned before the date of marriage or the date the spouses began living together, whichever is earlier, plus certain kinds of property acquired during the spouses' relationship, including:

*property that was bought using property that one spouse already owned before the relationship,
*inheritances and gifts (provided that the gift is a gift to just the spouse and not to the couple), and
*certain kinds of insurance proceeds and court awards.

Excluded property is presumed to remain the property of the one spouse who owns it, but the increase in value of the excluded property becomes family property and is shared.

All debt incurred by either or both spouses from the date of marriage or the date the spouses began living together, whichever is earlier, to the date of separation is ''family debt''. Responsibility for family debt is presumed to be shared equally between spouses, regardless of their use of or contribution to that debt.

====Special treatment for pets====
As of 15 January 2024, the ''Family Law Act'' also addresses family pets, which used to be treated as any other property under the Act. Before this time, pets were like any other asset. If one person brought a dog into the relationship, the animal was excluded property. If two spouses got a cat while they were together, the cat was family property.

The Act now imposes special rules around what happens to pets after spouses separate, and refers to these animals as ''companion animals''. Section 1 defines a companion animal as "an animal that is kept primarily for the purposes of companionship". Section 3.1 further clarifies that dogs under the ''[https://canlii.ca/t/8v18 Guide Dog and Service Dog Act]'', any animal that kept "as part of a business", and agricultural animals are not ''companion animals''.

See the section discussion on these special rules for companion animals under the [[Dividing Property and Debt in Family Law Matters]] section of this chapter. Meanwhile, as you read this page just keep in mind that the information about excluded property and family property will not necessarily apply to these animals.

===Beginning and ending a spousal relationship===

As you can see, certain dates in a couple's relationship are really important. The date a relationship begins ― the earlier of the dates the spouses begin to live together or marry ― is the date that separates the excluded property brought into the relationship from the family property acquired during their relationship and is the date when spouses begin to share responsibility for new debts. The date the spouses separate, generally speaking, marks the end of the accumulation of shared property and shared debt.

====Living together and marrying====

Under section 3(3) of the ''[[Family Law Act]]'', a relationship between spouses begins

<blockquote><tt>... on the earlier of the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) the date on which they began to live together in a marriage-like relationship;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the date of their marriage.</tt></blockquote></blockquote>

Since the definition of ''spouse'' at section 3(1)(b)(i) includes people who have lived together "for a continuous period of at least 2 years," once you have reached the two-year mark:

*you and your partner are spouses, and
*your relationship as spouses began two years earlier, on the date you began to live together.

====Separating====

Although a married couple are married until they get a divorce, the key date for the division of property and debt under the ''[[Family Law Act]]'' is the date of separation. The ''separation date'' is important for both married spouses and unmarried spouses.

Although many people move out when they separate, some couples separate and remain living under the same roof. A physical separation is not necessary to prove separation. What is necessary is an intention to end both the relationship and the intimacies that go along with it. Often the decision to separate is made by both spouses, but it only takes one spouse to decide to end a relationship, and one spouse's decision to separate doesn't require the consent of the other spouse.

Section 3(4) of the ''Family Law Act'' says this:

<blockquote><tt>(a) spouses may be separated despite continuing to live in the same residence, and</tt></blockquote>
<blockquote><tt>(b) the court may consider, as evidence of separation,</tt></blockquote>
<blockquote><blockquote><tt>(i) communication, by one spouse to the other spouse, of an intention to separate permanently, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) an action, taken by a spouse, that demonstrates the spouse's intention to separate permanently.</tt></blockquote></blockquote>

In other words, to separate, one spouse should announce the end of the relationship and then take steps that would demonstrate an intention to end the relationship. Separation is discussed in more detail in the chapter [[Separating and Getting Divorced]].

===Property brought into the relationship===

Under section 85(1)(a), property that was brought into a relationship is excluded from the pool of family property that is supposed to be divided equally between spouses. Under section 96, the court "must not" order a division of excluded property, except in limited circumstances. A spouse is therefore normally entitled to keep the excluded property they owned when the relationship began. Under section 85(2), however, it is up to the person who's saying that property is excluded property to prove that the property is excluded property.

For most couples, property brought into a relationship will form the largest component of a spouse's excluded property. However, when most people marry or move in together, counting up their assets is not the foremost thing on their mind. This means that you may wind up having to do some historical accounting to figure out what you each owned years ago. Whether you're just starting a relationship or are trying to figure out what you once had, these are the documents you need to look for:

*bank statements for the period that includes the date you began to live together or got married, whichever came first,
*RRSP, RIF, LIRA, and other retirement savings account statements for the same period,
*any employee pension statements that cover the date you began to live together or got married,
*mutual fund and other investment account statements for that period,
*any BC Assessment statements for the year in which you began to live together or got married,
*mortgage and line of credit statements for the period that includes the date you began to live together or got married, and
*credit card and loan statements for that period.

It will be a harder to look back in time to figure out the value of things like cars, motorcycles, trailers, boats, snowmobiles, and so on. If you're entering a relationship now, it will be helpful to look up the [https://www.canadianblackbook.com/ Canadian Black Book] or [https://www.kbb.ca/ Kelley Blue Book] estimated values for vehicles. Boats and trailers may need to be specially valued by a dealer. It is important to note that you cannot exclude the ''value'' of the property calculated from the start of the relationship. For example, let's assume one party owned a car worth $20,000 at the beginning of the relationship. Say it is only worth $10,000 at the time of separation. That party gets to keep the car itself, but does not get $20,000 worth of property out of ''family property''. If the car was traded in towards the purchase of a second car during the relationship, however, the trade-in value would be ''excluded property''.

===Property and debt acquired during the relationship===

In most circumstances, the property either or both spouses acquire during their relationship will be family property, but there are some important exceptions.

====Understanding family property====

Under section 84(1) of the ''[[Family Law Act]]'', family property is broadly defined as the property owned by one or both spouses on the date of their separation, including any property bought after separation with family property. Section 84(2) gives some examples of specific assets that are family property, including:

*interests in companies, businesses, partnerships, and ventures,
*money owed to a spouse, and
*bank accounts, savings, pensions, and RRSPs.

While that sounds pretty broad, you have to read section 84 as being "subject to section 85" to understand that ''family property'' does not actually include ''excluded property''. Family property does, however, include the amount that any excluded property grows in value during the relationship.

Under section 81, family property is presumed to be shared between the spouses equally, regardless of their use or contribution to that property. Note that while sharing equally is the presumption, there are circumstances (discussed in section 95) where it would be ''significantly unfair'' to do so, in which case a judge can order that family property be divided unequally. This is also called ''reapportionment'' of family property.

For information on how to share CPP credits see [[How Do I Divide Our CPP Pensions after We're Divorced?]]. It's located in the Helpful Guides & Common Questions part of this resource.

====Understanding excluded property====

Under section 85(1), excluded property is property acquired by a spouse before the relationship began, plus specific kinds of property that was acquired during the relationship, namely:

*gifts from a third party (provided that the gift is a gift to the spouse and not to the couple),
*inheritances,
*certain court awards and settlements,
*certain insurance payments, and
*property held in trust, providing that the spouse didn't put the property into the trust.

Excluded property also includes any new assets that were ''derived'' from other excluded property. This is also contained in section 85(1)(g). For example, if you owned a house before the relationship, but sold it during the relationship and used some of the money to buy a condo, and the rest of the money to top up your RRSPs, then both the condo and the money that's now in RRSPs would be excluded property. This is true even if you registered the new condo in your spouse's name, or in both your names. Provided that the money used to acquire this new property is clearly derived from the excluded property, the ''Family Law Act'' treats this newly acquired property as excluded property.

Excluded property that is acquired during a relationship is presumed to remain the property of the spouse who owns it. While section 85(2) says that it's up to the person claiming excluded property to ''prove'' that it is in fact excluded, the legislation is clear — especially since the ''Family Law Act'' was amended and section 85(3) was added in May 2023 — that transferring it into the name of the other spouse, using it to buy new property, or using it to pay down the mortgage on the family home, does not mean that the asset itself (or its cash equivalent) ceases to qualify as excluded property.

Note that while the presumption is you don't share excluded property, there are circumstances (discussed in section 96) where the judge can order that excluded property be divided and shared with the other spouse. This is another form of ''reapportionment'', and can happen when a judge decides that:
* family property or debt exists outside of BC and cannot practically be divided, or
* it would be significantly unfair not to divide the excluded property given the duration of the relationship and:
** the other spouse's contributions to the preservation, maintenance, improvement, operation or management of the excluded property,
** any agreement the spouses had about the excluded property, or
** if unequal reapportionment of family property or debt under section 95 would not be enough to address the extent significant unfairness.

====understanding family debt====

Under section 86, family debt is all debt incurred by either or both spouses during their relationship up to the date of their separation, but can include debt incurred after separation if the debt was incurred to maintain family property, like a loan taken out to pay the property taxes.

This definition means that debt incurred by a spouse before the spouses married or began to live together is that spouse's personal debt; it's only the new debt that they share. Under section 81, responsibility for family debt is presumed to be shared between the spouses equally, regardless of their use or contribution to that debt. This said, there are circumstances (discussed in section 95) where it would be ''significantly unfair'' to make the parties equally responsible for a debt, in which case a judge can order that family debt be divided unequally. This is called ''reapportionment'' of family debt.

===Dividing property and debt: an example===

Let's look at an example to make things a bit easier to understand.

<blockquote>Harkamal moved in with Baljinder in 2018, when Baljinder's home was worth $800,000 and had no mortgage.</blockquote>
<blockquote>Harkamal starts going to college in 2019 and takes a personal loan to help pay for her tuition fees, lab fees, and textbook costs. Baljinder keeps working while Harkamal is at school and not working. With his income, Baljinder pays property taxes, car insurance, utilities, groceries, and so forth. He's also able to put some money away into RRSPs for the first time ever.</blockquote>
<blockquote>Harkamal and Baljinder separate in 2022. When they separate, Harkamal owes $18,000 for her personal loan, Baljinder's house is worth $1,000,000 and Baljinder has saved $30,000 in RRSPs.</blockquote>

In this example, Baljinder's house is his ''excluded property''. It was worth $800,000 when Harkamal began living with him, and it has increased in value by $200,000. The ''family property'' is the RRSPs that Baljinder saved, plus the increase in value of Baljinder's house during the relationship. The ''family debt'' is Harkamal's loan which was incurred entirely during the parties' relationship and is now up to $18,000.

Boiling this all down, subject to a claim for reapportionment, Baljinder would get:

*$800,000 as the value of the home he brought into the relationship,
*$100,000 for one-half of the growth in the value of his house to the date of separation,
*RRSPs worth $15,000, and
*responsibility for $9,000 of Harkamal's loan.

Harkamal would, subject to a claim for reapportionment, get:

*$100,000 for one-half of the growth in the value of Baljinder's house,
*RRSPs worth $15,000, and
*responsibility for the remaining $9,000 of her loan.

==Property claims and people who aren't spouses==

People who are not spouses within the ''[[Family Law Act]]'' definition at section 3, described above, cannot make a claim for the division of property or debt through that act. When people who aren't spouses own an asset jointly, like a house or a car, they are presumed to each be entitled to half of the value of that property. Where a person claims a share of property owned only by the other person, they will have to prove an entitlement to that asset through the principles of the common law.

===Jointly-owned assets===

Where a couple are both on the title of an asset, whether the family home, a car, or a bank account, they are each assumed to have an equal interest in the asset. When one party refuses to give the other their share of that asset, it is open to that person to start a court proceeding for either:

#an order for the sale of the asset and the division of the proceeds of the sale, or
#an order for payment in compensation for their interest in the asset.

Where real property is jointly owned, it is possible to make a claim under the provincial ''[http://canlii.ca/t/848q Partition of Property Act]''. Section 2 of this act says that:

<blockquote><tt>(1) All joint tenants, tenants in common, coparceners, mortgagees or other creditors who have liens on, and all parties interested in any land may be compelled to partition or sell the land, or a part of it as provided in this Act.</tt></blockquote>
<blockquote><tt>(2) Subsection (1) applies whether the estate is legal or equitable or equitable only.
This act allows a co-owner, including someone with only an equitable interest in the property, potentially including an interest under the law of trusts as discussed below, to apply for an order that the property be sold and the proceeds of the sale divided.</tt></blockquote>

In other words, if you jointly own real property with your partner, you can apply to court for an order that the property be sold and the proceeds of the sale be split between you.

===Individually-owned assets===

Where a person who is not a spouse believes that they should have an interest in property owned only by the other person, a claim against that property can only be made under the common law, specifically the law of equity and the law of trusts.

The essential point of this sort of claim is that the non-owning party has, or should be considered to have, a stake in property owned by the other party. The non-owning party's interest in that property is said to be held ''in trust'' for the non-owning party by the person who owns the property on paper. The non-owning party is the beneficiary of that trust and should be entitled to receive compensation for their interest in the property under the trust.

There are three kinds of trust claim that may be made:

*a constructive trust,
*an express trust, and
*a resulting trust.

A ''resulting trust'' happens when the behaviour of the parties will let the court infer the existence of a trust relationship; an ''express trust'' is a trust relationship that people intentionally enter into; and, a ''constructive trust'' is imposed in order to compensate someone for their interest in property when the interest can't be paid out immediately. Resulting and constructive trusts are the most common kinds of trusts involved in family law disputes about property.

Needless to say, this area of the law can be complex. If you find yourself in a situation where your only claim to an asset or a share of an asset is through trust law, it is recommended that you consult with a lawyer to handle your claim.

====Resulting trusts====

A resulting trust can be created in the following circumstances:

*one party loans or gives money to the other party to allow them to buy an asset, and the person buying the asset owns the asset in their name alone, or
*one party transfers property to another without payment.

In each case, the person who transfers the money or asset to the other party is said to retain an interest, called a ''beneficial interest'', in the property even though the property is held by the other party in their name alone. In a court proceeding based on a resulting trust, the person making the claim, the ''claimant'', is asking for compensation for their beneficial interest in the property owned by the ''respondent'', the person against whom the claim is brought.

====Unjust enrichment and constructive trusts====

A constructive trust is called ''constructive'' because the claimant is asking the court to create or impose a trust on the respondent where there wasn't one before. According to the Supreme Court of Canada's decision in the 1980 case of [https://canlii.ca/t/1mjvp ''Pettkus v. Becker''], [1980] 2 S.C.R. 834, one of the most important cases on constructive trusts, the court will impose a trust on a respondent where the claimant is able to show that the respondent has been ''unjustly enriched'' as a result of the claimant's labour or other services. Unjust enrichment is shown by proving that:

#the respondent was enriched as a result of the claimant's contributions,
#the claimant was correspondingly deprived, and
#there is no legal reason for the respondent's enrichment.

''Enrichment'' means to have received a benefit or advantage, such as money or the benefit of unpaid labour or other services. ''Deprivation'' means to have lost the value that might have been otherwise received for the claimant's benefit or advantage, such as the loss of the money or the wages that might have been paid for labour or other services. The deprivation must ''correspond'' to the enrichment, in the sense that the claimant was deprived of exactly the thing from which the respondent benefited. If the claimant can show these things, they will have established that the respondent was ''unjustly enriched'' by their contributions, and the court may impose a constructive trust to fix the situation.

(There are two other cases from the Supreme Court of Canada that are critical in understanding constructive trusts, a 1993 case called ''[http://canlii.ca/t/1fs3f Peter v. Beblow]'', [1993] 1 S.C.R. 980, and a 2011 case called ''[http://canlii.ca/t/2fs3h Kerr v. Baranow]'', [2011] 1 S.C.R. 269. To get a proper understanding of the law relating to constructive trusts, you should read all of ''Pettkus v. Becker'', ''Peter v. Beblow'', and ''Kerr v. Baranow''.)

Here's an example where a couple doesn't live together long enough for the ''Family Law Act'' to apply, and so (because they are not yet legally spouses) an ''unjust enrichment'' and ''resulting trust'' claim might be the only option:

<blockquote>Frank moves into a home owned by Lois. Frank's role in the relationship is that of a homemaker while Lois works outside the home and brings home the bacon. Frank also, out of the kindness of his heart, helps Lois with her web design company, doing her books because he used to be a bookkeeper.</blockquote>
<blockquote>Lois doesn't pay Frank for his labour; perhaps it's understood that Frank is helping out with a common cause, since Lois's company is what provides the family with its income, or perhaps Frank's help is just one of the things he does because he loves Lois. Either way, payment isn't offered and it's not asked for, as is often the case when people are in a relationship.</blockquote>
<blockquote>Frank's labour in the home, cooking, cleaning, and tidying, allows Lois to devote her time to the web design company, and saves her from having to hire a housekeeper and a cook, not to mention having to hire an office manager for the company.</blockquote>
<blockquote>Frank, on the other hand, is losing something. Frank could have sold his services as a housekeeper, a launderer, and a cook. Frank could certainly have worked as an office manager or bookkeeper for some other company. Furthermore, Frank has made a positive contribution to Lois' company and helped it thrive and prosper.</blockquote>
<blockquote>The months pass. Lois's company has grown in value, and the relationship comes to a tragic end when Frank discovers that Lois' trips to visit the handsome internet service provider in Alberta were for both business and pleasure.</blockquote>

In this example, Lois was unjustly enriched by Frank's labour in the home and his contribution to the web design company, as she didn't have to hire an office administrator or a housekeeper. Frank, on the other hand, lost out on months of wages as an office administrator, and months of wages as a housekeeper. Lois was enriched by exactly the thing Frank was deprived of: his labour, and the financial value and benefit of his labour.

Once an unjust enrichment has been found, the court must determine what the appropriate remedy would be to compensate the applicant for their interest in the property. The court will often determine the value of the trust based on the value of the contribution made by the applicant to the property or the purchase of the property.

In the example above, a concrete value can be attached to Frank's contributions to the company and to his labour in the home: what would it have cost to hire a housekeeper and a bookkeeper during that period? Or, how much did Lois' company grow in value as a result of Frank's efforts? This is the beginning of fixing a dollar value on Frank's interest in the company and in Lois's house.

Again, trust claims are complex and the case law supporting and opposing such claims is massive. If you are not married to the person, and if you have not lived with them long enough to qualify as an ''unmarried spouse'' under the ''Family Law Act'', but you still wish to make claim against property owned only by your partner, I recommend that you obtain help from a lawyer.

==Tax issues==

For many people, there will be no tax impact from the division of their assets. There will, however, be a tax impact if the division creates what the [https://www.canada.ca/en/revenue-agency.html Canada Revenue Agency] deems to be ''income''.

The most common kind of taxable income people have is employment income. Some other kinds of taxable income include:

*the money you get when you cash in an RRSP,
*money received by a shareholder from a company as a dividend or from the sale of their shares,
*the interest you get from a loan you've made to someone else, and
*the profit realized from the sale or transfer of real property that isn't the family's principle residence.

When you report this sort of income in your tax return, the CRA considers it to be taxable income, income that may be taxable at different rates.

The purpose of this part of this section is to alert you in a general way to the possibility that there may be tax implications as a result of family property being divided, and that there are sometimes ways to avoid this sort of unfairness. This is, however, a complex area of family law, and if you have a problem of this nature, you really should get the advice of a lawyer who specializes in tax issues; store-bought or online tax software will not identify these issues. You probably don't want to pay any more tax than is absolutely necessary!

===Avoiding unfairness===

The tax consequences of a particular arrangement in a court order or separation agreement can be taken into account when property is being divided, since the payment of tax by one party may fundamentally change the fairness of the agreement or order. Consider this example:

<blockquote>Say Eli receives $1,000,000 in cash and George receives a rental house worth $1,000,000, and the cash and the rental house are all part of the family property. At first glance, this seems like a fair, equal split of the family property, which together comes to a total of $2,000,000. In fact, it isn't.</blockquote>
<blockquote>No tax will be payable by Eli as a result of receiving the cash. Tax will be payable by George if the rental house has to be sold, since it was a rental property and not the family's primary residence. What if the capital gains tax that George has to pay when he sells the rental property is $200,000? In that case, Eli has received $1,000,000 and George has effectively received only $800,000. If you count the tax that George has to pay, the division of the family property wasn't equal at all.</blockquote>
<blockquote>To make the split equal, Eli should receive $900,000 and George should receive $100,000 plus the rental house so that each spouse will have $900,000 once the rental house is sold.</blockquote>

The same problem can arise if one spouse has to sell an asset in order to satisfy an order or agreement for the division of property and debt, such as making a lump-sum payment to equalize the value of the assets held by each party. This may result in the CRA assessing an extra amount of taxable income to the party who had to sell the asset, with the consequence of an additional tax debt owed by that party to the CRA.

There is an easy way to avoid unfair tax consequences and preserve the intention of the agreement or court order: the agreement or order can recognize the negative tax consequences of a particular term and compensate the affected spouse, as in the example involving the rental house above. If you need to convince a court to take tax considerations into account in dividing assets, there are three general rules you should keep in mind:

*each case will depend on the particular circumstances of the parties,
*you should be able to provide an estimate of the tax which will be payable, and
*you must be able to show that the sale or transaction that will result in tax being payable is likely to occur in the reasonably near future.

===Dividing RRSPs===

Normally, if you wish to cash out an RRSP, you have to pay tax on the RRSP as if the RRSP was taxable income, like employment income. Under the federal ''[http://canlii.ca/t/7vb7 Income Tax Act]'', transfers of RRSPs between spouses are tax neutral, under what are called the ''tax-free spousal rollover'' provisions of the act.

When RRSPs are to be transferred between spouses according to a separation agreement or court order, the RRSPs are simply transferred between the spouses' RRSP accounts without having to cash them out, and no tax is payable. Your bank or credit union can provide you with the form to do this.

===Real property===

When a piece of property is to be transferred between spouses according to a separation agreement or court order, the parties should consult the [https://www2.gov.bc.ca/assets/gov/taxes/property-taxes/property-transfer-tax/forms-and-publications/ptt-003-property-transfer-tax-exemptions.pdf Ministry of Finance's ''Tax Bulletin PTT 003'']. Spouses can take advantage of the tax-free status of transfer of real property if the transfer is required by a family agreement or court order. The form is normally completed during the process of transferring title to the property at the Land Title and Survey Authority, and no tax will be payable on the transfer. The Land Title and Survey Authority form needed to do this is now completed and submitted online, and a copy of the signed separation agreement or court order or divorce decree needs to be submitted with the return.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[http://canlii.ca/t/848q Partition of Property Act]''
* ''[http://canlii.ca/t/7vb7 Income Tax Act]''

===Links===

*[http://www.clicklaw.bc.ca/resource/1240 Dial-A-Law Script "Dividing Property and Debts"]
*[http://www.clicklaw.bc.ca/resource/1529 Justice Education Society's handbook ''Parenting After Separation: Finances'']
*[http://www.clicklaw.bc.ca/resource/4656 Legal Aid BC's Family Law in BC website's information page "Property & debt"]
** See "Dividing property and debts"
*[https://www2.gov.bc.ca/assets/gov/taxes/property-taxes/property-transfer-tax/forms-and-publications/ptt-003-property-transfer-tax-exemptions.pdf Ministry of Finance's ''Tax Bulletin PTT 003'']

{{REVIEWED | reviewer = [[Trudy Hopman]], October 19, 2023}}

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[[Category:JP Boyd on Family Law]]

Family Law Arbitration

2023-04-18T23:52:39Z

Jpboyd: /* Changing, challenging and appealing awards */

{{JP Boyd on Family Law TOC|expanded = outofcourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[JP Boyd]]
}}Arbitration is a dispute resolution process in which the parties hire a neutral third party, an ''arbitrator'', to make decisions resolving some or all of the legal issues in their dispute. While the job of a mediator is to help people work toward their own resolution of their family law dispute, the arbitrator's job is to act like a judge and make a decision resolving a legal dispute, after hearing the evidence and listening to the arguments of each party.

People who work as arbitrators are usually trained professionals who qualify as "family law dispute resolution professionals" under the ''[[Family Law Act]]'', meaning that they have the experience and education required by the [https://canlii.ca/t/5539g Family Law Act Regulation]. Lawyers who are "family law arbitrators" are specially accredited to arbitrate family law disputes by the [http://www.lawsociety.bc.ca Law Society of British Columbia].

This section provides an introduction to arbitration and discusses when to use arbitration in a family law dispute. It also provides some suggestions about how to find a family law arbitrator.

==Introduction==

Like mediation and collaborative negotiation, arbitration is a voluntary process. The parties to a dispute must all ''agree'' to use arbitration to resolve their legal dispute. Like those processes, arbitration is also an out-of-court way of resolving problems. However, that's where the similarities between arbitration, mediation and collaborative negotiation end. While the parties to a dispute may have agreed to use arbitration to resolve their dispute, it's the ''arbitrator'' who resolves their dispute, not the parties themselves.

Before the new ''[[Family Law Act]]'' became law in British Columbia, arbitration was rarely used in family law disputes. Arbitration was most frequently used in the context of commercial, labour, and construction disputes. In other places, such as Ontario and Alberta, the arbitration of family law disputes is well-established and has been for some time. The ''Family Law Act'', however, made a number of changes to the law that improved the usefulness of arbitration for family law disputes in British Columbia, and the number of people choosing arbitration over going to court has been increasing as a result.

Arbitration offers a number of advantages for resolving family law problems:

*it allows the parties to hand-pick the person who will make decisions about the issues they cannot agree on, which means that they might pick an arbitrator who is not just an expert family law lawyer, but an expert family law lawyer with special knowledge of a specific issue, like parenting children, tax problems, or property division,
*it allows the parties to pick the rules that will apply to the hearing and the decision-making process,
*arbitration resolves disputes much faster than going to court,
*the arbitration process is private, confidential, and closed to the public, and
*the result of the process is an arbitrator's award that is just as binding as a court order and is enforceable just like a court order.

As well, it's often faster to get a date for an arbitration hearing than it is for a court hearing. Although short trials of two or three days can usually be booked within ten to twelve months, it can take a year or more to get a date for longer trials because the court is so busy. An arbitration hearing can be booked as soon as everyone has free time in their calendars.

People can start arbitration right off the bat, as soon as a legal problem has come up, or they can use it to resolve a court proceeding as an alternative to trial. The result of a successful process of arbitration is an arbitrator's ''award''. If litigation has already started, the award can be turned into an order that the parties agree the court will make, called a ''consent order''. If the parties are married, a consent order may make more sense since they'll usually want an order for their divorce at the same time as they're wrapping everything else up.

The parties can meet with their arbitrator on their own or with their lawyers. As an arbitrator, I always appreciate having the parties' lawyers present. I recognize that having the lawyers at the arbitration hearing costs the parties more money, but the lawyers are intimately familiar with how to write briefs, make legal arguments and present evidence, and arbitration hearings with lawyers are usually much shorter than hearings without lawyers. However, there is no rule that you must have a lawyer represent you in arbitration, just like there's no rule that you must have a lawyer represent you in litigation.

The arbitrator has no stake in how the arbitration turns out. The arbitrator must be neutral and have no bias in favour of either party. Most of the time, the arbitrator should have no special connection — business, personal or otherwise — with either party, and the arbitrator must make sure that all parties are aware of any such special connections before they agree to hire the arbitrator.

==Working with "family law arbitrators" under the ''Family Law Act''==

An arbitrator who qualifies as a "family dispute resolution professional" under the ''[[Family Law Act]]'' must meet the requirements set out in the [http://canlii.ca/t/8rdx Family Law Act Regulation]. Section 5 of the regulation says that:

<blockquote><tt>(1) Only an arbitrator who is qualified as a family dispute resolution professional may conduct an arbitration in relation to a family law dispute.</tt></blockquote>

Lawyers who qualify as ''family law arbitrators'' meet the training requirements of, and are accredited by, the Law Society of British Columbia. You can find out if a lawyer is a "family law arbitrator" by looking the lawyer up in the [https://www.lawsociety.bc.ca/lsbc/apps/lkup/mbr-search.cfm Lawyer Directory] on the Law Society's website. The training requirements that professionals other than lawyers must meet to qualify as "family dispute resolution professionals" are set out in section 5(2)(b) of the Family Law Act Regulation, and include:

*being a member in good standing with specific organizations,
*meeting specific educational and experiential requirements, including at least 10 years' experience in family-related practice,
*taking continuing family dispute resolution training, and
*carrying professional liability insurance.

It's important to know that, under section 5(3) of the regulation, people other than lawyers may only arbitrate disputes dealing with ''parenting children'', including contact with a child, and ''child support''. However, they can only deal with child support if:

*all of the children are under 19 years of age,
*none of the payor's income is self-employment income or partnership income,
*the payor's income is less than $150,000 per year, and
*the [[Child Support Guidelines]] tables are being used to calculate the basic child support amount.

As well, if children's special or extraordinary expenses are an issue that is to be resolved by an arbitrator who is not a lawyer, section 5(3)(c)(v) says that "the determination of what those expenses are and how they are to be calculated" must be "straightforward."

Section 5 of the regulation imposes two extra duties on arbitrators who are family dispute resolution professionals: they must use written participation agreements; and, they must provide the parties with confirmation that they qualify as family dispute resolution professionals. Section 5(4) says this:

<blockquote><tt>(4) The following practice standards apply to a family dispute resolution professional who wishes to engage in arbitration in relation to a family law dispute:</tt></blockquote>
<blockquote><blockquote><tt>(a) before initiating arbitration, he or she must enter into a written agreement to arbitrate with the parties to the family law dispute;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) before initiating arbitration, he or she must provide written confirmation to the parties to the family law dispute that he or she meets the professional requirements set out in subsection (2).</tt></blockquote></blockquote>

==The arbitration process==

These are the steps involved in the basic arbitration process.

*'''Pick your arbitrator.''' Your lawyer will have the names of three or four arbitrators they prefer to work with. If you don't have a lawyer, you can look at the membership lists of organizations like the [http://adric.ca ADR Institute of Canada], although many accredited family law arbitrators may not have decided to spend the money to join those organizations.
*'''Sign the arbitrator's participation agreement.''' This is a contract that describes your responsibilities and the responsibilities of your arbitrator, and how the arbitrator will be paid. It also requires you to agree to be bound by the result of the arbitration.
*'''Prepare for and attend the prehearing conference.''' This is a meeting during which the parties, their lawyers and the arbitrator will make decisions about how the arbitration will work, including the rules for the hearing, the place and date of the hearing, and the legal issues to be resolved at the hearing.
*'''Prepare your case.''' Start working on your case by researching the law and thinking about the evidence you need to prove your case.
*'''Complete discovery and disclosure.''' This is a process in which you and the other party or parties will exchange documents and information that are relevant to the legal issues in your dispute, such as income tax returns if child support or spousal support is one of those issues.
*'''Exchange the documents you're going to use at the hearing.''' These documents might include written arguments, financial statements or summaries of what your witnesses are going to say.
*'''Attend the hearing.''' An arbitration hearing is the equivalent of a trial, but with special rules and shorter processes. Sometimes you may attend by teleconference or videoconference rather than in person.
*'''Receive the arbitrator's decision.''' The arbitrator will prepare their decision, and the reasons for their decision, in a written document called an award. Most arbitrators try to get their awards to the parties as soon as possible, but it can sometimes take a long time to finish a decision, especially if the evidence presented at the hearing was unusually complicated.
*'''Review the award and ask for corrections.''' You have 30 days after you get the arbitrator's award to ask the arbitrator to correct any typos and other mistakes, and to ask the arbitrator to explain specific parts of their award.

Under section 19.16 of the ''[[Family Law Act]]'', an arbitration is over when:

#the arbitrator has delivered their final award and the time to correct the arbitrator's decision has passed;
#the parties agree to end the arbitration; or,
#the arbitrator makes an order that it is "unnecessary or impossible" to continue the arbitration.

===Starting arbitration===

There are only two ways you can get your family law problem into arbitration.

First, you might have a family law agreement — like a cohabitation agreement, a marriage agreement, or a separation agreement — which says that any disputes or questions about the agreement, or the subjects the agreement covers, will be resolved through arbitration.

Second, you might agree, after a problem has arisen, that you'll go to arbitration instead of going to court, or instead of another process like mediation or collaborative negotiation. You can even agree to resolve a dispute through arbitration after a court proceeding has started. A lot of people decide to do this when they find out how far away their trial is scheduled to start, and when they find out that there's no guarantee that they'll get a judge who is an expert in resolving family law disputes.

You cannot force someone into arbitration, including by asking for a court order that you go to arbitration. Even though section 224(1) of the ''[[Family Law Act]]'' says that "a court may make an order to ... require the parties to participate in family dispute resolution," the court will not make an order that someone go to arbitration. Resolving a dispute through arbitration has to be voluntary, either because you've already agreed to use arbitration ''if'' a problem comes up or because you've agreed to use arbitration ''after'' the problem has come up.

===Arbitration processes===

When people agree or are required to arbitrate their dispute, they first pick their arbitrator. The arbitrator you choose should be someone who is an expert in family law, and perhaps even an expert in family law with special knowledge or skills concerning the most important issues in your dispute. You probably want to choose someone who has a lot of experience as an arbitrator, someone who has a good reputation in the legal community, and, most importantly, someone you see as being neutral, fair-minded and unbiased.

After picking the arbitrator, the arbitrator will ask the parties to sign a participation agreement, usually called an ''arbitration agreement.'' This agreement does three things. First, it serves as the arbitrator's retainer agreement and describes how the arbitrator will charge for their services and when they will expect to be paid. (You can read more about retainer agreements in the [[Understanding the Legal System for Family Law Matters]] chapter, in the [[You and Your Lawyer]] section.) Second, it describes the parties' rights and responsibilities in the process, as well as the responsibilities of the arbitrator and the scope of their authority. Third, it identifies the legal issues the arbitrator will address.

The next step is to meet with the arbitrator to discuss the process leading to the arbitration hearing, decide the date and place for the hearing, and pick the rules that will govern the hearing. This meeting is called a ''prehearing conference'', and picking the rules that will govern the hearing is sometimes the most important part of the arbitration process. A lot of the time, the rules that people select are taken from the more important parts of the [https://canlii.ca/t/8mcr Supreme Court Family Rules] that talk about evidence, experts, and hearing procedures. However, there are lots of other options. People can pick the rules that best suit the circumstances of their children, the nature of their dispute, and the status of their finances. It's important to be as thoughtful as possible in deciding what rules are necessary. Arbitration can look just like going to court, but it doesn't have to. It can be a lot more focused, a lot more efficient, and a lot faster.

How the arbitration process works after the prehearing conference will depend on the rules you've picked.

====The basic arbitration process====

Most of the time, the next step after the prehearing conference involves exchanging the documents and information that are relevant to the legal issues in the dispute. If child support is an issue, for example, financial statements might be prepared and documents like income tax returns, T4 slips, and paystubs might be exchanged. If property is an issue, you might need tax assessments, purchase documents, mortgage statements, and maybe a professional appraisal of the current value of the property.

You need to think carefully about what sort of documents and information you need. For complicated problems, you might also hire an expert to give an opinion about things like the value of a pension, a tax problem, or the best parenting arrangements for the children. (That last kind of opinion is called a ''parenting assessment'' or a ''section 211 report'', and is usually prepared by a psychologist, clinical counsellor, or social worker. You can get more information about ''reports'' and ''assessments'' in the [[Children and Parenting after Separation]] chapter.) You might also need to exchange bank statements, credit card statements and corporate financial statements. The nature of the documents that are important, the extent of the disclosure that is required, and the type of expert opinions that are most useful will change depending on the circumstances, the legal issues, and how the parties have decided to approach the arbitration process.

Once the relevant documents have been exchanged and any expert opinions have been completed, each party will start to work on how they're going to present their case to the arbitrator and on the documents they'll want to refer the arbitrator to at the hearing. These might include:

*written arguments,
*timelines, charts, financial tables, photographs, videos, and other visual aids,
*summaries of what your witnesses are going to say, called ''will-say statements'',
*affidavits and financial statements,
*binders with the financial and other documents you're going to be asking your witnesses to identify, comment on, or explain, called ''books of documents'', and
*binders with the case law you're going to be asking the arbitrator to consider, called ''books of authorities''.

Sometimes the arbitrator will want the parties to cooperate and prepare other hearing documents together. These might include:

*''statements of agreed facts'', a written summary of the facts both parties agree about, and
*''joint books of documents'', binders with the financial and other documents you will both rely on.

Next, the parties and their lawyers, if they have them, will attend the hearing. Arbitration hearings can take place in the arbitrator's office, a boardroom in a hotel or anywhere else that's private, or even remotely by videoconference, and are usually less formal than court hearings; arbitration processes can be as formal or informal as the parties and the arbitrator want.

At the hearing, each party makes an opening argument describing the evidence that will be given and then presents their evidence. The parties' evidence usually consists of the testimony of witnesses, documents, and affidavits. Each party then makes a closing argument to show the arbitrator why the arbitrator should resolve their dispute in the way they each prefer.

After the hearing process is over, the arbitrator will provide a written decision, called an ''award'', summarizing the evidence and resolving all of the legal issues, and explaining why the arbitrator resolved the issues in the way they resolved them.

====Alternative arbitration processes====

Arbitration processes can be as simple or as complicated as the parties want. The basic arbitration process I've just described looks and feels very much like the process that applies in court. However, it isn't always necessary to have a witness who gives oral evidence, or to have any evidence at all. It isn't always necessary to have oral arguments. Sometimes written arguments alone will do. And, if the parties agree, awards can provide a summary explanation of the arbitrator's decision rather than a full explanation.

Here are some examples of alternative arbitration processes:

*The parties could make their arguments to the arbitrator by telephone or videoconference, with no evidence at all, and the arbitrator giving an oral decision right there on the spot. (This process would be ideal for decisions about a legal question where the facts either don't matter or aren't in dispute. It's also the cheapest and fastest way to get a decision.)
*If evidence is necessary to help the arbitrator make their decision, the parties could make their arguments by telephone or video, and the evidence could be presented by affidavits alone, without the in-person testimony of any witness.
*If an in-person hearing is necessary, the parties could agree that evidence will be provided by affidavit, with the people who made the affidavits being cross-examined by the other person or their lawyer. Or, the parties could agree that only a limited number of witnesses will testify, and that each party will have a limited amount of time to examine and cross-examine each witness.
*If an in-person hearing is necessary and the parties agree to very few of the important facts, the parties could have an arbitration with all the bells and whistles available if they were going to court, with no limits on the number or amount of time for each witness. (This process will take the longest time to wrap up and also cost the most money.)
*Where neither party is represented by a lawyer, the hearing could be in-person but be managed completely by the arbitrator who can explore issues and ask questions. The arbitrator would work with the parties to identify the legal issues in the dispute, and then lead the examination of all of the witnesses.

I have developed a checklist of procedural elements that is helpful for designing arbitration processes, and covers every part of the arbitration process, from deciding whether to have an in-person hearing or a hearing by videoconference, to whether and how experts will be hired, to how evidence will be presented at the hearing. You can download my "Arbitration Rules Pick-List" from the [https://www.boydarbitration.ca/rules-of-procedure website] of John-Paul Boyd Arbitration Chambers.

====Mandatory elements of arbitration processes====

Although arbitration processes are incredibly flexible, there are certain aspects of arbitration that are required in British Columbia.

First, the arbitrator must give each party the opportunity to make their case, and to reply to the case made by the other party. This is a basic element of the Canadian justice system, called either "natural justice" or "fundamental justice," that is required of judges as well as arbitrators.

Second, the arbitrator must treat each party fairly and not be biased in favour of one party over the other. Section 19.8 of the ''[[Family Law Act]]'' says this:

<blockquote><tt>(1) An arbitrator must be independent of the parties.</tt></blockquote>
<blockquote><tt>(2) An arbitrator must be impartial and act impartially.</tt></blockquote>
<blockquote><tt>(3) If a person is approached in connection with the person's possible appointment as an arbitrator, the person must, without delay, disclose any circumstances likely to give rise to justifiable doubts as to the person's independence or impartiality.</tt></blockquote>
<blockquote><tt>(4) An arbitrator, from the time of the arbitrator's appointment and throughout the arbitration, must, without delay, disclose to the parties any circumstances referred to in subsection (3).</tt></blockquote>

Third, when it comes to decisions about children, the arbitrator must consider only the best interests of the children.

Finally, arbitral awards must be given in writing and be signed by the arbitrator.

Otherwise, the parties and their arbitrator are free to be as creative as they want and create the rules and the process that are best-suited to the parties, their children, their dispute, their timeline, and their budget.

===Changing, challenging and appealing awards===

If you are unhappy with an arbitrator's decision, you might be able to ''appeal'' the arbitrator's award, in the same way that a decision of the Provincial Court can be appealed to the Supreme Court, and a decision of the Supreme Court can be appealed to the Court of Appeal. When you appeal an award, you are arguing that the arbitrator made an important mistake and that, as a result of the arbitrator's mistake, all or some of their award should be cancelled.

There are other reasons why you might ask that an award be cancelled, usually because of flaws in the arbitration process itself. You would only challenge an award you're unhappy with; if you're happy with the award, you're not likely to be concerned about the fairness of the arbitration process.

On the other hand, you might have an award that you're happy with, but no longer works because there's been an important change in your circumstances, the circumstances of the other party or the circumstances of the children. If there has been an important change, you can apply to court to ''vary'' the award, in the same way that the court can vary a court order.

====Changing awards====

Under section 19.18(3) of the [[Family Law Act]], you can apply to the Supreme Court to change, suspend or cancel all or some of an arbitrator's award when there has been an important change in circumstances after the award was made. This is called "varying" an award.

You can apply to vary an award about a particular issue on the same terms as you can apply to vary a court order about that issue. This means that you need to look at the part of the ''Family Law Act'' that applies to varying orders about the particular issue you're dealing with. If your issue is about child support, for example, you need to look at section 152 of the act. Under section 152, the court may vary an order about child support for one of three reasons:

#if there has been an important change of circumstances since the child support order was made, usually a change about income or the children's living arrangements,
#if important evidence has come to light that wasn't available at the hearing which resulted in the child support order, or
#if a lack of financial disclosure was discovered after the hearing which resulted in the child support order.

Section 47 of the ''Family Law Act'' is about varying orders for children's parenting arrangements, section 60 is about varying orders for contact with a child, and section 167 is about varying orders for spousal support.

====Challenging awards====

Under section 19.18(1) of the ''Family Law Act'', you can apply to the Supreme Court to change or cancel an arbitration award for one or five reasons concerning the basic fairness of the arbitration process:

#you have doubts about the arbitrator's independence or impartiality,
#you were not given a reasonable opportunity to be heard during the arbitration process,
#the arbitrator's award was obtained through fraud or duress from the other party,
#the award deals with legal issues not included in your arbitration agreement, or
#the arbitrator exceeded their authority.

It's important to know that, under section 16.18(2), you can only ask to change or cancel an award because of doubts about the arbitrator's independence or impartiality if there is a "real danger of bias" on the part of the arbitrator. This can be difficult to prove. In ''[https://canlii.ca/t/1prwz Spence v. The Board of Police Commissioners of Prince Albert]'', a 1987 decision of the Saskatchewan Court of Appeal, the court explained what you have to prove to show a real danger of bias, saying that:
<blockquote>“The test is whether a reasonable person would believe there is a real danger of bias or whether there would be a reasonable suspicion of bias even though unintended.</blockquote>

====Appealing awards====

Under section 19.19 of the ''Family Law Act'', you can appeal all or part of an arbitrator's award to the Supreme Court on:

#a question of law, or
#a question of mixed fact and law.

Questions of law are about which law should be applied to determine a legal issue. Appeals based on questions of law argue that the arbitrator applied the wrong legal test or interpreted the legal test incorrectly. Questions of mixed fact and law are about whether the facts satisfy the legal test. Appeals can be complicated, and it's always a good idea to talk to a lawyer before deciding to appeal an arbitrator's decision.

Appeals must be started within 40 days of the date you received the arbitrator's award.

===Other uses of arbitration===

Arbitration is very helpful in resolving family law problems quickly and efficiently. Parenting coordinators use a process a lot like arbitration to make decisions resolving disagreements when the parents aren't able to find solutions to which they both agree. The flexibility of arbitration also means that people can ask their arbitrator to make a decision based on the rules of a religion, based on grounds of conscience, or based on equity and fairness.

Arbitration can also be used to:

*break logjams in settlement discussions, where only one or two issues can't be agreed upon,
*resolve disagreements about how the law should be interpreted or applied in a particular situation,
*make temporary decisions about support or parenting arrangements while the parties are negotiating a settlement, or
*perform technical calculations, like about the amount of costs payable in a court proceeding, the income of someone who is self-employed, the amount of spousal support payable, or the after-tax cost of children's expenses.

====Faith-based arbitration====

Under section 19.10 of the ''[[Family Law Act]]'', the parties can choose their own law to govern the arbitration process. Nothing in the act says that this law cannot be a religious law. Judaism and Islam, for example, each have religious laws that can apply to family law disputes for members of those faiths. Members of the orthodox Jewish community may use Halakha to settle personal disputes. Muslims can use Sharia law for the same purpose.

Whatever rules a couple chooses, however, the result of an arbitration cannot be "inconsistent" with the ''Family Law Act'' or the ''[[Divorce Act]]''. Section 19.20 of the ''Family Law Act'' says this:

<blockquote><tt>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.</tt></blockquote>

This means, for example, that child support must be paid to the person who has the child most of the time by the person who has the child for the least amount of time, and that the amount of support paid cannot be too different from what the [[Child Support Guidelines]] require. It also means that a particular person shouldn't have the primary residence of a child merely because of their gender, the age of the child or some other arbitrary reason.

Note that if the parties to faith-based arbitration wish to obtain a divorce, they must still start a court proceeding in the Supreme Court of British Columbia for a divorce order. A religious divorce, such as the Jewish Get, is not a legal divorce.

====Parenting coordination====

Parenting coordination uses a process that includes a decision-making function that's a lot like arbitration. In parenting coordination, the arbitrator is called a ''parenting coordinator'' and first tries to settle a dispute about parenting through a settlement process like mediation. If the parents cannot find consensus, however, the parenting coordinator acts like an arbitrator and makes a written decision, called a ''determination'', resolving the dispute. The parenting coordinator's authority to resolve these disputes comes from the participation agreement the parents sign, in this case called a ''parenting coordination agreement''.

As with faith-based arbitration, or any other kind of family law arbitration for that matter, the parenting coordinator cannot make determinations that are inconsistent with the ''[[Family Law Act]]''. However, parenting coordinators are subject to additional restrictions in the scope of the things they can make decisions about. Under section 6(3) and (4)(a)(ix) of the [http://canlii.ca/t/8rdx Family Law Act Regulation], parenting coordinators can make determinations about parenting arrangements, contact with a child, and other issues agreed to by the parties and the parenting coordinator. However, regardless of whatever the parties and the parenting coordinator may have agreed to, a parenting coordinator may ''not'' make decisions about:

*legal issues that are excluded by an order or a parenting coordination agreement,
*changes to the guardianship of a child,
*changes to the allocation of parental responsibilities,
*giving parenting time or contact to a person who does not already have parenting time or contact,
*substantial changes to parenting time or contact, or
*the relocation of a child.

There's a lot more information about parenting coordination in the [[Parenting_Coordination|next section]] of this chapter.

==When to use arbitration==

There are lots of good reasons to use arbitration rather than go to court. It's fast and efficient, the rules that govern the process are extremely flexible, it's confidential and private, and you get to pick a judge who is an expert in not just family law but the aspects of the law that are the most important in your case. There are, however, only a few circumstances that make arbitration a necessary choice over mediation, collaborative negotiation, or litigation. Typically, people will choose to arbitrate their dispute if:

*they want the laws of their religion or another set of legal, moral or ethical principles to apply to their dispute,
*their positions are too far apart to make negotiation or mediation a reasonable option and must have a decision made for them, but don't want to go to the expense, anxiety, and acrimony typically involved in going to court,
*they want to resolve their dispute discreetly and privately, and don't want to risk their personal business being made public,
*the legal issues are complex and demand a decision-maker who is a specialist in those issues, or
*they want their dispute resolved more quickly than the court schedule will allow.

It's important to understand that while arbitrators can make awards on all of the usual family law issues — including parenting arrangements, contact, child support, spousal support, and the division of property and debt — arbitrators cannot make awards on certain issues that can only be decided by a judge. These include:

*divorce orders and annulments,
*orders appointing someone as the guardian of a child who is not a parent of that child,
*declarations about who is, and who is not, the parent of a child, unless the declaration is necessary to resolve an issue that is within the arbitrator's jurisdiction, and
*orders changing the order of a judge.

==How to find a family law arbitrator==

Finding a family law arbitrator can sometimes be the hard part about taking your problem to arbitration, as there aren't too many arbitrators who specialize in family law issues. Your first and best bet is to speak to a family law lawyer and see who they might recommend to you. (Most lawyers will have a list of three of four arbitrators who they've used in the past and like working with.) You might also do an internet search for "family law arbitrator British Columbia," as lawyers who work as family law arbitrators will describe themselves this way and take pains to indicate in which jurisdiction they work. You could also contact organizations which specialize in providing legal education and developing out-of-court dispute resolution processes, including:

*[https://www.adrbc.com the ADR Institute of British Columbia], and
*[http://www.labour-arbitrators.ca the Arbitrators Association of British Columbia].

(Be warned, however, that there are lots of accredited family law arbitrators who may not have decided to pay the money to join these organizations.) Finally, you could call the Canadian Bar Association's [http://www.clicklaw.bc.ca/helpmap/service/1044 Lawyer Referral Service]. Although the service can't recommend one family law arbitrator over another, they'll at least be able to give you some names.

==Resources and links==

===Legislation===

* ''[https://canlii.ca/t/551f9 Divorce Act]''
* ''[https://canlii.ca/t/8q3k Family Law Act]''
* [https://canlii.ca/t/8rdx Family Law Act Regulation]
* [https://canlii.ca/t/80mh Federal Child Support Guidelines]

===Links===

* [https://www.adrbc.com The ADR Institute of British Columbia]
* [https://adric.ca/ The ADR Institute of Canada]
* [http://www.labour-arbitrators.ca The Arbitrators Association of British Columbia]
* [http://www.clicklaw.bc.ca/helpmap/service/1044 Lawyer Referral Service]
* [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society]
* [https://www.boydarbitration.ca/library John-Paul Boyd Arbitration Chambers] Library
* [https://www.boydarbitration.ca/rules-of-procedure John-Paul Boyd Arbitration Chamber] Arbitration Procedure
* [https://www.lawsociety.bc.ca/ The Law Society of BC]
* [https://www.clicklaw.bc.ca/resource/4616 Resolving Disputes Without Going to Court] from Dial-a-Law by the People's Law School
* [https://www.clicklaw.bc.ca/resource/4191 Settling out of Court] from the Justice Education Society of BC
* [https://www.clicklaw.bc.ca/resource/1253 Mediation, collaborative negotiation, and arbitration] from Dial-a-Law by the People's Law School

===Resources===

*Arbitration [[Media:Arbitration procedure pick-list - fillable.pdf|procedure pick-list]] (fillable PDF)
*Sample arbitration [[Media:Arbitration Agreement - PDF.pdf|participation agreement]] (PDF) in cases where the parties are represented by lawyers.
*Sample arbitration [[Media:Arbitration Agreement - Self-Rep - PDF.pdf|participation agreement]] (PDF) in cases where the parties are not represented by lawyers.

These sample participation agreements may not resemble the participation agreement you are asked to sign. They provide a more or less accurate picture of what arbitration participation agreements usually look like, but should be used as a reference only.

You can also look at the website of [https://www.boydarbitration.ca/participationagreements John-Paul Boyd Arbitration Chambers] which provides a number of model participation agreements for download.

* [https://www.clicklaw.bc.ca/resource/4452 "An Evaluation of the Cost of Family Law Disputes: Measuring the Cost Implication of Various Dispute Resolution Methods" PDF] from Canadian Research Institute for Law and the Family
* [https://www.clicklaw.bc.ca/resource/1497 "Alternatives to Going to Court" PDF] from the Justice Education Society of BC

{{REVIEWED | reviewer = [[JP Boyd]], 25 August 2021}}

{{JP Boyd on Family Law Navbox|type=chapters}}
{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Family Law Arbitration

2023-04-18T23:48:16Z

Jpboyd: /* Changing, challenging and appealing awards */

{{JP Boyd on Family Law TOC|expanded = outofcourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[JP Boyd]]
}}Arbitration is a dispute resolution process in which the parties hire a neutral third party, an ''arbitrator'', to make decisions resolving some or all of the legal issues in their dispute. While the job of a mediator is to help people work toward their own resolution of their family law dispute, the arbitrator's job is to act like a judge and make a decision resolving a legal dispute, after hearing the evidence and listening to the arguments of each party.

People who work as arbitrators are usually trained professionals who qualify as "family law dispute resolution professionals" under the ''[[Family Law Act]]'', meaning that they have the experience and education required by the [https://canlii.ca/t/5539g Family Law Act Regulation]. Lawyers who are "family law arbitrators" are specially accredited to arbitrate family law disputes by the [http://www.lawsociety.bc.ca Law Society of British Columbia].

This section provides an introduction to arbitration and discusses when to use arbitration in a family law dispute. It also provides some suggestions about how to find a family law arbitrator.

==Introduction==

Like mediation and collaborative negotiation, arbitration is a voluntary process. The parties to a dispute must all ''agree'' to use arbitration to resolve their legal dispute. Like those processes, arbitration is also an out-of-court way of resolving problems. However, that's where the similarities between arbitration, mediation and collaborative negotiation end. While the parties to a dispute may have agreed to use arbitration to resolve their dispute, it's the ''arbitrator'' who resolves their dispute, not the parties themselves.

Before the new ''[[Family Law Act]]'' became law in British Columbia, arbitration was rarely used in family law disputes. Arbitration was most frequently used in the context of commercial, labour, and construction disputes. In other places, such as Ontario and Alberta, the arbitration of family law disputes is well-established and has been for some time. The ''Family Law Act'', however, made a number of changes to the law that improved the usefulness of arbitration for family law disputes in British Columbia, and the number of people choosing arbitration over going to court has been increasing as a result.

Arbitration offers a number of advantages for resolving family law problems:

*it allows the parties to hand-pick the person who will make decisions about the issues they cannot agree on, which means that they might pick an arbitrator who is not just an expert family law lawyer, but an expert family law lawyer with special knowledge of a specific issue, like parenting children, tax problems, or property division,
*it allows the parties to pick the rules that will apply to the hearing and the decision-making process,
*arbitration resolves disputes much faster than going to court,
*the arbitration process is private, confidential, and closed to the public, and
*the result of the process is an arbitrator's award that is just as binding as a court order and is enforceable just like a court order.

As well, it's often faster to get a date for an arbitration hearing than it is for a court hearing. Although short trials of two or three days can usually be booked within ten to twelve months, it can take a year or more to get a date for longer trials because the court is so busy. An arbitration hearing can be booked as soon as everyone has free time in their calendars.

People can start arbitration right off the bat, as soon as a legal problem has come up, or they can use it to resolve a court proceeding as an alternative to trial. The result of a successful process of arbitration is an arbitrator's ''award''. If litigation has already started, the award can be turned into an order that the parties agree the court will make, called a ''consent order''. If the parties are married, a consent order may make more sense since they'll usually want an order for their divorce at the same time as they're wrapping everything else up.

The parties can meet with their arbitrator on their own or with their lawyers. As an arbitrator, I always appreciate having the parties' lawyers present. I recognize that having the lawyers at the arbitration hearing costs the parties more money, but the lawyers are intimately familiar with how to write briefs, make legal arguments and present evidence, and arbitration hearings with lawyers are usually much shorter than hearings without lawyers. However, there is no rule that you must have a lawyer represent you in arbitration, just like there's no rule that you must have a lawyer represent you in litigation.

The arbitrator has no stake in how the arbitration turns out. The arbitrator must be neutral and have no bias in favour of either party. Most of the time, the arbitrator should have no special connection — business, personal or otherwise — with either party, and the arbitrator must make sure that all parties are aware of any such special connections before they agree to hire the arbitrator.

==Working with "family law arbitrators" under the ''Family Law Act''==

An arbitrator who qualifies as a "family dispute resolution professional" under the ''[[Family Law Act]]'' must meet the requirements set out in the [http://canlii.ca/t/8rdx Family Law Act Regulation]. Section 5 of the regulation says that:

<blockquote><tt>(1) Only an arbitrator who is qualified as a family dispute resolution professional may conduct an arbitration in relation to a family law dispute.</tt></blockquote>

Lawyers who qualify as ''family law arbitrators'' meet the training requirements of, and are accredited by, the Law Society of British Columbia. You can find out if a lawyer is a "family law arbitrator" by looking the lawyer up in the [https://www.lawsociety.bc.ca/lsbc/apps/lkup/mbr-search.cfm Lawyer Directory] on the Law Society's website. The training requirements that professionals other than lawyers must meet to qualify as "family dispute resolution professionals" are set out in section 5(2)(b) of the Family Law Act Regulation, and include:

*being a member in good standing with specific organizations,
*meeting specific educational and experiential requirements, including at least 10 years' experience in family-related practice,
*taking continuing family dispute resolution training, and
*carrying professional liability insurance.

It's important to know that, under section 5(3) of the regulation, people other than lawyers may only arbitrate disputes dealing with ''parenting children'', including contact with a child, and ''child support''. However, they can only deal with child support if:

*all of the children are under 19 years of age,
*none of the payor's income is self-employment income or partnership income,
*the payor's income is less than $150,000 per year, and
*the [[Child Support Guidelines]] tables are being used to calculate the basic child support amount.

As well, if children's special or extraordinary expenses are an issue that is to be resolved by an arbitrator who is not a lawyer, section 5(3)(c)(v) says that "the determination of what those expenses are and how they are to be calculated" must be "straightforward."

Section 5 of the regulation imposes two extra duties on arbitrators who are family dispute resolution professionals: they must use written participation agreements; and, they must provide the parties with confirmation that they qualify as family dispute resolution professionals. Section 5(4) says this:

<blockquote><tt>(4) The following practice standards apply to a family dispute resolution professional who wishes to engage in arbitration in relation to a family law dispute:</tt></blockquote>
<blockquote><blockquote><tt>(a) before initiating arbitration, he or she must enter into a written agreement to arbitrate with the parties to the family law dispute;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) before initiating arbitration, he or she must provide written confirmation to the parties to the family law dispute that he or she meets the professional requirements set out in subsection (2).</tt></blockquote></blockquote>

==The arbitration process==

These are the steps involved in the basic arbitration process.

*'''Pick your arbitrator.''' Your lawyer will have the names of three or four arbitrators they prefer to work with. If you don't have a lawyer, you can look at the membership lists of organizations like the [http://adric.ca ADR Institute of Canada], although many accredited family law arbitrators may not have decided to spend the money to join those organizations.
*'''Sign the arbitrator's participation agreement.''' This is a contract that describes your responsibilities and the responsibilities of your arbitrator, and how the arbitrator will be paid. It also requires you to agree to be bound by the result of the arbitration.
*'''Prepare for and attend the prehearing conference.''' This is a meeting during which the parties, their lawyers and the arbitrator will make decisions about how the arbitration will work, including the rules for the hearing, the place and date of the hearing, and the legal issues to be resolved at the hearing.
*'''Prepare your case.''' Start working on your case by researching the law and thinking about the evidence you need to prove your case.
*'''Complete discovery and disclosure.''' This is a process in which you and the other party or parties will exchange documents and information that are relevant to the legal issues in your dispute, such as income tax returns if child support or spousal support is one of those issues.
*'''Exchange the documents you're going to use at the hearing.''' These documents might include written arguments, financial statements or summaries of what your witnesses are going to say.
*'''Attend the hearing.''' An arbitration hearing is the equivalent of a trial, but with special rules and shorter processes. Sometimes you may attend by teleconference or videoconference rather than in person.
*'''Receive the arbitrator's decision.''' The arbitrator will prepare their decision, and the reasons for their decision, in a written document called an award. Most arbitrators try to get their awards to the parties as soon as possible, but it can sometimes take a long time to finish a decision, especially if the evidence presented at the hearing was unusually complicated.
*'''Review the award and ask for corrections.''' You have 30 days after you get the arbitrator's award to ask the arbitrator to correct any typos and other mistakes, and to ask the arbitrator to explain specific parts of their award.

Under section 19.16 of the ''[[Family Law Act]]'', an arbitration is over when:

#the arbitrator has delivered their final award and the time to correct the arbitrator's decision has passed;
#the parties agree to end the arbitration; or,
#the arbitrator makes an order that it is "unnecessary or impossible" to continue the arbitration.

===Starting arbitration===

There are only two ways you can get your family law problem into arbitration.

First, you might have a family law agreement — like a cohabitation agreement, a marriage agreement, or a separation agreement — which says that any disputes or questions about the agreement, or the subjects the agreement covers, will be resolved through arbitration.

Second, you might agree, after a problem has arisen, that you'll go to arbitration instead of going to court, or instead of another process like mediation or collaborative negotiation. You can even agree to resolve a dispute through arbitration after a court proceeding has started. A lot of people decide to do this when they find out how far away their trial is scheduled to start, and when they find out that there's no guarantee that they'll get a judge who is an expert in resolving family law disputes.

You cannot force someone into arbitration, including by asking for a court order that you go to arbitration. Even though section 224(1) of the ''[[Family Law Act]]'' says that "a court may make an order to ... require the parties to participate in family dispute resolution," the court will not make an order that someone go to arbitration. Resolving a dispute through arbitration has to be voluntary, either because you've already agreed to use arbitration ''if'' a problem comes up or because you've agreed to use arbitration ''after'' the problem has come up.

===Arbitration processes===

When people agree or are required to arbitrate their dispute, they first pick their arbitrator. The arbitrator you choose should be someone who is an expert in family law, and perhaps even an expert in family law with special knowledge or skills concerning the most important issues in your dispute. You probably want to choose someone who has a lot of experience as an arbitrator, someone who has a good reputation in the legal community, and, most importantly, someone you see as being neutral, fair-minded and unbiased.

After picking the arbitrator, the arbitrator will ask the parties to sign a participation agreement, usually called an ''arbitration agreement.'' This agreement does three things. First, it serves as the arbitrator's retainer agreement and describes how the arbitrator will charge for their services and when they will expect to be paid. (You can read more about retainer agreements in the [[Understanding the Legal System for Family Law Matters]] chapter, in the [[You and Your Lawyer]] section.) Second, it describes the parties' rights and responsibilities in the process, as well as the responsibilities of the arbitrator and the scope of their authority. Third, it identifies the legal issues the arbitrator will address.

The next step is to meet with the arbitrator to discuss the process leading to the arbitration hearing, decide the date and place for the hearing, and pick the rules that will govern the hearing. This meeting is called a ''prehearing conference'', and picking the rules that will govern the hearing is sometimes the most important part of the arbitration process. A lot of the time, the rules that people select are taken from the more important parts of the [https://canlii.ca/t/8mcr Supreme Court Family Rules] that talk about evidence, experts, and hearing procedures. However, there are lots of other options. People can pick the rules that best suit the circumstances of their children, the nature of their dispute, and the status of their finances. It's important to be as thoughtful as possible in deciding what rules are necessary. Arbitration can look just like going to court, but it doesn't have to. It can be a lot more focused, a lot more efficient, and a lot faster.

How the arbitration process works after the prehearing conference will depend on the rules you've picked.

====The basic arbitration process====

Most of the time, the next step after the prehearing conference involves exchanging the documents and information that are relevant to the legal issues in the dispute. If child support is an issue, for example, financial statements might be prepared and documents like income tax returns, T4 slips, and paystubs might be exchanged. If property is an issue, you might need tax assessments, purchase documents, mortgage statements, and maybe a professional appraisal of the current value of the property.

You need to think carefully about what sort of documents and information you need. For complicated problems, you might also hire an expert to give an opinion about things like the value of a pension, a tax problem, or the best parenting arrangements for the children. (That last kind of opinion is called a ''parenting assessment'' or a ''section 211 report'', and is usually prepared by a psychologist, clinical counsellor, or social worker. You can get more information about ''reports'' and ''assessments'' in the [[Children and Parenting after Separation]] chapter.) You might also need to exchange bank statements, credit card statements and corporate financial statements. The nature of the documents that are important, the extent of the disclosure that is required, and the type of expert opinions that are most useful will change depending on the circumstances, the legal issues, and how the parties have decided to approach the arbitration process.

Once the relevant documents have been exchanged and any expert opinions have been completed, each party will start to work on how they're going to present their case to the arbitrator and on the documents they'll want to refer the arbitrator to at the hearing. These might include:

*written arguments,
*timelines, charts, financial tables, photographs, videos, and other visual aids,
*summaries of what your witnesses are going to say, called ''will-say statements'',
*affidavits and financial statements,
*binders with the financial and other documents you're going to be asking your witnesses to identify, comment on, or explain, called ''books of documents'', and
*binders with the case law you're going to be asking the arbitrator to consider, called ''books of authorities''.

Sometimes the arbitrator will want the parties to cooperate and prepare other hearing documents together. These might include:

*''statements of agreed facts'', a written summary of the facts both parties agree about, and
*''joint books of documents'', binders with the financial and other documents you will both rely on.

Next, the parties and their lawyers, if they have them, will attend the hearing. Arbitration hearings can take place in the arbitrator's office, a boardroom in a hotel or anywhere else that's private, or even remotely by videoconference, and are usually less formal than court hearings; arbitration processes can be as formal or informal as the parties and the arbitrator want.

At the hearing, each party makes an opening argument describing the evidence that will be given and then presents their evidence. The parties' evidence usually consists of the testimony of witnesses, documents, and affidavits. Each party then makes a closing argument to show the arbitrator why the arbitrator should resolve their dispute in the way they each prefer.

After the hearing process is over, the arbitrator will provide a written decision, called an ''award'', summarizing the evidence and resolving all of the legal issues, and explaining why the arbitrator resolved the issues in the way they resolved them.

====Alternative arbitration processes====

Arbitration processes can be as simple or as complicated as the parties want. The basic arbitration process I've just described looks and feels very much like the process that applies in court. However, it isn't always necessary to have a witness who gives oral evidence, or to have any evidence at all. It isn't always necessary to have oral arguments. Sometimes written arguments alone will do. And, if the parties agree, awards can provide a summary explanation of the arbitrator's decision rather than a full explanation.

Here are some examples of alternative arbitration processes:

*The parties could make their arguments to the arbitrator by telephone or videoconference, with no evidence at all, and the arbitrator giving an oral decision right there on the spot. (This process would be ideal for decisions about a legal question where the facts either don't matter or aren't in dispute. It's also the cheapest and fastest way to get a decision.)
*If evidence is necessary to help the arbitrator make their decision, the parties could make their arguments by telephone or video, and the evidence could be presented by affidavits alone, without the in-person testimony of any witness.
*If an in-person hearing is necessary, the parties could agree that evidence will be provided by affidavit, with the people who made the affidavits being cross-examined by the other person or their lawyer. Or, the parties could agree that only a limited number of witnesses will testify, and that each party will have a limited amount of time to examine and cross-examine each witness.
*If an in-person hearing is necessary and the parties agree to very few of the important facts, the parties could have an arbitration with all the bells and whistles available if they were going to court, with no limits on the number or amount of time for each witness. (This process will take the longest time to wrap up and also cost the most money.)
*Where neither party is represented by a lawyer, the hearing could be in-person but be managed completely by the arbitrator who can explore issues and ask questions. The arbitrator would work with the parties to identify the legal issues in the dispute, and then lead the examination of all of the witnesses.

I have developed a checklist of procedural elements that is helpful for designing arbitration processes, and covers every part of the arbitration process, from deciding whether to have an in-person hearing or a hearing by videoconference, to whether and how experts will be hired, to how evidence will be presented at the hearing. You can download my "Arbitration Rules Pick-List" from the [https://www.boydarbitration.ca/rules-of-procedure website] of John-Paul Boyd Arbitration Chambers.

====Mandatory elements of arbitration processes====

Although arbitration processes are incredibly flexible, there are certain aspects of arbitration that are required in British Columbia.

First, the arbitrator must give each party the opportunity to make their case, and to reply to the case made by the other party. This is a basic element of the Canadian justice system, called either "natural justice" or "fundamental justice," that is required of judges as well as arbitrators.

Second, the arbitrator must treat each party fairly and not be biased in favour of one party over the other. Section 19.8 of the ''[[Family Law Act]]'' says this:

<blockquote><tt>(1) An arbitrator must be independent of the parties.</tt></blockquote>
<blockquote><tt>(2) An arbitrator must be impartial and act impartially.</tt></blockquote>
<blockquote><tt>(3) If a person is approached in connection with the person's possible appointment as an arbitrator, the person must, without delay, disclose any circumstances likely to give rise to justifiable doubts as to the person's independence or impartiality.</tt></blockquote>
<blockquote><tt>(4) An arbitrator, from the time of the arbitrator's appointment and throughout the arbitration, must, without delay, disclose to the parties any circumstances referred to in subsection (3).</tt></blockquote>

Third, when it comes to decisions about children, the arbitrator must consider only the best interests of the children.

Finally, arbitral awards must be given in writing and be signed by the arbitrator.

Otherwise, the parties and their arbitrator are free to be as creative as they want and create the rules and the process that are best-suited to the parties, their children, their dispute, their timeline, and their budget.

===Changing, challenging and appealing awards===

If you are unhappy with an arbitrator's decision, you might be able to ''appeal'' the arbitrator's award, in the same way that a decision of the Provincial Court can be appealed to the Supreme Court, and a decision of the Supreme Court can be appealed to the Court of Appeal. When you appeal an award, you are arguing that the arbitrator made an important mistake and that, as a result of the arbitrator's mistake, all or some of their award should be cancelled.

There are other reasons why you might ask that an award be cancelled, usually because of flaws in the arbitration process itself. You would only challenge an award you're unhappy with; if you're happy with the award, you're not likely to be concerned about the fairness of the arbitration process.

On the other hand, you might have an award that you're happy with, but no longer works because there's been an important change in your circumstances, the circumstances of the other party or the circumstances of the children. If there has been an important change, you can apply to court to ''vary'' the award, in the same way that the court can vary a court order.

====Changing awards====

Under section 19.18(3) of the [[Family Law Act]], you can apply to the Supreme Court to change, suspend or cancel all or some of an arbitrator's award when there has been an important change in circumstances after the award was made. This is called "varying" an award.

You can apply to vary an award about a particular issue on the same terms as you can apply to vary a court order about that issue. This means that you need to look at the part of the ''Family Law Act'' that applies to varying orders about the particular issue you're dealing with. If your issue is about child support, for example, you need to look at section 152 of the act. Under section 152, the court may vary an order about child support for one of three reasons:

#if there has been an important change of circumstances since the child support order was made, usually a change about income or the children's living arrangements,
#if important evidence has come to light that wasn't available at the hearing which resulted in the child support order, or
#if a lack of financial disclosure was discovered after the hearing which resulted in the child support order.

Section 47 of the ''Family Law Act'' is about varying orders for children's parenting arrangements, section 60 is about varying orders for contact with a child, and section 167 is about varying orders for spousal support.

====Challenging awards====

Under section 19.18(1) of the ''Family Law Act'', you can apply to the Supreme Court to change or cancel an arbitration award for one or five reasons concerning the basic fairness of the arbitration process:

#you have doubts about the arbitrator's independence or impartiality,
#you were not given a reasonable opportunity to be heard during the arbitration process,
#the arbitrator's award was obtained through fraud or duress from the other party,
#the award deals with legal issues not included in your arbitration agreement, or
#the arbitrator exceeded their authority.

It's important to know that, under section 16.18(2), you can only ask to change or cancel an award because of doubts about the arbitrator's independence or impartiality if there is a "real danger of bias" on the part of the arbitrator. This can be difficult to prove. In ''[https://canlii.ca/t/1prwz Spence v. The Board of Police Commissioners of Prince Albert]'', a 1987 decision of the Saskatchewan Court of Appeal, the court explained what you have to prove to show a real danger of bias, saying that:
<blockquote>“The test is whether a reasonable person would believe there is a real danger of bias or whether there would be a reasonable suspicion of bias even though unintended.</blockquote>

====Appealing awards====

Under section 19.19 of the ''Family Law Act'', you can appeal all or part of an arbitrator's award to the Supreme Court on:

#a question of law, or
#a question of mixed fact and law.

Questions of law are about which law should be applied to determine a legal issue. Appeals based on questions of law argue that the arbitrator applied the wrong legal test or interpreted the legal test incorrectly. Questions of mixed fact and law are about whether the facts satisfy the legal test

Appeals must be started within 40 days of the date you received the arbitrator's award.

===Other uses of arbitration===

Arbitration is very helpful in resolving family law problems quickly and efficiently. Parenting coordinators use a process a lot like arbitration to make decisions resolving disagreements when the parents aren't able to find solutions to which they both agree. The flexibility of arbitration also means that people can ask their arbitrator to make a decision based on the rules of a religion, based on grounds of conscience, or based on equity and fairness.

Arbitration can also be used to:

*break logjams in settlement discussions, where only one or two issues can't be agreed upon,
*resolve disagreements about how the law should be interpreted or applied in a particular situation,
*make temporary decisions about support or parenting arrangements while the parties are negotiating a settlement, or
*perform technical calculations, like about the amount of costs payable in a court proceeding, the income of someone who is self-employed, the amount of spousal support payable, or the after-tax cost of children's expenses.

====Faith-based arbitration====

Under section 19.10 of the ''[[Family Law Act]]'', the parties can choose their own law to govern the arbitration process. Nothing in the act says that this law cannot be a religious law. Judaism and Islam, for example, each have religious laws that can apply to family law disputes for members of those faiths. Members of the orthodox Jewish community may use Halakha to settle personal disputes. Muslims can use Sharia law for the same purpose.

Whatever rules a couple chooses, however, the result of an arbitration cannot be "inconsistent" with the ''Family Law Act'' or the ''[[Divorce Act]]''. Section 19.20 of the ''Family Law Act'' says this:

<blockquote><tt>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.</tt></blockquote>

This means, for example, that child support must be paid to the person who has the child most of the time by the person who has the child for the least amount of time, and that the amount of support paid cannot be too different from what the [[Child Support Guidelines]] require. It also means that a particular person shouldn't have the primary residence of a child merely because of their gender, the age of the child or some other arbitrary reason.

Note that if the parties to faith-based arbitration wish to obtain a divorce, they must still start a court proceeding in the Supreme Court of British Columbia for a divorce order. A religious divorce, such as the Jewish Get, is not a legal divorce.

====Parenting coordination====

Parenting coordination uses a process that includes a decision-making function that's a lot like arbitration. In parenting coordination, the arbitrator is called a ''parenting coordinator'' and first tries to settle a dispute about parenting through a settlement process like mediation. If the parents cannot find consensus, however, the parenting coordinator acts like an arbitrator and makes a written decision, called a ''determination'', resolving the dispute. The parenting coordinator's authority to resolve these disputes comes from the participation agreement the parents sign, in this case called a ''parenting coordination agreement''.

As with faith-based arbitration, or any other kind of family law arbitration for that matter, the parenting coordinator cannot make determinations that are inconsistent with the ''[[Family Law Act]]''. However, parenting coordinators are subject to additional restrictions in the scope of the things they can make decisions about. Under section 6(3) and (4)(a)(ix) of the [http://canlii.ca/t/8rdx Family Law Act Regulation], parenting coordinators can make determinations about parenting arrangements, contact with a child, and other issues agreed to by the parties and the parenting coordinator. However, regardless of whatever the parties and the parenting coordinator may have agreed to, a parenting coordinator may ''not'' make decisions about:

*legal issues that are excluded by an order or a parenting coordination agreement,
*changes to the guardianship of a child,
*changes to the allocation of parental responsibilities,
*giving parenting time or contact to a person who does not already have parenting time or contact,
*substantial changes to parenting time or contact, or
*the relocation of a child.

There's a lot more information about parenting coordination in the [[Parenting_Coordination|next section]] of this chapter.

==When to use arbitration==

There are lots of good reasons to use arbitration rather than go to court. It's fast and efficient, the rules that govern the process are extremely flexible, it's confidential and private, and you get to pick a judge who is an expert in not just family law but the aspects of the law that are the most important in your case. There are, however, only a few circumstances that make arbitration a necessary choice over mediation, collaborative negotiation, or litigation. Typically, people will choose to arbitrate their dispute if:

*they want the laws of their religion or another set of legal, moral or ethical principles to apply to their dispute,
*their positions are too far apart to make negotiation or mediation a reasonable option and must have a decision made for them, but don't want to go to the expense, anxiety, and acrimony typically involved in going to court,
*they want to resolve their dispute discreetly and privately, and don't want to risk their personal business being made public,
*the legal issues are complex and demand a decision-maker who is a specialist in those issues, or
*they want their dispute resolved more quickly than the court schedule will allow.

It's important to understand that while arbitrators can make awards on all of the usual family law issues — including parenting arrangements, contact, child support, spousal support, and the division of property and debt — arbitrators cannot make awards on certain issues that can only be decided by a judge. These include:

*divorce orders and annulments,
*orders appointing someone as the guardian of a child who is not a parent of that child,
*declarations about who is, and who is not, the parent of a child, unless the declaration is necessary to resolve an issue that is within the arbitrator's jurisdiction, and
*orders changing the order of a judge.

==How to find a family law arbitrator==

Finding a family law arbitrator can sometimes be the hard part about taking your problem to arbitration, as there aren't too many arbitrators who specialize in family law issues. Your first and best bet is to speak to a family law lawyer and see who they might recommend to you. (Most lawyers will have a list of three of four arbitrators who they've used in the past and like working with.) You might also do an internet search for "family law arbitrator British Columbia," as lawyers who work as family law arbitrators will describe themselves this way and take pains to indicate in which jurisdiction they work. You could also contact organizations which specialize in providing legal education and developing out-of-court dispute resolution processes, including:

*[https://www.adrbc.com the ADR Institute of British Columbia], and
*[http://www.labour-arbitrators.ca the Arbitrators Association of British Columbia].

(Be warned, however, that there are lots of accredited family law arbitrators who may not have decided to pay the money to join these organizations.) Finally, you could call the Canadian Bar Association's [http://www.clicklaw.bc.ca/helpmap/service/1044 Lawyer Referral Service]. Although the service can't recommend one family law arbitrator over another, they'll at least be able to give you some names.

==Resources and links==

===Legislation===

* ''[https://canlii.ca/t/551f9 Divorce Act]''
* ''[https://canlii.ca/t/8q3k Family Law Act]''
* [https://canlii.ca/t/8rdx Family Law Act Regulation]
* [https://canlii.ca/t/80mh Federal Child Support Guidelines]

===Links===

* [https://www.adrbc.com The ADR Institute of British Columbia]
* [https://adric.ca/ The ADR Institute of Canada]
* [http://www.labour-arbitrators.ca The Arbitrators Association of British Columbia]
* [http://www.clicklaw.bc.ca/helpmap/service/1044 Lawyer Referral Service]
* [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society]
* [https://www.boydarbitration.ca/library John-Paul Boyd Arbitration Chambers] Library
* [https://www.boydarbitration.ca/rules-of-procedure John-Paul Boyd Arbitration Chamber] Arbitration Procedure
* [https://www.lawsociety.bc.ca/ The Law Society of BC]
* [https://www.clicklaw.bc.ca/resource/4616 Resolving Disputes Without Going to Court] from Dial-a-Law by the People's Law School
* [https://www.clicklaw.bc.ca/resource/4191 Settling out of Court] from the Justice Education Society of BC
* [https://www.clicklaw.bc.ca/resource/1253 Mediation, collaborative negotiation, and arbitration] from Dial-a-Law by the People's Law School

===Resources===

*Arbitration [[Media:Arbitration procedure pick-list - fillable.pdf|procedure pick-list]] (fillable PDF)
*Sample arbitration [[Media:Arbitration Agreement - PDF.pdf|participation agreement]] (PDF) in cases where the parties are represented by lawyers.
*Sample arbitration [[Media:Arbitration Agreement - Self-Rep - PDF.pdf|participation agreement]] (PDF) in cases where the parties are not represented by lawyers.

These sample participation agreements may not resemble the participation agreement you are asked to sign. They provide a more or less accurate picture of what arbitration participation agreements usually look like, but should be used as a reference only.

You can also look at the website of [https://www.boydarbitration.ca/participationagreements John-Paul Boyd Arbitration Chambers] which provides a number of model participation agreements for download.

* [https://www.clicklaw.bc.ca/resource/4452 "An Evaluation of the Cost of Family Law Disputes: Measuring the Cost Implication of Various Dispute Resolution Methods" PDF] from Canadian Research Institute for Law and the Family
* [https://www.clicklaw.bc.ca/resource/1497 "Alternatives to Going to Court" PDF] from the Justice Education Society of BC

{{REVIEWED | reviewer = [[JP Boyd]], 25 August 2021}}

{{JP Boyd on Family Law Navbox|type=chapters}}
{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Family Law Arbitration

2023-04-18T23:38:12Z

Jpboyd: /* Changing, challenging and appealing awards */

{{JP Boyd on Family Law TOC|expanded = outofcourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[JP Boyd]]
}}Arbitration is a dispute resolution process in which the parties hire a neutral third party, an ''arbitrator'', to make decisions resolving some or all of the legal issues in their dispute. While the job of a mediator is to help people work toward their own resolution of their family law dispute, the arbitrator's job is to act like a judge and make a decision resolving a legal dispute, after hearing the evidence and listening to the arguments of each party.

People who work as arbitrators are usually trained professionals who qualify as "family law dispute resolution professionals" under the ''[[Family Law Act]]'', meaning that they have the experience and education required by the [https://canlii.ca/t/5539g Family Law Act Regulation]. Lawyers who are "family law arbitrators" are specially accredited to arbitrate family law disputes by the [http://www.lawsociety.bc.ca Law Society of British Columbia].

This section provides an introduction to arbitration and discusses when to use arbitration in a family law dispute. It also provides some suggestions about how to find a family law arbitrator.

==Introduction==

Like mediation and collaborative negotiation, arbitration is a voluntary process. The parties to a dispute must all ''agree'' to use arbitration to resolve their legal dispute. Like those processes, arbitration is also an out-of-court way of resolving problems. However, that's where the similarities between arbitration, mediation and collaborative negotiation end. While the parties to a dispute may have agreed to use arbitration to resolve their dispute, it's the ''arbitrator'' who resolves their dispute, not the parties themselves.

Before the new ''[[Family Law Act]]'' became law in British Columbia, arbitration was rarely used in family law disputes. Arbitration was most frequently used in the context of commercial, labour, and construction disputes. In other places, such as Ontario and Alberta, the arbitration of family law disputes is well-established and has been for some time. The ''Family Law Act'', however, made a number of changes to the law that improved the usefulness of arbitration for family law disputes in British Columbia, and the number of people choosing arbitration over going to court has been increasing as a result.

Arbitration offers a number of advantages for resolving family law problems:

*it allows the parties to hand-pick the person who will make decisions about the issues they cannot agree on, which means that they might pick an arbitrator who is not just an expert family law lawyer, but an expert family law lawyer with special knowledge of a specific issue, like parenting children, tax problems, or property division,
*it allows the parties to pick the rules that will apply to the hearing and the decision-making process,
*arbitration resolves disputes much faster than going to court,
*the arbitration process is private, confidential, and closed to the public, and
*the result of the process is an arbitrator's award that is just as binding as a court order and is enforceable just like a court order.

As well, it's often faster to get a date for an arbitration hearing than it is for a court hearing. Although short trials of two or three days can usually be booked within ten to twelve months, it can take a year or more to get a date for longer trials because the court is so busy. An arbitration hearing can be booked as soon as everyone has free time in their calendars.

People can start arbitration right off the bat, as soon as a legal problem has come up, or they can use it to resolve a court proceeding as an alternative to trial. The result of a successful process of arbitration is an arbitrator's ''award''. If litigation has already started, the award can be turned into an order that the parties agree the court will make, called a ''consent order''. If the parties are married, a consent order may make more sense since they'll usually want an order for their divorce at the same time as they're wrapping everything else up.

The parties can meet with their arbitrator on their own or with their lawyers. As an arbitrator, I always appreciate having the parties' lawyers present. I recognize that having the lawyers at the arbitration hearing costs the parties more money, but the lawyers are intimately familiar with how to write briefs, make legal arguments and present evidence, and arbitration hearings with lawyers are usually much shorter than hearings without lawyers. However, there is no rule that you must have a lawyer represent you in arbitration, just like there's no rule that you must have a lawyer represent you in litigation.

The arbitrator has no stake in how the arbitration turns out. The arbitrator must be neutral and have no bias in favour of either party. Most of the time, the arbitrator should have no special connection — business, personal or otherwise — with either party, and the arbitrator must make sure that all parties are aware of any such special connections before they agree to hire the arbitrator.

==Working with "family law arbitrators" under the ''Family Law Act''==

An arbitrator who qualifies as a "family dispute resolution professional" under the ''[[Family Law Act]]'' must meet the requirements set out in the [http://canlii.ca/t/8rdx Family Law Act Regulation]. Section 5 of the regulation says that:

<blockquote><tt>(1) Only an arbitrator who is qualified as a family dispute resolution professional may conduct an arbitration in relation to a family law dispute.</tt></blockquote>

Lawyers who qualify as ''family law arbitrators'' meet the training requirements of, and are accredited by, the Law Society of British Columbia. You can find out if a lawyer is a "family law arbitrator" by looking the lawyer up in the [https://www.lawsociety.bc.ca/lsbc/apps/lkup/mbr-search.cfm Lawyer Directory] on the Law Society's website. The training requirements that professionals other than lawyers must meet to qualify as "family dispute resolution professionals" are set out in section 5(2)(b) of the Family Law Act Regulation, and include:

*being a member in good standing with specific organizations,
*meeting specific educational and experiential requirements, including at least 10 years' experience in family-related practice,
*taking continuing family dispute resolution training, and
*carrying professional liability insurance.

It's important to know that, under section 5(3) of the regulation, people other than lawyers may only arbitrate disputes dealing with ''parenting children'', including contact with a child, and ''child support''. However, they can only deal with child support if:

*all of the children are under 19 years of age,
*none of the payor's income is self-employment income or partnership income,
*the payor's income is less than $150,000 per year, and
*the [[Child Support Guidelines]] tables are being used to calculate the basic child support amount.

As well, if children's special or extraordinary expenses are an issue that is to be resolved by an arbitrator who is not a lawyer, section 5(3)(c)(v) says that "the determination of what those expenses are and how they are to be calculated" must be "straightforward."

Section 5 of the regulation imposes two extra duties on arbitrators who are family dispute resolution professionals: they must use written participation agreements; and, they must provide the parties with confirmation that they qualify as family dispute resolution professionals. Section 5(4) says this:

<blockquote><tt>(4) The following practice standards apply to a family dispute resolution professional who wishes to engage in arbitration in relation to a family law dispute:</tt></blockquote>
<blockquote><blockquote><tt>(a) before initiating arbitration, he or she must enter into a written agreement to arbitrate with the parties to the family law dispute;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) before initiating arbitration, he or she must provide written confirmation to the parties to the family law dispute that he or she meets the professional requirements set out in subsection (2).</tt></blockquote></blockquote>

==The arbitration process==

These are the steps involved in the basic arbitration process.

*'''Pick your arbitrator.''' Your lawyer will have the names of three or four arbitrators they prefer to work with. If you don't have a lawyer, you can look at the membership lists of organizations like the [http://adric.ca ADR Institute of Canada], although many accredited family law arbitrators may not have decided to spend the money to join those organizations.
*'''Sign the arbitrator's participation agreement.''' This is a contract that describes your responsibilities and the responsibilities of your arbitrator, and how the arbitrator will be paid. It also requires you to agree to be bound by the result of the arbitration.
*'''Prepare for and attend the prehearing conference.''' This is a meeting during which the parties, their lawyers and the arbitrator will make decisions about how the arbitration will work, including the rules for the hearing, the place and date of the hearing, and the legal issues to be resolved at the hearing.
*'''Prepare your case.''' Start working on your case by researching the law and thinking about the evidence you need to prove your case.
*'''Complete discovery and disclosure.''' This is a process in which you and the other party or parties will exchange documents and information that are relevant to the legal issues in your dispute, such as income tax returns if child support or spousal support is one of those issues.
*'''Exchange the documents you're going to use at the hearing.''' These documents might include written arguments, financial statements or summaries of what your witnesses are going to say.
*'''Attend the hearing.''' An arbitration hearing is the equivalent of a trial, but with special rules and shorter processes. Sometimes you may attend by teleconference or videoconference rather than in person.
*'''Receive the arbitrator's decision.''' The arbitrator will prepare their decision, and the reasons for their decision, in a written document called an award. Most arbitrators try to get their awards to the parties as soon as possible, but it can sometimes take a long time to finish a decision, especially if the evidence presented at the hearing was unusually complicated.
*'''Review the award and ask for corrections.''' You have 30 days after you get the arbitrator's award to ask the arbitrator to correct any typos and other mistakes, and to ask the arbitrator to explain specific parts of their award.

Under section 19.16 of the ''[[Family Law Act]]'', an arbitration is over when:

#the arbitrator has delivered their final award and the time to correct the arbitrator's decision has passed;
#the parties agree to end the arbitration; or,
#the arbitrator makes an order that it is "unnecessary or impossible" to continue the arbitration.

===Starting arbitration===

There are only two ways you can get your family law problem into arbitration.

First, you might have a family law agreement — like a cohabitation agreement, a marriage agreement, or a separation agreement — which says that any disputes or questions about the agreement, or the subjects the agreement covers, will be resolved through arbitration.

Second, you might agree, after a problem has arisen, that you'll go to arbitration instead of going to court, or instead of another process like mediation or collaborative negotiation. You can even agree to resolve a dispute through arbitration after a court proceeding has started. A lot of people decide to do this when they find out how far away their trial is scheduled to start, and when they find out that there's no guarantee that they'll get a judge who is an expert in resolving family law disputes.

You cannot force someone into arbitration, including by asking for a court order that you go to arbitration. Even though section 224(1) of the ''[[Family Law Act]]'' says that "a court may make an order to ... require the parties to participate in family dispute resolution," the court will not make an order that someone go to arbitration. Resolving a dispute through arbitration has to be voluntary, either because you've already agreed to use arbitration ''if'' a problem comes up or because you've agreed to use arbitration ''after'' the problem has come up.

===Arbitration processes===

When people agree or are required to arbitrate their dispute, they first pick their arbitrator. The arbitrator you choose should be someone who is an expert in family law, and perhaps even an expert in family law with special knowledge or skills concerning the most important issues in your dispute. You probably want to choose someone who has a lot of experience as an arbitrator, someone who has a good reputation in the legal community, and, most importantly, someone you see as being neutral, fair-minded and unbiased.

After picking the arbitrator, the arbitrator will ask the parties to sign a participation agreement, usually called an ''arbitration agreement.'' This agreement does three things. First, it serves as the arbitrator's retainer agreement and describes how the arbitrator will charge for their services and when they will expect to be paid. (You can read more about retainer agreements in the [[Understanding the Legal System for Family Law Matters]] chapter, in the [[You and Your Lawyer]] section.) Second, it describes the parties' rights and responsibilities in the process, as well as the responsibilities of the arbitrator and the scope of their authority. Third, it identifies the legal issues the arbitrator will address.

The next step is to meet with the arbitrator to discuss the process leading to the arbitration hearing, decide the date and place for the hearing, and pick the rules that will govern the hearing. This meeting is called a ''prehearing conference'', and picking the rules that will govern the hearing is sometimes the most important part of the arbitration process. A lot of the time, the rules that people select are taken from the more important parts of the [https://canlii.ca/t/8mcr Supreme Court Family Rules] that talk about evidence, experts, and hearing procedures. However, there are lots of other options. People can pick the rules that best suit the circumstances of their children, the nature of their dispute, and the status of their finances. It's important to be as thoughtful as possible in deciding what rules are necessary. Arbitration can look just like going to court, but it doesn't have to. It can be a lot more focused, a lot more efficient, and a lot faster.

How the arbitration process works after the prehearing conference will depend on the rules you've picked.

====The basic arbitration process====

Most of the time, the next step after the prehearing conference involves exchanging the documents and information that are relevant to the legal issues in the dispute. If child support is an issue, for example, financial statements might be prepared and documents like income tax returns, T4 slips, and paystubs might be exchanged. If property is an issue, you might need tax assessments, purchase documents, mortgage statements, and maybe a professional appraisal of the current value of the property.

You need to think carefully about what sort of documents and information you need. For complicated problems, you might also hire an expert to give an opinion about things like the value of a pension, a tax problem, or the best parenting arrangements for the children. (That last kind of opinion is called a ''parenting assessment'' or a ''section 211 report'', and is usually prepared by a psychologist, clinical counsellor, or social worker. You can get more information about ''reports'' and ''assessments'' in the [[Children and Parenting after Separation]] chapter.) You might also need to exchange bank statements, credit card statements and corporate financial statements. The nature of the documents that are important, the extent of the disclosure that is required, and the type of expert opinions that are most useful will change depending on the circumstances, the legal issues, and how the parties have decided to approach the arbitration process.

Once the relevant documents have been exchanged and any expert opinions have been completed, each party will start to work on how they're going to present their case to the arbitrator and on the documents they'll want to refer the arbitrator to at the hearing. These might include:

*written arguments,
*timelines, charts, financial tables, photographs, videos, and other visual aids,
*summaries of what your witnesses are going to say, called ''will-say statements'',
*affidavits and financial statements,
*binders with the financial and other documents you're going to be asking your witnesses to identify, comment on, or explain, called ''books of documents'', and
*binders with the case law you're going to be asking the arbitrator to consider, called ''books of authorities''.

Sometimes the arbitrator will want the parties to cooperate and prepare other hearing documents together. These might include:

*''statements of agreed facts'', a written summary of the facts both parties agree about, and
*''joint books of documents'', binders with the financial and other documents you will both rely on.

Next, the parties and their lawyers, if they have them, will attend the hearing. Arbitration hearings can take place in the arbitrator's office, a boardroom in a hotel or anywhere else that's private, or even remotely by videoconference, and are usually less formal than court hearings; arbitration processes can be as formal or informal as the parties and the arbitrator want.

At the hearing, each party makes an opening argument describing the evidence that will be given and then presents their evidence. The parties' evidence usually consists of the testimony of witnesses, documents, and affidavits. Each party then makes a closing argument to show the arbitrator why the arbitrator should resolve their dispute in the way they each prefer.

After the hearing process is over, the arbitrator will provide a written decision, called an ''award'', summarizing the evidence and resolving all of the legal issues, and explaining why the arbitrator resolved the issues in the way they resolved them.

====Alternative arbitration processes====

Arbitration processes can be as simple or as complicated as the parties want. The basic arbitration process I've just described looks and feels very much like the process that applies in court. However, it isn't always necessary to have a witness who gives oral evidence, or to have any evidence at all. It isn't always necessary to have oral arguments. Sometimes written arguments alone will do. And, if the parties agree, awards can provide a summary explanation of the arbitrator's decision rather than a full explanation.

Here are some examples of alternative arbitration processes:

*The parties could make their arguments to the arbitrator by telephone or videoconference, with no evidence at all, and the arbitrator giving an oral decision right there on the spot. (This process would be ideal for decisions about a legal question where the facts either don't matter or aren't in dispute. It's also the cheapest and fastest way to get a decision.)
*If evidence is necessary to help the arbitrator make their decision, the parties could make their arguments by telephone or video, and the evidence could be presented by affidavits alone, without the in-person testimony of any witness.
*If an in-person hearing is necessary, the parties could agree that evidence will be provided by affidavit, with the people who made the affidavits being cross-examined by the other person or their lawyer. Or, the parties could agree that only a limited number of witnesses will testify, and that each party will have a limited amount of time to examine and cross-examine each witness.
*If an in-person hearing is necessary and the parties agree to very few of the important facts, the parties could have an arbitration with all the bells and whistles available if they were going to court, with no limits on the number or amount of time for each witness. (This process will take the longest time to wrap up and also cost the most money.)
*Where neither party is represented by a lawyer, the hearing could be in-person but be managed completely by the arbitrator who can explore issues and ask questions. The arbitrator would work with the parties to identify the legal issues in the dispute, and then lead the examination of all of the witnesses.

I have developed a checklist of procedural elements that is helpful for designing arbitration processes, and covers every part of the arbitration process, from deciding whether to have an in-person hearing or a hearing by videoconference, to whether and how experts will be hired, to how evidence will be presented at the hearing. You can download my "Arbitration Rules Pick-List" from the [https://www.boydarbitration.ca/rules-of-procedure website] of John-Paul Boyd Arbitration Chambers.

====Mandatory elements of arbitration processes====

Although arbitration processes are incredibly flexible, there are certain aspects of arbitration that are required in British Columbia.

First, the arbitrator must give each party the opportunity to make their case, and to reply to the case made by the other party. This is a basic element of the Canadian justice system, called either "natural justice" or "fundamental justice," that is required of judges as well as arbitrators.

Second, the arbitrator must treat each party fairly and not be biased in favour of one party over the other. Section 19.8 of the ''[[Family Law Act]]'' says this:

<blockquote><tt>(1) An arbitrator must be independent of the parties.</tt></blockquote>
<blockquote><tt>(2) An arbitrator must be impartial and act impartially.</tt></blockquote>
<blockquote><tt>(3) If a person is approached in connection with the person's possible appointment as an arbitrator, the person must, without delay, disclose any circumstances likely to give rise to justifiable doubts as to the person's independence or impartiality.</tt></blockquote>
<blockquote><tt>(4) An arbitrator, from the time of the arbitrator's appointment and throughout the arbitration, must, without delay, disclose to the parties any circumstances referred to in subsection (3).</tt></blockquote>

Third, when it comes to decisions about children, the arbitrator must consider only the best interests of the children.

Finally, arbitral awards must be given in writing and be signed by the arbitrator.

Otherwise, the parties and their arbitrator are free to be as creative as they want and create the rules and the process that are best-suited to the parties, their children, their dispute, their timeline, and their budget.

===Changing, challenging and appealing awards===

If you are unhappy with an arbitrator's decision, you might be able to ''appeal'' the arbitrator's award, in the same way that a decision of the Provincial Court can be appealed to the Supreme Court, and a decision of the Supreme Court can be appealed to the Court of Appeal. When you appeal an award, you are arguing that the arbitrator made an important mistake and that, as a result of the arbitrator's mistake, all or some of their award should be cancelled.

There are other reasons why you might ask that an award be cancelled, usually because of flaws in the arbitration process itself. You would only challenge an award you're unhappy with; if you're happy with the award, you're not likely to be concerned about the fairness of the arbitration process.

On the other hand, you might have an award that you're happy with, but no longer works because there's been an important change in your circumstances, the circumstances of the other party or the circumstances of the children. If there has been an important change, you can apply to court to ''vary'' the award, in the same way that the court can vary a court order.

====Changing awards====

Under section 19.18(3) of the [[Family Law Act]], you can apply to the Supreme Court to change, suspend or cancel all or some of an arbitrator's award when there has been an important change in circumstances after the award was made. This is called "varying" an award.

You can apply to vary an award about a particular issue on the same terms as you can apply to vary a court order about that issue. This means that you need to look at the part of the ''Family Law Act'' that applies to varying orders about the particular issue you're dealing with. If your issue is about child support, for example, you need to look at section 152 of the act. Under section 152, the court may vary an order about child support for one of three reasons:

#if there has been an important change of circumstances since the child support order was made, usually a change about income or the children's living arrangements,
#if important evidence has come to light that wasn't available at the hearing which resulted in the child support order, or
#if a lack of financial disclosure was discovered after the hearing which resulted in the child support order.

Section 47 of the ''Family Law Act'' is about varying orders for children's parenting arrangements, section 60 is about varying orders for contact with a child, and section 167 is about varying orders for spousal support.

====Challenging awards====

Under section 19.18(1) of the ''Family Law Act'', you can apply to the Supreme Court to change or cancel an arbitration award for one or five reasons concerning the basic fairness of the arbitration process:

#you have doubts about the arbitrator's independence or impartiality,
#you were not given a reasonable opportunity to be heard during the arbitration process,
#the arbitrator's award was obtained through fraud or duress from the other party,
#the award deals with legal issues not included in your arbitration agreement, or
#the arbitrator exceeded their authority.

It's important to know that, under section 16.18(2), you can only ask to change or cancel an award because of doubts about the arbitrator's independence or impartiality if there is a "real danger of bias" on the part of the arbitrator. This can be difficult to prove. In ''[https://canlii.ca/t/1prwz Spence v. The Board of Police Commissioners of Prince Albert]'', a 1987 decision of the Saskatchewan Court of Appeal, the court explained what has to be proven to show a real danger of bias, saying that:
<blockquote>“The test is whether a reasonable person would believe there is a real danger of bias or whether there would be a reasonable suspicion of bias even though unintended.</blockquote>

====Challenging awards====

===Other uses of arbitration===

Arbitration is very helpful in resolving family law problems quickly and efficiently. Parenting coordinators use a process a lot like arbitration to make decisions resolving disagreements when the parents aren't able to find solutions to which they both agree. The flexibility of arbitration also means that people can ask their arbitrator to make a decision based on the rules of a religion, based on grounds of conscience, or based on equity and fairness.

Arbitration can also be used to:

*break logjams in settlement discussions, where only one or two issues can't be agreed upon,
*resolve disagreements about how the law should be interpreted or applied in a particular situation,
*make temporary decisions about support or parenting arrangements while the parties are negotiating a settlement, or
*perform technical calculations, like about the amount of costs payable in a court proceeding, the income of someone who is self-employed, the amount of spousal support payable, or the after-tax cost of children's expenses.

====Faith-based arbitration====

Under section 19.10 of the ''[[Family Law Act]]'', the parties can choose their own law to govern the arbitration process. Nothing in the act says that this law cannot be a religious law. Judaism and Islam, for example, each have religious laws that can apply to family law disputes for members of those faiths. Members of the orthodox Jewish community may use Halakha to settle personal disputes. Muslims can use Sharia law for the same purpose.

Whatever rules a couple chooses, however, the result of an arbitration cannot be "inconsistent" with the ''Family Law Act'' or the ''[[Divorce Act]]''. Section 19.20 of the ''Family Law Act'' says this:

<blockquote><tt>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.</tt></blockquote>

This means, for example, that child support must be paid to the person who has the child most of the time by the person who has the child for the least amount of time, and that the amount of support paid cannot be too different from what the [[Child Support Guidelines]] require. It also means that a particular person shouldn't have the primary residence of a child merely because of their gender, the age of the child or some other arbitrary reason.

Note that if the parties to faith-based arbitration wish to obtain a divorce, they must still start a court proceeding in the Supreme Court of British Columbia for a divorce order. A religious divorce, such as the Jewish Get, is not a legal divorce.

====Parenting coordination====

Parenting coordination uses a process that includes a decision-making function that's a lot like arbitration. In parenting coordination, the arbitrator is called a ''parenting coordinator'' and first tries to settle a dispute about parenting through a settlement process like mediation. If the parents cannot find consensus, however, the parenting coordinator acts like an arbitrator and makes a written decision, called a ''determination'', resolving the dispute. The parenting coordinator's authority to resolve these disputes comes from the participation agreement the parents sign, in this case called a ''parenting coordination agreement''.

As with faith-based arbitration, or any other kind of family law arbitration for that matter, the parenting coordinator cannot make determinations that are inconsistent with the ''[[Family Law Act]]''. However, parenting coordinators are subject to additional restrictions in the scope of the things they can make decisions about. Under section 6(3) and (4)(a)(ix) of the [http://canlii.ca/t/8rdx Family Law Act Regulation], parenting coordinators can make determinations about parenting arrangements, contact with a child, and other issues agreed to by the parties and the parenting coordinator. However, regardless of whatever the parties and the parenting coordinator may have agreed to, a parenting coordinator may ''not'' make decisions about:

*legal issues that are excluded by an order or a parenting coordination agreement,
*changes to the guardianship of a child,
*changes to the allocation of parental responsibilities,
*giving parenting time or contact to a person who does not already have parenting time or contact,
*substantial changes to parenting time or contact, or
*the relocation of a child.

There's a lot more information about parenting coordination in the [[Parenting_Coordination|next section]] of this chapter.

==When to use arbitration==

There are lots of good reasons to use arbitration rather than go to court. It's fast and efficient, the rules that govern the process are extremely flexible, it's confidential and private, and you get to pick a judge who is an expert in not just family law but the aspects of the law that are the most important in your case. There are, however, only a few circumstances that make arbitration a necessary choice over mediation, collaborative negotiation, or litigation. Typically, people will choose to arbitrate their dispute if:

*they want the laws of their religion or another set of legal, moral or ethical principles to apply to their dispute,
*their positions are too far apart to make negotiation or mediation a reasonable option and must have a decision made for them, but don't want to go to the expense, anxiety, and acrimony typically involved in going to court,
*they want to resolve their dispute discreetly and privately, and don't want to risk their personal business being made public,
*the legal issues are complex and demand a decision-maker who is a specialist in those issues, or
*they want their dispute resolved more quickly than the court schedule will allow.

It's important to understand that while arbitrators can make awards on all of the usual family law issues — including parenting arrangements, contact, child support, spousal support, and the division of property and debt — arbitrators cannot make awards on certain issues that can only be decided by a judge. These include:

*divorce orders and annulments,
*orders appointing someone as the guardian of a child who is not a parent of that child,
*declarations about who is, and who is not, the parent of a child, unless the declaration is necessary to resolve an issue that is within the arbitrator's jurisdiction, and
*orders changing the order of a judge.

==How to find a family law arbitrator==

Finding a family law arbitrator can sometimes be the hard part about taking your problem to arbitration, as there aren't too many arbitrators who specialize in family law issues. Your first and best bet is to speak to a family law lawyer and see who they might recommend to you. (Most lawyers will have a list of three of four arbitrators who they've used in the past and like working with.) You might also do an internet search for "family law arbitrator British Columbia," as lawyers who work as family law arbitrators will describe themselves this way and take pains to indicate in which jurisdiction they work. You could also contact organizations which specialize in providing legal education and developing out-of-court dispute resolution processes, including:

*[https://www.adrbc.com the ADR Institute of British Columbia], and
*[http://www.labour-arbitrators.ca the Arbitrators Association of British Columbia].

(Be warned, however, that there are lots of accredited family law arbitrators who may not have decided to pay the money to join these organizations.) Finally, you could call the Canadian Bar Association's [http://www.clicklaw.bc.ca/helpmap/service/1044 Lawyer Referral Service]. Although the service can't recommend one family law arbitrator over another, they'll at least be able to give you some names.

==Resources and links==

===Legislation===

* ''[https://canlii.ca/t/551f9 Divorce Act]''
* ''[https://canlii.ca/t/8q3k Family Law Act]''
* [https://canlii.ca/t/8rdx Family Law Act Regulation]
* [https://canlii.ca/t/80mh Federal Child Support Guidelines]

===Links===

* [https://www.adrbc.com The ADR Institute of British Columbia]
* [https://adric.ca/ The ADR Institute of Canada]
* [http://www.labour-arbitrators.ca The Arbitrators Association of British Columbia]
* [http://www.clicklaw.bc.ca/helpmap/service/1044 Lawyer Referral Service]
* [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society]
* [https://www.boydarbitration.ca/library John-Paul Boyd Arbitration Chambers] Library
* [https://www.boydarbitration.ca/rules-of-procedure John-Paul Boyd Arbitration Chamber] Arbitration Procedure
* [https://www.lawsociety.bc.ca/ The Law Society of BC]
* [https://www.clicklaw.bc.ca/resource/4616 Resolving Disputes Without Going to Court] from Dial-a-Law by the People's Law School
* [https://www.clicklaw.bc.ca/resource/4191 Settling out of Court] from the Justice Education Society of BC
* [https://www.clicklaw.bc.ca/resource/1253 Mediation, collaborative negotiation, and arbitration] from Dial-a-Law by the People's Law School

===Resources===

*Arbitration [[Media:Arbitration procedure pick-list - fillable.pdf|procedure pick-list]] (fillable PDF)
*Sample arbitration [[Media:Arbitration Agreement - PDF.pdf|participation agreement]] (PDF) in cases where the parties are represented by lawyers.
*Sample arbitration [[Media:Arbitration Agreement - Self-Rep - PDF.pdf|participation agreement]] (PDF) in cases where the parties are not represented by lawyers.

These sample participation agreements may not resemble the participation agreement you are asked to sign. They provide a more or less accurate picture of what arbitration participation agreements usually look like, but should be used as a reference only.

You can also look at the website of [https://www.boydarbitration.ca/participationagreements John-Paul Boyd Arbitration Chambers] which provides a number of model participation agreements for download.

* [https://www.clicklaw.bc.ca/resource/4452 "An Evaluation of the Cost of Family Law Disputes: Measuring the Cost Implication of Various Dispute Resolution Methods" PDF] from Canadian Research Institute for Law and the Family
* [https://www.clicklaw.bc.ca/resource/1497 "Alternatives to Going to Court" PDF] from the Justice Education Society of BC

{{REVIEWED | reviewer = [[JP Boyd]], 25 August 2021}}

{{JP Boyd on Family Law Navbox|type=chapters}}
{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Family Law Arbitration

2023-04-18T23:35:45Z

Jpboyd: /* Challenging awards */

{{JP Boyd on Family Law TOC|expanded = outofcourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[JP Boyd]]
}}Arbitration is a dispute resolution process in which the parties hire a neutral third party, an ''arbitrator'', to make decisions resolving some or all of the legal issues in their dispute. While the job of a mediator is to help people work toward their own resolution of their family law dispute, the arbitrator's job is to act like a judge and make a decision resolving a legal dispute, after hearing the evidence and listening to the arguments of each party.

People who work as arbitrators are usually trained professionals who qualify as "family law dispute resolution professionals" under the ''[[Family Law Act]]'', meaning that they have the experience and education required by the [https://canlii.ca/t/5539g Family Law Act Regulation]. Lawyers who are "family law arbitrators" are specially accredited to arbitrate family law disputes by the [http://www.lawsociety.bc.ca Law Society of British Columbia].

This section provides an introduction to arbitration and discusses when to use arbitration in a family law dispute. It also provides some suggestions about how to find a family law arbitrator.

==Introduction==

Like mediation and collaborative negotiation, arbitration is a voluntary process. The parties to a dispute must all ''agree'' to use arbitration to resolve their legal dispute. Like those processes, arbitration is also an out-of-court way of resolving problems. However, that's where the similarities between arbitration, mediation and collaborative negotiation end. While the parties to a dispute may have agreed to use arbitration to resolve their dispute, it's the ''arbitrator'' who resolves their dispute, not the parties themselves.

Before the new ''[[Family Law Act]]'' became law in British Columbia, arbitration was rarely used in family law disputes. Arbitration was most frequently used in the context of commercial, labour, and construction disputes. In other places, such as Ontario and Alberta, the arbitration of family law disputes is well-established and has been for some time. The ''Family Law Act'', however, made a number of changes to the law that improved the usefulness of arbitration for family law disputes in British Columbia, and the number of people choosing arbitration over going to court has been increasing as a result.

Arbitration offers a number of advantages for resolving family law problems:

*it allows the parties to hand-pick the person who will make decisions about the issues they cannot agree on, which means that they might pick an arbitrator who is not just an expert family law lawyer, but an expert family law lawyer with special knowledge of a specific issue, like parenting children, tax problems, or property division,
*it allows the parties to pick the rules that will apply to the hearing and the decision-making process,
*arbitration resolves disputes much faster than going to court,
*the arbitration process is private, confidential, and closed to the public, and
*the result of the process is an arbitrator's award that is just as binding as a court order and is enforceable just like a court order.

As well, it's often faster to get a date for an arbitration hearing than it is for a court hearing. Although short trials of two or three days can usually be booked within ten to twelve months, it can take a year or more to get a date for longer trials because the court is so busy. An arbitration hearing can be booked as soon as everyone has free time in their calendars.

People can start arbitration right off the bat, as soon as a legal problem has come up, or they can use it to resolve a court proceeding as an alternative to trial. The result of a successful process of arbitration is an arbitrator's ''award''. If litigation has already started, the award can be turned into an order that the parties agree the court will make, called a ''consent order''. If the parties are married, a consent order may make more sense since they'll usually want an order for their divorce at the same time as they're wrapping everything else up.

The parties can meet with their arbitrator on their own or with their lawyers. As an arbitrator, I always appreciate having the parties' lawyers present. I recognize that having the lawyers at the arbitration hearing costs the parties more money, but the lawyers are intimately familiar with how to write briefs, make legal arguments and present evidence, and arbitration hearings with lawyers are usually much shorter than hearings without lawyers. However, there is no rule that you must have a lawyer represent you in arbitration, just like there's no rule that you must have a lawyer represent you in litigation.

The arbitrator has no stake in how the arbitration turns out. The arbitrator must be neutral and have no bias in favour of either party. Most of the time, the arbitrator should have no special connection — business, personal or otherwise — with either party, and the arbitrator must make sure that all parties are aware of any such special connections before they agree to hire the arbitrator.

==Working with "family law arbitrators" under the ''Family Law Act''==

An arbitrator who qualifies as a "family dispute resolution professional" under the ''[[Family Law Act]]'' must meet the requirements set out in the [http://canlii.ca/t/8rdx Family Law Act Regulation]. Section 5 of the regulation says that:

<blockquote><tt>(1) Only an arbitrator who is qualified as a family dispute resolution professional may conduct an arbitration in relation to a family law dispute.</tt></blockquote>

Lawyers who qualify as ''family law arbitrators'' meet the training requirements of, and are accredited by, the Law Society of British Columbia. You can find out if a lawyer is a "family law arbitrator" by looking the lawyer up in the [https://www.lawsociety.bc.ca/lsbc/apps/lkup/mbr-search.cfm Lawyer Directory] on the Law Society's website. The training requirements that professionals other than lawyers must meet to qualify as "family dispute resolution professionals" are set out in section 5(2)(b) of the Family Law Act Regulation, and include:

*being a member in good standing with specific organizations,
*meeting specific educational and experiential requirements, including at least 10 years' experience in family-related practice,
*taking continuing family dispute resolution training, and
*carrying professional liability insurance.

It's important to know that, under section 5(3) of the regulation, people other than lawyers may only arbitrate disputes dealing with ''parenting children'', including contact with a child, and ''child support''. However, they can only deal with child support if:

*all of the children are under 19 years of age,
*none of the payor's income is self-employment income or partnership income,
*the payor's income is less than $150,000 per year, and
*the [[Child Support Guidelines]] tables are being used to calculate the basic child support amount.

As well, if children's special or extraordinary expenses are an issue that is to be resolved by an arbitrator who is not a lawyer, section 5(3)(c)(v) says that "the determination of what those expenses are and how they are to be calculated" must be "straightforward."

Section 5 of the regulation imposes two extra duties on arbitrators who are family dispute resolution professionals: they must use written participation agreements; and, they must provide the parties with confirmation that they qualify as family dispute resolution professionals. Section 5(4) says this:

<blockquote><tt>(4) The following practice standards apply to a family dispute resolution professional who wishes to engage in arbitration in relation to a family law dispute:</tt></blockquote>
<blockquote><blockquote><tt>(a) before initiating arbitration, he or she must enter into a written agreement to arbitrate with the parties to the family law dispute;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) before initiating arbitration, he or she must provide written confirmation to the parties to the family law dispute that he or she meets the professional requirements set out in subsection (2).</tt></blockquote></blockquote>

==The arbitration process==

These are the steps involved in the basic arbitration process.

*'''Pick your arbitrator.''' Your lawyer will have the names of three or four arbitrators they prefer to work with. If you don't have a lawyer, you can look at the membership lists of organizations like the [http://adric.ca ADR Institute of Canada], although many accredited family law arbitrators may not have decided to spend the money to join those organizations.
*'''Sign the arbitrator's participation agreement.''' This is a contract that describes your responsibilities and the responsibilities of your arbitrator, and how the arbitrator will be paid. It also requires you to agree to be bound by the result of the arbitration.
*'''Prepare for and attend the prehearing conference.''' This is a meeting during which the parties, their lawyers and the arbitrator will make decisions about how the arbitration will work, including the rules for the hearing, the place and date of the hearing, and the legal issues to be resolved at the hearing.
*'''Prepare your case.''' Start working on your case by researching the law and thinking about the evidence you need to prove your case.
*'''Complete discovery and disclosure.''' This is a process in which you and the other party or parties will exchange documents and information that are relevant to the legal issues in your dispute, such as income tax returns if child support or spousal support is one of those issues.
*'''Exchange the documents you're going to use at the hearing.''' These documents might include written arguments, financial statements or summaries of what your witnesses are going to say.
*'''Attend the hearing.''' An arbitration hearing is the equivalent of a trial, but with special rules and shorter processes. Sometimes you may attend by teleconference or videoconference rather than in person.
*'''Receive the arbitrator's decision.''' The arbitrator will prepare their decision, and the reasons for their decision, in a written document called an award. Most arbitrators try to get their awards to the parties as soon as possible, but it can sometimes take a long time to finish a decision, especially if the evidence presented at the hearing was unusually complicated.
*'''Review the award and ask for corrections.''' You have 30 days after you get the arbitrator's award to ask the arbitrator to correct any typos and other mistakes, and to ask the arbitrator to explain specific parts of their award.

Under section 19.16 of the ''[[Family Law Act]]'', an arbitration is over when:

#the arbitrator has delivered their final award and the time to correct the arbitrator's decision has passed;
#the parties agree to end the arbitration; or,
#the arbitrator makes an order that it is "unnecessary or impossible" to continue the arbitration.

===Starting arbitration===

There are only two ways you can get your family law problem into arbitration.

First, you might have a family law agreement — like a cohabitation agreement, a marriage agreement, or a separation agreement — which says that any disputes or questions about the agreement, or the subjects the agreement covers, will be resolved through arbitration.

Second, you might agree, after a problem has arisen, that you'll go to arbitration instead of going to court, or instead of another process like mediation or collaborative negotiation. You can even agree to resolve a dispute through arbitration after a court proceeding has started. A lot of people decide to do this when they find out how far away their trial is scheduled to start, and when they find out that there's no guarantee that they'll get a judge who is an expert in resolving family law disputes.

You cannot force someone into arbitration, including by asking for a court order that you go to arbitration. Even though section 224(1) of the ''[[Family Law Act]]'' says that "a court may make an order to ... require the parties to participate in family dispute resolution," the court will not make an order that someone go to arbitration. Resolving a dispute through arbitration has to be voluntary, either because you've already agreed to use arbitration ''if'' a problem comes up or because you've agreed to use arbitration ''after'' the problem has come up.

===Arbitration processes===

When people agree or are required to arbitrate their dispute, they first pick their arbitrator. The arbitrator you choose should be someone who is an expert in family law, and perhaps even an expert in family law with special knowledge or skills concerning the most important issues in your dispute. You probably want to choose someone who has a lot of experience as an arbitrator, someone who has a good reputation in the legal community, and, most importantly, someone you see as being neutral, fair-minded and unbiased.

After picking the arbitrator, the arbitrator will ask the parties to sign a participation agreement, usually called an ''arbitration agreement.'' This agreement does three things. First, it serves as the arbitrator's retainer agreement and describes how the arbitrator will charge for their services and when they will expect to be paid. (You can read more about retainer agreements in the [[Understanding the Legal System for Family Law Matters]] chapter, in the [[You and Your Lawyer]] section.) Second, it describes the parties' rights and responsibilities in the process, as well as the responsibilities of the arbitrator and the scope of their authority. Third, it identifies the legal issues the arbitrator will address.

The next step is to meet with the arbitrator to discuss the process leading to the arbitration hearing, decide the date and place for the hearing, and pick the rules that will govern the hearing. This meeting is called a ''prehearing conference'', and picking the rules that will govern the hearing is sometimes the most important part of the arbitration process. A lot of the time, the rules that people select are taken from the more important parts of the [https://canlii.ca/t/8mcr Supreme Court Family Rules] that talk about evidence, experts, and hearing procedures. However, there are lots of other options. People can pick the rules that best suit the circumstances of their children, the nature of their dispute, and the status of their finances. It's important to be as thoughtful as possible in deciding what rules are necessary. Arbitration can look just like going to court, but it doesn't have to. It can be a lot more focused, a lot more efficient, and a lot faster.

How the arbitration process works after the prehearing conference will depend on the rules you've picked.

====The basic arbitration process====

Most of the time, the next step after the prehearing conference involves exchanging the documents and information that are relevant to the legal issues in the dispute. If child support is an issue, for example, financial statements might be prepared and documents like income tax returns, T4 slips, and paystubs might be exchanged. If property is an issue, you might need tax assessments, purchase documents, mortgage statements, and maybe a professional appraisal of the current value of the property.

You need to think carefully about what sort of documents and information you need. For complicated problems, you might also hire an expert to give an opinion about things like the value of a pension, a tax problem, or the best parenting arrangements for the children. (That last kind of opinion is called a ''parenting assessment'' or a ''section 211 report'', and is usually prepared by a psychologist, clinical counsellor, or social worker. You can get more information about ''reports'' and ''assessments'' in the [[Children and Parenting after Separation]] chapter.) You might also need to exchange bank statements, credit card statements and corporate financial statements. The nature of the documents that are important, the extent of the disclosure that is required, and the type of expert opinions that are most useful will change depending on the circumstances, the legal issues, and how the parties have decided to approach the arbitration process.

Once the relevant documents have been exchanged and any expert opinions have been completed, each party will start to work on how they're going to present their case to the arbitrator and on the documents they'll want to refer the arbitrator to at the hearing. These might include:

*written arguments,
*timelines, charts, financial tables, photographs, videos, and other visual aids,
*summaries of what your witnesses are going to say, called ''will-say statements'',
*affidavits and financial statements,
*binders with the financial and other documents you're going to be asking your witnesses to identify, comment on, or explain, called ''books of documents'', and
*binders with the case law you're going to be asking the arbitrator to consider, called ''books of authorities''.

Sometimes the arbitrator will want the parties to cooperate and prepare other hearing documents together. These might include:

*''statements of agreed facts'', a written summary of the facts both parties agree about, and
*''joint books of documents'', binders with the financial and other documents you will both rely on.

Next, the parties and their lawyers, if they have them, will attend the hearing. Arbitration hearings can take place in the arbitrator's office, a boardroom in a hotel or anywhere else that's private, or even remotely by videoconference, and are usually less formal than court hearings; arbitration processes can be as formal or informal as the parties and the arbitrator want.

At the hearing, each party makes an opening argument describing the evidence that will be given and then presents their evidence. The parties' evidence usually consists of the testimony of witnesses, documents, and affidavits. Each party then makes a closing argument to show the arbitrator why the arbitrator should resolve their dispute in the way they each prefer.

After the hearing process is over, the arbitrator will provide a written decision, called an ''award'', summarizing the evidence and resolving all of the legal issues, and explaining why the arbitrator resolved the issues in the way they resolved them.

====Alternative arbitration processes====

Arbitration processes can be as simple or as complicated as the parties want. The basic arbitration process I've just described looks and feels very much like the process that applies in court. However, it isn't always necessary to have a witness who gives oral evidence, or to have any evidence at all. It isn't always necessary to have oral arguments. Sometimes written arguments alone will do. And, if the parties agree, awards can provide a summary explanation of the arbitrator's decision rather than a full explanation.

Here are some examples of alternative arbitration processes:

*The parties could make their arguments to the arbitrator by telephone or videoconference, with no evidence at all, and the arbitrator giving an oral decision right there on the spot. (This process would be ideal for decisions about a legal question where the facts either don't matter or aren't in dispute. It's also the cheapest and fastest way to get a decision.)
*If evidence is necessary to help the arbitrator make their decision, the parties could make their arguments by telephone or video, and the evidence could be presented by affidavits alone, without the in-person testimony of any witness.
*If an in-person hearing is necessary, the parties could agree that evidence will be provided by affidavit, with the people who made the affidavits being cross-examined by the other person or their lawyer. Or, the parties could agree that only a limited number of witnesses will testify, and that each party will have a limited amount of time to examine and cross-examine each witness.
*If an in-person hearing is necessary and the parties agree to very few of the important facts, the parties could have an arbitration with all the bells and whistles available if they were going to court, with no limits on the number or amount of time for each witness. (This process will take the longest time to wrap up and also cost the most money.)
*Where neither party is represented by a lawyer, the hearing could be in-person but be managed completely by the arbitrator who can explore issues and ask questions. The arbitrator would work with the parties to identify the legal issues in the dispute, and then lead the examination of all of the witnesses.

I have developed a checklist of procedural elements that is helpful for designing arbitration processes, and covers every part of the arbitration process, from deciding whether to have an in-person hearing or a hearing by videoconference, to whether and how experts will be hired, to how evidence will be presented at the hearing. You can download my "Arbitration Rules Pick-List" from the [https://www.boydarbitration.ca/rules-of-procedure website] of John-Paul Boyd Arbitration Chambers.

====Mandatory elements of arbitration processes====

Although arbitration processes are incredibly flexible, there are certain aspects of arbitration that are required in British Columbia.

First, the arbitrator must give each party the opportunity to make their case, and to reply to the case made by the other party. This is a basic element of the Canadian justice system, called either "natural justice" or "fundamental justice," that is required of judges as well as arbitrators.

Second, the arbitrator must treat each party fairly and not be biased in favour of one party over the other. Section 19.8 of the ''[[Family Law Act]]'' says this:

<blockquote><tt>(1) An arbitrator must be independent of the parties.</tt></blockquote>
<blockquote><tt>(2) An arbitrator must be impartial and act impartially.</tt></blockquote>
<blockquote><tt>(3) If a person is approached in connection with the person's possible appointment as an arbitrator, the person must, without delay, disclose any circumstances likely to give rise to justifiable doubts as to the person's independence or impartiality.</tt></blockquote>
<blockquote><tt>(4) An arbitrator, from the time of the arbitrator's appointment and throughout the arbitration, must, without delay, disclose to the parties any circumstances referred to in subsection (3).</tt></blockquote>

Third, when it comes to decisions about children, the arbitrator must consider only the best interests of the children.

Finally, arbitral awards must be given in writing and be signed by the arbitrator.

Otherwise, the parties and their arbitrator are free to be as creative as they want and create the rules and the process that are best-suited to the parties, their children, their dispute, their timeline, and their budget.

===Changing, challenging and appealing awards===

If you are unhappy with an arbitrator's decision, you might be able to ''appeal'' the arbitrator's award, in the same way that a decision of the Provincial Court can be appealed to the Supreme Court, and a decision of the Supreme Court can be appealed to the Court of Appeal. When you appeal an award, you are arguing that the arbitrator made an important mistake and that, as a result of the arbitrator's mistake, all or some of their award should be cancelled.

There are other reasons why you might ask that an award be cancelled, usually because of flaws in the arbitration process itself. You would only challenge an award you're unhappy with; if you're happy with the award, you're not likely to be concerned about the fairness of the arbitration process.

On the other hand, you might have an award that you're happy with, but no longer works because there's been an important change in your circumstances, the circumstances of the other party or the circumstances of the children. If there has been an important change, you can apply to court to ''vary'' the award, in the same way that the court can vary a court order.

====Changing awards====

Under section 19.18(3) of the [[Family Law Act]], you can apply to the Supreme Court to change, suspend or cancel all or some of an arbitrator's award when there has been an important change in circumstances after the award was made. This is called "varying" an award.

You can apply to vary an award about a particular issue on the same terms as you can apply to vary a court order about that issue. This means that you need to look at the part of the ''Family Law Act'' that applies to varying orders about the particular issue you're dealing with. If your issue is about child support, for example, you need to look at section 152 of the act. Under section 152, the court may vary an order about child support for one of three reasons:

#if there has been an important change of circumstances since the child support order was made, usually a change about income or the children's living arrangements,
#if important evidence has come to light that wasn't available at the hearing which resulted in the child support order, or
#if a lack of financial disclosure was discovered after the hearing which resulted in the child support order.

Section 47 of the ''Family Law Act'' is about varying orders for children's parenting arrangements, section 60 is about varying orders for contact with a child, and section 167 is about varying orders for spousal support.

====Challenging awards====

Under section 19.18(1) of the ''Family Law Act'', you can apply to the Supreme Court to change or cancel an arbitration award for one or five reasons concerning the basic fairness of the arbitration process:

#you have doubts about the arbitrator's independence or impartiality,
#you were not given a reasonable opportunity to be heard during the arbitration process,
#the arbitrator's award was obtained through fraud or duress from the other party,
#the award deals with legal issues not included in your arbitration agreement, or
#the arbitrator exceeded their authority.

It's important to know that, under section 16.18(2), you can only ask to change or cancel an award because of doubts about the arbitrator's independence or impartiality if there is a "real danger of bias" on the part of the arbitrator. In ''[https://canlii.ca/t/1prwz Spence v. The Board of Police Commissioners of Prince Albert]'', a 1987 decision of the Saskatchewan Court of Appeal, the court said that:
“The test is whether a reasonable person would believe there is a real danger of bias or whether there would be a reasonable suspicion of bias even though unintended.

===Other uses of arbitration===

Arbitration is very helpful in resolving family law problems quickly and efficiently. Parenting coordinators use a process a lot like arbitration to make decisions resolving disagreements when the parents aren't able to find solutions to which they both agree. The flexibility of arbitration also means that people can ask their arbitrator to make a decision based on the rules of a religion, based on grounds of conscience, or based on equity and fairness.

Arbitration can also be used to:

*break logjams in settlement discussions, where only one or two issues can't be agreed upon,
*resolve disagreements about how the law should be interpreted or applied in a particular situation,
*make temporary decisions about support or parenting arrangements while the parties are negotiating a settlement, or
*perform technical calculations, like about the amount of costs payable in a court proceeding, the income of someone who is self-employed, the amount of spousal support payable, or the after-tax cost of children's expenses.

====Faith-based arbitration====

Under section 19.10 of the ''[[Family Law Act]]'', the parties can choose their own law to govern the arbitration process. Nothing in the act says that this law cannot be a religious law. Judaism and Islam, for example, each have religious laws that can apply to family law disputes for members of those faiths. Members of the orthodox Jewish community may use Halakha to settle personal disputes. Muslims can use Sharia law for the same purpose.

Whatever rules a couple chooses, however, the result of an arbitration cannot be "inconsistent" with the ''Family Law Act'' or the ''[[Divorce Act]]''. Section 19.20 of the ''Family Law Act'' says this:

<blockquote><tt>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.</tt></blockquote>

This means, for example, that child support must be paid to the person who has the child most of the time by the person who has the child for the least amount of time, and that the amount of support paid cannot be too different from what the [[Child Support Guidelines]] require. It also means that a particular person shouldn't have the primary residence of a child merely because of their gender, the age of the child or some other arbitrary reason.

Note that if the parties to faith-based arbitration wish to obtain a divorce, they must still start a court proceeding in the Supreme Court of British Columbia for a divorce order. A religious divorce, such as the Jewish Get, is not a legal divorce.

====Parenting coordination====

Parenting coordination uses a process that includes a decision-making function that's a lot like arbitration. In parenting coordination, the arbitrator is called a ''parenting coordinator'' and first tries to settle a dispute about parenting through a settlement process like mediation. If the parents cannot find consensus, however, the parenting coordinator acts like an arbitrator and makes a written decision, called a ''determination'', resolving the dispute. The parenting coordinator's authority to resolve these disputes comes from the participation agreement the parents sign, in this case called a ''parenting coordination agreement''.

As with faith-based arbitration, or any other kind of family law arbitration for that matter, the parenting coordinator cannot make determinations that are inconsistent with the ''[[Family Law Act]]''. However, parenting coordinators are subject to additional restrictions in the scope of the things they can make decisions about. Under section 6(3) and (4)(a)(ix) of the [http://canlii.ca/t/8rdx Family Law Act Regulation], parenting coordinators can make determinations about parenting arrangements, contact with a child, and other issues agreed to by the parties and the parenting coordinator. However, regardless of whatever the parties and the parenting coordinator may have agreed to, a parenting coordinator may ''not'' make decisions about:

*legal issues that are excluded by an order or a parenting coordination agreement,
*changes to the guardianship of a child,
*changes to the allocation of parental responsibilities,
*giving parenting time or contact to a person who does not already have parenting time or contact,
*substantial changes to parenting time or contact, or
*the relocation of a child.

There's a lot more information about parenting coordination in the [[Parenting_Coordination|next section]] of this chapter.

==When to use arbitration==

There are lots of good reasons to use arbitration rather than go to court. It's fast and efficient, the rules that govern the process are extremely flexible, it's confidential and private, and you get to pick a judge who is an expert in not just family law but the aspects of the law that are the most important in your case. There are, however, only a few circumstances that make arbitration a necessary choice over mediation, collaborative negotiation, or litigation. Typically, people will choose to arbitrate their dispute if:

*they want the laws of their religion or another set of legal, moral or ethical principles to apply to their dispute,
*their positions are too far apart to make negotiation or mediation a reasonable option and must have a decision made for them, but don't want to go to the expense, anxiety, and acrimony typically involved in going to court,
*they want to resolve their dispute discreetly and privately, and don't want to risk their personal business being made public,
*the legal issues are complex and demand a decision-maker who is a specialist in those issues, or
*they want their dispute resolved more quickly than the court schedule will allow.

It's important to understand that while arbitrators can make awards on all of the usual family law issues — including parenting arrangements, contact, child support, spousal support, and the division of property and debt — arbitrators cannot make awards on certain issues that can only be decided by a judge. These include:

*divorce orders and annulments,
*orders appointing someone as the guardian of a child who is not a parent of that child,
*declarations about who is, and who is not, the parent of a child, unless the declaration is necessary to resolve an issue that is within the arbitrator's jurisdiction, and
*orders changing the order of a judge.

==How to find a family law arbitrator==

Finding a family law arbitrator can sometimes be the hard part about taking your problem to arbitration, as there aren't too many arbitrators who specialize in family law issues. Your first and best bet is to speak to a family law lawyer and see who they might recommend to you. (Most lawyers will have a list of three of four arbitrators who they've used in the past and like working with.) You might also do an internet search for "family law arbitrator British Columbia," as lawyers who work as family law arbitrators will describe themselves this way and take pains to indicate in which jurisdiction they work. You could also contact organizations which specialize in providing legal education and developing out-of-court dispute resolution processes, including:

*[https://www.adrbc.com the ADR Institute of British Columbia], and
*[http://www.labour-arbitrators.ca the Arbitrators Association of British Columbia].

(Be warned, however, that there are lots of accredited family law arbitrators who may not have decided to pay the money to join these organizations.) Finally, you could call the Canadian Bar Association's [http://www.clicklaw.bc.ca/helpmap/service/1044 Lawyer Referral Service]. Although the service can't recommend one family law arbitrator over another, they'll at least be able to give you some names.

==Resources and links==

===Legislation===

* ''[https://canlii.ca/t/551f9 Divorce Act]''
* ''[https://canlii.ca/t/8q3k Family Law Act]''
* [https://canlii.ca/t/8rdx Family Law Act Regulation]
* [https://canlii.ca/t/80mh Federal Child Support Guidelines]

===Links===

* [https://www.adrbc.com The ADR Institute of British Columbia]
* [https://adric.ca/ The ADR Institute of Canada]
* [http://www.labour-arbitrators.ca The Arbitrators Association of British Columbia]
* [http://www.clicklaw.bc.ca/helpmap/service/1044 Lawyer Referral Service]
* [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society]
* [https://www.boydarbitration.ca/library John-Paul Boyd Arbitration Chambers] Library
* [https://www.boydarbitration.ca/rules-of-procedure John-Paul Boyd Arbitration Chamber] Arbitration Procedure
* [https://www.lawsociety.bc.ca/ The Law Society of BC]
* [https://www.clicklaw.bc.ca/resource/4616 Resolving Disputes Without Going to Court] from Dial-a-Law by the People's Law School
* [https://www.clicklaw.bc.ca/resource/4191 Settling out of Court] from the Justice Education Society of BC
* [https://www.clicklaw.bc.ca/resource/1253 Mediation, collaborative negotiation, and arbitration] from Dial-a-Law by the People's Law School

===Resources===

*Arbitration [[Media:Arbitration procedure pick-list - fillable.pdf|procedure pick-list]] (fillable PDF)
*Sample arbitration [[Media:Arbitration Agreement - PDF.pdf|participation agreement]] (PDF) in cases where the parties are represented by lawyers.
*Sample arbitration [[Media:Arbitration Agreement - Self-Rep - PDF.pdf|participation agreement]] (PDF) in cases where the parties are not represented by lawyers.

These sample participation agreements may not resemble the participation agreement you are asked to sign. They provide a more or less accurate picture of what arbitration participation agreements usually look like, but should be used as a reference only.

You can also look at the website of [https://www.boydarbitration.ca/participationagreements John-Paul Boyd Arbitration Chambers] which provides a number of model participation agreements for download.

* [https://www.clicklaw.bc.ca/resource/4452 "An Evaluation of the Cost of Family Law Disputes: Measuring the Cost Implication of Various Dispute Resolution Methods" PDF] from Canadian Research Institute for Law and the Family
* [https://www.clicklaw.bc.ca/resource/1497 "Alternatives to Going to Court" PDF] from the Justice Education Society of BC

{{REVIEWED | reviewer = [[JP Boyd]], 25 August 2021}}

{{JP Boyd on Family Law Navbox|type=chapters}}
{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Family Law Arbitration

2023-04-18T23:35:27Z

Jpboyd: /* Challenging awards */

{{JP Boyd on Family Law TOC|expanded = outofcourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[JP Boyd]]
}}Arbitration is a dispute resolution process in which the parties hire a neutral third party, an ''arbitrator'', to make decisions resolving some or all of the legal issues in their dispute. While the job of a mediator is to help people work toward their own resolution of their family law dispute, the arbitrator's job is to act like a judge and make a decision resolving a legal dispute, after hearing the evidence and listening to the arguments of each party.

People who work as arbitrators are usually trained professionals who qualify as "family law dispute resolution professionals" under the ''[[Family Law Act]]'', meaning that they have the experience and education required by the [https://canlii.ca/t/5539g Family Law Act Regulation]. Lawyers who are "family law arbitrators" are specially accredited to arbitrate family law disputes by the [http://www.lawsociety.bc.ca Law Society of British Columbia].

This section provides an introduction to arbitration and discusses when to use arbitration in a family law dispute. It also provides some suggestions about how to find a family law arbitrator.

==Introduction==

Like mediation and collaborative negotiation, arbitration is a voluntary process. The parties to a dispute must all ''agree'' to use arbitration to resolve their legal dispute. Like those processes, arbitration is also an out-of-court way of resolving problems. However, that's where the similarities between arbitration, mediation and collaborative negotiation end. While the parties to a dispute may have agreed to use arbitration to resolve their dispute, it's the ''arbitrator'' who resolves their dispute, not the parties themselves.

Before the new ''[[Family Law Act]]'' became law in British Columbia, arbitration was rarely used in family law disputes. Arbitration was most frequently used in the context of commercial, labour, and construction disputes. In other places, such as Ontario and Alberta, the arbitration of family law disputes is well-established and has been for some time. The ''Family Law Act'', however, made a number of changes to the law that improved the usefulness of arbitration for family law disputes in British Columbia, and the number of people choosing arbitration over going to court has been increasing as a result.

Arbitration offers a number of advantages for resolving family law problems:

*it allows the parties to hand-pick the person who will make decisions about the issues they cannot agree on, which means that they might pick an arbitrator who is not just an expert family law lawyer, but an expert family law lawyer with special knowledge of a specific issue, like parenting children, tax problems, or property division,
*it allows the parties to pick the rules that will apply to the hearing and the decision-making process,
*arbitration resolves disputes much faster than going to court,
*the arbitration process is private, confidential, and closed to the public, and
*the result of the process is an arbitrator's award that is just as binding as a court order and is enforceable just like a court order.

As well, it's often faster to get a date for an arbitration hearing than it is for a court hearing. Although short trials of two or three days can usually be booked within ten to twelve months, it can take a year or more to get a date for longer trials because the court is so busy. An arbitration hearing can be booked as soon as everyone has free time in their calendars.

People can start arbitration right off the bat, as soon as a legal problem has come up, or they can use it to resolve a court proceeding as an alternative to trial. The result of a successful process of arbitration is an arbitrator's ''award''. If litigation has already started, the award can be turned into an order that the parties agree the court will make, called a ''consent order''. If the parties are married, a consent order may make more sense since they'll usually want an order for their divorce at the same time as they're wrapping everything else up.

The parties can meet with their arbitrator on their own or with their lawyers. As an arbitrator, I always appreciate having the parties' lawyers present. I recognize that having the lawyers at the arbitration hearing costs the parties more money, but the lawyers are intimately familiar with how to write briefs, make legal arguments and present evidence, and arbitration hearings with lawyers are usually much shorter than hearings without lawyers. However, there is no rule that you must have a lawyer represent you in arbitration, just like there's no rule that you must have a lawyer represent you in litigation.

The arbitrator has no stake in how the arbitration turns out. The arbitrator must be neutral and have no bias in favour of either party. Most of the time, the arbitrator should have no special connection — business, personal or otherwise — with either party, and the arbitrator must make sure that all parties are aware of any such special connections before they agree to hire the arbitrator.

==Working with "family law arbitrators" under the ''Family Law Act''==

An arbitrator who qualifies as a "family dispute resolution professional" under the ''[[Family Law Act]]'' must meet the requirements set out in the [http://canlii.ca/t/8rdx Family Law Act Regulation]. Section 5 of the regulation says that:

<blockquote><tt>(1) Only an arbitrator who is qualified as a family dispute resolution professional may conduct an arbitration in relation to a family law dispute.</tt></blockquote>

Lawyers who qualify as ''family law arbitrators'' meet the training requirements of, and are accredited by, the Law Society of British Columbia. You can find out if a lawyer is a "family law arbitrator" by looking the lawyer up in the [https://www.lawsociety.bc.ca/lsbc/apps/lkup/mbr-search.cfm Lawyer Directory] on the Law Society's website. The training requirements that professionals other than lawyers must meet to qualify as "family dispute resolution professionals" are set out in section 5(2)(b) of the Family Law Act Regulation, and include:

*being a member in good standing with specific organizations,
*meeting specific educational and experiential requirements, including at least 10 years' experience in family-related practice,
*taking continuing family dispute resolution training, and
*carrying professional liability insurance.

It's important to know that, under section 5(3) of the regulation, people other than lawyers may only arbitrate disputes dealing with ''parenting children'', including contact with a child, and ''child support''. However, they can only deal with child support if:

*all of the children are under 19 years of age,
*none of the payor's income is self-employment income or partnership income,
*the payor's income is less than $150,000 per year, and
*the [[Child Support Guidelines]] tables are being used to calculate the basic child support amount.

As well, if children's special or extraordinary expenses are an issue that is to be resolved by an arbitrator who is not a lawyer, section 5(3)(c)(v) says that "the determination of what those expenses are and how they are to be calculated" must be "straightforward."

Section 5 of the regulation imposes two extra duties on arbitrators who are family dispute resolution professionals: they must use written participation agreements; and, they must provide the parties with confirmation that they qualify as family dispute resolution professionals. Section 5(4) says this:

<blockquote><tt>(4) The following practice standards apply to a family dispute resolution professional who wishes to engage in arbitration in relation to a family law dispute:</tt></blockquote>
<blockquote><blockquote><tt>(a) before initiating arbitration, he or she must enter into a written agreement to arbitrate with the parties to the family law dispute;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) before initiating arbitration, he or she must provide written confirmation to the parties to the family law dispute that he or she meets the professional requirements set out in subsection (2).</tt></blockquote></blockquote>

==The arbitration process==

These are the steps involved in the basic arbitration process.

*'''Pick your arbitrator.''' Your lawyer will have the names of three or four arbitrators they prefer to work with. If you don't have a lawyer, you can look at the membership lists of organizations like the [http://adric.ca ADR Institute of Canada], although many accredited family law arbitrators may not have decided to spend the money to join those organizations.
*'''Sign the arbitrator's participation agreement.''' This is a contract that describes your responsibilities and the responsibilities of your arbitrator, and how the arbitrator will be paid. It also requires you to agree to be bound by the result of the arbitration.
*'''Prepare for and attend the prehearing conference.''' This is a meeting during which the parties, their lawyers and the arbitrator will make decisions about how the arbitration will work, including the rules for the hearing, the place and date of the hearing, and the legal issues to be resolved at the hearing.
*'''Prepare your case.''' Start working on your case by researching the law and thinking about the evidence you need to prove your case.
*'''Complete discovery and disclosure.''' This is a process in which you and the other party or parties will exchange documents and information that are relevant to the legal issues in your dispute, such as income tax returns if child support or spousal support is one of those issues.
*'''Exchange the documents you're going to use at the hearing.''' These documents might include written arguments, financial statements or summaries of what your witnesses are going to say.
*'''Attend the hearing.''' An arbitration hearing is the equivalent of a trial, but with special rules and shorter processes. Sometimes you may attend by teleconference or videoconference rather than in person.
*'''Receive the arbitrator's decision.''' The arbitrator will prepare their decision, and the reasons for their decision, in a written document called an award. Most arbitrators try to get their awards to the parties as soon as possible, but it can sometimes take a long time to finish a decision, especially if the evidence presented at the hearing was unusually complicated.
*'''Review the award and ask for corrections.''' You have 30 days after you get the arbitrator's award to ask the arbitrator to correct any typos and other mistakes, and to ask the arbitrator to explain specific parts of their award.

Under section 19.16 of the ''[[Family Law Act]]'', an arbitration is over when:

#the arbitrator has delivered their final award and the time to correct the arbitrator's decision has passed;
#the parties agree to end the arbitration; or,
#the arbitrator makes an order that it is "unnecessary or impossible" to continue the arbitration.

===Starting arbitration===

There are only two ways you can get your family law problem into arbitration.

First, you might have a family law agreement — like a cohabitation agreement, a marriage agreement, or a separation agreement — which says that any disputes or questions about the agreement, or the subjects the agreement covers, will be resolved through arbitration.

Second, you might agree, after a problem has arisen, that you'll go to arbitration instead of going to court, or instead of another process like mediation or collaborative negotiation. You can even agree to resolve a dispute through arbitration after a court proceeding has started. A lot of people decide to do this when they find out how far away their trial is scheduled to start, and when they find out that there's no guarantee that they'll get a judge who is an expert in resolving family law disputes.

You cannot force someone into arbitration, including by asking for a court order that you go to arbitration. Even though section 224(1) of the ''[[Family Law Act]]'' says that "a court may make an order to ... require the parties to participate in family dispute resolution," the court will not make an order that someone go to arbitration. Resolving a dispute through arbitration has to be voluntary, either because you've already agreed to use arbitration ''if'' a problem comes up or because you've agreed to use arbitration ''after'' the problem has come up.

===Arbitration processes===

When people agree or are required to arbitrate their dispute, they first pick their arbitrator. The arbitrator you choose should be someone who is an expert in family law, and perhaps even an expert in family law with special knowledge or skills concerning the most important issues in your dispute. You probably want to choose someone who has a lot of experience as an arbitrator, someone who has a good reputation in the legal community, and, most importantly, someone you see as being neutral, fair-minded and unbiased.

After picking the arbitrator, the arbitrator will ask the parties to sign a participation agreement, usually called an ''arbitration agreement.'' This agreement does three things. First, it serves as the arbitrator's retainer agreement and describes how the arbitrator will charge for their services and when they will expect to be paid. (You can read more about retainer agreements in the [[Understanding the Legal System for Family Law Matters]] chapter, in the [[You and Your Lawyer]] section.) Second, it describes the parties' rights and responsibilities in the process, as well as the responsibilities of the arbitrator and the scope of their authority. Third, it identifies the legal issues the arbitrator will address.

The next step is to meet with the arbitrator to discuss the process leading to the arbitration hearing, decide the date and place for the hearing, and pick the rules that will govern the hearing. This meeting is called a ''prehearing conference'', and picking the rules that will govern the hearing is sometimes the most important part of the arbitration process. A lot of the time, the rules that people select are taken from the more important parts of the [https://canlii.ca/t/8mcr Supreme Court Family Rules] that talk about evidence, experts, and hearing procedures. However, there are lots of other options. People can pick the rules that best suit the circumstances of their children, the nature of their dispute, and the status of their finances. It's important to be as thoughtful as possible in deciding what rules are necessary. Arbitration can look just like going to court, but it doesn't have to. It can be a lot more focused, a lot more efficient, and a lot faster.

How the arbitration process works after the prehearing conference will depend on the rules you've picked.

====The basic arbitration process====

Most of the time, the next step after the prehearing conference involves exchanging the documents and information that are relevant to the legal issues in the dispute. If child support is an issue, for example, financial statements might be prepared and documents like income tax returns, T4 slips, and paystubs might be exchanged. If property is an issue, you might need tax assessments, purchase documents, mortgage statements, and maybe a professional appraisal of the current value of the property.

You need to think carefully about what sort of documents and information you need. For complicated problems, you might also hire an expert to give an opinion about things like the value of a pension, a tax problem, or the best parenting arrangements for the children. (That last kind of opinion is called a ''parenting assessment'' or a ''section 211 report'', and is usually prepared by a psychologist, clinical counsellor, or social worker. You can get more information about ''reports'' and ''assessments'' in the [[Children and Parenting after Separation]] chapter.) You might also need to exchange bank statements, credit card statements and corporate financial statements. The nature of the documents that are important, the extent of the disclosure that is required, and the type of expert opinions that are most useful will change depending on the circumstances, the legal issues, and how the parties have decided to approach the arbitration process.

Once the relevant documents have been exchanged and any expert opinions have been completed, each party will start to work on how they're going to present their case to the arbitrator and on the documents they'll want to refer the arbitrator to at the hearing. These might include:

*written arguments,
*timelines, charts, financial tables, photographs, videos, and other visual aids,
*summaries of what your witnesses are going to say, called ''will-say statements'',
*affidavits and financial statements,
*binders with the financial and other documents you're going to be asking your witnesses to identify, comment on, or explain, called ''books of documents'', and
*binders with the case law you're going to be asking the arbitrator to consider, called ''books of authorities''.

Sometimes the arbitrator will want the parties to cooperate and prepare other hearing documents together. These might include:

*''statements of agreed facts'', a written summary of the facts both parties agree about, and
*''joint books of documents'', binders with the financial and other documents you will both rely on.

Next, the parties and their lawyers, if they have them, will attend the hearing. Arbitration hearings can take place in the arbitrator's office, a boardroom in a hotel or anywhere else that's private, or even remotely by videoconference, and are usually less formal than court hearings; arbitration processes can be as formal or informal as the parties and the arbitrator want.

At the hearing, each party makes an opening argument describing the evidence that will be given and then presents their evidence. The parties' evidence usually consists of the testimony of witnesses, documents, and affidavits. Each party then makes a closing argument to show the arbitrator why the arbitrator should resolve their dispute in the way they each prefer.

After the hearing process is over, the arbitrator will provide a written decision, called an ''award'', summarizing the evidence and resolving all of the legal issues, and explaining why the arbitrator resolved the issues in the way they resolved them.

====Alternative arbitration processes====

Arbitration processes can be as simple or as complicated as the parties want. The basic arbitration process I've just described looks and feels very much like the process that applies in court. However, it isn't always necessary to have a witness who gives oral evidence, or to have any evidence at all. It isn't always necessary to have oral arguments. Sometimes written arguments alone will do. And, if the parties agree, awards can provide a summary explanation of the arbitrator's decision rather than a full explanation.

Here are some examples of alternative arbitration processes:

*The parties could make their arguments to the arbitrator by telephone or videoconference, with no evidence at all, and the arbitrator giving an oral decision right there on the spot. (This process would be ideal for decisions about a legal question where the facts either don't matter or aren't in dispute. It's also the cheapest and fastest way to get a decision.)
*If evidence is necessary to help the arbitrator make their decision, the parties could make their arguments by telephone or video, and the evidence could be presented by affidavits alone, without the in-person testimony of any witness.
*If an in-person hearing is necessary, the parties could agree that evidence will be provided by affidavit, with the people who made the affidavits being cross-examined by the other person or their lawyer. Or, the parties could agree that only a limited number of witnesses will testify, and that each party will have a limited amount of time to examine and cross-examine each witness.
*If an in-person hearing is necessary and the parties agree to very few of the important facts, the parties could have an arbitration with all the bells and whistles available if they were going to court, with no limits on the number or amount of time for each witness. (This process will take the longest time to wrap up and also cost the most money.)
*Where neither party is represented by a lawyer, the hearing could be in-person but be managed completely by the arbitrator who can explore issues and ask questions. The arbitrator would work with the parties to identify the legal issues in the dispute, and then lead the examination of all of the witnesses.

I have developed a checklist of procedural elements that is helpful for designing arbitration processes, and covers every part of the arbitration process, from deciding whether to have an in-person hearing or a hearing by videoconference, to whether and how experts will be hired, to how evidence will be presented at the hearing. You can download my "Arbitration Rules Pick-List" from the [https://www.boydarbitration.ca/rules-of-procedure website] of John-Paul Boyd Arbitration Chambers.

====Mandatory elements of arbitration processes====

Although arbitration processes are incredibly flexible, there are certain aspects of arbitration that are required in British Columbia.

First, the arbitrator must give each party the opportunity to make their case, and to reply to the case made by the other party. This is a basic element of the Canadian justice system, called either "natural justice" or "fundamental justice," that is required of judges as well as arbitrators.

Second, the arbitrator must treat each party fairly and not be biased in favour of one party over the other. Section 19.8 of the ''[[Family Law Act]]'' says this:

<blockquote><tt>(1) An arbitrator must be independent of the parties.</tt></blockquote>
<blockquote><tt>(2) An arbitrator must be impartial and act impartially.</tt></blockquote>
<blockquote><tt>(3) If a person is approached in connection with the person's possible appointment as an arbitrator, the person must, without delay, disclose any circumstances likely to give rise to justifiable doubts as to the person's independence or impartiality.</tt></blockquote>
<blockquote><tt>(4) An arbitrator, from the time of the arbitrator's appointment and throughout the arbitration, must, without delay, disclose to the parties any circumstances referred to in subsection (3).</tt></blockquote>

Third, when it comes to decisions about children, the arbitrator must consider only the best interests of the children.

Finally, arbitral awards must be given in writing and be signed by the arbitrator.

Otherwise, the parties and their arbitrator are free to be as creative as they want and create the rules and the process that are best-suited to the parties, their children, their dispute, their timeline, and their budget.

===Changing, challenging and appealing awards===

If you are unhappy with an arbitrator's decision, you might be able to ''appeal'' the arbitrator's award, in the same way that a decision of the Provincial Court can be appealed to the Supreme Court, and a decision of the Supreme Court can be appealed to the Court of Appeal. When you appeal an award, you are arguing that the arbitrator made an important mistake and that, as a result of the arbitrator's mistake, all or some of their award should be cancelled.

There are other reasons why you might ask that an award be cancelled, usually because of flaws in the arbitration process itself. You would only challenge an award you're unhappy with; if you're happy with the award, you're not likely to be concerned about the fairness of the arbitration process.

On the other hand, you might have an award that you're happy with, but no longer works because there's been an important change in your circumstances, the circumstances of the other party or the circumstances of the children. If there has been an important change, you can apply to court to ''vary'' the award, in the same way that the court can vary a court order.

====Changing awards====

Under section 19.18(3) of the [[Family Law Act]], you can apply to the Supreme Court to change, suspend or cancel all or some of an arbitrator's award when there has been an important change in circumstances after the award was made. This is called "varying" an award.

You can apply to vary an award about a particular issue on the same terms as you can apply to vary a court order about that issue. This means that you need to look at the part of the ''Family Law Act'' that applies to varying orders about the particular issue you're dealing with. If your issue is about child support, for example, you need to look at section 152 of the act. Under section 152, the court may vary an order about child support for one of three reasons:

#if there has been an important change of circumstances since the child support order was made, usually a change about income or the children's living arrangements,
#if important evidence has come to light that wasn't available at the hearing which resulted in the child support order, or
#if a lack of financial disclosure was discovered after the hearing which resulted in the child support order.

Section 47 of the ''Family Law Act'' is about varying orders for children's parenting arrangements, section 60 is about varying orders for contact with a child, and section 167 is about varying orders for spousal support.

====Challenging awards====

Under section 19.18(1) of the ''Family Law Act'', you can apply to the Supreme Court to change or cancel an arbitration award for one or five reasons concerning the basic fairness of the arbitration process:

#you have doubts about the arbitrator's independence or impartiality,
#you were not given a reasonable opportunity to be heard during the arbitration process,
#the arbitrator's award was obtained through fraud or duress from the other party,
#the award deals with legal issues not included in your arbitration agreement, or
#the arbitrator exceeded their authority.

It's important to know that, under section 16.18(2), you can only ask to change or cancel an award because of doubts about the arbitrator's independence or impartiality if there is a "real danger of bias" on the part of the arbitrator. In ''[https://canlii.ca/t/1prwz | Spence v. The Board of Police Commissioners of Prince Albert]'', a 1987 decision of the Saskatchewan Court of Appeal, the court said that:
“The test is whether a reasonable person would believe there is a real danger of bias or whether there would be a reasonable suspicion of bias even though unintended.

===Other uses of arbitration===

Arbitration is very helpful in resolving family law problems quickly and efficiently. Parenting coordinators use a process a lot like arbitration to make decisions resolving disagreements when the parents aren't able to find solutions to which they both agree. The flexibility of arbitration also means that people can ask their arbitrator to make a decision based on the rules of a religion, based on grounds of conscience, or based on equity and fairness.

Arbitration can also be used to:

*break logjams in settlement discussions, where only one or two issues can't be agreed upon,
*resolve disagreements about how the law should be interpreted or applied in a particular situation,
*make temporary decisions about support or parenting arrangements while the parties are negotiating a settlement, or
*perform technical calculations, like about the amount of costs payable in a court proceeding, the income of someone who is self-employed, the amount of spousal support payable, or the after-tax cost of children's expenses.

====Faith-based arbitration====

Under section 19.10 of the ''[[Family Law Act]]'', the parties can choose their own law to govern the arbitration process. Nothing in the act says that this law cannot be a religious law. Judaism and Islam, for example, each have religious laws that can apply to family law disputes for members of those faiths. Members of the orthodox Jewish community may use Halakha to settle personal disputes. Muslims can use Sharia law for the same purpose.

Whatever rules a couple chooses, however, the result of an arbitration cannot be "inconsistent" with the ''Family Law Act'' or the ''[[Divorce Act]]''. Section 19.20 of the ''Family Law Act'' says this:

<blockquote><tt>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.</tt></blockquote>

This means, for example, that child support must be paid to the person who has the child most of the time by the person who has the child for the least amount of time, and that the amount of support paid cannot be too different from what the [[Child Support Guidelines]] require. It also means that a particular person shouldn't have the primary residence of a child merely because of their gender, the age of the child or some other arbitrary reason.

Note that if the parties to faith-based arbitration wish to obtain a divorce, they must still start a court proceeding in the Supreme Court of British Columbia for a divorce order. A religious divorce, such as the Jewish Get, is not a legal divorce.

====Parenting coordination====

Parenting coordination uses a process that includes a decision-making function that's a lot like arbitration. In parenting coordination, the arbitrator is called a ''parenting coordinator'' and first tries to settle a dispute about parenting through a settlement process like mediation. If the parents cannot find consensus, however, the parenting coordinator acts like an arbitrator and makes a written decision, called a ''determination'', resolving the dispute. The parenting coordinator's authority to resolve these disputes comes from the participation agreement the parents sign, in this case called a ''parenting coordination agreement''.

As with faith-based arbitration, or any other kind of family law arbitration for that matter, the parenting coordinator cannot make determinations that are inconsistent with the ''[[Family Law Act]]''. However, parenting coordinators are subject to additional restrictions in the scope of the things they can make decisions about. Under section 6(3) and (4)(a)(ix) of the [http://canlii.ca/t/8rdx Family Law Act Regulation], parenting coordinators can make determinations about parenting arrangements, contact with a child, and other issues agreed to by the parties and the parenting coordinator. However, regardless of whatever the parties and the parenting coordinator may have agreed to, a parenting coordinator may ''not'' make decisions about:

*legal issues that are excluded by an order or a parenting coordination agreement,
*changes to the guardianship of a child,
*changes to the allocation of parental responsibilities,
*giving parenting time or contact to a person who does not already have parenting time or contact,
*substantial changes to parenting time or contact, or
*the relocation of a child.

There's a lot more information about parenting coordination in the [[Parenting_Coordination|next section]] of this chapter.

==When to use arbitration==

There are lots of good reasons to use arbitration rather than go to court. It's fast and efficient, the rules that govern the process are extremely flexible, it's confidential and private, and you get to pick a judge who is an expert in not just family law but the aspects of the law that are the most important in your case. There are, however, only a few circumstances that make arbitration a necessary choice over mediation, collaborative negotiation, or litigation. Typically, people will choose to arbitrate their dispute if:

*they want the laws of their religion or another set of legal, moral or ethical principles to apply to their dispute,
*their positions are too far apart to make negotiation or mediation a reasonable option and must have a decision made for them, but don't want to go to the expense, anxiety, and acrimony typically involved in going to court,
*they want to resolve their dispute discreetly and privately, and don't want to risk their personal business being made public,
*the legal issues are complex and demand a decision-maker who is a specialist in those issues, or
*they want their dispute resolved more quickly than the court schedule will allow.

It's important to understand that while arbitrators can make awards on all of the usual family law issues — including parenting arrangements, contact, child support, spousal support, and the division of property and debt — arbitrators cannot make awards on certain issues that can only be decided by a judge. These include:

*divorce orders and annulments,
*orders appointing someone as the guardian of a child who is not a parent of that child,
*declarations about who is, and who is not, the parent of a child, unless the declaration is necessary to resolve an issue that is within the arbitrator's jurisdiction, and
*orders changing the order of a judge.

==How to find a family law arbitrator==

Finding a family law arbitrator can sometimes be the hard part about taking your problem to arbitration, as there aren't too many arbitrators who specialize in family law issues. Your first and best bet is to speak to a family law lawyer and see who they might recommend to you. (Most lawyers will have a list of three of four arbitrators who they've used in the past and like working with.) You might also do an internet search for "family law arbitrator British Columbia," as lawyers who work as family law arbitrators will describe themselves this way and take pains to indicate in which jurisdiction they work. You could also contact organizations which specialize in providing legal education and developing out-of-court dispute resolution processes, including:

*[https://www.adrbc.com the ADR Institute of British Columbia], and
*[http://www.labour-arbitrators.ca the Arbitrators Association of British Columbia].

(Be warned, however, that there are lots of accredited family law arbitrators who may not have decided to pay the money to join these organizations.) Finally, you could call the Canadian Bar Association's [http://www.clicklaw.bc.ca/helpmap/service/1044 Lawyer Referral Service]. Although the service can't recommend one family law arbitrator over another, they'll at least be able to give you some names.

==Resources and links==

===Legislation===

* ''[https://canlii.ca/t/551f9 Divorce Act]''
* ''[https://canlii.ca/t/8q3k Family Law Act]''
* [https://canlii.ca/t/8rdx Family Law Act Regulation]
* [https://canlii.ca/t/80mh Federal Child Support Guidelines]

===Links===

* [https://www.adrbc.com The ADR Institute of British Columbia]
* [https://adric.ca/ The ADR Institute of Canada]
* [http://www.labour-arbitrators.ca The Arbitrators Association of British Columbia]
* [http://www.clicklaw.bc.ca/helpmap/service/1044 Lawyer Referral Service]
* [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society]
* [https://www.boydarbitration.ca/library John-Paul Boyd Arbitration Chambers] Library
* [https://www.boydarbitration.ca/rules-of-procedure John-Paul Boyd Arbitration Chamber] Arbitration Procedure
* [https://www.lawsociety.bc.ca/ The Law Society of BC]
* [https://www.clicklaw.bc.ca/resource/4616 Resolving Disputes Without Going to Court] from Dial-a-Law by the People's Law School
* [https://www.clicklaw.bc.ca/resource/4191 Settling out of Court] from the Justice Education Society of BC
* [https://www.clicklaw.bc.ca/resource/1253 Mediation, collaborative negotiation, and arbitration] from Dial-a-Law by the People's Law School

===Resources===

*Arbitration [[Media:Arbitration procedure pick-list - fillable.pdf|procedure pick-list]] (fillable PDF)
*Sample arbitration [[Media:Arbitration Agreement - PDF.pdf|participation agreement]] (PDF) in cases where the parties are represented by lawyers.
*Sample arbitration [[Media:Arbitration Agreement - Self-Rep - PDF.pdf|participation agreement]] (PDF) in cases where the parties are not represented by lawyers.

These sample participation agreements may not resemble the participation agreement you are asked to sign. They provide a more or less accurate picture of what arbitration participation agreements usually look like, but should be used as a reference only.

You can also look at the website of [https://www.boydarbitration.ca/participationagreements John-Paul Boyd Arbitration Chambers] which provides a number of model participation agreements for download.

* [https://www.clicklaw.bc.ca/resource/4452 "An Evaluation of the Cost of Family Law Disputes: Measuring the Cost Implication of Various Dispute Resolution Methods" PDF] from Canadian Research Institute for Law and the Family
* [https://www.clicklaw.bc.ca/resource/1497 "Alternatives to Going to Court" PDF] from the Justice Education Society of BC

{{REVIEWED | reviewer = [[JP Boyd]], 25 August 2021}}

{{JP Boyd on Family Law Navbox|type=chapters}}
{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Family Law Arbitration

2023-04-18T23:35:00Z

Jpboyd: /* Changing, challenging and appealing awards */

{{JP Boyd on Family Law TOC|expanded = outofcourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[JP Boyd]]
}}Arbitration is a dispute resolution process in which the parties hire a neutral third party, an ''arbitrator'', to make decisions resolving some or all of the legal issues in their dispute. While the job of a mediator is to help people work toward their own resolution of their family law dispute, the arbitrator's job is to act like a judge and make a decision resolving a legal dispute, after hearing the evidence and listening to the arguments of each party.

People who work as arbitrators are usually trained professionals who qualify as "family law dispute resolution professionals" under the ''[[Family Law Act]]'', meaning that they have the experience and education required by the [https://canlii.ca/t/5539g Family Law Act Regulation]. Lawyers who are "family law arbitrators" are specially accredited to arbitrate family law disputes by the [http://www.lawsociety.bc.ca Law Society of British Columbia].

This section provides an introduction to arbitration and discusses when to use arbitration in a family law dispute. It also provides some suggestions about how to find a family law arbitrator.

==Introduction==

Like mediation and collaborative negotiation, arbitration is a voluntary process. The parties to a dispute must all ''agree'' to use arbitration to resolve their legal dispute. Like those processes, arbitration is also an out-of-court way of resolving problems. However, that's where the similarities between arbitration, mediation and collaborative negotiation end. While the parties to a dispute may have agreed to use arbitration to resolve their dispute, it's the ''arbitrator'' who resolves their dispute, not the parties themselves.

Before the new ''[[Family Law Act]]'' became law in British Columbia, arbitration was rarely used in family law disputes. Arbitration was most frequently used in the context of commercial, labour, and construction disputes. In other places, such as Ontario and Alberta, the arbitration of family law disputes is well-established and has been for some time. The ''Family Law Act'', however, made a number of changes to the law that improved the usefulness of arbitration for family law disputes in British Columbia, and the number of people choosing arbitration over going to court has been increasing as a result.

Arbitration offers a number of advantages for resolving family law problems:

*it allows the parties to hand-pick the person who will make decisions about the issues they cannot agree on, which means that they might pick an arbitrator who is not just an expert family law lawyer, but an expert family law lawyer with special knowledge of a specific issue, like parenting children, tax problems, or property division,
*it allows the parties to pick the rules that will apply to the hearing and the decision-making process,
*arbitration resolves disputes much faster than going to court,
*the arbitration process is private, confidential, and closed to the public, and
*the result of the process is an arbitrator's award that is just as binding as a court order and is enforceable just like a court order.

As well, it's often faster to get a date for an arbitration hearing than it is for a court hearing. Although short trials of two or three days can usually be booked within ten to twelve months, it can take a year or more to get a date for longer trials because the court is so busy. An arbitration hearing can be booked as soon as everyone has free time in their calendars.

People can start arbitration right off the bat, as soon as a legal problem has come up, or they can use it to resolve a court proceeding as an alternative to trial. The result of a successful process of arbitration is an arbitrator's ''award''. If litigation has already started, the award can be turned into an order that the parties agree the court will make, called a ''consent order''. If the parties are married, a consent order may make more sense since they'll usually want an order for their divorce at the same time as they're wrapping everything else up.

The parties can meet with their arbitrator on their own or with their lawyers. As an arbitrator, I always appreciate having the parties' lawyers present. I recognize that having the lawyers at the arbitration hearing costs the parties more money, but the lawyers are intimately familiar with how to write briefs, make legal arguments and present evidence, and arbitration hearings with lawyers are usually much shorter than hearings without lawyers. However, there is no rule that you must have a lawyer represent you in arbitration, just like there's no rule that you must have a lawyer represent you in litigation.

The arbitrator has no stake in how the arbitration turns out. The arbitrator must be neutral and have no bias in favour of either party. Most of the time, the arbitrator should have no special connection — business, personal or otherwise — with either party, and the arbitrator must make sure that all parties are aware of any such special connections before they agree to hire the arbitrator.

==Working with "family law arbitrators" under the ''Family Law Act''==

An arbitrator who qualifies as a "family dispute resolution professional" under the ''[[Family Law Act]]'' must meet the requirements set out in the [http://canlii.ca/t/8rdx Family Law Act Regulation]. Section 5 of the regulation says that:

<blockquote><tt>(1) Only an arbitrator who is qualified as a family dispute resolution professional may conduct an arbitration in relation to a family law dispute.</tt></blockquote>

Lawyers who qualify as ''family law arbitrators'' meet the training requirements of, and are accredited by, the Law Society of British Columbia. You can find out if a lawyer is a "family law arbitrator" by looking the lawyer up in the [https://www.lawsociety.bc.ca/lsbc/apps/lkup/mbr-search.cfm Lawyer Directory] on the Law Society's website. The training requirements that professionals other than lawyers must meet to qualify as "family dispute resolution professionals" are set out in section 5(2)(b) of the Family Law Act Regulation, and include:

*being a member in good standing with specific organizations,
*meeting specific educational and experiential requirements, including at least 10 years' experience in family-related practice,
*taking continuing family dispute resolution training, and
*carrying professional liability insurance.

It's important to know that, under section 5(3) of the regulation, people other than lawyers may only arbitrate disputes dealing with ''parenting children'', including contact with a child, and ''child support''. However, they can only deal with child support if:

*all of the children are under 19 years of age,
*none of the payor's income is self-employment income or partnership income,
*the payor's income is less than $150,000 per year, and
*the [[Child Support Guidelines]] tables are being used to calculate the basic child support amount.

As well, if children's special or extraordinary expenses are an issue that is to be resolved by an arbitrator who is not a lawyer, section 5(3)(c)(v) says that "the determination of what those expenses are and how they are to be calculated" must be "straightforward."

Section 5 of the regulation imposes two extra duties on arbitrators who are family dispute resolution professionals: they must use written participation agreements; and, they must provide the parties with confirmation that they qualify as family dispute resolution professionals. Section 5(4) says this:

<blockquote><tt>(4) The following practice standards apply to a family dispute resolution professional who wishes to engage in arbitration in relation to a family law dispute:</tt></blockquote>
<blockquote><blockquote><tt>(a) before initiating arbitration, he or she must enter into a written agreement to arbitrate with the parties to the family law dispute;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) before initiating arbitration, he or she must provide written confirmation to the parties to the family law dispute that he or she meets the professional requirements set out in subsection (2).</tt></blockquote></blockquote>

==The arbitration process==

These are the steps involved in the basic arbitration process.

*'''Pick your arbitrator.''' Your lawyer will have the names of three or four arbitrators they prefer to work with. If you don't have a lawyer, you can look at the membership lists of organizations like the [http://adric.ca ADR Institute of Canada], although many accredited family law arbitrators may not have decided to spend the money to join those organizations.
*'''Sign the arbitrator's participation agreement.''' This is a contract that describes your responsibilities and the responsibilities of your arbitrator, and how the arbitrator will be paid. It also requires you to agree to be bound by the result of the arbitration.
*'''Prepare for and attend the prehearing conference.''' This is a meeting during which the parties, their lawyers and the arbitrator will make decisions about how the arbitration will work, including the rules for the hearing, the place and date of the hearing, and the legal issues to be resolved at the hearing.
*'''Prepare your case.''' Start working on your case by researching the law and thinking about the evidence you need to prove your case.
*'''Complete discovery and disclosure.''' This is a process in which you and the other party or parties will exchange documents and information that are relevant to the legal issues in your dispute, such as income tax returns if child support or spousal support is one of those issues.
*'''Exchange the documents you're going to use at the hearing.''' These documents might include written arguments, financial statements or summaries of what your witnesses are going to say.
*'''Attend the hearing.''' An arbitration hearing is the equivalent of a trial, but with special rules and shorter processes. Sometimes you may attend by teleconference or videoconference rather than in person.
*'''Receive the arbitrator's decision.''' The arbitrator will prepare their decision, and the reasons for their decision, in a written document called an award. Most arbitrators try to get their awards to the parties as soon as possible, but it can sometimes take a long time to finish a decision, especially if the evidence presented at the hearing was unusually complicated.
*'''Review the award and ask for corrections.''' You have 30 days after you get the arbitrator's award to ask the arbitrator to correct any typos and other mistakes, and to ask the arbitrator to explain specific parts of their award.

Under section 19.16 of the ''[[Family Law Act]]'', an arbitration is over when:

#the arbitrator has delivered their final award and the time to correct the arbitrator's decision has passed;
#the parties agree to end the arbitration; or,
#the arbitrator makes an order that it is "unnecessary or impossible" to continue the arbitration.

===Starting arbitration===

There are only two ways you can get your family law problem into arbitration.

First, you might have a family law agreement — like a cohabitation agreement, a marriage agreement, or a separation agreement — which says that any disputes or questions about the agreement, or the subjects the agreement covers, will be resolved through arbitration.

Second, you might agree, after a problem has arisen, that you'll go to arbitration instead of going to court, or instead of another process like mediation or collaborative negotiation. You can even agree to resolve a dispute through arbitration after a court proceeding has started. A lot of people decide to do this when they find out how far away their trial is scheduled to start, and when they find out that there's no guarantee that they'll get a judge who is an expert in resolving family law disputes.

You cannot force someone into arbitration, including by asking for a court order that you go to arbitration. Even though section 224(1) of the ''[[Family Law Act]]'' says that "a court may make an order to ... require the parties to participate in family dispute resolution," the court will not make an order that someone go to arbitration. Resolving a dispute through arbitration has to be voluntary, either because you've already agreed to use arbitration ''if'' a problem comes up or because you've agreed to use arbitration ''after'' the problem has come up.

===Arbitration processes===

When people agree or are required to arbitrate their dispute, they first pick their arbitrator. The arbitrator you choose should be someone who is an expert in family law, and perhaps even an expert in family law with special knowledge or skills concerning the most important issues in your dispute. You probably want to choose someone who has a lot of experience as an arbitrator, someone who has a good reputation in the legal community, and, most importantly, someone you see as being neutral, fair-minded and unbiased.

After picking the arbitrator, the arbitrator will ask the parties to sign a participation agreement, usually called an ''arbitration agreement.'' This agreement does three things. First, it serves as the arbitrator's retainer agreement and describes how the arbitrator will charge for their services and when they will expect to be paid. (You can read more about retainer agreements in the [[Understanding the Legal System for Family Law Matters]] chapter, in the [[You and Your Lawyer]] section.) Second, it describes the parties' rights and responsibilities in the process, as well as the responsibilities of the arbitrator and the scope of their authority. Third, it identifies the legal issues the arbitrator will address.

The next step is to meet with the arbitrator to discuss the process leading to the arbitration hearing, decide the date and place for the hearing, and pick the rules that will govern the hearing. This meeting is called a ''prehearing conference'', and picking the rules that will govern the hearing is sometimes the most important part of the arbitration process. A lot of the time, the rules that people select are taken from the more important parts of the [https://canlii.ca/t/8mcr Supreme Court Family Rules] that talk about evidence, experts, and hearing procedures. However, there are lots of other options. People can pick the rules that best suit the circumstances of their children, the nature of their dispute, and the status of their finances. It's important to be as thoughtful as possible in deciding what rules are necessary. Arbitration can look just like going to court, but it doesn't have to. It can be a lot more focused, a lot more efficient, and a lot faster.

How the arbitration process works after the prehearing conference will depend on the rules you've picked.

====The basic arbitration process====

Most of the time, the next step after the prehearing conference involves exchanging the documents and information that are relevant to the legal issues in the dispute. If child support is an issue, for example, financial statements might be prepared and documents like income tax returns, T4 slips, and paystubs might be exchanged. If property is an issue, you might need tax assessments, purchase documents, mortgage statements, and maybe a professional appraisal of the current value of the property.

You need to think carefully about what sort of documents and information you need. For complicated problems, you might also hire an expert to give an opinion about things like the value of a pension, a tax problem, or the best parenting arrangements for the children. (That last kind of opinion is called a ''parenting assessment'' or a ''section 211 report'', and is usually prepared by a psychologist, clinical counsellor, or social worker. You can get more information about ''reports'' and ''assessments'' in the [[Children and Parenting after Separation]] chapter.) You might also need to exchange bank statements, credit card statements and corporate financial statements. The nature of the documents that are important, the extent of the disclosure that is required, and the type of expert opinions that are most useful will change depending on the circumstances, the legal issues, and how the parties have decided to approach the arbitration process.

Once the relevant documents have been exchanged and any expert opinions have been completed, each party will start to work on how they're going to present their case to the arbitrator and on the documents they'll want to refer the arbitrator to at the hearing. These might include:

*written arguments,
*timelines, charts, financial tables, photographs, videos, and other visual aids,
*summaries of what your witnesses are going to say, called ''will-say statements'',
*affidavits and financial statements,
*binders with the financial and other documents you're going to be asking your witnesses to identify, comment on, or explain, called ''books of documents'', and
*binders with the case law you're going to be asking the arbitrator to consider, called ''books of authorities''.

Sometimes the arbitrator will want the parties to cooperate and prepare other hearing documents together. These might include:

*''statements of agreed facts'', a written summary of the facts both parties agree about, and
*''joint books of documents'', binders with the financial and other documents you will both rely on.

Next, the parties and their lawyers, if they have them, will attend the hearing. Arbitration hearings can take place in the arbitrator's office, a boardroom in a hotel or anywhere else that's private, or even remotely by videoconference, and are usually less formal than court hearings; arbitration processes can be as formal or informal as the parties and the arbitrator want.

At the hearing, each party makes an opening argument describing the evidence that will be given and then presents their evidence. The parties' evidence usually consists of the testimony of witnesses, documents, and affidavits. Each party then makes a closing argument to show the arbitrator why the arbitrator should resolve their dispute in the way they each prefer.

After the hearing process is over, the arbitrator will provide a written decision, called an ''award'', summarizing the evidence and resolving all of the legal issues, and explaining why the arbitrator resolved the issues in the way they resolved them.

====Alternative arbitration processes====

Arbitration processes can be as simple or as complicated as the parties want. The basic arbitration process I've just described looks and feels very much like the process that applies in court. However, it isn't always necessary to have a witness who gives oral evidence, or to have any evidence at all. It isn't always necessary to have oral arguments. Sometimes written arguments alone will do. And, if the parties agree, awards can provide a summary explanation of the arbitrator's decision rather than a full explanation.

Here are some examples of alternative arbitration processes:

*The parties could make their arguments to the arbitrator by telephone or videoconference, with no evidence at all, and the arbitrator giving an oral decision right there on the spot. (This process would be ideal for decisions about a legal question where the facts either don't matter or aren't in dispute. It's also the cheapest and fastest way to get a decision.)
*If evidence is necessary to help the arbitrator make their decision, the parties could make their arguments by telephone or video, and the evidence could be presented by affidavits alone, without the in-person testimony of any witness.
*If an in-person hearing is necessary, the parties could agree that evidence will be provided by affidavit, with the people who made the affidavits being cross-examined by the other person or their lawyer. Or, the parties could agree that only a limited number of witnesses will testify, and that each party will have a limited amount of time to examine and cross-examine each witness.
*If an in-person hearing is necessary and the parties agree to very few of the important facts, the parties could have an arbitration with all the bells and whistles available if they were going to court, with no limits on the number or amount of time for each witness. (This process will take the longest time to wrap up and also cost the most money.)
*Where neither party is represented by a lawyer, the hearing could be in-person but be managed completely by the arbitrator who can explore issues and ask questions. The arbitrator would work with the parties to identify the legal issues in the dispute, and then lead the examination of all of the witnesses.

I have developed a checklist of procedural elements that is helpful for designing arbitration processes, and covers every part of the arbitration process, from deciding whether to have an in-person hearing or a hearing by videoconference, to whether and how experts will be hired, to how evidence will be presented at the hearing. You can download my "Arbitration Rules Pick-List" from the [https://www.boydarbitration.ca/rules-of-procedure website] of John-Paul Boyd Arbitration Chambers.

====Mandatory elements of arbitration processes====

Although arbitration processes are incredibly flexible, there are certain aspects of arbitration that are required in British Columbia.

First, the arbitrator must give each party the opportunity to make their case, and to reply to the case made by the other party. This is a basic element of the Canadian justice system, called either "natural justice" or "fundamental justice," that is required of judges as well as arbitrators.

Second, the arbitrator must treat each party fairly and not be biased in favour of one party over the other. Section 19.8 of the ''[[Family Law Act]]'' says this:

<blockquote><tt>(1) An arbitrator must be independent of the parties.</tt></blockquote>
<blockquote><tt>(2) An arbitrator must be impartial and act impartially.</tt></blockquote>
<blockquote><tt>(3) If a person is approached in connection with the person's possible appointment as an arbitrator, the person must, without delay, disclose any circumstances likely to give rise to justifiable doubts as to the person's independence or impartiality.</tt></blockquote>
<blockquote><tt>(4) An arbitrator, from the time of the arbitrator's appointment and throughout the arbitration, must, without delay, disclose to the parties any circumstances referred to in subsection (3).</tt></blockquote>

Third, when it comes to decisions about children, the arbitrator must consider only the best interests of the children.

Finally, arbitral awards must be given in writing and be signed by the arbitrator.

Otherwise, the parties and their arbitrator are free to be as creative as they want and create the rules and the process that are best-suited to the parties, their children, their dispute, their timeline, and their budget.

===Changing, challenging and appealing awards===

If you are unhappy with an arbitrator's decision, you might be able to ''appeal'' the arbitrator's award, in the same way that a decision of the Provincial Court can be appealed to the Supreme Court, and a decision of the Supreme Court can be appealed to the Court of Appeal. When you appeal an award, you are arguing that the arbitrator made an important mistake and that, as a result of the arbitrator's mistake, all or some of their award should be cancelled.

There are other reasons why you might ask that an award be cancelled, usually because of flaws in the arbitration process itself. You would only challenge an award you're unhappy with; if you're happy with the award, you're not likely to be concerned about the fairness of the arbitration process.

On the other hand, you might have an award that you're happy with, but no longer works because there's been an important change in your circumstances, the circumstances of the other party or the circumstances of the children. If there has been an important change, you can apply to court to ''vary'' the award, in the same way that the court can vary a court order.

====Changing awards====

Under section 19.18(3) of the [[Family Law Act]], you can apply to the Supreme Court to change, suspend or cancel all or some of an arbitrator's award when there has been an important change in circumstances after the award was made. This is called "varying" an award.

You can apply to vary an award about a particular issue on the same terms as you can apply to vary a court order about that issue. This means that you need to look at the part of the ''Family Law Act'' that applies to varying orders about the particular issue you're dealing with. If your issue is about child support, for example, you need to look at section 152 of the act. Under section 152, the court may vary an order about child support for one of three reasons:

#if there has been an important change of circumstances since the child support order was made, usually a change about income or the children's living arrangements,
#if important evidence has come to light that wasn't available at the hearing which resulted in the child support order, or
#if a lack of financial disclosure was discovered after the hearing which resulted in the child support order.

Section 47 of the ''Family Law Act'' is about varying orders for children's parenting arrangements, section 60 is about varying orders for contact with a child, and section 167 is about varying orders for spousal support.

====Challenging awards====

Under section 19.18(1) of the ''Family Law Act'', you can apply to the Supreme Court to change or cancel an arbitration award for one or five reasons concerning the basic fairness of the arbitration process:

#you have doubts about the arbitrator's independence or impartiality,
#you were not given a reasonable opportunity to be heard during the arbitration process,
#the arbitrator's award was obtained through fraud or duress from the other party,
#the award deals with legal issues not included in your arbitration agreement, or
#the arbitrator exceeded their authority.

It's important to know that, under section 16.18(2), you can only ask to change or cancel an award because of doubts about the arbitrator's independence or impartiality if there is a "real danger of bias" on the part of the arbitrator. In ''[https://canlii.ca/t/1prwz|Spence v The Board of Police Commissioners of Prince Albert]'', a 1987 decision of the Saskatchewan Court of Appeal, the court said that:
“The test is whether a reasonable person would believe there is a real danger of bias or whether there would be a reasonable suspicion of bias even though unintended.

===Other uses of arbitration===

Arbitration is very helpful in resolving family law problems quickly and efficiently. Parenting coordinators use a process a lot like arbitration to make decisions resolving disagreements when the parents aren't able to find solutions to which they both agree. The flexibility of arbitration also means that people can ask their arbitrator to make a decision based on the rules of a religion, based on grounds of conscience, or based on equity and fairness.

Arbitration can also be used to:

*break logjams in settlement discussions, where only one or two issues can't be agreed upon,
*resolve disagreements about how the law should be interpreted or applied in a particular situation,
*make temporary decisions about support or parenting arrangements while the parties are negotiating a settlement, or
*perform technical calculations, like about the amount of costs payable in a court proceeding, the income of someone who is self-employed, the amount of spousal support payable, or the after-tax cost of children's expenses.

====Faith-based arbitration====

Under section 19.10 of the ''[[Family Law Act]]'', the parties can choose their own law to govern the arbitration process. Nothing in the act says that this law cannot be a religious law. Judaism and Islam, for example, each have religious laws that can apply to family law disputes for members of those faiths. Members of the orthodox Jewish community may use Halakha to settle personal disputes. Muslims can use Sharia law for the same purpose.

Whatever rules a couple chooses, however, the result of an arbitration cannot be "inconsistent" with the ''Family Law Act'' or the ''[[Divorce Act]]''. Section 19.20 of the ''Family Law Act'' says this:

<blockquote><tt>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.</tt></blockquote>

This means, for example, that child support must be paid to the person who has the child most of the time by the person who has the child for the least amount of time, and that the amount of support paid cannot be too different from what the [[Child Support Guidelines]] require. It also means that a particular person shouldn't have the primary residence of a child merely because of their gender, the age of the child or some other arbitrary reason.

Note that if the parties to faith-based arbitration wish to obtain a divorce, they must still start a court proceeding in the Supreme Court of British Columbia for a divorce order. A religious divorce, such as the Jewish Get, is not a legal divorce.

====Parenting coordination====

Parenting coordination uses a process that includes a decision-making function that's a lot like arbitration. In parenting coordination, the arbitrator is called a ''parenting coordinator'' and first tries to settle a dispute about parenting through a settlement process like mediation. If the parents cannot find consensus, however, the parenting coordinator acts like an arbitrator and makes a written decision, called a ''determination'', resolving the dispute. The parenting coordinator's authority to resolve these disputes comes from the participation agreement the parents sign, in this case called a ''parenting coordination agreement''.

As with faith-based arbitration, or any other kind of family law arbitration for that matter, the parenting coordinator cannot make determinations that are inconsistent with the ''[[Family Law Act]]''. However, parenting coordinators are subject to additional restrictions in the scope of the things they can make decisions about. Under section 6(3) and (4)(a)(ix) of the [http://canlii.ca/t/8rdx Family Law Act Regulation], parenting coordinators can make determinations about parenting arrangements, contact with a child, and other issues agreed to by the parties and the parenting coordinator. However, regardless of whatever the parties and the parenting coordinator may have agreed to, a parenting coordinator may ''not'' make decisions about:

*legal issues that are excluded by an order or a parenting coordination agreement,
*changes to the guardianship of a child,
*changes to the allocation of parental responsibilities,
*giving parenting time or contact to a person who does not already have parenting time or contact,
*substantial changes to parenting time or contact, or
*the relocation of a child.

There's a lot more information about parenting coordination in the [[Parenting_Coordination|next section]] of this chapter.

==When to use arbitration==

There are lots of good reasons to use arbitration rather than go to court. It's fast and efficient, the rules that govern the process are extremely flexible, it's confidential and private, and you get to pick a judge who is an expert in not just family law but the aspects of the law that are the most important in your case. There are, however, only a few circumstances that make arbitration a necessary choice over mediation, collaborative negotiation, or litigation. Typically, people will choose to arbitrate their dispute if:

*they want the laws of their religion or another set of legal, moral or ethical principles to apply to their dispute,
*their positions are too far apart to make negotiation or mediation a reasonable option and must have a decision made for them, but don't want to go to the expense, anxiety, and acrimony typically involved in going to court,
*they want to resolve their dispute discreetly and privately, and don't want to risk their personal business being made public,
*the legal issues are complex and demand a decision-maker who is a specialist in those issues, or
*they want their dispute resolved more quickly than the court schedule will allow.

It's important to understand that while arbitrators can make awards on all of the usual family law issues — including parenting arrangements, contact, child support, spousal support, and the division of property and debt — arbitrators cannot make awards on certain issues that can only be decided by a judge. These include:

*divorce orders and annulments,
*orders appointing someone as the guardian of a child who is not a parent of that child,
*declarations about who is, and who is not, the parent of a child, unless the declaration is necessary to resolve an issue that is within the arbitrator's jurisdiction, and
*orders changing the order of a judge.

==How to find a family law arbitrator==

Finding a family law arbitrator can sometimes be the hard part about taking your problem to arbitration, as there aren't too many arbitrators who specialize in family law issues. Your first and best bet is to speak to a family law lawyer and see who they might recommend to you. (Most lawyers will have a list of three of four arbitrators who they've used in the past and like working with.) You might also do an internet search for "family law arbitrator British Columbia," as lawyers who work as family law arbitrators will describe themselves this way and take pains to indicate in which jurisdiction they work. You could also contact organizations which specialize in providing legal education and developing out-of-court dispute resolution processes, including:

*[https://www.adrbc.com the ADR Institute of British Columbia], and
*[http://www.labour-arbitrators.ca the Arbitrators Association of British Columbia].

(Be warned, however, that there are lots of accredited family law arbitrators who may not have decided to pay the money to join these organizations.) Finally, you could call the Canadian Bar Association's [http://www.clicklaw.bc.ca/helpmap/service/1044 Lawyer Referral Service]. Although the service can't recommend one family law arbitrator over another, they'll at least be able to give you some names.

==Resources and links==

===Legislation===

* ''[https://canlii.ca/t/551f9 Divorce Act]''
* ''[https://canlii.ca/t/8q3k Family Law Act]''
* [https://canlii.ca/t/8rdx Family Law Act Regulation]
* [https://canlii.ca/t/80mh Federal Child Support Guidelines]

===Links===

* [https://www.adrbc.com The ADR Institute of British Columbia]
* [https://adric.ca/ The ADR Institute of Canada]
* [http://www.labour-arbitrators.ca The Arbitrators Association of British Columbia]
* [http://www.clicklaw.bc.ca/helpmap/service/1044 Lawyer Referral Service]
* [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society]
* [https://www.boydarbitration.ca/library John-Paul Boyd Arbitration Chambers] Library
* [https://www.boydarbitration.ca/rules-of-procedure John-Paul Boyd Arbitration Chamber] Arbitration Procedure
* [https://www.lawsociety.bc.ca/ The Law Society of BC]
* [https://www.clicklaw.bc.ca/resource/4616 Resolving Disputes Without Going to Court] from Dial-a-Law by the People's Law School
* [https://www.clicklaw.bc.ca/resource/4191 Settling out of Court] from the Justice Education Society of BC
* [https://www.clicklaw.bc.ca/resource/1253 Mediation, collaborative negotiation, and arbitration] from Dial-a-Law by the People's Law School

===Resources===

*Arbitration [[Media:Arbitration procedure pick-list - fillable.pdf|procedure pick-list]] (fillable PDF)
*Sample arbitration [[Media:Arbitration Agreement - PDF.pdf|participation agreement]] (PDF) in cases where the parties are represented by lawyers.
*Sample arbitration [[Media:Arbitration Agreement - Self-Rep - PDF.pdf|participation agreement]] (PDF) in cases where the parties are not represented by lawyers.

These sample participation agreements may not resemble the participation agreement you are asked to sign. They provide a more or less accurate picture of what arbitration participation agreements usually look like, but should be used as a reference only.

You can also look at the website of [https://www.boydarbitration.ca/participationagreements John-Paul Boyd Arbitration Chambers] which provides a number of model participation agreements for download.

* [https://www.clicklaw.bc.ca/resource/4452 "An Evaluation of the Cost of Family Law Disputes: Measuring the Cost Implication of Various Dispute Resolution Methods" PDF] from Canadian Research Institute for Law and the Family
* [https://www.clicklaw.bc.ca/resource/1497 "Alternatives to Going to Court" PDF] from the Justice Education Society of BC

{{REVIEWED | reviewer = [[JP Boyd]], 25 August 2021}}

{{JP Boyd on Family Law Navbox|type=chapters}}
{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Family Law Arbitration

2023-04-18T23:34:19Z

Jpboyd: /* Challenging awards */

{{JP Boyd on Family Law TOC|expanded = outofcourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[JP Boyd]]
}}Arbitration is a dispute resolution process in which the parties hire a neutral third party, an ''arbitrator'', to make decisions resolving some or all of the legal issues in their dispute. While the job of a mediator is to help people work toward their own resolution of their family law dispute, the arbitrator's job is to act like a judge and make a decision resolving a legal dispute, after hearing the evidence and listening to the arguments of each party.

People who work as arbitrators are usually trained professionals who qualify as "family law dispute resolution professionals" under the ''[[Family Law Act]]'', meaning that they have the experience and education required by the [https://canlii.ca/t/5539g Family Law Act Regulation]. Lawyers who are "family law arbitrators" are specially accredited to arbitrate family law disputes by the [http://www.lawsociety.bc.ca Law Society of British Columbia].

This section provides an introduction to arbitration and discusses when to use arbitration in a family law dispute. It also provides some suggestions about how to find a family law arbitrator.

==Introduction==

Like mediation and collaborative negotiation, arbitration is a voluntary process. The parties to a dispute must all ''agree'' to use arbitration to resolve their legal dispute. Like those processes, arbitration is also an out-of-court way of resolving problems. However, that's where the similarities between arbitration, mediation and collaborative negotiation end. While the parties to a dispute may have agreed to use arbitration to resolve their dispute, it's the ''arbitrator'' who resolves their dispute, not the parties themselves.

Before the new ''[[Family Law Act]]'' became law in British Columbia, arbitration was rarely used in family law disputes. Arbitration was most frequently used in the context of commercial, labour, and construction disputes. In other places, such as Ontario and Alberta, the arbitration of family law disputes is well-established and has been for some time. The ''Family Law Act'', however, made a number of changes to the law that improved the usefulness of arbitration for family law disputes in British Columbia, and the number of people choosing arbitration over going to court has been increasing as a result.

Arbitration offers a number of advantages for resolving family law problems:

*it allows the parties to hand-pick the person who will make decisions about the issues they cannot agree on, which means that they might pick an arbitrator who is not just an expert family law lawyer, but an expert family law lawyer with special knowledge of a specific issue, like parenting children, tax problems, or property division,
*it allows the parties to pick the rules that will apply to the hearing and the decision-making process,
*arbitration resolves disputes much faster than going to court,
*the arbitration process is private, confidential, and closed to the public, and
*the result of the process is an arbitrator's award that is just as binding as a court order and is enforceable just like a court order.

As well, it's often faster to get a date for an arbitration hearing than it is for a court hearing. Although short trials of two or three days can usually be booked within ten to twelve months, it can take a year or more to get a date for longer trials because the court is so busy. An arbitration hearing can be booked as soon as everyone has free time in their calendars.

People can start arbitration right off the bat, as soon as a legal problem has come up, or they can use it to resolve a court proceeding as an alternative to trial. The result of a successful process of arbitration is an arbitrator's ''award''. If litigation has already started, the award can be turned into an order that the parties agree the court will make, called a ''consent order''. If the parties are married, a consent order may make more sense since they'll usually want an order for their divorce at the same time as they're wrapping everything else up.

The parties can meet with their arbitrator on their own or with their lawyers. As an arbitrator, I always appreciate having the parties' lawyers present. I recognize that having the lawyers at the arbitration hearing costs the parties more money, but the lawyers are intimately familiar with how to write briefs, make legal arguments and present evidence, and arbitration hearings with lawyers are usually much shorter than hearings without lawyers. However, there is no rule that you must have a lawyer represent you in arbitration, just like there's no rule that you must have a lawyer represent you in litigation.

The arbitrator has no stake in how the arbitration turns out. The arbitrator must be neutral and have no bias in favour of either party. Most of the time, the arbitrator should have no special connection — business, personal or otherwise — with either party, and the arbitrator must make sure that all parties are aware of any such special connections before they agree to hire the arbitrator.

==Working with "family law arbitrators" under the ''Family Law Act''==

An arbitrator who qualifies as a "family dispute resolution professional" under the ''[[Family Law Act]]'' must meet the requirements set out in the [http://canlii.ca/t/8rdx Family Law Act Regulation]. Section 5 of the regulation says that:

<blockquote><tt>(1) Only an arbitrator who is qualified as a family dispute resolution professional may conduct an arbitration in relation to a family law dispute.</tt></blockquote>

Lawyers who qualify as ''family law arbitrators'' meet the training requirements of, and are accredited by, the Law Society of British Columbia. You can find out if a lawyer is a "family law arbitrator" by looking the lawyer up in the [https://www.lawsociety.bc.ca/lsbc/apps/lkup/mbr-search.cfm Lawyer Directory] on the Law Society's website. The training requirements that professionals other than lawyers must meet to qualify as "family dispute resolution professionals" are set out in section 5(2)(b) of the Family Law Act Regulation, and include:

*being a member in good standing with specific organizations,
*meeting specific educational and experiential requirements, including at least 10 years' experience in family-related practice,
*taking continuing family dispute resolution training, and
*carrying professional liability insurance.

It's important to know that, under section 5(3) of the regulation, people other than lawyers may only arbitrate disputes dealing with ''parenting children'', including contact with a child, and ''child support''. However, they can only deal with child support if:

*all of the children are under 19 years of age,
*none of the payor's income is self-employment income or partnership income,
*the payor's income is less than $150,000 per year, and
*the [[Child Support Guidelines]] tables are being used to calculate the basic child support amount.

As well, if children's special or extraordinary expenses are an issue that is to be resolved by an arbitrator who is not a lawyer, section 5(3)(c)(v) says that "the determination of what those expenses are and how they are to be calculated" must be "straightforward."

Section 5 of the regulation imposes two extra duties on arbitrators who are family dispute resolution professionals: they must use written participation agreements; and, they must provide the parties with confirmation that they qualify as family dispute resolution professionals. Section 5(4) says this:

<blockquote><tt>(4) The following practice standards apply to a family dispute resolution professional who wishes to engage in arbitration in relation to a family law dispute:</tt></blockquote>
<blockquote><blockquote><tt>(a) before initiating arbitration, he or she must enter into a written agreement to arbitrate with the parties to the family law dispute;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) before initiating arbitration, he or she must provide written confirmation to the parties to the family law dispute that he or she meets the professional requirements set out in subsection (2).</tt></blockquote></blockquote>

==The arbitration process==

These are the steps involved in the basic arbitration process.

*'''Pick your arbitrator.''' Your lawyer will have the names of three or four arbitrators they prefer to work with. If you don't have a lawyer, you can look at the membership lists of organizations like the [http://adric.ca ADR Institute of Canada], although many accredited family law arbitrators may not have decided to spend the money to join those organizations.
*'''Sign the arbitrator's participation agreement.''' This is a contract that describes your responsibilities and the responsibilities of your arbitrator, and how the arbitrator will be paid. It also requires you to agree to be bound by the result of the arbitration.
*'''Prepare for and attend the prehearing conference.''' This is a meeting during which the parties, their lawyers and the arbitrator will make decisions about how the arbitration will work, including the rules for the hearing, the place and date of the hearing, and the legal issues to be resolved at the hearing.
*'''Prepare your case.''' Start working on your case by researching the law and thinking about the evidence you need to prove your case.
*'''Complete discovery and disclosure.''' This is a process in which you and the other party or parties will exchange documents and information that are relevant to the legal issues in your dispute, such as income tax returns if child support or spousal support is one of those issues.
*'''Exchange the documents you're going to use at the hearing.''' These documents might include written arguments, financial statements or summaries of what your witnesses are going to say.
*'''Attend the hearing.''' An arbitration hearing is the equivalent of a trial, but with special rules and shorter processes. Sometimes you may attend by teleconference or videoconference rather than in person.
*'''Receive the arbitrator's decision.''' The arbitrator will prepare their decision, and the reasons for their decision, in a written document called an award. Most arbitrators try to get their awards to the parties as soon as possible, but it can sometimes take a long time to finish a decision, especially if the evidence presented at the hearing was unusually complicated.
*'''Review the award and ask for corrections.''' You have 30 days after you get the arbitrator's award to ask the arbitrator to correct any typos and other mistakes, and to ask the arbitrator to explain specific parts of their award.

Under section 19.16 of the ''[[Family Law Act]]'', an arbitration is over when:

#the arbitrator has delivered their final award and the time to correct the arbitrator's decision has passed;
#the parties agree to end the arbitration; or,
#the arbitrator makes an order that it is "unnecessary or impossible" to continue the arbitration.

===Starting arbitration===

There are only two ways you can get your family law problem into arbitration.

First, you might have a family law agreement — like a cohabitation agreement, a marriage agreement, or a separation agreement — which says that any disputes or questions about the agreement, or the subjects the agreement covers, will be resolved through arbitration.

Second, you might agree, after a problem has arisen, that you'll go to arbitration instead of going to court, or instead of another process like mediation or collaborative negotiation. You can even agree to resolve a dispute through arbitration after a court proceeding has started. A lot of people decide to do this when they find out how far away their trial is scheduled to start, and when they find out that there's no guarantee that they'll get a judge who is an expert in resolving family law disputes.

You cannot force someone into arbitration, including by asking for a court order that you go to arbitration. Even though section 224(1) of the ''[[Family Law Act]]'' says that "a court may make an order to ... require the parties to participate in family dispute resolution," the court will not make an order that someone go to arbitration. Resolving a dispute through arbitration has to be voluntary, either because you've already agreed to use arbitration ''if'' a problem comes up or because you've agreed to use arbitration ''after'' the problem has come up.

===Arbitration processes===

When people agree or are required to arbitrate their dispute, they first pick their arbitrator. The arbitrator you choose should be someone who is an expert in family law, and perhaps even an expert in family law with special knowledge or skills concerning the most important issues in your dispute. You probably want to choose someone who has a lot of experience as an arbitrator, someone who has a good reputation in the legal community, and, most importantly, someone you see as being neutral, fair-minded and unbiased.

After picking the arbitrator, the arbitrator will ask the parties to sign a participation agreement, usually called an ''arbitration agreement.'' This agreement does three things. First, it serves as the arbitrator's retainer agreement and describes how the arbitrator will charge for their services and when they will expect to be paid. (You can read more about retainer agreements in the [[Understanding the Legal System for Family Law Matters]] chapter, in the [[You and Your Lawyer]] section.) Second, it describes the parties' rights and responsibilities in the process, as well as the responsibilities of the arbitrator and the scope of their authority. Third, it identifies the legal issues the arbitrator will address.

The next step is to meet with the arbitrator to discuss the process leading to the arbitration hearing, decide the date and place for the hearing, and pick the rules that will govern the hearing. This meeting is called a ''prehearing conference'', and picking the rules that will govern the hearing is sometimes the most important part of the arbitration process. A lot of the time, the rules that people select are taken from the more important parts of the [https://canlii.ca/t/8mcr Supreme Court Family Rules] that talk about evidence, experts, and hearing procedures. However, there are lots of other options. People can pick the rules that best suit the circumstances of their children, the nature of their dispute, and the status of their finances. It's important to be as thoughtful as possible in deciding what rules are necessary. Arbitration can look just like going to court, but it doesn't have to. It can be a lot more focused, a lot more efficient, and a lot faster.

How the arbitration process works after the prehearing conference will depend on the rules you've picked.

====The basic arbitration process====

Most of the time, the next step after the prehearing conference involves exchanging the documents and information that are relevant to the legal issues in the dispute. If child support is an issue, for example, financial statements might be prepared and documents like income tax returns, T4 slips, and paystubs might be exchanged. If property is an issue, you might need tax assessments, purchase documents, mortgage statements, and maybe a professional appraisal of the current value of the property.

You need to think carefully about what sort of documents and information you need. For complicated problems, you might also hire an expert to give an opinion about things like the value of a pension, a tax problem, or the best parenting arrangements for the children. (That last kind of opinion is called a ''parenting assessment'' or a ''section 211 report'', and is usually prepared by a psychologist, clinical counsellor, or social worker. You can get more information about ''reports'' and ''assessments'' in the [[Children and Parenting after Separation]] chapter.) You might also need to exchange bank statements, credit card statements and corporate financial statements. The nature of the documents that are important, the extent of the disclosure that is required, and the type of expert opinions that are most useful will change depending on the circumstances, the legal issues, and how the parties have decided to approach the arbitration process.

Once the relevant documents have been exchanged and any expert opinions have been completed, each party will start to work on how they're going to present their case to the arbitrator and on the documents they'll want to refer the arbitrator to at the hearing. These might include:

*written arguments,
*timelines, charts, financial tables, photographs, videos, and other visual aids,
*summaries of what your witnesses are going to say, called ''will-say statements'',
*affidavits and financial statements,
*binders with the financial and other documents you're going to be asking your witnesses to identify, comment on, or explain, called ''books of documents'', and
*binders with the case law you're going to be asking the arbitrator to consider, called ''books of authorities''.

Sometimes the arbitrator will want the parties to cooperate and prepare other hearing documents together. These might include:

*''statements of agreed facts'', a written summary of the facts both parties agree about, and
*''joint books of documents'', binders with the financial and other documents you will both rely on.

Next, the parties and their lawyers, if they have them, will attend the hearing. Arbitration hearings can take place in the arbitrator's office, a boardroom in a hotel or anywhere else that's private, or even remotely by videoconference, and are usually less formal than court hearings; arbitration processes can be as formal or informal as the parties and the arbitrator want.

At the hearing, each party makes an opening argument describing the evidence that will be given and then presents their evidence. The parties' evidence usually consists of the testimony of witnesses, documents, and affidavits. Each party then makes a closing argument to show the arbitrator why the arbitrator should resolve their dispute in the way they each prefer.

After the hearing process is over, the arbitrator will provide a written decision, called an ''award'', summarizing the evidence and resolving all of the legal issues, and explaining why the arbitrator resolved the issues in the way they resolved them.

====Alternative arbitration processes====

Arbitration processes can be as simple or as complicated as the parties want. The basic arbitration process I've just described looks and feels very much like the process that applies in court. However, it isn't always necessary to have a witness who gives oral evidence, or to have any evidence at all. It isn't always necessary to have oral arguments. Sometimes written arguments alone will do. And, if the parties agree, awards can provide a summary explanation of the arbitrator's decision rather than a full explanation.

Here are some examples of alternative arbitration processes:

*The parties could make their arguments to the arbitrator by telephone or videoconference, with no evidence at all, and the arbitrator giving an oral decision right there on the spot. (This process would be ideal for decisions about a legal question where the facts either don't matter or aren't in dispute. It's also the cheapest and fastest way to get a decision.)
*If evidence is necessary to help the arbitrator make their decision, the parties could make their arguments by telephone or video, and the evidence could be presented by affidavits alone, without the in-person testimony of any witness.
*If an in-person hearing is necessary, the parties could agree that evidence will be provided by affidavit, with the people who made the affidavits being cross-examined by the other person or their lawyer. Or, the parties could agree that only a limited number of witnesses will testify, and that each party will have a limited amount of time to examine and cross-examine each witness.
*If an in-person hearing is necessary and the parties agree to very few of the important facts, the parties could have an arbitration with all the bells and whistles available if they were going to court, with no limits on the number or amount of time for each witness. (This process will take the longest time to wrap up and also cost the most money.)
*Where neither party is represented by a lawyer, the hearing could be in-person but be managed completely by the arbitrator who can explore issues and ask questions. The arbitrator would work with the parties to identify the legal issues in the dispute, and then lead the examination of all of the witnesses.

I have developed a checklist of procedural elements that is helpful for designing arbitration processes, and covers every part of the arbitration process, from deciding whether to have an in-person hearing or a hearing by videoconference, to whether and how experts will be hired, to how evidence will be presented at the hearing. You can download my "Arbitration Rules Pick-List" from the [https://www.boydarbitration.ca/rules-of-procedure website] of John-Paul Boyd Arbitration Chambers.

====Mandatory elements of arbitration processes====

Although arbitration processes are incredibly flexible, there are certain aspects of arbitration that are required in British Columbia.

First, the arbitrator must give each party the opportunity to make their case, and to reply to the case made by the other party. This is a basic element of the Canadian justice system, called either "natural justice" or "fundamental justice," that is required of judges as well as arbitrators.

Second, the arbitrator must treat each party fairly and not be biased in favour of one party over the other. Section 19.8 of the ''[[Family Law Act]]'' says this:

<blockquote><tt>(1) An arbitrator must be independent of the parties.</tt></blockquote>
<blockquote><tt>(2) An arbitrator must be impartial and act impartially.</tt></blockquote>
<blockquote><tt>(3) If a person is approached in connection with the person's possible appointment as an arbitrator, the person must, without delay, disclose any circumstances likely to give rise to justifiable doubts as to the person's independence or impartiality.</tt></blockquote>
<blockquote><tt>(4) An arbitrator, from the time of the arbitrator's appointment and throughout the arbitration, must, without delay, disclose to the parties any circumstances referred to in subsection (3).</tt></blockquote>

Third, when it comes to decisions about children, the arbitrator must consider only the best interests of the children.

Finally, arbitral awards must be given in writing and be signed by the arbitrator.

Otherwise, the parties and their arbitrator are free to be as creative as they want and create the rules and the process that are best-suited to the parties, their children, their dispute, their timeline, and their budget.

===Changing, challenging and appealing awards===

If you are unhappy with an arbitrator's decision, you might be able to ''appeal'' the arbitrator's award, in the same way that a decision of the Provincial Court can be appealed to the Supreme Court, and a decision of the Supreme Court can be appealed to the Court of Appeal. When you appeal an award, you are arguing that the arbitrator made an important mistake and that, as a result of the arbitrator's mistake, all or some of their award should be cancelled.

There are other reasons why you might ask that an award be cancelled, usually because of flaws in the arbitration process itself. You would only challenge an award you're unhappy with; if you're happy with the award, you're not likely to be concerned about the fairness of the arbitration process.

On the other hand, you might have an award that you're happy with, but no longer works because there's been an important change in your circumstances, the circumstances of the other party or the circumstances of the children. If there has been an important change, you can apply to court to ''vary'' the award, in the same way that the court can vary a court order.

====Changing awards====

Under section 19.18(3) of the [[Family Law Act]], you can apply to the Supreme Court to change, suspend or cancel all or some of an arbitrator's award when there has been an important change in circumstances after the award was made. This is called "varying" an award.

You can apply to vary an award about a particular issue on the same terms as you can apply to vary a court order about that issue. This means that you need to look at the part of the ''Family Law Act'' that applies to varying orders about the particular issue you're dealing with. If your issue is about child support, for example, you need to look at section 152 of the act. Under section 152, the court may vary an order about child support for one of three reasons:

#if there has been an important change of circumstances since the child support order was made, usually a change about income or the children's living arrangements,
#if important evidence has come to light that wasn't available at the hearing which resulted in the child support order, or
#if a lack of financial disclosure was discovered after the hearing which resulted in the child support order.

Section 47 of the ''Family Law Act'' is about varying orders for children's parenting arrangements, section 60 is about varying orders for contact with a child, and section 167 is about varying orders for spousal support.

====Challenging awards====

Under section 19.18(1) of the ''Family Law Act'', you can apply to the Supreme Court to change or cancel an arbitration award for one or five reasons concerning the basic fairness of the arbitration process:

#you have doubts about the arbitrator's independence or impartiality,
#you were not given a reasonable opportunity to be heard during the arbitration process,
#the arbitrator's award was obtained through fraud or duress from the other party,
#the award deals with legal issues not included in your arbitration agreement, or
#the arbitrator exceeded their authority.

It's important to know that, under section 16.18(2), you can only ask to change or cancel an award because of doubts about the arbitrator's independence or impartiality if there is a "real danger of bias" on the part of the arbitrator. In ''[https://canlii.ca/t/1prwz|Spence v. Spencer and Prince Albert Board of Police Commissioners]'', a 1987 decision of the Saskatchewan Court of Appeal, the court said that:
“The test is whether a reasonable person would believe there is a real danger of bias or whether there would be a reasonable suspicion of bias even though unintended.

===Other uses of arbitration===

Arbitration is very helpful in resolving family law problems quickly and efficiently. Parenting coordinators use a process a lot like arbitration to make decisions resolving disagreements when the parents aren't able to find solutions to which they both agree. The flexibility of arbitration also means that people can ask their arbitrator to make a decision based on the rules of a religion, based on grounds of conscience, or based on equity and fairness.

Arbitration can also be used to:

*break logjams in settlement discussions, where only one or two issues can't be agreed upon,
*resolve disagreements about how the law should be interpreted or applied in a particular situation,
*make temporary decisions about support or parenting arrangements while the parties are negotiating a settlement, or
*perform technical calculations, like about the amount of costs payable in a court proceeding, the income of someone who is self-employed, the amount of spousal support payable, or the after-tax cost of children's expenses.

====Faith-based arbitration====

Under section 19.10 of the ''[[Family Law Act]]'', the parties can choose their own law to govern the arbitration process. Nothing in the act says that this law cannot be a religious law. Judaism and Islam, for example, each have religious laws that can apply to family law disputes for members of those faiths. Members of the orthodox Jewish community may use Halakha to settle personal disputes. Muslims can use Sharia law for the same purpose.

Whatever rules a couple chooses, however, the result of an arbitration cannot be "inconsistent" with the ''Family Law Act'' or the ''[[Divorce Act]]''. Section 19.20 of the ''Family Law Act'' says this:

<blockquote><tt>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.</tt></blockquote>

This means, for example, that child support must be paid to the person who has the child most of the time by the person who has the child for the least amount of time, and that the amount of support paid cannot be too different from what the [[Child Support Guidelines]] require. It also means that a particular person shouldn't have the primary residence of a child merely because of their gender, the age of the child or some other arbitrary reason.

Note that if the parties to faith-based arbitration wish to obtain a divorce, they must still start a court proceeding in the Supreme Court of British Columbia for a divorce order. A religious divorce, such as the Jewish Get, is not a legal divorce.

====Parenting coordination====

Parenting coordination uses a process that includes a decision-making function that's a lot like arbitration. In parenting coordination, the arbitrator is called a ''parenting coordinator'' and first tries to settle a dispute about parenting through a settlement process like mediation. If the parents cannot find consensus, however, the parenting coordinator acts like an arbitrator and makes a written decision, called a ''determination'', resolving the dispute. The parenting coordinator's authority to resolve these disputes comes from the participation agreement the parents sign, in this case called a ''parenting coordination agreement''.

As with faith-based arbitration, or any other kind of family law arbitration for that matter, the parenting coordinator cannot make determinations that are inconsistent with the ''[[Family Law Act]]''. However, parenting coordinators are subject to additional restrictions in the scope of the things they can make decisions about. Under section 6(3) and (4)(a)(ix) of the [http://canlii.ca/t/8rdx Family Law Act Regulation], parenting coordinators can make determinations about parenting arrangements, contact with a child, and other issues agreed to by the parties and the parenting coordinator. However, regardless of whatever the parties and the parenting coordinator may have agreed to, a parenting coordinator may ''not'' make decisions about:

*legal issues that are excluded by an order or a parenting coordination agreement,
*changes to the guardianship of a child,
*changes to the allocation of parental responsibilities,
*giving parenting time or contact to a person who does not already have parenting time or contact,
*substantial changes to parenting time or contact, or
*the relocation of a child.

There's a lot more information about parenting coordination in the [[Parenting_Coordination|next section]] of this chapter.

==When to use arbitration==

There are lots of good reasons to use arbitration rather than go to court. It's fast and efficient, the rules that govern the process are extremely flexible, it's confidential and private, and you get to pick a judge who is an expert in not just family law but the aspects of the law that are the most important in your case. There are, however, only a few circumstances that make arbitration a necessary choice over mediation, collaborative negotiation, or litigation. Typically, people will choose to arbitrate their dispute if:

*they want the laws of their religion or another set of legal, moral or ethical principles to apply to their dispute,
*their positions are too far apart to make negotiation or mediation a reasonable option and must have a decision made for them, but don't want to go to the expense, anxiety, and acrimony typically involved in going to court,
*they want to resolve their dispute discreetly and privately, and don't want to risk their personal business being made public,
*the legal issues are complex and demand a decision-maker who is a specialist in those issues, or
*they want their dispute resolved more quickly than the court schedule will allow.

It's important to understand that while arbitrators can make awards on all of the usual family law issues — including parenting arrangements, contact, child support, spousal support, and the division of property and debt — arbitrators cannot make awards on certain issues that can only be decided by a judge. These include:

*divorce orders and annulments,
*orders appointing someone as the guardian of a child who is not a parent of that child,
*declarations about who is, and who is not, the parent of a child, unless the declaration is necessary to resolve an issue that is within the arbitrator's jurisdiction, and
*orders changing the order of a judge.

==How to find a family law arbitrator==

Finding a family law arbitrator can sometimes be the hard part about taking your problem to arbitration, as there aren't too many arbitrators who specialize in family law issues. Your first and best bet is to speak to a family law lawyer and see who they might recommend to you. (Most lawyers will have a list of three of four arbitrators who they've used in the past and like working with.) You might also do an internet search for "family law arbitrator British Columbia," as lawyers who work as family law arbitrators will describe themselves this way and take pains to indicate in which jurisdiction they work. You could also contact organizations which specialize in providing legal education and developing out-of-court dispute resolution processes, including:

*[https://www.adrbc.com the ADR Institute of British Columbia], and
*[http://www.labour-arbitrators.ca the Arbitrators Association of British Columbia].

(Be warned, however, that there are lots of accredited family law arbitrators who may not have decided to pay the money to join these organizations.) Finally, you could call the Canadian Bar Association's [http://www.clicklaw.bc.ca/helpmap/service/1044 Lawyer Referral Service]. Although the service can't recommend one family law arbitrator over another, they'll at least be able to give you some names.

==Resources and links==

===Legislation===

* ''[https://canlii.ca/t/551f9 Divorce Act]''
* ''[https://canlii.ca/t/8q3k Family Law Act]''
* [https://canlii.ca/t/8rdx Family Law Act Regulation]
* [https://canlii.ca/t/80mh Federal Child Support Guidelines]

===Links===

* [https://www.adrbc.com The ADR Institute of British Columbia]
* [https://adric.ca/ The ADR Institute of Canada]
* [http://www.labour-arbitrators.ca The Arbitrators Association of British Columbia]
* [http://www.clicklaw.bc.ca/helpmap/service/1044 Lawyer Referral Service]
* [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society]
* [https://www.boydarbitration.ca/library John-Paul Boyd Arbitration Chambers] Library
* [https://www.boydarbitration.ca/rules-of-procedure John-Paul Boyd Arbitration Chamber] Arbitration Procedure
* [https://www.lawsociety.bc.ca/ The Law Society of BC]
* [https://www.clicklaw.bc.ca/resource/4616 Resolving Disputes Without Going to Court] from Dial-a-Law by the People's Law School
* [https://www.clicklaw.bc.ca/resource/4191 Settling out of Court] from the Justice Education Society of BC
* [https://www.clicklaw.bc.ca/resource/1253 Mediation, collaborative negotiation, and arbitration] from Dial-a-Law by the People's Law School

===Resources===

*Arbitration [[Media:Arbitration procedure pick-list - fillable.pdf|procedure pick-list]] (fillable PDF)
*Sample arbitration [[Media:Arbitration Agreement - PDF.pdf|participation agreement]] (PDF) in cases where the parties are represented by lawyers.
*Sample arbitration [[Media:Arbitration Agreement - Self-Rep - PDF.pdf|participation agreement]] (PDF) in cases where the parties are not represented by lawyers.

These sample participation agreements may not resemble the participation agreement you are asked to sign. They provide a more or less accurate picture of what arbitration participation agreements usually look like, but should be used as a reference only.

You can also look at the website of [https://www.boydarbitration.ca/participationagreements John-Paul Boyd Arbitration Chambers] which provides a number of model participation agreements for download.

* [https://www.clicklaw.bc.ca/resource/4452 "An Evaluation of the Cost of Family Law Disputes: Measuring the Cost Implication of Various Dispute Resolution Methods" PDF] from Canadian Research Institute for Law and the Family
* [https://www.clicklaw.bc.ca/resource/1497 "Alternatives to Going to Court" PDF] from the Justice Education Society of BC

{{REVIEWED | reviewer = [[JP Boyd]], 25 August 2021}}

{{JP Boyd on Family Law Navbox|type=chapters}}
{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Family Law Arbitration

2023-04-18T23:33:26Z

Jpboyd: /* Changing, challenging and appealing awards */

{{JP Boyd on Family Law TOC|expanded = outofcourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[JP Boyd]]
}}Arbitration is a dispute resolution process in which the parties hire a neutral third party, an ''arbitrator'', to make decisions resolving some or all of the legal issues in their dispute. While the job of a mediator is to help people work toward their own resolution of their family law dispute, the arbitrator's job is to act like a judge and make a decision resolving a legal dispute, after hearing the evidence and listening to the arguments of each party.

People who work as arbitrators are usually trained professionals who qualify as "family law dispute resolution professionals" under the ''[[Family Law Act]]'', meaning that they have the experience and education required by the [https://canlii.ca/t/5539g Family Law Act Regulation]. Lawyers who are "family law arbitrators" are specially accredited to arbitrate family law disputes by the [http://www.lawsociety.bc.ca Law Society of British Columbia].

This section provides an introduction to arbitration and discusses when to use arbitration in a family law dispute. It also provides some suggestions about how to find a family law arbitrator.

==Introduction==

Like mediation and collaborative negotiation, arbitration is a voluntary process. The parties to a dispute must all ''agree'' to use arbitration to resolve their legal dispute. Like those processes, arbitration is also an out-of-court way of resolving problems. However, that's where the similarities between arbitration, mediation and collaborative negotiation end. While the parties to a dispute may have agreed to use arbitration to resolve their dispute, it's the ''arbitrator'' who resolves their dispute, not the parties themselves.

Before the new ''[[Family Law Act]]'' became law in British Columbia, arbitration was rarely used in family law disputes. Arbitration was most frequently used in the context of commercial, labour, and construction disputes. In other places, such as Ontario and Alberta, the arbitration of family law disputes is well-established and has been for some time. The ''Family Law Act'', however, made a number of changes to the law that improved the usefulness of arbitration for family law disputes in British Columbia, and the number of people choosing arbitration over going to court has been increasing as a result.

Arbitration offers a number of advantages for resolving family law problems:

*it allows the parties to hand-pick the person who will make decisions about the issues they cannot agree on, which means that they might pick an arbitrator who is not just an expert family law lawyer, but an expert family law lawyer with special knowledge of a specific issue, like parenting children, tax problems, or property division,
*it allows the parties to pick the rules that will apply to the hearing and the decision-making process,
*arbitration resolves disputes much faster than going to court,
*the arbitration process is private, confidential, and closed to the public, and
*the result of the process is an arbitrator's award that is just as binding as a court order and is enforceable just like a court order.

As well, it's often faster to get a date for an arbitration hearing than it is for a court hearing. Although short trials of two or three days can usually be booked within ten to twelve months, it can take a year or more to get a date for longer trials because the court is so busy. An arbitration hearing can be booked as soon as everyone has free time in their calendars.

People can start arbitration right off the bat, as soon as a legal problem has come up, or they can use it to resolve a court proceeding as an alternative to trial. The result of a successful process of arbitration is an arbitrator's ''award''. If litigation has already started, the award can be turned into an order that the parties agree the court will make, called a ''consent order''. If the parties are married, a consent order may make more sense since they'll usually want an order for their divorce at the same time as they're wrapping everything else up.

The parties can meet with their arbitrator on their own or with their lawyers. As an arbitrator, I always appreciate having the parties' lawyers present. I recognize that having the lawyers at the arbitration hearing costs the parties more money, but the lawyers are intimately familiar with how to write briefs, make legal arguments and present evidence, and arbitration hearings with lawyers are usually much shorter than hearings without lawyers. However, there is no rule that you must have a lawyer represent you in arbitration, just like there's no rule that you must have a lawyer represent you in litigation.

The arbitrator has no stake in how the arbitration turns out. The arbitrator must be neutral and have no bias in favour of either party. Most of the time, the arbitrator should have no special connection — business, personal or otherwise — with either party, and the arbitrator must make sure that all parties are aware of any such special connections before they agree to hire the arbitrator.

==Working with "family law arbitrators" under the ''Family Law Act''==

An arbitrator who qualifies as a "family dispute resolution professional" under the ''[[Family Law Act]]'' must meet the requirements set out in the [http://canlii.ca/t/8rdx Family Law Act Regulation]. Section 5 of the regulation says that:

<blockquote><tt>(1) Only an arbitrator who is qualified as a family dispute resolution professional may conduct an arbitration in relation to a family law dispute.</tt></blockquote>

Lawyers who qualify as ''family law arbitrators'' meet the training requirements of, and are accredited by, the Law Society of British Columbia. You can find out if a lawyer is a "family law arbitrator" by looking the lawyer up in the [https://www.lawsociety.bc.ca/lsbc/apps/lkup/mbr-search.cfm Lawyer Directory] on the Law Society's website. The training requirements that professionals other than lawyers must meet to qualify as "family dispute resolution professionals" are set out in section 5(2)(b) of the Family Law Act Regulation, and include:

*being a member in good standing with specific organizations,
*meeting specific educational and experiential requirements, including at least 10 years' experience in family-related practice,
*taking continuing family dispute resolution training, and
*carrying professional liability insurance.

It's important to know that, under section 5(3) of the regulation, people other than lawyers may only arbitrate disputes dealing with ''parenting children'', including contact with a child, and ''child support''. However, they can only deal with child support if:

*all of the children are under 19 years of age,
*none of the payor's income is self-employment income or partnership income,
*the payor's income is less than $150,000 per year, and
*the [[Child Support Guidelines]] tables are being used to calculate the basic child support amount.

As well, if children's special or extraordinary expenses are an issue that is to be resolved by an arbitrator who is not a lawyer, section 5(3)(c)(v) says that "the determination of what those expenses are and how they are to be calculated" must be "straightforward."

Section 5 of the regulation imposes two extra duties on arbitrators who are family dispute resolution professionals: they must use written participation agreements; and, they must provide the parties with confirmation that they qualify as family dispute resolution professionals. Section 5(4) says this:

<blockquote><tt>(4) The following practice standards apply to a family dispute resolution professional who wishes to engage in arbitration in relation to a family law dispute:</tt></blockquote>
<blockquote><blockquote><tt>(a) before initiating arbitration, he or she must enter into a written agreement to arbitrate with the parties to the family law dispute;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) before initiating arbitration, he or she must provide written confirmation to the parties to the family law dispute that he or she meets the professional requirements set out in subsection (2).</tt></blockquote></blockquote>

==The arbitration process==

These are the steps involved in the basic arbitration process.

*'''Pick your arbitrator.''' Your lawyer will have the names of three or four arbitrators they prefer to work with. If you don't have a lawyer, you can look at the membership lists of organizations like the [http://adric.ca ADR Institute of Canada], although many accredited family law arbitrators may not have decided to spend the money to join those organizations.
*'''Sign the arbitrator's participation agreement.''' This is a contract that describes your responsibilities and the responsibilities of your arbitrator, and how the arbitrator will be paid. It also requires you to agree to be bound by the result of the arbitration.
*'''Prepare for and attend the prehearing conference.''' This is a meeting during which the parties, their lawyers and the arbitrator will make decisions about how the arbitration will work, including the rules for the hearing, the place and date of the hearing, and the legal issues to be resolved at the hearing.
*'''Prepare your case.''' Start working on your case by researching the law and thinking about the evidence you need to prove your case.
*'''Complete discovery and disclosure.''' This is a process in which you and the other party or parties will exchange documents and information that are relevant to the legal issues in your dispute, such as income tax returns if child support or spousal support is one of those issues.
*'''Exchange the documents you're going to use at the hearing.''' These documents might include written arguments, financial statements or summaries of what your witnesses are going to say.
*'''Attend the hearing.''' An arbitration hearing is the equivalent of a trial, but with special rules and shorter processes. Sometimes you may attend by teleconference or videoconference rather than in person.
*'''Receive the arbitrator's decision.''' The arbitrator will prepare their decision, and the reasons for their decision, in a written document called an award. Most arbitrators try to get their awards to the parties as soon as possible, but it can sometimes take a long time to finish a decision, especially if the evidence presented at the hearing was unusually complicated.
*'''Review the award and ask for corrections.''' You have 30 days after you get the arbitrator's award to ask the arbitrator to correct any typos and other mistakes, and to ask the arbitrator to explain specific parts of their award.

Under section 19.16 of the ''[[Family Law Act]]'', an arbitration is over when:

#the arbitrator has delivered their final award and the time to correct the arbitrator's decision has passed;
#the parties agree to end the arbitration; or,
#the arbitrator makes an order that it is "unnecessary or impossible" to continue the arbitration.

===Starting arbitration===

There are only two ways you can get your family law problem into arbitration.

First, you might have a family law agreement — like a cohabitation agreement, a marriage agreement, or a separation agreement — which says that any disputes or questions about the agreement, or the subjects the agreement covers, will be resolved through arbitration.

Second, you might agree, after a problem has arisen, that you'll go to arbitration instead of going to court, or instead of another process like mediation or collaborative negotiation. You can even agree to resolve a dispute through arbitration after a court proceeding has started. A lot of people decide to do this when they find out how far away their trial is scheduled to start, and when they find out that there's no guarantee that they'll get a judge who is an expert in resolving family law disputes.

You cannot force someone into arbitration, including by asking for a court order that you go to arbitration. Even though section 224(1) of the ''[[Family Law Act]]'' says that "a court may make an order to ... require the parties to participate in family dispute resolution," the court will not make an order that someone go to arbitration. Resolving a dispute through arbitration has to be voluntary, either because you've already agreed to use arbitration ''if'' a problem comes up or because you've agreed to use arbitration ''after'' the problem has come up.

===Arbitration processes===

When people agree or are required to arbitrate their dispute, they first pick their arbitrator. The arbitrator you choose should be someone who is an expert in family law, and perhaps even an expert in family law with special knowledge or skills concerning the most important issues in your dispute. You probably want to choose someone who has a lot of experience as an arbitrator, someone who has a good reputation in the legal community, and, most importantly, someone you see as being neutral, fair-minded and unbiased.

After picking the arbitrator, the arbitrator will ask the parties to sign a participation agreement, usually called an ''arbitration agreement.'' This agreement does three things. First, it serves as the arbitrator's retainer agreement and describes how the arbitrator will charge for their services and when they will expect to be paid. (You can read more about retainer agreements in the [[Understanding the Legal System for Family Law Matters]] chapter, in the [[You and Your Lawyer]] section.) Second, it describes the parties' rights and responsibilities in the process, as well as the responsibilities of the arbitrator and the scope of their authority. Third, it identifies the legal issues the arbitrator will address.

The next step is to meet with the arbitrator to discuss the process leading to the arbitration hearing, decide the date and place for the hearing, and pick the rules that will govern the hearing. This meeting is called a ''prehearing conference'', and picking the rules that will govern the hearing is sometimes the most important part of the arbitration process. A lot of the time, the rules that people select are taken from the more important parts of the [https://canlii.ca/t/8mcr Supreme Court Family Rules] that talk about evidence, experts, and hearing procedures. However, there are lots of other options. People can pick the rules that best suit the circumstances of their children, the nature of their dispute, and the status of their finances. It's important to be as thoughtful as possible in deciding what rules are necessary. Arbitration can look just like going to court, but it doesn't have to. It can be a lot more focused, a lot more efficient, and a lot faster.

How the arbitration process works after the prehearing conference will depend on the rules you've picked.

====The basic arbitration process====

Most of the time, the next step after the prehearing conference involves exchanging the documents and information that are relevant to the legal issues in the dispute. If child support is an issue, for example, financial statements might be prepared and documents like income tax returns, T4 slips, and paystubs might be exchanged. If property is an issue, you might need tax assessments, purchase documents, mortgage statements, and maybe a professional appraisal of the current value of the property.

You need to think carefully about what sort of documents and information you need. For complicated problems, you might also hire an expert to give an opinion about things like the value of a pension, a tax problem, or the best parenting arrangements for the children. (That last kind of opinion is called a ''parenting assessment'' or a ''section 211 report'', and is usually prepared by a psychologist, clinical counsellor, or social worker. You can get more information about ''reports'' and ''assessments'' in the [[Children and Parenting after Separation]] chapter.) You might also need to exchange bank statements, credit card statements and corporate financial statements. The nature of the documents that are important, the extent of the disclosure that is required, and the type of expert opinions that are most useful will change depending on the circumstances, the legal issues, and how the parties have decided to approach the arbitration process.

Once the relevant documents have been exchanged and any expert opinions have been completed, each party will start to work on how they're going to present their case to the arbitrator and on the documents they'll want to refer the arbitrator to at the hearing. These might include:

*written arguments,
*timelines, charts, financial tables, photographs, videos, and other visual aids,
*summaries of what your witnesses are going to say, called ''will-say statements'',
*affidavits and financial statements,
*binders with the financial and other documents you're going to be asking your witnesses to identify, comment on, or explain, called ''books of documents'', and
*binders with the case law you're going to be asking the arbitrator to consider, called ''books of authorities''.

Sometimes the arbitrator will want the parties to cooperate and prepare other hearing documents together. These might include:

*''statements of agreed facts'', a written summary of the facts both parties agree about, and
*''joint books of documents'', binders with the financial and other documents you will both rely on.

Next, the parties and their lawyers, if they have them, will attend the hearing. Arbitration hearings can take place in the arbitrator's office, a boardroom in a hotel or anywhere else that's private, or even remotely by videoconference, and are usually less formal than court hearings; arbitration processes can be as formal or informal as the parties and the arbitrator want.

At the hearing, each party makes an opening argument describing the evidence that will be given and then presents their evidence. The parties' evidence usually consists of the testimony of witnesses, documents, and affidavits. Each party then makes a closing argument to show the arbitrator why the arbitrator should resolve their dispute in the way they each prefer.

After the hearing process is over, the arbitrator will provide a written decision, called an ''award'', summarizing the evidence and resolving all of the legal issues, and explaining why the arbitrator resolved the issues in the way they resolved them.

====Alternative arbitration processes====

Arbitration processes can be as simple or as complicated as the parties want. The basic arbitration process I've just described looks and feels very much like the process that applies in court. However, it isn't always necessary to have a witness who gives oral evidence, or to have any evidence at all. It isn't always necessary to have oral arguments. Sometimes written arguments alone will do. And, if the parties agree, awards can provide a summary explanation of the arbitrator's decision rather than a full explanation.

Here are some examples of alternative arbitration processes:

*The parties could make their arguments to the arbitrator by telephone or videoconference, with no evidence at all, and the arbitrator giving an oral decision right there on the spot. (This process would be ideal for decisions about a legal question where the facts either don't matter or aren't in dispute. It's also the cheapest and fastest way to get a decision.)
*If evidence is necessary to help the arbitrator make their decision, the parties could make their arguments by telephone or video, and the evidence could be presented by affidavits alone, without the in-person testimony of any witness.
*If an in-person hearing is necessary, the parties could agree that evidence will be provided by affidavit, with the people who made the affidavits being cross-examined by the other person or their lawyer. Or, the parties could agree that only a limited number of witnesses will testify, and that each party will have a limited amount of time to examine and cross-examine each witness.
*If an in-person hearing is necessary and the parties agree to very few of the important facts, the parties could have an arbitration with all the bells and whistles available if they were going to court, with no limits on the number or amount of time for each witness. (This process will take the longest time to wrap up and also cost the most money.)
*Where neither party is represented by a lawyer, the hearing could be in-person but be managed completely by the arbitrator who can explore issues and ask questions. The arbitrator would work with the parties to identify the legal issues in the dispute, and then lead the examination of all of the witnesses.

I have developed a checklist of procedural elements that is helpful for designing arbitration processes, and covers every part of the arbitration process, from deciding whether to have an in-person hearing or a hearing by videoconference, to whether and how experts will be hired, to how evidence will be presented at the hearing. You can download my "Arbitration Rules Pick-List" from the [https://www.boydarbitration.ca/rules-of-procedure website] of John-Paul Boyd Arbitration Chambers.

====Mandatory elements of arbitration processes====

Although arbitration processes are incredibly flexible, there are certain aspects of arbitration that are required in British Columbia.

First, the arbitrator must give each party the opportunity to make their case, and to reply to the case made by the other party. This is a basic element of the Canadian justice system, called either "natural justice" or "fundamental justice," that is required of judges as well as arbitrators.

Second, the arbitrator must treat each party fairly and not be biased in favour of one party over the other. Section 19.8 of the ''[[Family Law Act]]'' says this:

<blockquote><tt>(1) An arbitrator must be independent of the parties.</tt></blockquote>
<blockquote><tt>(2) An arbitrator must be impartial and act impartially.</tt></blockquote>
<blockquote><tt>(3) If a person is approached in connection with the person's possible appointment as an arbitrator, the person must, without delay, disclose any circumstances likely to give rise to justifiable doubts as to the person's independence or impartiality.</tt></blockquote>
<blockquote><tt>(4) An arbitrator, from the time of the arbitrator's appointment and throughout the arbitration, must, without delay, disclose to the parties any circumstances referred to in subsection (3).</tt></blockquote>

Third, when it comes to decisions about children, the arbitrator must consider only the best interests of the children.

Finally, arbitral awards must be given in writing and be signed by the arbitrator.

Otherwise, the parties and their arbitrator are free to be as creative as they want and create the rules and the process that are best-suited to the parties, their children, their dispute, their timeline, and their budget.

===Changing, challenging and appealing awards===

If you are unhappy with an arbitrator's decision, you might be able to ''appeal'' the arbitrator's award, in the same way that a decision of the Provincial Court can be appealed to the Supreme Court, and a decision of the Supreme Court can be appealed to the Court of Appeal. When you appeal an award, you are arguing that the arbitrator made an important mistake and that, as a result of the arbitrator's mistake, all or some of their award should be cancelled.

There are other reasons why you might ask that an award be cancelled, usually because of flaws in the arbitration process itself. You would only challenge an award you're unhappy with; if you're happy with the award, you're not likely to be concerned about the fairness of the arbitration process.

On the other hand, you might have an award that you're happy with, but no longer works because there's been an important change in your circumstances, the circumstances of the other party or the circumstances of the children. If there has been an important change, you can apply to court to ''vary'' the award, in the same way that the court can vary a court order.

====Changing awards====

Under section 19.18(3) of the [[Family Law Act]], you can apply to the Supreme Court to change, suspend or cancel all or some of an arbitrator's award when there has been an important change in circumstances after the award was made. This is called "varying" an award.

You can apply to vary an award about a particular issue on the same terms as you can apply to vary a court order about that issue. This means that you need to look at the part of the ''Family Law Act'' that applies to varying orders about the particular issue you're dealing with. If your issue is about child support, for example, you need to look at section 152 of the act. Under section 152, the court may vary an order about child support for one of three reasons:

#if there has been an important change of circumstances since the child support order was made, usually a change about income or the children's living arrangements,
#if important evidence has come to light that wasn't available at the hearing which resulted in the child support order, or
#if a lack of financial disclosure was discovered after the hearing which resulted in the child support order.

Section 47 of the ''Family Law Act'' is about varying orders for children's parenting arrangements, section 60 is about varying orders for contact with a child, and section 167 is about varying orders for spousal support.

====Challenging awards====

Under section 19.18(1) of the ''Family Law Act'', you can apply to the Supreme Court to change or cancel an arbitration award for one or five reasons concerning the basic fairness of the arbitration process:

#you have doubts about the arbitrator's independence or impartiality,
#you were not given a reasonable opportunity to be heard during the arbitration process,
#the arbitrator's award was obtained through fraud or duress from the other party,
#the award deals with legal issues not included in your arbitration agreement, or
#the arbitrator exceeded their authority.

It's important to know that, under section 16.18(2), you can only ask to change or cancel an award because of doubts about the arbitrator's independence or impartiality if there is a "real danger of bias" on the part of the arbitrator. In ''[Spence v. Spencer and Prince Albert Board of Police Commissioners|https://canlii.ca/t/1prwz]'', a 1987 decision of the Saskatchewan Court of Appeal, the court said that:
“The test is whether a reasonable person would believe there is a real danger of bias or whether there would be a reasonable suspicion of bias even though unintended.

===Other uses of arbitration===

Arbitration is very helpful in resolving family law problems quickly and efficiently. Parenting coordinators use a process a lot like arbitration to make decisions resolving disagreements when the parents aren't able to find solutions to which they both agree. The flexibility of arbitration also means that people can ask their arbitrator to make a decision based on the rules of a religion, based on grounds of conscience, or based on equity and fairness.

Arbitration can also be used to:

*break logjams in settlement discussions, where only one or two issues can't be agreed upon,
*resolve disagreements about how the law should be interpreted or applied in a particular situation,
*make temporary decisions about support or parenting arrangements while the parties are negotiating a settlement, or
*perform technical calculations, like about the amount of costs payable in a court proceeding, the income of someone who is self-employed, the amount of spousal support payable, or the after-tax cost of children's expenses.

====Faith-based arbitration====

Under section 19.10 of the ''[[Family Law Act]]'', the parties can choose their own law to govern the arbitration process. Nothing in the act says that this law cannot be a religious law. Judaism and Islam, for example, each have religious laws that can apply to family law disputes for members of those faiths. Members of the orthodox Jewish community may use Halakha to settle personal disputes. Muslims can use Sharia law for the same purpose.

Whatever rules a couple chooses, however, the result of an arbitration cannot be "inconsistent" with the ''Family Law Act'' or the ''[[Divorce Act]]''. Section 19.20 of the ''Family Law Act'' says this:

<blockquote><tt>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.</tt></blockquote>

This means, for example, that child support must be paid to the person who has the child most of the time by the person who has the child for the least amount of time, and that the amount of support paid cannot be too different from what the [[Child Support Guidelines]] require. It also means that a particular person shouldn't have the primary residence of a child merely because of their gender, the age of the child or some other arbitrary reason.

Note that if the parties to faith-based arbitration wish to obtain a divorce, they must still start a court proceeding in the Supreme Court of British Columbia for a divorce order. A religious divorce, such as the Jewish Get, is not a legal divorce.

====Parenting coordination====

Parenting coordination uses a process that includes a decision-making function that's a lot like arbitration. In parenting coordination, the arbitrator is called a ''parenting coordinator'' and first tries to settle a dispute about parenting through a settlement process like mediation. If the parents cannot find consensus, however, the parenting coordinator acts like an arbitrator and makes a written decision, called a ''determination'', resolving the dispute. The parenting coordinator's authority to resolve these disputes comes from the participation agreement the parents sign, in this case called a ''parenting coordination agreement''.

As with faith-based arbitration, or any other kind of family law arbitration for that matter, the parenting coordinator cannot make determinations that are inconsistent with the ''[[Family Law Act]]''. However, parenting coordinators are subject to additional restrictions in the scope of the things they can make decisions about. Under section 6(3) and (4)(a)(ix) of the [http://canlii.ca/t/8rdx Family Law Act Regulation], parenting coordinators can make determinations about parenting arrangements, contact with a child, and other issues agreed to by the parties and the parenting coordinator. However, regardless of whatever the parties and the parenting coordinator may have agreed to, a parenting coordinator may ''not'' make decisions about:

*legal issues that are excluded by an order or a parenting coordination agreement,
*changes to the guardianship of a child,
*changes to the allocation of parental responsibilities,
*giving parenting time or contact to a person who does not already have parenting time or contact,
*substantial changes to parenting time or contact, or
*the relocation of a child.

There's a lot more information about parenting coordination in the [[Parenting_Coordination|next section]] of this chapter.

==When to use arbitration==

There are lots of good reasons to use arbitration rather than go to court. It's fast and efficient, the rules that govern the process are extremely flexible, it's confidential and private, and you get to pick a judge who is an expert in not just family law but the aspects of the law that are the most important in your case. There are, however, only a few circumstances that make arbitration a necessary choice over mediation, collaborative negotiation, or litigation. Typically, people will choose to arbitrate their dispute if:

*they want the laws of their religion or another set of legal, moral or ethical principles to apply to their dispute,
*their positions are too far apart to make negotiation or mediation a reasonable option and must have a decision made for them, but don't want to go to the expense, anxiety, and acrimony typically involved in going to court,
*they want to resolve their dispute discreetly and privately, and don't want to risk their personal business being made public,
*the legal issues are complex and demand a decision-maker who is a specialist in those issues, or
*they want their dispute resolved more quickly than the court schedule will allow.

It's important to understand that while arbitrators can make awards on all of the usual family law issues — including parenting arrangements, contact, child support, spousal support, and the division of property and debt — arbitrators cannot make awards on certain issues that can only be decided by a judge. These include:

*divorce orders and annulments,
*orders appointing someone as the guardian of a child who is not a parent of that child,
*declarations about who is, and who is not, the parent of a child, unless the declaration is necessary to resolve an issue that is within the arbitrator's jurisdiction, and
*orders changing the order of a judge.

==How to find a family law arbitrator==

Finding a family law arbitrator can sometimes be the hard part about taking your problem to arbitration, as there aren't too many arbitrators who specialize in family law issues. Your first and best bet is to speak to a family law lawyer and see who they might recommend to you. (Most lawyers will have a list of three of four arbitrators who they've used in the past and like working with.) You might also do an internet search for "family law arbitrator British Columbia," as lawyers who work as family law arbitrators will describe themselves this way and take pains to indicate in which jurisdiction they work. You could also contact organizations which specialize in providing legal education and developing out-of-court dispute resolution processes, including:

*[https://www.adrbc.com the ADR Institute of British Columbia], and
*[http://www.labour-arbitrators.ca the Arbitrators Association of British Columbia].

(Be warned, however, that there are lots of accredited family law arbitrators who may not have decided to pay the money to join these organizations.) Finally, you could call the Canadian Bar Association's [http://www.clicklaw.bc.ca/helpmap/service/1044 Lawyer Referral Service]. Although the service can't recommend one family law arbitrator over another, they'll at least be able to give you some names.

==Resources and links==

===Legislation===

* ''[https://canlii.ca/t/551f9 Divorce Act]''
* ''[https://canlii.ca/t/8q3k Family Law Act]''
* [https://canlii.ca/t/8rdx Family Law Act Regulation]
* [https://canlii.ca/t/80mh Federal Child Support Guidelines]

===Links===

* [https://www.adrbc.com The ADR Institute of British Columbia]
* [https://adric.ca/ The ADR Institute of Canada]
* [http://www.labour-arbitrators.ca The Arbitrators Association of British Columbia]
* [http://www.clicklaw.bc.ca/helpmap/service/1044 Lawyer Referral Service]
* [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society]
* [https://www.boydarbitration.ca/library John-Paul Boyd Arbitration Chambers] Library
* [https://www.boydarbitration.ca/rules-of-procedure John-Paul Boyd Arbitration Chamber] Arbitration Procedure
* [https://www.lawsociety.bc.ca/ The Law Society of BC]
* [https://www.clicklaw.bc.ca/resource/4616 Resolving Disputes Without Going to Court] from Dial-a-Law by the People's Law School
* [https://www.clicklaw.bc.ca/resource/4191 Settling out of Court] from the Justice Education Society of BC
* [https://www.clicklaw.bc.ca/resource/1253 Mediation, collaborative negotiation, and arbitration] from Dial-a-Law by the People's Law School

===Resources===

*Arbitration [[Media:Arbitration procedure pick-list - fillable.pdf|procedure pick-list]] (fillable PDF)
*Sample arbitration [[Media:Arbitration Agreement - PDF.pdf|participation agreement]] (PDF) in cases where the parties are represented by lawyers.
*Sample arbitration [[Media:Arbitration Agreement - Self-Rep - PDF.pdf|participation agreement]] (PDF) in cases where the parties are not represented by lawyers.

These sample participation agreements may not resemble the participation agreement you are asked to sign. They provide a more or less accurate picture of what arbitration participation agreements usually look like, but should be used as a reference only.

You can also look at the website of [https://www.boydarbitration.ca/participationagreements John-Paul Boyd Arbitration Chambers] which provides a number of model participation agreements for download.

* [https://www.clicklaw.bc.ca/resource/4452 "An Evaluation of the Cost of Family Law Disputes: Measuring the Cost Implication of Various Dispute Resolution Methods" PDF] from Canadian Research Institute for Law and the Family
* [https://www.clicklaw.bc.ca/resource/1497 "Alternatives to Going to Court" PDF] from the Justice Education Society of BC

{{REVIEWED | reviewer = [[JP Boyd]], 25 August 2021}}

{{JP Boyd on Family Law Navbox|type=chapters}}
{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Family Law Arbitration

2023-04-18T23:22:50Z

Jpboyd: /* Changing, cancelling and appealing awards */

{{JP Boyd on Family Law TOC|expanded = outofcourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[JP Boyd]]
}}Arbitration is a dispute resolution process in which the parties hire a neutral third party, an ''arbitrator'', to make decisions resolving some or all of the legal issues in their dispute. While the job of a mediator is to help people work toward their own resolution of their family law dispute, the arbitrator's job is to act like a judge and make a decision resolving a legal dispute, after hearing the evidence and listening to the arguments of each party.

People who work as arbitrators are usually trained professionals who qualify as "family law dispute resolution professionals" under the ''[[Family Law Act]]'', meaning that they have the experience and education required by the [https://canlii.ca/t/5539g Family Law Act Regulation]. Lawyers who are "family law arbitrators" are specially accredited to arbitrate family law disputes by the [http://www.lawsociety.bc.ca Law Society of British Columbia].

This section provides an introduction to arbitration and discusses when to use arbitration in a family law dispute. It also provides some suggestions about how to find a family law arbitrator.

==Introduction==

Like mediation and collaborative negotiation, arbitration is a voluntary process. The parties to a dispute must all ''agree'' to use arbitration to resolve their legal dispute. Like those processes, arbitration is also an out-of-court way of resolving problems. However, that's where the similarities between arbitration, mediation and collaborative negotiation end. While the parties to a dispute may have agreed to use arbitration to resolve their dispute, it's the ''arbitrator'' who resolves their dispute, not the parties themselves.

Before the new ''[[Family Law Act]]'' became law in British Columbia, arbitration was rarely used in family law disputes. Arbitration was most frequently used in the context of commercial, labour, and construction disputes. In other places, such as Ontario and Alberta, the arbitration of family law disputes is well-established and has been for some time. The ''Family Law Act'', however, made a number of changes to the law that improved the usefulness of arbitration for family law disputes in British Columbia, and the number of people choosing arbitration over going to court has been increasing as a result.

Arbitration offers a number of advantages for resolving family law problems:

*it allows the parties to hand-pick the person who will make decisions about the issues they cannot agree on, which means that they might pick an arbitrator who is not just an expert family law lawyer, but an expert family law lawyer with special knowledge of a specific issue, like parenting children, tax problems, or property division,
*it allows the parties to pick the rules that will apply to the hearing and the decision-making process,
*arbitration resolves disputes much faster than going to court,
*the arbitration process is private, confidential, and closed to the public, and
*the result of the process is an arbitrator's award that is just as binding as a court order and is enforceable just like a court order.

As well, it's often faster to get a date for an arbitration hearing than it is for a court hearing. Although short trials of two or three days can usually be booked within ten to twelve months, it can take a year or more to get a date for longer trials because the court is so busy. An arbitration hearing can be booked as soon as everyone has free time in their calendars.

People can start arbitration right off the bat, as soon as a legal problem has come up, or they can use it to resolve a court proceeding as an alternative to trial. The result of a successful process of arbitration is an arbitrator's ''award''. If litigation has already started, the award can be turned into an order that the parties agree the court will make, called a ''consent order''. If the parties are married, a consent order may make more sense since they'll usually want an order for their divorce at the same time as they're wrapping everything else up.

The parties can meet with their arbitrator on their own or with their lawyers. As an arbitrator, I always appreciate having the parties' lawyers present. I recognize that having the lawyers at the arbitration hearing costs the parties more money, but the lawyers are intimately familiar with how to write briefs, make legal arguments and present evidence, and arbitration hearings with lawyers are usually much shorter than hearings without lawyers. However, there is no rule that you must have a lawyer represent you in arbitration, just like there's no rule that you must have a lawyer represent you in litigation.

The arbitrator has no stake in how the arbitration turns out. The arbitrator must be neutral and have no bias in favour of either party. Most of the time, the arbitrator should have no special connection — business, personal or otherwise — with either party, and the arbitrator must make sure that all parties are aware of any such special connections before they agree to hire the arbitrator.

==Working with "family law arbitrators" under the ''Family Law Act''==

An arbitrator who qualifies as a "family dispute resolution professional" under the ''[[Family Law Act]]'' must meet the requirements set out in the [http://canlii.ca/t/8rdx Family Law Act Regulation]. Section 5 of the regulation says that:

<blockquote><tt>(1) Only an arbitrator who is qualified as a family dispute resolution professional may conduct an arbitration in relation to a family law dispute.</tt></blockquote>

Lawyers who qualify as ''family law arbitrators'' meet the training requirements of, and are accredited by, the Law Society of British Columbia. You can find out if a lawyer is a "family law arbitrator" by looking the lawyer up in the [https://www.lawsociety.bc.ca/lsbc/apps/lkup/mbr-search.cfm Lawyer Directory] on the Law Society's website. The training requirements that professionals other than lawyers must meet to qualify as "family dispute resolution professionals" are set out in section 5(2)(b) of the Family Law Act Regulation, and include:

*being a member in good standing with specific organizations,
*meeting specific educational and experiential requirements, including at least 10 years' experience in family-related practice,
*taking continuing family dispute resolution training, and
*carrying professional liability insurance.

It's important to know that, under section 5(3) of the regulation, people other than lawyers may only arbitrate disputes dealing with ''parenting children'', including contact with a child, and ''child support''. However, they can only deal with child support if:

*all of the children are under 19 years of age,
*none of the payor's income is self-employment income or partnership income,
*the payor's income is less than $150,000 per year, and
*the [[Child Support Guidelines]] tables are being used to calculate the basic child support amount.

As well, if children's special or extraordinary expenses are an issue that is to be resolved by an arbitrator who is not a lawyer, section 5(3)(c)(v) says that "the determination of what those expenses are and how they are to be calculated" must be "straightforward."

Section 5 of the regulation imposes two extra duties on arbitrators who are family dispute resolution professionals: they must use written participation agreements; and, they must provide the parties with confirmation that they qualify as family dispute resolution professionals. Section 5(4) says this:

<blockquote><tt>(4) The following practice standards apply to a family dispute resolution professional who wishes to engage in arbitration in relation to a family law dispute:</tt></blockquote>
<blockquote><blockquote><tt>(a) before initiating arbitration, he or she must enter into a written agreement to arbitrate with the parties to the family law dispute;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) before initiating arbitration, he or she must provide written confirmation to the parties to the family law dispute that he or she meets the professional requirements set out in subsection (2).</tt></blockquote></blockquote>

==The arbitration process==

These are the steps involved in the basic arbitration process.

*'''Pick your arbitrator.''' Your lawyer will have the names of three or four arbitrators they prefer to work with. If you don't have a lawyer, you can look at the membership lists of organizations like the [http://adric.ca ADR Institute of Canada], although many accredited family law arbitrators may not have decided to spend the money to join those organizations.
*'''Sign the arbitrator's participation agreement.''' This is a contract that describes your responsibilities and the responsibilities of your arbitrator, and how the arbitrator will be paid. It also requires you to agree to be bound by the result of the arbitration.
*'''Prepare for and attend the prehearing conference.''' This is a meeting during which the parties, their lawyers and the arbitrator will make decisions about how the arbitration will work, including the rules for the hearing, the place and date of the hearing, and the legal issues to be resolved at the hearing.
*'''Prepare your case.''' Start working on your case by researching the law and thinking about the evidence you need to prove your case.
*'''Complete discovery and disclosure.''' This is a process in which you and the other party or parties will exchange documents and information that are relevant to the legal issues in your dispute, such as income tax returns if child support or spousal support is one of those issues.
*'''Exchange the documents you're going to use at the hearing.''' These documents might include written arguments, financial statements or summaries of what your witnesses are going to say.
*'''Attend the hearing.''' An arbitration hearing is the equivalent of a trial, but with special rules and shorter processes. Sometimes you may attend by teleconference or videoconference rather than in person.
*'''Receive the arbitrator's decision.''' The arbitrator will prepare their decision, and the reasons for their decision, in a written document called an award. Most arbitrators try to get their awards to the parties as soon as possible, but it can sometimes take a long time to finish a decision, especially if the evidence presented at the hearing was unusually complicated.
*'''Review the award and ask for corrections.''' You have 30 days after you get the arbitrator's award to ask the arbitrator to correct any typos and other mistakes, and to ask the arbitrator to explain specific parts of their award.

Under section 19.16 of the ''[[Family Law Act]]'', an arbitration is over when:

#the arbitrator has delivered their final award and the time to correct the arbitrator's decision has passed;
#the parties agree to end the arbitration; or,
#the arbitrator makes an order that it is "unnecessary or impossible" to continue the arbitration.

===Starting arbitration===

There are only two ways you can get your family law problem into arbitration.

First, you might have a family law agreement — like a cohabitation agreement, a marriage agreement, or a separation agreement — which says that any disputes or questions about the agreement, or the subjects the agreement covers, will be resolved through arbitration.

Second, you might agree, after a problem has arisen, that you'll go to arbitration instead of going to court, or instead of another process like mediation or collaborative negotiation. You can even agree to resolve a dispute through arbitration after a court proceeding has started. A lot of people decide to do this when they find out how far away their trial is scheduled to start, and when they find out that there's no guarantee that they'll get a judge who is an expert in resolving family law disputes.

You cannot force someone into arbitration, including by asking for a court order that you go to arbitration. Even though section 224(1) of the ''[[Family Law Act]]'' says that "a court may make an order to ... require the parties to participate in family dispute resolution," the court will not make an order that someone go to arbitration. Resolving a dispute through arbitration has to be voluntary, either because you've already agreed to use arbitration ''if'' a problem comes up or because you've agreed to use arbitration ''after'' the problem has come up.

===Arbitration processes===

When people agree or are required to arbitrate their dispute, they first pick their arbitrator. The arbitrator you choose should be someone who is an expert in family law, and perhaps even an expert in family law with special knowledge or skills concerning the most important issues in your dispute. You probably want to choose someone who has a lot of experience as an arbitrator, someone who has a good reputation in the legal community, and, most importantly, someone you see as being neutral, fair-minded and unbiased.

After picking the arbitrator, the arbitrator will ask the parties to sign a participation agreement, usually called an ''arbitration agreement.'' This agreement does three things. First, it serves as the arbitrator's retainer agreement and describes how the arbitrator will charge for their services and when they will expect to be paid. (You can read more about retainer agreements in the [[Understanding the Legal System for Family Law Matters]] chapter, in the [[You and Your Lawyer]] section.) Second, it describes the parties' rights and responsibilities in the process, as well as the responsibilities of the arbitrator and the scope of their authority. Third, it identifies the legal issues the arbitrator will address.

The next step is to meet with the arbitrator to discuss the process leading to the arbitration hearing, decide the date and place for the hearing, and pick the rules that will govern the hearing. This meeting is called a ''prehearing conference'', and picking the rules that will govern the hearing is sometimes the most important part of the arbitration process. A lot of the time, the rules that people select are taken from the more important parts of the [https://canlii.ca/t/8mcr Supreme Court Family Rules] that talk about evidence, experts, and hearing procedures. However, there are lots of other options. People can pick the rules that best suit the circumstances of their children, the nature of their dispute, and the status of their finances. It's important to be as thoughtful as possible in deciding what rules are necessary. Arbitration can look just like going to court, but it doesn't have to. It can be a lot more focused, a lot more efficient, and a lot faster.

How the arbitration process works after the prehearing conference will depend on the rules you've picked.

====The basic arbitration process====

Most of the time, the next step after the prehearing conference involves exchanging the documents and information that are relevant to the legal issues in the dispute. If child support is an issue, for example, financial statements might be prepared and documents like income tax returns, T4 slips, and paystubs might be exchanged. If property is an issue, you might need tax assessments, purchase documents, mortgage statements, and maybe a professional appraisal of the current value of the property.

You need to think carefully about what sort of documents and information you need. For complicated problems, you might also hire an expert to give an opinion about things like the value of a pension, a tax problem, or the best parenting arrangements for the children. (That last kind of opinion is called a ''parenting assessment'' or a ''section 211 report'', and is usually prepared by a psychologist, clinical counsellor, or social worker. You can get more information about ''reports'' and ''assessments'' in the [[Children and Parenting after Separation]] chapter.) You might also need to exchange bank statements, credit card statements and corporate financial statements. The nature of the documents that are important, the extent of the disclosure that is required, and the type of expert opinions that are most useful will change depending on the circumstances, the legal issues, and how the parties have decided to approach the arbitration process.

Once the relevant documents have been exchanged and any expert opinions have been completed, each party will start to work on how they're going to present their case to the arbitrator and on the documents they'll want to refer the arbitrator to at the hearing. These might include:

*written arguments,
*timelines, charts, financial tables, photographs, videos, and other visual aids,
*summaries of what your witnesses are going to say, called ''will-say statements'',
*affidavits and financial statements,
*binders with the financial and other documents you're going to be asking your witnesses to identify, comment on, or explain, called ''books of documents'', and
*binders with the case law you're going to be asking the arbitrator to consider, called ''books of authorities''.

Sometimes the arbitrator will want the parties to cooperate and prepare other hearing documents together. These might include:

*''statements of agreed facts'', a written summary of the facts both parties agree about, and
*''joint books of documents'', binders with the financial and other documents you will both rely on.

Next, the parties and their lawyers, if they have them, will attend the hearing. Arbitration hearings can take place in the arbitrator's office, a boardroom in a hotel or anywhere else that's private, or even remotely by videoconference, and are usually less formal than court hearings; arbitration processes can be as formal or informal as the parties and the arbitrator want.

At the hearing, each party makes an opening argument describing the evidence that will be given and then presents their evidence. The parties' evidence usually consists of the testimony of witnesses, documents, and affidavits. Each party then makes a closing argument to show the arbitrator why the arbitrator should resolve their dispute in the way they each prefer.

After the hearing process is over, the arbitrator will provide a written decision, called an ''award'', summarizing the evidence and resolving all of the legal issues, and explaining why the arbitrator resolved the issues in the way they resolved them.

====Alternative arbitration processes====

Arbitration processes can be as simple or as complicated as the parties want. The basic arbitration process I've just described looks and feels very much like the process that applies in court. However, it isn't always necessary to have a witness who gives oral evidence, or to have any evidence at all. It isn't always necessary to have oral arguments. Sometimes written arguments alone will do. And, if the parties agree, awards can provide a summary explanation of the arbitrator's decision rather than a full explanation.

Here are some examples of alternative arbitration processes:

*The parties could make their arguments to the arbitrator by telephone or videoconference, with no evidence at all, and the arbitrator giving an oral decision right there on the spot. (This process would be ideal for decisions about a legal question where the facts either don't matter or aren't in dispute. It's also the cheapest and fastest way to get a decision.)
*If evidence is necessary to help the arbitrator make their decision, the parties could make their arguments by telephone or video, and the evidence could be presented by affidavits alone, without the in-person testimony of any witness.
*If an in-person hearing is necessary, the parties could agree that evidence will be provided by affidavit, with the people who made the affidavits being cross-examined by the other person or their lawyer. Or, the parties could agree that only a limited number of witnesses will testify, and that each party will have a limited amount of time to examine and cross-examine each witness.
*If an in-person hearing is necessary and the parties agree to very few of the important facts, the parties could have an arbitration with all the bells and whistles available if they were going to court, with no limits on the number or amount of time for each witness. (This process will take the longest time to wrap up and also cost the most money.)
*Where neither party is represented by a lawyer, the hearing could be in-person but be managed completely by the arbitrator who can explore issues and ask questions. The arbitrator would work with the parties to identify the legal issues in the dispute, and then lead the examination of all of the witnesses.

I have developed a checklist of procedural elements that is helpful for designing arbitration processes, and covers every part of the arbitration process, from deciding whether to have an in-person hearing or a hearing by videoconference, to whether and how experts will be hired, to how evidence will be presented at the hearing. You can download my "Arbitration Rules Pick-List" from the [https://www.boydarbitration.ca/rules-of-procedure website] of John-Paul Boyd Arbitration Chambers.

====Mandatory elements of arbitration processes====

Although arbitration processes are incredibly flexible, there are certain aspects of arbitration that are required in British Columbia.

First, the arbitrator must give each party the opportunity to make their case, and to reply to the case made by the other party. This is a basic element of the Canadian justice system, called either "natural justice" or "fundamental justice," that is required of judges as well as arbitrators.

Second, the arbitrator must treat each party fairly and not be biased in favour of one party over the other. Section 19.8 of the ''[[Family Law Act]]'' says this:

<blockquote><tt>(1) An arbitrator must be independent of the parties.</tt></blockquote>
<blockquote><tt>(2) An arbitrator must be impartial and act impartially.</tt></blockquote>
<blockquote><tt>(3) If a person is approached in connection with the person's possible appointment as an arbitrator, the person must, without delay, disclose any circumstances likely to give rise to justifiable doubts as to the person's independence or impartiality.</tt></blockquote>
<blockquote><tt>(4) An arbitrator, from the time of the arbitrator's appointment and throughout the arbitration, must, without delay, disclose to the parties any circumstances referred to in subsection (3).</tt></blockquote>

Third, when it comes to decisions about children, the arbitrator must consider only the best interests of the children.

Finally, arbitral awards must be given in writing and be signed by the arbitrator.

Otherwise, the parties and their arbitrator are free to be as creative as they want and create the rules and the process that are best-suited to the parties, their children, their dispute, their timeline, and their budget.

===Changing, challenging and appealing awards===

If you are unhappy with an arbitrator's decision, you might be able to ''appeal'' the arbitrator's award, in the same way that a decision of the Provincial Court can be appealed to the Supreme Court, and a decision of the Supreme Court can be appealed to the Court of Appeal. When you appeal an award, you are arguing that the arbitrator made an important mistake and that, as a result of the arbitrator's mistake, all or some of their award should be cancelled.

There are other reasons why you might ask that an award be cancelled, usually because of flaws in the arbitration process itself. You would only challenge an award you're unhappy with; if you're happy with the award, you're not likely to be concerned about the fairness of the arbitration process.

On the other hand, you might have an award that you're happy with, but no longer works because there's been an important change in your circumstances, the circumstances of the other party or the circumstances of the children. If there has been an important change, you can apply to court to ''vary'' the award, in the same way that the court can vary a court order.

====Changing awards====

Under section 19.18(3) of the [[Family Law Act]], you can apply to the Supreme Court to change, suspend or cancel all or some of an arbitrator's award when there has been an important change in circumstances after the award was made. This is called "varying" an award.

You can apply to vary an award about a particular issue on the same terms as you can apply to vary a court order about that issue. This means that you need to look at the part of the ''Family Law Act'' that applies to varying orders about the particular issue you're dealing with. If your issue is about child support, for example, you need to look at section 152 of the act. Under section 152, the court may vary an order about child support for one of three reasons:

#if there has been an important change of circumstances since the child support order was made, usually a change about income or the children's living arrangements,
#if important evidence has come to light that wasn't available at the hearing which resulted in the child support order, or
#if a lack of financial disclosure was discovered after the hearing which resulted in the child support order.

Section 47 of the ''Family Law Act'' is about varying orders for children's parenting arrangements, section 60 is about varying orders for contact with a child, and section 167 is about varying orders for spousal support.

===Other uses of arbitration===

Arbitration is very helpful in resolving family law problems quickly and efficiently. Parenting coordinators use a process a lot like arbitration to make decisions resolving disagreements when the parents aren't able to find solutions to which they both agree. The flexibility of arbitration also means that people can ask their arbitrator to make a decision based on the rules of a religion, based on grounds of conscience, or based on equity and fairness.

Arbitration can also be used to:

*break logjams in settlement discussions, where only one or two issues can't be agreed upon,
*resolve disagreements about how the law should be interpreted or applied in a particular situation,
*make temporary decisions about support or parenting arrangements while the parties are negotiating a settlement, or
*perform technical calculations, like about the amount of costs payable in a court proceeding, the income of someone who is self-employed, the amount of spousal support payable, or the after-tax cost of children's expenses.

====Faith-based arbitration====

Under section 19.10 of the ''[[Family Law Act]]'', the parties can choose their own law to govern the arbitration process. Nothing in the act says that this law cannot be a religious law. Judaism and Islam, for example, each have religious laws that can apply to family law disputes for members of those faiths. Members of the orthodox Jewish community may use Halakha to settle personal disputes. Muslims can use Sharia law for the same purpose.

Whatever rules a couple chooses, however, the result of an arbitration cannot be "inconsistent" with the ''Family Law Act'' or the ''[[Divorce Act]]''. Section 19.20 of the ''Family Law Act'' says this:

<blockquote><tt>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.</tt></blockquote>

This means, for example, that child support must be paid to the person who has the child most of the time by the person who has the child for the least amount of time, and that the amount of support paid cannot be too different from what the [[Child Support Guidelines]] require. It also means that a particular person shouldn't have the primary residence of a child merely because of their gender, the age of the child or some other arbitrary reason.

Note that if the parties to faith-based arbitration wish to obtain a divorce, they must still start a court proceeding in the Supreme Court of British Columbia for a divorce order. A religious divorce, such as the Jewish Get, is not a legal divorce.

====Parenting coordination====

Parenting coordination uses a process that includes a decision-making function that's a lot like arbitration. In parenting coordination, the arbitrator is called a ''parenting coordinator'' and first tries to settle a dispute about parenting through a settlement process like mediation. If the parents cannot find consensus, however, the parenting coordinator acts like an arbitrator and makes a written decision, called a ''determination'', resolving the dispute. The parenting coordinator's authority to resolve these disputes comes from the participation agreement the parents sign, in this case called a ''parenting coordination agreement''.

As with faith-based arbitration, or any other kind of family law arbitration for that matter, the parenting coordinator cannot make determinations that are inconsistent with the ''[[Family Law Act]]''. However, parenting coordinators are subject to additional restrictions in the scope of the things they can make decisions about. Under section 6(3) and (4)(a)(ix) of the [http://canlii.ca/t/8rdx Family Law Act Regulation], parenting coordinators can make determinations about parenting arrangements, contact with a child, and other issues agreed to by the parties and the parenting coordinator. However, regardless of whatever the parties and the parenting coordinator may have agreed to, a parenting coordinator may ''not'' make decisions about:

*legal issues that are excluded by an order or a parenting coordination agreement,
*changes to the guardianship of a child,
*changes to the allocation of parental responsibilities,
*giving parenting time or contact to a person who does not already have parenting time or contact,
*substantial changes to parenting time or contact, or
*the relocation of a child.

There's a lot more information about parenting coordination in the [[Parenting_Coordination|next section]] of this chapter.

==When to use arbitration==

There are lots of good reasons to use arbitration rather than go to court. It's fast and efficient, the rules that govern the process are extremely flexible, it's confidential and private, and you get to pick a judge who is an expert in not just family law but the aspects of the law that are the most important in your case. There are, however, only a few circumstances that make arbitration a necessary choice over mediation, collaborative negotiation, or litigation. Typically, people will choose to arbitrate their dispute if:

*they want the laws of their religion or another set of legal, moral or ethical principles to apply to their dispute,
*their positions are too far apart to make negotiation or mediation a reasonable option and must have a decision made for them, but don't want to go to the expense, anxiety, and acrimony typically involved in going to court,
*they want to resolve their dispute discreetly and privately, and don't want to risk their personal business being made public,
*the legal issues are complex and demand a decision-maker who is a specialist in those issues, or
*they want their dispute resolved more quickly than the court schedule will allow.

It's important to understand that while arbitrators can make awards on all of the usual family law issues — including parenting arrangements, contact, child support, spousal support, and the division of property and debt — arbitrators cannot make awards on certain issues that can only be decided by a judge. These include:

*divorce orders and annulments,
*orders appointing someone as the guardian of a child who is not a parent of that child,
*declarations about who is, and who is not, the parent of a child, unless the declaration is necessary to resolve an issue that is within the arbitrator's jurisdiction, and
*orders changing the order of a judge.

==How to find a family law arbitrator==

Finding a family law arbitrator can sometimes be the hard part about taking your problem to arbitration, as there aren't too many arbitrators who specialize in family law issues. Your first and best bet is to speak to a family law lawyer and see who they might recommend to you. (Most lawyers will have a list of three of four arbitrators who they've used in the past and like working with.) You might also do an internet search for "family law arbitrator British Columbia," as lawyers who work as family law arbitrators will describe themselves this way and take pains to indicate in which jurisdiction they work. You could also contact organizations which specialize in providing legal education and developing out-of-court dispute resolution processes, including:

*[https://www.adrbc.com the ADR Institute of British Columbia], and
*[http://www.labour-arbitrators.ca the Arbitrators Association of British Columbia].

(Be warned, however, that there are lots of accredited family law arbitrators who may not have decided to pay the money to join these organizations.) Finally, you could call the Canadian Bar Association's [http://www.clicklaw.bc.ca/helpmap/service/1044 Lawyer Referral Service]. Although the service can't recommend one family law arbitrator over another, they'll at least be able to give you some names.

==Resources and links==

===Legislation===

* ''[https://canlii.ca/t/551f9 Divorce Act]''
* ''[https://canlii.ca/t/8q3k Family Law Act]''
* [https://canlii.ca/t/8rdx Family Law Act Regulation]
* [https://canlii.ca/t/80mh Federal Child Support Guidelines]

===Links===

* [https://www.adrbc.com The ADR Institute of British Columbia]
* [https://adric.ca/ The ADR Institute of Canada]
* [http://www.labour-arbitrators.ca The Arbitrators Association of British Columbia]
* [http://www.clicklaw.bc.ca/helpmap/service/1044 Lawyer Referral Service]
* [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society]
* [https://www.boydarbitration.ca/library John-Paul Boyd Arbitration Chambers] Library
* [https://www.boydarbitration.ca/rules-of-procedure John-Paul Boyd Arbitration Chamber] Arbitration Procedure
* [https://www.lawsociety.bc.ca/ The Law Society of BC]
* [https://www.clicklaw.bc.ca/resource/4616 Resolving Disputes Without Going to Court] from Dial-a-Law by the People's Law School
* [https://www.clicklaw.bc.ca/resource/4191 Settling out of Court] from the Justice Education Society of BC
* [https://www.clicklaw.bc.ca/resource/1253 Mediation, collaborative negotiation, and arbitration] from Dial-a-Law by the People's Law School

===Resources===

*Arbitration [[Media:Arbitration procedure pick-list - fillable.pdf|procedure pick-list]] (fillable PDF)
*Sample arbitration [[Media:Arbitration Agreement - PDF.pdf|participation agreement]] (PDF) in cases where the parties are represented by lawyers.
*Sample arbitration [[Media:Arbitration Agreement - Self-Rep - PDF.pdf|participation agreement]] (PDF) in cases where the parties are not represented by lawyers.

These sample participation agreements may not resemble the participation agreement you are asked to sign. They provide a more or less accurate picture of what arbitration participation agreements usually look like, but should be used as a reference only.

You can also look at the website of [https://www.boydarbitration.ca/participationagreements John-Paul Boyd Arbitration Chambers] which provides a number of model participation agreements for download.

* [https://www.clicklaw.bc.ca/resource/4452 "An Evaluation of the Cost of Family Law Disputes: Measuring the Cost Implication of Various Dispute Resolution Methods" PDF] from Canadian Research Institute for Law and the Family
* [https://www.clicklaw.bc.ca/resource/1497 "Alternatives to Going to Court" PDF] from the Justice Education Society of BC

{{REVIEWED | reviewer = [[JP Boyd]], 25 August 2021}}

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[[Category:JP Boyd on Family Law]]

Family Law Arbitration

2023-04-18T23:18:17Z

Jpboyd: /* Changing, cancelling and appealing awards */

{{JP Boyd on Family Law TOC|expanded = outofcourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[JP Boyd]]
}}Arbitration is a dispute resolution process in which the parties hire a neutral third party, an ''arbitrator'', to make decisions resolving some or all of the legal issues in their dispute. While the job of a mediator is to help people work toward their own resolution of their family law dispute, the arbitrator's job is to act like a judge and make a decision resolving a legal dispute, after hearing the evidence and listening to the arguments of each party.

People who work as arbitrators are usually trained professionals who qualify as "family law dispute resolution professionals" under the ''[[Family Law Act]]'', meaning that they have the experience and education required by the [https://canlii.ca/t/5539g Family Law Act Regulation]. Lawyers who are "family law arbitrators" are specially accredited to arbitrate family law disputes by the [http://www.lawsociety.bc.ca Law Society of British Columbia].

This section provides an introduction to arbitration and discusses when to use arbitration in a family law dispute. It also provides some suggestions about how to find a family law arbitrator.

==Introduction==

Like mediation and collaborative negotiation, arbitration is a voluntary process. The parties to a dispute must all ''agree'' to use arbitration to resolve their legal dispute. Like those processes, arbitration is also an out-of-court way of resolving problems. However, that's where the similarities between arbitration, mediation and collaborative negotiation end. While the parties to a dispute may have agreed to use arbitration to resolve their dispute, it's the ''arbitrator'' who resolves their dispute, not the parties themselves.

Before the new ''[[Family Law Act]]'' became law in British Columbia, arbitration was rarely used in family law disputes. Arbitration was most frequently used in the context of commercial, labour, and construction disputes. In other places, such as Ontario and Alberta, the arbitration of family law disputes is well-established and has been for some time. The ''Family Law Act'', however, made a number of changes to the law that improved the usefulness of arbitration for family law disputes in British Columbia, and the number of people choosing arbitration over going to court has been increasing as a result.

Arbitration offers a number of advantages for resolving family law problems:

*it allows the parties to hand-pick the person who will make decisions about the issues they cannot agree on, which means that they might pick an arbitrator who is not just an expert family law lawyer, but an expert family law lawyer with special knowledge of a specific issue, like parenting children, tax problems, or property division,
*it allows the parties to pick the rules that will apply to the hearing and the decision-making process,
*arbitration resolves disputes much faster than going to court,
*the arbitration process is private, confidential, and closed to the public, and
*the result of the process is an arbitrator's award that is just as binding as a court order and is enforceable just like a court order.

As well, it's often faster to get a date for an arbitration hearing than it is for a court hearing. Although short trials of two or three days can usually be booked within ten to twelve months, it can take a year or more to get a date for longer trials because the court is so busy. An arbitration hearing can be booked as soon as everyone has free time in their calendars.

People can start arbitration right off the bat, as soon as a legal problem has come up, or they can use it to resolve a court proceeding as an alternative to trial. The result of a successful process of arbitration is an arbitrator's ''award''. If litigation has already started, the award can be turned into an order that the parties agree the court will make, called a ''consent order''. If the parties are married, a consent order may make more sense since they'll usually want an order for their divorce at the same time as they're wrapping everything else up.

The parties can meet with their arbitrator on their own or with their lawyers. As an arbitrator, I always appreciate having the parties' lawyers present. I recognize that having the lawyers at the arbitration hearing costs the parties more money, but the lawyers are intimately familiar with how to write briefs, make legal arguments and present evidence, and arbitration hearings with lawyers are usually much shorter than hearings without lawyers. However, there is no rule that you must have a lawyer represent you in arbitration, just like there's no rule that you must have a lawyer represent you in litigation.

The arbitrator has no stake in how the arbitration turns out. The arbitrator must be neutral and have no bias in favour of either party. Most of the time, the arbitrator should have no special connection — business, personal or otherwise — with either party, and the arbitrator must make sure that all parties are aware of any such special connections before they agree to hire the arbitrator.

==Working with "family law arbitrators" under the ''Family Law Act''==

An arbitrator who qualifies as a "family dispute resolution professional" under the ''[[Family Law Act]]'' must meet the requirements set out in the [http://canlii.ca/t/8rdx Family Law Act Regulation]. Section 5 of the regulation says that:

<blockquote><tt>(1) Only an arbitrator who is qualified as a family dispute resolution professional may conduct an arbitration in relation to a family law dispute.</tt></blockquote>

Lawyers who qualify as ''family law arbitrators'' meet the training requirements of, and are accredited by, the Law Society of British Columbia. You can find out if a lawyer is a "family law arbitrator" by looking the lawyer up in the [https://www.lawsociety.bc.ca/lsbc/apps/lkup/mbr-search.cfm Lawyer Directory] on the Law Society's website. The training requirements that professionals other than lawyers must meet to qualify as "family dispute resolution professionals" are set out in section 5(2)(b) of the Family Law Act Regulation, and include:

*being a member in good standing with specific organizations,
*meeting specific educational and experiential requirements, including at least 10 years' experience in family-related practice,
*taking continuing family dispute resolution training, and
*carrying professional liability insurance.

It's important to know that, under section 5(3) of the regulation, people other than lawyers may only arbitrate disputes dealing with ''parenting children'', including contact with a child, and ''child support''. However, they can only deal with child support if:

*all of the children are under 19 years of age,
*none of the payor's income is self-employment income or partnership income,
*the payor's income is less than $150,000 per year, and
*the [[Child Support Guidelines]] tables are being used to calculate the basic child support amount.

As well, if children's special or extraordinary expenses are an issue that is to be resolved by an arbitrator who is not a lawyer, section 5(3)(c)(v) says that "the determination of what those expenses are and how they are to be calculated" must be "straightforward."

Section 5 of the regulation imposes two extra duties on arbitrators who are family dispute resolution professionals: they must use written participation agreements; and, they must provide the parties with confirmation that they qualify as family dispute resolution professionals. Section 5(4) says this:

<blockquote><tt>(4) The following practice standards apply to a family dispute resolution professional who wishes to engage in arbitration in relation to a family law dispute:</tt></blockquote>
<blockquote><blockquote><tt>(a) before initiating arbitration, he or she must enter into a written agreement to arbitrate with the parties to the family law dispute;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) before initiating arbitration, he or she must provide written confirmation to the parties to the family law dispute that he or she meets the professional requirements set out in subsection (2).</tt></blockquote></blockquote>

==The arbitration process==

These are the steps involved in the basic arbitration process.

*'''Pick your arbitrator.''' Your lawyer will have the names of three or four arbitrators they prefer to work with. If you don't have a lawyer, you can look at the membership lists of organizations like the [http://adric.ca ADR Institute of Canada], although many accredited family law arbitrators may not have decided to spend the money to join those organizations.
*'''Sign the arbitrator's participation agreement.''' This is a contract that describes your responsibilities and the responsibilities of your arbitrator, and how the arbitrator will be paid. It also requires you to agree to be bound by the result of the arbitration.
*'''Prepare for and attend the prehearing conference.''' This is a meeting during which the parties, their lawyers and the arbitrator will make decisions about how the arbitration will work, including the rules for the hearing, the place and date of the hearing, and the legal issues to be resolved at the hearing.
*'''Prepare your case.''' Start working on your case by researching the law and thinking about the evidence you need to prove your case.
*'''Complete discovery and disclosure.''' This is a process in which you and the other party or parties will exchange documents and information that are relevant to the legal issues in your dispute, such as income tax returns if child support or spousal support is one of those issues.
*'''Exchange the documents you're going to use at the hearing.''' These documents might include written arguments, financial statements or summaries of what your witnesses are going to say.
*'''Attend the hearing.''' An arbitration hearing is the equivalent of a trial, but with special rules and shorter processes. Sometimes you may attend by teleconference or videoconference rather than in person.
*'''Receive the arbitrator's decision.''' The arbitrator will prepare their decision, and the reasons for their decision, in a written document called an award. Most arbitrators try to get their awards to the parties as soon as possible, but it can sometimes take a long time to finish a decision, especially if the evidence presented at the hearing was unusually complicated.
*'''Review the award and ask for corrections.''' You have 30 days after you get the arbitrator's award to ask the arbitrator to correct any typos and other mistakes, and to ask the arbitrator to explain specific parts of their award.

Under section 19.16 of the ''[[Family Law Act]]'', an arbitration is over when:

#the arbitrator has delivered their final award and the time to correct the arbitrator's decision has passed;
#the parties agree to end the arbitration; or,
#the arbitrator makes an order that it is "unnecessary or impossible" to continue the arbitration.

===Starting arbitration===

There are only two ways you can get your family law problem into arbitration.

First, you might have a family law agreement — like a cohabitation agreement, a marriage agreement, or a separation agreement — which says that any disputes or questions about the agreement, or the subjects the agreement covers, will be resolved through arbitration.

Second, you might agree, after a problem has arisen, that you'll go to arbitration instead of going to court, or instead of another process like mediation or collaborative negotiation. You can even agree to resolve a dispute through arbitration after a court proceeding has started. A lot of people decide to do this when they find out how far away their trial is scheduled to start, and when they find out that there's no guarantee that they'll get a judge who is an expert in resolving family law disputes.

You cannot force someone into arbitration, including by asking for a court order that you go to arbitration. Even though section 224(1) of the ''[[Family Law Act]]'' says that "a court may make an order to ... require the parties to participate in family dispute resolution," the court will not make an order that someone go to arbitration. Resolving a dispute through arbitration has to be voluntary, either because you've already agreed to use arbitration ''if'' a problem comes up or because you've agreed to use arbitration ''after'' the problem has come up.

===Arbitration processes===

When people agree or are required to arbitrate their dispute, they first pick their arbitrator. The arbitrator you choose should be someone who is an expert in family law, and perhaps even an expert in family law with special knowledge or skills concerning the most important issues in your dispute. You probably want to choose someone who has a lot of experience as an arbitrator, someone who has a good reputation in the legal community, and, most importantly, someone you see as being neutral, fair-minded and unbiased.

After picking the arbitrator, the arbitrator will ask the parties to sign a participation agreement, usually called an ''arbitration agreement.'' This agreement does three things. First, it serves as the arbitrator's retainer agreement and describes how the arbitrator will charge for their services and when they will expect to be paid. (You can read more about retainer agreements in the [[Understanding the Legal System for Family Law Matters]] chapter, in the [[You and Your Lawyer]] section.) Second, it describes the parties' rights and responsibilities in the process, as well as the responsibilities of the arbitrator and the scope of their authority. Third, it identifies the legal issues the arbitrator will address.

The next step is to meet with the arbitrator to discuss the process leading to the arbitration hearing, decide the date and place for the hearing, and pick the rules that will govern the hearing. This meeting is called a ''prehearing conference'', and picking the rules that will govern the hearing is sometimes the most important part of the arbitration process. A lot of the time, the rules that people select are taken from the more important parts of the [https://canlii.ca/t/8mcr Supreme Court Family Rules] that talk about evidence, experts, and hearing procedures. However, there are lots of other options. People can pick the rules that best suit the circumstances of their children, the nature of their dispute, and the status of their finances. It's important to be as thoughtful as possible in deciding what rules are necessary. Arbitration can look just like going to court, but it doesn't have to. It can be a lot more focused, a lot more efficient, and a lot faster.

How the arbitration process works after the prehearing conference will depend on the rules you've picked.

====The basic arbitration process====

Most of the time, the next step after the prehearing conference involves exchanging the documents and information that are relevant to the legal issues in the dispute. If child support is an issue, for example, financial statements might be prepared and documents like income tax returns, T4 slips, and paystubs might be exchanged. If property is an issue, you might need tax assessments, purchase documents, mortgage statements, and maybe a professional appraisal of the current value of the property.

You need to think carefully about what sort of documents and information you need. For complicated problems, you might also hire an expert to give an opinion about things like the value of a pension, a tax problem, or the best parenting arrangements for the children. (That last kind of opinion is called a ''parenting assessment'' or a ''section 211 report'', and is usually prepared by a psychologist, clinical counsellor, or social worker. You can get more information about ''reports'' and ''assessments'' in the [[Children and Parenting after Separation]] chapter.) You might also need to exchange bank statements, credit card statements and corporate financial statements. The nature of the documents that are important, the extent of the disclosure that is required, and the type of expert opinions that are most useful will change depending on the circumstances, the legal issues, and how the parties have decided to approach the arbitration process.

Once the relevant documents have been exchanged and any expert opinions have been completed, each party will start to work on how they're going to present their case to the arbitrator and on the documents they'll want to refer the arbitrator to at the hearing. These might include:

*written arguments,
*timelines, charts, financial tables, photographs, videos, and other visual aids,
*summaries of what your witnesses are going to say, called ''will-say statements'',
*affidavits and financial statements,
*binders with the financial and other documents you're going to be asking your witnesses to identify, comment on, or explain, called ''books of documents'', and
*binders with the case law you're going to be asking the arbitrator to consider, called ''books of authorities''.

Sometimes the arbitrator will want the parties to cooperate and prepare other hearing documents together. These might include:

*''statements of agreed facts'', a written summary of the facts both parties agree about, and
*''joint books of documents'', binders with the financial and other documents you will both rely on.

Next, the parties and their lawyers, if they have them, will attend the hearing. Arbitration hearings can take place in the arbitrator's office, a boardroom in a hotel or anywhere else that's private, or even remotely by videoconference, and are usually less formal than court hearings; arbitration processes can be as formal or informal as the parties and the arbitrator want.

At the hearing, each party makes an opening argument describing the evidence that will be given and then presents their evidence. The parties' evidence usually consists of the testimony of witnesses, documents, and affidavits. Each party then makes a closing argument to show the arbitrator why the arbitrator should resolve their dispute in the way they each prefer.

After the hearing process is over, the arbitrator will provide a written decision, called an ''award'', summarizing the evidence and resolving all of the legal issues, and explaining why the arbitrator resolved the issues in the way they resolved them.

====Alternative arbitration processes====

Arbitration processes can be as simple or as complicated as the parties want. The basic arbitration process I've just described looks and feels very much like the process that applies in court. However, it isn't always necessary to have a witness who gives oral evidence, or to have any evidence at all. It isn't always necessary to have oral arguments. Sometimes written arguments alone will do. And, if the parties agree, awards can provide a summary explanation of the arbitrator's decision rather than a full explanation.

Here are some examples of alternative arbitration processes:

*The parties could make their arguments to the arbitrator by telephone or videoconference, with no evidence at all, and the arbitrator giving an oral decision right there on the spot. (This process would be ideal for decisions about a legal question where the facts either don't matter or aren't in dispute. It's also the cheapest and fastest way to get a decision.)
*If evidence is necessary to help the arbitrator make their decision, the parties could make their arguments by telephone or video, and the evidence could be presented by affidavits alone, without the in-person testimony of any witness.
*If an in-person hearing is necessary, the parties could agree that evidence will be provided by affidavit, with the people who made the affidavits being cross-examined by the other person or their lawyer. Or, the parties could agree that only a limited number of witnesses will testify, and that each party will have a limited amount of time to examine and cross-examine each witness.
*If an in-person hearing is necessary and the parties agree to very few of the important facts, the parties could have an arbitration with all the bells and whistles available if they were going to court, with no limits on the number or amount of time for each witness. (This process will take the longest time to wrap up and also cost the most money.)
*Where neither party is represented by a lawyer, the hearing could be in-person but be managed completely by the arbitrator who can explore issues and ask questions. The arbitrator would work with the parties to identify the legal issues in the dispute, and then lead the examination of all of the witnesses.

I have developed a checklist of procedural elements that is helpful for designing arbitration processes, and covers every part of the arbitration process, from deciding whether to have an in-person hearing or a hearing by videoconference, to whether and how experts will be hired, to how evidence will be presented at the hearing. You can download my "Arbitration Rules Pick-List" from the [https://www.boydarbitration.ca/rules-of-procedure website] of John-Paul Boyd Arbitration Chambers.

====Mandatory elements of arbitration processes====

Although arbitration processes are incredibly flexible, there are certain aspects of arbitration that are required in British Columbia.

First, the arbitrator must give each party the opportunity to make their case, and to reply to the case made by the other party. This is a basic element of the Canadian justice system, called either "natural justice" or "fundamental justice," that is required of judges as well as arbitrators.

Second, the arbitrator must treat each party fairly and not be biased in favour of one party over the other. Section 19.8 of the ''[[Family Law Act]]'' says this:

<blockquote><tt>(1) An arbitrator must be independent of the parties.</tt></blockquote>
<blockquote><tt>(2) An arbitrator must be impartial and act impartially.</tt></blockquote>
<blockquote><tt>(3) If a person is approached in connection with the person's possible appointment as an arbitrator, the person must, without delay, disclose any circumstances likely to give rise to justifiable doubts as to the person's independence or impartiality.</tt></blockquote>
<blockquote><tt>(4) An arbitrator, from the time of the arbitrator's appointment and throughout the arbitration, must, without delay, disclose to the parties any circumstances referred to in subsection (3).</tt></blockquote>

Third, when it comes to decisions about children, the arbitrator must consider only the best interests of the children.

Finally, arbitral awards must be given in writing and be signed by the arbitrator.

Otherwise, the parties and their arbitrator are free to be as creative as they want and create the rules and the process that are best-suited to the parties, their children, their dispute, their timeline, and their budget.

===Changing, cancelling and appealing awards===

If you are unhappy with an arbitrator's decision, you might be able to ''appeal'' the arbitrator's award, in the same way that a decision of the Provincial Court can be appealed to the Supreme Court, and a decision of the Supreme Court can be appealed to the Court of Appeal. When you appeal an award, you are arguing that the arbitrator made an important mistake and that, as a result of the arbitrator's mistake, all or some of their award should be cancelled.

There are other reasons why you might ask that an award be cancelled, usually because of flaws in the arbitration process itself. You would only apply to cancel an award you're unhappy with. If you're happy with the award, you're not likely to be concerned about the fairness of the arbitration process.

On the other hand, you might have an award that you're happy with, but no longer works because there's been an important change in your circumstances, the circumstances of the other party or the circumstances of the children. If there has been an important change, you can apply to court to ''vary'' the award, in the same way that the court can vary a court order.

====Changing awards====

Under section 19.18(3) of the [[Family Law Act]], you can apply to the Supreme Court to change, suspend or cancel all or some of an arbitrator's award when there has been an important change in circumstances after the award was made. This is called "varying" an award.

You can apply to vary an award about a particular issue on the same terms as you can apply to vary a court order about that issue. This means that you need to look at the part of the ''Family Law Act'' that applies to varying orders about the particular issue you're dealing with. If your issue is about child support, for example, you need to look at section 152 of the act. Under section 152, the court may vary an order about child support for one of three reasons:

#if there has been an important change of circumstances since the child support order was made,
#if important evidence has come to light that wasn't available at the hearing which resulted in the child support order, or
#if a lack of financial disclosure was discovered after the hearing which resulted in the child support order\

===Other uses of arbitration===

Arbitration is very helpful in resolving family law problems quickly and efficiently. Parenting coordinators use a process a lot like arbitration to make decisions resolving disagreements when the parents aren't able to find solutions to which they both agree. The flexibility of arbitration also means that people can ask their arbitrator to make a decision based on the rules of a religion, based on grounds of conscience, or based on equity and fairness.

Arbitration can also be used to:

*break logjams in settlement discussions, where only one or two issues can't be agreed upon,
*resolve disagreements about how the law should be interpreted or applied in a particular situation,
*make temporary decisions about support or parenting arrangements while the parties are negotiating a settlement, or
*perform technical calculations, like about the amount of costs payable in a court proceeding, the income of someone who is self-employed, the amount of spousal support payable, or the after-tax cost of children's expenses.

====Faith-based arbitration====

Under section 19.10 of the ''[[Family Law Act]]'', the parties can choose their own law to govern the arbitration process. Nothing in the act says that this law cannot be a religious law. Judaism and Islam, for example, each have religious laws that can apply to family law disputes for members of those faiths. Members of the orthodox Jewish community may use Halakha to settle personal disputes. Muslims can use Sharia law for the same purpose.

Whatever rules a couple chooses, however, the result of an arbitration cannot be "inconsistent" with the ''Family Law Act'' or the ''[[Divorce Act]]''. Section 19.20 of the ''Family Law Act'' says this:

<blockquote><tt>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.</tt></blockquote>

This means, for example, that child support must be paid to the person who has the child most of the time by the person who has the child for the least amount of time, and that the amount of support paid cannot be too different from what the [[Child Support Guidelines]] require. It also means that a particular person shouldn't have the primary residence of a child merely because of their gender, the age of the child or some other arbitrary reason.

Note that if the parties to faith-based arbitration wish to obtain a divorce, they must still start a court proceeding in the Supreme Court of British Columbia for a divorce order. A religious divorce, such as the Jewish Get, is not a legal divorce.

====Parenting coordination====

Parenting coordination uses a process that includes a decision-making function that's a lot like arbitration. In parenting coordination, the arbitrator is called a ''parenting coordinator'' and first tries to settle a dispute about parenting through a settlement process like mediation. If the parents cannot find consensus, however, the parenting coordinator acts like an arbitrator and makes a written decision, called a ''determination'', resolving the dispute. The parenting coordinator's authority to resolve these disputes comes from the participation agreement the parents sign, in this case called a ''parenting coordination agreement''.

As with faith-based arbitration, or any other kind of family law arbitration for that matter, the parenting coordinator cannot make determinations that are inconsistent with the ''[[Family Law Act]]''. However, parenting coordinators are subject to additional restrictions in the scope of the things they can make decisions about. Under section 6(3) and (4)(a)(ix) of the [http://canlii.ca/t/8rdx Family Law Act Regulation], parenting coordinators can make determinations about parenting arrangements, contact with a child, and other issues agreed to by the parties and the parenting coordinator. However, regardless of whatever the parties and the parenting coordinator may have agreed to, a parenting coordinator may ''not'' make decisions about:

*legal issues that are excluded by an order or a parenting coordination agreement,
*changes to the guardianship of a child,
*changes to the allocation of parental responsibilities,
*giving parenting time or contact to a person who does not already have parenting time or contact,
*substantial changes to parenting time or contact, or
*the relocation of a child.

There's a lot more information about parenting coordination in the [[Parenting_Coordination|next section]] of this chapter.

==When to use arbitration==

There are lots of good reasons to use arbitration rather than go to court. It's fast and efficient, the rules that govern the process are extremely flexible, it's confidential and private, and you get to pick a judge who is an expert in not just family law but the aspects of the law that are the most important in your case. There are, however, only a few circumstances that make arbitration a necessary choice over mediation, collaborative negotiation, or litigation. Typically, people will choose to arbitrate their dispute if:

*they want the laws of their religion or another set of legal, moral or ethical principles to apply to their dispute,
*their positions are too far apart to make negotiation or mediation a reasonable option and must have a decision made for them, but don't want to go to the expense, anxiety, and acrimony typically involved in going to court,
*they want to resolve their dispute discreetly and privately, and don't want to risk their personal business being made public,
*the legal issues are complex and demand a decision-maker who is a specialist in those issues, or
*they want their dispute resolved more quickly than the court schedule will allow.

It's important to understand that while arbitrators can make awards on all of the usual family law issues — including parenting arrangements, contact, child support, spousal support, and the division of property and debt — arbitrators cannot make awards on certain issues that can only be decided by a judge. These include:

*divorce orders and annulments,
*orders appointing someone as the guardian of a child who is not a parent of that child,
*declarations about who is, and who is not, the parent of a child, unless the declaration is necessary to resolve an issue that is within the arbitrator's jurisdiction, and
*orders changing the order of a judge.

==How to find a family law arbitrator==

Finding a family law arbitrator can sometimes be the hard part about taking your problem to arbitration, as there aren't too many arbitrators who specialize in family law issues. Your first and best bet is to speak to a family law lawyer and see who they might recommend to you. (Most lawyers will have a list of three of four arbitrators who they've used in the past and like working with.) You might also do an internet search for "family law arbitrator British Columbia," as lawyers who work as family law arbitrators will describe themselves this way and take pains to indicate in which jurisdiction they work. You could also contact organizations which specialize in providing legal education and developing out-of-court dispute resolution processes, including:

*[https://www.adrbc.com the ADR Institute of British Columbia], and
*[http://www.labour-arbitrators.ca the Arbitrators Association of British Columbia].

(Be warned, however, that there are lots of accredited family law arbitrators who may not have decided to pay the money to join these organizations.) Finally, you could call the Canadian Bar Association's [http://www.clicklaw.bc.ca/helpmap/service/1044 Lawyer Referral Service]. Although the service can't recommend one family law arbitrator over another, they'll at least be able to give you some names.

==Resources and links==

===Legislation===

* ''[https://canlii.ca/t/551f9 Divorce Act]''
* ''[https://canlii.ca/t/8q3k Family Law Act]''
* [https://canlii.ca/t/8rdx Family Law Act Regulation]
* [https://canlii.ca/t/80mh Federal Child Support Guidelines]

===Links===

* [https://www.adrbc.com The ADR Institute of British Columbia]
* [https://adric.ca/ The ADR Institute of Canada]
* [http://www.labour-arbitrators.ca The Arbitrators Association of British Columbia]
* [http://www.clicklaw.bc.ca/helpmap/service/1044 Lawyer Referral Service]
* [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society]
* [https://www.boydarbitration.ca/library John-Paul Boyd Arbitration Chambers] Library
* [https://www.boydarbitration.ca/rules-of-procedure John-Paul Boyd Arbitration Chamber] Arbitration Procedure
* [https://www.lawsociety.bc.ca/ The Law Society of BC]
* [https://www.clicklaw.bc.ca/resource/4616 Resolving Disputes Without Going to Court] from Dial-a-Law by the People's Law School
* [https://www.clicklaw.bc.ca/resource/4191 Settling out of Court] from the Justice Education Society of BC
* [https://www.clicklaw.bc.ca/resource/1253 Mediation, collaborative negotiation, and arbitration] from Dial-a-Law by the People's Law School

===Resources===

*Arbitration [[Media:Arbitration procedure pick-list - fillable.pdf|procedure pick-list]] (fillable PDF)
*Sample arbitration [[Media:Arbitration Agreement - PDF.pdf|participation agreement]] (PDF) in cases where the parties are represented by lawyers.
*Sample arbitration [[Media:Arbitration Agreement - Self-Rep - PDF.pdf|participation agreement]] (PDF) in cases where the parties are not represented by lawyers.

These sample participation agreements may not resemble the participation agreement you are asked to sign. They provide a more or less accurate picture of what arbitration participation agreements usually look like, but should be used as a reference only.

You can also look at the website of [https://www.boydarbitration.ca/participationagreements John-Paul Boyd Arbitration Chambers] which provides a number of model participation agreements for download.

* [https://www.clicklaw.bc.ca/resource/4452 "An Evaluation of the Cost of Family Law Disputes: Measuring the Cost Implication of Various Dispute Resolution Methods" PDF] from Canadian Research Institute for Law and the Family
* [https://www.clicklaw.bc.ca/resource/1497 "Alternatives to Going to Court" PDF] from the Justice Education Society of BC

{{REVIEWED | reviewer = [[JP Boyd]], 25 August 2021}}

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[[Category:JP Boyd on Family Law]]

Family Law Arbitration

2023-04-18T23:17:55Z

Jpboyd: /* Changing, cancelling and appealing awards */

{{JP Boyd on Family Law TOC|expanded = outofcourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[JP Boyd]]
}}Arbitration is a dispute resolution process in which the parties hire a neutral third party, an ''arbitrator'', to make decisions resolving some or all of the legal issues in their dispute. While the job of a mediator is to help people work toward their own resolution of their family law dispute, the arbitrator's job is to act like a judge and make a decision resolving a legal dispute, after hearing the evidence and listening to the arguments of each party.

People who work as arbitrators are usually trained professionals who qualify as "family law dispute resolution professionals" under the ''[[Family Law Act]]'', meaning that they have the experience and education required by the [https://canlii.ca/t/5539g Family Law Act Regulation]. Lawyers who are "family law arbitrators" are specially accredited to arbitrate family law disputes by the [http://www.lawsociety.bc.ca Law Society of British Columbia].

This section provides an introduction to arbitration and discusses when to use arbitration in a family law dispute. It also provides some suggestions about how to find a family law arbitrator.

==Introduction==

Like mediation and collaborative negotiation, arbitration is a voluntary process. The parties to a dispute must all ''agree'' to use arbitration to resolve their legal dispute. Like those processes, arbitration is also an out-of-court way of resolving problems. However, that's where the similarities between arbitration, mediation and collaborative negotiation end. While the parties to a dispute may have agreed to use arbitration to resolve their dispute, it's the ''arbitrator'' who resolves their dispute, not the parties themselves.

Before the new ''[[Family Law Act]]'' became law in British Columbia, arbitration was rarely used in family law disputes. Arbitration was most frequently used in the context of commercial, labour, and construction disputes. In other places, such as Ontario and Alberta, the arbitration of family law disputes is well-established and has been for some time. The ''Family Law Act'', however, made a number of changes to the law that improved the usefulness of arbitration for family law disputes in British Columbia, and the number of people choosing arbitration over going to court has been increasing as a result.

Arbitration offers a number of advantages for resolving family law problems:

*it allows the parties to hand-pick the person who will make decisions about the issues they cannot agree on, which means that they might pick an arbitrator who is not just an expert family law lawyer, but an expert family law lawyer with special knowledge of a specific issue, like parenting children, tax problems, or property division,
*it allows the parties to pick the rules that will apply to the hearing and the decision-making process,
*arbitration resolves disputes much faster than going to court,
*the arbitration process is private, confidential, and closed to the public, and
*the result of the process is an arbitrator's award that is just as binding as a court order and is enforceable just like a court order.

As well, it's often faster to get a date for an arbitration hearing than it is for a court hearing. Although short trials of two or three days can usually be booked within ten to twelve months, it can take a year or more to get a date for longer trials because the court is so busy. An arbitration hearing can be booked as soon as everyone has free time in their calendars.

People can start arbitration right off the bat, as soon as a legal problem has come up, or they can use it to resolve a court proceeding as an alternative to trial. The result of a successful process of arbitration is an arbitrator's ''award''. If litigation has already started, the award can be turned into an order that the parties agree the court will make, called a ''consent order''. If the parties are married, a consent order may make more sense since they'll usually want an order for their divorce at the same time as they're wrapping everything else up.

The parties can meet with their arbitrator on their own or with their lawyers. As an arbitrator, I always appreciate having the parties' lawyers present. I recognize that having the lawyers at the arbitration hearing costs the parties more money, but the lawyers are intimately familiar with how to write briefs, make legal arguments and present evidence, and arbitration hearings with lawyers are usually much shorter than hearings without lawyers. However, there is no rule that you must have a lawyer represent you in arbitration, just like there's no rule that you must have a lawyer represent you in litigation.

The arbitrator has no stake in how the arbitration turns out. The arbitrator must be neutral and have no bias in favour of either party. Most of the time, the arbitrator should have no special connection — business, personal or otherwise — with either party, and the arbitrator must make sure that all parties are aware of any such special connections before they agree to hire the arbitrator.

==Working with "family law arbitrators" under the ''Family Law Act''==

An arbitrator who qualifies as a "family dispute resolution professional" under the ''[[Family Law Act]]'' must meet the requirements set out in the [http://canlii.ca/t/8rdx Family Law Act Regulation]. Section 5 of the regulation says that:

<blockquote><tt>(1) Only an arbitrator who is qualified as a family dispute resolution professional may conduct an arbitration in relation to a family law dispute.</tt></blockquote>

Lawyers who qualify as ''family law arbitrators'' meet the training requirements of, and are accredited by, the Law Society of British Columbia. You can find out if a lawyer is a "family law arbitrator" by looking the lawyer up in the [https://www.lawsociety.bc.ca/lsbc/apps/lkup/mbr-search.cfm Lawyer Directory] on the Law Society's website. The training requirements that professionals other than lawyers must meet to qualify as "family dispute resolution professionals" are set out in section 5(2)(b) of the Family Law Act Regulation, and include:

*being a member in good standing with specific organizations,
*meeting specific educational and experiential requirements, including at least 10 years' experience in family-related practice,
*taking continuing family dispute resolution training, and
*carrying professional liability insurance.

It's important to know that, under section 5(3) of the regulation, people other than lawyers may only arbitrate disputes dealing with ''parenting children'', including contact with a child, and ''child support''. However, they can only deal with child support if:

*all of the children are under 19 years of age,
*none of the payor's income is self-employment income or partnership income,
*the payor's income is less than $150,000 per year, and
*the [[Child Support Guidelines]] tables are being used to calculate the basic child support amount.

As well, if children's special or extraordinary expenses are an issue that is to be resolved by an arbitrator who is not a lawyer, section 5(3)(c)(v) says that "the determination of what those expenses are and how they are to be calculated" must be "straightforward."

Section 5 of the regulation imposes two extra duties on arbitrators who are family dispute resolution professionals: they must use written participation agreements; and, they must provide the parties with confirmation that they qualify as family dispute resolution professionals. Section 5(4) says this:

<blockquote><tt>(4) The following practice standards apply to a family dispute resolution professional who wishes to engage in arbitration in relation to a family law dispute:</tt></blockquote>
<blockquote><blockquote><tt>(a) before initiating arbitration, he or she must enter into a written agreement to arbitrate with the parties to the family law dispute;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) before initiating arbitration, he or she must provide written confirmation to the parties to the family law dispute that he or she meets the professional requirements set out in subsection (2).</tt></blockquote></blockquote>

==The arbitration process==

These are the steps involved in the basic arbitration process.

*'''Pick your arbitrator.''' Your lawyer will have the names of three or four arbitrators they prefer to work with. If you don't have a lawyer, you can look at the membership lists of organizations like the [http://adric.ca ADR Institute of Canada], although many accredited family law arbitrators may not have decided to spend the money to join those organizations.
*'''Sign the arbitrator's participation agreement.''' This is a contract that describes your responsibilities and the responsibilities of your arbitrator, and how the arbitrator will be paid. It also requires you to agree to be bound by the result of the arbitration.
*'''Prepare for and attend the prehearing conference.''' This is a meeting during which the parties, their lawyers and the arbitrator will make decisions about how the arbitration will work, including the rules for the hearing, the place and date of the hearing, and the legal issues to be resolved at the hearing.
*'''Prepare your case.''' Start working on your case by researching the law and thinking about the evidence you need to prove your case.
*'''Complete discovery and disclosure.''' This is a process in which you and the other party or parties will exchange documents and information that are relevant to the legal issues in your dispute, such as income tax returns if child support or spousal support is one of those issues.
*'''Exchange the documents you're going to use at the hearing.''' These documents might include written arguments, financial statements or summaries of what your witnesses are going to say.
*'''Attend the hearing.''' An arbitration hearing is the equivalent of a trial, but with special rules and shorter processes. Sometimes you may attend by teleconference or videoconference rather than in person.
*'''Receive the arbitrator's decision.''' The arbitrator will prepare their decision, and the reasons for their decision, in a written document called an award. Most arbitrators try to get their awards to the parties as soon as possible, but it can sometimes take a long time to finish a decision, especially if the evidence presented at the hearing was unusually complicated.
*'''Review the award and ask for corrections.''' You have 30 days after you get the arbitrator's award to ask the arbitrator to correct any typos and other mistakes, and to ask the arbitrator to explain specific parts of their award.

Under section 19.16 of the ''[[Family Law Act]]'', an arbitration is over when:

#the arbitrator has delivered their final award and the time to correct the arbitrator's decision has passed;
#the parties agree to end the arbitration; or,
#the arbitrator makes an order that it is "unnecessary or impossible" to continue the arbitration.

===Starting arbitration===

There are only two ways you can get your family law problem into arbitration.

First, you might have a family law agreement — like a cohabitation agreement, a marriage agreement, or a separation agreement — which says that any disputes or questions about the agreement, or the subjects the agreement covers, will be resolved through arbitration.

Second, you might agree, after a problem has arisen, that you'll go to arbitration instead of going to court, or instead of another process like mediation or collaborative negotiation. You can even agree to resolve a dispute through arbitration after a court proceeding has started. A lot of people decide to do this when they find out how far away their trial is scheduled to start, and when they find out that there's no guarantee that they'll get a judge who is an expert in resolving family law disputes.

You cannot force someone into arbitration, including by asking for a court order that you go to arbitration. Even though section 224(1) of the ''[[Family Law Act]]'' says that "a court may make an order to ... require the parties to participate in family dispute resolution," the court will not make an order that someone go to arbitration. Resolving a dispute through arbitration has to be voluntary, either because you've already agreed to use arbitration ''if'' a problem comes up or because you've agreed to use arbitration ''after'' the problem has come up.

===Arbitration processes===

When people agree or are required to arbitrate their dispute, they first pick their arbitrator. The arbitrator you choose should be someone who is an expert in family law, and perhaps even an expert in family law with special knowledge or skills concerning the most important issues in your dispute. You probably want to choose someone who has a lot of experience as an arbitrator, someone who has a good reputation in the legal community, and, most importantly, someone you see as being neutral, fair-minded and unbiased.

After picking the arbitrator, the arbitrator will ask the parties to sign a participation agreement, usually called an ''arbitration agreement.'' This agreement does three things. First, it serves as the arbitrator's retainer agreement and describes how the arbitrator will charge for their services and when they will expect to be paid. (You can read more about retainer agreements in the [[Understanding the Legal System for Family Law Matters]] chapter, in the [[You and Your Lawyer]] section.) Second, it describes the parties' rights and responsibilities in the process, as well as the responsibilities of the arbitrator and the scope of their authority. Third, it identifies the legal issues the arbitrator will address.

The next step is to meet with the arbitrator to discuss the process leading to the arbitration hearing, decide the date and place for the hearing, and pick the rules that will govern the hearing. This meeting is called a ''prehearing conference'', and picking the rules that will govern the hearing is sometimes the most important part of the arbitration process. A lot of the time, the rules that people select are taken from the more important parts of the [https://canlii.ca/t/8mcr Supreme Court Family Rules] that talk about evidence, experts, and hearing procedures. However, there are lots of other options. People can pick the rules that best suit the circumstances of their children, the nature of their dispute, and the status of their finances. It's important to be as thoughtful as possible in deciding what rules are necessary. Arbitration can look just like going to court, but it doesn't have to. It can be a lot more focused, a lot more efficient, and a lot faster.

How the arbitration process works after the prehearing conference will depend on the rules you've picked.

====The basic arbitration process====

Most of the time, the next step after the prehearing conference involves exchanging the documents and information that are relevant to the legal issues in the dispute. If child support is an issue, for example, financial statements might be prepared and documents like income tax returns, T4 slips, and paystubs might be exchanged. If property is an issue, you might need tax assessments, purchase documents, mortgage statements, and maybe a professional appraisal of the current value of the property.

You need to think carefully about what sort of documents and information you need. For complicated problems, you might also hire an expert to give an opinion about things like the value of a pension, a tax problem, or the best parenting arrangements for the children. (That last kind of opinion is called a ''parenting assessment'' or a ''section 211 report'', and is usually prepared by a psychologist, clinical counsellor, or social worker. You can get more information about ''reports'' and ''assessments'' in the [[Children and Parenting after Separation]] chapter.) You might also need to exchange bank statements, credit card statements and corporate financial statements. The nature of the documents that are important, the extent of the disclosure that is required, and the type of expert opinions that are most useful will change depending on the circumstances, the legal issues, and how the parties have decided to approach the arbitration process.

Once the relevant documents have been exchanged and any expert opinions have been completed, each party will start to work on how they're going to present their case to the arbitrator and on the documents they'll want to refer the arbitrator to at the hearing. These might include:

*written arguments,
*timelines, charts, financial tables, photographs, videos, and other visual aids,
*summaries of what your witnesses are going to say, called ''will-say statements'',
*affidavits and financial statements,
*binders with the financial and other documents you're going to be asking your witnesses to identify, comment on, or explain, called ''books of documents'', and
*binders with the case law you're going to be asking the arbitrator to consider, called ''books of authorities''.

Sometimes the arbitrator will want the parties to cooperate and prepare other hearing documents together. These might include:

*''statements of agreed facts'', a written summary of the facts both parties agree about, and
*''joint books of documents'', binders with the financial and other documents you will both rely on.

Next, the parties and their lawyers, if they have them, will attend the hearing. Arbitration hearings can take place in the arbitrator's office, a boardroom in a hotel or anywhere else that's private, or even remotely by videoconference, and are usually less formal than court hearings; arbitration processes can be as formal or informal as the parties and the arbitrator want.

At the hearing, each party makes an opening argument describing the evidence that will be given and then presents their evidence. The parties' evidence usually consists of the testimony of witnesses, documents, and affidavits. Each party then makes a closing argument to show the arbitrator why the arbitrator should resolve their dispute in the way they each prefer.

After the hearing process is over, the arbitrator will provide a written decision, called an ''award'', summarizing the evidence and resolving all of the legal issues, and explaining why the arbitrator resolved the issues in the way they resolved them.

====Alternative arbitration processes====

Arbitration processes can be as simple or as complicated as the parties want. The basic arbitration process I've just described looks and feels very much like the process that applies in court. However, it isn't always necessary to have a witness who gives oral evidence, or to have any evidence at all. It isn't always necessary to have oral arguments. Sometimes written arguments alone will do. And, if the parties agree, awards can provide a summary explanation of the arbitrator's decision rather than a full explanation.

Here are some examples of alternative arbitration processes:

*The parties could make their arguments to the arbitrator by telephone or videoconference, with no evidence at all, and the arbitrator giving an oral decision right there on the spot. (This process would be ideal for decisions about a legal question where the facts either don't matter or aren't in dispute. It's also the cheapest and fastest way to get a decision.)
*If evidence is necessary to help the arbitrator make their decision, the parties could make their arguments by telephone or video, and the evidence could be presented by affidavits alone, without the in-person testimony of any witness.
*If an in-person hearing is necessary, the parties could agree that evidence will be provided by affidavit, with the people who made the affidavits being cross-examined by the other person or their lawyer. Or, the parties could agree that only a limited number of witnesses will testify, and that each party will have a limited amount of time to examine and cross-examine each witness.
*If an in-person hearing is necessary and the parties agree to very few of the important facts, the parties could have an arbitration with all the bells and whistles available if they were going to court, with no limits on the number or amount of time for each witness. (This process will take the longest time to wrap up and also cost the most money.)
*Where neither party is represented by a lawyer, the hearing could be in-person but be managed completely by the arbitrator who can explore issues and ask questions. The arbitrator would work with the parties to identify the legal issues in the dispute, and then lead the examination of all of the witnesses.

I have developed a checklist of procedural elements that is helpful for designing arbitration processes, and covers every part of the arbitration process, from deciding whether to have an in-person hearing or a hearing by videoconference, to whether and how experts will be hired, to how evidence will be presented at the hearing. You can download my "Arbitration Rules Pick-List" from the [https://www.boydarbitration.ca/rules-of-procedure website] of John-Paul Boyd Arbitration Chambers.

====Mandatory elements of arbitration processes====

Although arbitration processes are incredibly flexible, there are certain aspects of arbitration that are required in British Columbia.

First, the arbitrator must give each party the opportunity to make their case, and to reply to the case made by the other party. This is a basic element of the Canadian justice system, called either "natural justice" or "fundamental justice," that is required of judges as well as arbitrators.

Second, the arbitrator must treat each party fairly and not be biased in favour of one party over the other. Section 19.8 of the ''[[Family Law Act]]'' says this:

<blockquote><tt>(1) An arbitrator must be independent of the parties.</tt></blockquote>
<blockquote><tt>(2) An arbitrator must be impartial and act impartially.</tt></blockquote>
<blockquote><tt>(3) If a person is approached in connection with the person's possible appointment as an arbitrator, the person must, without delay, disclose any circumstances likely to give rise to justifiable doubts as to the person's independence or impartiality.</tt></blockquote>
<blockquote><tt>(4) An arbitrator, from the time of the arbitrator's appointment and throughout the arbitration, must, without delay, disclose to the parties any circumstances referred to in subsection (3).</tt></blockquote>

Third, when it comes to decisions about children, the arbitrator must consider only the best interests of the children.

Finally, arbitral awards must be given in writing and be signed by the arbitrator.

Otherwise, the parties and their arbitrator are free to be as creative as they want and create the rules and the process that are best-suited to the parties, their children, their dispute, their timeline, and their budget.

===Changing, cancelling and appealing awards===

If you are unhappy with an arbitrator's decision, you might be able to ''appeal'' the arbitrator's award, in the same way that a decision of the Provincial Court can be appealed to the Supreme Court, and a decision of the Supreme Court can be appealed to the Court of Appeal. When you appeal an award, you are arguing that the arbitrator made an important mistake and that, as a result of the arbitrator's mistake, all or some of their award should be cancelled.

There are other reasons why you might ask that an award be cancelled, usually because of flaws in the arbitration process itself. You would only apply to cancel an award you're unhappy with. If you're happy with the award, you're not likely to be concerned about the fairness of the arbitration process.

On the other hand, you might have an award that you're happy with, but no longer works because there's been an important change in your circumstances, the circumstances of the other party or the circumstances of the children. If there has been an important change, you can apply to court to ''vary'' the award, in the same way that the court can vary a court order.

====Changing awards====

Under section 19.18(3) of the [[Family Law Act]], you can apply to the Supreme Court to change, suspend or cancel all or some of an arbitrator's award when there has been an important change in circumstances after the award was made. This is called "varying" an award.

You can apply to vary an award about a particular issue on the same terms as you can apply to vary a court order about that issue. This means that you need to look at the part of the ''Family Law Act'' that applies to varying orders about the particular issue you're dealing with. If your issue is about child support, for example, you need to look at section 152 of the act. Under section 152, the court may vary an order about child support for one of three reasons:

<ol>
<li>if there has been an important change of circumstances since the child support order was made,
<li>if important evidence has come to light that wasn't available at the hearing which resulted in the child support order, or
<li>if a lack of financial disclosure was discovered after the hearing which resulted in the child support order\
</ol>

===Other uses of arbitration===

Arbitration is very helpful in resolving family law problems quickly and efficiently. Parenting coordinators use a process a lot like arbitration to make decisions resolving disagreements when the parents aren't able to find solutions to which they both agree. The flexibility of arbitration also means that people can ask their arbitrator to make a decision based on the rules of a religion, based on grounds of conscience, or based on equity and fairness.

Arbitration can also be used to:

*break logjams in settlement discussions, where only one or two issues can't be agreed upon,
*resolve disagreements about how the law should be interpreted or applied in a particular situation,
*make temporary decisions about support or parenting arrangements while the parties are negotiating a settlement, or
*perform technical calculations, like about the amount of costs payable in a court proceeding, the income of someone who is self-employed, the amount of spousal support payable, or the after-tax cost of children's expenses.

====Faith-based arbitration====

Under section 19.10 of the ''[[Family Law Act]]'', the parties can choose their own law to govern the arbitration process. Nothing in the act says that this law cannot be a religious law. Judaism and Islam, for example, each have religious laws that can apply to family law disputes for members of those faiths. Members of the orthodox Jewish community may use Halakha to settle personal disputes. Muslims can use Sharia law for the same purpose.

Whatever rules a couple chooses, however, the result of an arbitration cannot be "inconsistent" with the ''Family Law Act'' or the ''[[Divorce Act]]''. Section 19.20 of the ''Family Law Act'' says this:

<blockquote><tt>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.</tt></blockquote>

This means, for example, that child support must be paid to the person who has the child most of the time by the person who has the child for the least amount of time, and that the amount of support paid cannot be too different from what the [[Child Support Guidelines]] require. It also means that a particular person shouldn't have the primary residence of a child merely because of their gender, the age of the child or some other arbitrary reason.

Note that if the parties to faith-based arbitration wish to obtain a divorce, they must still start a court proceeding in the Supreme Court of British Columbia for a divorce order. A religious divorce, such as the Jewish Get, is not a legal divorce.

====Parenting coordination====

Parenting coordination uses a process that includes a decision-making function that's a lot like arbitration. In parenting coordination, the arbitrator is called a ''parenting coordinator'' and first tries to settle a dispute about parenting through a settlement process like mediation. If the parents cannot find consensus, however, the parenting coordinator acts like an arbitrator and makes a written decision, called a ''determination'', resolving the dispute. The parenting coordinator's authority to resolve these disputes comes from the participation agreement the parents sign, in this case called a ''parenting coordination agreement''.

As with faith-based arbitration, or any other kind of family law arbitration for that matter, the parenting coordinator cannot make determinations that are inconsistent with the ''[[Family Law Act]]''. However, parenting coordinators are subject to additional restrictions in the scope of the things they can make decisions about. Under section 6(3) and (4)(a)(ix) of the [http://canlii.ca/t/8rdx Family Law Act Regulation], parenting coordinators can make determinations about parenting arrangements, contact with a child, and other issues agreed to by the parties and the parenting coordinator. However, regardless of whatever the parties and the parenting coordinator may have agreed to, a parenting coordinator may ''not'' make decisions about:

*legal issues that are excluded by an order or a parenting coordination agreement,
*changes to the guardianship of a child,
*changes to the allocation of parental responsibilities,
*giving parenting time or contact to a person who does not already have parenting time or contact,
*substantial changes to parenting time or contact, or
*the relocation of a child.

There's a lot more information about parenting coordination in the [[Parenting_Coordination|next section]] of this chapter.

==When to use arbitration==

There are lots of good reasons to use arbitration rather than go to court. It's fast and efficient, the rules that govern the process are extremely flexible, it's confidential and private, and you get to pick a judge who is an expert in not just family law but the aspects of the law that are the most important in your case. There are, however, only a few circumstances that make arbitration a necessary choice over mediation, collaborative negotiation, or litigation. Typically, people will choose to arbitrate their dispute if:

*they want the laws of their religion or another set of legal, moral or ethical principles to apply to their dispute,
*their positions are too far apart to make negotiation or mediation a reasonable option and must have a decision made for them, but don't want to go to the expense, anxiety, and acrimony typically involved in going to court,
*they want to resolve their dispute discreetly and privately, and don't want to risk their personal business being made public,
*the legal issues are complex and demand a decision-maker who is a specialist in those issues, or
*they want their dispute resolved more quickly than the court schedule will allow.

It's important to understand that while arbitrators can make awards on all of the usual family law issues — including parenting arrangements, contact, child support, spousal support, and the division of property and debt — arbitrators cannot make awards on certain issues that can only be decided by a judge. These include:

*divorce orders and annulments,
*orders appointing someone as the guardian of a child who is not a parent of that child,
*declarations about who is, and who is not, the parent of a child, unless the declaration is necessary to resolve an issue that is within the arbitrator's jurisdiction, and
*orders changing the order of a judge.

==How to find a family law arbitrator==

Finding a family law arbitrator can sometimes be the hard part about taking your problem to arbitration, as there aren't too many arbitrators who specialize in family law issues. Your first and best bet is to speak to a family law lawyer and see who they might recommend to you. (Most lawyers will have a list of three of four arbitrators who they've used in the past and like working with.) You might also do an internet search for "family law arbitrator British Columbia," as lawyers who work as family law arbitrators will describe themselves this way and take pains to indicate in which jurisdiction they work. You could also contact organizations which specialize in providing legal education and developing out-of-court dispute resolution processes, including:

*[https://www.adrbc.com the ADR Institute of British Columbia], and
*[http://www.labour-arbitrators.ca the Arbitrators Association of British Columbia].

(Be warned, however, that there are lots of accredited family law arbitrators who may not have decided to pay the money to join these organizations.) Finally, you could call the Canadian Bar Association's [http://www.clicklaw.bc.ca/helpmap/service/1044 Lawyer Referral Service]. Although the service can't recommend one family law arbitrator over another, they'll at least be able to give you some names.

==Resources and links==

===Legislation===

* ''[https://canlii.ca/t/551f9 Divorce Act]''
* ''[https://canlii.ca/t/8q3k Family Law Act]''
* [https://canlii.ca/t/8rdx Family Law Act Regulation]
* [https://canlii.ca/t/80mh Federal Child Support Guidelines]

===Links===

* [https://www.adrbc.com The ADR Institute of British Columbia]
* [https://adric.ca/ The ADR Institute of Canada]
* [http://www.labour-arbitrators.ca The Arbitrators Association of British Columbia]
* [http://www.clicklaw.bc.ca/helpmap/service/1044 Lawyer Referral Service]
* [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society]
* [https://www.boydarbitration.ca/library John-Paul Boyd Arbitration Chambers] Library
* [https://www.boydarbitration.ca/rules-of-procedure John-Paul Boyd Arbitration Chamber] Arbitration Procedure
* [https://www.lawsociety.bc.ca/ The Law Society of BC]
* [https://www.clicklaw.bc.ca/resource/4616 Resolving Disputes Without Going to Court] from Dial-a-Law by the People's Law School
* [https://www.clicklaw.bc.ca/resource/4191 Settling out of Court] from the Justice Education Society of BC
* [https://www.clicklaw.bc.ca/resource/1253 Mediation, collaborative negotiation, and arbitration] from Dial-a-Law by the People's Law School

===Resources===

*Arbitration [[Media:Arbitration procedure pick-list - fillable.pdf|procedure pick-list]] (fillable PDF)
*Sample arbitration [[Media:Arbitration Agreement - PDF.pdf|participation agreement]] (PDF) in cases where the parties are represented by lawyers.
*Sample arbitration [[Media:Arbitration Agreement - Self-Rep - PDF.pdf|participation agreement]] (PDF) in cases where the parties are not represented by lawyers.

These sample participation agreements may not resemble the participation agreement you are asked to sign. They provide a more or less accurate picture of what arbitration participation agreements usually look like, but should be used as a reference only.

You can also look at the website of [https://www.boydarbitration.ca/participationagreements John-Paul Boyd Arbitration Chambers] which provides a number of model participation agreements for download.

* [https://www.clicklaw.bc.ca/resource/4452 "An Evaluation of the Cost of Family Law Disputes: Measuring the Cost Implication of Various Dispute Resolution Methods" PDF] from Canadian Research Institute for Law and the Family
* [https://www.clicklaw.bc.ca/resource/1497 "Alternatives to Going to Court" PDF] from the Justice Education Society of BC

{{REVIEWED | reviewer = [[JP Boyd]], 25 August 2021}}

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[[Category:JP Boyd on Family Law]]

Family Law Arbitration

2023-04-18T22:53:20Z

Jpboyd: /* Changing and appealing awards */

{{JP Boyd on Family Law TOC|expanded = outofcourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[JP Boyd]]
}}Arbitration is a dispute resolution process in which the parties hire a neutral third party, an ''arbitrator'', to make decisions resolving some or all of the legal issues in their dispute. While the job of a mediator is to help people work toward their own resolution of their family law dispute, the arbitrator's job is to act like a judge and make a decision resolving a legal dispute, after hearing the evidence and listening to the arguments of each party.

People who work as arbitrators are usually trained professionals who qualify as "family law dispute resolution professionals" under the ''[[Family Law Act]]'', meaning that they have the experience and education required by the [https://canlii.ca/t/5539g Family Law Act Regulation]. Lawyers who are "family law arbitrators" are specially accredited to arbitrate family law disputes by the [http://www.lawsociety.bc.ca Law Society of British Columbia].

This section provides an introduction to arbitration and discusses when to use arbitration in a family law dispute. It also provides some suggestions about how to find a family law arbitrator.

==Introduction==

Like mediation and collaborative negotiation, arbitration is a voluntary process. The parties to a dispute must all ''agree'' to use arbitration to resolve their legal dispute. Like those processes, arbitration is also an out-of-court way of resolving problems. However, that's where the similarities between arbitration, mediation and collaborative negotiation end. While the parties to a dispute may have agreed to use arbitration to resolve their dispute, it's the ''arbitrator'' who resolves their dispute, not the parties themselves.

Before the new ''[[Family Law Act]]'' became law in British Columbia, arbitration was rarely used in family law disputes. Arbitration was most frequently used in the context of commercial, labour, and construction disputes. In other places, such as Ontario and Alberta, the arbitration of family law disputes is well-established and has been for some time. The ''Family Law Act'', however, made a number of changes to the law that improved the usefulness of arbitration for family law disputes in British Columbia, and the number of people choosing arbitration over going to court has been increasing as a result.

Arbitration offers a number of advantages for resolving family law problems:

*it allows the parties to hand-pick the person who will make decisions about the issues they cannot agree on, which means that they might pick an arbitrator who is not just an expert family law lawyer, but an expert family law lawyer with special knowledge of a specific issue, like parenting children, tax problems, or property division,
*it allows the parties to pick the rules that will apply to the hearing and the decision-making process,
*arbitration resolves disputes much faster than going to court,
*the arbitration process is private, confidential, and closed to the public, and
*the result of the process is an arbitrator's award that is just as binding as a court order and is enforceable just like a court order.

As well, it's often faster to get a date for an arbitration hearing than it is for a court hearing. Although short trials of two or three days can usually be booked within ten to twelve months, it can take a year or more to get a date for longer trials because the court is so busy. An arbitration hearing can be booked as soon as everyone has free time in their calendars.

People can start arbitration right off the bat, as soon as a legal problem has come up, or they can use it to resolve a court proceeding as an alternative to trial. The result of a successful process of arbitration is an arbitrator's ''award''. If litigation has already started, the award can be turned into an order that the parties agree the court will make, called a ''consent order''. If the parties are married, a consent order may make more sense since they'll usually want an order for their divorce at the same time as they're wrapping everything else up.

The parties can meet with their arbitrator on their own or with their lawyers. As an arbitrator, I always appreciate having the parties' lawyers present. I recognize that having the lawyers at the arbitration hearing costs the parties more money, but the lawyers are intimately familiar with how to write briefs, make legal arguments and present evidence, and arbitration hearings with lawyers are usually much shorter than hearings without lawyers. However, there is no rule that you must have a lawyer represent you in arbitration, just like there's no rule that you must have a lawyer represent you in litigation.

The arbitrator has no stake in how the arbitration turns out. The arbitrator must be neutral and have no bias in favour of either party. Most of the time, the arbitrator should have no special connection — business, personal or otherwise — with either party, and the arbitrator must make sure that all parties are aware of any such special connections before they agree to hire the arbitrator.

==Working with "family law arbitrators" under the ''Family Law Act''==

An arbitrator who qualifies as a "family dispute resolution professional" under the ''[[Family Law Act]]'' must meet the requirements set out in the [http://canlii.ca/t/8rdx Family Law Act Regulation]. Section 5 of the regulation says that:

<blockquote><tt>(1) Only an arbitrator who is qualified as a family dispute resolution professional may conduct an arbitration in relation to a family law dispute.</tt></blockquote>

Lawyers who qualify as ''family law arbitrators'' meet the training requirements of, and are accredited by, the Law Society of British Columbia. You can find out if a lawyer is a "family law arbitrator" by looking the lawyer up in the [https://www.lawsociety.bc.ca/lsbc/apps/lkup/mbr-search.cfm Lawyer Directory] on the Law Society's website. The training requirements that professionals other than lawyers must meet to qualify as "family dispute resolution professionals" are set out in section 5(2)(b) of the Family Law Act Regulation, and include:

*being a member in good standing with specific organizations,
*meeting specific educational and experiential requirements, including at least 10 years' experience in family-related practice,
*taking continuing family dispute resolution training, and
*carrying professional liability insurance.

It's important to know that, under section 5(3) of the regulation, people other than lawyers may only arbitrate disputes dealing with ''parenting children'', including contact with a child, and ''child support''. However, they can only deal with child support if:

*all of the children are under 19 years of age,
*none of the payor's income is self-employment income or partnership income,
*the payor's income is less than $150,000 per year, and
*the [[Child Support Guidelines]] tables are being used to calculate the basic child support amount.

As well, if children's special or extraordinary expenses are an issue that is to be resolved by an arbitrator who is not a lawyer, section 5(3)(c)(v) says that "the determination of what those expenses are and how they are to be calculated" must be "straightforward."

Section 5 of the regulation imposes two extra duties on arbitrators who are family dispute resolution professionals: they must use written participation agreements; and, they must provide the parties with confirmation that they qualify as family dispute resolution professionals. Section 5(4) says this:

<blockquote><tt>(4) The following practice standards apply to a family dispute resolution professional who wishes to engage in arbitration in relation to a family law dispute:</tt></blockquote>
<blockquote><blockquote><tt>(a) before initiating arbitration, he or she must enter into a written agreement to arbitrate with the parties to the family law dispute;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) before initiating arbitration, he or she must provide written confirmation to the parties to the family law dispute that he or she meets the professional requirements set out in subsection (2).</tt></blockquote></blockquote>

==The arbitration process==

These are the steps involved in the basic arbitration process.

*'''Pick your arbitrator.''' Your lawyer will have the names of three or four arbitrators they prefer to work with. If you don't have a lawyer, you can look at the membership lists of organizations like the [http://adric.ca ADR Institute of Canada], although many accredited family law arbitrators may not have decided to spend the money to join those organizations.
*'''Sign the arbitrator's participation agreement.''' This is a contract that describes your responsibilities and the responsibilities of your arbitrator, and how the arbitrator will be paid. It also requires you to agree to be bound by the result of the arbitration.
*'''Prepare for and attend the prehearing conference.''' This is a meeting during which the parties, their lawyers and the arbitrator will make decisions about how the arbitration will work, including the rules for the hearing, the place and date of the hearing, and the legal issues to be resolved at the hearing.
*'''Prepare your case.''' Start working on your case by researching the law and thinking about the evidence you need to prove your case.
*'''Complete discovery and disclosure.''' This is a process in which you and the other party or parties will exchange documents and information that are relevant to the legal issues in your dispute, such as income tax returns if child support or spousal support is one of those issues.
*'''Exchange the documents you're going to use at the hearing.''' These documents might include written arguments, financial statements or summaries of what your witnesses are going to say.
*'''Attend the hearing.''' An arbitration hearing is the equivalent of a trial, but with special rules and shorter processes. Sometimes you may attend by teleconference or videoconference rather than in person.
*'''Receive the arbitrator's decision.''' The arbitrator will prepare their decision, and the reasons for their decision, in a written document called an award. Most arbitrators try to get their awards to the parties as soon as possible, but it can sometimes take a long time to finish a decision, especially if the evidence presented at the hearing was unusually complicated.
*'''Review the award and ask for corrections.''' You have 30 days after you get the arbitrator's award to ask the arbitrator to correct any typos and other mistakes, and to ask the arbitrator to explain specific parts of their award.

Under section 19.16 of the ''[[Family Law Act]]'', an arbitration is over when:

#the arbitrator has delivered their final award and the time to correct the arbitrator's decision has passed;
#the parties agree to end the arbitration; or,
#the arbitrator makes an order that it is "unnecessary or impossible" to continue the arbitration.

===Starting arbitration===

There are only two ways you can get your family law problem into arbitration.

First, you might have a family law agreement — like a cohabitation agreement, a marriage agreement, or a separation agreement — which says that any disputes or questions about the agreement, or the subjects the agreement covers, will be resolved through arbitration.

Second, you might agree, after a problem has arisen, that you'll go to arbitration instead of going to court, or instead of another process like mediation or collaborative negotiation. You can even agree to resolve a dispute through arbitration after a court proceeding has started. A lot of people decide to do this when they find out how far away their trial is scheduled to start, and when they find out that there's no guarantee that they'll get a judge who is an expert in resolving family law disputes.

You cannot force someone into arbitration, including by asking for a court order that you go to arbitration. Even though section 224(1) of the ''[[Family Law Act]]'' says that "a court may make an order to ... require the parties to participate in family dispute resolution," the court will not make an order that someone go to arbitration. Resolving a dispute through arbitration has to be voluntary, either because you've already agreed to use arbitration ''if'' a problem comes up or because you've agreed to use arbitration ''after'' the problem has come up.

===Arbitration processes===

When people agree or are required to arbitrate their dispute, they first pick their arbitrator. The arbitrator you choose should be someone who is an expert in family law, and perhaps even an expert in family law with special knowledge or skills concerning the most important issues in your dispute. You probably want to choose someone who has a lot of experience as an arbitrator, someone who has a good reputation in the legal community, and, most importantly, someone you see as being neutral, fair-minded and unbiased.

After picking the arbitrator, the arbitrator will ask the parties to sign a participation agreement, usually called an ''arbitration agreement.'' This agreement does three things. First, it serves as the arbitrator's retainer agreement and describes how the arbitrator will charge for their services and when they will expect to be paid. (You can read more about retainer agreements in the [[Understanding the Legal System for Family Law Matters]] chapter, in the [[You and Your Lawyer]] section.) Second, it describes the parties' rights and responsibilities in the process, as well as the responsibilities of the arbitrator and the scope of their authority. Third, it identifies the legal issues the arbitrator will address.

The next step is to meet with the arbitrator to discuss the process leading to the arbitration hearing, decide the date and place for the hearing, and pick the rules that will govern the hearing. This meeting is called a ''prehearing conference'', and picking the rules that will govern the hearing is sometimes the most important part of the arbitration process. A lot of the time, the rules that people select are taken from the more important parts of the [https://canlii.ca/t/8mcr Supreme Court Family Rules] that talk about evidence, experts, and hearing procedures. However, there are lots of other options. People can pick the rules that best suit the circumstances of their children, the nature of their dispute, and the status of their finances. It's important to be as thoughtful as possible in deciding what rules are necessary. Arbitration can look just like going to court, but it doesn't have to. It can be a lot more focused, a lot more efficient, and a lot faster.

How the arbitration process works after the prehearing conference will depend on the rules you've picked.

====The basic arbitration process====

Most of the time, the next step after the prehearing conference involves exchanging the documents and information that are relevant to the legal issues in the dispute. If child support is an issue, for example, financial statements might be prepared and documents like income tax returns, T4 slips, and paystubs might be exchanged. If property is an issue, you might need tax assessments, purchase documents, mortgage statements, and maybe a professional appraisal of the current value of the property.

You need to think carefully about what sort of documents and information you need. For complicated problems, you might also hire an expert to give an opinion about things like the value of a pension, a tax problem, or the best parenting arrangements for the children. (That last kind of opinion is called a ''parenting assessment'' or a ''section 211 report'', and is usually prepared by a psychologist, clinical counsellor, or social worker. You can get more information about ''reports'' and ''assessments'' in the [[Children and Parenting after Separation]] chapter.) You might also need to exchange bank statements, credit card statements and corporate financial statements. The nature of the documents that are important, the extent of the disclosure that is required, and the type of expert opinions that are most useful will change depending on the circumstances, the legal issues, and how the parties have decided to approach the arbitration process.

Once the relevant documents have been exchanged and any expert opinions have been completed, each party will start to work on how they're going to present their case to the arbitrator and on the documents they'll want to refer the arbitrator to at the hearing. These might include:

*written arguments,
*timelines, charts, financial tables, photographs, videos, and other visual aids,
*summaries of what your witnesses are going to say, called ''will-say statements'',
*affidavits and financial statements,
*binders with the financial and other documents you're going to be asking your witnesses to identify, comment on, or explain, called ''books of documents'', and
*binders with the case law you're going to be asking the arbitrator to consider, called ''books of authorities''.

Sometimes the arbitrator will want the parties to cooperate and prepare other hearing documents together. These might include:

*''statements of agreed facts'', a written summary of the facts both parties agree about, and
*''joint books of documents'', binders with the financial and other documents you will both rely on.

Next, the parties and their lawyers, if they have them, will attend the hearing. Arbitration hearings can take place in the arbitrator's office, a boardroom in a hotel or anywhere else that's private, or even remotely by videoconference, and are usually less formal than court hearings; arbitration processes can be as formal or informal as the parties and the arbitrator want.

At the hearing, each party makes an opening argument describing the evidence that will be given and then presents their evidence. The parties' evidence usually consists of the testimony of witnesses, documents, and affidavits. Each party then makes a closing argument to show the arbitrator why the arbitrator should resolve their dispute in the way they each prefer.

After the hearing process is over, the arbitrator will provide a written decision, called an ''award'', summarizing the evidence and resolving all of the legal issues, and explaining why the arbitrator resolved the issues in the way they resolved them.

====Alternative arbitration processes====

Arbitration processes can be as simple or as complicated as the parties want. The basic arbitration process I've just described looks and feels very much like the process that applies in court. However, it isn't always necessary to have a witness who gives oral evidence, or to have any evidence at all. It isn't always necessary to have oral arguments. Sometimes written arguments alone will do. And, if the parties agree, awards can provide a summary explanation of the arbitrator's decision rather than a full explanation.

Here are some examples of alternative arbitration processes:

*The parties could make their arguments to the arbitrator by telephone or videoconference, with no evidence at all, and the arbitrator giving an oral decision right there on the spot. (This process would be ideal for decisions about a legal question where the facts either don't matter or aren't in dispute. It's also the cheapest and fastest way to get a decision.)
*If evidence is necessary to help the arbitrator make their decision, the parties could make their arguments by telephone or video, and the evidence could be presented by affidavits alone, without the in-person testimony of any witness.
*If an in-person hearing is necessary, the parties could agree that evidence will be provided by affidavit, with the people who made the affidavits being cross-examined by the other person or their lawyer. Or, the parties could agree that only a limited number of witnesses will testify, and that each party will have a limited amount of time to examine and cross-examine each witness.
*If an in-person hearing is necessary and the parties agree to very few of the important facts, the parties could have an arbitration with all the bells and whistles available if they were going to court, with no limits on the number or amount of time for each witness. (This process will take the longest time to wrap up and also cost the most money.)
*Where neither party is represented by a lawyer, the hearing could be in-person but be managed completely by the arbitrator who can explore issues and ask questions. The arbitrator would work with the parties to identify the legal issues in the dispute, and then lead the examination of all of the witnesses.

I have developed a checklist of procedural elements that is helpful for designing arbitration processes, and covers every part of the arbitration process, from deciding whether to have an in-person hearing or a hearing by videoconference, to whether and how experts will be hired, to how evidence will be presented at the hearing. You can download my "Arbitration Rules Pick-List" from the [https://www.boydarbitration.ca/rules-of-procedure website] of John-Paul Boyd Arbitration Chambers.

====Mandatory elements of arbitration processes====

Although arbitration processes are incredibly flexible, there are certain aspects of arbitration that are required in British Columbia.

First, the arbitrator must give each party the opportunity to make their case, and to reply to the case made by the other party. This is a basic element of the Canadian justice system, called either "natural justice" or "fundamental justice," that is required of judges as well as arbitrators.

Second, the arbitrator must treat each party fairly and not be biased in favour of one party over the other. Section 19.8 of the ''[[Family Law Act]]'' says this:

<blockquote><tt>(1) An arbitrator must be independent of the parties.</tt></blockquote>
<blockquote><tt>(2) An arbitrator must be impartial and act impartially.</tt></blockquote>
<blockquote><tt>(3) If a person is approached in connection with the person's possible appointment as an arbitrator, the person must, without delay, disclose any circumstances likely to give rise to justifiable doubts as to the person's independence or impartiality.</tt></blockquote>
<blockquote><tt>(4) An arbitrator, from the time of the arbitrator's appointment and throughout the arbitration, must, without delay, disclose to the parties any circumstances referred to in subsection (3).</tt></blockquote>

Third, when it comes to decisions about children, the arbitrator must consider only the best interests of the children.

Finally, arbitral awards must be given in writing and be signed by the arbitrator.

Otherwise, the parties and their arbitrator are free to be as creative as they want and create the rules and the process that are best-suited to the parties, their children, their dispute, their timeline, and their budget.

===Changing, cancelling and appealing awards===

If you are unhappy with an arbitrator's decision, you might be able to ''appeal'' the arbitrator's award, in the same way that a decision of the Provincial Court can be appealed to the Supreme Court, and a decision of the Supreme Court can be appealed to the Court of Appeal. When you appeal an award, you are arguing that the arbitrator made an important mistake and that, as a result of the arbitrator's mistake, all or some of their award should be cancelled.

There are other reasons why you might ask that an award be cancelled, usually because of flaws in the arbitration process itself. You would only apply to cancel an award you're unhappy with. If you're happy with the award, you're not likely to be concerned about the fairness of the arbitration process.

On the other hand, you might have an award that you're happy with, but no longer works because there's been an important change in your circumstances, the circumstances of the other party or the circumstances of the children. If there has been an important change, you can apply to court to ''vary'' the award, in the same way that the court can vary a court order.

====Changing awards====

Under section 19.18(3) of the [[Family Law Act]], you can apply to the Supreme Court to change, suspend or cancel all or some of an arbitrator's award when there has been an imoprtant change in circumstances after the award was made. This is called "varying" an award.

You can apply to vary an award on the same terms as you can apply to vary a court order.

===Other uses of arbitration===

Arbitration is very helpful in resolving family law problems quickly and efficiently. Parenting coordinators use a process a lot like arbitration to make decisions resolving disagreements when the parents aren't able to find solutions to which they both agree. The flexibility of arbitration also means that people can ask their arbitrator to make a decision based on the rules of a religion, based on grounds of conscience, or based on equity and fairness.

Arbitration can also be used to:

*break logjams in settlement discussions, where only one or two issues can't be agreed upon,
*resolve disagreements about how the law should be interpreted or applied in a particular situation,
*make temporary decisions about support or parenting arrangements while the parties are negotiating a settlement, or
*perform technical calculations, like about the amount of costs payable in a court proceeding, the income of someone who is self-employed, the amount of spousal support payable, or the after-tax cost of children's expenses.

====Faith-based arbitration====

Under section 19.10 of the ''[[Family Law Act]]'', the parties can choose their own law to govern the arbitration process. Nothing in the act says that this law cannot be a religious law. Judaism and Islam, for example, each have religious laws that can apply to family law disputes for members of those faiths. Members of the orthodox Jewish community may use Halakha to settle personal disputes. Muslims can use Sharia law for the same purpose.

Whatever rules a couple chooses, however, the result of an arbitration cannot be "inconsistent" with the ''Family Law Act'' or the ''[[Divorce Act]]''. Section 19.20 of the ''Family Law Act'' says this:

<blockquote><tt>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.</tt></blockquote>

This means, for example, that child support must be paid to the person who has the child most of the time by the person who has the child for the least amount of time, and that the amount of support paid cannot be too different from what the [[Child Support Guidelines]] require. It also means that a particular person shouldn't have the primary residence of a child merely because of their gender, the age of the child or some other arbitrary reason.

Note that if the parties to faith-based arbitration wish to obtain a divorce, they must still start a court proceeding in the Supreme Court of British Columbia for a divorce order. A religious divorce, such as the Jewish Get, is not a legal divorce.

====Parenting coordination====

Parenting coordination uses a process that includes a decision-making function that's a lot like arbitration. In parenting coordination, the arbitrator is called a ''parenting coordinator'' and first tries to settle a dispute about parenting through a settlement process like mediation. If the parents cannot find consensus, however, the parenting coordinator acts like an arbitrator and makes a written decision, called a ''determination'', resolving the dispute. The parenting coordinator's authority to resolve these disputes comes from the participation agreement the parents sign, in this case called a ''parenting coordination agreement''.

As with faith-based arbitration, or any other kind of family law arbitration for that matter, the parenting coordinator cannot make determinations that are inconsistent with the ''[[Family Law Act]]''. However, parenting coordinators are subject to additional restrictions in the scope of the things they can make decisions about. Under section 6(3) and (4)(a)(ix) of the [http://canlii.ca/t/8rdx Family Law Act Regulation], parenting coordinators can make determinations about parenting arrangements, contact with a child, and other issues agreed to by the parties and the parenting coordinator. However, regardless of whatever the parties and the parenting coordinator may have agreed to, a parenting coordinator may ''not'' make decisions about:

*legal issues that are excluded by an order or a parenting coordination agreement,
*changes to the guardianship of a child,
*changes to the allocation of parental responsibilities,
*giving parenting time or contact to a person who does not already have parenting time or contact,
*substantial changes to parenting time or contact, or
*the relocation of a child.

There's a lot more information about parenting coordination in the [[Parenting_Coordination|next section]] of this chapter.

==When to use arbitration==

There are lots of good reasons to use arbitration rather than go to court. It's fast and efficient, the rules that govern the process are extremely flexible, it's confidential and private, and you get to pick a judge who is an expert in not just family law but the aspects of the law that are the most important in your case. There are, however, only a few circumstances that make arbitration a necessary choice over mediation, collaborative negotiation, or litigation. Typically, people will choose to arbitrate their dispute if:

*they want the laws of their religion or another set of legal, moral or ethical principles to apply to their dispute,
*their positions are too far apart to make negotiation or mediation a reasonable option and must have a decision made for them, but don't want to go to the expense, anxiety, and acrimony typically involved in going to court,
*they want to resolve their dispute discreetly and privately, and don't want to risk their personal business being made public,
*the legal issues are complex and demand a decision-maker who is a specialist in those issues, or
*they want their dispute resolved more quickly than the court schedule will allow.

It's important to understand that while arbitrators can make awards on all of the usual family law issues — including parenting arrangements, contact, child support, spousal support, and the division of property and debt — arbitrators cannot make awards on certain issues that can only be decided by a judge. These include:

*divorce orders and annulments,
*orders appointing someone as the guardian of a child who is not a parent of that child,
*declarations about who is, and who is not, the parent of a child, unless the declaration is necessary to resolve an issue that is within the arbitrator's jurisdiction, and
*orders changing the order of a judge.

==How to find a family law arbitrator==

Finding a family law arbitrator can sometimes be the hard part about taking your problem to arbitration, as there aren't too many arbitrators who specialize in family law issues. Your first and best bet is to speak to a family law lawyer and see who they might recommend to you. (Most lawyers will have a list of three of four arbitrators who they've used in the past and like working with.) You might also do an internet search for "family law arbitrator British Columbia," as lawyers who work as family law arbitrators will describe themselves this way and take pains to indicate in which jurisdiction they work. You could also contact organizations which specialize in providing legal education and developing out-of-court dispute resolution processes, including:

*[https://www.adrbc.com the ADR Institute of British Columbia], and
*[http://www.labour-arbitrators.ca the Arbitrators Association of British Columbia].

(Be warned, however, that there are lots of accredited family law arbitrators who may not have decided to pay the money to join these organizations.) Finally, you could call the Canadian Bar Association's [http://www.clicklaw.bc.ca/helpmap/service/1044 Lawyer Referral Service]. Although the service can't recommend one family law arbitrator over another, they'll at least be able to give you some names.

==Resources and links==

===Legislation===

* ''[https://canlii.ca/t/551f9 Divorce Act]''
* ''[https://canlii.ca/t/8q3k Family Law Act]''
* [https://canlii.ca/t/8rdx Family Law Act Regulation]
* [https://canlii.ca/t/80mh Federal Child Support Guidelines]

===Links===

* [https://www.adrbc.com The ADR Institute of British Columbia]
* [https://adric.ca/ The ADR Institute of Canada]
* [http://www.labour-arbitrators.ca The Arbitrators Association of British Columbia]
* [http://www.clicklaw.bc.ca/helpmap/service/1044 Lawyer Referral Service]
* [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society]
* [https://www.boydarbitration.ca/library John-Paul Boyd Arbitration Chambers] Library
* [https://www.boydarbitration.ca/rules-of-procedure John-Paul Boyd Arbitration Chamber] Arbitration Procedure
* [https://www.lawsociety.bc.ca/ The Law Society of BC]
* [https://www.clicklaw.bc.ca/resource/4616 Resolving Disputes Without Going to Court] from Dial-a-Law by the People's Law School
* [https://www.clicklaw.bc.ca/resource/4191 Settling out of Court] from the Justice Education Society of BC
* [https://www.clicklaw.bc.ca/resource/1253 Mediation, collaborative negotiation, and arbitration] from Dial-a-Law by the People's Law School

===Resources===

*Arbitration [[Media:Arbitration procedure pick-list - fillable.pdf|procedure pick-list]] (fillable PDF)
*Sample arbitration [[Media:Arbitration Agreement - PDF.pdf|participation agreement]] (PDF) in cases where the parties are represented by lawyers.
*Sample arbitration [[Media:Arbitration Agreement - Self-Rep - PDF.pdf|participation agreement]] (PDF) in cases where the parties are not represented by lawyers.

These sample participation agreements may not resemble the participation agreement you are asked to sign. They provide a more or less accurate picture of what arbitration participation agreements usually look like, but should be used as a reference only.

You can also look at the website of [https://www.boydarbitration.ca/participationagreements John-Paul Boyd Arbitration Chambers] which provides a number of model participation agreements for download.

* [https://www.clicklaw.bc.ca/resource/4452 "An Evaluation of the Cost of Family Law Disputes: Measuring the Cost Implication of Various Dispute Resolution Methods" PDF] from Canadian Research Institute for Law and the Family
* [https://www.clicklaw.bc.ca/resource/1497 "Alternatives to Going to Court" PDF] from the Justice Education Society of BC

{{REVIEWED | reviewer = [[JP Boyd]], 25 August 2021}}

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[[Category:JP Boyd on Family Law]]

Family Law Arbitration

2023-04-18T22:35:54Z

Jpboyd: /* The arbitration process */

{{JP Boyd on Family Law TOC|expanded = outofcourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[JP Boyd]]
}}Arbitration is a dispute resolution process in which the parties hire a neutral third party, an ''arbitrator'', to make decisions resolving some or all of the legal issues in their dispute. While the job of a mediator is to help people work toward their own resolution of their family law dispute, the arbitrator's job is to act like a judge and make a decision resolving a legal dispute, after hearing the evidence and listening to the arguments of each party.

People who work as arbitrators are usually trained professionals who qualify as "family law dispute resolution professionals" under the ''[[Family Law Act]]'', meaning that they have the experience and education required by the [https://canlii.ca/t/5539g Family Law Act Regulation]. Lawyers who are "family law arbitrators" are specially accredited to arbitrate family law disputes by the [http://www.lawsociety.bc.ca Law Society of British Columbia].

This section provides an introduction to arbitration and discusses when to use arbitration in a family law dispute. It also provides some suggestions about how to find a family law arbitrator.

==Introduction==

Like mediation and collaborative negotiation, arbitration is a voluntary process. The parties to a dispute must all ''agree'' to use arbitration to resolve their legal dispute. Like those processes, arbitration is also an out-of-court way of resolving problems. However, that's where the similarities between arbitration, mediation and collaborative negotiation end. While the parties to a dispute may have agreed to use arbitration to resolve their dispute, it's the ''arbitrator'' who resolves their dispute, not the parties themselves.

Before the new ''[[Family Law Act]]'' became law in British Columbia, arbitration was rarely used in family law disputes. Arbitration was most frequently used in the context of commercial, labour, and construction disputes. In other places, such as Ontario and Alberta, the arbitration of family law disputes is well-established and has been for some time. The ''Family Law Act'', however, made a number of changes to the law that improved the usefulness of arbitration for family law disputes in British Columbia, and the number of people choosing arbitration over going to court has been increasing as a result.

Arbitration offers a number of advantages for resolving family law problems:

*it allows the parties to hand-pick the person who will make decisions about the issues they cannot agree on, which means that they might pick an arbitrator who is not just an expert family law lawyer, but an expert family law lawyer with special knowledge of a specific issue, like parenting children, tax problems, or property division,
*it allows the parties to pick the rules that will apply to the hearing and the decision-making process,
*arbitration resolves disputes much faster than going to court,
*the arbitration process is private, confidential, and closed to the public, and
*the result of the process is an arbitrator's award that is just as binding as a court order and is enforceable just like a court order.

As well, it's often faster to get a date for an arbitration hearing than it is for a court hearing. Although short trials of two or three days can usually be booked within ten to twelve months, it can take a year or more to get a date for longer trials because the court is so busy. An arbitration hearing can be booked as soon as everyone has free time in their calendars.

People can start arbitration right off the bat, as soon as a legal problem has come up, or they can use it to resolve a court proceeding as an alternative to trial. The result of a successful process of arbitration is an arbitrator's ''award''. If litigation has already started, the award can be turned into an order that the parties agree the court will make, called a ''consent order''. If the parties are married, a consent order may make more sense since they'll usually want an order for their divorce at the same time as they're wrapping everything else up.

The parties can meet with their arbitrator on their own or with their lawyers. As an arbitrator, I always appreciate having the parties' lawyers present. I recognize that having the lawyers at the arbitration hearing costs the parties more money, but the lawyers are intimately familiar with how to write briefs, make legal arguments and present evidence, and arbitration hearings with lawyers are usually much shorter than hearings without lawyers. However, there is no rule that you must have a lawyer represent you in arbitration, just like there's no rule that you must have a lawyer represent you in litigation.

The arbitrator has no stake in how the arbitration turns out. The arbitrator must be neutral and have no bias in favour of either party. Most of the time, the arbitrator should have no special connection — business, personal or otherwise — with either party, and the arbitrator must make sure that all parties are aware of any such special connections before they agree to hire the arbitrator.

==Working with "family law arbitrators" under the ''Family Law Act''==

An arbitrator who qualifies as a "family dispute resolution professional" under the ''[[Family Law Act]]'' must meet the requirements set out in the [http://canlii.ca/t/8rdx Family Law Act Regulation]. Section 5 of the regulation says that:

<blockquote><tt>(1) Only an arbitrator who is qualified as a family dispute resolution professional may conduct an arbitration in relation to a family law dispute.</tt></blockquote>

Lawyers who qualify as ''family law arbitrators'' meet the training requirements of, and are accredited by, the Law Society of British Columbia. You can find out if a lawyer is a "family law arbitrator" by looking the lawyer up in the [https://www.lawsociety.bc.ca/lsbc/apps/lkup/mbr-search.cfm Lawyer Directory] on the Law Society's website. The training requirements that professionals other than lawyers must meet to qualify as "family dispute resolution professionals" are set out in section 5(2)(b) of the Family Law Act Regulation, and include:

*being a member in good standing with specific organizations,
*meeting specific educational and experiential requirements, including at least 10 years' experience in family-related practice,
*taking continuing family dispute resolution training, and
*carrying professional liability insurance.

It's important to know that, under section 5(3) of the regulation, people other than lawyers may only arbitrate disputes dealing with ''parenting children'', including contact with a child, and ''child support''. However, they can only deal with child support if:

*all of the children are under 19 years of age,
*none of the payor's income is self-employment income or partnership income,
*the payor's income is less than $150,000 per year, and
*the [[Child Support Guidelines]] tables are being used to calculate the basic child support amount.

As well, if children's special or extraordinary expenses are an issue that is to be resolved by an arbitrator who is not a lawyer, section 5(3)(c)(v) says that "the determination of what those expenses are and how they are to be calculated" must be "straightforward."

Section 5 of the regulation imposes two extra duties on arbitrators who are family dispute resolution professionals: they must use written participation agreements; and, they must provide the parties with confirmation that they qualify as family dispute resolution professionals. Section 5(4) says this:

<blockquote><tt>(4) The following practice standards apply to a family dispute resolution professional who wishes to engage in arbitration in relation to a family law dispute:</tt></blockquote>
<blockquote><blockquote><tt>(a) before initiating arbitration, he or she must enter into a written agreement to arbitrate with the parties to the family law dispute;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) before initiating arbitration, he or she must provide written confirmation to the parties to the family law dispute that he or she meets the professional requirements set out in subsection (2).</tt></blockquote></blockquote>

==The arbitration process==

These are the steps involved in the basic arbitration process.

*'''Pick your arbitrator.''' Your lawyer will have the names of three or four arbitrators they prefer to work with. If you don't have a lawyer, you can look at the membership lists of organizations like the [http://adric.ca ADR Institute of Canada], although many accredited family law arbitrators may not have decided to spend the money to join those organizations.
*'''Sign the arbitrator's participation agreement.''' This is a contract that describes your responsibilities and the responsibilities of your arbitrator, and how the arbitrator will be paid. It also requires you to agree to be bound by the result of the arbitration.
*'''Prepare for and attend the prehearing conference.''' This is a meeting during which the parties, their lawyers and the arbitrator will make decisions about how the arbitration will work, including the rules for the hearing, the place and date of the hearing, and the legal issues to be resolved at the hearing.
*'''Prepare your case.''' Start working on your case by researching the law and thinking about the evidence you need to prove your case.
*'''Complete discovery and disclosure.''' This is a process in which you and the other party or parties will exchange documents and information that are relevant to the legal issues in your dispute, such as income tax returns if child support or spousal support is one of those issues.
*'''Exchange the documents you're going to use at the hearing.''' These documents might include written arguments, financial statements or summaries of what your witnesses are going to say.
*'''Attend the hearing.''' An arbitration hearing is the equivalent of a trial, but with special rules and shorter processes. Sometimes you may attend by teleconference or videoconference rather than in person.
*'''Receive the arbitrator's decision.''' The arbitrator will prepare their decision, and the reasons for their decision, in a written document called an award. Most arbitrators try to get their awards to the parties as soon as possible, but it can sometimes take a long time to finish a decision, especially if the evidence presented at the hearing was unusually complicated.
*'''Review the award and ask for corrections.''' You have 30 days after you get the arbitrator's award to ask the arbitrator to correct any typos and other mistakes, and to ask the arbitrator to explain specific parts of their award.

Under section 19.16 of the ''[[Family Law Act]]'', an arbitration is over when:

#the arbitrator has delivered their final award and the time to correct the arbitrator's decision has passed;
#the parties agree to end the arbitration; or,
#the arbitrator makes an order that it is "unnecessary or impossible" to continue the arbitration.

===Starting arbitration===

There are only two ways you can get your family law problem into arbitration.

First, you might have a family law agreement — like a cohabitation agreement, a marriage agreement, or a separation agreement — which says that any disputes or questions about the agreement, or the subjects the agreement covers, will be resolved through arbitration.

Second, you might agree, after a problem has arisen, that you'll go to arbitration instead of going to court, or instead of another process like mediation or collaborative negotiation. You can even agree to resolve a dispute through arbitration after a court proceeding has started. A lot of people decide to do this when they find out how far away their trial is scheduled to start, and when they find out that there's no guarantee that they'll get a judge who is an expert in resolving family law disputes.

You cannot force someone into arbitration, including by asking for a court order that you go to arbitration. Even though section 224(1) of the ''[[Family Law Act]]'' says that "a court may make an order to ... require the parties to participate in family dispute resolution," the court will not make an order that someone go to arbitration. Resolving a dispute through arbitration has to be voluntary, either because you've already agreed to use arbitration ''if'' a problem comes up or because you've agreed to use arbitration ''after'' the problem has come up.

===Arbitration processes===

When people agree or are required to arbitrate their dispute, they first pick their arbitrator. The arbitrator you choose should be someone who is an expert in family law, and perhaps even an expert in family law with special knowledge or skills concerning the most important issues in your dispute. You probably want to choose someone who has a lot of experience as an arbitrator, someone who has a good reputation in the legal community, and, most importantly, someone you see as being neutral, fair-minded and unbiased.

After picking the arbitrator, the arbitrator will ask the parties to sign a participation agreement, usually called an ''arbitration agreement.'' This agreement does three things. First, it serves as the arbitrator's retainer agreement and describes how the arbitrator will charge for their services and when they will expect to be paid. (You can read more about retainer agreements in the [[Understanding the Legal System for Family Law Matters]] chapter, in the [[You and Your Lawyer]] section.) Second, it describes the parties' rights and responsibilities in the process, as well as the responsibilities of the arbitrator and the scope of their authority. Third, it identifies the legal issues the arbitrator will address.

The next step is to meet with the arbitrator to discuss the process leading to the arbitration hearing, decide the date and place for the hearing, and pick the rules that will govern the hearing. This meeting is called a ''prehearing conference'', and picking the rules that will govern the hearing is sometimes the most important part of the arbitration process. A lot of the time, the rules that people select are taken from the more important parts of the [https://canlii.ca/t/8mcr Supreme Court Family Rules] that talk about evidence, experts, and hearing procedures. However, there are lots of other options. People can pick the rules that best suit the circumstances of their children, the nature of their dispute, and the status of their finances. It's important to be as thoughtful as possible in deciding what rules are necessary. Arbitration can look just like going to court, but it doesn't have to. It can be a lot more focused, a lot more efficient, and a lot faster.

How the arbitration process works after the prehearing conference will depend on the rules you've picked.

====The basic arbitration process====

Most of the time, the next step after the prehearing conference involves exchanging the documents and information that are relevant to the legal issues in the dispute. If child support is an issue, for example, financial statements might be prepared and documents like income tax returns, T4 slips, and paystubs might be exchanged. If property is an issue, you might need tax assessments, purchase documents, mortgage statements, and maybe a professional appraisal of the current value of the property.

You need to think carefully about what sort of documents and information you need. For complicated problems, you might also hire an expert to give an opinion about things like the value of a pension, a tax problem, or the best parenting arrangements for the children. (That last kind of opinion is called a ''parenting assessment'' or a ''section 211 report'', and is usually prepared by a psychologist, clinical counsellor, or social worker. You can get more information about ''reports'' and ''assessments'' in the [[Children and Parenting after Separation]] chapter.) You might also need to exchange bank statements, credit card statements and corporate financial statements. The nature of the documents that are important, the extent of the disclosure that is required, and the type of expert opinions that are most useful will change depending on the circumstances, the legal issues, and how the parties have decided to approach the arbitration process.

Once the relevant documents have been exchanged and any expert opinions have been completed, each party will start to work on how they're going to present their case to the arbitrator and on the documents they'll want to refer the arbitrator to at the hearing. These might include:

*written arguments,
*timelines, charts, financial tables, photographs, videos, and other visual aids,
*summaries of what your witnesses are going to say, called ''will-say statements'',
*affidavits and financial statements,
*binders with the financial and other documents you're going to be asking your witnesses to identify, comment on, or explain, called ''books of documents'', and
*binders with the case law you're going to be asking the arbitrator to consider, called ''books of authorities''.

Sometimes the arbitrator will want the parties to cooperate and prepare other hearing documents together. These might include:

*''statements of agreed facts'', a written summary of the facts both parties agree about, and
*''joint books of documents'', binders with the financial and other documents you will both rely on.

Next, the parties and their lawyers, if they have them, will attend the hearing. Arbitration hearings can take place in the arbitrator's office, a boardroom in a hotel or anywhere else that's private, or even remotely by videoconference, and are usually less formal than court hearings; arbitration processes can be as formal or informal as the parties and the arbitrator want.

At the hearing, each party makes an opening argument describing the evidence that will be given and then presents their evidence. The parties' evidence usually consists of the testimony of witnesses, documents, and affidavits. Each party then makes a closing argument to show the arbitrator why the arbitrator should resolve their dispute in the way they each prefer.

After the hearing process is over, the arbitrator will provide a written decision, called an ''award'', summarizing the evidence and resolving all of the legal issues, and explaining why the arbitrator resolved the issues in the way they resolved them.

====Alternative arbitration processes====

Arbitration processes can be as simple or as complicated as the parties want. The basic arbitration process I've just described looks and feels very much like the process that applies in court. However, it isn't always necessary to have a witness who gives oral evidence, or to have any evidence at all. It isn't always necessary to have oral arguments. Sometimes written arguments alone will do. And, if the parties agree, awards can provide a summary explanation of the arbitrator's decision rather than a full explanation.

Here are some examples of alternative arbitration processes:

*The parties could make their arguments to the arbitrator by telephone or videoconference, with no evidence at all, and the arbitrator giving an oral decision right there on the spot. (This process would be ideal for decisions about a legal question where the facts either don't matter or aren't in dispute. It's also the cheapest and fastest way to get a decision.)
*If evidence is necessary to help the arbitrator make their decision, the parties could make their arguments by telephone or video, and the evidence could be presented by affidavits alone, without the in-person testimony of any witness.
*If an in-person hearing is necessary, the parties could agree that evidence will be provided by affidavit, with the people who made the affidavits being cross-examined by the other person or their lawyer. Or, the parties could agree that only a limited number of witnesses will testify, and that each party will have a limited amount of time to examine and cross-examine each witness.
*If an in-person hearing is necessary and the parties agree to very few of the important facts, the parties could have an arbitration with all the bells and whistles available if they were going to court, with no limits on the number or amount of time for each witness. (This process will take the longest time to wrap up and also cost the most money.)
*Where neither party is represented by a lawyer, the hearing could be in-person but be managed completely by the arbitrator who can explore issues and ask questions. The arbitrator would work with the parties to identify the legal issues in the dispute, and then lead the examination of all of the witnesses.

I have developed a checklist of procedural elements that is helpful for designing arbitration processes, and covers every part of the arbitration process, from deciding whether to have an in-person hearing or a hearing by videoconference, to whether and how experts will be hired, to how evidence will be presented at the hearing. You can download my "Arbitration Rules Pick-List" from the [https://www.boydarbitration.ca/rules-of-procedure website] of John-Paul Boyd Arbitration Chambers.

====Mandatory elements of arbitration processes====

Although arbitration processes are incredibly flexible, there are certain aspects of arbitration that are required in British Columbia.

First, the arbitrator must give each party the opportunity to make their case, and to reply to the case made by the other party. This is a basic element of the Canadian justice system, called either "natural justice" or "fundamental justice," that is required of judges as well as arbitrators.

Second, the arbitrator must treat each party fairly and not be biased in favour of one party over the other. Section 19.8 of the ''[[Family Law Act]]'' says this:

<blockquote><tt>(1) An arbitrator must be independent of the parties.</tt></blockquote>
<blockquote><tt>(2) An arbitrator must be impartial and act impartially.</tt></blockquote>
<blockquote><tt>(3) If a person is approached in connection with the person's possible appointment as an arbitrator, the person must, without delay, disclose any circumstances likely to give rise to justifiable doubts as to the person's independence or impartiality.</tt></blockquote>
<blockquote><tt>(4) An arbitrator, from the time of the arbitrator's appointment and throughout the arbitration, must, without delay, disclose to the parties any circumstances referred to in subsection (3).</tt></blockquote>

Third, when it comes to decisions about children, the arbitrator must consider only the best interests of the children.

Finally, arbitral awards must be given in writing and be signed by the arbitrator.

Otherwise, the parties and their arbitrator are free to be as creative as they want and create the rules and the process that are best-suited to the parties, their children, their dispute, their timeline, and their budget.

===Changing and appealing awards===

There are only two ways you can get your family law problem into arbitration.

First, you might have a family law agreement — like a cohabitation agreement, a marriage agreement, or a separation agreement — which says that any disputes or questions about the agreement, or the subjects the agreement covers, will be resolved through arbitration.

Second, you might agree, after a problem has arisen, that you'll go to arbitration instead of going to court, or instead of another process like mediation or collaborative negotiation. You can even agree to resolve a dispute through arbitration after a court proceeding has started. A lot of people decide to do this when they find out how far away their trial is scheduled to start, and when they find out that there's no guarantee that they'll get a judge who is an expert in resolving family law disputes.

You cannot force someone into arbitration, including by asking for a court order that you go to arbitration. Even though section 224(1) of the ''[[Family Law Act]]'' says that "a court may make an order to ... require the parties to participate in family dispute resolution," the court will not make an order that someone go to arbitration. Resolving a dispute through arbitration has to be voluntary, either because you've already agreed to use arbitration ''if'' a problem comes up or because you've agreed to use arbitration ''after'' the problem has come up.

===Other uses of arbitration===

Arbitration is very helpful in resolving family law problems quickly and efficiently. Parenting coordinators use a process a lot like arbitration to make decisions resolving disagreements when the parents aren't able to find solutions to which they both agree. The flexibility of arbitration also means that people can ask their arbitrator to make a decision based on the rules of a religion, based on grounds of conscience, or based on equity and fairness.

Arbitration can also be used to:

*break logjams in settlement discussions, where only one or two issues can't be agreed upon,
*resolve disagreements about how the law should be interpreted or applied in a particular situation,
*make temporary decisions about support or parenting arrangements while the parties are negotiating a settlement, or
*perform technical calculations, like about the amount of costs payable in a court proceeding, the income of someone who is self-employed, the amount of spousal support payable, or the after-tax cost of children's expenses.

====Faith-based arbitration====

Under section 19.10 of the ''[[Family Law Act]]'', the parties can choose their own law to govern the arbitration process. Nothing in the act says that this law cannot be a religious law. Judaism and Islam, for example, each have religious laws that can apply to family law disputes for members of those faiths. Members of the orthodox Jewish community may use Halakha to settle personal disputes. Muslims can use Sharia law for the same purpose.

Whatever rules a couple chooses, however, the result of an arbitration cannot be "inconsistent" with the ''Family Law Act'' or the ''[[Divorce Act]]''. Section 19.20 of the ''Family Law Act'' says this:

<blockquote><tt>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.</tt></blockquote>

This means, for example, that child support must be paid to the person who has the child most of the time by the person who has the child for the least amount of time, and that the amount of support paid cannot be too different from what the [[Child Support Guidelines]] require. It also means that a particular person shouldn't have the primary residence of a child merely because of their gender, the age of the child or some other arbitrary reason.

Note that if the parties to faith-based arbitration wish to obtain a divorce, they must still start a court proceeding in the Supreme Court of British Columbia for a divorce order. A religious divorce, such as the Jewish Get, is not a legal divorce.

====Parenting coordination====

Parenting coordination uses a process that includes a decision-making function that's a lot like arbitration. In parenting coordination, the arbitrator is called a ''parenting coordinator'' and first tries to settle a dispute about parenting through a settlement process like mediation. If the parents cannot find consensus, however, the parenting coordinator acts like an arbitrator and makes a written decision, called a ''determination'', resolving the dispute. The parenting coordinator's authority to resolve these disputes comes from the participation agreement the parents sign, in this case called a ''parenting coordination agreement''.

As with faith-based arbitration, or any other kind of family law arbitration for that matter, the parenting coordinator cannot make determinations that are inconsistent with the ''[[Family Law Act]]''. However, parenting coordinators are subject to additional restrictions in the scope of the things they can make decisions about. Under section 6(3) and (4)(a)(ix) of the [http://canlii.ca/t/8rdx Family Law Act Regulation], parenting coordinators can make determinations about parenting arrangements, contact with a child, and other issues agreed to by the parties and the parenting coordinator. However, regardless of whatever the parties and the parenting coordinator may have agreed to, a parenting coordinator may ''not'' make decisions about:

*legal issues that are excluded by an order or a parenting coordination agreement,
*changes to the guardianship of a child,
*changes to the allocation of parental responsibilities,
*giving parenting time or contact to a person who does not already have parenting time or contact,
*substantial changes to parenting time or contact, or
*the relocation of a child.

There's a lot more information about parenting coordination in the [[Parenting_Coordination|next section]] of this chapter.

==When to use arbitration==

There are lots of good reasons to use arbitration rather than go to court. It's fast and efficient, the rules that govern the process are extremely flexible, it's confidential and private, and you get to pick a judge who is an expert in not just family law but the aspects of the law that are the most important in your case. There are, however, only a few circumstances that make arbitration a necessary choice over mediation, collaborative negotiation, or litigation. Typically, people will choose to arbitrate their dispute if:

*they want the laws of their religion or another set of legal, moral or ethical principles to apply to their dispute,
*their positions are too far apart to make negotiation or mediation a reasonable option and must have a decision made for them, but don't want to go to the expense, anxiety, and acrimony typically involved in going to court,
*they want to resolve their dispute discreetly and privately, and don't want to risk their personal business being made public,
*the legal issues are complex and demand a decision-maker who is a specialist in those issues, or
*they want their dispute resolved more quickly than the court schedule will allow.

It's important to understand that while arbitrators can make awards on all of the usual family law issues — including parenting arrangements, contact, child support, spousal support, and the division of property and debt — arbitrators cannot make awards on certain issues that can only be decided by a judge. These include:

*divorce orders and annulments,
*orders appointing someone as the guardian of a child who is not a parent of that child,
*declarations about who is, and who is not, the parent of a child, unless the declaration is necessary to resolve an issue that is within the arbitrator's jurisdiction, and
*orders changing the order of a judge.

==How to find a family law arbitrator==

Finding a family law arbitrator can sometimes be the hard part about taking your problem to arbitration, as there aren't too many arbitrators who specialize in family law issues. Your first and best bet is to speak to a family law lawyer and see who they might recommend to you. (Most lawyers will have a list of three of four arbitrators who they've used in the past and like working with.) You might also do an internet search for "family law arbitrator British Columbia," as lawyers who work as family law arbitrators will describe themselves this way and take pains to indicate in which jurisdiction they work. You could also contact organizations which specialize in providing legal education and developing out-of-court dispute resolution processes, including:

*[https://www.adrbc.com the ADR Institute of British Columbia], and
*[http://www.labour-arbitrators.ca the Arbitrators Association of British Columbia].

(Be warned, however, that there are lots of accredited family law arbitrators who may not have decided to pay the money to join these organizations.) Finally, you could call the Canadian Bar Association's [http://www.clicklaw.bc.ca/helpmap/service/1044 Lawyer Referral Service]. Although the service can't recommend one family law arbitrator over another, they'll at least be able to give you some names.

==Resources and links==

===Legislation===

* ''[https://canlii.ca/t/551f9 Divorce Act]''
* ''[https://canlii.ca/t/8q3k Family Law Act]''
* [https://canlii.ca/t/8rdx Family Law Act Regulation]
* [https://canlii.ca/t/80mh Federal Child Support Guidelines]

===Links===

* [https://www.adrbc.com The ADR Institute of British Columbia]
* [https://adric.ca/ The ADR Institute of Canada]
* [http://www.labour-arbitrators.ca The Arbitrators Association of British Columbia]
* [http://www.clicklaw.bc.ca/helpmap/service/1044 Lawyer Referral Service]
* [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society]
* [https://www.boydarbitration.ca/library John-Paul Boyd Arbitration Chambers] Library
* [https://www.boydarbitration.ca/rules-of-procedure John-Paul Boyd Arbitration Chamber] Arbitration Procedure
* [https://www.lawsociety.bc.ca/ The Law Society of BC]
* [https://www.clicklaw.bc.ca/resource/4616 Resolving Disputes Without Going to Court] from Dial-a-Law by the People's Law School
* [https://www.clicklaw.bc.ca/resource/4191 Settling out of Court] from the Justice Education Society of BC
* [https://www.clicklaw.bc.ca/resource/1253 Mediation, collaborative negotiation, and arbitration] from Dial-a-Law by the People's Law School

===Resources===

*Arbitration [[Media:Arbitration procedure pick-list - fillable.pdf|procedure pick-list]] (fillable PDF)
*Sample arbitration [[Media:Arbitration Agreement - PDF.pdf|participation agreement]] (PDF) in cases where the parties are represented by lawyers.
*Sample arbitration [[Media:Arbitration Agreement - Self-Rep - PDF.pdf|participation agreement]] (PDF) in cases where the parties are not represented by lawyers.

These sample participation agreements may not resemble the participation agreement you are asked to sign. They provide a more or less accurate picture of what arbitration participation agreements usually look like, but should be used as a reference only.

You can also look at the website of [https://www.boydarbitration.ca/participationagreements John-Paul Boyd Arbitration Chambers] which provides a number of model participation agreements for download.

* [https://www.clicklaw.bc.ca/resource/4452 "An Evaluation of the Cost of Family Law Disputes: Measuring the Cost Implication of Various Dispute Resolution Methods" PDF] from Canadian Research Institute for Law and the Family
* [https://www.clicklaw.bc.ca/resource/1497 "Alternatives to Going to Court" PDF] from the Justice Education Society of BC

{{REVIEWED | reviewer = [[JP Boyd]], 25 August 2021}}

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[[Category:JP Boyd on Family Law]]

Family Law Arbitration

2023-04-18T22:31:00Z

Jpboyd: /* Other arbitration processes */

{{JP Boyd on Family Law TOC|expanded = outofcourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[JP Boyd]]
}}Arbitration is a dispute resolution process in which the parties hire a neutral third party, an ''arbitrator'', to make decisions resolving some or all of the legal issues in their dispute. While the job of a mediator is to help people work toward their own resolution of their family law dispute, the arbitrator's job is to act like a judge and make a decision resolving a legal dispute, after hearing the evidence and listening to the arguments of each party.

People who work as arbitrators are usually trained professionals who qualify as "family law dispute resolution professionals" under the ''[[Family Law Act]]'', meaning that they have the experience and education required by the [https://canlii.ca/t/5539g Family Law Act Regulation]. Lawyers who are "family law arbitrators" are specially accredited to arbitrate family law disputes by the [http://www.lawsociety.bc.ca Law Society of British Columbia].

This section provides an introduction to arbitration and discusses when to use arbitration in a family law dispute. It also provides some suggestions about how to find a family law arbitrator.

==Introduction==

Like mediation and collaborative negotiation, arbitration is a voluntary process. The parties to a dispute must all ''agree'' to use arbitration to resolve their legal dispute. Like those processes, arbitration is also an out-of-court way of resolving problems. However, that's where the similarities between arbitration, mediation and collaborative negotiation end. While the parties to a dispute may have agreed to use arbitration to resolve their dispute, it's the ''arbitrator'' who resolves their dispute, not the parties themselves.

Before the new ''[[Family Law Act]]'' became law in British Columbia, arbitration was rarely used in family law disputes. Arbitration was most frequently used in the context of commercial, labour, and construction disputes. In other places, such as Ontario and Alberta, the arbitration of family law disputes is well-established and has been for some time. The ''Family Law Act'', however, made a number of changes to the law that improved the usefulness of arbitration for family law disputes in British Columbia, and the number of people choosing arbitration over going to court has been increasing as a result.

Arbitration offers a number of advantages for resolving family law problems:

*it allows the parties to hand-pick the person who will make decisions about the issues they cannot agree on, which means that they might pick an arbitrator who is not just an expert family law lawyer, but an expert family law lawyer with special knowledge of a specific issue, like parenting children, tax problems, or property division,
*it allows the parties to pick the rules that will apply to the hearing and the decision-making process,
*arbitration resolves disputes much faster than going to court,
*the arbitration process is private, confidential, and closed to the public, and
*the result of the process is an arbitrator's award that is just as binding as a court order and is enforceable just like a court order.

As well, it's often faster to get a date for an arbitration hearing than it is for a court hearing. Although short trials of two or three days can usually be booked within ten to twelve months, it can take a year or more to get a date for longer trials because the court is so busy. An arbitration hearing can be booked as soon as everyone has free time in their calendars.

People can start arbitration right off the bat, as soon as a legal problem has come up, or they can use it to resolve a court proceeding as an alternative to trial. The result of a successful process of arbitration is an arbitrator's ''award''. If litigation has already started, the award can be turned into an order that the parties agree the court will make, called a ''consent order''. If the parties are married, a consent order may make more sense since they'll usually want an order for their divorce at the same time as they're wrapping everything else up.

The parties can meet with their arbitrator on their own or with their lawyers. As an arbitrator, I always appreciate having the parties' lawyers present. I recognize that having the lawyers at the arbitration hearing costs the parties more money, but the lawyers are intimately familiar with how to write briefs, make legal arguments and present evidence, and arbitration hearings with lawyers are usually much shorter than hearings without lawyers. However, there is no rule that you must have a lawyer represent you in arbitration, just like there's no rule that you must have a lawyer represent you in litigation.

The arbitrator has no stake in how the arbitration turns out. The arbitrator must be neutral and have no bias in favour of either party. Most of the time, the arbitrator should have no special connection — business, personal or otherwise — with either party, and the arbitrator must make sure that all parties are aware of any such special connections before they agree to hire the arbitrator.

==Working with "family law arbitrators" under the ''Family Law Act''==

An arbitrator who qualifies as a "family dispute resolution professional" under the ''[[Family Law Act]]'' must meet the requirements set out in the [http://canlii.ca/t/8rdx Family Law Act Regulation]. Section 5 of the regulation says that:

<blockquote><tt>(1) Only an arbitrator who is qualified as a family dispute resolution professional may conduct an arbitration in relation to a family law dispute.</tt></blockquote>

Lawyers who qualify as ''family law arbitrators'' meet the training requirements of, and are accredited by, the Law Society of British Columbia. You can find out if a lawyer is a "family law arbitrator" by looking the lawyer up in the [https://www.lawsociety.bc.ca/lsbc/apps/lkup/mbr-search.cfm Lawyer Directory] on the Law Society's website. The training requirements that professionals other than lawyers must meet to qualify as "family dispute resolution professionals" are set out in section 5(2)(b) of the Family Law Act Regulation, and include:

*being a member in good standing with specific organizations,
*meeting specific educational and experiential requirements, including at least 10 years' experience in family-related practice,
*taking continuing family dispute resolution training, and
*carrying professional liability insurance.

It's important to know that, under section 5(3) of the regulation, people other than lawyers may only arbitrate disputes dealing with ''parenting children'', including contact with a child, and ''child support''. However, they can only deal with child support if:

*all of the children are under 19 years of age,
*none of the payor's income is self-employment income or partnership income,
*the payor's income is less than $150,000 per year, and
*the [[Child Support Guidelines]] tables are being used to calculate the basic child support amount.

As well, if children's special or extraordinary expenses are an issue that is to be resolved by an arbitrator who is not a lawyer, section 5(3)(c)(v) says that "the determination of what those expenses are and how they are to be calculated" must be "straightforward."

Section 5 of the regulation imposes two extra duties on arbitrators who are family dispute resolution professionals: they must use written participation agreements; and, they must provide the parties with confirmation that they qualify as family dispute resolution professionals. Section 5(4) says this:

<blockquote><tt>(4) The following practice standards apply to a family dispute resolution professional who wishes to engage in arbitration in relation to a family law dispute:</tt></blockquote>
<blockquote><blockquote><tt>(a) before initiating arbitration, he or she must enter into a written agreement to arbitrate with the parties to the family law dispute;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) before initiating arbitration, he or she must provide written confirmation to the parties to the family law dispute that he or she meets the professional requirements set out in subsection (2).</tt></blockquote></blockquote>

==The arbitration process==

These are the steps involved in the basic arbitration process.

*'''Pick your arbitrator.''' Your lawyer will have the names of three or four arbitrators they prefer to work with. If you don't have a lawyer, you can look at the membership lists of organizations like the [http://adric.ca ADR Institute of Canada], although many accredited family law arbitrators may not have decided to spend the money to join those organizations.
*'''Sign the arbitrator's participation agreement.''' This is a contract that describes your responsibilities and the responsibilities of your arbitrator, and how the arbitrator will be paid. It also requires you to agree to be bound by the result of the arbitration.
*'''Prepare for and attend the prehearing conference.''' This is a meeting during which the parties, their lawyers and the arbitrator will make decisions about how the arbitration will work, including the rules for the hearing, the place and date of the hearing, and the legal issues to be resolved at the hearing.
*'''Prepare your case.''' Start working on your case by researching the law and thinking about the evidence you need to prove your case.
*'''Complete discovery and disclosure.''' This is a process in which you and the other party or parties will exchange documents and information that are relevant to the legal issues in your dispute, such as income tax returns if child support or spousal support is one of those issues.
*'''Exchange the documents you're going to use at the hearing.''' These documents might include written arguments, financial statements or summaries of what your witnesses are going to say.
*'''Attend the hearing.''' An arbitration hearing is the equivalent of a trial, but with special rules and shorter processes. Sometimes you may attend by teleconference or videoconference rather than in person.
*'''Receive the arbitrator's decision.''' The arbitrator will prepare their decision, and the reasons for their decision, in a written document called an award. Most arbitrators try to get their awards to the parties as soon as possible, but it can sometimes take a long time to finish a decision, especially if the evidence presented at the hearing was unusually complicated.
*'''Review the award and ask for corrections.''' You have 30 days after you get the arbitrator's award to ask the arbitrator to correct any typos and other mistakes, and to ask the arbitrator to explain specific parts of their award.

Under section 19.16 of the ''[[Family Law Act]]'', an arbitration is over when:

#the arbitrator has delivered their final award and the time to correct the arbitrator's decision has passed;
#the parties agree to end the arbitration; or,
#the arbitrator makes an order that it is "unnecessary or impossible" to continue the arbitration.

===Starting arbitration===

There are only two ways you can get your family law problem into arbitration.

First, you might have a family law agreement — like a cohabitation agreement, a marriage agreement, or a separation agreement — which says that any disputes or questions about the agreement, or the subjects the agreement covers, will be resolved through arbitration.

Second, you might agree, after a problem has arisen, that you'll go to arbitration instead of going to court, or instead of another process like mediation or collaborative negotiation. You can even agree to resolve a dispute through arbitration after a court proceeding has started. A lot of people decide to do this when they find out how far away their trial is scheduled to start, and when they find out that there's no guarantee that they'll get a judge who is an expert in resolving family law disputes.

You cannot force someone into arbitration, including by asking for a court order that you go to arbitration. Even though section 224(1) of the ''[[Family Law Act]]'' says that "a court may make an order to ... require the parties to participate in family dispute resolution," the court will not make an order that someone go to arbitration. Resolving a dispute through arbitration has to be voluntary, either because you've already agreed to use arbitration ''if'' a problem comes up or because you've agreed to use arbitration ''after'' the problem has come up.

===Arbitration processes===

When people agree or are required to arbitrate their dispute, they first pick their arbitrator. The arbitrator you choose should be someone who is an expert in family law, and perhaps even an expert in family law with special knowledge or skills concerning the most important issues in your dispute. You probably want to choose someone who has a lot of experience as an arbitrator, someone who has a good reputation in the legal community, and, most importantly, someone you see as being neutral, fair-minded and unbiased.

After picking the arbitrator, the arbitrator will ask the parties to sign a participation agreement, usually called an ''arbitration agreement.'' This agreement does three things. First, it serves as the arbitrator's retainer agreement and describes how the arbitrator will charge for their services and when they will expect to be paid. (You can read more about retainer agreements in the [[Understanding the Legal System for Family Law Matters]] chapter, in the [[You and Your Lawyer]] section.) Second, it describes the parties' rights and responsibilities in the process, as well as the responsibilities of the arbitrator and the scope of their authority. Third, it identifies the legal issues the arbitrator will address.

The next step is to meet with the arbitrator to discuss the process leading to the arbitration hearing, decide the date and place for the hearing, and pick the rules that will govern the hearing. This meeting is called a ''prehearing conference'', and picking the rules that will govern the hearing is sometimes the most important part of the arbitration process. A lot of the time, the rules that people select are taken from the more important parts of the [https://canlii.ca/t/8mcr Supreme Court Family Rules] that talk about evidence, experts, and hearing procedures. However, there are lots of other options. People can pick the rules that best suit the circumstances of their children, the nature of their dispute, and the status of their finances. It's important to be as thoughtful as possible in deciding what rules are necessary. Arbitration can look just like going to court, but it doesn't have to. It can be a lot more focused, a lot more efficient, and a lot faster.

How the arbitration process works after the prehearing conference will depend on the rules you've picked.

====The basic arbitration process====

Most of the time, the next step after the prehearing conference involves exchanging the documents and information that are relevant to the legal issues in the dispute. If child support is an issue, for example, financial statements might be prepared and documents like income tax returns, T4 slips, and paystubs might be exchanged. If property is an issue, you might need tax assessments, purchase documents, mortgage statements, and maybe a professional appraisal of the current value of the property.

You need to think carefully about what sort of documents and information you need. For complicated problems, you might also hire an expert to give an opinion about things like the value of a pension, a tax problem, or the best parenting arrangements for the children. (That last kind of opinion is called a ''parenting assessment'' or a ''section 211 report'', and is usually prepared by a psychologist, clinical counsellor, or social worker. You can get more information about ''reports'' and ''assessments'' in the [[Children and Parenting after Separation]] chapter.) You might also need to exchange bank statements, credit card statements and corporate financial statements. The nature of the documents that are important, the extent of the disclosure that is required, and the type of expert opinions that are most useful will change depending on the circumstances, the legal issues, and how the parties have decided to approach the arbitration process.

Once the relevant documents have been exchanged and any expert opinions have been completed, each party will start to work on how they're going to present their case to the arbitrator and on the documents they'll want to refer the arbitrator to at the hearing. These might include:

*written arguments,
*timelines, charts, financial tables, photographs, videos, and other visual aids,
*summaries of what your witnesses are going to say, called ''will-say statements'',
*affidavits and financial statements,
*binders with the financial and other documents you're going to be asking your witnesses to identify, comment on, or explain, called ''books of documents'', and
*binders with the case law you're going to be asking the arbitrator to consider, called ''books of authorities''.

Sometimes the arbitrator will want the parties to cooperate and prepare other hearing documents together. These might include:

*''statements of agreed facts'', a written summary of the facts both parties agree about, and
*''joint books of documents'', binders with the financial and other documents you will both rely on.

Next, the parties and their lawyers, if they have them, will attend the hearing. Arbitration hearings can take place in the arbitrator's office, a boardroom in a hotel or anywhere else that's private, or even remotely by videoconference, and are usually less formal than court hearings; arbitration processes can be as formal or informal as the parties and the arbitrator want.

At the hearing, each party makes an opening argument describing the evidence that will be given and then presents their evidence. The parties' evidence usually consists of the testimony of witnesses, documents, and affidavits. Each party then makes a closing argument to show the arbitrator why the arbitrator should resolve their dispute in the way they each prefer.

After the hearing process is over, the arbitrator will provide a written decision, called an ''award'', summarizing the evidence and resolving all of the legal issues, and explaining why the arbitrator resolved the issues in the way they resolved them.

====Alternative arbitration processes====

Arbitration processes can be as simple or as complicated as the parties want. The basic arbitration process I've just described looks and feels very much like the process that applies in court. However, it isn't always necessary to have a witness who gives oral evidence, or to have any evidence at all. It isn't always necessary to have oral arguments. Sometimes written arguments alone will do. And, if the parties agree, awards can provide a summary explanation of the arbitrator's decision rather than a full explanation.

Here are some examples of alternative arbitration processes:

*The parties could make their arguments to the arbitrator by telephone or videoconference, with no evidence at all, and the arbitrator giving an oral decision right there on the spot. (This process would be ideal for decisions about a legal question where the facts either don't matter or aren't in dispute. It's also the cheapest and fastest way to get a decision.)
*If evidence is necessary to help the arbitrator make their decision, the parties could make their arguments by telephone or video, and the evidence could be presented by affidavits alone, without the in-person testimony of any witness.
*If an in-person hearing is necessary, the parties could agree that evidence will be provided by affidavit, with the people who made the affidavits being cross-examined by the other person or their lawyer. Or, the parties could agree that only a limited number of witnesses will testify, and that each party will have a limited amount of time to examine and cross-examine each witness.
*If an in-person hearing is necessary and the parties agree to very few of the important facts, the parties could have an arbitration with all the bells and whistles available if they were going to court, with no limits on the number or amount of time for each witness. (This process will take the longest time to wrap up and also cost the most money.)
*Where neither party is represented by a lawyer, the hearing could be in-person but be managed completely by the arbitrator who can explore issues and ask questions. The arbitrator would work with the parties to identify the legal issues in the dispute, and then lead the examination of all of the witnesses.

I have developed a checklist of procedural elements that is helpful for designing arbitration processes, and covers every part of the arbitration process, from deciding whether to have an in-person hearing or a hearing by videoconference, to whether and how experts will be hired, to how evidence will be presented at the hearing. You can download my "Arbitration Rules Pick-List" from the [https://www.boydarbitration.ca/rules-of-procedure website] of John-Paul Boyd Arbitration Chambers.

====Mandatory elements of arbitration processes====

Although arbitration processes are incredibly flexible, there are certain aspects of arbitration that are required in British Columbia.

First, the arbitrator must give each party the opportunity to make their case, and to reply to the case made by the other party. This is a basic element of the Canadian justice system, called either "natural justice" or "fundamental justice," that is required of judges as well as arbitrators.

Second, the arbitrator must treat each party fairly and not be biased in favour of one party over the other. Section 19.8 of the ''[[Family Law Act]]'' says this:

<blockquote><tt>(1) An arbitrator must be independent of the parties.</tt></blockquote>
<blockquote><tt>(2) An arbitrator must be impartial and act impartially.</tt></blockquote>
<blockquote><tt>(3) If a person is approached in connection with the person's possible appointment as an arbitrator, the person must, without delay, disclose any circumstances likely to give rise to justifiable doubts as to the person's independence or impartiality.</tt></blockquote>
<blockquote><tt>(4) An arbitrator, from the time of the arbitrator's appointment and throughout the arbitration, must, without delay, disclose to the parties any circumstances referred to in subsection (3).</tt></blockquote>

Third, when it comes to decisions about children, the arbitrator must consider only the best interests of the children.

Finally, arbitral awards must be given in writing and be signed by the arbitrator.

Otherwise, the parties and their arbitrator are free to be as creative as they want and create the rules and the process that are best-suited to the parties, their children, their dispute, their timeline, and their budget.

===Other uses of arbitration===

Arbitration is very helpful in resolving family law problems quickly and efficiently. Parenting coordinators use a process a lot like arbitration to make decisions resolving disagreements when the parents aren't able to find solutions to which they both agree. The flexibility of arbitration also means that people can ask their arbitrator to make a decision based on the rules of a religion, based on grounds of conscience, or based on equity and fairness.

Arbitration can also be used to:

*break logjams in settlement discussions, where only one or two issues can't be agreed upon,
*resolve disagreements about how the law should be interpreted or applied in a particular situation,
*make temporary decisions about support or parenting arrangements while the parties are negotiating a settlement, or
*perform technical calculations, like about the amount of costs payable in a court proceeding, the income of someone who is self-employed, the amount of spousal support payable, or the after-tax cost of children's expenses.

====Faith-based arbitration====

Under section 19.10 of the ''[[Family Law Act]]'', the parties can choose their own law to govern the arbitration process. Nothing in the act says that this law cannot be a religious law. Judaism and Islam, for example, each have religious laws that can apply to family law disputes for members of those faiths. Members of the orthodox Jewish community may use Halakha to settle personal disputes. Muslims can use Sharia law for the same purpose.

Whatever rules a couple chooses, however, the result of an arbitration cannot be "inconsistent" with the ''Family Law Act'' or the ''[[Divorce Act]]''. Section 19.20 of the ''Family Law Act'' says this:

<blockquote><tt>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.</tt></blockquote>

This means, for example, that child support must be paid to the person who has the child most of the time by the person who has the child for the least amount of time, and that the amount of support paid cannot be too different from what the [[Child Support Guidelines]] require. It also means that a particular person shouldn't have the primary residence of a child merely because of their gender, the age of the child or some other arbitrary reason.

Note that if the parties to faith-based arbitration wish to obtain a divorce, they must still start a court proceeding in the Supreme Court of British Columbia for a divorce order. A religious divorce, such as the Jewish Get, is not a legal divorce.

====Parenting coordination====

Parenting coordination uses a process that includes a decision-making function that's a lot like arbitration. In parenting coordination, the arbitrator is called a ''parenting coordinator'' and first tries to settle a dispute about parenting through a settlement process like mediation. If the parents cannot find consensus, however, the parenting coordinator acts like an arbitrator and makes a written decision, called a ''determination'', resolving the dispute. The parenting coordinator's authority to resolve these disputes comes from the participation agreement the parents sign, in this case called a ''parenting coordination agreement''.

As with faith-based arbitration, or any other kind of family law arbitration for that matter, the parenting coordinator cannot make determinations that are inconsistent with the ''[[Family Law Act]]''. However, parenting coordinators are subject to additional restrictions in the scope of the things they can make decisions about. Under section 6(3) and (4)(a)(ix) of the [http://canlii.ca/t/8rdx Family Law Act Regulation], parenting coordinators can make determinations about parenting arrangements, contact with a child, and other issues agreed to by the parties and the parenting coordinator. However, regardless of whatever the parties and the parenting coordinator may have agreed to, a parenting coordinator may ''not'' make decisions about:

*legal issues that are excluded by an order or a parenting coordination agreement,
*changes to the guardianship of a child,
*changes to the allocation of parental responsibilities,
*giving parenting time or contact to a person who does not already have parenting time or contact,
*substantial changes to parenting time or contact, or
*the relocation of a child.

There's a lot more information about parenting coordination in the [[Parenting_Coordination|next section]] of this chapter.

==When to use arbitration==

There are lots of good reasons to use arbitration rather than go to court. It's fast and efficient, the rules that govern the process are extremely flexible, it's confidential and private, and you get to pick a judge who is an expert in not just family law but the aspects of the law that are the most important in your case. There are, however, only a few circumstances that make arbitration a necessary choice over mediation, collaborative negotiation, or litigation. Typically, people will choose to arbitrate their dispute if:

*they want the laws of their religion or another set of legal, moral or ethical principles to apply to their dispute,
*their positions are too far apart to make negotiation or mediation a reasonable option and must have a decision made for them, but don't want to go to the expense, anxiety, and acrimony typically involved in going to court,
*they want to resolve their dispute discreetly and privately, and don't want to risk their personal business being made public,
*the legal issues are complex and demand a decision-maker who is a specialist in those issues, or
*they want their dispute resolved more quickly than the court schedule will allow.

It's important to understand that while arbitrators can make awards on all of the usual family law issues — including parenting arrangements, contact, child support, spousal support, and the division of property and debt — arbitrators cannot make awards on certain issues that can only be decided by a judge. These include:

*divorce orders and annulments,
*orders appointing someone as the guardian of a child who is not a parent of that child,
*declarations about who is, and who is not, the parent of a child, unless the declaration is necessary to resolve an issue that is within the arbitrator's jurisdiction, and
*orders changing the order of a judge.

==How to find a family law arbitrator==

Finding a family law arbitrator can sometimes be the hard part about taking your problem to arbitration, as there aren't too many arbitrators who specialize in family law issues. Your first and best bet is to speak to a family law lawyer and see who they might recommend to you. (Most lawyers will have a list of three of four arbitrators who they've used in the past and like working with.) You might also do an internet search for "family law arbitrator British Columbia," as lawyers who work as family law arbitrators will describe themselves this way and take pains to indicate in which jurisdiction they work. You could also contact organizations which specialize in providing legal education and developing out-of-court dispute resolution processes, including:

*[https://www.adrbc.com the ADR Institute of British Columbia], and
*[http://www.labour-arbitrators.ca the Arbitrators Association of British Columbia].

(Be warned, however, that there are lots of accredited family law arbitrators who may not have decided to pay the money to join these organizations.) Finally, you could call the Canadian Bar Association's [http://www.clicklaw.bc.ca/helpmap/service/1044 Lawyer Referral Service]. Although the service can't recommend one family law arbitrator over another, they'll at least be able to give you some names.

==Resources and links==

===Legislation===

* ''[https://canlii.ca/t/551f9 Divorce Act]''
* ''[https://canlii.ca/t/8q3k Family Law Act]''
* [https://canlii.ca/t/8rdx Family Law Act Regulation]
* [https://canlii.ca/t/80mh Federal Child Support Guidelines]

===Links===

* [https://www.adrbc.com The ADR Institute of British Columbia]
* [https://adric.ca/ The ADR Institute of Canada]
* [http://www.labour-arbitrators.ca The Arbitrators Association of British Columbia]
* [http://www.clicklaw.bc.ca/helpmap/service/1044 Lawyer Referral Service]
* [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society]
* [https://www.boydarbitration.ca/library John-Paul Boyd Arbitration Chambers] Library
* [https://www.boydarbitration.ca/rules-of-procedure John-Paul Boyd Arbitration Chamber] Arbitration Procedure
* [https://www.lawsociety.bc.ca/ The Law Society of BC]
* [https://www.clicklaw.bc.ca/resource/4616 Resolving Disputes Without Going to Court] from Dial-a-Law by the People's Law School
* [https://www.clicklaw.bc.ca/resource/4191 Settling out of Court] from the Justice Education Society of BC
* [https://www.clicklaw.bc.ca/resource/1253 Mediation, collaborative negotiation, and arbitration] from Dial-a-Law by the People's Law School

===Resources===

*Arbitration [[Media:Arbitration procedure pick-list - fillable.pdf|procedure pick-list]] (fillable PDF)
*Sample arbitration [[Media:Arbitration Agreement - PDF.pdf|participation agreement]] (PDF) in cases where the parties are represented by lawyers.
*Sample arbitration [[Media:Arbitration Agreement - Self-Rep - PDF.pdf|participation agreement]] (PDF) in cases where the parties are not represented by lawyers.

These sample participation agreements may not resemble the participation agreement you are asked to sign. They provide a more or less accurate picture of what arbitration participation agreements usually look like, but should be used as a reference only.

You can also look at the website of [https://www.boydarbitration.ca/participationagreements John-Paul Boyd Arbitration Chambers] which provides a number of model participation agreements for download.

* [https://www.clicklaw.bc.ca/resource/4452 "An Evaluation of the Cost of Family Law Disputes: Measuring the Cost Implication of Various Dispute Resolution Methods" PDF] from Canadian Research Institute for Law and the Family
* [https://www.clicklaw.bc.ca/resource/1497 "Alternatives to Going to Court" PDF] from the Justice Education Society of BC

{{REVIEWED | reviewer = [[JP Boyd]], 25 August 2021}}

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[[Category:JP Boyd on Family Law]]

Family Law Arbitration

2023-04-18T22:30:18Z

Jpboyd: /* Mandatory elements of arbitration */

{{JP Boyd on Family Law TOC|expanded = outofcourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[JP Boyd]]
}}Arbitration is a dispute resolution process in which the parties hire a neutral third party, an ''arbitrator'', to make decisions resolving some or all of the legal issues in their dispute. While the job of a mediator is to help people work toward their own resolution of their family law dispute, the arbitrator's job is to act like a judge and make a decision resolving a legal dispute, after hearing the evidence and listening to the arguments of each party.

People who work as arbitrators are usually trained professionals who qualify as "family law dispute resolution professionals" under the ''[[Family Law Act]]'', meaning that they have the experience and education required by the [https://canlii.ca/t/5539g Family Law Act Regulation]. Lawyers who are "family law arbitrators" are specially accredited to arbitrate family law disputes by the [http://www.lawsociety.bc.ca Law Society of British Columbia].

This section provides an introduction to arbitration and discusses when to use arbitration in a family law dispute. It also provides some suggestions about how to find a family law arbitrator.

==Introduction==

Like mediation and collaborative negotiation, arbitration is a voluntary process. The parties to a dispute must all ''agree'' to use arbitration to resolve their legal dispute. Like those processes, arbitration is also an out-of-court way of resolving problems. However, that's where the similarities between arbitration, mediation and collaborative negotiation end. While the parties to a dispute may have agreed to use arbitration to resolve their dispute, it's the ''arbitrator'' who resolves their dispute, not the parties themselves.

Before the new ''[[Family Law Act]]'' became law in British Columbia, arbitration was rarely used in family law disputes. Arbitration was most frequently used in the context of commercial, labour, and construction disputes. In other places, such as Ontario and Alberta, the arbitration of family law disputes is well-established and has been for some time. The ''Family Law Act'', however, made a number of changes to the law that improved the usefulness of arbitration for family law disputes in British Columbia, and the number of people choosing arbitration over going to court has been increasing as a result.

Arbitration offers a number of advantages for resolving family law problems:

*it allows the parties to hand-pick the person who will make decisions about the issues they cannot agree on, which means that they might pick an arbitrator who is not just an expert family law lawyer, but an expert family law lawyer with special knowledge of a specific issue, like parenting children, tax problems, or property division,
*it allows the parties to pick the rules that will apply to the hearing and the decision-making process,
*arbitration resolves disputes much faster than going to court,
*the arbitration process is private, confidential, and closed to the public, and
*the result of the process is an arbitrator's award that is just as binding as a court order and is enforceable just like a court order.

As well, it's often faster to get a date for an arbitration hearing than it is for a court hearing. Although short trials of two or three days can usually be booked within ten to twelve months, it can take a year or more to get a date for longer trials because the court is so busy. An arbitration hearing can be booked as soon as everyone has free time in their calendars.

People can start arbitration right off the bat, as soon as a legal problem has come up, or they can use it to resolve a court proceeding as an alternative to trial. The result of a successful process of arbitration is an arbitrator's ''award''. If litigation has already started, the award can be turned into an order that the parties agree the court will make, called a ''consent order''. If the parties are married, a consent order may make more sense since they'll usually want an order for their divorce at the same time as they're wrapping everything else up.

The parties can meet with their arbitrator on their own or with their lawyers. As an arbitrator, I always appreciate having the parties' lawyers present. I recognize that having the lawyers at the arbitration hearing costs the parties more money, but the lawyers are intimately familiar with how to write briefs, make legal arguments and present evidence, and arbitration hearings with lawyers are usually much shorter than hearings without lawyers. However, there is no rule that you must have a lawyer represent you in arbitration, just like there's no rule that you must have a lawyer represent you in litigation.

The arbitrator has no stake in how the arbitration turns out. The arbitrator must be neutral and have no bias in favour of either party. Most of the time, the arbitrator should have no special connection — business, personal or otherwise — with either party, and the arbitrator must make sure that all parties are aware of any such special connections before they agree to hire the arbitrator.

==Working with "family law arbitrators" under the ''Family Law Act''==

An arbitrator who qualifies as a "family dispute resolution professional" under the ''[[Family Law Act]]'' must meet the requirements set out in the [http://canlii.ca/t/8rdx Family Law Act Regulation]. Section 5 of the regulation says that:

<blockquote><tt>(1) Only an arbitrator who is qualified as a family dispute resolution professional may conduct an arbitration in relation to a family law dispute.</tt></blockquote>

Lawyers who qualify as ''family law arbitrators'' meet the training requirements of, and are accredited by, the Law Society of British Columbia. You can find out if a lawyer is a "family law arbitrator" by looking the lawyer up in the [https://www.lawsociety.bc.ca/lsbc/apps/lkup/mbr-search.cfm Lawyer Directory] on the Law Society's website. The training requirements that professionals other than lawyers must meet to qualify as "family dispute resolution professionals" are set out in section 5(2)(b) of the Family Law Act Regulation, and include:

*being a member in good standing with specific organizations,
*meeting specific educational and experiential requirements, including at least 10 years' experience in family-related practice,
*taking continuing family dispute resolution training, and
*carrying professional liability insurance.

It's important to know that, under section 5(3) of the regulation, people other than lawyers may only arbitrate disputes dealing with ''parenting children'', including contact with a child, and ''child support''. However, they can only deal with child support if:

*all of the children are under 19 years of age,
*none of the payor's income is self-employment income or partnership income,
*the payor's income is less than $150,000 per year, and
*the [[Child Support Guidelines]] tables are being used to calculate the basic child support amount.

As well, if children's special or extraordinary expenses are an issue that is to be resolved by an arbitrator who is not a lawyer, section 5(3)(c)(v) says that "the determination of what those expenses are and how they are to be calculated" must be "straightforward."

Section 5 of the regulation imposes two extra duties on arbitrators who are family dispute resolution professionals: they must use written participation agreements; and, they must provide the parties with confirmation that they qualify as family dispute resolution professionals. Section 5(4) says this:

<blockquote><tt>(4) The following practice standards apply to a family dispute resolution professional who wishes to engage in arbitration in relation to a family law dispute:</tt></blockquote>
<blockquote><blockquote><tt>(a) before initiating arbitration, he or she must enter into a written agreement to arbitrate with the parties to the family law dispute;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) before initiating arbitration, he or she must provide written confirmation to the parties to the family law dispute that he or she meets the professional requirements set out in subsection (2).</tt></blockquote></blockquote>

==The arbitration process==

These are the steps involved in the basic arbitration process.

*'''Pick your arbitrator.''' Your lawyer will have the names of three or four arbitrators they prefer to work with. If you don't have a lawyer, you can look at the membership lists of organizations like the [http://adric.ca ADR Institute of Canada], although many accredited family law arbitrators may not have decided to spend the money to join those organizations.
*'''Sign the arbitrator's participation agreement.''' This is a contract that describes your responsibilities and the responsibilities of your arbitrator, and how the arbitrator will be paid. It also requires you to agree to be bound by the result of the arbitration.
*'''Prepare for and attend the prehearing conference.''' This is a meeting during which the parties, their lawyers and the arbitrator will make decisions about how the arbitration will work, including the rules for the hearing, the place and date of the hearing, and the legal issues to be resolved at the hearing.
*'''Prepare your case.''' Start working on your case by researching the law and thinking about the evidence you need to prove your case.
*'''Complete discovery and disclosure.''' This is a process in which you and the other party or parties will exchange documents and information that are relevant to the legal issues in your dispute, such as income tax returns if child support or spousal support is one of those issues.
*'''Exchange the documents you're going to use at the hearing.''' These documents might include written arguments, financial statements or summaries of what your witnesses are going to say.
*'''Attend the hearing.''' An arbitration hearing is the equivalent of a trial, but with special rules and shorter processes. Sometimes you may attend by teleconference or videoconference rather than in person.
*'''Receive the arbitrator's decision.''' The arbitrator will prepare their decision, and the reasons for their decision, in a written document called an award. Most arbitrators try to get their awards to the parties as soon as possible, but it can sometimes take a long time to finish a decision, especially if the evidence presented at the hearing was unusually complicated.
*'''Review the award and ask for corrections.''' You have 30 days after you get the arbitrator's award to ask the arbitrator to correct any typos and other mistakes, and to ask the arbitrator to explain specific parts of their award.

Under section 19.16 of the ''[[Family Law Act]]'', an arbitration is over when:

#the arbitrator has delivered their final award and the time to correct the arbitrator's decision has passed;
#the parties agree to end the arbitration; or,
#the arbitrator makes an order that it is "unnecessary or impossible" to continue the arbitration.

===Starting arbitration===

There are only two ways you can get your family law problem into arbitration.

First, you might have a family law agreement — like a cohabitation agreement, a marriage agreement, or a separation agreement — which says that any disputes or questions about the agreement, or the subjects the agreement covers, will be resolved through arbitration.

Second, you might agree, after a problem has arisen, that you'll go to arbitration instead of going to court, or instead of another process like mediation or collaborative negotiation. You can even agree to resolve a dispute through arbitration after a court proceeding has started. A lot of people decide to do this when they find out how far away their trial is scheduled to start, and when they find out that there's no guarantee that they'll get a judge who is an expert in resolving family law disputes.

You cannot force someone into arbitration, including by asking for a court order that you go to arbitration. Even though section 224(1) of the ''[[Family Law Act]]'' says that "a court may make an order to ... require the parties to participate in family dispute resolution," the court will not make an order that someone go to arbitration. Resolving a dispute through arbitration has to be voluntary, either because you've already agreed to use arbitration ''if'' a problem comes up or because you've agreed to use arbitration ''after'' the problem has come up.

===Arbitration processes===

When people agree or are required to arbitrate their dispute, they first pick their arbitrator. The arbitrator you choose should be someone who is an expert in family law, and perhaps even an expert in family law with special knowledge or skills concerning the most important issues in your dispute. You probably want to choose someone who has a lot of experience as an arbitrator, someone who has a good reputation in the legal community, and, most importantly, someone you see as being neutral, fair-minded and unbiased.

After picking the arbitrator, the arbitrator will ask the parties to sign a participation agreement, usually called an ''arbitration agreement.'' This agreement does three things. First, it serves as the arbitrator's retainer agreement and describes how the arbitrator will charge for their services and when they will expect to be paid. (You can read more about retainer agreements in the [[Understanding the Legal System for Family Law Matters]] chapter, in the [[You and Your Lawyer]] section.) Second, it describes the parties' rights and responsibilities in the process, as well as the responsibilities of the arbitrator and the scope of their authority. Third, it identifies the legal issues the arbitrator will address.

The next step is to meet with the arbitrator to discuss the process leading to the arbitration hearing, decide the date and place for the hearing, and pick the rules that will govern the hearing. This meeting is called a ''prehearing conference'', and picking the rules that will govern the hearing is sometimes the most important part of the arbitration process. A lot of the time, the rules that people select are taken from the more important parts of the [https://canlii.ca/t/8mcr Supreme Court Family Rules] that talk about evidence, experts, and hearing procedures. However, there are lots of other options. People can pick the rules that best suit the circumstances of their children, the nature of their dispute, and the status of their finances. It's important to be as thoughtful as possible in deciding what rules are necessary. Arbitration can look just like going to court, but it doesn't have to. It can be a lot more focused, a lot more efficient, and a lot faster.

How the arbitration process works after the prehearing conference will depend on the rules you've picked.

====The basic arbitration process====

Most of the time, the next step after the prehearing conference involves exchanging the documents and information that are relevant to the legal issues in the dispute. If child support is an issue, for example, financial statements might be prepared and documents like income tax returns, T4 slips, and paystubs might be exchanged. If property is an issue, you might need tax assessments, purchase documents, mortgage statements, and maybe a professional appraisal of the current value of the property.

You need to think carefully about what sort of documents and information you need. For complicated problems, you might also hire an expert to give an opinion about things like the value of a pension, a tax problem, or the best parenting arrangements for the children. (That last kind of opinion is called a ''parenting assessment'' or a ''section 211 report'', and is usually prepared by a psychologist, clinical counsellor, or social worker. You can get more information about ''reports'' and ''assessments'' in the [[Children and Parenting after Separation]] chapter.) You might also need to exchange bank statements, credit card statements and corporate financial statements. The nature of the documents that are important, the extent of the disclosure that is required, and the type of expert opinions that are most useful will change depending on the circumstances, the legal issues, and how the parties have decided to approach the arbitration process.

Once the relevant documents have been exchanged and any expert opinions have been completed, each party will start to work on how they're going to present their case to the arbitrator and on the documents they'll want to refer the arbitrator to at the hearing. These might include:

*written arguments,
*timelines, charts, financial tables, photographs, videos, and other visual aids,
*summaries of what your witnesses are going to say, called ''will-say statements'',
*affidavits and financial statements,
*binders with the financial and other documents you're going to be asking your witnesses to identify, comment on, or explain, called ''books of documents'', and
*binders with the case law you're going to be asking the arbitrator to consider, called ''books of authorities''.

Sometimes the arbitrator will want the parties to cooperate and prepare other hearing documents together. These might include:

*''statements of agreed facts'', a written summary of the facts both parties agree about, and
*''joint books of documents'', binders with the financial and other documents you will both rely on.

Next, the parties and their lawyers, if they have them, will attend the hearing. Arbitration hearings can take place in the arbitrator's office, a boardroom in a hotel or anywhere else that's private, or even remotely by videoconference, and are usually less formal than court hearings; arbitration processes can be as formal or informal as the parties and the arbitrator want.

At the hearing, each party makes an opening argument describing the evidence that will be given and then presents their evidence. The parties' evidence usually consists of the testimony of witnesses, documents, and affidavits. Each party then makes a closing argument to show the arbitrator why the arbitrator should resolve their dispute in the way they each prefer.

After the hearing process is over, the arbitrator will provide a written decision, called an ''award'', summarizing the evidence and resolving all of the legal issues, and explaining why the arbitrator resolved the issues in the way they resolved them.

====Other arbitration processes====

Arbitration processes can be as simple or as complicated as the parties want. The basic arbitration process I've just described looks and feels very much like the process that applies in court. However, it isn't always necessary to have a witness who gives oral evidence, or to have any evidence at all. It isn't always necessary to have oral arguments. Sometimes written arguments alone will do. And, if the parties agree, awards can provide a summary explanation of the arbitrator's decision rather than a full explanation.

Here are some examples of alternative arbitration processes:

*The parties could make their arguments to the arbitrator by telephone or videoconference, with no evidence at all, and the arbitrator giving an oral decision right there on the spot. (This process would be ideal for decisions about a legal question where the facts either don't matter or aren't in dispute. It's also the cheapest and fastest way to get a decision.)
*If evidence is necessary to help the arbitrator make their decision, the parties could make their arguments by telephone or video, and the evidence could be presented by affidavits alone, without the in-person testimony of any witness.
*If an in-person hearing is necessary, the parties could agree that evidence will be provided by affidavit, with the people who made the affidavits being cross-examined by the other person or their lawyer. Or, the parties could agree that only a limited number of witnesses will testify, and that each party will have a limited amount of time to examine and cross-examine each witness.
*If an in-person hearing is necessary and the parties agree to very few of the important facts, the parties could have an arbitration with all the bells and whistles available if they were going to court, with no limits on the number or amount of time for each witness. (This process will take the longest time to wrap up and also cost the most money.)
*Where neither party is represented by a lawyer, the hearing could be in-person but be managed completely by the arbitrator who can explore issues and ask questions. The arbitrator would work with the parties to identify the legal issues in the dispute, and then lead the examination of all of the witnesses.

I have developed a checklist of procedural elements that is helpful for designing arbitration processes, and covers every part of the arbitration process, from deciding whether to have an in-person hearing or a hearing by videoconference, to whether and how experts will be hired, to how evidence will be presented at the hearing. You can download my "Arbitration Rules Pick-List" from the [https://www.boydarbitration.ca/rules-of-procedure website] of John-Paul Boyd Arbitration Chambers.

====Mandatory elements of arbitration processes====

Although arbitration processes are incredibly flexible, there are certain aspects of arbitration that are required in British Columbia.

First, the arbitrator must give each party the opportunity to make their case, and to reply to the case made by the other party. This is a basic element of the Canadian justice system, called either "natural justice" or "fundamental justice," that is required of judges as well as arbitrators.

Second, the arbitrator must treat each party fairly and not be biased in favour of one party over the other. Section 19.8 of the ''[[Family Law Act]]'' says this:

<blockquote><tt>(1) An arbitrator must be independent of the parties.</tt></blockquote>
<blockquote><tt>(2) An arbitrator must be impartial and act impartially.</tt></blockquote>
<blockquote><tt>(3) If a person is approached in connection with the person's possible appointment as an arbitrator, the person must, without delay, disclose any circumstances likely to give rise to justifiable doubts as to the person's independence or impartiality.</tt></blockquote>
<blockquote><tt>(4) An arbitrator, from the time of the arbitrator's appointment and throughout the arbitration, must, without delay, disclose to the parties any circumstances referred to in subsection (3).</tt></blockquote>

Third, when it comes to decisions about children, the arbitrator must consider only the best interests of the children.

Finally, arbitral awards must be given in writing and be signed by the arbitrator.

Otherwise, the parties and their arbitrator are free to be as creative as they want and create the rules and the process that are best-suited to the parties, their children, their dispute, their timeline, and their budget.

===Other uses of arbitration===

Arbitration is very helpful in resolving family law problems quickly and efficiently. Parenting coordinators use a process a lot like arbitration to make decisions resolving disagreements when the parents aren't able to find solutions to which they both agree. The flexibility of arbitration also means that people can ask their arbitrator to make a decision based on the rules of a religion, based on grounds of conscience, or based on equity and fairness.

Arbitration can also be used to:

*break logjams in settlement discussions, where only one or two issues can't be agreed upon,
*resolve disagreements about how the law should be interpreted or applied in a particular situation,
*make temporary decisions about support or parenting arrangements while the parties are negotiating a settlement, or
*perform technical calculations, like about the amount of costs payable in a court proceeding, the income of someone who is self-employed, the amount of spousal support payable, or the after-tax cost of children's expenses.

====Faith-based arbitration====

Under section 19.10 of the ''[[Family Law Act]]'', the parties can choose their own law to govern the arbitration process. Nothing in the act says that this law cannot be a religious law. Judaism and Islam, for example, each have religious laws that can apply to family law disputes for members of those faiths. Members of the orthodox Jewish community may use Halakha to settle personal disputes. Muslims can use Sharia law for the same purpose.

Whatever rules a couple chooses, however, the result of an arbitration cannot be "inconsistent" with the ''Family Law Act'' or the ''[[Divorce Act]]''. Section 19.20 of the ''Family Law Act'' says this:

<blockquote><tt>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.</tt></blockquote>

This means, for example, that child support must be paid to the person who has the child most of the time by the person who has the child for the least amount of time, and that the amount of support paid cannot be too different from what the [[Child Support Guidelines]] require. It also means that a particular person shouldn't have the primary residence of a child merely because of their gender, the age of the child or some other arbitrary reason.

Note that if the parties to faith-based arbitration wish to obtain a divorce, they must still start a court proceeding in the Supreme Court of British Columbia for a divorce order. A religious divorce, such as the Jewish Get, is not a legal divorce.

====Parenting coordination====

Parenting coordination uses a process that includes a decision-making function that's a lot like arbitration. In parenting coordination, the arbitrator is called a ''parenting coordinator'' and first tries to settle a dispute about parenting through a settlement process like mediation. If the parents cannot find consensus, however, the parenting coordinator acts like an arbitrator and makes a written decision, called a ''determination'', resolving the dispute. The parenting coordinator's authority to resolve these disputes comes from the participation agreement the parents sign, in this case called a ''parenting coordination agreement''.

As with faith-based arbitration, or any other kind of family law arbitration for that matter, the parenting coordinator cannot make determinations that are inconsistent with the ''[[Family Law Act]]''. However, parenting coordinators are subject to additional restrictions in the scope of the things they can make decisions about. Under section 6(3) and (4)(a)(ix) of the [http://canlii.ca/t/8rdx Family Law Act Regulation], parenting coordinators can make determinations about parenting arrangements, contact with a child, and other issues agreed to by the parties and the parenting coordinator. However, regardless of whatever the parties and the parenting coordinator may have agreed to, a parenting coordinator may ''not'' make decisions about:

*legal issues that are excluded by an order or a parenting coordination agreement,
*changes to the guardianship of a child,
*changes to the allocation of parental responsibilities,
*giving parenting time or contact to a person who does not already have parenting time or contact,
*substantial changes to parenting time or contact, or
*the relocation of a child.

There's a lot more information about parenting coordination in the [[Parenting_Coordination|next section]] of this chapter.

==When to use arbitration==

There are lots of good reasons to use arbitration rather than go to court. It's fast and efficient, the rules that govern the process are extremely flexible, it's confidential and private, and you get to pick a judge who is an expert in not just family law but the aspects of the law that are the most important in your case. There are, however, only a few circumstances that make arbitration a necessary choice over mediation, collaborative negotiation, or litigation. Typically, people will choose to arbitrate their dispute if:

*they want the laws of their religion or another set of legal, moral or ethical principles to apply to their dispute,
*their positions are too far apart to make negotiation or mediation a reasonable option and must have a decision made for them, but don't want to go to the expense, anxiety, and acrimony typically involved in going to court,
*they want to resolve their dispute discreetly and privately, and don't want to risk their personal business being made public,
*the legal issues are complex and demand a decision-maker who is a specialist in those issues, or
*they want their dispute resolved more quickly than the court schedule will allow.

It's important to understand that while arbitrators can make awards on all of the usual family law issues — including parenting arrangements, contact, child support, spousal support, and the division of property and debt — arbitrators cannot make awards on certain issues that can only be decided by a judge. These include:

*divorce orders and annulments,
*orders appointing someone as the guardian of a child who is not a parent of that child,
*declarations about who is, and who is not, the parent of a child, unless the declaration is necessary to resolve an issue that is within the arbitrator's jurisdiction, and
*orders changing the order of a judge.

==How to find a family law arbitrator==

Finding a family law arbitrator can sometimes be the hard part about taking your problem to arbitration, as there aren't too many arbitrators who specialize in family law issues. Your first and best bet is to speak to a family law lawyer and see who they might recommend to you. (Most lawyers will have a list of three of four arbitrators who they've used in the past and like working with.) You might also do an internet search for "family law arbitrator British Columbia," as lawyers who work as family law arbitrators will describe themselves this way and take pains to indicate in which jurisdiction they work. You could also contact organizations which specialize in providing legal education and developing out-of-court dispute resolution processes, including:

*[https://www.adrbc.com the ADR Institute of British Columbia], and
*[http://www.labour-arbitrators.ca the Arbitrators Association of British Columbia].

(Be warned, however, that there are lots of accredited family law arbitrators who may not have decided to pay the money to join these organizations.) Finally, you could call the Canadian Bar Association's [http://www.clicklaw.bc.ca/helpmap/service/1044 Lawyer Referral Service]. Although the service can't recommend one family law arbitrator over another, they'll at least be able to give you some names.

==Resources and links==

===Legislation===

* ''[https://canlii.ca/t/551f9 Divorce Act]''
* ''[https://canlii.ca/t/8q3k Family Law Act]''
* [https://canlii.ca/t/8rdx Family Law Act Regulation]
* [https://canlii.ca/t/80mh Federal Child Support Guidelines]

===Links===

* [https://www.adrbc.com The ADR Institute of British Columbia]
* [https://adric.ca/ The ADR Institute of Canada]
* [http://www.labour-arbitrators.ca The Arbitrators Association of British Columbia]
* [http://www.clicklaw.bc.ca/helpmap/service/1044 Lawyer Referral Service]
* [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society]
* [https://www.boydarbitration.ca/library John-Paul Boyd Arbitration Chambers] Library
* [https://www.boydarbitration.ca/rules-of-procedure John-Paul Boyd Arbitration Chamber] Arbitration Procedure
* [https://www.lawsociety.bc.ca/ The Law Society of BC]
* [https://www.clicklaw.bc.ca/resource/4616 Resolving Disputes Without Going to Court] from Dial-a-Law by the People's Law School
* [https://www.clicklaw.bc.ca/resource/4191 Settling out of Court] from the Justice Education Society of BC
* [https://www.clicklaw.bc.ca/resource/1253 Mediation, collaborative negotiation, and arbitration] from Dial-a-Law by the People's Law School

===Resources===

*Arbitration [[Media:Arbitration procedure pick-list - fillable.pdf|procedure pick-list]] (fillable PDF)
*Sample arbitration [[Media:Arbitration Agreement - PDF.pdf|participation agreement]] (PDF) in cases where the parties are represented by lawyers.
*Sample arbitration [[Media:Arbitration Agreement - Self-Rep - PDF.pdf|participation agreement]] (PDF) in cases where the parties are not represented by lawyers.

These sample participation agreements may not resemble the participation agreement you are asked to sign. They provide a more or less accurate picture of what arbitration participation agreements usually look like, but should be used as a reference only.

You can also look at the website of [https://www.boydarbitration.ca/participationagreements John-Paul Boyd Arbitration Chambers] which provides a number of model participation agreements for download.

* [https://www.clicklaw.bc.ca/resource/4452 "An Evaluation of the Cost of Family Law Disputes: Measuring the Cost Implication of Various Dispute Resolution Methods" PDF] from Canadian Research Institute for Law and the Family
* [https://www.clicklaw.bc.ca/resource/1497 "Alternatives to Going to Court" PDF] from the Justice Education Society of BC

{{REVIEWED | reviewer = [[JP Boyd]], 25 August 2021}}

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[[Category:JP Boyd on Family Law]]

Family Law Arbitration

2023-04-18T22:27:37Z

Jpboyd: /* Introduction */

{{JP Boyd on Family Law TOC|expanded = outofcourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[JP Boyd]]
}}Arbitration is a dispute resolution process in which the parties hire a neutral third party, an ''arbitrator'', to make decisions resolving some or all of the legal issues in their dispute. While the job of a mediator is to help people work toward their own resolution of their family law dispute, the arbitrator's job is to act like a judge and make a decision resolving a legal dispute, after hearing the evidence and listening to the arguments of each party.

People who work as arbitrators are usually trained professionals who qualify as "family law dispute resolution professionals" under the ''[[Family Law Act]]'', meaning that they have the experience and education required by the [https://canlii.ca/t/5539g Family Law Act Regulation]. Lawyers who are "family law arbitrators" are specially accredited to arbitrate family law disputes by the [http://www.lawsociety.bc.ca Law Society of British Columbia].

This section provides an introduction to arbitration and discusses when to use arbitration in a family law dispute. It also provides some suggestions about how to find a family law arbitrator.

==Introduction==

Like mediation and collaborative negotiation, arbitration is a voluntary process. The parties to a dispute must all ''agree'' to use arbitration to resolve their legal dispute. Like those processes, arbitration is also an out-of-court way of resolving problems. However, that's where the similarities between arbitration, mediation and collaborative negotiation end. While the parties to a dispute may have agreed to use arbitration to resolve their dispute, it's the ''arbitrator'' who resolves their dispute, not the parties themselves.

Before the new ''[[Family Law Act]]'' became law in British Columbia, arbitration was rarely used in family law disputes. Arbitration was most frequently used in the context of commercial, labour, and construction disputes. In other places, such as Ontario and Alberta, the arbitration of family law disputes is well-established and has been for some time. The ''Family Law Act'', however, made a number of changes to the law that improved the usefulness of arbitration for family law disputes in British Columbia, and the number of people choosing arbitration over going to court has been increasing as a result.

Arbitration offers a number of advantages for resolving family law problems:

*it allows the parties to hand-pick the person who will make decisions about the issues they cannot agree on, which means that they might pick an arbitrator who is not just an expert family law lawyer, but an expert family law lawyer with special knowledge of a specific issue, like parenting children, tax problems, or property division,
*it allows the parties to pick the rules that will apply to the hearing and the decision-making process,
*arbitration resolves disputes much faster than going to court,
*the arbitration process is private, confidential, and closed to the public, and
*the result of the process is an arbitrator's award that is just as binding as a court order and is enforceable just like a court order.

As well, it's often faster to get a date for an arbitration hearing than it is for a court hearing. Although short trials of two or three days can usually be booked within ten to twelve months, it can take a year or more to get a date for longer trials because the court is so busy. An arbitration hearing can be booked as soon as everyone has free time in their calendars.

People can start arbitration right off the bat, as soon as a legal problem has come up, or they can use it to resolve a court proceeding as an alternative to trial. The result of a successful process of arbitration is an arbitrator's ''award''. If litigation has already started, the award can be turned into an order that the parties agree the court will make, called a ''consent order''. If the parties are married, a consent order may make more sense since they'll usually want an order for their divorce at the same time as they're wrapping everything else up.

The parties can meet with their arbitrator on their own or with their lawyers. As an arbitrator, I always appreciate having the parties' lawyers present. I recognize that having the lawyers at the arbitration hearing costs the parties more money, but the lawyers are intimately familiar with how to write briefs, make legal arguments and present evidence, and arbitration hearings with lawyers are usually much shorter than hearings without lawyers. However, there is no rule that you must have a lawyer represent you in arbitration, just like there's no rule that you must have a lawyer represent you in litigation.

The arbitrator has no stake in how the arbitration turns out. The arbitrator must be neutral and have no bias in favour of either party. Most of the time, the arbitrator should have no special connection — business, personal or otherwise — with either party, and the arbitrator must make sure that all parties are aware of any such special connections before they agree to hire the arbitrator.

==Working with "family law arbitrators" under the ''Family Law Act''==

An arbitrator who qualifies as a "family dispute resolution professional" under the ''[[Family Law Act]]'' must meet the requirements set out in the [http://canlii.ca/t/8rdx Family Law Act Regulation]. Section 5 of the regulation says that:

<blockquote><tt>(1) Only an arbitrator who is qualified as a family dispute resolution professional may conduct an arbitration in relation to a family law dispute.</tt></blockquote>

Lawyers who qualify as ''family law arbitrators'' meet the training requirements of, and are accredited by, the Law Society of British Columbia. You can find out if a lawyer is a "family law arbitrator" by looking the lawyer up in the [https://www.lawsociety.bc.ca/lsbc/apps/lkup/mbr-search.cfm Lawyer Directory] on the Law Society's website. The training requirements that professionals other than lawyers must meet to qualify as "family dispute resolution professionals" are set out in section 5(2)(b) of the Family Law Act Regulation, and include:

*being a member in good standing with specific organizations,
*meeting specific educational and experiential requirements, including at least 10 years' experience in family-related practice,
*taking continuing family dispute resolution training, and
*carrying professional liability insurance.

It's important to know that, under section 5(3) of the regulation, people other than lawyers may only arbitrate disputes dealing with ''parenting children'', including contact with a child, and ''child support''. However, they can only deal with child support if:

*all of the children are under 19 years of age,
*none of the payor's income is self-employment income or partnership income,
*the payor's income is less than $150,000 per year, and
*the [[Child Support Guidelines]] tables are being used to calculate the basic child support amount.

As well, if children's special or extraordinary expenses are an issue that is to be resolved by an arbitrator who is not a lawyer, section 5(3)(c)(v) says that "the determination of what those expenses are and how they are to be calculated" must be "straightforward."

Section 5 of the regulation imposes two extra duties on arbitrators who are family dispute resolution professionals: they must use written participation agreements; and, they must provide the parties with confirmation that they qualify as family dispute resolution professionals. Section 5(4) says this:

<blockquote><tt>(4) The following practice standards apply to a family dispute resolution professional who wishes to engage in arbitration in relation to a family law dispute:</tt></blockquote>
<blockquote><blockquote><tt>(a) before initiating arbitration, he or she must enter into a written agreement to arbitrate with the parties to the family law dispute;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) before initiating arbitration, he or she must provide written confirmation to the parties to the family law dispute that he or she meets the professional requirements set out in subsection (2).</tt></blockquote></blockquote>

==The arbitration process==

These are the steps involved in the basic arbitration process.

*'''Pick your arbitrator.''' Your lawyer will have the names of three or four arbitrators they prefer to work with. If you don't have a lawyer, you can look at the membership lists of organizations like the [http://adric.ca ADR Institute of Canada], although many accredited family law arbitrators may not have decided to spend the money to join those organizations.
*'''Sign the arbitrator's participation agreement.''' This is a contract that describes your responsibilities and the responsibilities of your arbitrator, and how the arbitrator will be paid. It also requires you to agree to be bound by the result of the arbitration.
*'''Prepare for and attend the prehearing conference.''' This is a meeting during which the parties, their lawyers and the arbitrator will make decisions about how the arbitration will work, including the rules for the hearing, the place and date of the hearing, and the legal issues to be resolved at the hearing.
*'''Prepare your case.''' Start working on your case by researching the law and thinking about the evidence you need to prove your case.
*'''Complete discovery and disclosure.''' This is a process in which you and the other party or parties will exchange documents and information that are relevant to the legal issues in your dispute, such as income tax returns if child support or spousal support is one of those issues.
*'''Exchange the documents you're going to use at the hearing.''' These documents might include written arguments, financial statements or summaries of what your witnesses are going to say.
*'''Attend the hearing.''' An arbitration hearing is the equivalent of a trial, but with special rules and shorter processes. Sometimes you may attend by teleconference or videoconference rather than in person.
*'''Receive the arbitrator's decision.''' The arbitrator will prepare their decision, and the reasons for their decision, in a written document called an award. Most arbitrators try to get their awards to the parties as soon as possible, but it can sometimes take a long time to finish a decision, especially if the evidence presented at the hearing was unusually complicated.
*'''Review the award and ask for corrections.''' You have 30 days after you get the arbitrator's award to ask the arbitrator to correct any typos and other mistakes, and to ask the arbitrator to explain specific parts of their award.

Under section 19.16 of the ''[[Family Law Act]]'', an arbitration is over when:

#the arbitrator has delivered their final award and the time to correct the arbitrator's decision has passed;
#the parties agree to end the arbitration; or,
#the arbitrator makes an order that it is "unnecessary or impossible" to continue the arbitration.

===Starting arbitration===

There are only two ways you can get your family law problem into arbitration.

First, you might have a family law agreement — like a cohabitation agreement, a marriage agreement, or a separation agreement — which says that any disputes or questions about the agreement, or the subjects the agreement covers, will be resolved through arbitration.

Second, you might agree, after a problem has arisen, that you'll go to arbitration instead of going to court, or instead of another process like mediation or collaborative negotiation. You can even agree to resolve a dispute through arbitration after a court proceeding has started. A lot of people decide to do this when they find out how far away their trial is scheduled to start, and when they find out that there's no guarantee that they'll get a judge who is an expert in resolving family law disputes.

You cannot force someone into arbitration, including by asking for a court order that you go to arbitration. Even though section 224(1) of the ''[[Family Law Act]]'' says that "a court may make an order to ... require the parties to participate in family dispute resolution," the court will not make an order that someone go to arbitration. Resolving a dispute through arbitration has to be voluntary, either because you've already agreed to use arbitration ''if'' a problem comes up or because you've agreed to use arbitration ''after'' the problem has come up.

===Arbitration processes===

When people agree or are required to arbitrate their dispute, they first pick their arbitrator. The arbitrator you choose should be someone who is an expert in family law, and perhaps even an expert in family law with special knowledge or skills concerning the most important issues in your dispute. You probably want to choose someone who has a lot of experience as an arbitrator, someone who has a good reputation in the legal community, and, most importantly, someone you see as being neutral, fair-minded and unbiased.

After picking the arbitrator, the arbitrator will ask the parties to sign a participation agreement, usually called an ''arbitration agreement.'' This agreement does three things. First, it serves as the arbitrator's retainer agreement and describes how the arbitrator will charge for their services and when they will expect to be paid. (You can read more about retainer agreements in the [[Understanding the Legal System for Family Law Matters]] chapter, in the [[You and Your Lawyer]] section.) Second, it describes the parties' rights and responsibilities in the process, as well as the responsibilities of the arbitrator and the scope of their authority. Third, it identifies the legal issues the arbitrator will address.

The next step is to meet with the arbitrator to discuss the process leading to the arbitration hearing, decide the date and place for the hearing, and pick the rules that will govern the hearing. This meeting is called a ''prehearing conference'', and picking the rules that will govern the hearing is sometimes the most important part of the arbitration process. A lot of the time, the rules that people select are taken from the more important parts of the [https://canlii.ca/t/8mcr Supreme Court Family Rules] that talk about evidence, experts, and hearing procedures. However, there are lots of other options. People can pick the rules that best suit the circumstances of their children, the nature of their dispute, and the status of their finances. It's important to be as thoughtful as possible in deciding what rules are necessary. Arbitration can look just like going to court, but it doesn't have to. It can be a lot more focused, a lot more efficient, and a lot faster.

How the arbitration process works after the prehearing conference will depend on the rules you've picked.

====The basic arbitration process====

Most of the time, the next step after the prehearing conference involves exchanging the documents and information that are relevant to the legal issues in the dispute. If child support is an issue, for example, financial statements might be prepared and documents like income tax returns, T4 slips, and paystubs might be exchanged. If property is an issue, you might need tax assessments, purchase documents, mortgage statements, and maybe a professional appraisal of the current value of the property.

You need to think carefully about what sort of documents and information you need. For complicated problems, you might also hire an expert to give an opinion about things like the value of a pension, a tax problem, or the best parenting arrangements for the children. (That last kind of opinion is called a ''parenting assessment'' or a ''section 211 report'', and is usually prepared by a psychologist, clinical counsellor, or social worker. You can get more information about ''reports'' and ''assessments'' in the [[Children and Parenting after Separation]] chapter.) You might also need to exchange bank statements, credit card statements and corporate financial statements. The nature of the documents that are important, the extent of the disclosure that is required, and the type of expert opinions that are most useful will change depending on the circumstances, the legal issues, and how the parties have decided to approach the arbitration process.

Once the relevant documents have been exchanged and any expert opinions have been completed, each party will start to work on how they're going to present their case to the arbitrator and on the documents they'll want to refer the arbitrator to at the hearing. These might include:

*written arguments,
*timelines, charts, financial tables, photographs, videos, and other visual aids,
*summaries of what your witnesses are going to say, called ''will-say statements'',
*affidavits and financial statements,
*binders with the financial and other documents you're going to be asking your witnesses to identify, comment on, or explain, called ''books of documents'', and
*binders with the case law you're going to be asking the arbitrator to consider, called ''books of authorities''.

Sometimes the arbitrator will want the parties to cooperate and prepare other hearing documents together. These might include:

*''statements of agreed facts'', a written summary of the facts both parties agree about, and
*''joint books of documents'', binders with the financial and other documents you will both rely on.

Next, the parties and their lawyers, if they have them, will attend the hearing. Arbitration hearings can take place in the arbitrator's office, a boardroom in a hotel or anywhere else that's private, or even remotely by videoconference, and are usually less formal than court hearings; arbitration processes can be as formal or informal as the parties and the arbitrator want.

At the hearing, each party makes an opening argument describing the evidence that will be given and then presents their evidence. The parties' evidence usually consists of the testimony of witnesses, documents, and affidavits. Each party then makes a closing argument to show the arbitrator why the arbitrator should resolve their dispute in the way they each prefer.

After the hearing process is over, the arbitrator will provide a written decision, called an ''award'', summarizing the evidence and resolving all of the legal issues, and explaining why the arbitrator resolved the issues in the way they resolved them.

====Other arbitration processes====

Arbitration processes can be as simple or as complicated as the parties want. The basic arbitration process I've just described looks and feels very much like the process that applies in court. However, it isn't always necessary to have a witness who gives oral evidence, or to have any evidence at all. It isn't always necessary to have oral arguments. Sometimes written arguments alone will do. And, if the parties agree, awards can provide a summary explanation of the arbitrator's decision rather than a full explanation.

Here are some examples of alternative arbitration processes:

*The parties could make their arguments to the arbitrator by telephone or videoconference, with no evidence at all, and the arbitrator giving an oral decision right there on the spot. (This process would be ideal for decisions about a legal question where the facts either don't matter or aren't in dispute. It's also the cheapest and fastest way to get a decision.)
*If evidence is necessary to help the arbitrator make their decision, the parties could make their arguments by telephone or video, and the evidence could be presented by affidavits alone, without the in-person testimony of any witness.
*If an in-person hearing is necessary, the parties could agree that evidence will be provided by affidavit, with the people who made the affidavits being cross-examined by the other person or their lawyer. Or, the parties could agree that only a limited number of witnesses will testify, and that each party will have a limited amount of time to examine and cross-examine each witness.
*If an in-person hearing is necessary and the parties agree to very few of the important facts, the parties could have an arbitration with all the bells and whistles available if they were going to court, with no limits on the number or amount of time for each witness. (This process will take the longest time to wrap up and also cost the most money.)
*Where neither party is represented by a lawyer, the hearing could be in-person but be managed completely by the arbitrator who can explore issues and ask questions. The arbitrator would work with the parties to identify the legal issues in the dispute, and then lead the examination of all of the witnesses.

I have developed a checklist of procedural elements that is helpful for designing arbitration processes, and covers every part of the arbitration process, from deciding whether to have an in-person hearing or a hearing by videoconference, to whether and how experts will be hired, to how evidence will be presented at the hearing. You can download my "Arbitration Rules Pick-List" from the [https://www.boydarbitration.ca/rules-of-procedure website] of John-Paul Boyd Arbitration Chambers.

====Mandatory elements of arbitration====

Although arbitration processes are incredibly flexible, there are certain aspects of arbitration that are required in British Columbia.

First, the arbitrator must give each party the opportunity to make their case, and to reply to the case made by the other party. This is a basic element of the Canadian justice system, called either "natural justice" or "fundamental justice," that is required of judges as well as arbitrators.

Second, the arbitrator must treat each party fairly and not be biased in favour of one party over the other. Section 19.8 of the ''[[Family Law Act]]'' says this:

<blockquote><tt>(1) An arbitrator must be independent of the parties.</tt></blockquote>
<blockquote><tt>(2) An arbitrator must be impartial and act impartially.</tt></blockquote>
<blockquote><tt>(3) If a person is approached in connection with the person's possible appointment as an arbitrator, the person must, without delay, disclose any circumstances likely to give rise to justifiable doubts as to the person's independence or impartiality.</tt></blockquote>
<blockquote><tt>(4) An arbitrator, from the time of the arbitrator's appointment and throughout the arbitration, must, without delay, disclose to the parties any circumstances referred to in subsection (3).</tt></blockquote>

Third, when it comes to decisions about children, the arbitrator must consider only the best interests of the children.

Finally, arbitral awards must be given in writing and be signed by the arbitrator.

Otherwise, the parties and their arbitrator are free to be as creative as they want and create the rules and the process that are best-suited to the parties, their children, their dispute, their timeline, and their budget.

===Other uses of arbitration===

Arbitration is very helpful in resolving family law problems quickly and efficiently. Parenting coordinators use a process a lot like arbitration to make decisions resolving disagreements when the parents aren't able to find solutions to which they both agree. The flexibility of arbitration also means that people can ask their arbitrator to make a decision based on the rules of a religion, based on grounds of conscience, or based on equity and fairness.

Arbitration can also be used to:

*break logjams in settlement discussions, where only one or two issues can't be agreed upon,
*resolve disagreements about how the law should be interpreted or applied in a particular situation,
*make temporary decisions about support or parenting arrangements while the parties are negotiating a settlement, or
*perform technical calculations, like about the amount of costs payable in a court proceeding, the income of someone who is self-employed, the amount of spousal support payable, or the after-tax cost of children's expenses.

====Faith-based arbitration====

Under section 19.10 of the ''[[Family Law Act]]'', the parties can choose their own law to govern the arbitration process. Nothing in the act says that this law cannot be a religious law. Judaism and Islam, for example, each have religious laws that can apply to family law disputes for members of those faiths. Members of the orthodox Jewish community may use Halakha to settle personal disputes. Muslims can use Sharia law for the same purpose.

Whatever rules a couple chooses, however, the result of an arbitration cannot be "inconsistent" with the ''Family Law Act'' or the ''[[Divorce Act]]''. Section 19.20 of the ''Family Law Act'' says this:

<blockquote><tt>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.</tt></blockquote>

This means, for example, that child support must be paid to the person who has the child most of the time by the person who has the child for the least amount of time, and that the amount of support paid cannot be too different from what the [[Child Support Guidelines]] require. It also means that a particular person shouldn't have the primary residence of a child merely because of their gender, the age of the child or some other arbitrary reason.

Note that if the parties to faith-based arbitration wish to obtain a divorce, they must still start a court proceeding in the Supreme Court of British Columbia for a divorce order. A religious divorce, such as the Jewish Get, is not a legal divorce.

====Parenting coordination====

Parenting coordination uses a process that includes a decision-making function that's a lot like arbitration. In parenting coordination, the arbitrator is called a ''parenting coordinator'' and first tries to settle a dispute about parenting through a settlement process like mediation. If the parents cannot find consensus, however, the parenting coordinator acts like an arbitrator and makes a written decision, called a ''determination'', resolving the dispute. The parenting coordinator's authority to resolve these disputes comes from the participation agreement the parents sign, in this case called a ''parenting coordination agreement''.

As with faith-based arbitration, or any other kind of family law arbitration for that matter, the parenting coordinator cannot make determinations that are inconsistent with the ''[[Family Law Act]]''. However, parenting coordinators are subject to additional restrictions in the scope of the things they can make decisions about. Under section 6(3) and (4)(a)(ix) of the [http://canlii.ca/t/8rdx Family Law Act Regulation], parenting coordinators can make determinations about parenting arrangements, contact with a child, and other issues agreed to by the parties and the parenting coordinator. However, regardless of whatever the parties and the parenting coordinator may have agreed to, a parenting coordinator may ''not'' make decisions about:

*legal issues that are excluded by an order or a parenting coordination agreement,
*changes to the guardianship of a child,
*changes to the allocation of parental responsibilities,
*giving parenting time or contact to a person who does not already have parenting time or contact,
*substantial changes to parenting time or contact, or
*the relocation of a child.

There's a lot more information about parenting coordination in the [[Parenting_Coordination|next section]] of this chapter.

==When to use arbitration==

There are lots of good reasons to use arbitration rather than go to court. It's fast and efficient, the rules that govern the process are extremely flexible, it's confidential and private, and you get to pick a judge who is an expert in not just family law but the aspects of the law that are the most important in your case. There are, however, only a few circumstances that make arbitration a necessary choice over mediation, collaborative negotiation, or litigation. Typically, people will choose to arbitrate their dispute if:

*they want the laws of their religion or another set of legal, moral or ethical principles to apply to their dispute,
*their positions are too far apart to make negotiation or mediation a reasonable option and must have a decision made for them, but don't want to go to the expense, anxiety, and acrimony typically involved in going to court,
*they want to resolve their dispute discreetly and privately, and don't want to risk their personal business being made public,
*the legal issues are complex and demand a decision-maker who is a specialist in those issues, or
*they want their dispute resolved more quickly than the court schedule will allow.

It's important to understand that while arbitrators can make awards on all of the usual family law issues — including parenting arrangements, contact, child support, spousal support, and the division of property and debt — arbitrators cannot make awards on certain issues that can only be decided by a judge. These include:

*divorce orders and annulments,
*orders appointing someone as the guardian of a child who is not a parent of that child,
*declarations about who is, and who is not, the parent of a child, unless the declaration is necessary to resolve an issue that is within the arbitrator's jurisdiction, and
*orders changing the order of a judge.

==How to find a family law arbitrator==

Finding a family law arbitrator can sometimes be the hard part about taking your problem to arbitration, as there aren't too many arbitrators who specialize in family law issues. Your first and best bet is to speak to a family law lawyer and see who they might recommend to you. (Most lawyers will have a list of three of four arbitrators who they've used in the past and like working with.) You might also do an internet search for "family law arbitrator British Columbia," as lawyers who work as family law arbitrators will describe themselves this way and take pains to indicate in which jurisdiction they work. You could also contact organizations which specialize in providing legal education and developing out-of-court dispute resolution processes, including:

*[https://www.adrbc.com the ADR Institute of British Columbia], and
*[http://www.labour-arbitrators.ca the Arbitrators Association of British Columbia].

(Be warned, however, that there are lots of accredited family law arbitrators who may not have decided to pay the money to join these organizations.) Finally, you could call the Canadian Bar Association's [http://www.clicklaw.bc.ca/helpmap/service/1044 Lawyer Referral Service]. Although the service can't recommend one family law arbitrator over another, they'll at least be able to give you some names.

==Resources and links==

===Legislation===

* ''[https://canlii.ca/t/551f9 Divorce Act]''
* ''[https://canlii.ca/t/8q3k Family Law Act]''
* [https://canlii.ca/t/8rdx Family Law Act Regulation]
* [https://canlii.ca/t/80mh Federal Child Support Guidelines]

===Links===

* [https://www.adrbc.com The ADR Institute of British Columbia]
* [https://adric.ca/ The ADR Institute of Canada]
* [http://www.labour-arbitrators.ca The Arbitrators Association of British Columbia]
* [http://www.clicklaw.bc.ca/helpmap/service/1044 Lawyer Referral Service]
* [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society]
* [https://www.boydarbitration.ca/library John-Paul Boyd Arbitration Chambers] Library
* [https://www.boydarbitration.ca/rules-of-procedure John-Paul Boyd Arbitration Chamber] Arbitration Procedure
* [https://www.lawsociety.bc.ca/ The Law Society of BC]
* [https://www.clicklaw.bc.ca/resource/4616 Resolving Disputes Without Going to Court] from Dial-a-Law by the People's Law School
* [https://www.clicklaw.bc.ca/resource/4191 Settling out of Court] from the Justice Education Society of BC
* [https://www.clicklaw.bc.ca/resource/1253 Mediation, collaborative negotiation, and arbitration] from Dial-a-Law by the People's Law School

===Resources===

*Arbitration [[Media:Arbitration procedure pick-list - fillable.pdf|procedure pick-list]] (fillable PDF)
*Sample arbitration [[Media:Arbitration Agreement - PDF.pdf|participation agreement]] (PDF) in cases where the parties are represented by lawyers.
*Sample arbitration [[Media:Arbitration Agreement - Self-Rep - PDF.pdf|participation agreement]] (PDF) in cases where the parties are not represented by lawyers.

These sample participation agreements may not resemble the participation agreement you are asked to sign. They provide a more or less accurate picture of what arbitration participation agreements usually look like, but should be used as a reference only.

You can also look at the website of [https://www.boydarbitration.ca/participationagreements John-Paul Boyd Arbitration Chambers] which provides a number of model participation agreements for download.

* [https://www.clicklaw.bc.ca/resource/4452 "An Evaluation of the Cost of Family Law Disputes: Measuring the Cost Implication of Various Dispute Resolution Methods" PDF] from Canadian Research Institute for Law and the Family
* [https://www.clicklaw.bc.ca/resource/1497 "Alternatives to Going to Court" PDF] from the Justice Education Society of BC

{{REVIEWED | reviewer = [[JP Boyd]], 25 August 2021}}

{{JP Boyd on Family Law Navbox|type=chapters}}
{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

JP Boyd

2022-09-11T16:00:34Z

Jpboyd:

<noinclude>{{Template:Clicklaw Wikibooks Contributor}}</noinclude>{{Contributor
| bio = '''John-Paul E. Boyd, KC''' is the founding author of ''[[JP Boyd on Family Law]]''. He is an accredited family law arbitrator, family law mediator and parenting coordinator, and a member of the bars of Alberta and British Columbia. John-Paul practiced family law in Vancouver for 14 years before taking a position as the executive director of the Canadian Research Institute for Law and the Family, a non-profit organization affiliated with the University of Calgary, in 2013. He took his training as a mediator in 2005, as a parenting coordinator in 2007, as an arbitrator in 2011 and as a collaborative practitioner in 2012. He returned to private practice at [https://www.boydarbitration.ca John-Paul Boyd Arbitration Chambers] in 2018 and was appointed Queen's Counsel, now King's Counsel, in 2019.

John-Paul regularly writes and lectures on family law topics for courts, law societies, bar associations and the public. He has been a frequent speaker for the National Judicial Institute, the Association of Family and Conciliation Courts, the National Family Law Program, the Continuing Legal Education Society of BC, the Trial Lawyers Association of BC and the Legal Education Society of Alberta, and has taught the family law course for upper-year law students at the University of Calgary. His written work has been published by organizations including the ''UBC Law Review'', ''Canadian Family Law Quarterly'', the ''International Journal of Law, Policy and the Family'', the ''Journal of International Aging, Law and Policy'', ''The Advocate'', the National Judicial Institute, the Nova Scotia Department of Justice, slaw.ca and ''The Lawyer’s Daily''. He is a member of the advisory board of the ''Canadian Journal of Family Law'' and the author of [http://www.justice.gc.ca/eng/rp-pr/fl-lf/spousal-epoux/calc/index.html Obtaining Reliable and Repeatable SSAG Calculations], published by the Department of Justice. He is one of the organizers of the [http://nflac.ca National Family Law Arbitration Course], a 40-hour course providing a comprehensive introduction to the arbitration of family law disputes in Canada.

John-Paul is a recipient of the CBA's National Pro Bono Service Award, the UBC Law Alumni Association's Outstanding Young Alumnus Award, the CBA British Columbia's Harry Rankin QC Pro Bono Award and the Distinguished Service Award presented by the Law Society of Alberta and the CBA Alberta. In a 2012 report of the BC Public Legal Education and Information Working Group, John-Paul, a lawyer in private practice, was named as one of the six major providers of public legal education on family law in BC, along with the Legal Services Society, the Canadian Bar Association, the Ministry of Justice, the University of Victoria Law Centre and the Justice Education Society.

''[[JP Boyd on Family Law]]'' is the successor to John-Paul's original public legal education website, ''JP Boyd's BC Family Law Resource'', first published online in 2001.

| name = John-Paul E. Boyd, KC
| image = [[image:JP Boyd 2020 full-size photo.jpg|150px|left|link=|JP Boyd]]
| organization = John-Paul Boyd Arbitration Chambers
| website = [http://www.boydarbitration.ca www.boydarbitration.ca]
}}

<noinclude>
[[Category:Contributor Bio|Boyd]]
[[Category:JP Boyd on Family Law Contributors|Boyd]]
[[Category:Clicklaw Wikibooks Advisory Committee|Boyd]]
[[Category:Clicklaw Wikibooks Advisory Committee (2015)|Boyd]]
[[Category:JP Boyd on Family Law Contributors|Boyd]]
[[Category:JP Boyd on Family Law Editorial Committee|Boyd]]
</noinclude>

JP Boyd

2022-09-11T15:59:52Z

Jpboyd:

<noinclude>{{Template:Clicklaw Wikibooks Contributor}}</noinclude>{{Contributor
| bio = '''John-Paul E. Boyd, KC''' is the founding author of ''[[JP Boyd on Family Law]]''. He is an accredited family law arbitrator, family law mediator and parenting coordinator, and a member of the bars of Alberta and British Columbia. John-Paul practiced family law in Vancouver for 14 years before taking a position as the executive director of the Canadian Research Institute for Law and the Family, a non-profit organization affiliated with the University of Calgary, in 2013. He took his training as a mediator in 2005, as a parenting coordinator in 2007, as an arbitrator in 2011 and as a collaborative practitioner in 2012. He returned to private practice at [https://www.boydarbitration.ca John-Paul Boyd Arbitration Chambers] in 2018 and was appointed Queen's Counsel, now King's Counsel, in 2019.

John-Paul regularly writes and lectures on family law topics for courts, law societies, bar associations and the public. He has been a frequent speaker for the National Judicial Institute, the Association of Family and Conciliation Courts, the National Family Law Program, the Continuing Legal Education Society of BC, the Trial Lawyers Association of BC and the Legal Education Society of Alberta, and has taught the family law course for upper-year law students at the University of Calgary. His written work has been published by organizations including the ''UBC Law Review'', ''Canadian Family Law Quarterly'', the ''International Journal of Law, Policy and the Family'', the ''Journal of International Aging, Law and Policy'', ''The Advocate'', the National Judicial Institute, the Nova Scotia Department of Justice, slaw.ca and ''The Lawyer’s Daily''. He is a member of the advisory board of the ''Canadian Journal of Family Law'' and the author of [http://www.justice.gc.ca/eng/rp-pr/fl-lf/spousal-epoux/calc/index.html Obtaining Reliable and Repeatable SSAG Calculations], published by the Department of Justice. He is one of the organizers of the [http://nflac.ca National Family Law Arbitration Course], a 40-hour course providing a comprehensive introduction to the arbitration of family law disputes in Canada.

John-Paul is a recipient of the CBA's National Pro Bono Service Award, the UBC Law Alumni Association's Outstanding Young Alumnus Award, the CBA British Columbia's Harry Rankin QC Pro Bono Award and the Distinguished Service Award presented by the Law Society of Alberta and the CBA Alberta. In a 2012 report of the BC Public Legal Education and Information Working Group, John-Paul was named as one of the six major providers of public legal education on family law in BC, along with the Legal Services Society, the Canadian Bar Association, the Ministry of Justice, the University of Victoria Law Centre and the Justice Education Society.

''[[JP Boyd on Family Law]]'' is the successor to John-Paul's original public legal education website, ''JP Boyd's BC Family Law Resource'', first published in 2001.

| name = John-Paul E. Boyd, KC
| image = [[image:JP Boyd 2020 full-size photo.jpg|150px|left|link=|JP Boyd]]
| organization = John-Paul Boyd Arbitration Chambers
| website = [http://www.boydarbitration.ca www.boydarbitration.ca]
}}

<noinclude>
[[Category:Contributor Bio|Boyd]]
[[Category:JP Boyd on Family Law Contributors|Boyd]]
[[Category:Clicklaw Wikibooks Advisory Committee|Boyd]]
[[Category:Clicklaw Wikibooks Advisory Committee (2015)|Boyd]]
[[Category:JP Boyd on Family Law Contributors|Boyd]]
[[Category:JP Boyd on Family Law Editorial Committee|Boyd]]
</noinclude>

JP Boyd

2022-09-11T15:54:57Z

Jpboyd:

<noinclude>{{Template:Clicklaw Wikibooks Contributor}}</noinclude>{{Contributor
| bio = '''John-Paul E. Boyd, KC''' is the founding author of ''[[JP Boyd on Family Law]]''. He is an accredited family law arbitrator, family law mediator and parenting coordinator, and a member of the bars of Alberta and British Columbia. John-Paul practiced family law in Vancouver for 14 years before taking a position as the executive director of the Canadian Research Institute for Law and the Family, a non-profit organization affiliated with the University of Calgary, in 2013. He took his training as a mediator in 2005, as a parenting coordinator in 2007, as an arbitrator in 2011 and as a collaborative practitioner in 2012. He returned to private practice at [https://www.boydarbitration.ca John-Paul Boyd Arbitration Chambers] in 2018 and was appointed Queen's Counsel, now King's Counsel, in 2019.

John-Paul regularly writes and lectures on family law topics for courts, law societies, bar associations and the public. He has been a frequent speaker for the National Judicial Institute, the Association of Family and Conciliation Courts, the National Family Law Program, the Continuing Legal Education Society of BC, the Trial Lawyers Association of BC and the Legal Education Society of Alberta, and has taught the family law course for upper-year law students at the University of Calgary. His written work has been published by organizations including the ''UBC Law Review'', ''Canadian Family Law Quarterly'', the ''International Journal of Law, Policy and the Family'', the ''Journal of International Aging, Law and Policy'', ''The Advocate'', the National Judicial Institute, the Nova Scotia Department of Justice, slaw.ca and ''The Lawyer’s Daily''. He is a member of the advisory board of the ''Canadian Journal of Family Law'' and the author of [http://www.justice.gc.ca/eng/rp-pr/fl-lf/spousal-epoux/calc/index.html Obtaining Reliable and Repeatable SSAG Calculations], published by the Department of Justice. He is one of the organizers of the [http://nflac.ca National Family Law Arbitration Course], a 40-hour course providing a comprehensive introduction to the arbitration of family law disputes in Canada.

John-Paul is a recipient of the CBA's National Pro Bono Service Award, the UBC Law Alumni Association's Outstanding Young Alumnus Award, the CBA British Columbia's Harry Rankin Q.C. Pro Bono Award and the Distinguished Service Award presented by the Law Society of Alberta and the CBA Alberta. In a 2012 report of the BC Public Legal Education and Information Working Group, John-Paul was named as one of the six major providers of public legal education on family law in BC, along with the Legal Services Society, the Canadian Bar Association, the Ministry of Justice, the University of Victoria Law Centre and the Justice Education Society.

''[[JP Boyd on Family Law]]'' is the successor to John-Paul's original public legal education website, ''JP Boyd's BC Family Law Resource'', first published in 2001.

| name = John-Paul E. Boyd, KC
| image = [[image:JP Boyd 2020 full-size photo.jpg|150px|left|link=|JP Boyd]]
| organization = John-Paul Boyd Arbitration Chambers
| website = [http://www.boydarbitration.ca www.boydarbitration.ca]
}}

<noinclude>
[[Category:Contributor Bio|Boyd]]
[[Category:JP Boyd on Family Law Contributors|Boyd]]
[[Category:Clicklaw Wikibooks Advisory Committee|Boyd]]
[[Category:Clicklaw Wikibooks Advisory Committee (2015)|Boyd]]
[[Category:JP Boyd on Family Law Contributors|Boyd]]
[[Category:JP Boyd on Family Law Editorial Committee|Boyd]]
</noinclude>

Recent Changes to Family Law in British Columbia

2022-01-26T19:01:40Z

Jpboyd: /* Arbitration under the Family Law Act */

{{JP Boyd on Family Law TOC}}
==Introduction==
Family law has changed a lot over the past 15 years or so, especially if you live in British Columbia. In 2010, special Supreme Court rules, just for family law cases, were introduced. In 2013, the ''Family Law Act'' replaced the ''Family Relations Act'' and brought in:
*new ways of thinking about parenting after separation,
*a new test that applies when someone wants to move away after separation,
*a new scheme for dividing property between spouses,
*new provisions about parenting coordination, and
*new tools to help judges to manage court processes.

In 2019, the Provincial Court established a pilot project in the Victoria courthouse aimed at the early resolution of family law disputes. A whole new set of court rules were developed, and in May 2021, the new Provincial Court Family Rules came into effect. As a result, we are working on updating all references and discussions related to family matters in the Provincial Court. In the meantime, portions of [[JP Boyd on Family Law]] that talk about Provincial Court processes, rules, and forms should be considered out-of-date.

In 2020, the ''Family Law Act'' was changed to cover the arbitration of family law disputes, in terms very different from those of the old ''Arbitration Act'', and the Victoria pilot project was expanded to include the Surrey courthouse. Of course, 2020 was also the year that the spread of COVID-19 resulted in huge changes to day-to-day court processes.

In 2021, sweeping amendments to the federal ''Divorce Act'' came into effect that changed how we talk about parenting after separation, and introduced a new test for figuring out children's best interests and a new test for when someone wants to move away. Thankfully, for people already used to the ''Family Law Act'', the changes to the ''Divorce Act'' felt very familiar, as if the federal government had simply copied huge portions of our provincial legislation. However, the changes to the ''Divorce Act'' also resulted in changes to the Child Support Guidelines, changes to the forms used by the Supreme Court, and the introduction of brand new forms used when someone wants to move away (or objects to someone moving away).

Frankly, the pace of change has been a bit dizzying, especially for those of us who prepare public and professional education materials on family law. However, these changes are all part of an important new trend in family law to encourage people to resolve their problems outside of court, to recognize and account for the important impacts of family violence and coercive, controlling relationships, and to focus the rights involved in parenting more on children than on parents. The inconvenience to public legal educators is worth it.

The key changes to the federal ''Divorce Act'' are discussed in the page on [[The New Divorce Act|the new ''Divorce Act'']]. The [[Family Law Act Basics|''Family Law Act'' Basics]] page provides a fairly thorough outline of the ''Family Law Act'' in a helpful question and answer format, and you can get a good overview of how family law works in British Columbia in the page on [[Introduction_to_the_Legal_System_for_Family_Matters|the Legal System]].

This page provides an overview of the other changes that have happened in the last couple of years, including the amendments to the ''Family Law Act'' about arbitration, the new Provincial Court Family Rules and the early resolution process, and the changes to the Child Support Guidelines and the forms used by the Supreme Court resulting from the amendment of the ''Divorce Act''.

==New Rules, Forms and Processes for the BC Provincial Court==

In May 2020, the Provincial Court adopted a new set of Provincial Court Family Rules while also expanding its use of Early Resolution Registries. These are big changes which means that much of the discussion and references to Provincial Court rules, forms, and procedures in [[JP Boyd on Family Law]] (which were reviewed in 2019) are out-of-date and should be treated with caution.

Details about how the new rules and the early resolution process work is available from the provincial government on its website. You can read an overview about the [https://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/your-options/early-resolution early resolution process] and read a summary about how [https://www.provincialcourt.bc.ca/enews/enews-27-04-2021 the new Provincial Court Family Rules have changed.] For a more detailed rule-by-rule explanation of the Provincial Court Family Rules, [https://www2.gov.bc.ca/assets/gov/law-crime-and-justice/about-bc-justice-system/justice-reform-initiatives/family-civil/pcrf-explained.pdf the government of British Columbia has also released a longer document].

==Arbitration under the ''Family Law Act''==

Until 1 September 2020, all you needed to know about the arbitration of family law disputes could be found in the provincial ''Arbitration Act''. That law, which used to be called the ''Commercial Arbitration Act'', was an all-purpose piece of legislation meant to apply to the arbitration of almost every kind of legal dispute from car accidents to construction defects. However, when the provincial government began to think about retooling that legislation it also began to think about creating a spot in the ''Family Law Act'' just for arbitration.

This made a lot of sense, as one of the important changes the ''Family Law Act'' introduced in 2013 was to encourage people to resolve their family law disputes other than through court. Section 4 of the act said it was important for people to learn about all of the different ways to resolve family law disputes, section 5 imposed a duty on people to give each other full and complete disclosure whether they were resolving their dispute in court or not, and section 8 required lawyers to assess for the presence of family violence and advise their clients about the different options for resolving their dispute in light of that assessment. Sections 10 to 13 talked about the services Family Justice Counsellors provide to help people resolve their disagreements, and sections 14 to 19 allowed the court to appoint parenting coordinators, making British Columbia the first jurisdiction in Canada to provide for parenting coordination in its legislation. Why not fold arbitration into the ''Family Law Act'' too?

That's what sections 19.1 to 19.22 do, and section 2(5)(b) of the new ''Arbitration Act'' makes it clear that the arbitration of family law disputes is now governed solely by the ''Family Law Act.''

(If you're wondering why the new sections of the ''Family Law Act'' are numbered 19.1, 19.2, 19.3 and so on instead of 20, 21 and 22, it's because of the havoc that would be created if the entire ''Family Law Act'' were renumbered when new parts are added or taken out. Think about all the cases that talked about the old section 21 that wouldn't make sense anymore! Instead, new sections that need to be inserted are given a new series of numbers after a decimal point. This way, if you added two sections between sections 68 and 69, the sections would be numbered as 68, 68.1, 68.2, 69, 70 and so on, and the cases that talk about sections 69 and 70 still talk about the same sections 69 and 70. The same thing applies to inserting new bits into an existing section. To add a new subsection between (c) and (d), for example, the subsection would be numbered (c.1), and the subsections would be numbered as (a), (b), (c), (c.1), (d) and (e). It's confusing to read, but it's a good solution.)

Here are the highlights of the new parts of the ''Family Law Act'' on arbitration.

<blockquote>'''Agreements to arbitrate:''' Under section 19.2, people can make an agreement to resolve a family law problem by arbitration, including future family law problems. These agreements can specify who the arbitrator will be, say how the arbitrator will make decisions, say what processes will be used in the arbitration, and say how evidence will be handled.</blockquote>

<blockquote>'''Cancelling agreements to arbitrate:''' Under section 19.3, however, the court can cancel an arbitration agreement if one party took advantage of another party in getting them to sign the agreement, one of the parties didn't understand the meaning or effect of the agreement, or there is a problem with the agreement under the law of contracts.</blockquote>

<blockquote>'''Effect of agreements to arbitrate:''' If you have an agreement to arbitrate and the other party tries to go to court instead, under section 19.4 you can ask the court to stop the court case.</blockquote>

<blockquote>'''Appointing the arbitrator:''' Under section 19.6, if you can't agree on who should arbitrator your family law problem, the court can appoint one for you. However, once an arbitrator has been appointed, whether by your agreement or a court order, the arbitrator can't be fired by just one party. Under section 19.7, everyone involved in the disagreement has to agree to fire the arbitrator. </blockquote>

<blockquote>'''Role of the arbitrator:''' Section 19.8 says that an arbitrator must be independent of the parties and impartial. Someone who is asked to serve as an arbitrator must explain any reasons why they might not be able to be independent and impartial, and this duty continues throughout the arbitration process. The court can remove someone as arbitrator under section 19.9 if there are reasonable doubts about the arbitrator's independence and impartiality.</blockquote>

<blockquote>'''Choice of law:''' Under section 19.10, you get to choose the law that applies to your disagreement! You can decide, for example, that the arbitrator will apply the law of British Columbia or the law of some other place, or decide the problem based on fairness and equity.</blockquote>

<blockquote>'''Evidence:''' If section 19.10 wasn't cool enough, under section 19.11 the arbitrator has the power to decide how evidence is handled and isn't required to apply the rules of evidence that normally apply in court. This means that the arbitrator can decide to let the parties present evidence that they wouldn't necessarily be able to present in court. Under section 19.12, the arbitrator can also compel other people to provide evidence in an arbitrator.</blockquote>

<blockquote>'''Awards:''' Under section 19.14, the arbitrator's decision, called an award, must be in writing, signed and given to the parties. Once the parties have the award, under section 19.15, they have no more than 30 days to ask the arbitrator to correct any errors or explain a part of their award. Awards are binding on the parties under section 19.16.</blockquote>

<blockquote>'''Challenging awards:''' Awards can be appealed to the Supreme Court under section 19.19, which says that the parties have no more than 40 days after getting the arbitrator's award to start an appeal. You can also ask the court to cancel an award under section 19.18, if the arbitrator wasn't independent or impartial, if a party wasn't given the opportunity to be heard during the arbitration, if the award was improperly obtained, or if the arbitrator made decisions about issues that weren't in the arbitration agreement.</blockquote>

<blockquote>'''Enforcing awards:''' Awards are binding on the parties to arbitration under section 19.16. Under section 19.20, awards can be filed in court and be enforced by the court as if they were court orders.</blockquote>

==Changes to the Child Support Guidelines==

Don't worry, none of the really important parts of the Child Support Guidelines have changed. The only changes that have been made update the Guidelines to use the new terminology found in the Divorce Act.

<blockquote>'''Split custody:''' Split custody under section 8 of the Guidelines is now called "split parenting time." Parents have split parenting time when each of the parents has the primary home of one or more of their children.</blockquote>

<blockquote>'''Shared custody:''' Shared custody under section 9 of the Guidelines is now called "shared parenting time." Parents have shared parenting time when the children live with each of them for 40% or more of the time.</blockquote>

==New and Updated Forms==

We mentioned that there are a new set of forms for Provincial Court. There are also new forms for family matters in the BC Supreme Court, as well as new forms in the new ''Divorce Act''. Two of the forms in cases before the Supreme Court have been updated and a new form has been created. The ''Divorce Act'' provides three brand new forms used when someone wants to move away after separation, called ''relocation''.

===BC Supreme Court Forms===

Under the old Supreme Court forms used to make claims in family law disputes, the Notice of Family Claim and the Counterclaim, lawyers had to "certify" that they have complied with their duties under the ''Divorce Act''. "Certify" isn't as fancy as it sounds. Basically, lawyers put the date and their signature below a part of the form that looked like this:

[[File:OldLawyerCertificate.png|600px|frameless|center]]

Lawyers' duties are basically the same under the new ''Divorce Act'', but they're now found in section 7.7. The big change for the people asking for a divorce is the new duties they have under sections 7.1 to 7.5 of the ''Divorce Act''. Among other things, these sections say that:

* people have to exercise entitlements to parenting time, decision-making responsibility and contact in a way that is consistent with the best interests of the child,
* parties must protect the children from the conflict arising from their court case,
* parties have to try to resolve their disagreements out of court if possible, and
* parties have to give each complete, accurate and up-to-date information as necessary to resolve their disagreement.

Under the new section 7.6, the parties to a course case under the ''Divorce Act'' have to certify that they are "aware" of these duties, and need to sign a certificate in their Notice of Family Claim or Counterclaim just like lawyers do. Here's what the certificate looks like:

[[File:PartyCertificate.png|600px|frameless|center]]

There's also a brand new form, Form F102, Statement of Information for Corollary Relief Proceedings. ''Corollary relief'' refers to claims made about parenting after separation, child support or spousal support under the ''Divorce Act'', but this form is only needed when someone is asking for orders about parenting after separation. The form requires you to describe any:

* civil protection orders or cases about your spouse, yourself or your children,
* child protection orders or cases about your children, and
* criminal cases about your spouse or yourself, the nature of the charges, and any orders, peace bonds or undertakings that have been made.

This form is necessary, because under section 7.8 of the new ''Divorce Act'', judges must take into account cases like these, and any orders made in those cases, when making decisions about parenting after separation.

===Relocation Forms in the ''Divorce Act''===

Under section 16.9, a parent who wants to move away after separation, with or without the children, needs to give people with parenting time, decision-making responsibility or contact notice of their intention to move. Under section 16.96, someone with contact also has to give notice when they are planning to move away.

The form used by parents who want to move is called a [https://www.justice.gc.ca/eng/fl-df/divorce/nrf-fad.html Notice of Relocation Form]. This is a fairly simple fill-in-the-blanks form available from the website of the federal Department of Justice in fillable PDF format and in a version that can be filled out online.

The form used by people with contact is a [https://www.justice.gc.ca/eng/fl-df/divorce/ncpr-aclr.html Notice of Change in Place of Residence: Person with Contact] form. This is also available from the website of the federal Department of Justice.

Under section 16.91, someone with parenting time or decision-making responsibility who objects to a parent moving away after separation can either apply to court to stop the move or complete a form expressing their objection. (An objection is important because under section 16.91(1)(b), a parent who wants to move away can do that as long as there is no agreement, award or order preventing them from moving and no one with parenting time or decision-making responsibility has objected to the parent's plans to move.)

The form used by someone who wants to object to a proposed move is called a [https://www.justice.gc.ca/eng/fl-df/divorce/orf-fod.html Objection to Relocation Form]. This too is a fairly simple fill-in-the-blanks form available from the website of the federal Department of Justice in fillable PDF format and in a version that can be filled out online.

==Resources and links==

===Legislation===

* the old ''[http://canlii.ca/t/53z6j Divorce Act]''
* [https://www.parl.ca/LegisInfo/BillDetails.aspx?Language=E&billId=9868788 Bill C-78]
* [https://www.canlii.org/webdiff/diff.do?lang=en&path=%2Fen%2Fca%2Flaws%2Fstat%2Frsc-1985-c-3-2nd-supp%2Flatest%2Frsc-1985-c-3-2nd-supp.html&path=%2Fen%2Fca%2Flaws%2Fstat%2Frsc-1985-c-3-2nd-supp%2F157296%2Frsc-1985-c-3-2nd-supp.html#h=47859.625 side-by-side comparison of the old and new ''Divorce Act'']]

===Links===

*[https://static1.squarespace.com/static/5b6db734b1059890c89e8172/t/5ba523950d92974174f67c28/1537549206845/A+Brief+Overview+of+Bill+C78+-+Pt+1+-+June+2018.pdf An Overview of Bill C-78] by John-Paul Boyd
*[https://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/your-options/early-resolution Early Resolution Process page]
*[https://www.provincialcourt.bc.ca/enews/enews-27-04-2021 What you need to know about the Provincial Court Family Rules?]
*[https://www2.gov.bc.ca/assets/gov/law-crime-and-justice/about-bc-justice-system/justice-reform-initiatives/family-civil/pcrf-explained.pdf Provincial Court Family Rules Explained]

{{REVIEWED | reviewer = [[Nate Russell]], October 14, 2021}}

{{JP Boyd on Family Law Navbox|type=started}}

{{Creative Commons for JP Boyd}}
[[Category:JP Boyd on Family Law]]

Behaviour, Boundaries and Privacy after Separation

2021-05-20T21:55:38Z

Jpboyd: /* Damages */

{{JP Boyd on Family Law TOC|expanded = separation}}{{JPBOFL Editor Badge
|ChapterEditors = [[Vanessa Van Sickle]]
}}
{{LSSbadge
| resourcetype = more information on
| link = [http://www.familylaw.lss.bc.ca/legal_issues/divorceBasics.php Divorce and Separation basics]
}}The previous section in this chapter talked about the emotional aspects of separation, and how they can affect the choices we make to deal with the legal consequences of separation. The next section, "[[Separation and the Law on Separation]]", talks about those legal consequences in a lot more detail, but this section is first going to talk about the importance of boundaries and good behaviour after separation.

==Introduction==

We have all sorts of social scripts about how people meet, fall in love, marry and start having children. You can't watch a Hugh Grant rom-com, walk past the supermarket greeting card aisle, or read one of the very fine novels published by Harlequin Enterprises ULC without have those scripts reinforced. What we don't have are scripts about how people separate. Yes, Hollywood has dabbled its toes in this plotline — ''Marriage Story'' and ''War of the Roses'' spring to mind — but these are fairly awful stories. What we don't have scripts about are how people separate ''well''.

In 1967, two psychologists, Thomas Holmes and Richard Rahe, published [https://www.sciencedirect.com/science/article/abs/pii/0022399967900104?via%3Dihub a study] showing that the end of a long-term relationship is one of the most traumatic events people will endure, second only to the death of a spouse or a child. That seems about right to me. This trauma leads people to do and say things that they'd never do under other circumstances. I've seen people behave far more cruelly toward family members in family law and wills and estates cases than they would ever behave to anyone else, including an enemy.

Perhaps this odd and unpleasant phenomenon is where the saying "familiarity breeds contempt" comes from. But maybe there's another cause than simple familiarity. When spouses separate, particularly when they separate suddenly, they go through an awful transition — from loving partners who would trust each other with their lives to adversaries pitted against each other — in the blink of an eye. That's hard. Understandably, this transition can encourage significant mistrust, ill-will and suspicion among everyone involved.

It takes a big person to accomplish the transition from companions to coworkers with care and grace. Those of us who don't have the luxury of undertaking the "conscious uncoupling" Gwyneth Paltrow recommends have to come up with an awful lot of patience, respect, and tolerance. (And maturity. Maturity was a common characteristic among the majority of my clients who were able to rise above the emotional battlefield.) On top of that, you also need to be fairly empathetic and develop some pretty top-drawer communication skills.

This section provides some observations, tips and suggestions for those of us who lack the patience of Mother Theresa, the forbearance of Mahatma Gandhi or the wisdom of Siddhartha Gautama. While a lot of these comments are just common sense, you may discover one or two suggestions that help.

==Good behaviour, bad behaviour==

It is so very, very tempting to lash out at your ex when a relationship ends, especially if you didn't see it coming or there was something embarrassing about your separation, like an affair. You shouldn't. Let me tell you why.

First, by cranking up the emotional temperature, you increase the likelihood that your family law problems will be resolved in court. While there's nothing necessarily wrong with that, resolving problems in court takes longer and costs more money than resolving family law problems any other way.

Secondly, I'm sure you want to move past your separation and on with your life. I know that's a tall order, especially when the relationship you've left was a long one, but the more you remain stuck in the indignant and vengeful phase, the longer it'll take you to reach that happy place where you merely regret your relationship, or its end, or both.

Thirdly, arbitration and litigation are based on ''evidence'', and evidence comes in many forms. It comes as email print-outs, screen-shots of text messages, downloads of social media accounts, photocopies of notes and letters, and all of the wonderful things that forensic technicians can pull out of computers and smartphones. Do you want your arbitrator or judge reading through this sort of stuff? Your anger might be wholly justified, but I don't think you want someone in a position to decide your case reading through all of the things you said when you were angry.

Fourthly and most importantly, the two key predictors of children's adaptation to their parents' separation are the quality and strength of their relationships with each parent and the nature and duration of the conflict between their parents. This is tremendously important because parental conflict has a number of short- and long-term negative impacts on children's wellbeing. The longer you and your ex jab at each other, the longer it'll take you to move out of conflict and the more damage you'll do to your kids.

The problem, of course, is resisting that temptation. I can't tell you how to do that; it's different for everyone. All I can do is emphasize how important it is to separate with as much dignity and grace as you can muster.

===Managing online life===

Don't air the details of your relationship and your separation, or trash your ex, on the internet. You can try to delete your comments later, when you've come to regret them, but the internet never forgets. It's almost a certainty that there's a record of your comment somewhere in cyberspace. The behaviour you need to avoid includes:

#slagging your ex on Facebook, Instagram and other kinds of social media;
#leaving negative reviews on professional or commercial rating websites, like Yelp, Angie's List, LawyerRatingz, or Rate my Professors;
#publishing copies of letters, photos and personal notes online;
#publishing copies of affidavits and other court documents; and,
#posting links to court decisions involving you, your ex or your children.

It's worth remembering how tech-savvy your kids are — or will be. Have you ever googled yourself? Most people have. Ask yourself what your kids are going to find when they google ''you''.

It's also worth remembering that if something can be printed, it can be attached as an exhibit to an affidavit. That includes your Facebook posts, your text messages, and your emails. Before you hit that send or post button, stop and spend a little bit of time thinking about what a stranger would think of you after reading your post, text message or email.

===Managing real life===

You also need to resist the urge to lash out in your offline life. Cry on the shoulders of your friends and family; use them to vent your frustrations, but leave it there. Remember that if things get ugly and you wind up going to court, everything that you say or do can be introduced into evidence. Remember also that when the court is required to consider the best interests of the children, section 37(2) of the ''[[Family Law Act]]'' says that the court must think about:

<blockquote><blockquote><tt>(e) the child's need for stability, given the child's age and stage of development;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;</tt></blockquote></blockquote>

while section 16(3) of the ''[[Divorce Act]]'' says that the court must think about:

<blockquote><blockquote><tt>(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(j) any family violence and its impact on, among other things,</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child;</tt></blockquote></blockquote></blockquote>

The part about ''the appropriateness of an arrangement that would require the child's guardians to cooperate'' is really important. Think about it.

Among other things, you will want to avoid:

#making complaints about your ex in their professional capacity to any regulatory bodies, like the College of Physicians and Surgeons, the Association of Clinical Counsellors, the College of Social Workers or the Law Society;
#making bogus complaints about your ex to child protection services or the police;
#reporting your ex to the Canada Revenue Agency, financial institutions or credit rating agencies;
#making complaints about your ex to their employer;
#badmouthing your ex in social, recreational or cultural clubs; and,
#contacting the media about your ex, your relationship, your separation or events following your separation.

Here's a helpful suggestion. Act as if everything you write, say or do will find its way into an affidavit.

The behaviour we've just talked about is the sort of behaviour that will make any court proceedings you're involved in worse, or increase the likelihood that you'll be going to court if court proceedings haven't yet started. A lot of these behaviours have the potential to get you into trouble with the police as well. The ''[http://canlii.ca/t/7vf2 Criminal Code]'' has provisions that make all sorts of misbehaviour potential criminal offences, including assault, battery, unlawful confinement, intimidation, threatening, criminal harassment and trespass.

==Respecting boundaries, respecting privacy==

Part of what's going on when a long-term romantic relationship ends is the redefinition of the personal relationship between the people involved in the romantic relationship. People who were once lovers and confidants must, especially if they have children, find a way to work together in a more business-like relationship with no presumptions of intimacy, trust or altruistic sacrifice. The differences in these two types of relationships are largely about real boundaries and anticipated boundaries.

Of course, problems can come up when our expectations of each other's boundaries don't quite match, and it's sometimes really important to talk about boundaries as a result. Setting and respecting each other's boundaries can be the key to making a difficult parenting relationship work. Here are some of the boundaries I've seen people use:

#requiring communication by text and email rather than by telephone, or communication by telephone rather than by text or email;
#setting limits on the length of emails and letters;
#setting limits on the volume of communication in a given period, or the hours within which communication will be replied to;
#restricting the subjects that can be discussed;
#restricting the family members and friends who can be communicated with;
#fixing the time and place where the children will be exchanged; and,
#setting consequences for failing to honour boundaries.

Privacy expectations, and the boundaries they imply, are a source of frequent conflict when relationships end. Since it can be hard to respect a former partner's privacy when your relationship has become adversarial, let's spell out some of the more basic rules.

<blockquote>'''It is not okay to open mail addressed only to your ex. Even when it gets delivered to your home.'''</blockquote>

<blockquote>'''It is not okay to hack into your ex's smartphone or your ex's email and social media accounts. Even if you know the password or even if it's easy to guess.'''</blockquote>

<blockquote>'''It is not okay to access your ex's voice mail or change or delete messages on your ex's voice mail.'''</blockquote>

<blockquote>'''It is not okay to access your ex's financial accounts. Even if your ex gave you permission to do that while you were together.'''</blockquote>

<blockquote>'''It is not okay to secretly record your ex's telephone calls. Even if your ex is talking to your children.'''</blockquote>

<blockquote>'''It is not okay to make secret video recordings or otherwise surveil your ex. Even if you're trying to gather evidence for court.'''</blockquote>

<blockquote>'''It is not okay to steal or make a copy of your ex's diary or personal journal.'''</blockquote>

Hopefully these rules make obvious sense. However, I include them because they are so often overlooked in the heat of battle. Remember that if you are involved in a court proceeding you have the right to get copies of anything, including any document, that is important to the legal issues in your court proceeding. If there's something important on your ex's phone, for example, you are entitled to ask for a copy of that thing — or apply for a court order that you be given a copy. You don't need to take a self-serve approach. Do it the right way.

==Protect yourself from bad behaviour==

Just as you can reduce the chances of your car getting stolen by locking its doors when you get out, there are a number of proactive things you can do to protect yourself from your ex's misbehaviour. Once it's clear to you that your relationship is coming to an end, you need to start protecting your privacy. This means taking additional steps to protect your physical privacy — changing the locks for your home, for example, even though your ex has given you your keys back — as well as your electronic privacy. You may need to change the passwords or access privileges for your:

#smartphone, smartwatch, tablets, computers and other devices;
#home wifi router and personal hotspots;
#home security and surveillance systems, especially security cameras, electronic doorbells and electronic locks;
#wifi-enabled appliances, fixtures and outlets
#internet, cable and telecommunication service providers;
#email accounts, social media accounts and gaming accounts;
#subscription-based accounts, like Netflix, Spotify and Crave; and,
#business accounts and services, including electronic banking, credit card and money transfer services, accounting and bookkeeping software, and communication and conferencing services.

You'll also want to disable any location-sharing options or services that may be available for your smartphone, smartwatch and car, or be built-in to your social media accounts. It's hard to remember in this electronic age just how many password-protected accounts and services we have, how many of the devices in our home are connected to the internet, and how many personal accounts our friends and family may have access to. You know how Facebook sometimes sends out reminders to check your privacy settings? You need to do that yourself when your relationship is coming to an end. Take a fresh look at ''everything''.

==The consequences of bad behaviour==

I've already mentioned how the ''[[Family Law Act]]'' and the ''[[Divorce Act]]'' require the court to consider "the appropriateness of an arrangement that would require the child's guardians to cooperate" when making decisions about the parenting arrangements that are in the best interests of a child, and how many kinds of misbehaviour are offences under the ''[http://canlii.ca/t/7vf2 Criminal Code]''. There are other potential consequences as well.

===Costs===

The Supreme Court has the ability to make "costs orders" under [https://www.canlii.org/en/bc/laws/regu/bc-reg-169-2009/latest/bc-reg-169-2009.html?autocompleteStr=supreme%20court%20family%20&autocompletePos=1#Part_16_Costs_521146 Rule 16-1] of the [http://canlii.ca/t/8mcr rules of court] used in family law disputes. An award of ''costs'' is a requirement that one side to a court proceeding pay to the other side a sum of money that compensates the other side for the time and money they had to put into the court proceeding. In general, the successful side is entitled to have their costs paid by the other side, and an award of ''ordinary costs'' usually works out to somewhere between a third and half of the money the successful side spent defending or prosecuting their case. An award of ''special costs'', however, is a lot closer to the total amount the successful side spent on their case.

Special costs awards are made to punish a party for how they managed their case. When assessing special costs under Rule 16-1(2)(b), the court is required to consider "the conduct of any party that tended to shorten, or to unnecessarily lengthen, the duration of the family law case."

===Misuse of court process===

Under section 221(1) of the ''Family Law Act'', the court may make an order stopping someone from making further applications or continuing a court proceeding without first getting permission from a judge if that person:

<blockquote><blockquote><tt>(a) has made an application that is trivial,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) is conducting a proceeding in a manner that is a misuse of the court process, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) is otherwise acting in a manner that frustrates or misuses the court process.</tt></blockquote></blockquote>

If the court makes this order, it can also make the person:

#pay the fees and expenses incurred by the other side;
#pay up to $5,000 to, or for the benefit of, the other side or someone affected by the person's actions; or,
#pay a fine of up to $5,000.

===Conduct orders===

Under section 222 of the ''Family Law Act'', the court can make ''conduct orders'' if necessary to "manage behaviours that might frustrate the resolution of a family law dispute" or to "misuse of the court process." The conduct orders that are available to the court are listed in sections 223 to 227, and include orders:

#striking all or part of a claim or an application;
#requiring someone to attend counselling;
#restrictring communication between the people involved in a court proceeding; and,
#requring someone to pay ''security'' into court, a cash deposit made to guarantee the person's good behaviour.

===Damages===

Claims in ''tort'' can be made in a court proceeding dealing with family law issues or in a separate proceeding. A "tort" is a kind of claim made when the actions or omissions of one person cause harm to another person. A lot of criminal offences are also torts, like assault and battery. If the tort is proven, the person who was sued may have to pay ''damages'' to the person who started the court proceedings. "Damages" are cash awards intended to compensate for pain and suffering, lost wages, medical expenses, and so on. ''Punitive damages'' or ''aggravated damages'' are cash awards that have the extra purpose of punishing a party for their behaviour.

The sort of torts someone could sue for in the context of the breakdown of a relationship include:

#assault, battery, and sexual assault;
#nervous shock and intentional infliction of mental distress;
#trespass;
#invasion of privacy and breach of confidence; and,
#defamation.

Someone might sue for damages for defamation, for example, if the other side posted false information about them on Facebook or a website. Someone might sue for invasion of privacy, breach of confidence or the intentional infliction of mental distress if the other side posted embarassing photos of them, like revenge porn, for example, on Instagram, a pornography provider or another website.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''

===Links===

*[https://www.clicklaw.bc.ca/resource/4639 Legal Services Society’s Family Law website's information page on Separation & Divorce]
*[http://www.justice.gc.ca/eng/fl-df/divorce/index.html Department of Justice's website "Divorce and Separation"]
*[http://www.counsellingbc.com BC Counsellors by Practice Area]
*[http://bc-counsellors.org BC Association of Clinical Counsellors]
*[http://www.bcamft.bc.ca Association for Marriage and Family Therapy]

{{REVIEWED | reviewer = [[JP Boyd]], 25 March 2020}}

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Behaviour, Boundaries and Privacy after Separation

2021-05-20T21:48:26Z

Jpboyd: /* Respecting boundaries, respecting privacy */

{{JP Boyd on Family Law TOC|expanded = separation}}{{JPBOFL Editor Badge
|ChapterEditors = [[Vanessa Van Sickle]]
}}
{{LSSbadge
| resourcetype = more information on
| link = [http://www.familylaw.lss.bc.ca/legal_issues/divorceBasics.php Divorce and Separation basics]
}}The previous section in this chapter talked about the emotional aspects of separation, and how they can affect the choices we make to deal with the legal consequences of separation. The next section, "[[Separation and the Law on Separation]]", talks about those legal consequences in a lot more detail, but this section is first going to talk about the importance of boundaries and good behaviour after separation.

==Introduction==

We have all sorts of social scripts about how people meet, fall in love, marry and start having children. You can't watch a Hugh Grant rom-com, walk past the supermarket greeting card aisle, or read one of the very fine novels published by Harlequin Enterprises ULC without have those scripts reinforced. What we don't have are scripts about how people separate. Yes, Hollywood has dabbled its toes in this plotline — ''Marriage Story'' and ''War of the Roses'' spring to mind — but these are fairly awful stories. What we don't have scripts about are how people separate ''well''.

In 1967, two psychologists, Thomas Holmes and Richard Rahe, published [https://www.sciencedirect.com/science/article/abs/pii/0022399967900104?via%3Dihub a study] showing that the end of a long-term relationship is one of the most traumatic events people will endure, second only to the death of a spouse or a child. That seems about right to me. This trauma leads people to do and say things that they'd never do under other circumstances. I've seen people behave far more cruelly toward family members in family law and wills and estates cases than they would ever behave to anyone else, including an enemy.

Perhaps this odd and unpleasant phenomenon is where the saying "familiarity breeds contempt" comes from. But maybe there's another cause than simple familiarity. When spouses separate, particularly when they separate suddenly, they go through an awful transition — from loving partners who would trust each other with their lives to adversaries pitted against each other — in the blink of an eye. That's hard. Understandably, this transition can encourage significant mistrust, ill-will and suspicion among everyone involved.

It takes a big person to accomplish the transition from companions to coworkers with care and grace. Those of us who don't have the luxury of undertaking the "conscious uncoupling" Gwyneth Paltrow recommends have to come up with an awful lot of patience, respect, and tolerance. (And maturity. Maturity was a common characteristic among the majority of my clients who were able to rise above the emotional battlefield.) On top of that, you also need to be fairly empathetic and develop some pretty top-drawer communication skills.

This section provides some observations, tips and suggestions for those of us who lack the patience of Mother Theresa, the forbearance of Mahatma Gandhi or the wisdom of Siddhartha Gautama. While a lot of these comments are just common sense, you may discover one or two suggestions that help.

==Good behaviour, bad behaviour==

It is so very, very tempting to lash out at your ex when a relationship ends, especially if you didn't see it coming or there was something embarrassing about your separation, like an affair. You shouldn't. Let me tell you why.

First, by cranking up the emotional temperature, you increase the likelihood that your family law problems will be resolved in court. While there's nothing necessarily wrong with that, resolving problems in court takes longer and costs more money than resolving family law problems any other way.

Secondly, I'm sure you want to move past your separation and on with your life. I know that's a tall order, especially when the relationship you've left was a long one, but the more you remain stuck in the indignant and vengeful phase, the longer it'll take you to reach that happy place where you merely regret your relationship, or its end, or both.

Thirdly, arbitration and litigation are based on ''evidence'', and evidence comes in many forms. It comes as email print-outs, screen-shots of text messages, downloads of social media accounts, photocopies of notes and letters, and all of the wonderful things that forensic technicians can pull out of computers and smartphones. Do you want your arbitrator or judge reading through this sort of stuff? Your anger might be wholly justified, but I don't think you want someone in a position to decide your case reading through all of the things you said when you were angry.

Fourthly and most importantly, the two key predictors of children's adaptation to their parents' separation are the quality and strength of their relationships with each parent and the nature and duration of the conflict between their parents. This is tremendously important because parental conflict has a number of short- and long-term negative impacts on children's wellbeing. The longer you and your ex jab at each other, the longer it'll take you to move out of conflict and the more damage you'll do to your kids.

The problem, of course, is resisting that temptation. I can't tell you how to do that; it's different for everyone. All I can do is emphasize how important it is to separate with as much dignity and grace as you can muster.

===Managing online life===

Don't air the details of your relationship and your separation, or trash your ex, on the internet. You can try to delete your comments later, when you've come to regret them, but the internet never forgets. It's almost a certainty that there's a record of your comment somewhere in cyberspace. The behaviour you need to avoid includes:

#slagging your ex on Facebook, Instagram and other kinds of social media;
#leaving negative reviews on professional or commercial rating websites, like Yelp, Angie's List, LawyerRatingz, or Rate my Professors;
#publishing copies of letters, photos and personal notes online;
#publishing copies of affidavits and other court documents; and,
#posting links to court decisions involving you, your ex or your children.

It's worth remembering how tech-savvy your kids are — or will be. Have you ever googled yourself? Most people have. Ask yourself what your kids are going to find when they google ''you''.

It's also worth remembering that if something can be printed, it can be attached as an exhibit to an affidavit. That includes your Facebook posts, your text messages, and your emails. Before you hit that send or post button, stop and spend a little bit of time thinking about what a stranger would think of you after reading your post, text message or email.

===Managing real life===

You also need to resist the urge to lash out in your offline life. Cry on the shoulders of your friends and family; use them to vent your frustrations, but leave it there. Remember that if things get ugly and you wind up going to court, everything that you say or do can be introduced into evidence. Remember also that when the court is required to consider the best interests of the children, section 37(2) of the ''[[Family Law Act]]'' says that the court must think about:

<blockquote><blockquote><tt>(e) the child's need for stability, given the child's age and stage of development;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;</tt></blockquote></blockquote>

while section 16(3) of the ''[[Divorce Act]]'' says that the court must think about:

<blockquote><blockquote><tt>(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(j) any family violence and its impact on, among other things,</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child;</tt></blockquote></blockquote></blockquote>

The part about ''the appropriateness of an arrangement that would require the child's guardians to cooperate'' is really important. Think about it.

Among other things, you will want to avoid:

#making complaints about your ex in their professional capacity to any regulatory bodies, like the College of Physicians and Surgeons, the Association of Clinical Counsellors, the College of Social Workers or the Law Society;
#making bogus complaints about your ex to child protection services or the police;
#reporting your ex to the Canada Revenue Agency, financial institutions or credit rating agencies;
#making complaints about your ex to their employer;
#badmouthing your ex in social, recreational or cultural clubs; and,
#contacting the media about your ex, your relationship, your separation or events following your separation.

Here's a helpful suggestion. Act as if everything you write, say or do will find its way into an affidavit.

The behaviour we've just talked about is the sort of behaviour that will make any court proceedings you're involved in worse, or increase the likelihood that you'll be going to court if court proceedings haven't yet started. A lot of these behaviours have the potential to get you into trouble with the police as well. The ''[http://canlii.ca/t/7vf2 Criminal Code]'' has provisions that make all sorts of misbehaviour potential criminal offences, including assault, battery, unlawful confinement, intimidation, threatening, criminal harassment and trespass.

==Respecting boundaries, respecting privacy==

Part of what's going on when a long-term romantic relationship ends is the redefinition of the personal relationship between the people involved in the romantic relationship. People who were once lovers and confidants must, especially if they have children, find a way to work together in a more business-like relationship with no presumptions of intimacy, trust or altruistic sacrifice. The differences in these two types of relationships are largely about real boundaries and anticipated boundaries.

Of course, problems can come up when our expectations of each other's boundaries don't quite match, and it's sometimes really important to talk about boundaries as a result. Setting and respecting each other's boundaries can be the key to making a difficult parenting relationship work. Here are some of the boundaries I've seen people use:

#requiring communication by text and email rather than by telephone, or communication by telephone rather than by text or email;
#setting limits on the length of emails and letters;
#setting limits on the volume of communication in a given period, or the hours within which communication will be replied to;
#restricting the subjects that can be discussed;
#restricting the family members and friends who can be communicated with;
#fixing the time and place where the children will be exchanged; and,
#setting consequences for failing to honour boundaries.

Privacy expectations, and the boundaries they imply, are a source of frequent conflict when relationships end. Since it can be hard to respect a former partner's privacy when your relationship has become adversarial, let's spell out some of the more basic rules.

<blockquote>'''It is not okay to open mail addressed only to your ex. Even when it gets delivered to your home.'''</blockquote>

<blockquote>'''It is not okay to hack into your ex's smartphone or your ex's email and social media accounts. Even if you know the password or even if it's easy to guess.'''</blockquote>

<blockquote>'''It is not okay to access your ex's voice mail or change or delete messages on your ex's voice mail.'''</blockquote>

<blockquote>'''It is not okay to access your ex's financial accounts. Even if your ex gave you permission to do that while you were together.'''</blockquote>

<blockquote>'''It is not okay to secretly record your ex's telephone calls. Even if your ex is talking to your children.'''</blockquote>

<blockquote>'''It is not okay to make secret video recordings or otherwise surveil your ex. Even if you're trying to gather evidence for court.'''</blockquote>

<blockquote>'''It is not okay to steal or make a copy of your ex's diary or personal journal.'''</blockquote>

Hopefully these rules make obvious sense. However, I include them because they are so often overlooked in the heat of battle. Remember that if you are involved in a court proceeding you have the right to get copies of anything, including any document, that is important to the legal issues in your court proceeding. If there's something important on your ex's phone, for example, you are entitled to ask for a copy of that thing — or apply for a court order that you be given a copy. You don't need to take a self-serve approach. Do it the right way.

==Protect yourself from bad behaviour==

Just as you can reduce the chances of your car getting stolen by locking its doors when you get out, there are a number of proactive things you can do to protect yourself from your ex's misbehaviour. Once it's clear to you that your relationship is coming to an end, you need to start protecting your privacy. This means taking additional steps to protect your physical privacy — changing the locks for your home, for example, even though your ex has given you your keys back — as well as your electronic privacy. You may need to change the passwords or access privileges for your:

#smartphone, smartwatch, tablets, computers and other devices;
#home wifi router and personal hotspots;
#home security and surveillance systems, especially security cameras, electronic doorbells and electronic locks;
#wifi-enabled appliances, fixtures and outlets
#internet, cable and telecommunication service providers;
#email accounts, social media accounts and gaming accounts;
#subscription-based accounts, like Netflix, Spotify and Crave; and,
#business accounts and services, including electronic banking, credit card and money transfer services, accounting and bookkeeping software, and communication and conferencing services.

You'll also want to disable any location-sharing options or services that may be available for your smartphone, smartwatch and car, or be built-in to your social media accounts. It's hard to remember in this electronic age just how many password-protected accounts and services we have, how many of the devices in our home are connected to the internet, and how many personal accounts our friends and family may have access to. You know how Facebook sometimes sends out reminders to check your privacy settings? You need to do that yourself when your relationship is coming to an end. Take a fresh look at ''everything''.

==The consequences of bad behaviour==

I've already mentioned how the ''[[Family Law Act]]'' and the ''[[Divorce Act]]'' require the court to consider "the appropriateness of an arrangement that would require the child's guardians to cooperate" when making decisions about the parenting arrangements that are in the best interests of a child, and how many kinds of misbehaviour are offences under the ''[http://canlii.ca/t/7vf2 Criminal Code]''. There are other potential consequences as well.

===Costs===

The Supreme Court has the ability to make "costs orders" under [https://www.canlii.org/en/bc/laws/regu/bc-reg-169-2009/latest/bc-reg-169-2009.html?autocompleteStr=supreme%20court%20family%20&autocompletePos=1#Part_16_Costs_521146 Rule 16-1] of the [http://canlii.ca/t/8mcr rules of court] used in family law disputes. An award of ''costs'' is a requirement that one side to a court proceeding pay to the other side a sum of money that compensates the other side for the time and money they had to put into the court proceeding. In general, the successful side is entitled to have their costs paid by the other side, and an award of ''ordinary costs'' usually works out to somewhere between a third and half of the money the successful side spent defending or prosecuting their case. An award of ''special costs'', however, is a lot closer to the total amount the successful side spent on their case.

Special costs awards are made to punish a party for how they managed their case. When assessing special costs under Rule 16-1(2)(b), the court is required to consider "the conduct of any party that tended to shorten, or to unnecessarily lengthen, the duration of the family law case."

===Misuse of court process===

Under section 221(1) of the ''Family Law Act'', the court may make an order stopping someone from making further applications or continuing a court proceeding without first getting permission from a judge if that person:

<blockquote><blockquote><tt>(a) has made an application that is trivial,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) is conducting a proceeding in a manner that is a misuse of the court process, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) is otherwise acting in a manner that frustrates or misuses the court process.</tt></blockquote></blockquote>

If the court makes this order, it can also make the person:

#pay the fees and expenses incurred by the other side;
#pay up to $5,000 to, or for the benefit of, the other side or someone affected by the person's actions; or,
#pay a fine of up to $5,000.

===Conduct orders===

Under section 222 of the ''Family Law Act'', the court can make ''conduct orders'' if necessary to "manage behaviours that might frustrate the resolution of a family law dispute" or to "misuse of the court process." The conduct orders that are available to the court are listed in sections 223 to 227, and include orders:

#striking all or part of a claim or an application;
#requiring someone to attend counselling;
#restrictring communication between the people involved in a court proceeding; and,
#requring someone to pay ''security'' into court, a cash deposit made to guarantee the person's good behaviour.

===Damages===

Claims in ''tort'' can be made in a court proceeding dealing with family law issues or in a separate proceeding. A "tort" is a kind of claim made when the actions or omissions of one person cause harm to another person. A lot of criminal offences are also torts, like assault and battery. If the tort is proven, the person who was sued may have to pay ''damages'' to the person who started the court proceedings. "Damages" are cash awards intended to compensate for pain and suffering, lost wages, medical expenses, and so on. ''Punitive damages'' or ''aggravated damages'' are cash awards that have the extra purpose of punishing a party for their behaviour.

The sort of torts someone could sue for in the context of the breakdown of a relationship include:

#assault, battery, and sexual assault;
#nervous shock and intentional infliction of mental distress;
#trespass;
#invasion of privacy and breach of confidence; and,
#defamation.

Someone might sue for damages for defamation, for example, if the other side posted false information about them on Facebook or a website. Someone might sue for invasion of privacy, breach of confidence or the intentional infliction of mental distress if the other side posted embarassing photos of them — revenge porn — on Instagram, a pornography provider or another website.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''

===Links===

*[https://www.clicklaw.bc.ca/resource/4639 Legal Services Society’s Family Law website's information page on Separation & Divorce]
*[http://www.justice.gc.ca/eng/fl-df/divorce/index.html Department of Justice's website "Divorce and Separation"]
*[http://www.counsellingbc.com BC Counsellors by Practice Area]
*[http://bc-counsellors.org BC Association of Clinical Counsellors]
*[http://www.bcamft.bc.ca Association for Marriage and Family Therapy]

{{REVIEWED | reviewer = [[JP Boyd]], 25 March 2020}}

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Family Violence in the Family Law Act and the Divorce Act

2021-03-06T21:52:30Z

Jpboyd: /* Links */

{{JP Boyd on Family Law TOC|expanded = violence}}{{JPBOFL Editor Badge
|ChapterEditors = [[Fiona Beveridge]] and [[Samantha Simpson]]
}}
{{Clicklawbadge
|resourcetype = critical resources and common questions on
|link = [https://www.clicklaw.bc.ca/global/search?so=r&f=Abuse+%26+family+violence family violence issues]
}}

Family violence is dealt with under the ''[[Family Law Act]]'' when there are questions about:
* protecting an at-risk family member from another family member, and
* parenting arrangements, with respect to making decisions about the arrangements that are in the best interests of a child.

'''Important changes''' 
Look for explanations under this heading to read about recent changes to family law affecting the information provided in this section.

==Family violence under the ''Family Law Act''==

Family violence is dealt with under the ''[[Family Law Act]]'' when there are questions about:

* protecting an at-risk family member from another family member, and/or
* parenting arrangements and decisions about the parenting arrangements that are in the best interests of a child.

Part 9 of the ''Act'' deals with protection orders that can restrain a family member from communicating with, following, or going near another family member, or from possessing weapons. These are discussed first.

Part 4, Division 1 of the ''Act'' deals with care of and time with children. Sections 37 and 38 show how important family violence is as a factor to consider when assessing the ''best interests of a child'', or making an agreement or order about care of and time with children.

'''Important changes''' 
The ''Family Law Act'' and, as a result of recent changes, the ''Divorce Act'' both require the court to consider the impact of coercive control and family violence when making decisions about children.

===Definition of family violence===
The ''[[Family Law Act]]'' defines family violence in a broad and inclusive way to capture more than just forceful physical contact. Non-physical forms of abuse such as harassment, intimidation, and even financial sabotage can qualify where these actions instill fear. No long-term intention to follow through with the act being threatened is required for it to be considered family violence.

Section 1 of the ''[[Family Law Act]]'' defines the term:

<blockquote><tt>"family violence" includes</tt></blockquote>
<blockquote><blockquote><tt>(a) physical abuse of a family member, including forced confinement or deprivation of the necessities of life, but not including the use of reasonable force to protect oneself or others from harm,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) sexual abuse of a family member,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) attempts to physically or sexually abuse a family member,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) psychological or emotional abuse of a family member, including</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) intimidation, harassment, coercion or threats, including threats respecting other persons, pets or property,</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) unreasonable restrictions on, or prevention of, a family member's financial or personal autonomy,</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(iii) stalking or following of the family member, and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(iv) intentional damage to property, and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><tt>(e) in the case of a child, direct or indirect exposure to family violence</tt></blockquote></blockquote>

So far, the courts have found a wide range of actions to be ''family violence''. The following are just some examples of family violence:

* In [http://canlii.ca/t/hwqqr ''S.A.H. v. J.J.G.V.''], 2018 BCSC 2278, the court found that a father consistently arguing that the mother's and the children's actions were contrary to scripture and sinful amounted to spiritual abuse and fits into the broad definition of family violence in the ''Family Law Act''.
* In [http://canlii.ca/t/hvw3v ''N.M.A v. K.D.L.''], 2018 BCSC 1879, the court found that derogatory and abusive language in the father's emails to the mother was beyond mere bickering and unpleasantness and that this kind of language, especially when it occurs over an extended period of time, can amount to emotional abuse and be family violence.
* In [http://canlii.ca/t/hxcc8 ''S.A.W. v. P.J.W.''], 2018 BCPC 376, the court found a distinction between "mere arguments and insulting discourse", or even "nasty or spiteful arguments", and behaviour that is so "belittling, demeaning, and insulting" (and repeated frequently in front of a child), that it was at a different level and fit the broad definition of family violence, although likely at the lower end of the scale.
* In ''[http://canlii.ca/t/gx9s1 K.R. v. J.D.]'', 2017 BCSC 182, the court found that a parent's derogatory and demeaning comments about the other parent, on occasion and in the child’s presence, “clearly amount to family violence” since they disturbed the child and caused the child emotional harm.
* In ''[http://canlii.ca/t/fxjb5 M.W.B v. A.R.B.]'', 2013 BCSC 885, a mother was found to have committed family violence for repeatedly interfering with the father’s access to the children and refusing to settle orders that were drafted by lawyers, and these actions prolonged and intensified the litigation.
* In ''[http://canlii.ca/t/gdt2h Hokhold v. Gerbrandt]'', 2014 BCSC 1875, the court determined that the father's emotionally abusive conduct, which included sending excessive and demanding emails, failing to pay support, and threatening to close his dental practice, constituted family violence.
* In ''[http://canlii.ca/t/gh679 C.R. v. A.M.]'', 2015 BCPC 76, the court found that a father’s threats to use his stronger financial position to fight the mother “[until] she lives in a box” constituted family violence.
* In ''[http://canlii.ca/t/g7233 L.A.R. v. E.J.R.]'', 2014 BCSC 966, the court found that disparaging remarks made to the children about their mother, as well as disparaging comments made to the mother in the children’s presence, constituted emotional abuse.
* ''[http://canlii.ca/t/glx9n C.F. v. D.V.]'', 2015 BCPC 309, the court found that there had been family violence as the father broke the mother’s cellphone and a picture on the wall, then kicked a hole in the bathroom door.

A lot depends on the specific facts of the case, however. The following are some examples of where the court determined that there was no family violence:

* In ''[http://canlii.ca/t/g2zjp L.S. v. G.S.]'', 2014 BCSC 187, the father wanted the court to declare that the mother’s denial of parenting time constituted family violence. The court refused. The court noted that the father failed to provide any evidence of harm to the children.
* In ''[http://canlii.ca/t/g1rsc J.R.E. v. 07-----8 B.C. Ltd.]'', 2013 BCSC 2038, the court held that taking an insistent and even inflexible position in post-separation negotiations did not in that case equate to emotional or psychological abuse.

It should finally be cautioned that the courts take a dim view of family violence claims that have other motivations. In ''[http://canlii.ca/t/g2zjp L.S. v. G.S.]'', 2014 BCSC 187, the court said:
<blockquote>More important, there is no evidence that the children have suffered any physical or emotional harm as a result of the claimant’s conduct. The provisions in the ''FLA'' relating to family violence are intended to address a serious social issue and to protect children and spouses from actual harm or danger. Their meaning and application should not be stretched to the point they become just another weapon in a largely financial war between the parties. </blockquote>

'''Important changes''' 
The changes to the ''Divorce Act'' include a definition of family violence that is as broad as the definition in the ''Family Law Act'' and, like the ''Family Law Act'', include family violence in the list of best-interests factors to take into consideration when making decisions about children.

==Using the ''Family Law Act'' for protection==
The ''[[Family Law Act]]'' offers a number of different restraining orders that can be very helpful and can provide the same level of protection as a ''recognizance'' under the ''Criminal Code''.

===Protection orders under Part 9===

Protection orders are the primary way family violence is addressed under the ''Family Law Act''. Under section 183(1), an ''at-risk family member'', someone on behalf of an at-risk family member, or the court itself can ask for a protection order, and the claim for a protection order needn't be made with any other claims under the act.

The act has a number of very important definitions that relate to protection orders.

''At-risk family member'' is defined in section 182:
<blockquote><tt>"at-risk family member" means a person whose safety and security is or is likely at risk from family violence carried out by a family member</tt></blockquote>

''Family member'' is defined in section 1:
<blockquote><tt>"family member", with respect to a person, means</tt></blockquote>
<blockquote><blockquote><tt>(a) the person's spouse or former spouse,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) a person with whom the person is living, or has lived, in a marriage-like relationship,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) a parent or guardian of the person's child,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) a person who lives with, and is related to,</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) the person, or</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) a person referred to in any of paragraphs (a) to (c), or</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><tt>(e) the person's child,</tt></blockquote></blockquote>
<blockquote><tt>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)</tt></blockquote>

If you read the definition of ''family member'' carefully, you'll see that people who are just dating or are in another casual relationship aren't family members as the ''Act'' defines the term. This means that people who are just dating or are in another casual relationship can't apply for protection orders under Part 9 of the ''Family Law Act''. (They can, however, apply for a peace bond under the ''Criminal Code''.)

===Making protection orders===

When the court is asked to make a protection order, it must consider certain risk factors set out at section 184(1):

<blockquote><tt>(a) any history of family violence by the family member against whom the order is to be made;</tt></blockquote>
<blockquote><tt>(b) whether any family violence is repetitive or escalating;</tt></blockquote>
<blockquote><tt>(c) whether any psychological or emotional abuse constitutes, or is evidence of, a pattern of coercive and controlling behaviour directed at the at-risk family member;</tt></blockquote>
<blockquote><tt>(d) the current status of the relationship between the family member against whom the order is to be made and the at-risk family member, including any recent separation or intention to separate;</tt></blockquote>
<blockquote><tt>(e) any circumstance of the family member against whom the order is to be made that may increase the risk of family violence by that family member, including substance abuse, employment or financial problems, mental health problems associated with a risk of violence, access to weapons, or a history of violence;</tt></blockquote>
<blockquote><tt>(f) the at-risk family member's perception of risks to his or her own safety and security;</tt></blockquote>
<blockquote><tt>(g) any circumstance that may increase the at-risk family member's vulnerability, including pregnancy, age, family circumstances, health or economic dependence.</tt></blockquote>

Essentially, the court is required to look at the family violence in the overall context of the couple and the history and present circumstances of their relationship. When a child is a family member, under section 185, the court must also consider:

*whether the child might be exposed to family violence if a protection order isn't made, and
*whether a protection order should also be made for the protection of the child.

Recent court decisions like ''[http://canlii.ca/t/gf0ng Hughes v. Erickson]'', 2014 BCSC 1952 show that a protection order will not be made without evidence that family violence will likely occur. Even one act of physical violence may suggest that violence is ''likely'' to occur in the future. It is not enough for the person asking for a protection order to say that they are afraid or at risk of violence; evidence must be presented of one of the section 184 risk factors to allow the court to decide if it should grant a protection order (''[http://canlii.ca/t/g7rnf Whitelock v. Whitelock]'', 2014 BCSC 1184).

===Protection order terms===

The available protection orders are listed at section 183(3) and include orders:

*restraining a person from communicating with or contacting the at-risk family member, going to the at-risk family member's home, workplace, or school, and stalking the at-risk family member,
*limiting how the person communicates with the at-risk family member,
*directing the police to remove the person against whom the order is sought from the family home or accompany them to remove personal property, and
*requiring the person to report to the court or to another person.

Under section 183(3)(e), the court can impose any other terms in a protection order that may be necessary to protect the at-risk family member or implement the protection order. Protection orders remain in place for one year, unless the order specifies another term.

If a protection order, an order from another jurisdiction that is like a protection order, or a ''Criminal Code'' no-contact or no-communication order is made, any previous ''Family Law Act'' orders are suspended to the extent of any conflict with the protection order. In other words, if there's an older order for contact with the children, but a protection order is made that stops the person with contact from communicating with the children, the parts of the older order about contact would be suspended.

To find out more about protection orders, you may wish to read the booklet [http://www.clicklaw.bc.ca/resource/1319 For Your Protection: Peace Bonds and Family Law Protection Orders], or read the information page on "[https://www.clicklaw.bc.ca/resource/4657 Protecting yourself & your family]", under the section "Family law protection orders".

===Changing protection orders===

When a protection order has been made and hasn't yet expired, either party can apply to vary the order to:

*extend or shorten the period of time that the order is in effect,
*vary the terms of the order, or
*end the order.

When a protection order has been made without notice, that is, if the application was made without letting the other party know about the application ahead of time, the other party can ask the court to cancel the order.

===Enforcing protection orders===

Protection orders can't be enforced under the ''Family Law Act'', only by section 127 of the ''Criminal Code'', which makes it an offence to breach a court order. However, section 188(2) says this:

<blockquote><tt>A police officer having reasonable and probable grounds to believe that a person has contravened a term of an order made under this Part may</tt></blockquote>
<blockquote><blockquote><tt>(a) take action to enforce the order, whether or not there is proof that the order has been served on the person, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) if necessary for the purpose of paragraph (a), use reasonable force.</tt></blockquote></blockquote>

==Family violence and the best interests of the child analysis==
Part 4, Division 1 of the ''Act'' (s. 37 and section 38) deal with the factors that determine what's in the ''best interests of the child''. The issue of family violence must be considered in the context of any application to establish or change guardianship, parenting arrangements, or contact with a child.

A finding of family violence can greatly impact a court's decision around parenting arrangements and how to allocate parental responsibilities in keeping with the best interests of a child. A court could decide the person responsible for family violence should have no parenting time, supervised parenting time, or no parenting time or responsibilities.

This said, there are cases where the court granted equal parenting even where one parent was responsible for family violence. It is simply impossible to predict what a court will consider to be in the best interests of a child in any particular case as the analysis is very fact-specific.
According to section 37 of the ''[[Family Law Act]]'', when undertaking the best interests analysis, a court must consider, among other things, the following:
* 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 their 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, and
* any civil or criminal proceeding relevant to the child’s safety, security, or wellbeing.

Where specific facts are important, the evidence you produce is important. As such, if you are asking a court to make an order respecting guardianship, parenting arrangements, or contact with a child and there has been family violence, or if you are defending such an application, it is important to focus on evidence that addresses these factors.

'''Important changes''' 
Under the changes to the ''Divorce Act'', judges now have a long list of best-interests factors to take into consideration when making decisions about children. The factors include things like the history of the children's care, the children's views and preferences, each spouse's plan for the care of the children, and the extent to which each spouse will support the children's relationship with the other spouse. Family violence is another important factor, and when family violence is present, the ''Divorce Act'' now includes a list of additional factors for judges to consider, including the nature and frequency of the violence.

==Conduct orders==
Conduct orders under Part 10, Division 5 of the ''[[Family Law Act]]'' give the court some control to help the parties and the court process. They are different from family law protection orders, and not as tailored to addressing family violence. A conduct order could, for example, stop a party from filing repetitive applications that misuse the court process, tell a party to attend a counselling program, or say how and when parties should communicate with each other.

A conduct order may be seen as a less extreme way to reduce bad behaviour and hostilities compared to a family law protection order. While a conduct order may be less coercive, a court must consider whether it is enough. Under section 255, a court will not issue a conduct order restricting communication if a family law protection order would be more appropriate. Likewise, a court will not decline to impose a family law protection order merely because a conduct order was previously in place.

A court can only make conduct orders for one of four purposes set out at section 222:

<blockquote><tt>At any time during a proceeding or on the making of an order under this Act, the court may make an order under this Division for one or more of the following purposes:</tt></blockquote>
<blockquote><blockquote><tt>(a) to facilitate the settlement of a family law dispute or of an issue that may become the subject of a family law dispute;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) to manage behaviours that might frustrate the resolution of a family law dispute by an agreement or order;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) to prevent misuse of the court process;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) to facilitate arrangements pending final determination of a family law dispute.</tt></blockquote></blockquote>

Conduct orders include orders:

*requiring a person to attend counselling, or a specified service or a program like an anti-violence or anger management course,
*restricting communication between the parties,
*requiring a person to pay the costs associated with the family home, like mortgage or rent payments, property taxes, and utilities,
*restricting a person from terminating the utilities serving the family home,
*requiring a person to supervise the removal of personal property from the family home,
*requiring a person to post security to guarantee their good behaviour, and
*requiring a person to report to the court or to another person, like a counsellor or therapist.

Conduct orders can be enforced in a number of ways under section 228, including by requiring a person to pay up to $5,000 as a fine or to a party, or by jailing the person for up to 30 days. Jail will only be ordered when nothing else will secure the person's compliance with the conduct order.

==Other orders==

Other orders are available under the ''Family Law Act'' that could be used to address issues relating to family violence.

*'''Exclusive occupancy:''' Under section 90, the court may make temporary orders, and grant one spouse exclusive occupancy of the family residence. This isn't a restraining order, in the sense that it prohibits the other party from entering the home, but the person with the exclusive occupation order is allowed to live there and the other spouse is not.
*'''Supervised parenting time and contact:''' Under sections 45 and 59, a person's parenting time or contact can be subject to a requirement that it be supervised by a third party, like a relative or a professional supervisor.
*'''Conditions of parenting time and contact:''' Under section 218, the court may impose terms and conditions on any order it makes. Where family violence is an issue, appropriate terms and conditions might restrict where the children are exchanged, and how the parties interact when the children are exchanged, or they might say that a party's parenting time or contact will not happen if the party is impaired by drugs or alcohol.

==Resources and Links==
===Legislation===
*''[[Family Law Act]]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules], Rule 15-1(2)

===Forms===
* [[PCFR Form 25 Protection Order]]

===Links===
* [http://www.clicklaw.bc.ca/resource/4105 Protection Orders — Questions and Answers]
* [http://www.clicklaw.bc.ca/resource/1319 For Your Protection: Peace Bonds and Family Law Protection Orders]
* [https://www.clicklaw.bc.ca/resource/4657 Legal Services Society's Family Law website's information page "Protecting yourself & your family"]:
** See "Family law protection orders" and "Apply for a family law protection order"

{{REVIEWED | reviewer = [[JP Boyd]], March 6, 2021}}

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[[Category:JP Boyd on Family Law]]

Family Violence in the Family Law Act and the Divorce Act

2021-03-06T21:52:07Z

Jpboyd: /* Family violence and the best interests of the child analysis */

{{JP Boyd on Family Law TOC|expanded = violence}}{{JPBOFL Editor Badge
|ChapterEditors = [[Fiona Beveridge]] and [[Samantha Simpson]]
}}
{{Clicklawbadge
|resourcetype = critical resources and common questions on
|link = [https://www.clicklaw.bc.ca/global/search?so=r&f=Abuse+%26+family+violence family violence issues]
}}

Family violence is dealt with under the ''[[Family Law Act]]'' when there are questions about:
* protecting an at-risk family member from another family member, and
* parenting arrangements, with respect to making decisions about the arrangements that are in the best interests of a child.

'''Important changes''' 
Look for explanations under this heading to read about recent changes to family law affecting the information provided in this section.

==Family violence under the ''Family Law Act''==

Family violence is dealt with under the ''[[Family Law Act]]'' when there are questions about:

* protecting an at-risk family member from another family member, and/or
* parenting arrangements and decisions about the parenting arrangements that are in the best interests of a child.

Part 9 of the ''Act'' deals with protection orders that can restrain a family member from communicating with, following, or going near another family member, or from possessing weapons. These are discussed first.

Part 4, Division 1 of the ''Act'' deals with care of and time with children. Sections 37 and 38 show how important family violence is as a factor to consider when assessing the ''best interests of a child'', or making an agreement or order about care of and time with children.

'''Important changes''' 
The ''Family Law Act'' and, as a result of recent changes, the ''Divorce Act'' both require the court to consider the impact of coercive control and family violence when making decisions about children.

===Definition of family violence===
The ''[[Family Law Act]]'' defines family violence in a broad and inclusive way to capture more than just forceful physical contact. Non-physical forms of abuse such as harassment, intimidation, and even financial sabotage can qualify where these actions instill fear. No long-term intention to follow through with the act being threatened is required for it to be considered family violence.

Section 1 of the ''[[Family Law Act]]'' defines the term:

<blockquote><tt>"family violence" includes</tt></blockquote>
<blockquote><blockquote><tt>(a) physical abuse of a family member, including forced confinement or deprivation of the necessities of life, but not including the use of reasonable force to protect oneself or others from harm,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) sexual abuse of a family member,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) attempts to physically or sexually abuse a family member,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) psychological or emotional abuse of a family member, including</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) intimidation, harassment, coercion or threats, including threats respecting other persons, pets or property,</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) unreasonable restrictions on, or prevention of, a family member's financial or personal autonomy,</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(iii) stalking or following of the family member, and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(iv) intentional damage to property, and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><tt>(e) in the case of a child, direct or indirect exposure to family violence</tt></blockquote></blockquote>

So far, the courts have found a wide range of actions to be ''family violence''. The following are just some examples of family violence:

* In [http://canlii.ca/t/hwqqr ''S.A.H. v. J.J.G.V.''], 2018 BCSC 2278, the court found that a father consistently arguing that the mother's and the children's actions were contrary to scripture and sinful amounted to spiritual abuse and fits into the broad definition of family violence in the ''Family Law Act''.
* In [http://canlii.ca/t/hvw3v ''N.M.A v. K.D.L.''], 2018 BCSC 1879, the court found that derogatory and abusive language in the father's emails to the mother was beyond mere bickering and unpleasantness and that this kind of language, especially when it occurs over an extended period of time, can amount to emotional abuse and be family violence.
* In [http://canlii.ca/t/hxcc8 ''S.A.W. v. P.J.W.''], 2018 BCPC 376, the court found a distinction between "mere arguments and insulting discourse", or even "nasty or spiteful arguments", and behaviour that is so "belittling, demeaning, and insulting" (and repeated frequently in front of a child), that it was at a different level and fit the broad definition of family violence, although likely at the lower end of the scale.
* In ''[http://canlii.ca/t/gx9s1 K.R. v. J.D.]'', 2017 BCSC 182, the court found that a parent's derogatory and demeaning comments about the other parent, on occasion and in the child’s presence, “clearly amount to family violence” since they disturbed the child and caused the child emotional harm.
* In ''[http://canlii.ca/t/fxjb5 M.W.B v. A.R.B.]'', 2013 BCSC 885, a mother was found to have committed family violence for repeatedly interfering with the father’s access to the children and refusing to settle orders that were drafted by lawyers, and these actions prolonged and intensified the litigation.
* In ''[http://canlii.ca/t/gdt2h Hokhold v. Gerbrandt]'', 2014 BCSC 1875, the court determined that the father's emotionally abusive conduct, which included sending excessive and demanding emails, failing to pay support, and threatening to close his dental practice, constituted family violence.
* In ''[http://canlii.ca/t/gh679 C.R. v. A.M.]'', 2015 BCPC 76, the court found that a father’s threats to use his stronger financial position to fight the mother “[until] she lives in a box” constituted family violence.
* In ''[http://canlii.ca/t/g7233 L.A.R. v. E.J.R.]'', 2014 BCSC 966, the court found that disparaging remarks made to the children about their mother, as well as disparaging comments made to the mother in the children’s presence, constituted emotional abuse.
* ''[http://canlii.ca/t/glx9n C.F. v. D.V.]'', 2015 BCPC 309, the court found that there had been family violence as the father broke the mother’s cellphone and a picture on the wall, then kicked a hole in the bathroom door.

A lot depends on the specific facts of the case, however. The following are some examples of where the court determined that there was no family violence:

* In ''[http://canlii.ca/t/g2zjp L.S. v. G.S.]'', 2014 BCSC 187, the father wanted the court to declare that the mother’s denial of parenting time constituted family violence. The court refused. The court noted that the father failed to provide any evidence of harm to the children.
* In ''[http://canlii.ca/t/g1rsc J.R.E. v. 07-----8 B.C. Ltd.]'', 2013 BCSC 2038, the court held that taking an insistent and even inflexible position in post-separation negotiations did not in that case equate to emotional or psychological abuse.

It should finally be cautioned that the courts take a dim view of family violence claims that have other motivations. In ''[http://canlii.ca/t/g2zjp L.S. v. G.S.]'', 2014 BCSC 187, the court said:
<blockquote>More important, there is no evidence that the children have suffered any physical or emotional harm as a result of the claimant’s conduct. The provisions in the ''FLA'' relating to family violence are intended to address a serious social issue and to protect children and spouses from actual harm or danger. Their meaning and application should not be stretched to the point they become just another weapon in a largely financial war between the parties. </blockquote>

'''Important changes''' 
The changes to the ''Divorce Act'' include a definition of family violence that is as broad as the definition in the ''Family Law Act'' and, like the ''Family Law Act'', include family violence in the list of best-interests factors to take into consideration when making decisions about children.

==Using the ''Family Law Act'' for protection==
The ''[[Family Law Act]]'' offers a number of different restraining orders that can be very helpful and can provide the same level of protection as a ''recognizance'' under the ''Criminal Code''.

===Protection orders under Part 9===

Protection orders are the primary way family violence is addressed under the ''Family Law Act''. Under section 183(1), an ''at-risk family member'', someone on behalf of an at-risk family member, or the court itself can ask for a protection order, and the claim for a protection order needn't be made with any other claims under the act.

The act has a number of very important definitions that relate to protection orders.

''At-risk family member'' is defined in section 182:
<blockquote><tt>"at-risk family member" means a person whose safety and security is or is likely at risk from family violence carried out by a family member</tt></blockquote>

''Family member'' is defined in section 1:
<blockquote><tt>"family member", with respect to a person, means</tt></blockquote>
<blockquote><blockquote><tt>(a) the person's spouse or former spouse,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) a person with whom the person is living, or has lived, in a marriage-like relationship,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) a parent or guardian of the person's child,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) a person who lives with, and is related to,</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) the person, or</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) a person referred to in any of paragraphs (a) to (c), or</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><tt>(e) the person's child,</tt></blockquote></blockquote>
<blockquote><tt>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)</tt></blockquote>

If you read the definition of ''family member'' carefully, you'll see that people who are just dating or are in another casual relationship aren't family members as the ''Act'' defines the term. This means that people who are just dating or are in another casual relationship can't apply for protection orders under Part 9 of the ''Family Law Act''. (They can, however, apply for a peace bond under the ''Criminal Code''.)

===Making protection orders===

When the court is asked to make a protection order, it must consider certain risk factors set out at section 184(1):

<blockquote><tt>(a) any history of family violence by the family member against whom the order is to be made;</tt></blockquote>
<blockquote><tt>(b) whether any family violence is repetitive or escalating;</tt></blockquote>
<blockquote><tt>(c) whether any psychological or emotional abuse constitutes, or is evidence of, a pattern of coercive and controlling behaviour directed at the at-risk family member;</tt></blockquote>
<blockquote><tt>(d) the current status of the relationship between the family member against whom the order is to be made and the at-risk family member, including any recent separation or intention to separate;</tt></blockquote>
<blockquote><tt>(e) any circumstance of the family member against whom the order is to be made that may increase the risk of family violence by that family member, including substance abuse, employment or financial problems, mental health problems associated with a risk of violence, access to weapons, or a history of violence;</tt></blockquote>
<blockquote><tt>(f) the at-risk family member's perception of risks to his or her own safety and security;</tt></blockquote>
<blockquote><tt>(g) any circumstance that may increase the at-risk family member's vulnerability, including pregnancy, age, family circumstances, health or economic dependence.</tt></blockquote>

Essentially, the court is required to look at the family violence in the overall context of the couple and the history and present circumstances of their relationship. When a child is a family member, under section 185, the court must also consider:

*whether the child might be exposed to family violence if a protection order isn't made, and
*whether a protection order should also be made for the protection of the child.

Recent court decisions like ''[http://canlii.ca/t/gf0ng Hughes v. Erickson]'', 2014 BCSC 1952 show that a protection order will not be made without evidence that family violence will likely occur. Even one act of physical violence may suggest that violence is ''likely'' to occur in the future. It is not enough for the person asking for a protection order to say that they are afraid or at risk of violence; evidence must be presented of one of the section 184 risk factors to allow the court to decide if it should grant a protection order (''[http://canlii.ca/t/g7rnf Whitelock v. Whitelock]'', 2014 BCSC 1184).

===Protection order terms===

The available protection orders are listed at section 183(3) and include orders:

*restraining a person from communicating with or contacting the at-risk family member, going to the at-risk family member's home, workplace, or school, and stalking the at-risk family member,
*limiting how the person communicates with the at-risk family member,
*directing the police to remove the person against whom the order is sought from the family home or accompany them to remove personal property, and
*requiring the person to report to the court or to another person.

Under section 183(3)(e), the court can impose any other terms in a protection order that may be necessary to protect the at-risk family member or implement the protection order. Protection orders remain in place for one year, unless the order specifies another term.

If a protection order, an order from another jurisdiction that is like a protection order, or a ''Criminal Code'' no-contact or no-communication order is made, any previous ''Family Law Act'' orders are suspended to the extent of any conflict with the protection order. In other words, if there's an older order for contact with the children, but a protection order is made that stops the person with contact from communicating with the children, the parts of the older order about contact would be suspended.

To find out more about protection orders, you may wish to read the booklet [http://www.clicklaw.bc.ca/resource/1319 For Your Protection: Peace Bonds and Family Law Protection Orders], or read the information page on "[https://www.clicklaw.bc.ca/resource/4657 Protecting yourself & your family]", under the section "Family law protection orders".

===Changing protection orders===

When a protection order has been made and hasn't yet expired, either party can apply to vary the order to:

*extend or shorten the period of time that the order is in effect,
*vary the terms of the order, or
*end the order.

When a protection order has been made without notice, that is, if the application was made without letting the other party know about the application ahead of time, the other party can ask the court to cancel the order.

===Enforcing protection orders===

Protection orders can't be enforced under the ''Family Law Act'', only by section 127 of the ''Criminal Code'', which makes it an offence to breach a court order. However, section 188(2) says this:

<blockquote><tt>A police officer having reasonable and probable grounds to believe that a person has contravened a term of an order made under this Part may</tt></blockquote>
<blockquote><blockquote><tt>(a) take action to enforce the order, whether or not there is proof that the order has been served on the person, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) if necessary for the purpose of paragraph (a), use reasonable force.</tt></blockquote></blockquote>

==Family violence and the best interests of the child analysis==
Part 4, Division 1 of the ''Act'' (s. 37 and section 38) deal with the factors that determine what's in the ''best interests of the child''. The issue of family violence must be considered in the context of any application to establish or change guardianship, parenting arrangements, or contact with a child.

A finding of family violence can greatly impact a court's decision around parenting arrangements and how to allocate parental responsibilities in keeping with the best interests of a child. A court could decide the person responsible for family violence should have no parenting time, supervised parenting time, or no parenting time or responsibilities.

This said, there are cases where the court granted equal parenting even where one parent was responsible for family violence. It is simply impossible to predict what a court will consider to be in the best interests of a child in any particular case as the analysis is very fact-specific.
According to section 37 of the ''[[Family Law Act]]'', when undertaking the best interests analysis, a court must consider, among other things, the following:
* 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 their 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, and
* any civil or criminal proceeding relevant to the child’s safety, security, or wellbeing.

Where specific facts are important, the evidence you produce is important. As such, if you are asking a court to make an order respecting guardianship, parenting arrangements, or contact with a child and there has been family violence, or if you are defending such an application, it is important to focus on evidence that addresses these factors.

'''Important changes''' 
Under the changes to the ''Divorce Act'', judges now have a long list of best-interests factors to take into consideration when making decisions about children. The factors include things like the history of the children's care, the children's views and preferences, each spouse's plan for the care of the children, and the extent to which each spouse will support the children's relationship with the other spouse. Family violence is another important factor, and when family violence is present, the ''Divorce Act'' now includes a list of additional factors for judges to consider, including the nature and frequency of the violence.

==Conduct orders==
Conduct orders under Part 10, Division 5 of the ''[[Family Law Act]]'' give the court some control to help the parties and the court process. They are different from family law protection orders, and not as tailored to addressing family violence. A conduct order could, for example, stop a party from filing repetitive applications that misuse the court process, tell a party to attend a counselling program, or say how and when parties should communicate with each other.

A conduct order may be seen as a less extreme way to reduce bad behaviour and hostilities compared to a family law protection order. While a conduct order may be less coercive, a court must consider whether it is enough. Under section 255, a court will not issue a conduct order restricting communication if a family law protection order would be more appropriate. Likewise, a court will not decline to impose a family law protection order merely because a conduct order was previously in place.

A court can only make conduct orders for one of four purposes set out at section 222:

<blockquote><tt>At any time during a proceeding or on the making of an order under this Act, the court may make an order under this Division for one or more of the following purposes:</tt></blockquote>
<blockquote><blockquote><tt>(a) to facilitate the settlement of a family law dispute or of an issue that may become the subject of a family law dispute;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) to manage behaviours that might frustrate the resolution of a family law dispute by an agreement or order;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) to prevent misuse of the court process;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) to facilitate arrangements pending final determination of a family law dispute.</tt></blockquote></blockquote>

Conduct orders include orders:

*requiring a person to attend counselling, or a specified service or a program like an anti-violence or anger management course,
*restricting communication between the parties,
*requiring a person to pay the costs associated with the family home, like mortgage or rent payments, property taxes, and utilities,
*restricting a person from terminating the utilities serving the family home,
*requiring a person to supervise the removal of personal property from the family home,
*requiring a person to post security to guarantee their good behaviour, and
*requiring a person to report to the court or to another person, like a counsellor or therapist.

Conduct orders can be enforced in a number of ways under section 228, including by requiring a person to pay up to $5,000 as a fine or to a party, or by jailing the person for up to 30 days. Jail will only be ordered when nothing else will secure the person's compliance with the conduct order.

==Other orders==

Other orders are available under the ''Family Law Act'' that could be used to address issues relating to family violence.

*'''Exclusive occupancy:''' Under section 90, the court may make temporary orders, and grant one spouse exclusive occupancy of the family residence. This isn't a restraining order, in the sense that it prohibits the other party from entering the home, but the person with the exclusive occupation order is allowed to live there and the other spouse is not.
*'''Supervised parenting time and contact:''' Under sections 45 and 59, a person's parenting time or contact can be subject to a requirement that it be supervised by a third party, like a relative or a professional supervisor.
*'''Conditions of parenting time and contact:''' Under section 218, the court may impose terms and conditions on any order it makes. Where family violence is an issue, appropriate terms and conditions might restrict where the children are exchanged, and how the parties interact when the children are exchanged, or they might say that a party's parenting time or contact will not happen if the party is impaired by drugs or alcohol.

==Resources and Links==
===Legislation===
*''[[Family Law Act]]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules], Rule 15-1(2)

===Forms===
* [[PCFR Form 25 Protection Order]]

===Links===
* [http://www.clicklaw.bc.ca/resource/4105 Protection Orders — Questions and Answers]
* [http://www.clicklaw.bc.ca/resource/1319 For Your Protection: Peace Bonds and Family Law Protection Orders]
* [https://www.clicklaw.bc.ca/resource/4657 Legal Services Society's Family Law website's information page "Protecting yourself & your family"]:
** See "Family law protection orders" and "Apply for a family law protection order"

{{REVIEWED | reviewer = [[Fiona Beveridge]] and [[Samantha Simpson]], April 30, 2019}}

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[[Category:JP Boyd on Family Law]]

Family Violence in the Family Law Act and the Divorce Act

2021-03-06T21:51:20Z

Jpboyd:

{{JP Boyd on Family Law TOC|expanded = violence}}{{JPBOFL Editor Badge
|ChapterEditors = [[Fiona Beveridge]] and [[Samantha Simpson]]
}}
{{Clicklawbadge
|resourcetype = critical resources and common questions on
|link = [https://www.clicklaw.bc.ca/global/search?so=r&f=Abuse+%26+family+violence family violence issues]
}}

Family violence is dealt with under the ''[[Family Law Act]]'' when there are questions about:
* protecting an at-risk family member from another family member, and
* parenting arrangements, with respect to making decisions about the arrangements that are in the best interests of a child.

'''Important changes''' 
Look for explanations under this heading to read about recent changes to family law affecting the information provided in this section.

==Family violence under the ''Family Law Act''==

Family violence is dealt with under the ''[[Family Law Act]]'' when there are questions about:

* protecting an at-risk family member from another family member, and/or
* parenting arrangements and decisions about the parenting arrangements that are in the best interests of a child.

Part 9 of the ''Act'' deals with protection orders that can restrain a family member from communicating with, following, or going near another family member, or from possessing weapons. These are discussed first.

Part 4, Division 1 of the ''Act'' deals with care of and time with children. Sections 37 and 38 show how important family violence is as a factor to consider when assessing the ''best interests of a child'', or making an agreement or order about care of and time with children.

'''Important changes''' 
The ''Family Law Act'' and, as a result of recent changes, the ''Divorce Act'' both require the court to consider the impact of coercive control and family violence when making decisions about children.

===Definition of family violence===
The ''[[Family Law Act]]'' defines family violence in a broad and inclusive way to capture more than just forceful physical contact. Non-physical forms of abuse such as harassment, intimidation, and even financial sabotage can qualify where these actions instill fear. No long-term intention to follow through with the act being threatened is required for it to be considered family violence.

Section 1 of the ''[[Family Law Act]]'' defines the term:

<blockquote><tt>"family violence" includes</tt></blockquote>
<blockquote><blockquote><tt>(a) physical abuse of a family member, including forced confinement or deprivation of the necessities of life, but not including the use of reasonable force to protect oneself or others from harm,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) sexual abuse of a family member,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) attempts to physically or sexually abuse a family member,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) psychological or emotional abuse of a family member, including</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) intimidation, harassment, coercion or threats, including threats respecting other persons, pets or property,</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) unreasonable restrictions on, or prevention of, a family member's financial or personal autonomy,</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(iii) stalking or following of the family member, and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(iv) intentional damage to property, and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><tt>(e) in the case of a child, direct or indirect exposure to family violence</tt></blockquote></blockquote>

So far, the courts have found a wide range of actions to be ''family violence''. The following are just some examples of family violence:

* In [http://canlii.ca/t/hwqqr ''S.A.H. v. J.J.G.V.''], 2018 BCSC 2278, the court found that a father consistently arguing that the mother's and the children's actions were contrary to scripture and sinful amounted to spiritual abuse and fits into the broad definition of family violence in the ''Family Law Act''.
* In [http://canlii.ca/t/hvw3v ''N.M.A v. K.D.L.''], 2018 BCSC 1879, the court found that derogatory and abusive language in the father's emails to the mother was beyond mere bickering and unpleasantness and that this kind of language, especially when it occurs over an extended period of time, can amount to emotional abuse and be family violence.
* In [http://canlii.ca/t/hxcc8 ''S.A.W. v. P.J.W.''], 2018 BCPC 376, the court found a distinction between "mere arguments and insulting discourse", or even "nasty or spiteful arguments", and behaviour that is so "belittling, demeaning, and insulting" (and repeated frequently in front of a child), that it was at a different level and fit the broad definition of family violence, although likely at the lower end of the scale.
* In ''[http://canlii.ca/t/gx9s1 K.R. v. J.D.]'', 2017 BCSC 182, the court found that a parent's derogatory and demeaning comments about the other parent, on occasion and in the child’s presence, “clearly amount to family violence” since they disturbed the child and caused the child emotional harm.
* In ''[http://canlii.ca/t/fxjb5 M.W.B v. A.R.B.]'', 2013 BCSC 885, a mother was found to have committed family violence for repeatedly interfering with the father’s access to the children and refusing to settle orders that were drafted by lawyers, and these actions prolonged and intensified the litigation.
* In ''[http://canlii.ca/t/gdt2h Hokhold v. Gerbrandt]'', 2014 BCSC 1875, the court determined that the father's emotionally abusive conduct, which included sending excessive and demanding emails, failing to pay support, and threatening to close his dental practice, constituted family violence.
* In ''[http://canlii.ca/t/gh679 C.R. v. A.M.]'', 2015 BCPC 76, the court found that a father’s threats to use his stronger financial position to fight the mother “[until] she lives in a box” constituted family violence.
* In ''[http://canlii.ca/t/g7233 L.A.R. v. E.J.R.]'', 2014 BCSC 966, the court found that disparaging remarks made to the children about their mother, as well as disparaging comments made to the mother in the children’s presence, constituted emotional abuse.
* ''[http://canlii.ca/t/glx9n C.F. v. D.V.]'', 2015 BCPC 309, the court found that there had been family violence as the father broke the mother’s cellphone and a picture on the wall, then kicked a hole in the bathroom door.

A lot depends on the specific facts of the case, however. The following are some examples of where the court determined that there was no family violence:

* In ''[http://canlii.ca/t/g2zjp L.S. v. G.S.]'', 2014 BCSC 187, the father wanted the court to declare that the mother’s denial of parenting time constituted family violence. The court refused. The court noted that the father failed to provide any evidence of harm to the children.
* In ''[http://canlii.ca/t/g1rsc J.R.E. v. 07-----8 B.C. Ltd.]'', 2013 BCSC 2038, the court held that taking an insistent and even inflexible position in post-separation negotiations did not in that case equate to emotional or psychological abuse.

It should finally be cautioned that the courts take a dim view of family violence claims that have other motivations. In ''[http://canlii.ca/t/g2zjp L.S. v. G.S.]'', 2014 BCSC 187, the court said:
<blockquote>More important, there is no evidence that the children have suffered any physical or emotional harm as a result of the claimant’s conduct. The provisions in the ''FLA'' relating to family violence are intended to address a serious social issue and to protect children and spouses from actual harm or danger. Their meaning and application should not be stretched to the point they become just another weapon in a largely financial war between the parties. </blockquote>

'''Important changes''' 
The changes to the ''Divorce Act'' include a definition of family violence that is as broad as the definition in the ''Family Law Act'' and, like the ''Family Law Act'', include family violence in the list of best-interests factors to take into consideration when making decisions about children.

==Using the ''Family Law Act'' for protection==
The ''[[Family Law Act]]'' offers a number of different restraining orders that can be very helpful and can provide the same level of protection as a ''recognizance'' under the ''Criminal Code''.

===Protection orders under Part 9===

Protection orders are the primary way family violence is addressed under the ''Family Law Act''. Under section 183(1), an ''at-risk family member'', someone on behalf of an at-risk family member, or the court itself can ask for a protection order, and the claim for a protection order needn't be made with any other claims under the act.

The act has a number of very important definitions that relate to protection orders.

''At-risk family member'' is defined in section 182:
<blockquote><tt>"at-risk family member" means a person whose safety and security is or is likely at risk from family violence carried out by a family member</tt></blockquote>

''Family member'' is defined in section 1:
<blockquote><tt>"family member", with respect to a person, means</tt></blockquote>
<blockquote><blockquote><tt>(a) the person's spouse or former spouse,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) a person with whom the person is living, or has lived, in a marriage-like relationship,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) a parent or guardian of the person's child,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) a person who lives with, and is related to,</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) the person, or</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) a person referred to in any of paragraphs (a) to (c), or</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><tt>(e) the person's child,</tt></blockquote></blockquote>
<blockquote><tt>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)</tt></blockquote>

If you read the definition of ''family member'' carefully, you'll see that people who are just dating or are in another casual relationship aren't family members as the ''Act'' defines the term. This means that people who are just dating or are in another casual relationship can't apply for protection orders under Part 9 of the ''Family Law Act''. (They can, however, apply for a peace bond under the ''Criminal Code''.)

===Making protection orders===

When the court is asked to make a protection order, it must consider certain risk factors set out at section 184(1):

<blockquote><tt>(a) any history of family violence by the family member against whom the order is to be made;</tt></blockquote>
<blockquote><tt>(b) whether any family violence is repetitive or escalating;</tt></blockquote>
<blockquote><tt>(c) whether any psychological or emotional abuse constitutes, or is evidence of, a pattern of coercive and controlling behaviour directed at the at-risk family member;</tt></blockquote>
<blockquote><tt>(d) the current status of the relationship between the family member against whom the order is to be made and the at-risk family member, including any recent separation or intention to separate;</tt></blockquote>
<blockquote><tt>(e) any circumstance of the family member against whom the order is to be made that may increase the risk of family violence by that family member, including substance abuse, employment or financial problems, mental health problems associated with a risk of violence, access to weapons, or a history of violence;</tt></blockquote>
<blockquote><tt>(f) the at-risk family member's perception of risks to his or her own safety and security;</tt></blockquote>
<blockquote><tt>(g) any circumstance that may increase the at-risk family member's vulnerability, including pregnancy, age, family circumstances, health or economic dependence.</tt></blockquote>

Essentially, the court is required to look at the family violence in the overall context of the couple and the history and present circumstances of their relationship. When a child is a family member, under section 185, the court must also consider:

*whether the child might be exposed to family violence if a protection order isn't made, and
*whether a protection order should also be made for the protection of the child.

Recent court decisions like ''[http://canlii.ca/t/gf0ng Hughes v. Erickson]'', 2014 BCSC 1952 show that a protection order will not be made without evidence that family violence will likely occur. Even one act of physical violence may suggest that violence is ''likely'' to occur in the future. It is not enough for the person asking for a protection order to say that they are afraid or at risk of violence; evidence must be presented of one of the section 184 risk factors to allow the court to decide if it should grant a protection order (''[http://canlii.ca/t/g7rnf Whitelock v. Whitelock]'', 2014 BCSC 1184).

===Protection order terms===

The available protection orders are listed at section 183(3) and include orders:

*restraining a person from communicating with or contacting the at-risk family member, going to the at-risk family member's home, workplace, or school, and stalking the at-risk family member,
*limiting how the person communicates with the at-risk family member,
*directing the police to remove the person against whom the order is sought from the family home or accompany them to remove personal property, and
*requiring the person to report to the court or to another person.

Under section 183(3)(e), the court can impose any other terms in a protection order that may be necessary to protect the at-risk family member or implement the protection order. Protection orders remain in place for one year, unless the order specifies another term.

If a protection order, an order from another jurisdiction that is like a protection order, or a ''Criminal Code'' no-contact or no-communication order is made, any previous ''Family Law Act'' orders are suspended to the extent of any conflict with the protection order. In other words, if there's an older order for contact with the children, but a protection order is made that stops the person with contact from communicating with the children, the parts of the older order about contact would be suspended.

To find out more about protection orders, you may wish to read the booklet [http://www.clicklaw.bc.ca/resource/1319 For Your Protection: Peace Bonds and Family Law Protection Orders], or read the information page on "[https://www.clicklaw.bc.ca/resource/4657 Protecting yourself & your family]", under the section "Family law protection orders".

===Changing protection orders===

When a protection order has been made and hasn't yet expired, either party can apply to vary the order to:

*extend or shorten the period of time that the order is in effect,
*vary the terms of the order, or
*end the order.

When a protection order has been made without notice, that is, if the application was made without letting the other party know about the application ahead of time, the other party can ask the court to cancel the order.

===Enforcing protection orders===

Protection orders can't be enforced under the ''Family Law Act'', only by section 127 of the ''Criminal Code'', which makes it an offence to breach a court order. However, section 188(2) says this:

<blockquote><tt>A police officer having reasonable and probable grounds to believe that a person has contravened a term of an order made under this Part may</tt></blockquote>
<blockquote><blockquote><tt>(a) take action to enforce the order, whether or not there is proof that the order has been served on the person, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) if necessary for the purpose of paragraph (a), use reasonable force.</tt></blockquote></blockquote>

==Family violence and the best interests of the child analysis==
Part 4, Division 1 of the ''Act'' (s. 37 and section 38) deal with the factors that determine what's in the ''best interests of the child''. The issue of family violence must be considered in the context of any application to establish or change guardianship, parenting arrangements, or contact with a child.

A finding of family violence can greatly impact a court's decision around parenting arrangements and how to allocate parental responsibilities in keeping with the best interests of a child. A court could decide the person responsible for family violence should have no parenting time, supervised parenting time, or no parenting time or responsibilities.

This said, there are cases where the court granted equal parenting even where one parent was responsible for family violence. It is simply impossible to predict what a court will consider to be in the best interests of a child in any particular case as the analysis is very fact specific.
According to section 37 of the ''[[Family Law Act]]'', when undertaking the best interests analysis, a court must consider, among other things, the following:
* 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 their 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, and
* any civil or criminal proceeding relevant to the child’s safety, security, or well being.

Where specific facts are important, the evidence you produce is important. As such, if you are asking a court to make an order respecting guardianship, parenting arrangements, or contact with a child and there has been family violence, or if you are defending such an application, it is important to focus on evidence that addresses these factors.

==Conduct orders==
Conduct orders under Part 10, Division 5 of the ''[[Family Law Act]]'' give the court some control to help the parties and the court process. They are different from family law protection orders, and not as tailored to addressing family violence. A conduct order could, for example, stop a party from filing repetitive applications that misuse the court process, tell a party to attend a counselling program, or say how and when parties should communicate with each other.

A conduct order may be seen as a less extreme way to reduce bad behaviour and hostilities compared to a family law protection order. While a conduct order may be less coercive, a court must consider whether it is enough. Under section 255, a court will not issue a conduct order restricting communication if a family law protection order would be more appropriate. Likewise, a court will not decline to impose a family law protection order merely because a conduct order was previously in place.

A court can only make conduct orders for one of four purposes set out at section 222:

<blockquote><tt>At any time during a proceeding or on the making of an order under this Act, the court may make an order under this Division for one or more of the following purposes:</tt></blockquote>
<blockquote><blockquote><tt>(a) to facilitate the settlement of a family law dispute or of an issue that may become the subject of a family law dispute;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) to manage behaviours that might frustrate the resolution of a family law dispute by an agreement or order;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) to prevent misuse of the court process;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) to facilitate arrangements pending final determination of a family law dispute.</tt></blockquote></blockquote>

Conduct orders include orders:

*requiring a person to attend counselling, or a specified service or a program like an anti-violence or anger management course,
*restricting communication between the parties,
*requiring a person to pay the costs associated with the family home, like mortgage or rent payments, property taxes, and utilities,
*restricting a person from terminating the utilities serving the family home,
*requiring a person to supervise the removal of personal property from the family home,
*requiring a person to post security to guarantee their good behaviour, and
*requiring a person to report to the court or to another person, like a counsellor or therapist.

Conduct orders can be enforced in a number of ways under section 228, including by requiring a person to pay up to $5,000 as a fine or to a party, or by jailing the person for up to 30 days. Jail will only be ordered when nothing else will secure the person's compliance with the conduct order.

==Other orders==

Other orders are available under the ''Family Law Act'' that could be used to address issues relating to family violence.

*'''Exclusive occupancy:''' Under section 90, the court may make temporary orders, and grant one spouse exclusive occupancy of the family residence. This isn't a restraining order, in the sense that it prohibits the other party from entering the home, but the person with the exclusive occupation order is allowed to live there and the other spouse is not.
*'''Supervised parenting time and contact:''' Under sections 45 and 59, a person's parenting time or contact can be subject to a requirement that it be supervised by a third party, like a relative or a professional supervisor.
*'''Conditions of parenting time and contact:''' Under section 218, the court may impose terms and conditions on any order it makes. Where family violence is an issue, appropriate terms and conditions might restrict where the children are exchanged, and how the parties interact when the children are exchanged, or they might say that a party's parenting time or contact will not happen if the party is impaired by drugs or alcohol.

==Resources and Links==
===Legislation===
*''[[Family Law Act]]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules], Rule 15-1(2)

===Forms===
* [[PCFR Form 25 Protection Order]]

===Links===
* [http://www.clicklaw.bc.ca/resource/4105 Protection Orders — Questions and Answers]
* [http://www.clicklaw.bc.ca/resource/1319 For Your Protection: Peace Bonds and Family Law Protection Orders]
* [https://www.clicklaw.bc.ca/resource/4657 Legal Services Society's Family Law website's information page "Protecting yourself & your family"]:
** See "Family law protection orders" and "Apply for a family law protection order"

{{REVIEWED | reviewer = [[Fiona Beveridge]] and [[Samantha Simpson]], April 30, 2019}}

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[[Category:JP Boyd on Family Law]]

Family Violence Overview

2021-03-06T21:46:47Z

Jpboyd: /* If you are in danger */

Family Violence Overview

2021-03-06T21:46:04Z

Jpboyd:

Family Violence Overview

2021-03-06T21:38:31Z

Jpboyd:

Grandparents and Extended Family Members

2021-03-06T21:28:12Z

Jpboyd: /* Links */

{{JP Boyd on Family Law TOC|expanded = relationships}}{{JPBOFL Editor Badge
|ChapterEditors = [[Stephen Wright]] and [[Michael Sinclair]]
}}
{{Clicklawbadge
| resourcetype = a resource for 
| link = [https://www.clicklaw.bc.ca/helpmap/service/1133 Grandparents raising grandchildren] '''and information on''' [https://clicklaw.bc.ca/question/commonquestion/1118 Benefits for grandparents raising grandchildren]
}}People other than a child's parents can also have a legal relationship with a child. Typically, these people are a child's blood relatives — grandparents, aunts, uncles, and so forth — ,although there's no reason why someone else, like an unrelated long-term caregiver or a neighbour, couldn't also have an interest in the care and well-being of a child, or in having time with a child on a regular basis.

This section talks about the claims a child's caregivers and extended family members can make to guardianship of a child, contact with a child, and child support.

'''Important changes''' 
Look for explanations under this heading to read about recent changes to family law affecting the information provided in this section.

==Introduction==

Grandparents and other people who are not parents normally become involved in court proceedings dealing with children in only a few situations:

*where one or both of the guardians of the children are dead,
*where one or both of the guardians have abandoned the children or the care of the children,
*where there are serious concerns about the ability of the guardians to care for the children, or
*where they are being denied time or involvement with the children.

Their concerns are usually about supervising or managing the parenting of the children, or about getting a schedule in place that will let them see the children on a regular basis.

Two laws might apply to caregivers and extended family members who are seeking orders about parenting the children or having time with them. Where the children's parents are already in court about the children, that might be the federal ''[[Divorce Act]]'' if the parents are or were married, or the provincial ''[[Family Law Act]]'', whether they were married or not. If the children's parents are not involved in a court proceeding between each other, it will be the ''Family Law Act''.

Each law has different rules about how and when people other than parents can apply for orders about children, and it's important to understand which law might be applicable.

===The ''Divorce Act''===

Under section 16(1) of the ''Divorce Act'', the court can make an order for ''custody'' or ''access'' on the application of a spouse or "any other person." Section 16(3), however, says that an "other person" must get the court's permission before bringing on such an application.

Since we're talking about the ''Divorce Act'', a court proceeding must have already started between married spouses or formerly married spouses before a child's caregivers and extended family members can step in; there must be an existing proceeding between the spouses in which to bring the application.

'''Important changes''' 
Under the changes to the ''Divorce Act'' that took effect on 1 March 2021, "custody" is now known as ''decision-making responsibility'' and "access" is now known as ''parenting time'', for people who are or used to be married to each other, or as ''contact'' for other people. People who want to apply for contact with a child must get the court's permission first.

===The ''Family Law Act''===

The ''Family Law Act'' talks about ''guardians'' who have ''parental responsibilities'' and ''parenting time'' with children, and about people who are not guardians who have ''contact'' with a child.

If the child's guardians are already in court, a child's caregiver or extended family member can start a court proceeding and ask that the new proceeding be ''joined'' to the court proceeding between the guardians. Once that happens, the caregivers and extended family members can ask to vary any orders that have already been made between the guardians in order to give them contact or other rights with respect to the children.

If the guardians are not in court, a child's caregiver and extended family member can start a court proceeding against the parents or guardians and ask for orders about the children.

===Orders and agreements===

This section talks about the orders available to children's caregivers and extended family members, and is written on the assumption that someone who is interested in securing a right to involvement in a child's life will be going to court to secure that right. After all, if the child's parents or guardians were okay with the kind of involvement the person is looking for, there'd be no need to secure an order as they'd likely give their permission. In such circumstances, there's no reason at all why the child's parents or guardians and the caregiver or extended family member couldn't make an agreement on the issue instead of going to court.

A family law agreement is a contract between two or more people that is enforceable by the courts, just like any other kind of contract. The sort of agreement a child's caregiver or extended family member would want to sign might:

* authorize the caregiver or extended family member to exercise certain parental responsibilities in relation to the child, under section 43(2) of the ''Family Law Act'',
* provide the caregiver or extended family member with specific rights of contact with the child, under section 58(1) of the act, or
* require one or more parents or guardians to provide child support to the caregiver or extended family member, under section 147(1) of the ''Act'', if the child is living with the caregiver or extended family member.

It's important to know that a child's guardians cannot make an agreement appointing anyone except a parent as a guardian. Only the court can make someone other than a parent a guardian, and that requires an application to court and a court order. You'll find details about this further on in this section.

==Rights and responsibilities of caregivers and extended family members==

A child's caregivers and extended family members can ask for orders about the care of a child under the provincial ''[[Family Law Act]]''. If the child's parents are married and have an order made under the federal ''[[Divorce Act]]'', the child's caregivers and extended family members ''must'' make any applications about the child under that ''Act'' and they must get the court's permission first.

Where a child winds up living mostly with a caregiver or extended family member, the caregiver or extended family member can ask for an order under the ''Family Law Act'' requiring either or both of the child's parents to pay child support.

A child's caregivers and extended family members cannot ask for orders for spousal support from a parent under the ''Divorce Act'' or the ''Family Law Act'' because they're not spouses of the parent. For the same reason, they cannot ask for orders about the division of family property and family debt against a parent under the ''Family Law Act''. Only spouses can ask for these orders.

===The care of children===

====The ''Divorce Act''====

When a child's caregiver or extended family member must apply for orders about the child under the ''[[Divorce Act]]'', they will be asking for orders about ''custody'' and ''access''. These applications will usually be applications to change, or ''vary'', an order that has already been made between the child's parents.

To vary an order for custody or access, section 17(5) of the ''Divorce Act'' requires proof of a change in circumstances:

<blockquote><tt>Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change.</tt></blockquote>

Once a change in circumstances has been proven, the child's caregiver or extended family member must then show why it is in the best interests of the child for the court to make the order they are asking for. The court will usually extend a great deal of respect to the wishes of the child's parents. These issues are discussed in more detail in the chapter on [[Children in Family Law Matters|Children]], in the section [[Custody and Access]].

'''Important changes''' 
Under the changes to the ''Divorce Act'', "custody" is now known as ''decision-making responsibility'' and "access" is now known as ''parenting time'', for people who are or used to be married to each other, or as ''contact'' for other people.

Judges also now have a long list of best-interests factors to take into consideration when making decisions about children, including changing orders about children. The factors include things like the history of the children's care, the children's views and preferences, each spouse's plan for the care of the children, and the extent to which each spouse will support the children's relationship with the other spouse. Family violence is another factor, and when family violence is present, the ''Divorce Act'' now includes a list of additional factors for judges to consider, including the nature and frequency of the violence

====The ''Family Law Act''====

Whether a caregiver or extended family member is applying under the ''[[Family Law Act]]'' for guardianship, and the rights and obligations that go along with it, or for contact, they must show why it is in the best interests of the child for the court to make the order asked for. The court will usually extend a great deal of respect to the wishes of the child's guardians in considering these applications, and often, depending on the child's age and maturity, to the wishes of the child. These issues are discussed in more detail in in the chapter on [[Children in Family Law Matters|Children]], in the section [[Guardianship, Parenting Arrangements and Contact]].

=====Guardianship, parental responsibilities and parenting time=====

Under section 40(1) of the ''Family Law Act'', only people who are the guardians of a child have ''parental responsibilities'' and ''parenting time'' with respect to that child. People who are not the guardians of a child may have ''contact'' with the child but do not have the right to participate in making decisions about the raising of the child or the right to get information from the important people involved in the child's life, such as doctors, teachers, coaches, and so on.

Under section 39, the people who are presumed to be the guardians of a child are:

*the child's parents, as long as they lived together after the child was born,
*a person who is a parent of a child under an assisted reproduction agreement, and
*a parent who "regularly cares" for the child.

A child's caregiver or extended family member who isn't a parent under an assisted reproduction agreement is not presumed to be a guardian of the child. A caregiver or extended family member may become the guardian of a child by:

*applying for an order appointing them as a guardian of a child under section 51,
*being appointed as the standby guardian of a child under section 55, or
*being appointed as the guardian of a child upon the death of a guardian under section 53.

Since being appointed as a standby guardian or a testamentary guardian can both take some time, a caregiver or extended family member who feels the need to step in sooner rather than later will apply for appointment as the guardian of a child under section 51.

Applications for appointment as a guardian can be difficult and time-consuming, and the court must be satisfied that the appointment is in the best interests of the child. The person who is applying to become the guardian of a child, the ''applicant'', must fill out a special affidavit required by the [http://canlii.ca/t/85pb Provincial Court Family Rules] and the [http://canlii.ca/t/8mcr Supreme Court Family Rules] that talks about:

*the applicant's relationship to the child,
*the other children currently in the care of the applicant,
*any history of family violence that might affect the child, and
*any previous civil or criminal court proceedings related to the best interests of the child.

Applicants must also get (1) a new criminal records check, (2) a child protection records check from the Ministry for Children and Family Development, and (3) a check of provincial registry records for any family law protection orders about them.

=====Authorizations to exercise parental responsibilities=====

Under section 43(2) of the ''Family Law Act'', a guardian who is temporarily unable to exercise certain parental responsibilities may authorize someone to exercise those responsibilities on their behalf, including a child's caregiver or a member of the child's extended family. Such authorizations must be made in writing, and should say exactly what it is that the authorized person can do.

The parental responsibilities that someone can exercise under a written authorization are:

*making day-to-day decisions affecting the child and having day-to-day care, control, and supervision of the child,
*making decisions about whom the child will live with and associate with,
*making decisions about the child's education and participation in extracurricular activities,
*giving, refusing, or withdrawing consent to medical, dental, and other health-related treatments for the child,
*applying for a passport, licence, or permit 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, and
*requesting and receiving from third parties health, education, or other information respecting the child.

Authorizations like these are mostly used when the child needs to go somewhere else to attend school and the guardian needs to make arrangements for the child to be looked after when the guardian is seriously ill but going to recover, and when the guardian is going to be out of commission while recovering from a surgery or treatment.

=====Contact with a child=====

Any person can apply for contact with a child under section 59 of the act. The court must be satisfied that the contact asked for is in the best interests of the child. People who are applying for contact don't need to get a criminal records check or an MCFD records check done.

===Child Support===

====The ''Divorce Act''====

Under section 15.1(1) of the ''Divorce Act'', only a married spouse may apply for a child support order under the act. As a result, a caregiver or extended family member who has had to apply to vary a ''Divorce Act'' order for custody must apply for child support under the ''Family Law Act'' if child support is needed. Both applications can be made in the same document and at the same time.

====The ''Family Law Act''====

The ''Family Law Act'' says, at section 147(1), that each parent has a duty to provide support for their child, as long as the child in question is a ''child'' as defined by section 146 and hasn't become a spouse or withdrawn from the care of their parents under s 147(1). Under section 149, the court can make an order requiring a parent to pay child support to ''a designated person'' on the application of a person acting on behalf of a child:

<blockquote><tt>(1) ...on application by a person referred to in subsection (2), a court may make an order requiring a child's parent or guardian to pay child support to a designated person.</tt></blockquote>
<blockquote><tt>(2) An application may be made by</tt></blockquote>
<blockquote><blockquote><tt>(a) a child's parent or guardian,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the child or a person acting on behalf of the child...</tt></blockquote></blockquote>

As long as the child lives mostly with a child's caregiver or extended family member, the caregiver or extended family member can ask for an order for child support against some or all of the child's parents and guardians.

According to section 150(1) of the act, where an order for child support is made, the amount of the support order is to be determined under the [[Child Support Guidelines]]. As a result, all of the provisions of the Guidelines apply when a child's caregiver or extended family member is asking for child support, including:

*the tables that are used to calculate the amount of child support payable,
*the exceptions that allow child support to be paid in an amount different than the usual table amount, and
*the rules about the payment of children's special expenses.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [http://canlii.ca/t/80mh Child Support Guidelines]

===Links===

* [http://clicklaw.bc.ca/helpmap/service/1133 Grandparents raising grandchildren helpline] from the Parent Support Services Society of BC
* [http://clicklaw.bc.ca/question/commonquestion/1118 Benefits for grandparents raising grandchildren]
* Department of Justice [http://www.justice.gc.ca/eng/fl-df/child-enfant/look-rech.asp Child Support Calculator]

{{REVIEWED | reviewer = [[JP Boyd]], March 6, 2021}

{{JP Boyd on Family Law Navbox|type=chapters}}
{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Grandparents and Extended Family Members

2021-03-06T21:27:42Z

Jpboyd: /* The Divorce Act */

{{JP Boyd on Family Law TOC|expanded = relationships}}{{JPBOFL Editor Badge
|ChapterEditors = [[Stephen Wright]] and [[Michael Sinclair]]
}}
{{Clicklawbadge
| resourcetype = a resource for 
| link = [https://www.clicklaw.bc.ca/helpmap/service/1133 Grandparents raising grandchildren] '''and information on''' [https://clicklaw.bc.ca/question/commonquestion/1118 Benefits for grandparents raising grandchildren]
}}People other than a child's parents can also have a legal relationship with a child. Typically, these people are a child's blood relatives — grandparents, aunts, uncles, and so forth — ,although there's no reason why someone else, like an unrelated long-term caregiver or a neighbour, couldn't also have an interest in the care and well-being of a child, or in having time with a child on a regular basis.

This section talks about the claims a child's caregivers and extended family members can make to guardianship of a child, contact with a child, and child support.

'''Important changes''' 
Look for explanations under this heading to read about recent changes to family law affecting the information provided in this section.

==Introduction==

Grandparents and other people who are not parents normally become involved in court proceedings dealing with children in only a few situations:

*where one or both of the guardians of the children are dead,
*where one or both of the guardians have abandoned the children or the care of the children,
*where there are serious concerns about the ability of the guardians to care for the children, or
*where they are being denied time or involvement with the children.

Their concerns are usually about supervising or managing the parenting of the children, or about getting a schedule in place that will let them see the children on a regular basis.

Two laws might apply to caregivers and extended family members who are seeking orders about parenting the children or having time with them. Where the children's parents are already in court about the children, that might be the federal ''[[Divorce Act]]'' if the parents are or were married, or the provincial ''[[Family Law Act]]'', whether they were married or not. If the children's parents are not involved in a court proceeding between each other, it will be the ''Family Law Act''.

Each law has different rules about how and when people other than parents can apply for orders about children, and it's important to understand which law might be applicable.

===The ''Divorce Act''===

Under section 16(1) of the ''Divorce Act'', the court can make an order for ''custody'' or ''access'' on the application of a spouse or "any other person." Section 16(3), however, says that an "other person" must get the court's permission before bringing on such an application.

Since we're talking about the ''Divorce Act'', a court proceeding must have already started between married spouses or formerly married spouses before a child's caregivers and extended family members can step in; there must be an existing proceeding between the spouses in which to bring the application.

'''Important changes''' 
Under the changes to the ''Divorce Act'' that took effect on 1 March 2021, "custody" is now known as ''decision-making responsibility'' and "access" is now known as ''parenting time'', for people who are or used to be married to each other, or as ''contact'' for other people. People who want to apply for contact with a child must get the court's permission first.

===The ''Family Law Act''===

The ''Family Law Act'' talks about ''guardians'' who have ''parental responsibilities'' and ''parenting time'' with children, and about people who are not guardians who have ''contact'' with a child.

If the child's guardians are already in court, a child's caregiver or extended family member can start a court proceeding and ask that the new proceeding be ''joined'' to the court proceeding between the guardians. Once that happens, the caregivers and extended family members can ask to vary any orders that have already been made between the guardians in order to give them contact or other rights with respect to the children.

If the guardians are not in court, a child's caregiver and extended family member can start a court proceeding against the parents or guardians and ask for orders about the children.

===Orders and agreements===

This section talks about the orders available to children's caregivers and extended family members, and is written on the assumption that someone who is interested in securing a right to involvement in a child's life will be going to court to secure that right. After all, if the child's parents or guardians were okay with the kind of involvement the person is looking for, there'd be no need to secure an order as they'd likely give their permission. In such circumstances, there's no reason at all why the child's parents or guardians and the caregiver or extended family member couldn't make an agreement on the issue instead of going to court.

A family law agreement is a contract between two or more people that is enforceable by the courts, just like any other kind of contract. The sort of agreement a child's caregiver or extended family member would want to sign might:

* authorize the caregiver or extended family member to exercise certain parental responsibilities in relation to the child, under section 43(2) of the ''Family Law Act'',
* provide the caregiver or extended family member with specific rights of contact with the child, under section 58(1) of the act, or
* require one or more parents or guardians to provide child support to the caregiver or extended family member, under section 147(1) of the ''Act'', if the child is living with the caregiver or extended family member.

It's important to know that a child's guardians cannot make an agreement appointing anyone except a parent as a guardian. Only the court can make someone other than a parent a guardian, and that requires an application to court and a court order. You'll find details about this further on in this section.

==Rights and responsibilities of caregivers and extended family members==

A child's caregivers and extended family members can ask for orders about the care of a child under the provincial ''[[Family Law Act]]''. If the child's parents are married and have an order made under the federal ''[[Divorce Act]]'', the child's caregivers and extended family members ''must'' make any applications about the child under that ''Act'' and they must get the court's permission first.

Where a child winds up living mostly with a caregiver or extended family member, the caregiver or extended family member can ask for an order under the ''Family Law Act'' requiring either or both of the child's parents to pay child support.

A child's caregivers and extended family members cannot ask for orders for spousal support from a parent under the ''Divorce Act'' or the ''Family Law Act'' because they're not spouses of the parent. For the same reason, they cannot ask for orders about the division of family property and family debt against a parent under the ''Family Law Act''. Only spouses can ask for these orders.

===The care of children===

====The ''Divorce Act''====

When a child's caregiver or extended family member must apply for orders about the child under the ''[[Divorce Act]]'', they will be asking for orders about ''custody'' and ''access''. These applications will usually be applications to change, or ''vary'', an order that has already been made between the child's parents.

To vary an order for custody or access, section 17(5) of the ''Divorce Act'' requires proof of a change in circumstances:

<blockquote><tt>Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change.</tt></blockquote>

Once a change in circumstances has been proven, the child's caregiver or extended family member must then show why it is in the best interests of the child for the court to make the order they are asking for. The court will usually extend a great deal of respect to the wishes of the child's parents. These issues are discussed in more detail in the chapter on [[Children in Family Law Matters|Children]], in the section [[Custody and Access]].

'''Important changes''' 
Under the changes to the ''Divorce Act'', "custody" is now known as ''decision-making responsibility'' and "access" is now known as ''parenting time'', for people who are or used to be married to each other, or as ''contact'' for other people.

Judges also now have a long list of best-interests factors to take into consideration when making decisions about children, including changing orders about children. The factors include things like the history of the children's care, the children's views and preferences, each spouse's plan for the care of the children, and the extent to which each spouse will support the children's relationship with the other spouse. Family violence is another factor, and when family violence is present, the ''Divorce Act'' now includes a list of additional factors for judges to consider, including the nature and frequency of the violence

====The ''Family Law Act''====

Whether a caregiver or extended family member is applying under the ''[[Family Law Act]]'' for guardianship, and the rights and obligations that go along with it, or for contact, they must show why it is in the best interests of the child for the court to make the order asked for. The court will usually extend a great deal of respect to the wishes of the child's guardians in considering these applications, and often, depending on the child's age and maturity, to the wishes of the child. These issues are discussed in more detail in in the chapter on [[Children in Family Law Matters|Children]], in the section [[Guardianship, Parenting Arrangements and Contact]].

=====Guardianship, parental responsibilities and parenting time=====

Under section 40(1) of the ''Family Law Act'', only people who are the guardians of a child have ''parental responsibilities'' and ''parenting time'' with respect to that child. People who are not the guardians of a child may have ''contact'' with the child but do not have the right to participate in making decisions about the raising of the child or the right to get information from the important people involved in the child's life, such as doctors, teachers, coaches, and so on.

Under section 39, the people who are presumed to be the guardians of a child are:

*the child's parents, as long as they lived together after the child was born,
*a person who is a parent of a child under an assisted reproduction agreement, and
*a parent who "regularly cares" for the child.

A child's caregiver or extended family member who isn't a parent under an assisted reproduction agreement is not presumed to be a guardian of the child. A caregiver or extended family member may become the guardian of a child by:

*applying for an order appointing them as a guardian of a child under section 51,
*being appointed as the standby guardian of a child under section 55, or
*being appointed as the guardian of a child upon the death of a guardian under section 53.

Since being appointed as a standby guardian or a testamentary guardian can both take some time, a caregiver or extended family member who feels the need to step in sooner rather than later will apply for appointment as the guardian of a child under section 51.

Applications for appointment as a guardian can be difficult and time-consuming, and the court must be satisfied that the appointment is in the best interests of the child. The person who is applying to become the guardian of a child, the ''applicant'', must fill out a special affidavit required by the [http://canlii.ca/t/85pb Provincial Court Family Rules] and the [http://canlii.ca/t/8mcr Supreme Court Family Rules] that talks about:

*the applicant's relationship to the child,
*the other children currently in the care of the applicant,
*any history of family violence that might affect the child, and
*any previous civil or criminal court proceedings related to the best interests of the child.

Applicants must also get (1) a new criminal records check, (2) a child protection records check from the Ministry for Children and Family Development, and (3) a check of provincial registry records for any family law protection orders about them.

=====Authorizations to exercise parental responsibilities=====

Under section 43(2) of the ''Family Law Act'', a guardian who is temporarily unable to exercise certain parental responsibilities may authorize someone to exercise those responsibilities on their behalf, including a child's caregiver or a member of the child's extended family. Such authorizations must be made in writing, and should say exactly what it is that the authorized person can do.

The parental responsibilities that someone can exercise under a written authorization are:

*making day-to-day decisions affecting the child and having day-to-day care, control, and supervision of the child,
*making decisions about whom the child will live with and associate with,
*making decisions about the child's education and participation in extracurricular activities,
*giving, refusing, or withdrawing consent to medical, dental, and other health-related treatments for the child,
*applying for a passport, licence, or permit 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, and
*requesting and receiving from third parties health, education, or other information respecting the child.

Authorizations like these are mostly used when the child needs to go somewhere else to attend school and the guardian needs to make arrangements for the child to be looked after when the guardian is seriously ill but going to recover, and when the guardian is going to be out of commission while recovering from a surgery or treatment.

=====Contact with a child=====

Any person can apply for contact with a child under section 59 of the act. The court must be satisfied that the contact asked for is in the best interests of the child. People who are applying for contact don't need to get a criminal records check or an MCFD records check done.

===Child Support===

====The ''Divorce Act''====

Under section 15.1(1) of the ''Divorce Act'', only a married spouse may apply for a child support order under the act. As a result, a caregiver or extended family member who has had to apply to vary a ''Divorce Act'' order for custody must apply for child support under the ''Family Law Act'' if child support is needed. Both applications can be made in the same document and at the same time.

====The ''Family Law Act''====

The ''Family Law Act'' says, at section 147(1), that each parent has a duty to provide support for their child, as long as the child in question is a ''child'' as defined by section 146 and hasn't become a spouse or withdrawn from the care of their parents under s 147(1). Under section 149, the court can make an order requiring a parent to pay child support to ''a designated person'' on the application of a person acting on behalf of a child:

<blockquote><tt>(1) ...on application by a person referred to in subsection (2), a court may make an order requiring a child's parent or guardian to pay child support to a designated person.</tt></blockquote>
<blockquote><tt>(2) An application may be made by</tt></blockquote>
<blockquote><blockquote><tt>(a) a child's parent or guardian,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the child or a person acting on behalf of the child...</tt></blockquote></blockquote>

As long as the child lives mostly with a child's caregiver or extended family member, the caregiver or extended family member can ask for an order for child support against some or all of the child's parents and guardians.

According to section 150(1) of the act, where an order for child support is made, the amount of the support order is to be determined under the [[Child Support Guidelines]]. As a result, all of the provisions of the Guidelines apply when a child's caregiver or extended family member is asking for child support, including:

*the tables that are used to calculate the amount of child support payable,
*the exceptions that allow child support to be paid in an amount different than the usual table amount, and
*the rules about the payment of children's special expenses.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [http://canlii.ca/t/80mh Child Support Guidelines]

===Links===

* [http://clicklaw.bc.ca/helpmap/service/1133 Grandparents raising grandchildren helpline] from the Parent Support Services Society of BC
* [http://clicklaw.bc.ca/question/commonquestion/1118 Benefits for grandparents raising grandchildren]
* Department of Justice [http://www.justice.gc.ca/eng/fl-df/child-enfant/look-rech.asp Child Support Calculator]

{{REVIEWED | reviewer = [[Stephen Wright]] and [[Michael Sinclair]], April 17, 2019}}

{{JP Boyd on Family Law Navbox|type=chapters}}
{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Grandparents and Extended Family Members

2021-03-06T21:27:08Z

Jpboyd: /* The Divorce Act */

{{JP Boyd on Family Law TOC|expanded = relationships}}{{JPBOFL Editor Badge
|ChapterEditors = [[Stephen Wright]] and [[Michael Sinclair]]
}}
{{Clicklawbadge
| resourcetype = a resource for 
| link = [https://www.clicklaw.bc.ca/helpmap/service/1133 Grandparents raising grandchildren] '''and information on''' [https://clicklaw.bc.ca/question/commonquestion/1118 Benefits for grandparents raising grandchildren]
}}People other than a child's parents can also have a legal relationship with a child. Typically, these people are a child's blood relatives — grandparents, aunts, uncles, and so forth — ,although there's no reason why someone else, like an unrelated long-term caregiver or a neighbour, couldn't also have an interest in the care and well-being of a child, or in having time with a child on a regular basis.

This section talks about the claims a child's caregivers and extended family members can make to guardianship of a child, contact with a child, and child support.

'''Important changes''' 
Look for explanations under this heading to read about recent changes to family law affecting the information provided in this section.

==Introduction==

Grandparents and other people who are not parents normally become involved in court proceedings dealing with children in only a few situations:

*where one or both of the guardians of the children are dead,
*where one or both of the guardians have abandoned the children or the care of the children,
*where there are serious concerns about the ability of the guardians to care for the children, or
*where they are being denied time or involvement with the children.

Their concerns are usually about supervising or managing the parenting of the children, or about getting a schedule in place that will let them see the children on a regular basis.

Two laws might apply to caregivers and extended family members who are seeking orders about parenting the children or having time with them. Where the children's parents are already in court about the children, that might be the federal ''[[Divorce Act]]'' if the parents are or were married, or the provincial ''[[Family Law Act]]'', whether they were married or not. If the children's parents are not involved in a court proceeding between each other, it will be the ''Family Law Act''.

Each law has different rules about how and when people other than parents can apply for orders about children, and it's important to understand which law might be applicable.

===The ''Divorce Act''===

Under section 16(1) of the ''Divorce Act'', the court can make an order for ''custody'' or ''access'' on the application of a spouse or "any other person." Section 16(3), however, says that an "other person" must get the court's permission before bringing on such an application.

Since we're talking about the ''Divorce Act'', a court proceeding must have already started between married spouses or formerly married spouses before a child's caregivers and extended family members can step in; there must be an existing proceeding between the spouses in which to bring the application.

'''Important changes''' 
Under the changes to the ''Divorce Act'' that took effect on 1 March 2021, "custody" is now known as ''decision-making responsibility'' and "access" is now known as ''parenting time'', for people who are or used to be married to each other, or as ''contact'' for other people. Decision-making responsibility under the ''Divorce Act'' means the same thing as parental responsibilities under the ''Family Law Act''.

===The ''Family Law Act''===

The ''Family Law Act'' talks about ''guardians'' who have ''parental responsibilities'' and ''parenting time'' with children, and about people who are not guardians who have ''contact'' with a child.

If the child's guardians are already in court, a child's caregiver or extended family member can start a court proceeding and ask that the new proceeding be ''joined'' to the court proceeding between the guardians. Once that happens, the caregivers and extended family members can ask to vary any orders that have already been made between the guardians in order to give them contact or other rights with respect to the children.

If the guardians are not in court, a child's caregiver and extended family member can start a court proceeding against the parents or guardians and ask for orders about the children.

===Orders and agreements===

This section talks about the orders available to children's caregivers and extended family members, and is written on the assumption that someone who is interested in securing a right to involvement in a child's life will be going to court to secure that right. After all, if the child's parents or guardians were okay with the kind of involvement the person is looking for, there'd be no need to secure an order as they'd likely give their permission. In such circumstances, there's no reason at all why the child's parents or guardians and the caregiver or extended family member couldn't make an agreement on the issue instead of going to court.

A family law agreement is a contract between two or more people that is enforceable by the courts, just like any other kind of contract. The sort of agreement a child's caregiver or extended family member would want to sign might:

* authorize the caregiver or extended family member to exercise certain parental responsibilities in relation to the child, under section 43(2) of the ''Family Law Act'',
* provide the caregiver or extended family member with specific rights of contact with the child, under section 58(1) of the act, or
* require one or more parents or guardians to provide child support to the caregiver or extended family member, under section 147(1) of the ''Act'', if the child is living with the caregiver or extended family member.

It's important to know that a child's guardians cannot make an agreement appointing anyone except a parent as a guardian. Only the court can make someone other than a parent a guardian, and that requires an application to court and a court order. You'll find details about this further on in this section.

==Rights and responsibilities of caregivers and extended family members==

A child's caregivers and extended family members can ask for orders about the care of a child under the provincial ''[[Family Law Act]]''. If the child's parents are married and have an order made under the federal ''[[Divorce Act]]'', the child's caregivers and extended family members ''must'' make any applications about the child under that ''Act'' and they must get the court's permission first.

Where a child winds up living mostly with a caregiver or extended family member, the caregiver or extended family member can ask for an order under the ''Family Law Act'' requiring either or both of the child's parents to pay child support.

A child's caregivers and extended family members cannot ask for orders for spousal support from a parent under the ''Divorce Act'' or the ''Family Law Act'' because they're not spouses of the parent. For the same reason, they cannot ask for orders about the division of family property and family debt against a parent under the ''Family Law Act''. Only spouses can ask for these orders.

===The care of children===

====The ''Divorce Act''====

When a child's caregiver or extended family member must apply for orders about the child under the ''[[Divorce Act]]'', they will be asking for orders about ''custody'' and ''access''. These applications will usually be applications to change, or ''vary'', an order that has already been made between the child's parents.

To vary an order for custody or access, section 17(5) of the ''Divorce Act'' requires proof of a change in circumstances:

<blockquote><tt>Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change.</tt></blockquote>

Once a change in circumstances has been proven, the child's caregiver or extended family member must then show why it is in the best interests of the child for the court to make the order they are asking for. The court will usually extend a great deal of respect to the wishes of the child's parents. These issues are discussed in more detail in the chapter on [[Children in Family Law Matters|Children]], in the section [[Custody and Access]].

'''Important changes''' 
Under the changes to the ''Divorce Act'', "custody" is now known as ''decision-making responsibility'' and "access" is now known as ''parenting time'', for people who are or used to be married to each other, or as ''contact'' for other people.

Judges also now have a long list of best-interests factors to take into consideration when making decisions about children, including changing orders about children. The factors include things like the history of the children's care, the children's views and preferences, each spouse's plan for the care of the children, and the extent to which each spouse will support the children's relationship with the other spouse. Family violence is another factor, and when family violence is present, the ''Divorce Act'' now includes a list of additional factors for judges to consider, including the nature and frequency of the violence

====The ''Family Law Act''====

Whether a caregiver or extended family member is applying under the ''[[Family Law Act]]'' for guardianship, and the rights and obligations that go along with it, or for contact, they must show why it is in the best interests of the child for the court to make the order asked for. The court will usually extend a great deal of respect to the wishes of the child's guardians in considering these applications, and often, depending on the child's age and maturity, to the wishes of the child. These issues are discussed in more detail in in the chapter on [[Children in Family Law Matters|Children]], in the section [[Guardianship, Parenting Arrangements and Contact]].

=====Guardianship, parental responsibilities and parenting time=====

Under section 40(1) of the ''Family Law Act'', only people who are the guardians of a child have ''parental responsibilities'' and ''parenting time'' with respect to that child. People who are not the guardians of a child may have ''contact'' with the child but do not have the right to participate in making decisions about the raising of the child or the right to get information from the important people involved in the child's life, such as doctors, teachers, coaches, and so on.

Under section 39, the people who are presumed to be the guardians of a child are:

*the child's parents, as long as they lived together after the child was born,
*a person who is a parent of a child under an assisted reproduction agreement, and
*a parent who "regularly cares" for the child.

A child's caregiver or extended family member who isn't a parent under an assisted reproduction agreement is not presumed to be a guardian of the child. A caregiver or extended family member may become the guardian of a child by:

*applying for an order appointing them as a guardian of a child under section 51,
*being appointed as the standby guardian of a child under section 55, or
*being appointed as the guardian of a child upon the death of a guardian under section 53.

Since being appointed as a standby guardian or a testamentary guardian can both take some time, a caregiver or extended family member who feels the need to step in sooner rather than later will apply for appointment as the guardian of a child under section 51.

Applications for appointment as a guardian can be difficult and time-consuming, and the court must be satisfied that the appointment is in the best interests of the child. The person who is applying to become the guardian of a child, the ''applicant'', must fill out a special affidavit required by the [http://canlii.ca/t/85pb Provincial Court Family Rules] and the [http://canlii.ca/t/8mcr Supreme Court Family Rules] that talks about:

*the applicant's relationship to the child,
*the other children currently in the care of the applicant,
*any history of family violence that might affect the child, and
*any previous civil or criminal court proceedings related to the best interests of the child.

Applicants must also get (1) a new criminal records check, (2) a child protection records check from the Ministry for Children and Family Development, and (3) a check of provincial registry records for any family law protection orders about them.

=====Authorizations to exercise parental responsibilities=====

Under section 43(2) of the ''Family Law Act'', a guardian who is temporarily unable to exercise certain parental responsibilities may authorize someone to exercise those responsibilities on their behalf, including a child's caregiver or a member of the child's extended family. Such authorizations must be made in writing, and should say exactly what it is that the authorized person can do.

The parental responsibilities that someone can exercise under a written authorization are:

*making day-to-day decisions affecting the child and having day-to-day care, control, and supervision of the child,
*making decisions about whom the child will live with and associate with,
*making decisions about the child's education and participation in extracurricular activities,
*giving, refusing, or withdrawing consent to medical, dental, and other health-related treatments for the child,
*applying for a passport, licence, or permit 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, and
*requesting and receiving from third parties health, education, or other information respecting the child.

Authorizations like these are mostly used when the child needs to go somewhere else to attend school and the guardian needs to make arrangements for the child to be looked after when the guardian is seriously ill but going to recover, and when the guardian is going to be out of commission while recovering from a surgery or treatment.

=====Contact with a child=====

Any person can apply for contact with a child under section 59 of the act. The court must be satisfied that the contact asked for is in the best interests of the child. People who are applying for contact don't need to get a criminal records check or an MCFD records check done.

===Child Support===

====The ''Divorce Act''====

Under section 15.1(1) of the ''Divorce Act'', only a married spouse may apply for a child support order under the act. As a result, a caregiver or extended family member who has had to apply to vary a ''Divorce Act'' order for custody must apply for child support under the ''Family Law Act'' if child support is needed. Both applications can be made in the same document and at the same time.

====The ''Family Law Act''====

The ''Family Law Act'' says, at section 147(1), that each parent has a duty to provide support for their child, as long as the child in question is a ''child'' as defined by section 146 and hasn't become a spouse or withdrawn from the care of their parents under s 147(1). Under section 149, the court can make an order requiring a parent to pay child support to ''a designated person'' on the application of a person acting on behalf of a child:

<blockquote><tt>(1) ...on application by a person referred to in subsection (2), a court may make an order requiring a child's parent or guardian to pay child support to a designated person.</tt></blockquote>
<blockquote><tt>(2) An application may be made by</tt></blockquote>
<blockquote><blockquote><tt>(a) a child's parent or guardian,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the child or a person acting on behalf of the child...</tt></blockquote></blockquote>

As long as the child lives mostly with a child's caregiver or extended family member, the caregiver or extended family member can ask for an order for child support against some or all of the child's parents and guardians.

According to section 150(1) of the act, where an order for child support is made, the amount of the support order is to be determined under the [[Child Support Guidelines]]. As a result, all of the provisions of the Guidelines apply when a child's caregiver or extended family member is asking for child support, including:

*the tables that are used to calculate the amount of child support payable,
*the exceptions that allow child support to be paid in an amount different than the usual table amount, and
*the rules about the payment of children's special expenses.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [http://canlii.ca/t/80mh Child Support Guidelines]

===Links===

* [http://clicklaw.bc.ca/helpmap/service/1133 Grandparents raising grandchildren helpline] from the Parent Support Services Society of BC
* [http://clicklaw.bc.ca/question/commonquestion/1118 Benefits for grandparents raising grandchildren]
* Department of Justice [http://www.justice.gc.ca/eng/fl-df/child-enfant/look-rech.asp Child Support Calculator]

{{REVIEWED | reviewer = [[Stephen Wright]] and [[Michael Sinclair]], April 17, 2019}}

{{JP Boyd on Family Law Navbox|type=chapters}}
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[[Category:JP Boyd on Family Law]]

Grandparents and Extended Family Members

2021-03-06T21:26:12Z

Jpboyd:

{{JP Boyd on Family Law TOC|expanded = relationships}}{{JPBOFL Editor Badge
|ChapterEditors = [[Stephen Wright]] and [[Michael Sinclair]]
}}
{{Clicklawbadge
| resourcetype = a resource for 
| link = [https://www.clicklaw.bc.ca/helpmap/service/1133 Grandparents raising grandchildren] '''and information on''' [https://clicklaw.bc.ca/question/commonquestion/1118 Benefits for grandparents raising grandchildren]
}}People other than a child's parents can also have a legal relationship with a child. Typically, these people are a child's blood relatives — grandparents, aunts, uncles, and so forth — ,although there's no reason why someone else, like an unrelated long-term caregiver or a neighbour, couldn't also have an interest in the care and well-being of a child, or in having time with a child on a regular basis.

This section talks about the claims a child's caregivers and extended family members can make to guardianship of a child, contact with a child, and child support.

'''Important changes''' 
Look for explanations under this heading to read about recent changes to family law affecting the information provided in this section.

==Introduction==

Grandparents and other people who are not parents normally become involved in court proceedings dealing with children in only a few situations:

*where one or both of the guardians of the children are dead,
*where one or both of the guardians have abandoned the children or the care of the children,
*where there are serious concerns about the ability of the guardians to care for the children, or
*where they are being denied time or involvement with the children.

Their concerns are usually about supervising or managing the parenting of the children, or about getting a schedule in place that will let them see the children on a regular basis.

Two laws might apply to caregivers and extended family members who are seeking orders about parenting the children or having time with them. Where the children's parents are already in court about the children, that might be the federal ''[[Divorce Act]]'' if the parents are or were married, or the provincial ''[[Family Law Act]]'', whether they were married or not. If the children's parents are not involved in a court proceeding between each other, it will be the ''Family Law Act''.

Each law has different rules about how and when people other than parents can apply for orders about children, and it's important to understand which law might be applicable.

===The ''Divorce Act''===

Under section 16(1) of the ''Divorce Act'', the court can make an order for ''custody'' or ''access'' on the application of a spouse or "any other person." Section 16(3), however, says that an "other person" must get the court's permission before bringing on such an application.

Since we're talking about the ''Divorce Act'', a court proceeding must have already started between married spouses or formerly married spouses before a child's caregivers and extended family members can step in; there must be an existing proceeding between the spouses in which to bring the application.

'''Important changes''' 
Under the changes to the ''Divorce Act'' that took effect on 1 March 2021, "custody" is now known as ''decision-making responsibility'' and "access" is now known as ''parenting time'', for people who are or used to be married to each other, or as ''contact'' for other people. Decision-making responsibility under the ''Divorce Act'' means the same thing as parental responsibilities under the ''Family Law Act''.

===The ''Family Law Act''===

The ''Family Law Act'' talks about ''guardians'' who have ''parental responsibilities'' and ''parenting time'' with children, and about people who are not guardians who have ''contact'' with a child.

If the child's guardians are already in court, a child's caregiver or extended family member can start a court proceeding and ask that the new proceeding be ''joined'' to the court proceeding between the guardians. Once that happens, the caregivers and extended family members can ask to vary any orders that have already been made between the guardians in order to give them contact or other rights with respect to the children.

If the guardians are not in court, a child's caregiver and extended family member can start a court proceeding against the parents or guardians and ask for orders about the children.

===Orders and agreements===

This section talks about the orders available to children's caregivers and extended family members, and is written on the assumption that someone who is interested in securing a right to involvement in a child's life will be going to court to secure that right. After all, if the child's parents or guardians were okay with the kind of involvement the person is looking for, there'd be no need to secure an order as they'd likely give their permission. In such circumstances, there's no reason at all why the child's parents or guardians and the caregiver or extended family member couldn't make an agreement on the issue instead of going to court.

A family law agreement is a contract between two or more people that is enforceable by the courts, just like any other kind of contract. The sort of agreement a child's caregiver or extended family member would want to sign might:

* authorize the caregiver or extended family member to exercise certain parental responsibilities in relation to the child, under section 43(2) of the ''Family Law Act'',
* provide the caregiver or extended family member with specific rights of contact with the child, under section 58(1) of the act, or
* require one or more parents or guardians to provide child support to the caregiver or extended family member, under section 147(1) of the ''Act'', if the child is living with the caregiver or extended family member.

It's important to know that a child's guardians cannot make an agreement appointing anyone except a parent as a guardian. Only the court can make someone other than a parent a guardian, and that requires an application to court and a court order. You'll find details about this further on in this section.

==Rights and responsibilities of caregivers and extended family members==

A child's caregivers and extended family members can ask for orders about the care of a child under the provincial ''[[Family Law Act]]''. If the child's parents are married and have an order made under the federal ''[[Divorce Act]]'', the child's caregivers and extended family members ''must'' make any applications about the child under that ''Act'' and they must get the court's permission first.

Where a child winds up living mostly with a caregiver or extended family member, the caregiver or extended family member can ask for an order under the ''Family Law Act'' requiring either or both of the child's parents to pay child support.

A child's caregivers and extended family members cannot ask for orders for spousal support from a parent under the ''Divorce Act'' or the ''Family Law Act'' because they're not spouses of the parent. For the same reason, they cannot ask for orders about the division of family property and family debt against a parent under the ''Family Law Act''. Only spouses can ask for these orders.

===The care of children===

====The ''Divorce Act''====

When a child's caregiver or extended family member must apply for orders about the child under the ''[[Divorce Act]]'', they will be asking for orders about ''custody'' and ''access''. These applications will usually be applications to change, or ''vary'', an order that has already been made between the child's parents.

To vary an order for custody or access, section 17(5) of the ''Divorce Act'' requires proof of a change in circumstances:

<blockquote><tt>Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change.</tt></blockquote>

Once a change in circumstances has been proven, the child's caregiver or extended family member must then show why it is in the best interests of the child for the court to make the order they are asking for. The court will usually extend a great deal of respect to the wishes of the child's parents. These issues are discussed in more detail in the chapter on [[Children in Family Law Matters|Children]], in the section [[Custody and Access]].

'''Important changes''' 
Under the changes to the ''Divorce Act'', "custody" is now known as ''decision-making responsibility'' and "access" is now known as ''parenting time'', for people who are or used to be married to each other, or as ''contact'' for other people.

Judges also now have a long list of best-interests factors to take into consideration when making decisions about children, including changing orders about children. The factors include things like the history of the children's care, the children's views and preferences, each spouse's plan for the care of the children, and the extent to which each spouse will support the children's relationship with the other spouse. Family violence is another factor, and when family violence is present, the ''Divorce Act'' now includes a list of additional factors for judges to consider, including the nature and frequency of the violence

====The ''Family Law Act''====

Whether a caregiver or extended family member is applying under the ''[[Family Law Act]]'' for guardianship, and the rights and obligations that go along with it, or for contact, they must show why it is in the best interests of the child for the court to make the order asked for. The court will usually extend a great deal of respect to the wishes of the child's guardians in considering these applications, and often, depending on the child's age and maturity, to the wishes of the child. These issues are discussed in more detail in in the chapter on [[Children in Family Law Matters|Children]], in the section [[Guardianship, Parenting Arrangements and Contact]].

=====Guardianship, parental responsibilities and parenting time=====

Under section 40(1) of the ''Family Law Act'', only people who are the guardians of a child have ''parental responsibilities'' and ''parenting time'' with respect to that child. People who are not the guardians of a child may have ''contact'' with the child but do not have the right to participate in making decisions about the raising of the child or the right to get information from the important people involved in the child's life, such as doctors, teachers, coaches, and so on.

Under section 39, the people who are presumed to be the guardians of a child are:

*the child's parents, as long as they lived together after the child was born,
*a person who is a parent of a child under an assisted reproduction agreement, and
*a parent who "regularly cares" for the child.

A child's caregiver or extended family member who isn't a parent under an assisted reproduction agreement is not presumed to be a guardian of the child. A caregiver or extended family member may become the guardian of a child by:

*applying for an order appointing them as a guardian of a child under section 51,
*being appointed as the standby guardian of a child under section 55, or
*being appointed as the guardian of a child upon the death of a guardian under section 53.

Since being appointed as a standby guardian or a testamentary guardian can both take some time, a caregiver or extended family member who feels the need to step in sooner rather than later will apply for appointment as the guardian of a child under section 51.

Applications for appointment as a guardian can be difficult and time-consuming, and the court must be satisfied that the appointment is in the best interests of the child. The person who is applying to become the guardian of a child, the ''applicant'', must fill out a special affidavit required by the [http://canlii.ca/t/85pb Provincial Court Family Rules] and the [http://canlii.ca/t/8mcr Supreme Court Family Rules] that talks about:

*the applicant's relationship to the child,
*the other children currently in the care of the applicant,
*any history of family violence that might affect the child, and
*any previous civil or criminal court proceedings related to the best interests of the child.

Applicants must also get (1) a new criminal records check, (2) a child protection records check from the Ministry for Children and Family Development, and (3) a check of provincial registry records for any family law protection orders about them.

=====Authorizations to exercise parental responsibilities=====

Under section 43(2) of the ''Family Law Act'', a guardian who is temporarily unable to exercise certain parental responsibilities may authorize someone to exercise those responsibilities on their behalf, including a child's caregiver or a member of the child's extended family. Such authorizations must be made in writing, and should say exactly what it is that the authorized person can do.

The parental responsibilities that someone can exercise under a written authorization are:

*making day-to-day decisions affecting the child and having day-to-day care, control, and supervision of the child,
*making decisions about whom the child will live with and associate with,
*making decisions about the child's education and participation in extracurricular activities,
*giving, refusing, or withdrawing consent to medical, dental, and other health-related treatments for the child,
*applying for a passport, licence, or permit 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, and
*requesting and receiving from third parties health, education, or other information respecting the child.

Authorizations like these are mostly used when the child needs to go somewhere else to attend school and the guardian needs to make arrangements for the child to be looked after when the guardian is seriously ill but going to recover, and when the guardian is going to be out of commission while recovering from a surgery or treatment.

=====Contact with a child=====

Any person can apply for contact with a child under section 59 of the act. The court must be satisfied that the contact asked for is in the best interests of the child. People who are applying for contact don't need to get a criminal records check or an MCFD records check done.

===Child Support===

====The ''Divorce Act''====

Under section 15.1(1) of the ''Divorce Act'', only a married spouse may apply for a child support order under the act. As a result, a caregiver or extended family member who has had to apply to vary a ''Divorce Act'' order for custody must apply for child support under the ''Family Law Act'' if child support is needed. Both applications can be made in the same document and at the same time.

'''Important changes''' 
Under the changes to the ''Divorce Act'' that took effect on 1 March 2021, "custody" is now known as ''decision-making responsibility'' and "access" is now known as ''parenting time'', for people who are or used to be married to each other, or as ''contact'' for other people. People who want to apply for contact with a child must get the court's permission first.

====The ''Family Law Act''====

The ''Family Law Act'' says, at section 147(1), that each parent has a duty to provide support for their child, as long as the child in question is a ''child'' as defined by section 146 and hasn't become a spouse or withdrawn from the care of their parents under s 147(1). Under section 149, the court can make an order requiring a parent to pay child support to ''a designated person'' on the application of a person acting on behalf of a child:

<blockquote><tt>(1) ...on application by a person referred to in subsection (2), a court may make an order requiring a child's parent or guardian to pay child support to a designated person.</tt></blockquote>
<blockquote><tt>(2) An application may be made by</tt></blockquote>
<blockquote><blockquote><tt>(a) a child's parent or guardian,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the child or a person acting on behalf of the child...</tt></blockquote></blockquote>

As long as the child lives mostly with a child's caregiver or extended family member, the caregiver or extended family member can ask for an order for child support against some or all of the child's parents and guardians.

According to section 150(1) of the act, where an order for child support is made, the amount of the support order is to be determined under the [[Child Support Guidelines]]. As a result, all of the provisions of the Guidelines apply when a child's caregiver or extended family member is asking for child support, including:

*the tables that are used to calculate the amount of child support payable,
*the exceptions that allow child support to be paid in an amount different than the usual table amount, and
*the rules about the payment of children's special expenses.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [http://canlii.ca/t/80mh Child Support Guidelines]

===Links===

* [http://clicklaw.bc.ca/helpmap/service/1133 Grandparents raising grandchildren helpline] from the Parent Support Services Society of BC
* [http://clicklaw.bc.ca/question/commonquestion/1118 Benefits for grandparents raising grandchildren]
* Department of Justice [http://www.justice.gc.ca/eng/fl-df/child-enfant/look-rech.asp Child Support Calculator]

{{REVIEWED | reviewer = [[Stephen Wright]] and [[Michael Sinclair]], April 17, 2019}}

{{JP Boyd on Family Law Navbox|type=chapters}}
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[[Category:JP Boyd on Family Law]]

Exceptions to the Child Support Guidelines

2021-03-06T21:20:45Z

Jpboyd: /* Split custody and shared custody */

{{JP Boyd on Family Law TOC|expanded = childsupport}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bill Murphy-Dyson]] and [[Inga Phillips]]
}}
{{LSSbadge
| resourcetype = a fact sheet on
| link = [http://www.familylaw.lss.bc.ca/resources/fact_sheets/Child_support.php Child support]''', including discussion of '''[http://www.familylaw.lss.bc.ca/resources/fact_sheets/child_support.php#TableAmntsDontApply "When the table amounts don't apply"]
}}The court has a limited ability to make orders for child support in amounts different than what would normally be required by the [[Child Support Guidelines]] tables.

The same rules apply to parents and guardians who are making agreements about child support. Without one of the Guidelines exceptions, the court is unlikely to uphold an agreement that provides for a child support payment that significantly departs from the Guidelines amount.

This section talks about the most common exceptions to the Guidelines tables:
* where the payor earns more than $150,000 per year,
* where the parents have split or shared custody of the children,
* where a minor child has become financially independent,
* where undue hardship is claimed, and
* where other arrangements have been made for the direct or indirect benefit of the children.

'''Important changes''' 
Look for explanations under this heading to read about recent changes to family law affecting the information provided in this section.

==Payors with incomes higher than $150,000==

The tables set out in the Child Support Guidelines only go up to an annual gross income of $150,000. For incomes over that amount, the Guidelines provide formulas to calculate the amount of child support payable.

However, for payors with very high incomes, these formulas can result in extremely large child support payments, to the point where the payments might begin to exceed what could reasonably be necessary to meet a child's expenses. As a result, section 4 of the Guidelines gives the court the flexibility to make an order for child support in an amount different than that generated by the formulas:

<blockquote><tt>Where the income of the spouse against whom a child support order is sought is over $150,000, the amount of a child support order is</tt></blockquote>
<blockquote><blockquote><tt>(a) the amount determined under section 3; or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) if the court considers that amount to be inappropriate,</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) in respect of the first $150,000 of the spouse's income, the amount set out in the applicable table for the number of children under the age of majority to whom the order relates;</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) in respect of the balance of the spouse's income, the amount that the court considers appropriate, having regard to the condition, means, needs and other circumstances of the children who are entitled to support and the financial ability of each spouse to contribute to the support of the children; and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(iii) the amount, if any, determined under section 7.</tt></blockquote></blockquote></blockquote>

Before departing from the Guidelines formulas under this section, the court must first determine that the formula amount would be inappropriate. If the court makes this finding, it then looks at the circumstances of the individual case and the factors set out in section 4(b)(ii). While there is a very strong presumption that the Guidelines formulas are appropriate, this presumption can still be challenged, and the court will usually consider the following factors in making its decision:

*the financial circumstances of the parties and the actual circumstances of their children,
*the actual means and needs of the parties and the children,
*the pre-separation spending patterns and standard of living and post-separation standard of living in both parents’ homes, and
*whether the sheer magnitude of the child support payments would effectively work as alternative payment of spousal support or wealth transfer beyond the reasonable purpose of a child support order.

You should bear in mind that there must be clear and compelling evidence that the formula amounts would be inappropriate. There is a very strong presumption in favour of the Guidelines tables and formulas, and sufficient evidence must be presented to the effect that the support payment would have a result beyond the purpose of child support before the courts will make an order differing from what the Guidelines provide. Each case is assessed individually, in the context of each family’s particular financial circumstances and the children’s needs.

==Split custody and shared custody==

The fundamental purpose of child support is to help cover some of the expenses paid by the parent or guardian who has the children most of the time, on the assumption that the person who has the children most of the time will bear a greater share of the direct and indirect costs associated with raising the children. Where parents have split custody (each parent has the primary residence of one or more children) or shared custody (the parents share the children's time equally or near-equally), these costs are presumed to be shared more equally. As a result, the Guidelines make an exception to the normal rules.

'''Important changes''' 
Under the changes to the ''Divorce Act'' that took effect on 1 March 2021, "custody" is now known as ''decision-making responsibility'' and "access" is now known as ''parenting time'', for people who are or used to be married to each other, or as ''contact'' for other people. As a result of these changes, the language used in the Child Support Guidelines has also changed. "Split custody" is now known as ''split parenting time'' and "shared custody" is now known as ''shared parenting time''.

===Split custody===

Section 8 of the Guidelines applies to split custody situations. Section 8 states that:

<blockquote><tt>8. Where each spouse has custody of one or more children, the amount of a child support order is the difference between the amount that each spouse would otherwise pay if a child support order were sought against each of the spouses.</tt></blockquote>

Where the primary residence of the children is split between the parents or guardians, the amount of the child support payable is the difference between what each parent would have to pay the other for the support of the children in their care.

:'''Example:'''
:Say that parent A's obligation to parent B for the children in B's care is $1,000 per month, and that parent B's obligation to parent A for the children in A's care is $250 per month. A would pay $750 per month in child support, the difference between A's obligation and B's obligation, and B would pay nothing.

Paying the difference between the two amounts is called paying the ''set-off'' amount of child support.

===Shared custody===

Section 9 of the Guidelines applies to shared custody situations. Section 9 states that:
<blockquote><tt>9. Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account</tt></blockquote>
<blockquote><blockquote><tt>(a) the amounts set out in the applicable tables for each of the spouses;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the increased costs of shared custody arrangements; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.</tt></blockquote></blockquote>

In order to fall within this exception to the Guidelines, the payor must have the children for 40% or more of the time. The two big issues here are how each party's time with the children is counted, and how the amount of child support payable should be calculated once the 40% threshold is reached.

====Counting time====

Problems about counting time involve the rules that will be applied in the calculation, such as deciding which person should get credit for the time the children are in school or whether you should count the time when the children are sleeping. Section 9 is one of the most difficult sections of the Child Support Guidelines as a result. A few broad rules have emerged from the case law:

*If the parents have the children for an exactly equal amount of time, the 40% requirement has been met.
*Holiday periods in which the children spend an unusual amount of time with one parent or the other, shouldn't be used to figure out the average amount of time spent with each parent; rather, the court will look at the average amount of time spent in a typical one- or two-week period.
*The time the children are in school or in daycare will be credited to the parent who has a right to parenting time of the children during that time, on the principle that this person is the parent who would have to care for children on a professional development day or attend the school or daycare in the event of an illness or an emergency.
*If a parent's time with the children is specified in an agreement or a court order as concluding at the start or end of the school day, that's when that parent's time concludes, and the other parent’s time starts, and credit will be divided accordingly.

In the case of ''[http://canlii.ca/t/g6rr2 C.M.B. v. B.D.G.]'', 2014 BCSC 780, the court recognized that there is no universal formula for counting time that children spend with each parent when the court is required to determine whether parents share parenting for the purpose of child support. Of course, as in most issues involving children, each case will be decided on its own unique circumstances.

====Calculating support====

Once the 40% threshold issue has been dealt with, the court must then decide how much child support ought to be paid, based on section 9 of the Guidelines. The intention is to reduce any difference in the living standards between the two homes in which the children live after their parents’ separation.

The analysis starts by determining each parent's income, finding each parent's support obligation amount under the applicable Guidelines tables (section 9(a)), then ''offsetting'' the two numbers to come up with a figure that one parent (the higher earning one most likely) owes the other. If Byron would pay $940 per month under the Guidelines, and Helen would pay $1,040 per month under the Guidelines, then the ''set-off'' amount is $200.

The court will then look at the increased costs associated with a shared parenting arrangement (section 9(b)).

In the leading case on section 9, [http://canlii.ca/t/1lxpf ''Contino v. Leonelli-Contino''], 2005 SCC 63, the Supreme Court of Canada addressed which factors should be examined under section 9(b). A court will examine the budgets and actual child-related expenditures of both parents. It will then determine whether shared custody has resulted in increased costs globally. These increased expenses should then be apportioned between the parents in accordance with their respective incomes.

Finally, under section 9(c), a court will look at the evidence regarding the "conditions, means, needs, and other circumstances" of each parent and any child. Under section 9(c), the court has broad discretion to analyze the resources and needs of both parents, and the children. So, for example, one parent’s new partner’s income may be taken into account as part of an overall analysis of that parent’s household income, whether that parent is the payor or the recipient of child support.

Although the court has developed a number of different formulas to calculate the amount of child support payable in shared parenting situations, in general the set-off calculation will be used. This approach was recently confirmed by the British Columbia Court of Appeal in the case of [http://canlii.ca/t/gsp1w ''B.P.E. v. A.E.''], 2016 BCCA 335, which gave deference to the set-off approach in a shared custody situation.

==== Income Tax and Child Tax Benefits====

In order to ensure that both parents can share in claiming children as dependents on their tax returns and share in child tax benefits, in "split custody" or "shared custody" situations, an agreement or court order should specify what child support is to be paid by each parent to the other. If the agreement or court order only says that one parent will pay the set-off amount, CRA will take the position that only the receiving parent is entitled to claim the children as dependents and receive tax child benefits. CRA may request a copy of the agreement or court order to prove that the children are in a shared parenting situation.

==Independent minor children==

Eligibility for child support under both the ''[[Family Law Act]]'' and the ''[[Divorce Act]]'' is restricted to children under the age of 19, the age of majority in British Columbia, and to children who are 19 and older and are unable to live independently of their parents. Children are expected, at some point, to live on their own and become self-sufficient. This may occur before a child turns 19, and a parent may be relieved of the obligation to provide support to an independent child in such circumstances.

If a payor can prove that a minor child has voluntarily withdrawn from parental control and is living an adult, financially independent life, the child may not be entitled to benefit from child support. Children have been found to have withdrawn from their parents' care and control when:

*a child lives with a boyfriend or girlfriend who provides for or helps to provide for the child's needs,
*a child has moved out from their parents' home and refuses to return, or
*a child lives on their own, maintains a job, and pays their own bills without relying on money from their parents.

Section 147(1) of the ''[[Family Law Act]]'' say that:

<blockquote><tt>Each parent and guardian of a child has a duty to provide support for the child, unless the child</tt></blockquote>
<blockquote><blockquote><tt>(a) is a spouse, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) is under 19 years of age and has voluntarily withdrawn from his or her parents' or guardians' charge, except if the child withdrew because of family violence or because the child's circumstances were, considered objectively, intolerable.</tt></blockquote></blockquote>

A person can be a ''spouse'' under the ''Family Law Act'' if they:

*are married,
*have lived in a marriage-like relationship with another person for a continuous period of at least two years, or
*have lived in a marriage-like relationship for a shorter period of time if the couple has had a child together.

==Undue hardship==

Under section 10 of the Child Support Guidelines, the court can make an award of child support that is different (usually less) than would be required by the Guidelines tables where a person would suffer ''undue hardship'' if the Guidelines table amount of child support were paid.

Merely claiming "hardship" will not be sufficient to justify a child support order that is lower than the Guidelines table amount. The hardship caused by payment of the table amount must be an undue hardship. According to ''[http://canlii.ca/t/1f0r2 Van Gool v. Van Gool ]'', 1998 CanLII 5650 (BCCA), a case of our Court of Appeal, ''undue'' means "exceptional, excessive or disproportionate." In the 1999 Supreme Court case of ''[http://canlii.ca/t/1d1px Chong v. Chong]'',1999 CanLII 6246 (BCSC), the court held that establishing undue hardship requires a "high threshold" of hardship, and that problems like a lower standard of living or financial obligations for a new family are not sufficient.

Section 10 of the Guidelines provides a non-exhaustive list of circumstances that may cause undue hardship:

<blockquote><tt>(1) On either spouse's application, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.</tt></blockquote>
<blockquote><tt>(2) Circumstances that may cause a spouse or child to suffer undue hardship include the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) the spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouses and their children prior to the separation or to earn a living;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the spouse has unusually high expenses in relation to exercising access to a child;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the spouse has a legal duty under a judgment, order or written separation agreement to support any person;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) the spouse has a legal duty to support a child, other than a child of the marriage, who is</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) under the age of majority, or</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><tt>(e) the spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability...</tt></blockquote></blockquote>

Note that this list is not exhaustive, meaning that the court may take other factors, in addition to those in the list, into account in deciding applications under section 10. The test to prove that an order under the Guidelines would cause undue hardship involves two steps:

#under section 10(3), the court must find that the household standard of living of the parent claiming undue hardship, calculated using the formulas described in Schedule II of the Guidelines, is lower than that of the other parent, and
#the court must find that an award under the Guidelines would in fact cause undue hardship to the payor or the recipient under section 10(1)

If you cannot prove a lower standard of living under step 1 above, do not bother going to step 2 because the hardship claim has already been lost.

If both these steps have been met, the court will then determine what a reasonable child support order would be in light of the children's needs and the means of the parents. Note that the standards of living being compared are the standards of the two households. This includes all sources of income a household has, including income from the parents' new partners, if any.

== Other Arrangements for the Children's Direct or Indirect Benefit ==

Section 11(1)(b) of the ''Divorce Act'' requires a judge to be satisfied that reasonable arrangements have been made for the support of the children of the marriage before signing off on the divorce. This usually requires that the ''Child Support Guideline amount of child support be paid.

However, Section 15.1(5) of the ''Divorce Act'' allows the court to order a different amount of child support or accept an agreement between the parents and give them the divorce, but this is unusual, and the parents must show that they made reasonable financial arrangements for the children. An example would be where the parents decide that one parent takes less than half the value of the house and gives the house to the other parent who continues to live in the house with the children. This is unusual, and will probably require the help of a lawyer.


==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [http://canlii.ca/t/80mh Child Support Guidelines]

===Links===

* [http://www.clicklaw.bc.ca/resource/1235 Dial-A-Law Script "Child Support"]
* [http://www.clicklaw.bc.ca/resource/1618 Legal Services Society's Family Law website's information page "Child & spousal support"]
** Under "Child support", see "What are the child support guidelines and how do they work?"

{{REVIEWED | reviewer = [[JP Boyd]], March 6, 2021}}

{{JP Boyd on Family Law Navbox|type=chapters}}
{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Exceptions to the Child Support Guidelines

2021-03-06T21:19:53Z

Jpboyd: /* Links */

{{JP Boyd on Family Law TOC|expanded = childsupport}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bill Murphy-Dyson]] and [[Inga Phillips]]
}}
{{LSSbadge
| resourcetype = a fact sheet on
| link = [http://www.familylaw.lss.bc.ca/resources/fact_sheets/Child_support.php Child support]''', including discussion of '''[http://www.familylaw.lss.bc.ca/resources/fact_sheets/child_support.php#TableAmntsDontApply "When the table amounts don't apply"]
}}The court has a limited ability to make orders for child support in amounts different than what would normally be required by the [[Child Support Guidelines]] tables.

The same rules apply to parents and guardians who are making agreements about child support. Without one of the Guidelines exceptions, the court is unlikely to uphold an agreement that provides for a child support payment that significantly departs from the Guidelines amount.

This section talks about the most common exceptions to the Guidelines tables:
* where the payor earns more than $150,000 per year,
* where the parents have split or shared custody of the children,
* where a minor child has become financially independent,
* where undue hardship is claimed, and
* where other arrangements have been made for the direct or indirect benefit of the children.

'''Important changes''' 
Look for explanations under this heading to read about recent changes to family law affecting the information provided in this section.

==Payors with incomes higher than $150,000==

The tables set out in the Child Support Guidelines only go up to an annual gross income of $150,000. For incomes over that amount, the Guidelines provide formulas to calculate the amount of child support payable.

However, for payors with very high incomes, these formulas can result in extremely large child support payments, to the point where the payments might begin to exceed what could reasonably be necessary to meet a child's expenses. As a result, section 4 of the Guidelines gives the court the flexibility to make an order for child support in an amount different than that generated by the formulas:

<blockquote><tt>Where the income of the spouse against whom a child support order is sought is over $150,000, the amount of a child support order is</tt></blockquote>
<blockquote><blockquote><tt>(a) the amount determined under section 3; or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) if the court considers that amount to be inappropriate,</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) in respect of the first $150,000 of the spouse's income, the amount set out in the applicable table for the number of children under the age of majority to whom the order relates;</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) in respect of the balance of the spouse's income, the amount that the court considers appropriate, having regard to the condition, means, needs and other circumstances of the children who are entitled to support and the financial ability of each spouse to contribute to the support of the children; and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(iii) the amount, if any, determined under section 7.</tt></blockquote></blockquote></blockquote>

Before departing from the Guidelines formulas under this section, the court must first determine that the formula amount would be inappropriate. If the court makes this finding, it then looks at the circumstances of the individual case and the factors set out in section 4(b)(ii). While there is a very strong presumption that the Guidelines formulas are appropriate, this presumption can still be challenged, and the court will usually consider the following factors in making its decision:

*the financial circumstances of the parties and the actual circumstances of their children,
*the actual means and needs of the parties and the children,
*the pre-separation spending patterns and standard of living and post-separation standard of living in both parents’ homes, and
*whether the sheer magnitude of the child support payments would effectively work as alternative payment of spousal support or wealth transfer beyond the reasonable purpose of a child support order.

You should bear in mind that there must be clear and compelling evidence that the formula amounts would be inappropriate. There is a very strong presumption in favour of the Guidelines tables and formulas, and sufficient evidence must be presented to the effect that the support payment would have a result beyond the purpose of child support before the courts will make an order differing from what the Guidelines provide. Each case is assessed individually, in the context of each family’s particular financial circumstances and the children’s needs.

==Split custody and shared custody==

The fundamental purpose of child support is to help cover some of the expenses paid by the parent or guardian who has the children most of the time, on the assumption that the person who has the children most of the time will bear a greater share of the direct and indirect costs associated with raising the children. Where parents have split custody (each parent has the primary residence of one or more children) or shared custody (the parents share the children's time equally or near-equally), these costs are presumed to be shared more equally. As a result, the Guidelines make an exception to the normal rules.

'''Important changes''' 
As a result of the changes to the ''Divorce Act'', the language used in the Child Support Guidelines has also changed. "Split custody" is now known as ''split parenting time'' and "shared custody" is now known as ''shared parenting time''.

===Split custody===

Section 8 of the Guidelines applies to split custody situations. Section 8 states that:

<blockquote><tt>8. Where each spouse has custody of one or more children, the amount of a child support order is the difference between the amount that each spouse would otherwise pay if a child support order were sought against each of the spouses.</tt></blockquote>

Where the primary residence of the children is split between the parents or guardians, the amount of the child support payable is the difference between what each parent would have to pay the other for the support of the children in their care.

:'''Example:'''
:Say that parent A's obligation to parent B for the children in B's care is $1,000 per month, and that parent B's obligation to parent A for the children in A's care is $250 per month. A would pay $750 per month in child support, the difference between A's obligation and B's obligation, and B would pay nothing.

Paying the difference between the two amounts is called paying the ''set-off'' amount of child support.

===Shared custody===

Section 9 of the Guidelines applies to shared custody situations. Section 9 states that:
<blockquote><tt>9. Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account</tt></blockquote>
<blockquote><blockquote><tt>(a) the amounts set out in the applicable tables for each of the spouses;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the increased costs of shared custody arrangements; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.</tt></blockquote></blockquote>

In order to fall within this exception to the Guidelines, the payor must have the children for 40% or more of the time. The two big issues here are how each party's time with the children is counted, and how the amount of child support payable should be calculated once the 40% threshold is reached.

====Counting time====

Problems about counting time involve the rules that will be applied in the calculation, such as deciding which person should get credit for the time the children are in school or whether you should count the time when the children are sleeping. Section 9 is one of the most difficult sections of the Child Support Guidelines as a result. A few broad rules have emerged from the case law:

*If the parents have the children for an exactly equal amount of time, the 40% requirement has been met.
*Holiday periods in which the children spend an unusual amount of time with one parent or the other, shouldn't be used to figure out the average amount of time spent with each parent; rather, the court will look at the average amount of time spent in a typical one- or two-week period.
*The time the children are in school or in daycare will be credited to the parent who has a right to parenting time of the children during that time, on the principle that this person is the parent who would have to care for children on a professional development day or attend the school or daycare in the event of an illness or an emergency.
*If a parent's time with the children is specified in an agreement or a court order as concluding at the start or end of the school day, that's when that parent's time concludes, and the other parent’s time starts, and credit will be divided accordingly.

In the case of ''[http://canlii.ca/t/g6rr2 C.M.B. v. B.D.G.]'', 2014 BCSC 780, the court recognized that there is no universal formula for counting time that children spend with each parent when the court is required to determine whether parents share parenting for the purpose of child support. Of course, as in most issues involving children, each case will be decided on its own unique circumstances.

====Calculating support====

Once the 40% threshold issue has been dealt with, the court must then decide how much child support ought to be paid, based on section 9 of the Guidelines. The intention is to reduce any difference in the living standards between the two homes in which the children live after their parents’ separation.

The analysis starts by determining each parent's income, finding each parent's support obligation amount under the applicable Guidelines tables (section 9(a)), then ''offsetting'' the two numbers to come up with a figure that one parent (the higher earning one most likely) owes the other. If Byron would pay $940 per month under the Guidelines, and Helen would pay $1,040 per month under the Guidelines, then the ''set-off'' amount is $200.

The court will then look at the increased costs associated with a shared parenting arrangement (section 9(b)).

In the leading case on section 9, [http://canlii.ca/t/1lxpf ''Contino v. Leonelli-Contino''], 2005 SCC 63, the Supreme Court of Canada addressed which factors should be examined under section 9(b). A court will examine the budgets and actual child-related expenditures of both parents. It will then determine whether shared custody has resulted in increased costs globally. These increased expenses should then be apportioned between the parents in accordance with their respective incomes.

Finally, under section 9(c), a court will look at the evidence regarding the "conditions, means, needs, and other circumstances" of each parent and any child. Under section 9(c), the court has broad discretion to analyze the resources and needs of both parents, and the children. So, for example, one parent’s new partner’s income may be taken into account as part of an overall analysis of that parent’s household income, whether that parent is the payor or the recipient of child support.

Although the court has developed a number of different formulas to calculate the amount of child support payable in shared parenting situations, in general the set-off calculation will be used. This approach was recently confirmed by the British Columbia Court of Appeal in the case of [http://canlii.ca/t/gsp1w ''B.P.E. v. A.E.''], 2016 BCCA 335, which gave deference to the set-off approach in a shared custody situation.

==== Income Tax and Child Tax Benefits====

In order to ensure that both parents can share in claiming children as dependents on their tax returns and share in child tax benefits, in "split custody" or "shared custody" situations, an agreement or court order should specify what child support is to be paid by each parent to the other. If the agreement or court order only says that one parent will pay the set-off amount, CRA will take the position that only the receiving parent is entitled to claim the children as dependents and receive tax child benefits. CRA may request a copy of the agreement or court order to prove that the children are in a shared parenting situation.

==Independent minor children==

Eligibility for child support under both the ''[[Family Law Act]]'' and the ''[[Divorce Act]]'' is restricted to children under the age of 19, the age of majority in British Columbia, and to children who are 19 and older and are unable to live independently of their parents. Children are expected, at some point, to live on their own and become self-sufficient. This may occur before a child turns 19, and a parent may be relieved of the obligation to provide support to an independent child in such circumstances.

If a payor can prove that a minor child has voluntarily withdrawn from parental control and is living an adult, financially independent life, the child may not be entitled to benefit from child support. Children have been found to have withdrawn from their parents' care and control when:

*a child lives with a boyfriend or girlfriend who provides for or helps to provide for the child's needs,
*a child has moved out from their parents' home and refuses to return, or
*a child lives on their own, maintains a job, and pays their own bills without relying on money from their parents.

Section 147(1) of the ''[[Family Law Act]]'' say that:

<blockquote><tt>Each parent and guardian of a child has a duty to provide support for the child, unless the child</tt></blockquote>
<blockquote><blockquote><tt>(a) is a spouse, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) is under 19 years of age and has voluntarily withdrawn from his or her parents' or guardians' charge, except if the child withdrew because of family violence or because the child's circumstances were, considered objectively, intolerable.</tt></blockquote></blockquote>

A person can be a ''spouse'' under the ''Family Law Act'' if they:

*are married,
*have lived in a marriage-like relationship with another person for a continuous period of at least two years, or
*have lived in a marriage-like relationship for a shorter period of time if the couple has had a child together.

==Undue hardship==

Under section 10 of the Child Support Guidelines, the court can make an award of child support that is different (usually less) than would be required by the Guidelines tables where a person would suffer ''undue hardship'' if the Guidelines table amount of child support were paid.

Merely claiming "hardship" will not be sufficient to justify a child support order that is lower than the Guidelines table amount. The hardship caused by payment of the table amount must be an undue hardship. According to ''[http://canlii.ca/t/1f0r2 Van Gool v. Van Gool ]'', 1998 CanLII 5650 (BCCA), a case of our Court of Appeal, ''undue'' means "exceptional, excessive or disproportionate." In the 1999 Supreme Court case of ''[http://canlii.ca/t/1d1px Chong v. Chong]'',1999 CanLII 6246 (BCSC), the court held that establishing undue hardship requires a "high threshold" of hardship, and that problems like a lower standard of living or financial obligations for a new family are not sufficient.

Section 10 of the Guidelines provides a non-exhaustive list of circumstances that may cause undue hardship:

<blockquote><tt>(1) On either spouse's application, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.</tt></blockquote>
<blockquote><tt>(2) Circumstances that may cause a spouse or child to suffer undue hardship include the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) the spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouses and their children prior to the separation or to earn a living;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the spouse has unusually high expenses in relation to exercising access to a child;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the spouse has a legal duty under a judgment, order or written separation agreement to support any person;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) the spouse has a legal duty to support a child, other than a child of the marriage, who is</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) under the age of majority, or</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><tt>(e) the spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability...</tt></blockquote></blockquote>

Note that this list is not exhaustive, meaning that the court may take other factors, in addition to those in the list, into account in deciding applications under section 10. The test to prove that an order under the Guidelines would cause undue hardship involves two steps:

#under section 10(3), the court must find that the household standard of living of the parent claiming undue hardship, calculated using the formulas described in Schedule II of the Guidelines, is lower than that of the other parent, and
#the court must find that an award under the Guidelines would in fact cause undue hardship to the payor or the recipient under section 10(1)

If you cannot prove a lower standard of living under step 1 above, do not bother going to step 2 because the hardship claim has already been lost.

If both these steps have been met, the court will then determine what a reasonable child support order would be in light of the children's needs and the means of the parents. Note that the standards of living being compared are the standards of the two households. This includes all sources of income a household has, including income from the parents' new partners, if any.

== Other Arrangements for the Children's Direct or Indirect Benefit ==

Section 11(1)(b) of the ''Divorce Act'' requires a judge to be satisfied that reasonable arrangements have been made for the support of the children of the marriage before signing off on the divorce. This usually requires that the ''Child Support Guideline amount of child support be paid.

However, Section 15.1(5) of the ''Divorce Act'' allows the court to order a different amount of child support or accept an agreement between the parents and give them the divorce, but this is unusual, and the parents must show that they made reasonable financial arrangements for the children. An example would be where the parents decide that one parent takes less than half the value of the house and gives the house to the other parent who continues to live in the house with the children. This is unusual, and will probably require the help of a lawyer.


==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [http://canlii.ca/t/80mh Child Support Guidelines]

===Links===

* [http://www.clicklaw.bc.ca/resource/1235 Dial-A-Law Script "Child Support"]
* [http://www.clicklaw.bc.ca/resource/1618 Legal Services Society's Family Law website's information page "Child & spousal support"]
** Under "Child support", see "What are the child support guidelines and how do they work?"

{{REVIEWED | reviewer = [[JP Boyd]], March 6, 2021}}

{{JP Boyd on Family Law Navbox|type=chapters}}
{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Exceptions to the Child Support Guidelines

2021-03-06T21:19:21Z

Jpboyd: /* Split custody and shared custody */

{{JP Boyd on Family Law TOC|expanded = childsupport}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bill Murphy-Dyson]] and [[Inga Phillips]]
}}
{{LSSbadge
| resourcetype = a fact sheet on
| link = [http://www.familylaw.lss.bc.ca/resources/fact_sheets/Child_support.php Child support]''', including discussion of '''[http://www.familylaw.lss.bc.ca/resources/fact_sheets/child_support.php#TableAmntsDontApply "When the table amounts don't apply"]
}}The court has a limited ability to make orders for child support in amounts different than what would normally be required by the [[Child Support Guidelines]] tables.

The same rules apply to parents and guardians who are making agreements about child support. Without one of the Guidelines exceptions, the court is unlikely to uphold an agreement that provides for a child support payment that significantly departs from the Guidelines amount.

This section talks about the most common exceptions to the Guidelines tables:
* where the payor earns more than $150,000 per year,
* where the parents have split or shared custody of the children,
* where a minor child has become financially independent,
* where undue hardship is claimed, and
* where other arrangements have been made for the direct or indirect benefit of the children.

'''Important changes''' 
Look for explanations under this heading to read about recent changes to family law affecting the information provided in this section.

==Payors with incomes higher than $150,000==

The tables set out in the Child Support Guidelines only go up to an annual gross income of $150,000. For incomes over that amount, the Guidelines provide formulas to calculate the amount of child support payable.

However, for payors with very high incomes, these formulas can result in extremely large child support payments, to the point where the payments might begin to exceed what could reasonably be necessary to meet a child's expenses. As a result, section 4 of the Guidelines gives the court the flexibility to make an order for child support in an amount different than that generated by the formulas:

<blockquote><tt>Where the income of the spouse against whom a child support order is sought is over $150,000, the amount of a child support order is</tt></blockquote>
<blockquote><blockquote><tt>(a) the amount determined under section 3; or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) if the court considers that amount to be inappropriate,</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) in respect of the first $150,000 of the spouse's income, the amount set out in the applicable table for the number of children under the age of majority to whom the order relates;</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) in respect of the balance of the spouse's income, the amount that the court considers appropriate, having regard to the condition, means, needs and other circumstances of the children who are entitled to support and the financial ability of each spouse to contribute to the support of the children; and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(iii) the amount, if any, determined under section 7.</tt></blockquote></blockquote></blockquote>

Before departing from the Guidelines formulas under this section, the court must first determine that the formula amount would be inappropriate. If the court makes this finding, it then looks at the circumstances of the individual case and the factors set out in section 4(b)(ii). While there is a very strong presumption that the Guidelines formulas are appropriate, this presumption can still be challenged, and the court will usually consider the following factors in making its decision:

*the financial circumstances of the parties and the actual circumstances of their children,
*the actual means and needs of the parties and the children,
*the pre-separation spending patterns and standard of living and post-separation standard of living in both parents’ homes, and
*whether the sheer magnitude of the child support payments would effectively work as alternative payment of spousal support or wealth transfer beyond the reasonable purpose of a child support order.

You should bear in mind that there must be clear and compelling evidence that the formula amounts would be inappropriate. There is a very strong presumption in favour of the Guidelines tables and formulas, and sufficient evidence must be presented to the effect that the support payment would have a result beyond the purpose of child support before the courts will make an order differing from what the Guidelines provide. Each case is assessed individually, in the context of each family’s particular financial circumstances and the children’s needs.

==Split custody and shared custody==

The fundamental purpose of child support is to help cover some of the expenses paid by the parent or guardian who has the children most of the time, on the assumption that the person who has the children most of the time will bear a greater share of the direct and indirect costs associated with raising the children. Where parents have split custody (each parent has the primary residence of one or more children) or shared custody (the parents share the children's time equally or near-equally), these costs are presumed to be shared more equally. As a result, the Guidelines make an exception to the normal rules.

'''Important changes''' 
As a result of the changes to the ''Divorce Act'', the language used in the Child Support Guidelines has also changed. "Split custody" is now known as ''split parenting time'' and "shared custody" is now known as ''shared parenting time''.

===Split custody===

Section 8 of the Guidelines applies to split custody situations. Section 8 states that:

<blockquote><tt>8. Where each spouse has custody of one or more children, the amount of a child support order is the difference between the amount that each spouse would otherwise pay if a child support order were sought against each of the spouses.</tt></blockquote>

Where the primary residence of the children is split between the parents or guardians, the amount of the child support payable is the difference between what each parent would have to pay the other for the support of the children in their care.

:'''Example:'''
:Say that parent A's obligation to parent B for the children in B's care is $1,000 per month, and that parent B's obligation to parent A for the children in A's care is $250 per month. A would pay $750 per month in child support, the difference between A's obligation and B's obligation, and B would pay nothing.

Paying the difference between the two amounts is called paying the ''set-off'' amount of child support.

===Shared custody===

Section 9 of the Guidelines applies to shared custody situations. Section 9 states that:
<blockquote><tt>9. Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account</tt></blockquote>
<blockquote><blockquote><tt>(a) the amounts set out in the applicable tables for each of the spouses;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the increased costs of shared custody arrangements; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.</tt></blockquote></blockquote>

In order to fall within this exception to the Guidelines, the payor must have the children for 40% or more of the time. The two big issues here are how each party's time with the children is counted, and how the amount of child support payable should be calculated once the 40% threshold is reached.

====Counting time====

Problems about counting time involve the rules that will be applied in the calculation, such as deciding which person should get credit for the time the children are in school or whether you should count the time when the children are sleeping. Section 9 is one of the most difficult sections of the Child Support Guidelines as a result. A few broad rules have emerged from the case law:

*If the parents have the children for an exactly equal amount of time, the 40% requirement has been met.
*Holiday periods in which the children spend an unusual amount of time with one parent or the other, shouldn't be used to figure out the average amount of time spent with each parent; rather, the court will look at the average amount of time spent in a typical one- or two-week period.
*The time the children are in school or in daycare will be credited to the parent who has a right to parenting time of the children during that time, on the principle that this person is the parent who would have to care for children on a professional development day or attend the school or daycare in the event of an illness or an emergency.
*If a parent's time with the children is specified in an agreement or a court order as concluding at the start or end of the school day, that's when that parent's time concludes, and the other parent’s time starts, and credit will be divided accordingly.

In the case of ''[http://canlii.ca/t/g6rr2 C.M.B. v. B.D.G.]'', 2014 BCSC 780, the court recognized that there is no universal formula for counting time that children spend with each parent when the court is required to determine whether parents share parenting for the purpose of child support. Of course, as in most issues involving children, each case will be decided on its own unique circumstances.

====Calculating support====

Once the 40% threshold issue has been dealt with, the court must then decide how much child support ought to be paid, based on section 9 of the Guidelines. The intention is to reduce any difference in the living standards between the two homes in which the children live after their parents’ separation.

The analysis starts by determining each parent's income, finding each parent's support obligation amount under the applicable Guidelines tables (section 9(a)), then ''offsetting'' the two numbers to come up with a figure that one parent (the higher earning one most likely) owes the other. If Byron would pay $940 per month under the Guidelines, and Helen would pay $1,040 per month under the Guidelines, then the ''set-off'' amount is $200.

The court will then look at the increased costs associated with a shared parenting arrangement (section 9(b)).

In the leading case on section 9, [http://canlii.ca/t/1lxpf ''Contino v. Leonelli-Contino''], 2005 SCC 63, the Supreme Court of Canada addressed which factors should be examined under section 9(b). A court will examine the budgets and actual child-related expenditures of both parents. It will then determine whether shared custody has resulted in increased costs globally. These increased expenses should then be apportioned between the parents in accordance with their respective incomes.

Finally, under section 9(c), a court will look at the evidence regarding the "conditions, means, needs, and other circumstances" of each parent and any child. Under section 9(c), the court has broad discretion to analyze the resources and needs of both parents, and the children. So, for example, one parent’s new partner’s income may be taken into account as part of an overall analysis of that parent’s household income, whether that parent is the payor or the recipient of child support.

Although the court has developed a number of different formulas to calculate the amount of child support payable in shared parenting situations, in general the set-off calculation will be used. This approach was recently confirmed by the British Columbia Court of Appeal in the case of [http://canlii.ca/t/gsp1w ''B.P.E. v. A.E.''], 2016 BCCA 335, which gave deference to the set-off approach in a shared custody situation.

==== Income Tax and Child Tax Benefits====

In order to ensure that both parents can share in claiming children as dependents on their tax returns and share in child tax benefits, in "split custody" or "shared custody" situations, an agreement or court order should specify what child support is to be paid by each parent to the other. If the agreement or court order only says that one parent will pay the set-off amount, CRA will take the position that only the receiving parent is entitled to claim the children as dependents and receive tax child benefits. CRA may request a copy of the agreement or court order to prove that the children are in a shared parenting situation.

==Independent minor children==

Eligibility for child support under both the ''[[Family Law Act]]'' and the ''[[Divorce Act]]'' is restricted to children under the age of 19, the age of majority in British Columbia, and to children who are 19 and older and are unable to live independently of their parents. Children are expected, at some point, to live on their own and become self-sufficient. This may occur before a child turns 19, and a parent may be relieved of the obligation to provide support to an independent child in such circumstances.

If a payor can prove that a minor child has voluntarily withdrawn from parental control and is living an adult, financially independent life, the child may not be entitled to benefit from child support. Children have been found to have withdrawn from their parents' care and control when:

*a child lives with a boyfriend or girlfriend who provides for or helps to provide for the child's needs,
*a child has moved out from their parents' home and refuses to return, or
*a child lives on their own, maintains a job, and pays their own bills without relying on money from their parents.

Section 147(1) of the ''[[Family Law Act]]'' say that:

<blockquote><tt>Each parent and guardian of a child has a duty to provide support for the child, unless the child</tt></blockquote>
<blockquote><blockquote><tt>(a) is a spouse, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) is under 19 years of age and has voluntarily withdrawn from his or her parents' or guardians' charge, except if the child withdrew because of family violence or because the child's circumstances were, considered objectively, intolerable.</tt></blockquote></blockquote>

A person can be a ''spouse'' under the ''Family Law Act'' if they:

*are married,
*have lived in a marriage-like relationship with another person for a continuous period of at least two years, or
*have lived in a marriage-like relationship for a shorter period of time if the couple has had a child together.

==Undue hardship==

Under section 10 of the Child Support Guidelines, the court can make an award of child support that is different (usually less) than would be required by the Guidelines tables where a person would suffer ''undue hardship'' if the Guidelines table amount of child support were paid.

Merely claiming "hardship" will not be sufficient to justify a child support order that is lower than the Guidelines table amount. The hardship caused by payment of the table amount must be an undue hardship. According to ''[http://canlii.ca/t/1f0r2 Van Gool v. Van Gool ]'', 1998 CanLII 5650 (BCCA), a case of our Court of Appeal, ''undue'' means "exceptional, excessive or disproportionate." In the 1999 Supreme Court case of ''[http://canlii.ca/t/1d1px Chong v. Chong]'',1999 CanLII 6246 (BCSC), the court held that establishing undue hardship requires a "high threshold" of hardship, and that problems like a lower standard of living or financial obligations for a new family are not sufficient.

Section 10 of the Guidelines provides a non-exhaustive list of circumstances that may cause undue hardship:

<blockquote><tt>(1) On either spouse's application, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.</tt></blockquote>
<blockquote><tt>(2) Circumstances that may cause a spouse or child to suffer undue hardship include the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) the spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouses and their children prior to the separation or to earn a living;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the spouse has unusually high expenses in relation to exercising access to a child;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the spouse has a legal duty under a judgment, order or written separation agreement to support any person;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) the spouse has a legal duty to support a child, other than a child of the marriage, who is</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) under the age of majority, or</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><tt>(e) the spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability...</tt></blockquote></blockquote>

Note that this list is not exhaustive, meaning that the court may take other factors, in addition to those in the list, into account in deciding applications under section 10. The test to prove that an order under the Guidelines would cause undue hardship involves two steps:

#under section 10(3), the court must find that the household standard of living of the parent claiming undue hardship, calculated using the formulas described in Schedule II of the Guidelines, is lower than that of the other parent, and
#the court must find that an award under the Guidelines would in fact cause undue hardship to the payor or the recipient under section 10(1)

If you cannot prove a lower standard of living under step 1 above, do not bother going to step 2 because the hardship claim has already been lost.

If both these steps have been met, the court will then determine what a reasonable child support order would be in light of the children's needs and the means of the parents. Note that the standards of living being compared are the standards of the two households. This includes all sources of income a household has, including income from the parents' new partners, if any.

== Other Arrangements for the Children's Direct or Indirect Benefit ==

Section 11(1)(b) of the ''Divorce Act'' requires a judge to be satisfied that reasonable arrangements have been made for the support of the children of the marriage before signing off on the divorce. This usually requires that the ''Child Support Guideline amount of child support be paid.

However, Section 15.1(5) of the ''Divorce Act'' allows the court to order a different amount of child support or accept an agreement between the parents and give them the divorce, but this is unusual, and the parents must show that they made reasonable financial arrangements for the children. An example would be where the parents decide that one parent takes less than half the value of the house and gives the house to the other parent who continues to live in the house with the children. This is unusual, and will probably require the help of a lawyer.


==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [http://canlii.ca/t/80mh Child Support Guidelines]

===Links===

* [http://www.clicklaw.bc.ca/resource/1235 Dial-A-Law Script "Child Support"]
* [http://www.clicklaw.bc.ca/resource/1618 Legal Services Society's Family Law website's information page "Child & spousal support"]
** Under "Child support", see "What are the child support guidelines and how do they work?"

{{REVIEWED | reviewer = [[Bill Murphy-Dyson | William Murphy-Dyson]] and [[Inga Phillips]], June 14, 2019}}

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[[Category:JP Boyd on Family Law]]

Exceptions to the Child Support Guidelines

2021-03-06T21:19:00Z

Jpboyd:

{{JP Boyd on Family Law TOC|expanded = childsupport}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bill Murphy-Dyson]] and [[Inga Phillips]]
}}
{{LSSbadge
| resourcetype = a fact sheet on
| link = [http://www.familylaw.lss.bc.ca/resources/fact_sheets/Child_support.php Child support]''', including discussion of '''[http://www.familylaw.lss.bc.ca/resources/fact_sheets/child_support.php#TableAmntsDontApply "When the table amounts don't apply"]
}}The court has a limited ability to make orders for child support in amounts different than what would normally be required by the [[Child Support Guidelines]] tables.

The same rules apply to parents and guardians who are making agreements about child support. Without one of the Guidelines exceptions, the court is unlikely to uphold an agreement that provides for a child support payment that significantly departs from the Guidelines amount.

This section talks about the most common exceptions to the Guidelines tables:
* where the payor earns more than $150,000 per year,
* where the parents have split or shared custody of the children,
* where a minor child has become financially independent,
* where undue hardship is claimed, and
* where other arrangements have been made for the direct or indirect benefit of the children.

'''Important changes''' 
Look for explanations under this heading to read about recent changes to family law affecting the information provided in this section.

==Payors with incomes higher than $150,000==

The tables set out in the Child Support Guidelines only go up to an annual gross income of $150,000. For incomes over that amount, the Guidelines provide formulas to calculate the amount of child support payable.

However, for payors with very high incomes, these formulas can result in extremely large child support payments, to the point where the payments might begin to exceed what could reasonably be necessary to meet a child's expenses. As a result, section 4 of the Guidelines gives the court the flexibility to make an order for child support in an amount different than that generated by the formulas:

<blockquote><tt>Where the income of the spouse against whom a child support order is sought is over $150,000, the amount of a child support order is</tt></blockquote>
<blockquote><blockquote><tt>(a) the amount determined under section 3; or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) if the court considers that amount to be inappropriate,</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) in respect of the first $150,000 of the spouse's income, the amount set out in the applicable table for the number of children under the age of majority to whom the order relates;</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) in respect of the balance of the spouse's income, the amount that the court considers appropriate, having regard to the condition, means, needs and other circumstances of the children who are entitled to support and the financial ability of each spouse to contribute to the support of the children; and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(iii) the amount, if any, determined under section 7.</tt></blockquote></blockquote></blockquote>

Before departing from the Guidelines formulas under this section, the court must first determine that the formula amount would be inappropriate. If the court makes this finding, it then looks at the circumstances of the individual case and the factors set out in section 4(b)(ii). While there is a very strong presumption that the Guidelines formulas are appropriate, this presumption can still be challenged, and the court will usually consider the following factors in making its decision:

*the financial circumstances of the parties and the actual circumstances of their children,
*the actual means and needs of the parties and the children,
*the pre-separation spending patterns and standard of living and post-separation standard of living in both parents’ homes, and
*whether the sheer magnitude of the child support payments would effectively work as alternative payment of spousal support or wealth transfer beyond the reasonable purpose of a child support order.

You should bear in mind that there must be clear and compelling evidence that the formula amounts would be inappropriate. There is a very strong presumption in favour of the Guidelines tables and formulas, and sufficient evidence must be presented to the effect that the support payment would have a result beyond the purpose of child support before the courts will make an order differing from what the Guidelines provide. Each case is assessed individually, in the context of each family’s particular financial circumstances and the children’s needs.

==Split custody and shared custody==

The fundamental purpose of child support is to help cover some of the expenses paid by the parent or guardian who has the children most of the time, on the assumption that the person who has the children most of the time will bear a greater share of the direct and indirect costs associated with raising the children. Where parents have split custody (each parent has the primary residence of one or more children) or shared custody (the parents share the children's time equally or near-equally), these costs are presumed to be shared more equally. As a result, the Guidelines make an exception to the normal rules.

===Split custody===

Section 8 of the Guidelines applies to split custody situations. Section 8 states that:

<blockquote><tt>8. Where each spouse has custody of one or more children, the amount of a child support order is the difference between the amount that each spouse would otherwise pay if a child support order were sought against each of the spouses.</tt></blockquote>

Where the primary residence of the children is split between the parents or guardians, the amount of the child support payable is the difference between what each parent would have to pay the other for the support of the children in their care.

:'''Example:'''
:Say that parent A's obligation to parent B for the children in B's care is $1,000 per month, and that parent B's obligation to parent A for the children in A's care is $250 per month. A would pay $750 per month in child support, the difference between A's obligation and B's obligation, and B would pay nothing.

Paying the difference between the two amounts is called paying the ''set-off'' amount of child support.

===Shared custody===

Section 9 of the Guidelines applies to shared custody situations. Section 9 states that:
<blockquote><tt>9. Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account</tt></blockquote>
<blockquote><blockquote><tt>(a) the amounts set out in the applicable tables for each of the spouses;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the increased costs of shared custody arrangements; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.</tt></blockquote></blockquote>

In order to fall within this exception to the Guidelines, the payor must have the children for 40% or more of the time. The two big issues here are how each party's time with the children is counted, and how the amount of child support payable should be calculated once the 40% threshold is reached.

====Counting time====

Problems about counting time involve the rules that will be applied in the calculation, such as deciding which person should get credit for the time the children are in school or whether you should count the time when the children are sleeping. Section 9 is one of the most difficult sections of the Child Support Guidelines as a result. A few broad rules have emerged from the case law:

*If the parents have the children for an exactly equal amount of time, the 40% requirement has been met.
*Holiday periods in which the children spend an unusual amount of time with one parent or the other, shouldn't be used to figure out the average amount of time spent with each parent; rather, the court will look at the average amount of time spent in a typical one- or two-week period.
*The time the children are in school or in daycare will be credited to the parent who has a right to parenting time of the children during that time, on the principle that this person is the parent who would have to care for children on a professional development day or attend the school or daycare in the event of an illness or an emergency.
*If a parent's time with the children is specified in an agreement or a court order as concluding at the start or end of the school day, that's when that parent's time concludes, and the other parent’s time starts, and credit will be divided accordingly.

In the case of ''[http://canlii.ca/t/g6rr2 C.M.B. v. B.D.G.]'', 2014 BCSC 780, the court recognized that there is no universal formula for counting time that children spend with each parent when the court is required to determine whether parents share parenting for the purpose of child support. Of course, as in most issues involving children, each case will be decided on its own unique circumstances.

====Calculating support====

Once the 40% threshold issue has been dealt with, the court must then decide how much child support ought to be paid, based on section 9 of the Guidelines. The intention is to reduce any difference in the living standards between the two homes in which the children live after their parents’ separation.

The analysis starts by determining each parent's income, finding each parent's support obligation amount under the applicable Guidelines tables (section 9(a)), then ''offsetting'' the two numbers to come up with a figure that one parent (the higher earning one most likely) owes the other. If Byron would pay $940 per month under the Guidelines, and Helen would pay $1,040 per month under the Guidelines, then the ''set-off'' amount is $200.

The court will then look at the increased costs associated with a shared parenting arrangement (section 9(b)).

In the leading case on section 9, [http://canlii.ca/t/1lxpf ''Contino v. Leonelli-Contino''], 2005 SCC 63, the Supreme Court of Canada addressed which factors should be examined under section 9(b). A court will examine the budgets and actual child-related expenditures of both parents. It will then determine whether shared custody has resulted in increased costs globally. These increased expenses should then be apportioned between the parents in accordance with their respective incomes.

Finally, under section 9(c), a court will look at the evidence regarding the "conditions, means, needs, and other circumstances" of each parent and any child. Under section 9(c), the court has broad discretion to analyze the resources and needs of both parents, and the children. So, for example, one parent’s new partner’s income may be taken into account as part of an overall analysis of that parent’s household income, whether that parent is the payor or the recipient of child support.

Although the court has developed a number of different formulas to calculate the amount of child support payable in shared parenting situations, in general the set-off calculation will be used. This approach was recently confirmed by the British Columbia Court of Appeal in the case of [http://canlii.ca/t/gsp1w ''B.P.E. v. A.E.''], 2016 BCCA 335, which gave deference to the set-off approach in a shared custody situation.

==== Income Tax and Child Tax Benefits====

In order to ensure that both parents can share in claiming children as dependents on their tax returns and share in child tax benefits, in "split custody" or "shared custody" situations, an agreement or court order should specify what child support is to be paid by each parent to the other. If the agreement or court order only says that one parent will pay the set-off amount, CRA will take the position that only the receiving parent is entitled to claim the children as dependents and receive tax child benefits. CRA may request a copy of the agreement or court order to prove that the children are in a shared parenting situation.

==Independent minor children==

Eligibility for child support under both the ''[[Family Law Act]]'' and the ''[[Divorce Act]]'' is restricted to children under the age of 19, the age of majority in British Columbia, and to children who are 19 and older and are unable to live independently of their parents. Children are expected, at some point, to live on their own and become self-sufficient. This may occur before a child turns 19, and a parent may be relieved of the obligation to provide support to an independent child in such circumstances.

If a payor can prove that a minor child has voluntarily withdrawn from parental control and is living an adult, financially independent life, the child may not be entitled to benefit from child support. Children have been found to have withdrawn from their parents' care and control when:

*a child lives with a boyfriend or girlfriend who provides for or helps to provide for the child's needs,
*a child has moved out from their parents' home and refuses to return, or
*a child lives on their own, maintains a job, and pays their own bills without relying on money from their parents.

Section 147(1) of the ''[[Family Law Act]]'' say that:

<blockquote><tt>Each parent and guardian of a child has a duty to provide support for the child, unless the child</tt></blockquote>
<blockquote><blockquote><tt>(a) is a spouse, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) is under 19 years of age and has voluntarily withdrawn from his or her parents' or guardians' charge, except if the child withdrew because of family violence or because the child's circumstances were, considered objectively, intolerable.</tt></blockquote></blockquote>

A person can be a ''spouse'' under the ''Family Law Act'' if they:

*are married,
*have lived in a marriage-like relationship with another person for a continuous period of at least two years, or
*have lived in a marriage-like relationship for a shorter period of time if the couple has had a child together.

==Undue hardship==

Under section 10 of the Child Support Guidelines, the court can make an award of child support that is different (usually less) than would be required by the Guidelines tables where a person would suffer ''undue hardship'' if the Guidelines table amount of child support were paid.

Merely claiming "hardship" will not be sufficient to justify a child support order that is lower than the Guidelines table amount. The hardship caused by payment of the table amount must be an undue hardship. According to ''[http://canlii.ca/t/1f0r2 Van Gool v. Van Gool ]'', 1998 CanLII 5650 (BCCA), a case of our Court of Appeal, ''undue'' means "exceptional, excessive or disproportionate." In the 1999 Supreme Court case of ''[http://canlii.ca/t/1d1px Chong v. Chong]'',1999 CanLII 6246 (BCSC), the court held that establishing undue hardship requires a "high threshold" of hardship, and that problems like a lower standard of living or financial obligations for a new family are not sufficient.

Section 10 of the Guidelines provides a non-exhaustive list of circumstances that may cause undue hardship:

<blockquote><tt>(1) On either spouse's application, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.</tt></blockquote>
<blockquote><tt>(2) Circumstances that may cause a spouse or child to suffer undue hardship include the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) the spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouses and their children prior to the separation or to earn a living;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the spouse has unusually high expenses in relation to exercising access to a child;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the spouse has a legal duty under a judgment, order or written separation agreement to support any person;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) the spouse has a legal duty to support a child, other than a child of the marriage, who is</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) under the age of majority, or</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><tt>(e) the spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability...</tt></blockquote></blockquote>

Note that this list is not exhaustive, meaning that the court may take other factors, in addition to those in the list, into account in deciding applications under section 10. The test to prove that an order under the Guidelines would cause undue hardship involves two steps:

#under section 10(3), the court must find that the household standard of living of the parent claiming undue hardship, calculated using the formulas described in Schedule II of the Guidelines, is lower than that of the other parent, and
#the court must find that an award under the Guidelines would in fact cause undue hardship to the payor or the recipient under section 10(1)

If you cannot prove a lower standard of living under step 1 above, do not bother going to step 2 because the hardship claim has already been lost.

If both these steps have been met, the court will then determine what a reasonable child support order would be in light of the children's needs and the means of the parents. Note that the standards of living being compared are the standards of the two households. This includes all sources of income a household has, including income from the parents' new partners, if any.

== Other Arrangements for the Children's Direct or Indirect Benefit ==

Section 11(1)(b) of the ''Divorce Act'' requires a judge to be satisfied that reasonable arrangements have been made for the support of the children of the marriage before signing off on the divorce. This usually requires that the ''Child Support Guideline amount of child support be paid.

However, Section 15.1(5) of the ''Divorce Act'' allows the court to order a different amount of child support or accept an agreement between the parents and give them the divorce, but this is unusual, and the parents must show that they made reasonable financial arrangements for the children. An example would be where the parents decide that one parent takes less than half the value of the house and gives the house to the other parent who continues to live in the house with the children. This is unusual, and will probably require the help of a lawyer.


==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [http://canlii.ca/t/80mh Child Support Guidelines]

===Links===

* [http://www.clicklaw.bc.ca/resource/1235 Dial-A-Law Script "Child Support"]
* [http://www.clicklaw.bc.ca/resource/1618 Legal Services Society's Family Law website's information page "Child & spousal support"]
** Under "Child support", see "What are the child support guidelines and how do they work?"

{{REVIEWED | reviewer = [[Bill Murphy-Dyson | William Murphy-Dyson]] and [[Inga Phillips]], June 14, 2019}}

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[[Category:JP Boyd on Family Law]]

Child Support Guidelines

2021-03-06T21:18:25Z

Jpboyd: /* Orders for child support */

{{JP Boyd on Family Law TOC|expanded = childsupport}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bill Murphy-Dyson]] and [[Inga Phillips]]
}}
{{Clicklawbadge
| resourcetype = more resources on 
| link = [https://www.clicklaw.bc.ca/global/search?k=child%20support child support]
}}Often simply referred to as the Guidelines, the [http://canlii.ca/t/80mh Child Support Guidelines], SOR/97-175, is a federal regulation, adopted by all of the provinces except Quebec, that describes the rules that the courts must apply when making an order for child support.

The most important feature of the Guidelines is the child support tables that fix the amount of support payments according to both the annual income of the person paying support and the number of children the support is to be paid for.

The Guidelines cover every aspect of child support, including the calculation of income, how children's special expenses are paid for, the amount of support payable when the parents have the children for an almost equal amount of time, and the amount payable when one or more of the children live full-time with each parent.

This section talks about the basic principles of the Guidelines, the sharing of special and extraordinary expenses, the calculation of income, ''imputing'' income, and the circumstances in which the income of a parent's or guardian's new partner may be taken into account. It also provides an example of the contents of a typical child support order.

'''Important changes''' 
Look for explanations under this heading to read about recent changes to family law affecting the information provided in this section.

==Basic principles==

It used to be that the party claiming child support, the ''recipient'', had to show the amount of support the child needed and prove that the person being asked to pay support, the ''payor'', had the means to pay that amount. Now, the amount of a child support order or an agreement for child support is based on the amounts set out in the tables attached to the Child Support Guidelines. The Guidelines have generally reduced the amount of disagreement between parents about the amount of child support, whether they're in court arguing about an order, or are negotiating a separation agreement. Most of the disagreement now tends to be about either the income of the payor or child support for children over 19.

The Guidelines tables were most recently adjusted on November 22, 2017. If you are relying on a printed version of the child support tables to figure out how much child support should be paid, make sure that your materials reflect the new table amounts, effective as of November 22, 2017.

The Guidelines' key presumption is set out in section 3(1):

<blockquote><tt>Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority is</tt></blockquote>
<blockquote><blockquote><tt>(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the amount, if any, determined under section 7.</tt></blockquote></blockquote>

This is, however, only a presumption, and can be challenged or ''rebutted'', as is discussed in this chapter's next section, [[Exceptions to the Child Support Guidelines]]. In the vast majority of cases, however, the amount of child support payable is calculated using the payor's gross (before tax) yearly income at the time the order is made.

Over time, of course, the payor's income may go up or down. Both the payor and the recipient can make an application to change the original order or the agreement so that the amount of child support reflects the payor's current income. The payor would make the application if their income has fallen, while the recipient would make the application when the payor's income has increased. To avoid a situation where parents are continually making trips back to court to seek an adjustment of child support, it's a good idea to include a term in the court order or agreement that requires both parents to regularly exchange income information, usually every year after taxes have been filed, so that child support can be adjusted from time to time without having to go to court.

Another important presumption in the Guidelines is that the amount of support payable is set according to the number of children to which each particular support order relates. If a payor has two children from one relationship and three from another, the first order will be based on the Guidelines amount for two children and the second will be based on the amount for three children. The payor's obligation is not based on the Guidelines amount for the total number of five children.

Finally, the amount of support payable is based only on the payor's income, unless there is a shared or a split parenting arrangement, in which case both parents’ incomes are taken into account.

'''Important changes''' 
As a result of the changes to the ''Divorce Act'', the language used in the Child Support Guidelines has also changed. "Split custody" is now known as ''split parenting time'' and "shared custody" is now known as ''shared parenting time''.

==Special expenses and extraordinary expenses==

The basic amount of child support a parent pays is presumed to cover a very wide scope of common day-to-day expenses associated with raising children: the child's share of lodging, utilities, shoes, groceries, diapers, clothes, toothpaste, school field trip fees, entertainment, haircuts, and so forth. The basic amount of support is not always presumed to include certain other kinds of expenses that are infrequent but expensive, such as the cost of daycare or orthodontic work. In addition to the basic amount of support payable, the parents may also be required to cover their respective portions of these other expenses, so long as they qualify as ''special and/or extraordinary expenses'' under the Guidelines.

Special and/or extraordinary expenses are defined in section 7(1) of the Guidelines:

<blockquote><tt>(a) child care expenses incurred as a result of the custodial parent's employment, illness, disability or education or training for employment;</tt></blockquote>
<blockquote><tt>(b) that portion of the medical and dental insurance premiums attributable to the child;</tt></blockquote>
<blockquote><tt>(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;</tt></blockquote>
<blockquote><tt>(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child's particular needs;</tt></blockquote>
<blockquote><tt>(e) expenses for post-secondary education; and</tt></blockquote>
<blockquote><tt>(f) extraordinary expenses for extracurricular activities.</tt></blockquote>

Section 7(1.1) clarifies (1)(d) and (1)(f), and says that for these subsections "extraordinary expenses" means:

<blockquote><tt>(a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or</tt></blockquote>
<blockquote><tt>(b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account</tt></blockquote>
<blockquote><blockquote><tt>(i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) the nature and number of the educational programs and extracurricular activities,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(iii) any special needs and talents of the child or children,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(iv) the overall cost of the programs and activities, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(v) any other similar factor that the court considers relevant.</tt></blockquote></blockquote>

Special expenses are shared between the payor and recipient in proportion to their incomes. These provisions of the Guidelines are intended to ensure that, if either parent incurs significant additional expenses for the child's needs or activities, ''both'' parents will share the cost on the principle that it is in children's best interests to have such needs met or to participate in such activities.

If an expense is found to qualify as a special and/or extraordinary expense under the section 7(1) and section 7(1.1) definitions, the court may make an order that both parties pay additional amounts, in addition to the usual Guidelines basic amount of support, to cover all or a portion of the cost of the expense.

===Qualifying expenses as special expenses and extraordinary expenses===

Just because an expense appears to fall into one of the categories listed in section 7 of the Guidelines doesn't necessarily make it a shareable special and/or extraordinary expense. As well, just because an expense has been incurred doesn't mean it will automatically be shared; if you're not sure whether a planned expense will qualify as a shareable special expense, get some legal advice or talk to the other parent first to see if they will agree to share in the expense.

An expense that may not qualify as a special expense for higher-earning families may qualify as such for low-income families. For example, if guideline child support of $2,000 for one child is being paid, the $200 cost of soccer registration will probably not be considered a special expense (and will have to be paid from the $2,000 basic child support by the recipient parent), but that same $200 expense may be a special expense if only $500 per month Guideline support is being paid (and will therefore have to be shared between the parents).

According to section 7(1) of the Guidelines, the court must not only find that an expense fits into one of the categories listed above, but also consider:

*the "reasonableness of the expense in relation to the means of the spouses and those of the child and to the family's spending pattern prior to the separation," and
*the necessity of the expense in relation to the child's best interests,

The court must bear in mind the special test for primary- and secondary-school education and extracurricular activities required by section 7(1.1). Here's a helpful summary from a 2010 case from our Supreme Court, ''[http://canlii.ca/t/2dpzr Piper v. Piper]'', 2010 BCSC 1718:

<blockquote>"Under section 7(1.1)(a) the court is first required to consider whether the income of the requesting spouse, including any child support received, can reasonably cover the expense claimed or whether the expense exceeds her ability to pay without any consideration of the factors enumerated in section 7(1.1)(b). If the income cannot cover the expense, the expense is deemed to be extraordinary and the court's next analysis turns to consideration of the factors enumerated in section 7(1) which, of course, brings into consideration the parties' means and pre-separation spending pattern."</blockquote>

====Reasonableness====

When the court is asked to consider a particular expense, it should first decide whether the expense is necessary and reasonable according to the parties' financial resources. For lower income parents, fewer expenses will be considered reasonable.

*Daycare will almost always be considered necessary and reasonable, if that daycare is incurred as a result of the parent’s employment, illness, disability, or education or training for employment. Daycare subsidies will be taken into account when apportioning daycare expenses between the parents, as will tax-deductibility.

For parents with more money, more expenses may qualify as reasonable:

*Cosmetic orthodontic work.
*Dance, music, and art classes, swimming lessons, and summer day camps.
*Less expensive team sports, like soccer, baseball, and basketball.
*Basic high-school graduation costs, such as tickets and gown or tuxedo rentals.
*Basic post-secondary education costs, such as tuition fees for a local college or university, student fees, and textbook costs.

For parents with lots of money, almost every big-ticket expense is probably going to be considered reasonable:

*Multiple week summer camps and trips abroad.
*Private school fees.
*Expensive team sports, like hockey and horseback polo, and expensive solo sports like skiing and scuba diving.
*Post-secondary education costs, including meal plans and residence costs.

====Necessity====

Sometimes the needs of the child will outweigh the cost of the expense to the child, and an expense will qualify as a special expense whether at a hardship to the parents or not.

*Medical costs, including costs that aren't covered by MSP such as autism therapies.
*Counselling services, where the counselling is necessary for the child's mental health.
*Tutoring services, where the child needs the extra help to get through school.
*Lessons or coaching in arts and sports, where the child has a special talent that should be nurtured.

A driver training course, for example, is unlikely to qualify as a special expense under the heading of necessity, since you can learn to drive and obtain a driver's license without it, as was decided in a 2011 Supreme Court case, ''[http://canlii.ca/t/2fzs4 M.S.J. v. J.M.J.]'', 2011 BCSC 245. On the other hand, if a semester with Sylvan Learning Centre will mean the difference between passing or failing a grade, the tutoring would probably be considered a necessity.

===Sharing qualifying expenses===

Under section 7(2) of the Guidelines, expenses that qualify as special and/or extraordinary expenses are generally shared by the parties in proportion to their incomes, after deducting any contribution to those costs made by the child or the government, through things like grants or tax deductions. The idea here is to look at the total pot of money available to the child — the income of the payor plus the income of the recipient — and to figure out how much each party's share of that pot is, and then pay the child's special expenses according to each parent's share.

The easiest way to calculate a parent's ''proportionate share'' is to add the incomes of both parents together and then figure out what percentage each income is of the total. Here are two examples.

:'''Example #1'''

<blockquote>If one parent earns $75,000 per year and the other $25,000, the total pot available to the child is $100,000. Of that sum, the first parent contributes 75% and the second parent 25%. As a result, the first parent would be ordered to pay 75% of qualifying expenses, and the second parent 25%.
</blockquote>

:'''Example #2'''

<blockquote>If one parent earns $48,000 per year and the other $62,000, the total of their incomes is $110,000. The first parent's income is 43.6% of the total, and the other parent's income is 56.4% of the total. The first parent would have to pay 43.6% of all qualifying special expenses, and the second would have to pay 54.6% of those expenses.</blockquote>

The cost that is being shared is the ''net cost'' of an expense, in other words, the amount that is actually being paid after any third-party contributions have been applied to reduce the expense. Daycare costs, for example, are sometimes subsidized for lower income earners and the amount paid by a parent is deductible from their income. It is the net expense after deducting any subsidy and any tax saving that is to be shared.

Note that the income of a parent's new spouse or partner may sometimes be taken into consideration in determining a parent's "means" in sharing a special expense. In the 2000 Supreme Court case of ''[http://canlii.ca/t/1fm6b Baum v. Baum]'', 2000 BCSC 1835, the court held that the section 7(1) consideration of the "means of the spouses" should be interpreted broadly as including all sources of income available to the paying parent, including the contribution of a parent's new partner. Also see the case of [http://canlii.ca/t/53kt ''Scott v. Scott''], 2000 BCSC 844.

==The calculation of income==

Before the court even looks at the Child Support Guidelines tables it has to decide what the payor's income is. The tables set out the amount of child support payable according to the payor's income. The Guidelines require that the court use the most up-to-date information available. Sections 15 to 20 of the Guidelines set out the rules the court must apply in determining income.

According to Rule 5-1 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules] and Rule 4 of the [http://canlii.ca/t/85pb Provincial Court (Family) Rules], when someone makes an application for child support, the payor or both the payor and recipient are required to disclose their financial circumstances using a court form called a Financial Statement. Financial statements require each party to set out their income and expenses, and assets and liabilities. Certain income documents must be attached to a financial statement, typically:

#the last three years' tax returns (what's required is the complete income tax and benefit return, not tax return "summaries" or "informations"),
#all notices of assessment and reassessment received for the last three tax years,
#the party's most recent paystub, showing their earnings to date, or if the party isn't working, then their most recent WCB statement, social assistance statement, or EI statement, and
#business records like financial statements and corporate income tax returns, if the party has a company.

The basic rule of thumb is that a party's income for the purposes of the Guidelines is the amount stated at line 150 of the payor's most recent tax return, although there are important exceptions that apply when a person's income is from self-employment. A party's income includes all of the party's income, not just income from a job. ''Income'' might include bonuses, rental income, profit from stock options, company dividends, Workers Compensation payments, long term or short term disability payments, personal injury awards (that relate to loss of income), pension income, government benefits, interest from an investment, and so forth, as well as employment and self-employment income.

Section 2(3) of the Guidelines requires that the most current income information be used; this can include a calculation of income based on paystub evidence. Most of the time income is based on the most recent tax year, since the income information for that year is complete. This means that there is usually a one-year lag between the amount of support being paid and the payor's income. However, if a payor's current income can be known with certainty, such as if the payor is an employee without bonus or commission income, child support can be determined using the payor's current income.

===Government benefits===

Payments from WCB, Employment Insurance, CPP, Old Age Security, and social assistance all count as income under the Guidelines. If a party is receiving these payments as a temporary substitute for employment income, the party's income may be assessed at their usual income. A temporary period on social assistance, for example, won't entitle a payor to have their income assessed at that unusually low level into the future.

Note that Canada Child Tax Benefits are not considered income for basic child support purposes, but may be taken into account when determining the sharing of special and extraordinary expenses.

===Fluctuating income===

Where a party's income changes from year to year for reasons beyond the party's control, such as fluctuating commission sales or bonuses that are assessed by an employer, the court may take the party's income over the past three years into consideration in setting the payor's income. In certain circumstances, the court may fix the party's income as the ''average'' of their income over the last three years.

===Unexpected losses and gains===

Where a payor has suffered an unexpected loss, such as a corporate loss or an investment loss, or enjoyed an unexpected gain, such as from cashing in RRSPs or selling stock, the court has the discretion to decide to take this into consideration in setting the payor's income, and potentially not consider the loss or gain, if it was a one-time occurrence.

===Court awards===

If a payor has received an award from a civil court proceeding such as for wrongful dismissal or for personal injury, the court may attribute the portion of the award allocated for ''lost wages'' to a payor's income. The whole amount of the award, including the parts relating to pain and suffering, will not be seen as income for the purposes of the Guidelines, just the part intended to compensate for lost wages.

===Windfalls===

Money received from an inheritance, the sale of a house, or a lottery win does not count as income under the Guidelines. Any interest or other investment income earned or that should reasonably be earned from the inheritance or lottery win would count as income.

==Imputing income==

To ''impute'' income means to attribute income to a payor above that which the payor claims they earn, usually for making a support award based on that higher amount. Typically, someone asks the court to impute income to a payor where:

#the payor works in the service industry, for example as a restaurant server or a taxi driver, and receives tip income that is not reported on income tax returns,
#the payor is intentionally unemployed or under-employed (i.e. not working to their full skills and capacity),
#the payor has quit or been fired from their job,
#the payor moves from full- to part-time work without a very good reason,
#the payor is self-employed and either receives unpaid benefits from their company (like a company car, paid meals, or a free cell phone), or doesn't report the full amount of money taken from the company,
#the payor has refused to provide full and complete financial disclosure,
#the payor has or will have income from a trust,
#the payor has hidden or appears to have hidden some of their income, or
#the payor is not using resources at hand that could generate income, such as a vacant house that could be rented out or savings that could be invested.

If the court decides to impute income to a payor, child support will be payable at the Guidelines rate for the higher income. The parties' proportionate responsibility to contribute to the cost of any qualifying special and/or extraordinary expenses may be based on imputed income, including income imputed to the recipient.

The court can decide to impute income for the purposes of calculating child support in other circumstances, such as when the payor is underemployed or unemployed, is income splitting with a new partner, or lives in a place with a lower tax rate than usual.

===Underemployment and unemployment===

Section 19(1) of the Guidelines says that:

<blockquote><tt>The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(e) the spouse's property is not reasonably utilized to generate income;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(f) the spouse has failed to provide income information when under a legal obligation to do so;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(g) the spouse unreasonably deducts expenses from income;</tt></blockquote></blockquote>

In other words, the court may decide that a payor has a different income than that which the payor says they have if:

*the payor has quit a job in order to avoid paying child support,
*the payor has taken lower-paying work than they used to have, or is capable of holding, in order to minimize the amount of child support payable, or
*the payor has tried to reduce their income by claiming unreasonable deductions.

If you are going to make an argument that income should be imputed to someone, you will have to prove that one or more of the conditions described in section 19(1) exist. If a party's underemployment or unemployment is caused by child care responsibilities, the court will not usually impute income.

It's not enough merely to ''argue'' that one of the conditions listed in section 19(1) exist, you have to be able to ''provide evidence'' that the condition exists. The following factors were cited by the court in a 2003 Supreme Court case, ''[http://canlii.ca/t/1pt18 Nahu v. Chertkow]'', 2003 BCSC 1285, in determining whether a payor is intentionally underemployed or unemployed:

*the payor's education, training, and work experience,
*the payor's previous earnings and past borrowing of funds during unemployment,
*the payor's work history,
*the payor's spending patterns and lifestyle,
*the payor's efforts to upgrade their education and work qualifications,
*the nature and quality of the payor's attempts to obtain employment, and
*any evidence that the underemployment or unemployment is motivated by ill will towards the recipient.

This last point, about the payor's ill will, has to do with the idea that the payor is able to earn more but chooses not to. In the 1999 Supreme Court case ''[http://canlii.ca/t/1d2x1 Hanson v. Hanson]'', 1999 CanLII 6307 the court had this to say on the subject:

<blockquote>"1. There is a duty to seek employment in a case where a parent is healthy and there is no reason why the parent cannot work. It is 'no answer for a person liable to support a child to say that he is unemployed and does not intend to seek work or that his potential to earn income is an irrelevant factor' ...</blockquote>
<blockquote><tt>"2. When imputing income on the basis of intentional underemployment, a court must consider what is reasonable under the circumstances. The age, education, experience, skills and health of the parent are factors to be considered in addition to such matters as the availability of work, freedom to relocate and other obligations.</tt></blockquote>
<blockquote><tt>"3. A parent's limited work experience and job skills do not justify a failure to pursue employment that does not require significant skills, or employment in which the necessary skills can be earned on the job. ... [C]ourts have never sanctioned the refusal of a parent to take reasonable steps to support his or her children simply because the parent cannot obtain interesting or highly paid employment.</tt></blockquote>
<blockquote><tt>"4. Persistence in [poorly paid] employment may entitle the court to impute income.</tt></blockquote>
<blockquote><tt>"5. A parent cannot be excused from his or her child support obligations [to pursue] unrealistic or unproductive career aspirations.</tt></blockquote>
<blockquote><tt>"6. As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income."</tt></blockquote>

==="Grossing up" income===

Section 19(1) of the Guidelines also says that:

<blockquote><tt>The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:</tt></blockquote>
<blockquote><blockquote><tt>(b) the spouse is exempt from paying federal or provincial income tax;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax.</tt></blockquote></blockquote>

Under these sections of the Guidelines, payors who have a lower income tax obligation than usual, such as certain First Nations persons living on reserve who might pay no federal taxes, or persons who live in another country with a lower tax rate, can have their income ''grossed up'' to reflect this tax advantage when child support is determined.

The grossing up process essentially involves figuring out the amount of money the payor would have to earn to have the same after-tax income at the tax rates normally applicable to residents of British Columbia. This will result in income being imputed to the payor for the purposes of calculating child support, with a consequent increase in the amount of child support that will be payable.

The math behind grossing up someone's income is a bit complex. Essentially, the idea is to figure out the amount of income the person would have to earn before taxes to receive the amount they earn net of taxes. Think of it like this:

<blockquote>Say Mr. A earns $100,000 per year. As a resident of British Columbia, Mr. A pays income tax at, for example, 40%. This means that Mr. A's income, net of taxes, is $60,000 per year.</blockquote>
<blockquote>Mr. B also earns $100,000 per year. Mr. B, on the other hand, lives in Texas, and has an income tax rate of, for example, 25%. This means that Mr. B's net income is $75,000 per year.</blockquote>
<blockquote>Income for the purposes of the Guidelines would normally be calculated for both Mr. A and Mr. B at a gross income of $100,000. In reality, though, Mr. A has a lot less money after income taxes are paid than Mr. B does. Mr. B actually has a lot more money than Mr. A, and ought to pay child support based on this additional money.</blockquote>
<blockquote>Mr. B's income would be "grossed up" to figure out what income he would have to earn in BC to have an after-tax income of $75,000. Since he would pay income tax at a rate of 40% here, the court would consider Mr. B to have a gross income of $125,000 for the purposes of child support, since tax of 40% on a gross income of $125,000 leaves a net income of $75,000.</blockquote>
<blockquote>Mr. A and Mr. B both have incomes of $100,000 per year. Mr. A will pay his base amount of support at that income, but Mr. B will pay at a grossed up income of $125,000 to reflect what he would have to earn in BC to have the after-tax income of $75,000 he has living in Texas.</blockquote>

Grossing up a payor's income can be a bit tricky, and requires a knowledge of the income tax laws applicable to First Nations payors earning income on First Nations reserve lands and to payors earning income outside of Canada. If you have a problem in this area, you should consider hiring a lawyer to help you.

==Child support and parents' new partners==

Parents and guardians usually move on with their lives after the relationship that produced their children has ended. They will meet new people and enter into new romantic relationships. Parents and their new partners are often concerned about how their relationship will impact on the payor parent's obligation to pay child support. The parent might be concerned to know whether the new partner's income will be added to their income in calculating child support. The new partner will want to know whether they are now on the hook for support and must contribute to the parent's payments or towards the parent's children.

===Basic child support payments===

The income of a parent's new partner is not relevant to the payment of basic child support, nor is a payor's new partner obliged to pay child support. The new partner will not inherit the child support obligation in the event the payor dies, and the recipient of support won't be able to pursue the new partner for continuing or supplemental payments. If the new partner and the parent separate, however, the new partner might become obligated to pay child support as a result of them being a stepparent to the children. See the section that deals with stepparents’ obligations.

For the purposes of calculating the base amount of child support a parent must pay — that is, the parent's basic obligation under the Child Support Guidelines, before special and/or extraordinary expenses — the court will only look at the parent's income. The income of the new partner is not taken into account.

===Undue hardship claims===

Section 10 of the Child Support Guidelines allows parties to argue that the base amount of support set out in the Guidelines tables is too low or too high and would cause ''undue hardship'' if the table amount was paid. Payors will claim that the base amount is too high, while recipients will argue that it is too low. This chapter discusses exceptions to the Guidelines more thoroughly in the section, [[Exceptions to the Child Support Guidelines]].

If undue hardship is claimed, the court will look at the standard of living of each parent's ''household'', rather than the standard of living of each parent alone. This means that the court, in deciding whether there is undue hardship, will look at the total expenses and total income of each parent's household, including the income of each parent's new partner. This will not cause the new partner to be liable to pay support; it just means that their income will be taken into consideration to see whether the usual table amount of support payable is unduly high or low.

===Incomes in excess of $150,000===

The tables provided in the Child Support Guidelines set out the amount of support owing by payors who earn up to $150,000 per year. The Guidelines provide a mathematical formula for figuring out what parents earning more than $150,000 must pay, while payors earning less than $12,000 pay nothing.

Section 4 of the Guidelines deals with parents who earn more than $150,000 each year. Under this section, the income (or lack of income) of a parent's new partner may be taken into account in deciding whether the formula gives a fair result. The calculation of support owing by parents with incomes in excess of $150,000 is discussed in more detail in [[Exceptions to the Child Support Guidelines]].

Section 4(b)(ii) of the Guidelines says that when considering the amount payable above the basic amount for a payor whose annual income is $150,000, the court should apply the formula but take into account:

<blockquote><tt>... the condition, means, needs and other circumstances of the children who are entitled to support and the financial ability of each spouse to contribute to the support of the children ...</tt></blockquote>

In other words, the income of a new partner can be taken into account under the general heading of "financial ability" of a spouse in determining whether the formula amount is fair.

===Special expenses===

Section 7 of the Guidelines allows for sharing of the children's special and/or extraordinary expenses between the parents, as discussed above. In figuring out how much a parent should have to contribute to these expenses, the court is required to take into account, among other things, "the necessity and reasonableness of the expense in relation to the means of the spouses and those of the child."

A parent's new partner's income can be taken into consideration in assessing the "means of the spouses," which is exactly what the court did in the 2000 Supreme Court case of ''[http://canlii.ca/t/1fm6b Baum v. Baum]'', 2000 BCSC 1835. In that decision, the court held that ''means of the spouses'' should be interpreted broadly as including all of the means available to the paying parent, including the financial contribution of their new partner.

Again, the new partner will not be responsible to pay child support or a share of the children's special expenses as a result; only the payor's obligation will be affected by the new partner's income.

===Death of the payor===

A number of readers have asked whether they will have any responsibility to make child support payments if their partner, who is a parent or guardian under an obligation to pay child support, dies. The simple answer to that question is no, they will have no responsibility. The fact that they are in a relationship with a paying parent doesn't necessarily mean that they will have a duty to keep paying support if that parent dies.

While that is a good general rule, and one you can probably rely on, it is possible that a claim could be made against the new partner as a ''stepparent'' of the child under the ''[[Family Law Act]]''. The act says that all parents, guardians, and stepparents are required to support their children, but section 147 says that stepparents who are obliged to pay child support must have contributed to the support of the child for at least one year. In other words, a new partner who marries a paying parent may have an obligation if they have contributed to the support of the child. Again, while this is technically possible, orders against new partners following the death of the paying parent are extremely rare.

The deceased parent’s estate may, however, be liable to pay child support and a claim could be made against the estate under the ''Wills Estates and Succession Act'', but this is beyond the scope of this chapter.

==Agreements and orders for child support==

===Orders for child support===

An order for child support typically contains the following elements:

*a statement of the names and birthdates of the children for whom support will be paid,
*a declaration of the payor's income,
*an order as to the Guidelines amount payable,
*an order about the exchange of income information, and
*a statement of the date on which child support will no longer be payable.

These elements look like this in a typical order made under the ''[[Divorce Act]]'':

<blockquote><tt>UPON the Court being advised that the children of the marriage are</tt></blockquote>
<blockquote><blockquote><tt>Jesse Ann Doe, born on 1 March 1998, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>Sandra Alexandra Doe, born on 1 April 2000;</tt></blockquote></blockquote>
<blockquote><tt>AND UPON the Court finding that the Claimant's income for the purposes of the Child Support Guidelines is $72,000.00 per year;</tt></blockquote>
<blockquote><tt>THIS COURT ORDERS that:</tt></blockquote>
<blockquote><tt>1. The Claimant, Jane Doe, payor, shall pay to the Respondent, John Doe, recipient, the sum of $1,092 per month, commencing on the first day of April 2013 and continuing on the first day of each and every month thereafter until such time as the children are no longer "children of the marriage" as defined by the ''Divorce Act''; and,</tt></blockquote>
<blockquote><tt>2. The Claimant shall provide to the Respondent a copy of her tax return on the first day of May 2014 and continuing on the first day of May for each and every year thereafter until such time as the children are no longer "children of the marriage," and the Claimant shall provide to the Respondent a copy of each Canada Revenue Agency Notice of Assessment or Notice of Reassessment within two weeks of her receipt of the same, and adjusting child support accordingly, and continuing until such time as the children are no longer "children of the marriage." </tt></blockquote>

Under the ''[[Family Law Act]]'', the order would look like this:

<blockquote><tt>UPON the Court being advised that the children are</tt></blockquote>
<blockquote><blockquote><tt>Jesse Ann Doe, born on 1 March 2008, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>Sandra Alexandra Doe, born on 1 April 2010;</tt></blockquote></blockquote>
<blockquote><tt>AND UPON the Court finding that the Claimant's income for the purposes of the Child Support Guidelines is $72,000.00 per year;</tt></blockquote>
<blockquote><tt>THIS COURT ORDERS that:</tt></blockquote>
<blockquote><tt>1. The Claimant, Jane Doe, payor, shall pay to the Respondent, John Doe, recipient, the sum of $1,092 per month, commencing on the first day of April 2018 and continuing on the first day of each and every month thereafter until such time as the children are no longer "children" as defined by the ''Family Law Act''; and,</tt></blockquote>
<blockquote><tt>2. The Claimant shall provide to the Respondent a copy of her tax return on the first day of May 2019 and continuing on the first day of May for each and every year thereafter until such time as the children are no longer "children" as defined by the ''Family Law Act'', and the Claimant shall provide to the Respondent a copy of each Canada Revenue Agency Notice of Assessment or Notice of Reassessment within two weeks of her receipt of the same, and adjusting child support accordingly, and continuing until such time as the children are no longer "children." </tt></blockquote>

The point of the last clause of each of these sample orders is to require the payor to annually provide evidence of their income to the recipient so that both parties can decide whether an increase or a decrease in the amount payable is appropriate.

If the Order is to include special and extraordinary expenses, the Order will usually include:
* the recipient spouse’s income (including any spousal support they might be receiving),
* the percentage contribution due for each parent to cover special expenses, and
* a requirement that both parents exchange income information each year.

Disclosure of income by both parents is also required in shared and split custody cases.

It is a good idea to specify in a child support order whether the order is made under the ''Divorce Act'' or the ''Family Law Act'' as it could have an effect on a future variation application. For more information, see the case of [http://canlii.ca/t/fspd1 ''Yu v. Jordan''], 2012 BCCA 367.

'''Important changes''' 
As a result of the changes to the ''Divorce Act'', the language used in the Child Support Guidelines has also changed. "Split custody" is now known as ''split parenting time'' and "shared custody" is now known as ''shared parenting time''.

===Agreements for child support===

Separation agreements, like all family law agreements, have two types of statements. The ''recitals'' are statements that talk about the parties and their relationship. They explain the parties' background and why they signed their agreement. The ''operative clauses'' of an agreement are statements that say what each party has promised to do.

The recitals to a separation agreement about child support would include statements like these:

<blockquote><tt>D. Jane Doe is a plumber working for ABC Plumbing, earning about $72,000 per year.</tt></blockquote>
<blockquote><tt>E. John Doe is a graphic artist working for Sunny Skies Art and Design, earning about $40,000 per year.</tt></blockquote>
<blockquote><tt>F. Jane and John have two children, Jesse, who is 15, and Sandra who is 13.</tt></blockquote>

The operative clauses about child support might say something like this:

<blockquote><tt>15. Jane will pay child support to John in the amount of $1,092 per month, beginning on 1 April 2013 and continuing on the first day of each month thereafter while Jesse and Sandra remain "children" as defined by the ''Family Law Act''.</tt></blockquote>
<blockquote><tt>16. Jane will give John a copy of her tax return by no later than May 31 each year and will also give John a copy of each Canada Revenue Agency Notice of Assessment or Notice of Reassessment within two weeks of receiving it each year for so long as the children are still "children" as defined by the ''Family Law Act''.</tt></blockquote>

Both court orders and separation agreements should include the children’s full names, birth dates, the amounts of basic child support and special expenses, the date for the commencement of those payments, and the Act under which the child support order is made. Those details are important so that the court orders and agreements can be enforced.

==Child support tables and calculators==

The [http://laws-lois.justice.gc.ca/eng/regulations/SOR-97-175/page-11.html#h-15 simplified Child Support Guidelines Tables for British Columbia] are available from the website of the federal Department of Justice. The federal government has published an [http://www.justice.gc.ca/eng/fl-df/child-enfant/look-rech.asp online child support calculator].

The provincial government also operates the BC Child Support Info Line which offers free information about child support and the child support tables. Contact the Info Line at:

*Lower Mainland: 604-660-2192 
*Outside the Lower Mainland: 888-216-2211


==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [http://canlii.ca/t/80mh Child Support Guidelines]

===Links===

* [http://laws-lois.justice.gc.ca/eng/regulations/SOR-97-175/page-11.html#h-15 Child Support Guidelines Tables for British Columbia]
* [http://www.justice.gc.ca/eng/fl-df/child-enfant/look-rech.asp Online Child Support Calculator]
* [http://www.clicklaw.bc.ca/resource/1175 BC Ministry of Attorney General's FMEP Child Support Calculator]
* [http://www.clicklaw.bc.ca/resource/1235 Dial-A-Law Script "Child support"]
* [http://www.clicklaw.bc.ca/resource/1618 Legal Services Society's Family Law website's information page "Child & spousal support"]
** Under "Child support", see "What are the child support guidelines and how do they work?"

{{REVIEWED | reviewer = [[JP Boyd]], March 6, 2021}}

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[[Category:JP Boyd on Family Law]]

Child Support Guidelines

2021-03-06T21:17:51Z

Jpboyd: /* Basic principles */

{{JP Boyd on Family Law TOC|expanded = childsupport}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bill Murphy-Dyson]] and [[Inga Phillips]]
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{{Clicklawbadge
| resourcetype = more resources on 
| link = [https://www.clicklaw.bc.ca/global/search?k=child%20support child support]
}}Often simply referred to as the Guidelines, the [http://canlii.ca/t/80mh Child Support Guidelines], SOR/97-175, is a federal regulation, adopted by all of the provinces except Quebec, that describes the rules that the courts must apply when making an order for child support.

The most important feature of the Guidelines is the child support tables that fix the amount of support payments according to both the annual income of the person paying support and the number of children the support is to be paid for.

The Guidelines cover every aspect of child support, including the calculation of income, how children's special expenses are paid for, the amount of support payable when the parents have the children for an almost equal amount of time, and the amount payable when one or more of the children live full-time with each parent.

This section talks about the basic principles of the Guidelines, the sharing of special and extraordinary expenses, the calculation of income, ''imputing'' income, and the circumstances in which the income of a parent's or guardian's new partner may be taken into account. It also provides an example of the contents of a typical child support order.

'''Important changes''' 
Look for explanations under this heading to read about recent changes to family law affecting the information provided in this section.

==Basic principles==

It used to be that the party claiming child support, the ''recipient'', had to show the amount of support the child needed and prove that the person being asked to pay support, the ''payor'', had the means to pay that amount. Now, the amount of a child support order or an agreement for child support is based on the amounts set out in the tables attached to the Child Support Guidelines. The Guidelines have generally reduced the amount of disagreement between parents about the amount of child support, whether they're in court arguing about an order, or are negotiating a separation agreement. Most of the disagreement now tends to be about either the income of the payor or child support for children over 19.

The Guidelines tables were most recently adjusted on November 22, 2017. If you are relying on a printed version of the child support tables to figure out how much child support should be paid, make sure that your materials reflect the new table amounts, effective as of November 22, 2017.

The Guidelines' key presumption is set out in section 3(1):

<blockquote><tt>Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority is</tt></blockquote>
<blockquote><blockquote><tt>(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the amount, if any, determined under section 7.</tt></blockquote></blockquote>

This is, however, only a presumption, and can be challenged or ''rebutted'', as is discussed in this chapter's next section, [[Exceptions to the Child Support Guidelines]]. In the vast majority of cases, however, the amount of child support payable is calculated using the payor's gross (before tax) yearly income at the time the order is made.

Over time, of course, the payor's income may go up or down. Both the payor and the recipient can make an application to change the original order or the agreement so that the amount of child support reflects the payor's current income. The payor would make the application if their income has fallen, while the recipient would make the application when the payor's income has increased. To avoid a situation where parents are continually making trips back to court to seek an adjustment of child support, it's a good idea to include a term in the court order or agreement that requires both parents to regularly exchange income information, usually every year after taxes have been filed, so that child support can be adjusted from time to time without having to go to court.

Another important presumption in the Guidelines is that the amount of support payable is set according to the number of children to which each particular support order relates. If a payor has two children from one relationship and three from another, the first order will be based on the Guidelines amount for two children and the second will be based on the amount for three children. The payor's obligation is not based on the Guidelines amount for the total number of five children.

Finally, the amount of support payable is based only on the payor's income, unless there is a shared or a split parenting arrangement, in which case both parents’ incomes are taken into account.

'''Important changes''' 
As a result of the changes to the ''Divorce Act'', the language used in the Child Support Guidelines has also changed. "Split custody" is now known as ''split parenting time'' and "shared custody" is now known as ''shared parenting time''.

==Special expenses and extraordinary expenses==

The basic amount of child support a parent pays is presumed to cover a very wide scope of common day-to-day expenses associated with raising children: the child's share of lodging, utilities, shoes, groceries, diapers, clothes, toothpaste, school field trip fees, entertainment, haircuts, and so forth. The basic amount of support is not always presumed to include certain other kinds of expenses that are infrequent but expensive, such as the cost of daycare or orthodontic work. In addition to the basic amount of support payable, the parents may also be required to cover their respective portions of these other expenses, so long as they qualify as ''special and/or extraordinary expenses'' under the Guidelines.

Special and/or extraordinary expenses are defined in section 7(1) of the Guidelines:

<blockquote><tt>(a) child care expenses incurred as a result of the custodial parent's employment, illness, disability or education or training for employment;</tt></blockquote>
<blockquote><tt>(b) that portion of the medical and dental insurance premiums attributable to the child;</tt></blockquote>
<blockquote><tt>(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;</tt></blockquote>
<blockquote><tt>(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child's particular needs;</tt></blockquote>
<blockquote><tt>(e) expenses for post-secondary education; and</tt></blockquote>
<blockquote><tt>(f) extraordinary expenses for extracurricular activities.</tt></blockquote>

Section 7(1.1) clarifies (1)(d) and (1)(f), and says that for these subsections "extraordinary expenses" means:

<blockquote><tt>(a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or</tt></blockquote>
<blockquote><tt>(b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account</tt></blockquote>
<blockquote><blockquote><tt>(i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) the nature and number of the educational programs and extracurricular activities,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(iii) any special needs and talents of the child or children,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(iv) the overall cost of the programs and activities, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(v) any other similar factor that the court considers relevant.</tt></blockquote></blockquote>

Special expenses are shared between the payor and recipient in proportion to their incomes. These provisions of the Guidelines are intended to ensure that, if either parent incurs significant additional expenses for the child's needs or activities, ''both'' parents will share the cost on the principle that it is in children's best interests to have such needs met or to participate in such activities.

If an expense is found to qualify as a special and/or extraordinary expense under the section 7(1) and section 7(1.1) definitions, the court may make an order that both parties pay additional amounts, in addition to the usual Guidelines basic amount of support, to cover all or a portion of the cost of the expense.

===Qualifying expenses as special expenses and extraordinary expenses===

Just because an expense appears to fall into one of the categories listed in section 7 of the Guidelines doesn't necessarily make it a shareable special and/or extraordinary expense. As well, just because an expense has been incurred doesn't mean it will automatically be shared; if you're not sure whether a planned expense will qualify as a shareable special expense, get some legal advice or talk to the other parent first to see if they will agree to share in the expense.

An expense that may not qualify as a special expense for higher-earning families may qualify as such for low-income families. For example, if guideline child support of $2,000 for one child is being paid, the $200 cost of soccer registration will probably not be considered a special expense (and will have to be paid from the $2,000 basic child support by the recipient parent), but that same $200 expense may be a special expense if only $500 per month Guideline support is being paid (and will therefore have to be shared between the parents).

According to section 7(1) of the Guidelines, the court must not only find that an expense fits into one of the categories listed above, but also consider:

*the "reasonableness of the expense in relation to the means of the spouses and those of the child and to the family's spending pattern prior to the separation," and
*the necessity of the expense in relation to the child's best interests,

The court must bear in mind the special test for primary- and secondary-school education and extracurricular activities required by section 7(1.1). Here's a helpful summary from a 2010 case from our Supreme Court, ''[http://canlii.ca/t/2dpzr Piper v. Piper]'', 2010 BCSC 1718:

<blockquote>"Under section 7(1.1)(a) the court is first required to consider whether the income of the requesting spouse, including any child support received, can reasonably cover the expense claimed or whether the expense exceeds her ability to pay without any consideration of the factors enumerated in section 7(1.1)(b). If the income cannot cover the expense, the expense is deemed to be extraordinary and the court's next analysis turns to consideration of the factors enumerated in section 7(1) which, of course, brings into consideration the parties' means and pre-separation spending pattern."</blockquote>

====Reasonableness====

When the court is asked to consider a particular expense, it should first decide whether the expense is necessary and reasonable according to the parties' financial resources. For lower income parents, fewer expenses will be considered reasonable.

*Daycare will almost always be considered necessary and reasonable, if that daycare is incurred as a result of the parent’s employment, illness, disability, or education or training for employment. Daycare subsidies will be taken into account when apportioning daycare expenses between the parents, as will tax-deductibility.

For parents with more money, more expenses may qualify as reasonable:

*Cosmetic orthodontic work.
*Dance, music, and art classes, swimming lessons, and summer day camps.
*Less expensive team sports, like soccer, baseball, and basketball.
*Basic high-school graduation costs, such as tickets and gown or tuxedo rentals.
*Basic post-secondary education costs, such as tuition fees for a local college or university, student fees, and textbook costs.

For parents with lots of money, almost every big-ticket expense is probably going to be considered reasonable:

*Multiple week summer camps and trips abroad.
*Private school fees.
*Expensive team sports, like hockey and horseback polo, and expensive solo sports like skiing and scuba diving.
*Post-secondary education costs, including meal plans and residence costs.

====Necessity====

Sometimes the needs of the child will outweigh the cost of the expense to the child, and an expense will qualify as a special expense whether at a hardship to the parents or not.

*Medical costs, including costs that aren't covered by MSP such as autism therapies.
*Counselling services, where the counselling is necessary for the child's mental health.
*Tutoring services, where the child needs the extra help to get through school.
*Lessons or coaching in arts and sports, where the child has a special talent that should be nurtured.

A driver training course, for example, is unlikely to qualify as a special expense under the heading of necessity, since you can learn to drive and obtain a driver's license without it, as was decided in a 2011 Supreme Court case, ''[http://canlii.ca/t/2fzs4 M.S.J. v. J.M.J.]'', 2011 BCSC 245. On the other hand, if a semester with Sylvan Learning Centre will mean the difference between passing or failing a grade, the tutoring would probably be considered a necessity.

===Sharing qualifying expenses===

Under section 7(2) of the Guidelines, expenses that qualify as special and/or extraordinary expenses are generally shared by the parties in proportion to their incomes, after deducting any contribution to those costs made by the child or the government, through things like grants or tax deductions. The idea here is to look at the total pot of money available to the child — the income of the payor plus the income of the recipient — and to figure out how much each party's share of that pot is, and then pay the child's special expenses according to each parent's share.

The easiest way to calculate a parent's ''proportionate share'' is to add the incomes of both parents together and then figure out what percentage each income is of the total. Here are two examples.

:'''Example #1'''

<blockquote>If one parent earns $75,000 per year and the other $25,000, the total pot available to the child is $100,000. Of that sum, the first parent contributes 75% and the second parent 25%. As a result, the first parent would be ordered to pay 75% of qualifying expenses, and the second parent 25%.
</blockquote>

:'''Example #2'''

<blockquote>If one parent earns $48,000 per year and the other $62,000, the total of their incomes is $110,000. The first parent's income is 43.6% of the total, and the other parent's income is 56.4% of the total. The first parent would have to pay 43.6% of all qualifying special expenses, and the second would have to pay 54.6% of those expenses.</blockquote>

The cost that is being shared is the ''net cost'' of an expense, in other words, the amount that is actually being paid after any third-party contributions have been applied to reduce the expense. Daycare costs, for example, are sometimes subsidized for lower income earners and the amount paid by a parent is deductible from their income. It is the net expense after deducting any subsidy and any tax saving that is to be shared.

Note that the income of a parent's new spouse or partner may sometimes be taken into consideration in determining a parent's "means" in sharing a special expense. In the 2000 Supreme Court case of ''[http://canlii.ca/t/1fm6b Baum v. Baum]'', 2000 BCSC 1835, the court held that the section 7(1) consideration of the "means of the spouses" should be interpreted broadly as including all sources of income available to the paying parent, including the contribution of a parent's new partner. Also see the case of [http://canlii.ca/t/53kt ''Scott v. Scott''], 2000 BCSC 844.

==The calculation of income==

Before the court even looks at the Child Support Guidelines tables it has to decide what the payor's income is. The tables set out the amount of child support payable according to the payor's income. The Guidelines require that the court use the most up-to-date information available. Sections 15 to 20 of the Guidelines set out the rules the court must apply in determining income.

According to Rule 5-1 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules] and Rule 4 of the [http://canlii.ca/t/85pb Provincial Court (Family) Rules], when someone makes an application for child support, the payor or both the payor and recipient are required to disclose their financial circumstances using a court form called a Financial Statement. Financial statements require each party to set out their income and expenses, and assets and liabilities. Certain income documents must be attached to a financial statement, typically:

#the last three years' tax returns (what's required is the complete income tax and benefit return, not tax return "summaries" or "informations"),
#all notices of assessment and reassessment received for the last three tax years,
#the party's most recent paystub, showing their earnings to date, or if the party isn't working, then their most recent WCB statement, social assistance statement, or EI statement, and
#business records like financial statements and corporate income tax returns, if the party has a company.

The basic rule of thumb is that a party's income for the purposes of the Guidelines is the amount stated at line 150 of the payor's most recent tax return, although there are important exceptions that apply when a person's income is from self-employment. A party's income includes all of the party's income, not just income from a job. ''Income'' might include bonuses, rental income, profit from stock options, company dividends, Workers Compensation payments, long term or short term disability payments, personal injury awards (that relate to loss of income), pension income, government benefits, interest from an investment, and so forth, as well as employment and self-employment income.

Section 2(3) of the Guidelines requires that the most current income information be used; this can include a calculation of income based on paystub evidence. Most of the time income is based on the most recent tax year, since the income information for that year is complete. This means that there is usually a one-year lag between the amount of support being paid and the payor's income. However, if a payor's current income can be known with certainty, such as if the payor is an employee without bonus or commission income, child support can be determined using the payor's current income.

===Government benefits===

Payments from WCB, Employment Insurance, CPP, Old Age Security, and social assistance all count as income under the Guidelines. If a party is receiving these payments as a temporary substitute for employment income, the party's income may be assessed at their usual income. A temporary period on social assistance, for example, won't entitle a payor to have their income assessed at that unusually low level into the future.

Note that Canada Child Tax Benefits are not considered income for basic child support purposes, but may be taken into account when determining the sharing of special and extraordinary expenses.

===Fluctuating income===

Where a party's income changes from year to year for reasons beyond the party's control, such as fluctuating commission sales or bonuses that are assessed by an employer, the court may take the party's income over the past three years into consideration in setting the payor's income. In certain circumstances, the court may fix the party's income as the ''average'' of their income over the last three years.

===Unexpected losses and gains===

Where a payor has suffered an unexpected loss, such as a corporate loss or an investment loss, or enjoyed an unexpected gain, such as from cashing in RRSPs or selling stock, the court has the discretion to decide to take this into consideration in setting the payor's income, and potentially not consider the loss or gain, if it was a one-time occurrence.

===Court awards===

If a payor has received an award from a civil court proceeding such as for wrongful dismissal or for personal injury, the court may attribute the portion of the award allocated for ''lost wages'' to a payor's income. The whole amount of the award, including the parts relating to pain and suffering, will not be seen as income for the purposes of the Guidelines, just the part intended to compensate for lost wages.

===Windfalls===

Money received from an inheritance, the sale of a house, or a lottery win does not count as income under the Guidelines. Any interest or other investment income earned or that should reasonably be earned from the inheritance or lottery win would count as income.

==Imputing income==

To ''impute'' income means to attribute income to a payor above that which the payor claims they earn, usually for making a support award based on that higher amount. Typically, someone asks the court to impute income to a payor where:

#the payor works in the service industry, for example as a restaurant server or a taxi driver, and receives tip income that is not reported on income tax returns,
#the payor is intentionally unemployed or under-employed (i.e. not working to their full skills and capacity),
#the payor has quit or been fired from their job,
#the payor moves from full- to part-time work without a very good reason,
#the payor is self-employed and either receives unpaid benefits from their company (like a company car, paid meals, or a free cell phone), or doesn't report the full amount of money taken from the company,
#the payor has refused to provide full and complete financial disclosure,
#the payor has or will have income from a trust,
#the payor has hidden or appears to have hidden some of their income, or
#the payor is not using resources at hand that could generate income, such as a vacant house that could be rented out or savings that could be invested.

If the court decides to impute income to a payor, child support will be payable at the Guidelines rate for the higher income. The parties' proportionate responsibility to contribute to the cost of any qualifying special and/or extraordinary expenses may be based on imputed income, including income imputed to the recipient.

The court can decide to impute income for the purposes of calculating child support in other circumstances, such as when the payor is underemployed or unemployed, is income splitting with a new partner, or lives in a place with a lower tax rate than usual.

===Underemployment and unemployment===

Section 19(1) of the Guidelines says that:

<blockquote><tt>The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(e) the spouse's property is not reasonably utilized to generate income;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(f) the spouse has failed to provide income information when under a legal obligation to do so;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(g) the spouse unreasonably deducts expenses from income;</tt></blockquote></blockquote>

In other words, the court may decide that a payor has a different income than that which the payor says they have if:

*the payor has quit a job in order to avoid paying child support,
*the payor has taken lower-paying work than they used to have, or is capable of holding, in order to minimize the amount of child support payable, or
*the payor has tried to reduce their income by claiming unreasonable deductions.

If you are going to make an argument that income should be imputed to someone, you will have to prove that one or more of the conditions described in section 19(1) exist. If a party's underemployment or unemployment is caused by child care responsibilities, the court will not usually impute income.

It's not enough merely to ''argue'' that one of the conditions listed in section 19(1) exist, you have to be able to ''provide evidence'' that the condition exists. The following factors were cited by the court in a 2003 Supreme Court case, ''[http://canlii.ca/t/1pt18 Nahu v. Chertkow]'', 2003 BCSC 1285, in determining whether a payor is intentionally underemployed or unemployed:

*the payor's education, training, and work experience,
*the payor's previous earnings and past borrowing of funds during unemployment,
*the payor's work history,
*the payor's spending patterns and lifestyle,
*the payor's efforts to upgrade their education and work qualifications,
*the nature and quality of the payor's attempts to obtain employment, and
*any evidence that the underemployment or unemployment is motivated by ill will towards the recipient.

This last point, about the payor's ill will, has to do with the idea that the payor is able to earn more but chooses not to. In the 1999 Supreme Court case ''[http://canlii.ca/t/1d2x1 Hanson v. Hanson]'', 1999 CanLII 6307 the court had this to say on the subject:

<blockquote>"1. There is a duty to seek employment in a case where a parent is healthy and there is no reason why the parent cannot work. It is 'no answer for a person liable to support a child to say that he is unemployed and does not intend to seek work or that his potential to earn income is an irrelevant factor' ...</blockquote>
<blockquote><tt>"2. When imputing income on the basis of intentional underemployment, a court must consider what is reasonable under the circumstances. The age, education, experience, skills and health of the parent are factors to be considered in addition to such matters as the availability of work, freedom to relocate and other obligations.</tt></blockquote>
<blockquote><tt>"3. A parent's limited work experience and job skills do not justify a failure to pursue employment that does not require significant skills, or employment in which the necessary skills can be earned on the job. ... [C]ourts have never sanctioned the refusal of a parent to take reasonable steps to support his or her children simply because the parent cannot obtain interesting or highly paid employment.</tt></blockquote>
<blockquote><tt>"4. Persistence in [poorly paid] employment may entitle the court to impute income.</tt></blockquote>
<blockquote><tt>"5. A parent cannot be excused from his or her child support obligations [to pursue] unrealistic or unproductive career aspirations.</tt></blockquote>
<blockquote><tt>"6. As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income."</tt></blockquote>

==="Grossing up" income===

Section 19(1) of the Guidelines also says that:

<blockquote><tt>The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:</tt></blockquote>
<blockquote><blockquote><tt>(b) the spouse is exempt from paying federal or provincial income tax;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax.</tt></blockquote></blockquote>

Under these sections of the Guidelines, payors who have a lower income tax obligation than usual, such as certain First Nations persons living on reserve who might pay no federal taxes, or persons who live in another country with a lower tax rate, can have their income ''grossed up'' to reflect this tax advantage when child support is determined.

The grossing up process essentially involves figuring out the amount of money the payor would have to earn to have the same after-tax income at the tax rates normally applicable to residents of British Columbia. This will result in income being imputed to the payor for the purposes of calculating child support, with a consequent increase in the amount of child support that will be payable.

The math behind grossing up someone's income is a bit complex. Essentially, the idea is to figure out the amount of income the person would have to earn before taxes to receive the amount they earn net of taxes. Think of it like this:

<blockquote>Say Mr. A earns $100,000 per year. As a resident of British Columbia, Mr. A pays income tax at, for example, 40%. This means that Mr. A's income, net of taxes, is $60,000 per year.</blockquote>
<blockquote>Mr. B also earns $100,000 per year. Mr. B, on the other hand, lives in Texas, and has an income tax rate of, for example, 25%. This means that Mr. B's net income is $75,000 per year.</blockquote>
<blockquote>Income for the purposes of the Guidelines would normally be calculated for both Mr. A and Mr. B at a gross income of $100,000. In reality, though, Mr. A has a lot less money after income taxes are paid than Mr. B does. Mr. B actually has a lot more money than Mr. A, and ought to pay child support based on this additional money.</blockquote>
<blockquote>Mr. B's income would be "grossed up" to figure out what income he would have to earn in BC to have an after-tax income of $75,000. Since he would pay income tax at a rate of 40% here, the court would consider Mr. B to have a gross income of $125,000 for the purposes of child support, since tax of 40% on a gross income of $125,000 leaves a net income of $75,000.</blockquote>
<blockquote>Mr. A and Mr. B both have incomes of $100,000 per year. Mr. A will pay his base amount of support at that income, but Mr. B will pay at a grossed up income of $125,000 to reflect what he would have to earn in BC to have the after-tax income of $75,000 he has living in Texas.</blockquote>

Grossing up a payor's income can be a bit tricky, and requires a knowledge of the income tax laws applicable to First Nations payors earning income on First Nations reserve lands and to payors earning income outside of Canada. If you have a problem in this area, you should consider hiring a lawyer to help you.

==Child support and parents' new partners==

Parents and guardians usually move on with their lives after the relationship that produced their children has ended. They will meet new people and enter into new romantic relationships. Parents and their new partners are often concerned about how their relationship will impact on the payor parent's obligation to pay child support. The parent might be concerned to know whether the new partner's income will be added to their income in calculating child support. The new partner will want to know whether they are now on the hook for support and must contribute to the parent's payments or towards the parent's children.

===Basic child support payments===

The income of a parent's new partner is not relevant to the payment of basic child support, nor is a payor's new partner obliged to pay child support. The new partner will not inherit the child support obligation in the event the payor dies, and the recipient of support won't be able to pursue the new partner for continuing or supplemental payments. If the new partner and the parent separate, however, the new partner might become obligated to pay child support as a result of them being a stepparent to the children. See the section that deals with stepparents’ obligations.

For the purposes of calculating the base amount of child support a parent must pay — that is, the parent's basic obligation under the Child Support Guidelines, before special and/or extraordinary expenses — the court will only look at the parent's income. The income of the new partner is not taken into account.

===Undue hardship claims===

Section 10 of the Child Support Guidelines allows parties to argue that the base amount of support set out in the Guidelines tables is too low or too high and would cause ''undue hardship'' if the table amount was paid. Payors will claim that the base amount is too high, while recipients will argue that it is too low. This chapter discusses exceptions to the Guidelines more thoroughly in the section, [[Exceptions to the Child Support Guidelines]].

If undue hardship is claimed, the court will look at the standard of living of each parent's ''household'', rather than the standard of living of each parent alone. This means that the court, in deciding whether there is undue hardship, will look at the total expenses and total income of each parent's household, including the income of each parent's new partner. This will not cause the new partner to be liable to pay support; it just means that their income will be taken into consideration to see whether the usual table amount of support payable is unduly high or low.

===Incomes in excess of $150,000===

The tables provided in the Child Support Guidelines set out the amount of support owing by payors who earn up to $150,000 per year. The Guidelines provide a mathematical formula for figuring out what parents earning more than $150,000 must pay, while payors earning less than $12,000 pay nothing.

Section 4 of the Guidelines deals with parents who earn more than $150,000 each year. Under this section, the income (or lack of income) of a parent's new partner may be taken into account in deciding whether the formula gives a fair result. The calculation of support owing by parents with incomes in excess of $150,000 is discussed in more detail in [[Exceptions to the Child Support Guidelines]].

Section 4(b)(ii) of the Guidelines says that when considering the amount payable above the basic amount for a payor whose annual income is $150,000, the court should apply the formula but take into account:

<blockquote><tt>... the condition, means, needs and other circumstances of the children who are entitled to support and the financial ability of each spouse to contribute to the support of the children ...</tt></blockquote>

In other words, the income of a new partner can be taken into account under the general heading of "financial ability" of a spouse in determining whether the formula amount is fair.

===Special expenses===

Section 7 of the Guidelines allows for sharing of the children's special and/or extraordinary expenses between the parents, as discussed above. In figuring out how much a parent should have to contribute to these expenses, the court is required to take into account, among other things, "the necessity and reasonableness of the expense in relation to the means of the spouses and those of the child."

A parent's new partner's income can be taken into consideration in assessing the "means of the spouses," which is exactly what the court did in the 2000 Supreme Court case of ''[http://canlii.ca/t/1fm6b Baum v. Baum]'', 2000 BCSC 1835. In that decision, the court held that ''means of the spouses'' should be interpreted broadly as including all of the means available to the paying parent, including the financial contribution of their new partner.

Again, the new partner will not be responsible to pay child support or a share of the children's special expenses as a result; only the payor's obligation will be affected by the new partner's income.

===Death of the payor===

A number of readers have asked whether they will have any responsibility to make child support payments if their partner, who is a parent or guardian under an obligation to pay child support, dies. The simple answer to that question is no, they will have no responsibility. The fact that they are in a relationship with a paying parent doesn't necessarily mean that they will have a duty to keep paying support if that parent dies.

While that is a good general rule, and one you can probably rely on, it is possible that a claim could be made against the new partner as a ''stepparent'' of the child under the ''[[Family Law Act]]''. The act says that all parents, guardians, and stepparents are required to support their children, but section 147 says that stepparents who are obliged to pay child support must have contributed to the support of the child for at least one year. In other words, a new partner who marries a paying parent may have an obligation if they have contributed to the support of the child. Again, while this is technically possible, orders against new partners following the death of the paying parent are extremely rare.

The deceased parent’s estate may, however, be liable to pay child support and a claim could be made against the estate under the ''Wills Estates and Succession Act'', but this is beyond the scope of this chapter.

==Agreements and orders for child support==

===Orders for child support===

An order for child support typically contains the following elements:

*a statement of the names and birthdates of the children for whom support will be paid,
*a declaration of the payor's income,
*an order as to the Guidelines amount payable,
*an order about the exchange of income information, and
*a statement of the date on which child support will no longer be payable.

These elements look like this in a typical order made under the ''[[Divorce Act]]'':

<blockquote><tt>UPON the Court being advised that the children of the marriage are</tt></blockquote>
<blockquote><blockquote><tt>Jesse Ann Doe, born on 1 March 1998, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>Sandra Alexandra Doe, born on 1 April 2000;</tt></blockquote></blockquote>
<blockquote><tt>AND UPON the Court finding that the Claimant's income for the purposes of the Child Support Guidelines is $72,000.00 per year;</tt></blockquote>
<blockquote><tt>THIS COURT ORDERS that:</tt></blockquote>
<blockquote><tt>1. The Claimant, Jane Doe, payor, shall pay to the Respondent, John Doe, recipient, the sum of $1,092 per month, commencing on the first day of April 2013 and continuing on the first day of each and every month thereafter until such time as the children are no longer "children of the marriage" as defined by the ''Divorce Act''; and,</tt></blockquote>
<blockquote><tt>2. The Claimant shall provide to the Respondent a copy of her tax return on the first day of May 2014 and continuing on the first day of May for each and every year thereafter until such time as the children are no longer "children of the marriage," and the Claimant shall provide to the Respondent a copy of each Canada Revenue Agency Notice of Assessment or Notice of Reassessment within two weeks of her receipt of the same, and adjusting child support accordingly, and continuing until such time as the children are no longer "children of the marriage." </tt></blockquote>

Under the ''[[Family Law Act]]'', the order would look like this:

<blockquote><tt>UPON the Court being advised that the children are</tt></blockquote>
<blockquote><blockquote><tt>Jesse Ann Doe, born on 1 March 2008, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>Sandra Alexandra Doe, born on 1 April 2010;</tt></blockquote></blockquote>
<blockquote><tt>AND UPON the Court finding that the Claimant's income for the purposes of the Child Support Guidelines is $72,000.00 per year;</tt></blockquote>
<blockquote><tt>THIS COURT ORDERS that:</tt></blockquote>
<blockquote><tt>1. The Claimant, Jane Doe, payor, shall pay to the Respondent, John Doe, recipient, the sum of $1,092 per month, commencing on the first day of April 2018 and continuing on the first day of each and every month thereafter until such time as the children are no longer "children" as defined by the ''Family Law Act''; and,</tt></blockquote>
<blockquote><tt>2. The Claimant shall provide to the Respondent a copy of her tax return on the first day of May 2019 and continuing on the first day of May for each and every year thereafter until such time as the children are no longer "children" as defined by the ''Family Law Act'', and the Claimant shall provide to the Respondent a copy of each Canada Revenue Agency Notice of Assessment or Notice of Reassessment within two weeks of her receipt of the same, and adjusting child support accordingly, and continuing until such time as the children are no longer "children." </tt></blockquote>

The point of the last clause of each of these sample orders is to require the payor to annually provide evidence of their income to the recipient so that both parties can decide whether an increase or a decrease in the amount payable is appropriate.

If the Order is to include special and extraordinary expenses, the Order will usually include:
* the recipient spouse’s income (including any spousal support they might be receiving),
* the percentage contribution due for each parent to cover special expenses, and
* a requirement that both parents exchange income information each year.

Disclosure of income by both parents is also required in shared and split custody cases.

It is a good idea to specify in a child support order whether the order is made under the ''Divorce Act'' or the ''Family Law Act'' as it could have an effect on a future variation application. For more information, see the case of [http://canlii.ca/t/fspd1 ''Yu v. Jordan''], 2012, BCCA 367.

===Agreements for child support===

Separation agreements, like all family law agreements, have two types of statements. The ''recitals'' are statements that talk about the parties and their relationship. They explain the parties' background and why they signed their agreement. The ''operative clauses'' of an agreement are statements that say what each party has promised to do.

The recitals to a separation agreement about child support would include statements like these:

<blockquote><tt>D. Jane Doe is a plumber working for ABC Plumbing, earning about $72,000 per year.</tt></blockquote>
<blockquote><tt>E. John Doe is a graphic artist working for Sunny Skies Art and Design, earning about $40,000 per year.</tt></blockquote>
<blockquote><tt>F. Jane and John have two children, Jesse, who is 15, and Sandra who is 13.</tt></blockquote>

The operative clauses about child support might say something like this:

<blockquote><tt>15. Jane will pay child support to John in the amount of $1,092 per month, beginning on 1 April 2013 and continuing on the first day of each month thereafter while Jesse and Sandra remain "children" as defined by the ''Family Law Act''.</tt></blockquote>
<blockquote><tt>16. Jane will give John a copy of her tax return by no later than May 31 each year and will also give John a copy of each Canada Revenue Agency Notice of Assessment or Notice of Reassessment within two weeks of receiving it each year for so long as the children are still "children" as defined by the ''Family Law Act''.</tt></blockquote>

Both court orders and separation agreements should include the children’s full names, birth dates, the amounts of basic child support and special expenses, the date for the commencement of those payments, and the Act under which the child support order is made. Those details are important so that the court orders and agreements can be enforced.

==Child support tables and calculators==

The [http://laws-lois.justice.gc.ca/eng/regulations/SOR-97-175/page-11.html#h-15 simplified Child Support Guidelines Tables for British Columbia] are available from the website of the federal Department of Justice. The federal government has published an [http://www.justice.gc.ca/eng/fl-df/child-enfant/look-rech.asp online child support calculator].

The provincial government also operates the BC Child Support Info Line which offers free information about child support and the child support tables. Contact the Info Line at:

*Lower Mainland: 604-660-2192 
*Outside the Lower Mainland: 888-216-2211


==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [http://canlii.ca/t/80mh Child Support Guidelines]

===Links===

* [http://laws-lois.justice.gc.ca/eng/regulations/SOR-97-175/page-11.html#h-15 Child Support Guidelines Tables for British Columbia]
* [http://www.justice.gc.ca/eng/fl-df/child-enfant/look-rech.asp Online Child Support Calculator]
* [http://www.clicklaw.bc.ca/resource/1175 BC Ministry of Attorney General's FMEP Child Support Calculator]
* [http://www.clicklaw.bc.ca/resource/1235 Dial-A-Law Script "Child support"]
* [http://www.clicklaw.bc.ca/resource/1618 Legal Services Society's Family Law website's information page "Child & spousal support"]
** Under "Child support", see "What are the child support guidelines and how do they work?"

{{REVIEWED | reviewer = [[JP Boyd]], March 6, 2021}}

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[[Category:JP Boyd on Family Law]]

Child Support Guidelines

2021-03-06T21:17:10Z

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{{JP Boyd on Family Law TOC|expanded = childsupport}}{{JPBOFL Editor Badge
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| link = [https://www.clicklaw.bc.ca/global/search?k=child%20support child support]
}}Often simply referred to as the Guidelines, the [http://canlii.ca/t/80mh Child Support Guidelines], SOR/97-175, is a federal regulation, adopted by all of the provinces except Quebec, that describes the rules that the courts must apply when making an order for child support.

The most important feature of the Guidelines is the child support tables that fix the amount of support payments according to both the annual income of the person paying support and the number of children the support is to be paid for.

The Guidelines cover every aspect of child support, including the calculation of income, how children's special expenses are paid for, the amount of support payable when the parents have the children for an almost equal amount of time, and the amount payable when one or more of the children live full-time with each parent.

This section talks about the basic principles of the Guidelines, the sharing of special and extraordinary expenses, the calculation of income, ''imputing'' income, and the circumstances in which the income of a parent's or guardian's new partner may be taken into account. It also provides an example of the contents of a typical child support order.

'''Important changes''' 
Look for explanations under this heading to read about recent changes to family law affecting the information provided in this section.

==Basic principles==

It used to be that the party claiming child support, the ''recipient'', had to show the amount of support the child needed and prove that the person being asked to pay support, the ''payor'', had the means to pay that amount. Now, the amount of a child support order or an agreement for child support is based on the amounts set out in the tables attached to the Child Support Guidelines. The Guidelines have generally reduced the amount of disagreement between parents about the amount of child support, whether they're in court arguing about an order, or are negotiating a separation agreement. Most of the disagreement now tends to be about either the income of the payor or child support for children over 19.

The Guidelines tables were most recently adjusted on November 22, 2017. If you are relying on a printed version of the child support tables to figure out how much child support should be paid, make sure that your materials reflect the new table amounts, effective as of November 22, 2017.

The Guidelines' key presumption is set out in section 3(1):

<blockquote><tt>Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority is</tt></blockquote>
<blockquote><blockquote><tt>(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the amount, if any, determined under section 7.</tt></blockquote></blockquote>

This is, however, only a presumption, and can be challenged or ''rebutted'', as is discussed in this chapter's next section, [[Exceptions to the Child Support Guidelines]]. In the vast majority of cases, however, the amount of child support payable is calculated using the payor's gross (before tax) yearly income at the time the order is made.

Over time, of course, the payor's income may go up or down. Both the payor and the recipient can make an application to change the original order or the agreement so that the amount of child support reflects the payor's current income. The payor would make the application if their income has fallen, while the recipient would make the application when the payor's income has increased. To avoid a situation where parents are continually making trips back to court to seek an adjustment of child support, it's a good idea to include a term in the court order or agreement that requires both parents to regularly exchange income information, usually every year after taxes have been filed, so that child support can be adjusted from time to time without having to go to court.

Another important presumption in the Guidelines is that the amount of support payable is set according to the number of children to which each particular support order relates. If a payor has two children from one relationship and three from another, the first order will be based on the Guidelines amount for two children and the second will be based on the amount for three children. The payor's obligation is not based on the Guidelines amount for the total number of five children.

Finally, the amount of support payable is based only on the payor's income, unless there is a shared or a split parenting arrangement, in which case both parents’ incomes are taken into account.

==Special expenses and extraordinary expenses==

The basic amount of child support a parent pays is presumed to cover a very wide scope of common day-to-day expenses associated with raising children: the child's share of lodging, utilities, shoes, groceries, diapers, clothes, toothpaste, school field trip fees, entertainment, haircuts, and so forth. The basic amount of support is not always presumed to include certain other kinds of expenses that are infrequent but expensive, such as the cost of daycare or orthodontic work. In addition to the basic amount of support payable, the parents may also be required to cover their respective portions of these other expenses, so long as they qualify as ''special and/or extraordinary expenses'' under the Guidelines.

Special and/or extraordinary expenses are defined in section 7(1) of the Guidelines:

<blockquote><tt>(a) child care expenses incurred as a result of the custodial parent's employment, illness, disability or education or training for employment;</tt></blockquote>
<blockquote><tt>(b) that portion of the medical and dental insurance premiums attributable to the child;</tt></blockquote>
<blockquote><tt>(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;</tt></blockquote>
<blockquote><tt>(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child's particular needs;</tt></blockquote>
<blockquote><tt>(e) expenses for post-secondary education; and</tt></blockquote>
<blockquote><tt>(f) extraordinary expenses for extracurricular activities.</tt></blockquote>

Section 7(1.1) clarifies (1)(d) and (1)(f), and says that for these subsections "extraordinary expenses" means:

<blockquote><tt>(a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or</tt></blockquote>
<blockquote><tt>(b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account</tt></blockquote>
<blockquote><blockquote><tt>(i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) the nature and number of the educational programs and extracurricular activities,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(iii) any special needs and talents of the child or children,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(iv) the overall cost of the programs and activities, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(v) any other similar factor that the court considers relevant.</tt></blockquote></blockquote>

Special expenses are shared between the payor and recipient in proportion to their incomes. These provisions of the Guidelines are intended to ensure that, if either parent incurs significant additional expenses for the child's needs or activities, ''both'' parents will share the cost on the principle that it is in children's best interests to have such needs met or to participate in such activities.

If an expense is found to qualify as a special and/or extraordinary expense under the section 7(1) and section 7(1.1) definitions, the court may make an order that both parties pay additional amounts, in addition to the usual Guidelines basic amount of support, to cover all or a portion of the cost of the expense.

===Qualifying expenses as special expenses and extraordinary expenses===

Just because an expense appears to fall into one of the categories listed in section 7 of the Guidelines doesn't necessarily make it a shareable special and/or extraordinary expense. As well, just because an expense has been incurred doesn't mean it will automatically be shared; if you're not sure whether a planned expense will qualify as a shareable special expense, get some legal advice or talk to the other parent first to see if they will agree to share in the expense.

An expense that may not qualify as a special expense for higher-earning families may qualify as such for low-income families. For example, if guideline child support of $2,000 for one child is being paid, the $200 cost of soccer registration will probably not be considered a special expense (and will have to be paid from the $2,000 basic child support by the recipient parent), but that same $200 expense may be a special expense if only $500 per month Guideline support is being paid (and will therefore have to be shared between the parents).

According to section 7(1) of the Guidelines, the court must not only find that an expense fits into one of the categories listed above, but also consider:

*the "reasonableness of the expense in relation to the means of the spouses and those of the child and to the family's spending pattern prior to the separation," and
*the necessity of the expense in relation to the child's best interests,

The court must bear in mind the special test for primary- and secondary-school education and extracurricular activities required by section 7(1.1). Here's a helpful summary from a 2010 case from our Supreme Court, ''[http://canlii.ca/t/2dpzr Piper v. Piper]'', 2010 BCSC 1718:

<blockquote>"Under section 7(1.1)(a) the court is first required to consider whether the income of the requesting spouse, including any child support received, can reasonably cover the expense claimed or whether the expense exceeds her ability to pay without any consideration of the factors enumerated in section 7(1.1)(b). If the income cannot cover the expense, the expense is deemed to be extraordinary and the court's next analysis turns to consideration of the factors enumerated in section 7(1) which, of course, brings into consideration the parties' means and pre-separation spending pattern."</blockquote>

====Reasonableness====

When the court is asked to consider a particular expense, it should first decide whether the expense is necessary and reasonable according to the parties' financial resources. For lower income parents, fewer expenses will be considered reasonable.

*Daycare will almost always be considered necessary and reasonable, if that daycare is incurred as a result of the parent’s employment, illness, disability, or education or training for employment. Daycare subsidies will be taken into account when apportioning daycare expenses between the parents, as will tax-deductibility.

For parents with more money, more expenses may qualify as reasonable:

*Cosmetic orthodontic work.
*Dance, music, and art classes, swimming lessons, and summer day camps.
*Less expensive team sports, like soccer, baseball, and basketball.
*Basic high-school graduation costs, such as tickets and gown or tuxedo rentals.
*Basic post-secondary education costs, such as tuition fees for a local college or university, student fees, and textbook costs.

For parents with lots of money, almost every big-ticket expense is probably going to be considered reasonable:

*Multiple week summer camps and trips abroad.
*Private school fees.
*Expensive team sports, like hockey and horseback polo, and expensive solo sports like skiing and scuba diving.
*Post-secondary education costs, including meal plans and residence costs.

====Necessity====

Sometimes the needs of the child will outweigh the cost of the expense to the child, and an expense will qualify as a special expense whether at a hardship to the parents or not.

*Medical costs, including costs that aren't covered by MSP such as autism therapies.
*Counselling services, where the counselling is necessary for the child's mental health.
*Tutoring services, where the child needs the extra help to get through school.
*Lessons or coaching in arts and sports, where the child has a special talent that should be nurtured.

A driver training course, for example, is unlikely to qualify as a special expense under the heading of necessity, since you can learn to drive and obtain a driver's license without it, as was decided in a 2011 Supreme Court case, ''[http://canlii.ca/t/2fzs4 M.S.J. v. J.M.J.]'', 2011 BCSC 245. On the other hand, if a semester with Sylvan Learning Centre will mean the difference between passing or failing a grade, the tutoring would probably be considered a necessity.

===Sharing qualifying expenses===

Under section 7(2) of the Guidelines, expenses that qualify as special and/or extraordinary expenses are generally shared by the parties in proportion to their incomes, after deducting any contribution to those costs made by the child or the government, through things like grants or tax deductions. The idea here is to look at the total pot of money available to the child — the income of the payor plus the income of the recipient — and to figure out how much each party's share of that pot is, and then pay the child's special expenses according to each parent's share.

The easiest way to calculate a parent's ''proportionate share'' is to add the incomes of both parents together and then figure out what percentage each income is of the total. Here are two examples.

:'''Example #1'''

<blockquote>If one parent earns $75,000 per year and the other $25,000, the total pot available to the child is $100,000. Of that sum, the first parent contributes 75% and the second parent 25%. As a result, the first parent would be ordered to pay 75% of qualifying expenses, and the second parent 25%.
</blockquote>

:'''Example #2'''

<blockquote>If one parent earns $48,000 per year and the other $62,000, the total of their incomes is $110,000. The first parent's income is 43.6% of the total, and the other parent's income is 56.4% of the total. The first parent would have to pay 43.6% of all qualifying special expenses, and the second would have to pay 54.6% of those expenses.</blockquote>

The cost that is being shared is the ''net cost'' of an expense, in other words, the amount that is actually being paid after any third-party contributions have been applied to reduce the expense. Daycare costs, for example, are sometimes subsidized for lower income earners and the amount paid by a parent is deductible from their income. It is the net expense after deducting any subsidy and any tax saving that is to be shared.

Note that the income of a parent's new spouse or partner may sometimes be taken into consideration in determining a parent's "means" in sharing a special expense. In the 2000 Supreme Court case of ''[http://canlii.ca/t/1fm6b Baum v. Baum]'', 2000 BCSC 1835, the court held that the section 7(1) consideration of the "means of the spouses" should be interpreted broadly as including all sources of income available to the paying parent, including the contribution of a parent's new partner. Also see the case of [http://canlii.ca/t/53kt ''Scott v. Scott''], 2000 BCSC 844.

==The calculation of income==

Before the court even looks at the Child Support Guidelines tables it has to decide what the payor's income is. The tables set out the amount of child support payable according to the payor's income. The Guidelines require that the court use the most up-to-date information available. Sections 15 to 20 of the Guidelines set out the rules the court must apply in determining income.

According to Rule 5-1 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules] and Rule 4 of the [http://canlii.ca/t/85pb Provincial Court (Family) Rules], when someone makes an application for child support, the payor or both the payor and recipient are required to disclose their financial circumstances using a court form called a Financial Statement. Financial statements require each party to set out their income and expenses, and assets and liabilities. Certain income documents must be attached to a financial statement, typically:

#the last three years' tax returns (what's required is the complete income tax and benefit return, not tax return "summaries" or "informations"),
#all notices of assessment and reassessment received for the last three tax years,
#the party's most recent paystub, showing their earnings to date, or if the party isn't working, then their most recent WCB statement, social assistance statement, or EI statement, and
#business records like financial statements and corporate income tax returns, if the party has a company.

The basic rule of thumb is that a party's income for the purposes of the Guidelines is the amount stated at line 150 of the payor's most recent tax return, although there are important exceptions that apply when a person's income is from self-employment. A party's income includes all of the party's income, not just income from a job. ''Income'' might include bonuses, rental income, profit from stock options, company dividends, Workers Compensation payments, long term or short term disability payments, personal injury awards (that relate to loss of income), pension income, government benefits, interest from an investment, and so forth, as well as employment and self-employment income.

Section 2(3) of the Guidelines requires that the most current income information be used; this can include a calculation of income based on paystub evidence. Most of the time income is based on the most recent tax year, since the income information for that year is complete. This means that there is usually a one-year lag between the amount of support being paid and the payor's income. However, if a payor's current income can be known with certainty, such as if the payor is an employee without bonus or commission income, child support can be determined using the payor's current income.

===Government benefits===

Payments from WCB, Employment Insurance, CPP, Old Age Security, and social assistance all count as income under the Guidelines. If a party is receiving these payments as a temporary substitute for employment income, the party's income may be assessed at their usual income. A temporary period on social assistance, for example, won't entitle a payor to have their income assessed at that unusually low level into the future.

Note that Canada Child Tax Benefits are not considered income for basic child support purposes, but may be taken into account when determining the sharing of special and extraordinary expenses.

===Fluctuating income===

Where a party's income changes from year to year for reasons beyond the party's control, such as fluctuating commission sales or bonuses that are assessed by an employer, the court may take the party's income over the past three years into consideration in setting the payor's income. In certain circumstances, the court may fix the party's income as the ''average'' of their income over the last three years.

===Unexpected losses and gains===

Where a payor has suffered an unexpected loss, such as a corporate loss or an investment loss, or enjoyed an unexpected gain, such as from cashing in RRSPs or selling stock, the court has the discretion to decide to take this into consideration in setting the payor's income, and potentially not consider the loss or gain, if it was a one-time occurrence.

===Court awards===

If a payor has received an award from a civil court proceeding such as for wrongful dismissal or for personal injury, the court may attribute the portion of the award allocated for ''lost wages'' to a payor's income. The whole amount of the award, including the parts relating to pain and suffering, will not be seen as income for the purposes of the Guidelines, just the part intended to compensate for lost wages.

===Windfalls===

Money received from an inheritance, the sale of a house, or a lottery win does not count as income under the Guidelines. Any interest or other investment income earned or that should reasonably be earned from the inheritance or lottery win would count as income.

==Imputing income==

To ''impute'' income means to attribute income to a payor above that which the payor claims they earn, usually for making a support award based on that higher amount. Typically, someone asks the court to impute income to a payor where:

#the payor works in the service industry, for example as a restaurant server or a taxi driver, and receives tip income that is not reported on income tax returns,
#the payor is intentionally unemployed or under-employed (i.e. not working to their full skills and capacity),
#the payor has quit or been fired from their job,
#the payor moves from full- to part-time work without a very good reason,
#the payor is self-employed and either receives unpaid benefits from their company (like a company car, paid meals, or a free cell phone), or doesn't report the full amount of money taken from the company,
#the payor has refused to provide full and complete financial disclosure,
#the payor has or will have income from a trust,
#the payor has hidden or appears to have hidden some of their income, or
#the payor is not using resources at hand that could generate income, such as a vacant house that could be rented out or savings that could be invested.

If the court decides to impute income to a payor, child support will be payable at the Guidelines rate for the higher income. The parties' proportionate responsibility to contribute to the cost of any qualifying special and/or extraordinary expenses may be based on imputed income, including income imputed to the recipient.

The court can decide to impute income for the purposes of calculating child support in other circumstances, such as when the payor is underemployed or unemployed, is income splitting with a new partner, or lives in a place with a lower tax rate than usual.

===Underemployment and unemployment===

Section 19(1) of the Guidelines says that:

<blockquote><tt>The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(e) the spouse's property is not reasonably utilized to generate income;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(f) the spouse has failed to provide income information when under a legal obligation to do so;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(g) the spouse unreasonably deducts expenses from income;</tt></blockquote></blockquote>

In other words, the court may decide that a payor has a different income than that which the payor says they have if:

*the payor has quit a job in order to avoid paying child support,
*the payor has taken lower-paying work than they used to have, or is capable of holding, in order to minimize the amount of child support payable, or
*the payor has tried to reduce their income by claiming unreasonable deductions.

If you are going to make an argument that income should be imputed to someone, you will have to prove that one or more of the conditions described in section 19(1) exist. If a party's underemployment or unemployment is caused by child care responsibilities, the court will not usually impute income.

It's not enough merely to ''argue'' that one of the conditions listed in section 19(1) exist, you have to be able to ''provide evidence'' that the condition exists. The following factors were cited by the court in a 2003 Supreme Court case, ''[http://canlii.ca/t/1pt18 Nahu v. Chertkow]'', 2003 BCSC 1285, in determining whether a payor is intentionally underemployed or unemployed:

*the payor's education, training, and work experience,
*the payor's previous earnings and past borrowing of funds during unemployment,
*the payor's work history,
*the payor's spending patterns and lifestyle,
*the payor's efforts to upgrade their education and work qualifications,
*the nature and quality of the payor's attempts to obtain employment, and
*any evidence that the underemployment or unemployment is motivated by ill will towards the recipient.

This last point, about the payor's ill will, has to do with the idea that the payor is able to earn more but chooses not to. In the 1999 Supreme Court case ''[http://canlii.ca/t/1d2x1 Hanson v. Hanson]'', 1999 CanLII 6307 the court had this to say on the subject:

<blockquote>"1. There is a duty to seek employment in a case where a parent is healthy and there is no reason why the parent cannot work. It is 'no answer for a person liable to support a child to say that he is unemployed and does not intend to seek work or that his potential to earn income is an irrelevant factor' ...</blockquote>
<blockquote><tt>"2. When imputing income on the basis of intentional underemployment, a court must consider what is reasonable under the circumstances. The age, education, experience, skills and health of the parent are factors to be considered in addition to such matters as the availability of work, freedom to relocate and other obligations.</tt></blockquote>
<blockquote><tt>"3. A parent's limited work experience and job skills do not justify a failure to pursue employment that does not require significant skills, or employment in which the necessary skills can be earned on the job. ... [C]ourts have never sanctioned the refusal of a parent to take reasonable steps to support his or her children simply because the parent cannot obtain interesting or highly paid employment.</tt></blockquote>
<blockquote><tt>"4. Persistence in [poorly paid] employment may entitle the court to impute income.</tt></blockquote>
<blockquote><tt>"5. A parent cannot be excused from his or her child support obligations [to pursue] unrealistic or unproductive career aspirations.</tt></blockquote>
<blockquote><tt>"6. As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income."</tt></blockquote>

==="Grossing up" income===

Section 19(1) of the Guidelines also says that:

<blockquote><tt>The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:</tt></blockquote>
<blockquote><blockquote><tt>(b) the spouse is exempt from paying federal or provincial income tax;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax.</tt></blockquote></blockquote>

Under these sections of the Guidelines, payors who have a lower income tax obligation than usual, such as certain First Nations persons living on reserve who might pay no federal taxes, or persons who live in another country with a lower tax rate, can have their income ''grossed up'' to reflect this tax advantage when child support is determined.

The grossing up process essentially involves figuring out the amount of money the payor would have to earn to have the same after-tax income at the tax rates normally applicable to residents of British Columbia. This will result in income being imputed to the payor for the purposes of calculating child support, with a consequent increase in the amount of child support that will be payable.

The math behind grossing up someone's income is a bit complex. Essentially, the idea is to figure out the amount of income the person would have to earn before taxes to receive the amount they earn net of taxes. Think of it like this:

<blockquote>Say Mr. A earns $100,000 per year. As a resident of British Columbia, Mr. A pays income tax at, for example, 40%. This means that Mr. A's income, net of taxes, is $60,000 per year.</blockquote>
<blockquote>Mr. B also earns $100,000 per year. Mr. B, on the other hand, lives in Texas, and has an income tax rate of, for example, 25%. This means that Mr. B's net income is $75,000 per year.</blockquote>
<blockquote>Income for the purposes of the Guidelines would normally be calculated for both Mr. A and Mr. B at a gross income of $100,000. In reality, though, Mr. A has a lot less money after income taxes are paid than Mr. B does. Mr. B actually has a lot more money than Mr. A, and ought to pay child support based on this additional money.</blockquote>
<blockquote>Mr. B's income would be "grossed up" to figure out what income he would have to earn in BC to have an after-tax income of $75,000. Since he would pay income tax at a rate of 40% here, the court would consider Mr. B to have a gross income of $125,000 for the purposes of child support, since tax of 40% on a gross income of $125,000 leaves a net income of $75,000.</blockquote>
<blockquote>Mr. A and Mr. B both have incomes of $100,000 per year. Mr. A will pay his base amount of support at that income, but Mr. B will pay at a grossed up income of $125,000 to reflect what he would have to earn in BC to have the after-tax income of $75,000 he has living in Texas.</blockquote>

Grossing up a payor's income can be a bit tricky, and requires a knowledge of the income tax laws applicable to First Nations payors earning income on First Nations reserve lands and to payors earning income outside of Canada. If you have a problem in this area, you should consider hiring a lawyer to help you.

==Child support and parents' new partners==

Parents and guardians usually move on with their lives after the relationship that produced their children has ended. They will meet new people and enter into new romantic relationships. Parents and their new partners are often concerned about how their relationship will impact on the payor parent's obligation to pay child support. The parent might be concerned to know whether the new partner's income will be added to their income in calculating child support. The new partner will want to know whether they are now on the hook for support and must contribute to the parent's payments or towards the parent's children.

===Basic child support payments===

The income of a parent's new partner is not relevant to the payment of basic child support, nor is a payor's new partner obliged to pay child support. The new partner will not inherit the child support obligation in the event the payor dies, and the recipient of support won't be able to pursue the new partner for continuing or supplemental payments. If the new partner and the parent separate, however, the new partner might become obligated to pay child support as a result of them being a stepparent to the children. See the section that deals with stepparents’ obligations.

For the purposes of calculating the base amount of child support a parent must pay — that is, the parent's basic obligation under the Child Support Guidelines, before special and/or extraordinary expenses — the court will only look at the parent's income. The income of the new partner is not taken into account.

===Undue hardship claims===

Section 10 of the Child Support Guidelines allows parties to argue that the base amount of support set out in the Guidelines tables is too low or too high and would cause ''undue hardship'' if the table amount was paid. Payors will claim that the base amount is too high, while recipients will argue that it is too low. This chapter discusses exceptions to the Guidelines more thoroughly in the section, [[Exceptions to the Child Support Guidelines]].

If undue hardship is claimed, the court will look at the standard of living of each parent's ''household'', rather than the standard of living of each parent alone. This means that the court, in deciding whether there is undue hardship, will look at the total expenses and total income of each parent's household, including the income of each parent's new partner. This will not cause the new partner to be liable to pay support; it just means that their income will be taken into consideration to see whether the usual table amount of support payable is unduly high or low.

===Incomes in excess of $150,000===

The tables provided in the Child Support Guidelines set out the amount of support owing by payors who earn up to $150,000 per year. The Guidelines provide a mathematical formula for figuring out what parents earning more than $150,000 must pay, while payors earning less than $12,000 pay nothing.

Section 4 of the Guidelines deals with parents who earn more than $150,000 each year. Under this section, the income (or lack of income) of a parent's new partner may be taken into account in deciding whether the formula gives a fair result. The calculation of support owing by parents with incomes in excess of $150,000 is discussed in more detail in [[Exceptions to the Child Support Guidelines]].

Section 4(b)(ii) of the Guidelines says that when considering the amount payable above the basic amount for a payor whose annual income is $150,000, the court should apply the formula but take into account:

<blockquote><tt>... the condition, means, needs and other circumstances of the children who are entitled to support and the financial ability of each spouse to contribute to the support of the children ...</tt></blockquote>

In other words, the income of a new partner can be taken into account under the general heading of "financial ability" of a spouse in determining whether the formula amount is fair.

===Special expenses===

Section 7 of the Guidelines allows for sharing of the children's special and/or extraordinary expenses between the parents, as discussed above. In figuring out how much a parent should have to contribute to these expenses, the court is required to take into account, among other things, "the necessity and reasonableness of the expense in relation to the means of the spouses and those of the child."

A parent's new partner's income can be taken into consideration in assessing the "means of the spouses," which is exactly what the court did in the 2000 Supreme Court case of ''[http://canlii.ca/t/1fm6b Baum v. Baum]'', 2000 BCSC 1835. In that decision, the court held that ''means of the spouses'' should be interpreted broadly as including all of the means available to the paying parent, including the financial contribution of their new partner.

Again, the new partner will not be responsible to pay child support or a share of the children's special expenses as a result; only the payor's obligation will be affected by the new partner's income.

===Death of the payor===

A number of readers have asked whether they will have any responsibility to make child support payments if their partner, who is a parent or guardian under an obligation to pay child support, dies. The simple answer to that question is no, they will have no responsibility. The fact that they are in a relationship with a paying parent doesn't necessarily mean that they will have a duty to keep paying support if that parent dies.

While that is a good general rule, and one you can probably rely on, it is possible that a claim could be made against the new partner as a ''stepparent'' of the child under the ''[[Family Law Act]]''. The act says that all parents, guardians, and stepparents are required to support their children, but section 147 says that stepparents who are obliged to pay child support must have contributed to the support of the child for at least one year. In other words, a new partner who marries a paying parent may have an obligation if they have contributed to the support of the child. Again, while this is technically possible, orders against new partners following the death of the paying parent are extremely rare.

The deceased parent’s estate may, however, be liable to pay child support and a claim could be made against the estate under the ''Wills Estates and Succession Act'', but this is beyond the scope of this chapter.

==Agreements and orders for child support==

===Orders for child support===

An order for child support typically contains the following elements:

*a statement of the names and birthdates of the children for whom support will be paid,
*a declaration of the payor's income,
*an order as to the Guidelines amount payable,
*an order about the exchange of income information, and
*a statement of the date on which child support will no longer be payable.

These elements look like this in a typical order made under the ''[[Divorce Act]]'':

<blockquote><tt>UPON the Court being advised that the children of the marriage are</tt></blockquote>
<blockquote><blockquote><tt>Jesse Ann Doe, born on 1 March 1998, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>Sandra Alexandra Doe, born on 1 April 2000;</tt></blockquote></blockquote>
<blockquote><tt>AND UPON the Court finding that the Claimant's income for the purposes of the Child Support Guidelines is $72,000.00 per year;</tt></blockquote>
<blockquote><tt>THIS COURT ORDERS that:</tt></blockquote>
<blockquote><tt>1. The Claimant, Jane Doe, payor, shall pay to the Respondent, John Doe, recipient, the sum of $1,092 per month, commencing on the first day of April 2013 and continuing on the first day of each and every month thereafter until such time as the children are no longer "children of the marriage" as defined by the ''Divorce Act''; and,</tt></blockquote>
<blockquote><tt>2. The Claimant shall provide to the Respondent a copy of her tax return on the first day of May 2014 and continuing on the first day of May for each and every year thereafter until such time as the children are no longer "children of the marriage," and the Claimant shall provide to the Respondent a copy of each Canada Revenue Agency Notice of Assessment or Notice of Reassessment within two weeks of her receipt of the same, and adjusting child support accordingly, and continuing until such time as the children are no longer "children of the marriage." </tt></blockquote>

Under the ''[[Family Law Act]]'', the order would look like this:

<blockquote><tt>UPON the Court being advised that the children are</tt></blockquote>
<blockquote><blockquote><tt>Jesse Ann Doe, born on 1 March 2008, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>Sandra Alexandra Doe, born on 1 April 2010;</tt></blockquote></blockquote>
<blockquote><tt>AND UPON the Court finding that the Claimant's income for the purposes of the Child Support Guidelines is $72,000.00 per year;</tt></blockquote>
<blockquote><tt>THIS COURT ORDERS that:</tt></blockquote>
<blockquote><tt>1. The Claimant, Jane Doe, payor, shall pay to the Respondent, John Doe, recipient, the sum of $1,092 per month, commencing on the first day of April 2018 and continuing on the first day of each and every month thereafter until such time as the children are no longer "children" as defined by the ''Family Law Act''; and,</tt></blockquote>
<blockquote><tt>2. The Claimant shall provide to the Respondent a copy of her tax return on the first day of May 2019 and continuing on the first day of May for each and every year thereafter until such time as the children are no longer "children" as defined by the ''Family Law Act'', and the Claimant shall provide to the Respondent a copy of each Canada Revenue Agency Notice of Assessment or Notice of Reassessment within two weeks of her receipt of the same, and adjusting child support accordingly, and continuing until such time as the children are no longer "children." </tt></blockquote>

The point of the last clause of each of these sample orders is to require the payor to annually provide evidence of their income to the recipient so that both parties can decide whether an increase or a decrease in the amount payable is appropriate.

If the Order is to include special and extraordinary expenses, the Order will usually include:
* the recipient spouse’s income (including any spousal support they might be receiving),
* the percentage contribution due for each parent to cover special expenses, and
* a requirement that both parents exchange income information each year.

Disclosure of income by both parents is also required in shared and split custody cases.

It is a good idea to specify in a child support order whether the order is made under the ''Divorce Act'' or the ''Family Law Act'' as it could have an effect on a future variation application. For more information, see the case of [http://canlii.ca/t/fspd1 ''Yu v. Jordan''], 2012, BCCA 367.

===Agreements for child support===

Separation agreements, like all family law agreements, have two types of statements. The ''recitals'' are statements that talk about the parties and their relationship. They explain the parties' background and why they signed their agreement. The ''operative clauses'' of an agreement are statements that say what each party has promised to do.

The recitals to a separation agreement about child support would include statements like these:

<blockquote><tt>D. Jane Doe is a plumber working for ABC Plumbing, earning about $72,000 per year.</tt></blockquote>
<blockquote><tt>E. John Doe is a graphic artist working for Sunny Skies Art and Design, earning about $40,000 per year.</tt></blockquote>
<blockquote><tt>F. Jane and John have two children, Jesse, who is 15, and Sandra who is 13.</tt></blockquote>

The operative clauses about child support might say something like this:

<blockquote><tt>15. Jane will pay child support to John in the amount of $1,092 per month, beginning on 1 April 2013 and continuing on the first day of each month thereafter while Jesse and Sandra remain "children" as defined by the ''Family Law Act''.</tt></blockquote>
<blockquote><tt>16. Jane will give John a copy of her tax return by no later than May 31 each year and will also give John a copy of each Canada Revenue Agency Notice of Assessment or Notice of Reassessment within two weeks of receiving it each year for so long as the children are still "children" as defined by the ''Family Law Act''.</tt></blockquote>

Both court orders and separation agreements should include the children’s full names, birth dates, the amounts of basic child support and special expenses, the date for the commencement of those payments, and the Act under which the child support order is made. Those details are important so that the court orders and agreements can be enforced.

==Child support tables and calculators==

The [http://laws-lois.justice.gc.ca/eng/regulations/SOR-97-175/page-11.html#h-15 simplified Child Support Guidelines Tables for British Columbia] are available from the website of the federal Department of Justice. The federal government has published an [http://www.justice.gc.ca/eng/fl-df/child-enfant/look-rech.asp online child support calculator].

The provincial government also operates the BC Child Support Info Line which offers free information about child support and the child support tables. Contact the Info Line at:

*Lower Mainland: 604-660-2192 
*Outside the Lower Mainland: 888-216-2211


==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [http://canlii.ca/t/80mh Child Support Guidelines]

===Links===

* [http://laws-lois.justice.gc.ca/eng/regulations/SOR-97-175/page-11.html#h-15 Child Support Guidelines Tables for British Columbia]
* [http://www.justice.gc.ca/eng/fl-df/child-enfant/look-rech.asp Online Child Support Calculator]
* [http://www.clicklaw.bc.ca/resource/1175 BC Ministry of Attorney General's FMEP Child Support Calculator]
* [http://www.clicklaw.bc.ca/resource/1235 Dial-A-Law Script "Child support"]
* [http://www.clicklaw.bc.ca/resource/1618 Legal Services Society's Family Law website's information page "Child & spousal support"]
** Under "Child support", see "What are the child support guidelines and how do they work?"

{{REVIEWED | reviewer = [[JP Boyd]], March 6, 2021}}

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Child Support Guidelines

2021-03-06T21:16:25Z

Jpboyd: /* Qualifying expenses as special expenses and extraordinary expenses */

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}}Often simply referred to as the Guidelines, the [http://canlii.ca/t/80mh Child Support Guidelines], SOR/97-175, is a federal regulation, adopted by all of the provinces except Quebec, that describes the rules that the courts must apply when making an order for child support.

The most important feature of the Guidelines is the child support tables that fix the amount of support payments according to both the annual income of the person paying support and the number of children the support is to be paid for.

The Guidelines cover every aspect of child support, including the calculation of income, how children's special expenses are paid for, the amount of support payable when the parents have the children for an almost equal amount of time, and the amount payable when one or more of the children live full-time with each parent.

This section talks about the basic principles of the Guidelines, the sharing of special and extraordinary expenses, the calculation of income, ''imputing'' income, and the circumstances in which the income of a parent's or guardian's new partner may be taken into account. It also provides an example of the contents of a typical child support order.

'''Important changes''' 
Look for explanations under this heading to read about recent changes to family law affecting the information provided in this section.

==Basic principles==

It used to be that the party claiming child support, the ''recipient'', had to show the amount of support the child needed and prove that the person being asked to pay support, the ''payor'', had the means to pay that amount. Now, the amount of a child support order or an agreement for child support is based on the amounts set out in the tables attached to the Child Support Guidelines. The Guidelines have generally reduced the amount of disagreement between parents about the amount of child support, whether they're in court arguing about an order, or are negotiating a separation agreement. Most of the disagreement now tends to be about either the income of the payor or child support for children over 19.

The Guidelines tables were most recently adjusted on November 22, 2017. If you are relying on a printed version of the child support tables to figure out how much child support should be paid, make sure that your materials reflect the new table amounts, effective as of November 22, 2017.

The Guidelines' key presumption is set out in section 3(1):

<blockquote><tt>Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority is</tt></blockquote>
<blockquote><blockquote><tt>(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the amount, if any, determined under section 7.</tt></blockquote></blockquote>

This is, however, only a presumption, and can be challenged or ''rebutted'', as is discussed in this chapter's next section, [[Exceptions to the Child Support Guidelines]]. In the vast majority of cases, however, the amount of child support payable is calculated using the payor's gross (before tax) yearly income at the time the order is made.

Over time, of course, the payor's income may go up or down. Both the payor and the recipient can make an application to change the original order or the agreement so that the amount of child support reflects the payor's current income. The payor would make the application if their income has fallen, while the recipient would make the application when the payor's income has increased. To avoid a situation where parents are continually making trips back to court to seek an adjustment of child support, it's a good idea to include a term in the court order or agreement that requires both parents to regularly exchange income information, usually every year after taxes have been filed, so that child support can be adjusted from time to time without having to go to court.

Another important presumption in the Guidelines is that the amount of support payable is set according to the number of children to which each particular support order relates. If a payor has two children from one relationship and three from another, the first order will be based on the Guidelines amount for two children and the second will be based on the amount for three children. The payor's obligation is not based on the Guidelines amount for the total number of five children.

Finally, the amount of support payable is based only on the payor's income, unless there is a shared or a split parenting arrangement, in which case both parents’ incomes are taken into account.

==Special expenses and extraordinary expenses==

The basic amount of child support a parent pays is presumed to cover a very wide scope of common day-to-day expenses associated with raising children: the child's share of lodging, utilities, shoes, groceries, diapers, clothes, toothpaste, school field trip fees, entertainment, haircuts, and so forth. The basic amount of support is not always presumed to include certain other kinds of expenses that are infrequent but expensive, such as the cost of daycare or orthodontic work. In addition to the basic amount of support payable, the parents may also be required to cover their respective portions of these other expenses, so long as they qualify as ''special and/or extraordinary expenses'' under the Guidelines.

Special and/or extraordinary expenses are defined in section 7(1) of the Guidelines:

<blockquote><tt>(a) child care expenses incurred as a result of the custodial parent's employment, illness, disability or education or training for employment;</tt></blockquote>
<blockquote><tt>(b) that portion of the medical and dental insurance premiums attributable to the child;</tt></blockquote>
<blockquote><tt>(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;</tt></blockquote>
<blockquote><tt>(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child's particular needs;</tt></blockquote>
<blockquote><tt>(e) expenses for post-secondary education; and</tt></blockquote>
<blockquote><tt>(f) extraordinary expenses for extracurricular activities.</tt></blockquote>

Section 7(1.1) clarifies (1)(d) and (1)(f), and says that for these subsections "extraordinary expenses" means:

<blockquote><tt>(a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or</tt></blockquote>
<blockquote><tt>(b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account</tt></blockquote>
<blockquote><blockquote><tt>(i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) the nature and number of the educational programs and extracurricular activities,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(iii) any special needs and talents of the child or children,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(iv) the overall cost of the programs and activities, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(v) any other similar factor that the court considers relevant.</tt></blockquote></blockquote>

Special expenses are shared between the payor and recipient in proportion to their incomes. These provisions of the Guidelines are intended to ensure that, if either parent incurs significant additional expenses for the child's needs or activities, ''both'' parents will share the cost on the principle that it is in children's best interests to have such needs met or to participate in such activities.

If an expense is found to qualify as a special and/or extraordinary expense under the section 7(1) and section 7(1.1) definitions, the court may make an order that both parties pay additional amounts, in addition to the usual Guidelines basic amount of support, to cover all or a portion of the cost of the expense.

===Qualifying expenses as special expenses and extraordinary expenses===

Just because an expense appears to fall into one of the categories listed in section 7 of the Guidelines doesn't necessarily make it a shareable special and/or extraordinary expense. As well, just because an expense has been incurred doesn't mean it will automatically be shared; if you're not sure whether a planned expense will qualify as a shareable special expense, get some legal advice or talk to the other parent first to see if they will agree to share in the expense.

An expense that may not qualify as a special expense for higher-earning families may qualify as such for low-income families. For example, if guideline child support of $2,000 for one child is being paid, the $200 cost of soccer registration will probably not be considered a special expense (and will have to be paid from the $2,000 basic child support by the recipient parent), but that same $200 expense may be a special expense if only $500 per month Guideline support is being paid (and will therefore have to be shared between the parents).

According to section 7(1) of the Guidelines, the court must not only find that an expense fits into one of the categories listed above, but also consider:

*the "reasonableness of the expense in relation to the means of the spouses and those of the child and to the family's spending pattern prior to the separation," and
*the necessity of the expense in relation to the child's best interests,

The court must bear in mind the special test for primary- and secondary-school education and extracurricular activities required by section 7(1.1). Here's a helpful summary from a 2010 case from our Supreme Court, ''[http://canlii.ca/t/2dpzr Piper v. Piper]'', 2010 BCSC 1718:

<blockquote>"Under section 7(1.1)(a) the court is first required to consider whether the income of the requesting spouse, including any child support received, can reasonably cover the expense claimed or whether the expense exceeds her ability to pay without any consideration of the factors enumerated in section 7(1.1)(b). If the income cannot cover the expense, the expense is deemed to be extraordinary and the court's next analysis turns to consideration of the factors enumerated in section 7(1) which, of course, brings into consideration the parties' means and pre-separation spending pattern."</blockquote>

====Reasonableness====

When the court is asked to consider a particular expense, it should first decide whether the expense is necessary and reasonable according to the parties' financial resources. For lower income parents, fewer expenses will be considered reasonable.

*Daycare will almost always be considered necessary and reasonable, if that daycare is incurred as a result of the parent’s employment, illness, disability, or education or training for employment. Daycare subsidies will be taken into account when apportioning daycare expenses between the parents, as will tax-deductibility.

For parents with more money, more expenses may qualify as reasonable:

*Cosmetic orthodontic work.
*Dance, music, and art classes, swimming lessons, and summer day camps.
*Less expensive team sports, like soccer, baseball, and basketball.
*Basic high-school graduation costs, such as tickets and gown or tuxedo rentals.
*Basic post-secondary education costs, such as tuition fees for a local college or university, student fees, and textbook costs.

For parents with lots of money, almost every big-ticket expense is probably going to be considered reasonable:

*Multiple week summer camps and trips abroad.
*Private school fees.
*Expensive team sports, like hockey and horseback polo, and expensive solo sports like skiing and scuba diving.
*Post-secondary education costs, including meal plans and residence costs.

====Necessity====

Sometimes the needs of the child will outweigh the cost of the expense to the child, and an expense will qualify as a special expense whether at a hardship to the parents or not.

*Medical costs, including costs that aren't covered by MSP such as autism therapies.
*Counselling services, where the counselling is necessary for the child's mental health.
*Tutoring services, where the child needs the extra help to get through school.
*Lessons or coaching in arts and sports, where the child has a special talent that should be nurtured.

A driver training course, for example, is unlikely to qualify as a special expense under the heading of necessity, since you can learn to drive and obtain a driver's license without it, as was decided in a 2011 Supreme Court case, ''[http://canlii.ca/t/2fzs4 M.S.J. v. J.M.J.]'', 2011 BCSC 245. On the other hand, if a semester with Sylvan Learning Centre will mean the difference between passing or failing a grade, the tutoring would probably be considered a necessity.

===Sharing qualifying expenses===

Under section 7(2) of the Guidelines, expenses that qualify as special and/or extraordinary expenses are generally shared by the parties in proportion to their incomes, after deducting any contribution to those costs made by the child or the government, through things like grants or tax deductions. The idea here is to look at the total pot of money available to the child — the income of the payor plus the income of the recipient — and to figure out how much each party's share of that pot is, and then pay the child's special expenses according to each parent's share.

The easiest way to calculate a parent's ''proportionate share'' is to add the incomes of both parents together and then figure out what percentage each income is of the total. Here are two examples.

:'''Example #1'''

<blockquote>If one parent earns $75,000 per year and the other $25,000, the total pot available to the child is $100,000. Of that sum, the first parent contributes 75% and the second parent 25%. As a result, the first parent would be ordered to pay 75% of qualifying expenses, and the second parent 25%.
</blockquote>

:'''Example #2'''

<blockquote>If one parent earns $48,000 per year and the other $62,000, the total of their incomes is $110,000. The first parent's income is 43.6% of the total, and the other parent's income is 56.4% of the total. The first parent would have to pay 43.6% of all qualifying special expenses, and the second would have to pay 54.6% of those expenses.</blockquote>

The cost that is being shared is the ''net cost'' of an expense, in other words, the amount that is actually being paid after any third-party contributions have been applied to reduce the expense. Daycare costs, for example, are sometimes subsidized for lower income earners and the amount paid by a parent is deductible from their income. It is the net expense after deducting any subsidy and any tax saving that is to be shared.

Note that the income of a parent's new spouse or partner may sometimes be taken into consideration in determining a parent's "means" in sharing a special expense. In the 2000 Supreme Court case of ''[http://canlii.ca/t/1fm6b Baum v. Baum]'', 2000 BCSC 1835, the court held that the section 7(1) consideration of the "means of the spouses" should be interpreted broadly as including all sources of income available to the paying parent, including the contribution of a parent's new partner. Also see the case of [http://canlii.ca/t/53kt ''Scott v. Scott''], 2000 BCSC 844.

==The calculation of income==

Before the court even looks at the Child Support Guidelines tables it has to decide what the payor's income is. The tables set out the amount of child support payable according to the payor's income. The Guidelines require that the court use the most up-to-date information available. Sections 15 to 20 of the Guidelines set out the rules the court must apply in determining income.

According to Rule 5-1 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules] and Rule 4 of the [http://canlii.ca/t/85pb Provincial Court (Family) Rules], when someone makes an application for child support, the payor or both the payor and recipient are required to disclose their financial circumstances using a court form called a Financial Statement. Financial statements require each party to set out their income and expenses, and assets and liabilities. Certain income documents must be attached to a financial statement, typically:

#the last three years' tax returns (what's required is the complete income tax and benefit return, not tax return "summaries" or "informations"),
#all notices of assessment and reassessment received for the last three tax years,
#the party's most recent paystub, showing their earnings to date, or if the party isn't working, then their most recent WCB statement, social assistance statement, or EI statement, and
#business records like financial statements and corporate income tax returns, if the party has a company.

The basic rule of thumb is that a party's income for the purposes of the Guidelines is the amount stated at line 150 of the payor's most recent tax return, although there are important exceptions that apply when a person's income is from self-employment. A party's income includes all of the party's income, not just income from a job. ''Income'' might include bonuses, rental income, profit from stock options, company dividends, Workers Compensation payments, long term or short term disability payments, personal injury awards (that relate to loss of income), pension income, government benefits, interest from an investment, and so forth, as well as employment and self-employment income.

Section 2(3) of the Guidelines requires that the most current income information be used; this can include a calculation of income based on paystub evidence. Most of the time income is based on the most recent tax year, since the income information for that year is complete. This means that there is usually a one-year lag between the amount of support being paid and the payor's income. However, if a payor's current income can be known with certainty, such as if the payor is an employee without bonus or commission income, child support can be determined using the payor's current income.

===Government benefits===

Payments from WCB, Employment Insurance, CPP, Old Age Security, and social assistance all count as income under the Guidelines. If a party is receiving these payments as a temporary substitute for employment income, the party's income may be assessed at their usual income. A temporary period on social assistance, for example, won't entitle a payor to have their income assessed at that unusually low level into the future.

Note that Canada Child Tax Benefits are not considered income for basic child support purposes, but may be taken into account when determining the sharing of special and extraordinary expenses.

===Fluctuating income===

Where a party's income changes from year to year for reasons beyond the party's control, such as fluctuating commission sales or bonuses that are assessed by an employer, the court may take the party's income over the past three years into consideration in setting the payor's income. In certain circumstances, the court may fix the party's income as the ''average'' of their income over the last three years.

===Unexpected losses and gains===

Where a payor has suffered an unexpected loss, such as a corporate loss or an investment loss, or enjoyed an unexpected gain, such as from cashing in RRSPs or selling stock, the court has the discretion to decide to take this into consideration in setting the payor's income, and potentially not consider the loss or gain, if it was a one-time occurrence.

===Court awards===

If a payor has received an award from a civil court proceeding such as for wrongful dismissal or for personal injury, the court may attribute the portion of the award allocated for ''lost wages'' to a payor's income. The whole amount of the award, including the parts relating to pain and suffering, will not be seen as income for the purposes of the Guidelines, just the part intended to compensate for lost wages.

===Windfalls===

Money received from an inheritance, the sale of a house, or a lottery win does not count as income under the Guidelines. Any interest or other investment income earned or that should reasonably be earned from the inheritance or lottery win would count as income.

==Imputing income==

To ''impute'' income means to attribute income to a payor above that which the payor claims they earn, usually for making a support award based on that higher amount. Typically, someone asks the court to impute income to a payor where:

#the payor works in the service industry, for example as a restaurant server or a taxi driver, and receives tip income that is not reported on income tax returns,
#the payor is intentionally unemployed or under-employed (i.e. not working to their full skills and capacity),
#the payor has quit or been fired from their job,
#the payor moves from full- to part-time work without a very good reason,
#the payor is self-employed and either receives unpaid benefits from their company (like a company car, paid meals, or a free cell phone), or doesn't report the full amount of money taken from the company,
#the payor has refused to provide full and complete financial disclosure,
#the payor has or will have income from a trust,
#the payor has hidden or appears to have hidden some of their income, or
#the payor is not using resources at hand that could generate income, such as a vacant house that could be rented out or savings that could be invested.

If the court decides to impute income to a payor, child support will be payable at the Guidelines rate for the higher income. The parties' proportionate responsibility to contribute to the cost of any qualifying special and/or extraordinary expenses may be based on imputed income, including income imputed to the recipient.

The court can decide to impute income for the purposes of calculating child support in other circumstances, such as when the payor is underemployed or unemployed, is income splitting with a new partner, or lives in a place with a lower tax rate than usual.

===Underemployment and unemployment===

Section 19(1) of the Guidelines says that:

<blockquote><tt>The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(e) the spouse's property is not reasonably utilized to generate income;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(f) the spouse has failed to provide income information when under a legal obligation to do so;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(g) the spouse unreasonably deducts expenses from income;</tt></blockquote></blockquote>

In other words, the court may decide that a payor has a different income than that which the payor says they have if:

*the payor has quit a job in order to avoid paying child support,
*the payor has taken lower-paying work than they used to have, or is capable of holding, in order to minimize the amount of child support payable, or
*the payor has tried to reduce their income by claiming unreasonable deductions.

If you are going to make an argument that income should be imputed to someone, you will have to prove that one or more of the conditions described in section 19(1) exist. If a party's underemployment or unemployment is caused by child care responsibilities, the court will not usually impute income.

It's not enough merely to ''argue'' that one of the conditions listed in section 19(1) exist, you have to be able to ''provide evidence'' that the condition exists. The following factors were cited by the court in a 2003 Supreme Court case, ''[http://canlii.ca/t/1pt18 Nahu v. Chertkow]'', 2003 BCSC 1285, in determining whether a payor is intentionally underemployed or unemployed:

*the payor's education, training, and work experience,
*the payor's previous earnings and past borrowing of funds during unemployment,
*the payor's work history,
*the payor's spending patterns and lifestyle,
*the payor's efforts to upgrade their education and work qualifications,
*the nature and quality of the payor's attempts to obtain employment, and
*any evidence that the underemployment or unemployment is motivated by ill will towards the recipient.

This last point, about the payor's ill will, has to do with the idea that the payor is able to earn more but chooses not to. In the 1999 Supreme Court case ''[http://canlii.ca/t/1d2x1 Hanson v. Hanson]'', 1999 CanLII 6307 the court had this to say on the subject:

<blockquote>"1. There is a duty to seek employment in a case where a parent is healthy and there is no reason why the parent cannot work. It is 'no answer for a person liable to support a child to say that he is unemployed and does not intend to seek work or that his potential to earn income is an irrelevant factor' ...</blockquote>
<blockquote><tt>"2. When imputing income on the basis of intentional underemployment, a court must consider what is reasonable under the circumstances. The age, education, experience, skills and health of the parent are factors to be considered in addition to such matters as the availability of work, freedom to relocate and other obligations.</tt></blockquote>
<blockquote><tt>"3. A parent's limited work experience and job skills do not justify a failure to pursue employment that does not require significant skills, or employment in which the necessary skills can be earned on the job. ... [C]ourts have never sanctioned the refusal of a parent to take reasonable steps to support his or her children simply because the parent cannot obtain interesting or highly paid employment.</tt></blockquote>
<blockquote><tt>"4. Persistence in [poorly paid] employment may entitle the court to impute income.</tt></blockquote>
<blockquote><tt>"5. A parent cannot be excused from his or her child support obligations [to pursue] unrealistic or unproductive career aspirations.</tt></blockquote>
<blockquote><tt>"6. As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income."</tt></blockquote>

==="Grossing up" income===

Section 19(1) of the Guidelines also says that:

<blockquote><tt>The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:</tt></blockquote>
<blockquote><blockquote><tt>(b) the spouse is exempt from paying federal or provincial income tax;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax.</tt></blockquote></blockquote>

Under these sections of the Guidelines, payors who have a lower income tax obligation than usual, such as certain First Nations persons living on reserve who might pay no federal taxes, or persons who live in another country with a lower tax rate, can have their income ''grossed up'' to reflect this tax advantage when child support is determined.

The grossing up process essentially involves figuring out the amount of money the payor would have to earn to have the same after-tax income at the tax rates normally applicable to residents of British Columbia. This will result in income being imputed to the payor for the purposes of calculating child support, with a consequent increase in the amount of child support that will be payable.

The math behind grossing up someone's income is a bit complex. Essentially, the idea is to figure out the amount of income the person would have to earn before taxes to receive the amount they earn net of taxes. Think of it like this:

<blockquote>Say Mr. A earns $100,000 per year. As a resident of British Columbia, Mr. A pays income tax at, for example, 40%. This means that Mr. A's income, net of taxes, is $60,000 per year.</blockquote>
<blockquote>Mr. B also earns $100,000 per year. Mr. B, on the other hand, lives in Texas, and has an income tax rate of, for example, 25%. This means that Mr. B's net income is $75,000 per year.</blockquote>
<blockquote>Income for the purposes of the Guidelines would normally be calculated for both Mr. A and Mr. B at a gross income of $100,000. In reality, though, Mr. A has a lot less money after income taxes are paid than Mr. B does. Mr. B actually has a lot more money than Mr. A, and ought to pay child support based on this additional money.</blockquote>
<blockquote>Mr. B's income would be "grossed up" to figure out what income he would have to earn in BC to have an after-tax income of $75,000. Since he would pay income tax at a rate of 40% here, the court would consider Mr. B to have a gross income of $125,000 for the purposes of child support, since tax of 40% on a gross income of $125,000 leaves a net income of $75,000.</blockquote>
<blockquote>Mr. A and Mr. B both have incomes of $100,000 per year. Mr. A will pay his base amount of support at that income, but Mr. B will pay at a grossed up income of $125,000 to reflect what he would have to earn in BC to have the after-tax income of $75,000 he has living in Texas.</blockquote>

Grossing up a payor's income can be a bit tricky, and requires a knowledge of the income tax laws applicable to First Nations payors earning income on First Nations reserve lands and to payors earning income outside of Canada. If you have a problem in this area, you should consider hiring a lawyer to help you.

==Child support and parents' new partners==

Parents and guardians usually move on with their lives after the relationship that produced their children has ended. They will meet new people and enter into new romantic relationships. Parents and their new partners are often concerned about how their relationship will impact on the payor parent's obligation to pay child support. The parent might be concerned to know whether the new partner's income will be added to their income in calculating child support. The new partner will want to know whether they are now on the hook for support and must contribute to the parent's payments or towards the parent's children.

===Basic child support payments===

The income of a parent's new partner is not relevant to the payment of basic child support, nor is a payor's new partner obliged to pay child support. The new partner will not inherit the child support obligation in the event the payor dies, and the recipient of support won't be able to pursue the new partner for continuing or supplemental payments. If the new partner and the parent separate, however, the new partner might become obligated to pay child support as a result of them being a stepparent to the children. See the section that deals with stepparents’ obligations.

For the purposes of calculating the base amount of child support a parent must pay — that is, the parent's basic obligation under the Child Support Guidelines, before special and/or extraordinary expenses — the court will only look at the parent's income. The income of the new partner is not taken into account.

===Undue hardship claims===

Section 10 of the Child Support Guidelines allows parties to argue that the base amount of support set out in the Guidelines tables is too low or too high and would cause ''undue hardship'' if the table amount was paid. Payors will claim that the base amount is too high, while recipients will argue that it is too low. This chapter discusses exceptions to the Guidelines more thoroughly in the section, [[Exceptions to the Child Support Guidelines]].

If undue hardship is claimed, the court will look at the standard of living of each parent's ''household'', rather than the standard of living of each parent alone. This means that the court, in deciding whether there is undue hardship, will look at the total expenses and total income of each parent's household, including the income of each parent's new partner. This will not cause the new partner to be liable to pay support; it just means that their income will be taken into consideration to see whether the usual table amount of support payable is unduly high or low.

===Incomes in excess of $150,000===

The tables provided in the Child Support Guidelines set out the amount of support owing by payors who earn up to $150,000 per year. The Guidelines provide a mathematical formula for figuring out what parents earning more than $150,000 must pay, while payors earning less than $12,000 pay nothing.

Section 4 of the Guidelines deals with parents who earn more than $150,000 each year. Under this section, the income (or lack of income) of a parent's new partner may be taken into account in deciding whether the formula gives a fair result. The calculation of support owing by parents with incomes in excess of $150,000 is discussed in more detail in [[Exceptions to the Child Support Guidelines]].

Section 4(b)(ii) of the Guidelines says that when considering the amount payable above the basic amount for a payor whose annual income is $150,000, the court should apply the formula but take into account:

<blockquote><tt>... the condition, means, needs and other circumstances of the children who are entitled to support and the financial ability of each spouse to contribute to the support of the children ...</tt></blockquote>

In other words, the income of a new partner can be taken into account under the general heading of "financial ability" of a spouse in determining whether the formula amount is fair.

===Special expenses===

Section 7 of the Guidelines allows for sharing of the children's special and/or extraordinary expenses between the parents, as discussed above. In figuring out how much a parent should have to contribute to these expenses, the court is required to take into account, among other things, "the necessity and reasonableness of the expense in relation to the means of the spouses and those of the child."

A parent's new partner's income can be taken into consideration in assessing the "means of the spouses," which is exactly what the court did in the 2000 Supreme Court case of ''[http://canlii.ca/t/1fm6b Baum v. Baum]'', 2000 BCSC 1835. In that decision, the court held that ''means of the spouses'' should be interpreted broadly as including all of the means available to the paying parent, including the financial contribution of their new partner.

Again, the new partner will not be responsible to pay child support or a share of the children's special expenses as a result; only the payor's obligation will be affected by the new partner's income.

===Death of the payor===

A number of readers have asked whether they will have any responsibility to make child support payments if their partner, who is a parent or guardian under an obligation to pay child support, dies. The simple answer to that question is no, they will have no responsibility. The fact that they are in a relationship with a paying parent doesn't necessarily mean that they will have a duty to keep paying support if that parent dies.

While that is a good general rule, and one you can probably rely on, it is possible that a claim could be made against the new partner as a ''stepparent'' of the child under the ''[[Family Law Act]]''. The act says that all parents, guardians, and stepparents are required to support their children, but section 147 says that stepparents who are obliged to pay child support must have contributed to the support of the child for at least one year. In other words, a new partner who marries a paying parent may have an obligation if they have contributed to the support of the child. Again, while this is technically possible, orders against new partners following the death of the paying parent are extremely rare.

The deceased parent’s estate may, however, be liable to pay child support and a claim could be made against the estate under the ''Wills Estates and Succession Act'', but this is beyond the scope of this chapter.

==Agreements and orders for child support==

===Orders for child support===

An order for child support typically contains the following elements:

*a statement of the names and birthdates of the children for whom support will be paid,
*a declaration of the payor's income,
*an order as to the Guidelines amount payable,
*an order about the exchange of income information, and
*a statement of the date on which child support will no longer be payable.

These elements look like this in a typical order made under the ''[[Divorce Act]]'':

<blockquote><tt>UPON the Court being advised that the children of the marriage are</tt></blockquote>
<blockquote><blockquote><tt>Jesse Ann Doe, born on 1 March 1998, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>Sandra Alexandra Doe, born on 1 April 2000;</tt></blockquote></blockquote>
<blockquote><tt>AND UPON the Court finding that the Claimant's income for the purposes of the Child Support Guidelines is $72,000.00 per year;</tt></blockquote>
<blockquote><tt>THIS COURT ORDERS that:</tt></blockquote>
<blockquote><tt>1. The Claimant, Jane Doe, payor, shall pay to the Respondent, John Doe, recipient, the sum of $1,092 per month, commencing on the first day of April 2013 and continuing on the first day of each and every month thereafter until such time as the children are no longer "children of the marriage" as defined by the ''Divorce Act''; and,</tt></blockquote>
<blockquote><tt>2. The Claimant shall provide to the Respondent a copy of her tax return on the first day of May 2014 and continuing on the first day of May for each and every year thereafter until such time as the children are no longer "children of the marriage," and the Claimant shall provide to the Respondent a copy of each Canada Revenue Agency Notice of Assessment or Notice of Reassessment within two weeks of her receipt of the same, and adjusting child support accordingly, and continuing until such time as the children are no longer "children of the marriage." </tt></blockquote>

Under the ''[[Family Law Act]]'', the order would look like this:

<blockquote><tt>UPON the Court being advised that the children are</tt></blockquote>
<blockquote><blockquote><tt>Jesse Ann Doe, born on 1 March 2008, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>Sandra Alexandra Doe, born on 1 April 2010;</tt></blockquote></blockquote>
<blockquote><tt>AND UPON the Court finding that the Claimant's income for the purposes of the Child Support Guidelines is $72,000.00 per year;</tt></blockquote>
<blockquote><tt>THIS COURT ORDERS that:</tt></blockquote>
<blockquote><tt>1. The Claimant, Jane Doe, payor, shall pay to the Respondent, John Doe, recipient, the sum of $1,092 per month, commencing on the first day of April 2018 and continuing on the first day of each and every month thereafter until such time as the children are no longer "children" as defined by the ''Family Law Act''; and,</tt></blockquote>
<blockquote><tt>2. The Claimant shall provide to the Respondent a copy of her tax return on the first day of May 2019 and continuing on the first day of May for each and every year thereafter until such time as the children are no longer "children" as defined by the ''Family Law Act'', and the Claimant shall provide to the Respondent a copy of each Canada Revenue Agency Notice of Assessment or Notice of Reassessment within two weeks of her receipt of the same, and adjusting child support accordingly, and continuing until such time as the children are no longer "children." </tt></blockquote>

The point of the last clause of each of these sample orders is to require the payor to annually provide evidence of their income to the recipient so that both parties can decide whether an increase or a decrease in the amount payable is appropriate.

If the Order is to include special and extraordinary expenses, the Order will usually include:
* the recipient spouse’s income (including any spousal support they might be receiving),
* the percentage contribution due for each parent to cover special expenses, and
* a requirement that both parents exchange income information each year.

Disclosure of income by both parents is also required in shared and split custody cases.

It is a good idea to specify in a child support order whether the order is made under the ''Divorce Act'' or the ''Family Law Act'' as it could have an effect on a future variation application. For more information, see the case of [http://canlii.ca/t/fspd1 ''Yu v. Jordan''], 2012, BCCA 367.

===Agreements for child support===

Separation agreements, like all family law agreements, have two types of statements. The ''recitals'' are statements that talk about the parties and their relationship. They explain the parties' background and why they signed their agreement. The ''operative clauses'' of an agreement are statements that say what each party has promised to do.

The recitals to a separation agreement about child support would include statements like these:

<blockquote><tt>D. Jane Doe is a plumber working for ABC Plumbing, earning about $72,000 per year.</tt></blockquote>
<blockquote><tt>E. John Doe is a graphic artist working for Sunny Skies Art and Design, earning about $40,000 per year.</tt></blockquote>
<blockquote><tt>F. Jane and John have two children, Jesse, who is 15, and Sandra who is 13.</tt></blockquote>

The operative clauses about child support might say something like this:

<blockquote><tt>15. Jane will pay child support to John in the amount of $1,092 per month, beginning on 1 April 2013 and continuing on the first day of each month thereafter while Jesse and Sandra remain "children" as defined by the ''Family Law Act''.</tt></blockquote>
<blockquote><tt>16. Jane will give John a copy of her tax return by no later than May 31 each year and will also give John a copy of each Canada Revenue Agency Notice of Assessment or Notice of Reassessment within two weeks of receiving it each year for so long as the children are still "children" as defined by the ''Family Law Act''.</tt></blockquote>

Both court orders and separation agreements should include the children’s full names, birth dates, the amounts of basic child support and special expenses, the date for the commencement of those payments, and the Act under which the child support order is made. Those details are important so that the court orders and agreements can be enforced.

==Child support tables and calculators==

The [http://laws-lois.justice.gc.ca/eng/regulations/SOR-97-175/page-11.html#h-15 simplified Child Support Guidelines Tables for British Columbia] are available from the website of the federal Department of Justice. The federal government has published an [http://www.justice.gc.ca/eng/fl-df/child-enfant/look-rech.asp online child support calculator].

The provincial government also operates the BC Child Support Info Line which offers free information about child support and the child support tables. Contact the Info Line at:

*Lower Mainland: 604-660-2192 
*Outside the Lower Mainland: 888-216-2211


==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [http://canlii.ca/t/80mh Child Support Guidelines]

===Links===

* [http://laws-lois.justice.gc.ca/eng/regulations/SOR-97-175/page-11.html#h-15 Child Support Guidelines Tables for British Columbia]
* [http://www.justice.gc.ca/eng/fl-df/child-enfant/look-rech.asp Online Child Support Calculator]
* [http://www.clicklaw.bc.ca/resource/1175 BC Ministry of Attorney General's FMEP Child Support Calculator]
* [http://www.clicklaw.bc.ca/resource/1235 Dial-A-Law Script "Child support"]
* [http://www.clicklaw.bc.ca/resource/1618 Legal Services Society's Family Law website's information page "Child & spousal support"]
** Under "Child support", see "What are the child support guidelines and how do they work?"

{{REVIEWED | reviewer = [[Bill Murphy-Dyson | William Murphy-Dyson]] and [[Inga Phillips]], June 14, 2019}}

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[[Category:JP Boyd on Family Law]]

Child Support Guidelines

2021-03-06T21:15:49Z

Jpboyd: /* Qualifying expenses as "special and/or extraordinary" */

{{JP Boyd on Family Law TOC|expanded = childsupport}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bill Murphy-Dyson]] and [[Inga Phillips]]
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{{Clicklawbadge
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| link = [https://www.clicklaw.bc.ca/global/search?k=child%20support child support]
}}Often simply referred to as the Guidelines, the [http://canlii.ca/t/80mh Child Support Guidelines], SOR/97-175, is a federal regulation, adopted by all of the provinces except Quebec, that describes the rules that the courts must apply when making an order for child support.

The most important feature of the Guidelines is the child support tables that fix the amount of support payments according to both the annual income of the person paying support and the number of children the support is to be paid for.

The Guidelines cover every aspect of child support, including the calculation of income, how children's special expenses are paid for, the amount of support payable when the parents have the children for an almost equal amount of time, and the amount payable when one or more of the children live full-time with each parent.

This section talks about the basic principles of the Guidelines, the sharing of special and extraordinary expenses, the calculation of income, ''imputing'' income, and the circumstances in which the income of a parent's or guardian's new partner may be taken into account. It also provides an example of the contents of a typical child support order.

'''Important changes''' 
Look for explanations under this heading to read about recent changes to family law affecting the information provided in this section.

==Basic principles==

It used to be that the party claiming child support, the ''recipient'', had to show the amount of support the child needed and prove that the person being asked to pay support, the ''payor'', had the means to pay that amount. Now, the amount of a child support order or an agreement for child support is based on the amounts set out in the tables attached to the Child Support Guidelines. The Guidelines have generally reduced the amount of disagreement between parents about the amount of child support, whether they're in court arguing about an order, or are negotiating a separation agreement. Most of the disagreement now tends to be about either the income of the payor or child support for children over 19.

The Guidelines tables were most recently adjusted on November 22, 2017. If you are relying on a printed version of the child support tables to figure out how much child support should be paid, make sure that your materials reflect the new table amounts, effective as of November 22, 2017.

The Guidelines' key presumption is set out in section 3(1):

<blockquote><tt>Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority is</tt></blockquote>
<blockquote><blockquote><tt>(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the amount, if any, determined under section 7.</tt></blockquote></blockquote>

This is, however, only a presumption, and can be challenged or ''rebutted'', as is discussed in this chapter's next section, [[Exceptions to the Child Support Guidelines]]. In the vast majority of cases, however, the amount of child support payable is calculated using the payor's gross (before tax) yearly income at the time the order is made.

Over time, of course, the payor's income may go up or down. Both the payor and the recipient can make an application to change the original order or the agreement so that the amount of child support reflects the payor's current income. The payor would make the application if their income has fallen, while the recipient would make the application when the payor's income has increased. To avoid a situation where parents are continually making trips back to court to seek an adjustment of child support, it's a good idea to include a term in the court order or agreement that requires both parents to regularly exchange income information, usually every year after taxes have been filed, so that child support can be adjusted from time to time without having to go to court.

Another important presumption in the Guidelines is that the amount of support payable is set according to the number of children to which each particular support order relates. If a payor has two children from one relationship and three from another, the first order will be based on the Guidelines amount for two children and the second will be based on the amount for three children. The payor's obligation is not based on the Guidelines amount for the total number of five children.

Finally, the amount of support payable is based only on the payor's income, unless there is a shared or a split parenting arrangement, in which case both parents’ incomes are taken into account.

==Special expenses and extraordinary expenses==

The basic amount of child support a parent pays is presumed to cover a very wide scope of common day-to-day expenses associated with raising children: the child's share of lodging, utilities, shoes, groceries, diapers, clothes, toothpaste, school field trip fees, entertainment, haircuts, and so forth. The basic amount of support is not always presumed to include certain other kinds of expenses that are infrequent but expensive, such as the cost of daycare or orthodontic work. In addition to the basic amount of support payable, the parents may also be required to cover their respective portions of these other expenses, so long as they qualify as ''special and/or extraordinary expenses'' under the Guidelines.

Special and/or extraordinary expenses are defined in section 7(1) of the Guidelines:

<blockquote><tt>(a) child care expenses incurred as a result of the custodial parent's employment, illness, disability or education or training for employment;</tt></blockquote>
<blockquote><tt>(b) that portion of the medical and dental insurance premiums attributable to the child;</tt></blockquote>
<blockquote><tt>(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;</tt></blockquote>
<blockquote><tt>(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child's particular needs;</tt></blockquote>
<blockquote><tt>(e) expenses for post-secondary education; and</tt></blockquote>
<blockquote><tt>(f) extraordinary expenses for extracurricular activities.</tt></blockquote>

Section 7(1.1) clarifies (1)(d) and (1)(f), and says that for these subsections "extraordinary expenses" means:

<blockquote><tt>(a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or</tt></blockquote>
<blockquote><tt>(b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account</tt></blockquote>
<blockquote><blockquote><tt>(i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) the nature and number of the educational programs and extracurricular activities,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(iii) any special needs and talents of the child or children,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(iv) the overall cost of the programs and activities, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(v) any other similar factor that the court considers relevant.</tt></blockquote></blockquote>

Special expenses are shared between the payor and recipient in proportion to their incomes. These provisions of the Guidelines are intended to ensure that, if either parent incurs significant additional expenses for the child's needs or activities, ''both'' parents will share the cost on the principle that it is in children's best interests to have such needs met or to participate in such activities.

If an expense is found to qualify as a special and/or extraordinary expense under the section 7(1) and section 7(1.1) definitions, the court may make an order that both parties pay additional amounts, in addition to the usual Guidelines basic amount of support, to cover all or a portion of the cost of the expense.

===Qualifying expenses as special expenses and extraordinary expenses===

Just because an expense appears to fall into one of the categories listed in section 7 of the Guidelines doesn't necessarily make it a shareable special and/or extraordinary expense. As well, just because an expense has been incurred doesn't mean it will automatically be shared; if you're not sure whether a planned expense will qualify as a shareable special expense, get some legal advice or talk to the other parent first to see if they will agree to share in the expense.

An expense that may not qualify as a special expense for higher-earning families may qualify as such for low-income families. For example, if guideline child support of $2,000.00 for one child is being paid, the $200.00 cost of soccer registration will probably not be considered a special expense (and will have to be paid from the $2,000 basic child support by the recipient parent), but that same $200.00 expense may be a special expense if only $500.00 per month Guideline support is being paid (and will therefore have to be shared between the parents).

According to section 7(1) of the Guidelines, the court must not only find that an expense fits into one of the categories listed above, but also consider:

*the "reasonableness of the expense in relation to the means of the spouses and those of the child and to the family's spending pattern prior to the separation," and
#the necessity of the expense in relation to the child's best interests,

The court must bear in mind the special test for primary- and secondary-school education and extracurricular activities required by section 7(1.1). Here's a helpful summary from a 2010 case from our Supreme Court, ''[http://canlii.ca/t/2dpzr Piper v. Piper]'', 2010 BCSC 1718:

<blockquote>"Under section 7(1.1)(a) the court is first required to consider whether the income of the requesting spouse, including any child support received, can reasonably cover the expense claimed or whether the expense exceeds her ability to pay without any consideration of the factors enumerated in section 7(1.1)(b). If the income cannot cover the expense, the expense is deemed to be extraordinary and the court's next analysis turns to consideration of the factors enumerated in section 7(1) which, of course, brings into consideration the parties' means and pre-separation spending pattern."</blockquote>

====Reasonableness====

When the court is asked to consider a particular expense, it should first decide whether the expense is necessary and reasonable according to the parties' financial resources. For lower income parents, fewer expenses will be considered reasonable.

*Daycare will almost always be considered necessary and reasonable, if that daycare is incurred as a result of the parent’s employment, illness, disability, or education or training for employment. Daycare subsidies will be taken into account when apportioning daycare expenses between the parents, as will tax-deductibility.

For parents with more money, more expenses may qualify as reasonable:

*Cosmetic orthodontic work.
*Dance, music, and art classes, swimming lessons, and summer day camps.
*Less expensive team sports, like soccer, baseball, and basketball.
*Basic high-school graduation costs, such as tickets and gown or tuxedo rentals.
*Basic post-secondary education costs, such as tuition fees for a local college or university, student fees, and textbook costs.

For parents with lots of money, almost every big-ticket expense is probably going to be considered reasonable:

*Multiple week summer camps and trips abroad.
*Private school fees.
*Expensive team sports, like hockey and horseback polo, and expensive solo sports like skiing and scuba diving.
*Post-secondary education costs, including meal plans and residence costs.

====Necessity====

Sometimes the needs of the child will outweigh the cost of the expense to the child, and an expense will qualify as a special expense whether at a hardship to the parents or not.

*Medical costs, including costs that aren't covered by MSP such as autism therapies.
*Counselling services, where the counselling is necessary for the child's mental health.
*Tutoring services, where the child needs the extra help to get through school.
*Lessons or coaching in arts and sports, where the child has a special talent that should be nurtured.

A driver training course, for example, is unlikely to qualify as a special expense under the heading of necessity, since you can learn to drive and obtain a driver's license without it, as was decided in a 2011 Supreme Court case, ''[http://canlii.ca/t/2fzs4 M.S.J. v. J.M.J.]'', 2011 BCSC 245. On the other hand, if a semester with Sylvan Learning Centre will mean the difference between passing or failing a grade, the tutoring would probably be considered a necessity.

===Sharing qualifying expenses===

Under section 7(2) of the Guidelines, expenses that qualify as special and/or extraordinary expenses are generally shared by the parties in proportion to their incomes, after deducting any contribution to those costs made by the child or the government, through things like grants or tax deductions. The idea here is to look at the total pot of money available to the child — the income of the payor plus the income of the recipient — and to figure out how much each party's share of that pot is, and then pay the child's special expenses according to each parent's share.

The easiest way to calculate a parent's ''proportionate share'' is to add the incomes of both parents together and then figure out what percentage each income is of the total. Here are two examples.

:'''Example #1'''

<blockquote>If one parent earns $75,000 per year and the other $25,000, the total pot available to the child is $100,000. Of that sum, the first parent contributes 75% and the second parent 25%. As a result, the first parent would be ordered to pay 75% of qualifying expenses, and the second parent 25%.
</blockquote>

:'''Example #2'''

<blockquote>If one parent earns $48,000 per year and the other $62,000, the total of their incomes is $110,000. The first parent's income is 43.6% of the total, and the other parent's income is 56.4% of the total. The first parent would have to pay 43.6% of all qualifying special expenses, and the second would have to pay 54.6% of those expenses.</blockquote>

The cost that is being shared is the ''net cost'' of an expense, in other words, the amount that is actually being paid after any third-party contributions have been applied to reduce the expense. Daycare costs, for example, are sometimes subsidized for lower income earners and the amount paid by a parent is deductible from their income. It is the net expense after deducting any subsidy and any tax saving that is to be shared.

Note that the income of a parent's new spouse or partner may sometimes be taken into consideration in determining a parent's "means" in sharing a special expense. In the 2000 Supreme Court case of ''[http://canlii.ca/t/1fm6b Baum v. Baum]'', 2000 BCSC 1835, the court held that the section 7(1) consideration of the "means of the spouses" should be interpreted broadly as including all sources of income available to the paying parent, including the contribution of a parent's new partner. Also see the case of [http://canlii.ca/t/53kt ''Scott v. Scott''], 2000 BCSC 844.

==The calculation of income==

Before the court even looks at the Child Support Guidelines tables it has to decide what the payor's income is. The tables set out the amount of child support payable according to the payor's income. The Guidelines require that the court use the most up-to-date information available. Sections 15 to 20 of the Guidelines set out the rules the court must apply in determining income.

According to Rule 5-1 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules] and Rule 4 of the [http://canlii.ca/t/85pb Provincial Court (Family) Rules], when someone makes an application for child support, the payor or both the payor and recipient are required to disclose their financial circumstances using a court form called a Financial Statement. Financial statements require each party to set out their income and expenses, and assets and liabilities. Certain income documents must be attached to a financial statement, typically:

#the last three years' tax returns (what's required is the complete income tax and benefit return, not tax return "summaries" or "informations"),
#all notices of assessment and reassessment received for the last three tax years,
#the party's most recent paystub, showing their earnings to date, or if the party isn't working, then their most recent WCB statement, social assistance statement, or EI statement, and
#business records like financial statements and corporate income tax returns, if the party has a company.

The basic rule of thumb is that a party's income for the purposes of the Guidelines is the amount stated at line 150 of the payor's most recent tax return, although there are important exceptions that apply when a person's income is from self-employment. A party's income includes all of the party's income, not just income from a job. ''Income'' might include bonuses, rental income, profit from stock options, company dividends, Workers Compensation payments, long term or short term disability payments, personal injury awards (that relate to loss of income), pension income, government benefits, interest from an investment, and so forth, as well as employment and self-employment income.

Section 2(3) of the Guidelines requires that the most current income information be used; this can include a calculation of income based on paystub evidence. Most of the time income is based on the most recent tax year, since the income information for that year is complete. This means that there is usually a one-year lag between the amount of support being paid and the payor's income. However, if a payor's current income can be known with certainty, such as if the payor is an employee without bonus or commission income, child support can be determined using the payor's current income.

===Government benefits===

Payments from WCB, Employment Insurance, CPP, Old Age Security, and social assistance all count as income under the Guidelines. If a party is receiving these payments as a temporary substitute for employment income, the party's income may be assessed at their usual income. A temporary period on social assistance, for example, won't entitle a payor to have their income assessed at that unusually low level into the future.

Note that Canada Child Tax Benefits are not considered income for basic child support purposes, but may be taken into account when determining the sharing of special and extraordinary expenses.

===Fluctuating income===

Where a party's income changes from year to year for reasons beyond the party's control, such as fluctuating commission sales or bonuses that are assessed by an employer, the court may take the party's income over the past three years into consideration in setting the payor's income. In certain circumstances, the court may fix the party's income as the ''average'' of their income over the last three years.

===Unexpected losses and gains===

Where a payor has suffered an unexpected loss, such as a corporate loss or an investment loss, or enjoyed an unexpected gain, such as from cashing in RRSPs or selling stock, the court has the discretion to decide to take this into consideration in setting the payor's income, and potentially not consider the loss or gain, if it was a one-time occurrence.

===Court awards===

If a payor has received an award from a civil court proceeding such as for wrongful dismissal or for personal injury, the court may attribute the portion of the award allocated for ''lost wages'' to a payor's income. The whole amount of the award, including the parts relating to pain and suffering, will not be seen as income for the purposes of the Guidelines, just the part intended to compensate for lost wages.

===Windfalls===

Money received from an inheritance, the sale of a house, or a lottery win does not count as income under the Guidelines. Any interest or other investment income earned or that should reasonably be earned from the inheritance or lottery win would count as income.

==Imputing income==

To ''impute'' income means to attribute income to a payor above that which the payor claims they earn, usually for making a support award based on that higher amount. Typically, someone asks the court to impute income to a payor where:

#the payor works in the service industry, for example as a restaurant server or a taxi driver, and receives tip income that is not reported on income tax returns,
#the payor is intentionally unemployed or under-employed (i.e. not working to their full skills and capacity),
#the payor has quit or been fired from their job,
#the payor moves from full- to part-time work without a very good reason,
#the payor is self-employed and either receives unpaid benefits from their company (like a company car, paid meals, or a free cell phone), or doesn't report the full amount of money taken from the company,
#the payor has refused to provide full and complete financial disclosure,
#the payor has or will have income from a trust,
#the payor has hidden or appears to have hidden some of their income, or
#the payor is not using resources at hand that could generate income, such as a vacant house that could be rented out or savings that could be invested.

If the court decides to impute income to a payor, child support will be payable at the Guidelines rate for the higher income. The parties' proportionate responsibility to contribute to the cost of any qualifying special and/or extraordinary expenses may be based on imputed income, including income imputed to the recipient.

The court can decide to impute income for the purposes of calculating child support in other circumstances, such as when the payor is underemployed or unemployed, is income splitting with a new partner, or lives in a place with a lower tax rate than usual.

===Underemployment and unemployment===

Section 19(1) of the Guidelines says that:

<blockquote><tt>The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(e) the spouse's property is not reasonably utilized to generate income;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(f) the spouse has failed to provide income information when under a legal obligation to do so;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(g) the spouse unreasonably deducts expenses from income;</tt></blockquote></blockquote>

In other words, the court may decide that a payor has a different income than that which the payor says they have if:

*the payor has quit a job in order to avoid paying child support,
*the payor has taken lower-paying work than they used to have, or is capable of holding, in order to minimize the amount of child support payable, or
*the payor has tried to reduce their income by claiming unreasonable deductions.

If you are going to make an argument that income should be imputed to someone, you will have to prove that one or more of the conditions described in section 19(1) exist. If a party's underemployment or unemployment is caused by child care responsibilities, the court will not usually impute income.

It's not enough merely to ''argue'' that one of the conditions listed in section 19(1) exist, you have to be able to ''provide evidence'' that the condition exists. The following factors were cited by the court in a 2003 Supreme Court case, ''[http://canlii.ca/t/1pt18 Nahu v. Chertkow]'', 2003 BCSC 1285, in determining whether a payor is intentionally underemployed or unemployed:

*the payor's education, training, and work experience,
*the payor's previous earnings and past borrowing of funds during unemployment,
*the payor's work history,
*the payor's spending patterns and lifestyle,
*the payor's efforts to upgrade their education and work qualifications,
*the nature and quality of the payor's attempts to obtain employment, and
*any evidence that the underemployment or unemployment is motivated by ill will towards the recipient.

This last point, about the payor's ill will, has to do with the idea that the payor is able to earn more but chooses not to. In the 1999 Supreme Court case ''[http://canlii.ca/t/1d2x1 Hanson v. Hanson]'', 1999 CanLII 6307 the court had this to say on the subject:

<blockquote>"1. There is a duty to seek employment in a case where a parent is healthy and there is no reason why the parent cannot work. It is 'no answer for a person liable to support a child to say that he is unemployed and does not intend to seek work or that his potential to earn income is an irrelevant factor' ...</blockquote>
<blockquote><tt>"2. When imputing income on the basis of intentional underemployment, a court must consider what is reasonable under the circumstances. The age, education, experience, skills and health of the parent are factors to be considered in addition to such matters as the availability of work, freedom to relocate and other obligations.</tt></blockquote>
<blockquote><tt>"3. A parent's limited work experience and job skills do not justify a failure to pursue employment that does not require significant skills, or employment in which the necessary skills can be earned on the job. ... [C]ourts have never sanctioned the refusal of a parent to take reasonable steps to support his or her children simply because the parent cannot obtain interesting or highly paid employment.</tt></blockquote>
<blockquote><tt>"4. Persistence in [poorly paid] employment may entitle the court to impute income.</tt></blockquote>
<blockquote><tt>"5. A parent cannot be excused from his or her child support obligations [to pursue] unrealistic or unproductive career aspirations.</tt></blockquote>
<blockquote><tt>"6. As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income."</tt></blockquote>

==="Grossing up" income===

Section 19(1) of the Guidelines also says that:

<blockquote><tt>The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:</tt></blockquote>
<blockquote><blockquote><tt>(b) the spouse is exempt from paying federal or provincial income tax;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax.</tt></blockquote></blockquote>

Under these sections of the Guidelines, payors who have a lower income tax obligation than usual, such as certain First Nations persons living on reserve who might pay no federal taxes, or persons who live in another country with a lower tax rate, can have their income ''grossed up'' to reflect this tax advantage when child support is determined.

The grossing up process essentially involves figuring out the amount of money the payor would have to earn to have the same after-tax income at the tax rates normally applicable to residents of British Columbia. This will result in income being imputed to the payor for the purposes of calculating child support, with a consequent increase in the amount of child support that will be payable.

The math behind grossing up someone's income is a bit complex. Essentially, the idea is to figure out the amount of income the person would have to earn before taxes to receive the amount they earn net of taxes. Think of it like this:

<blockquote>Say Mr. A earns $100,000 per year. As a resident of British Columbia, Mr. A pays income tax at, for example, 40%. This means that Mr. A's income, net of taxes, is $60,000 per year.</blockquote>
<blockquote>Mr. B also earns $100,000 per year. Mr. B, on the other hand, lives in Texas, and has an income tax rate of, for example, 25%. This means that Mr. B's net income is $75,000 per year.</blockquote>
<blockquote>Income for the purposes of the Guidelines would normally be calculated for both Mr. A and Mr. B at a gross income of $100,000. In reality, though, Mr. A has a lot less money after income taxes are paid than Mr. B does. Mr. B actually has a lot more money than Mr. A, and ought to pay child support based on this additional money.</blockquote>
<blockquote>Mr. B's income would be "grossed up" to figure out what income he would have to earn in BC to have an after-tax income of $75,000. Since he would pay income tax at a rate of 40% here, the court would consider Mr. B to have a gross income of $125,000 for the purposes of child support, since tax of 40% on a gross income of $125,000 leaves a net income of $75,000.</blockquote>
<blockquote>Mr. A and Mr. B both have incomes of $100,000 per year. Mr. A will pay his base amount of support at that income, but Mr. B will pay at a grossed up income of $125,000 to reflect what he would have to earn in BC to have the after-tax income of $75,000 he has living in Texas.</blockquote>

Grossing up a payor's income can be a bit tricky, and requires a knowledge of the income tax laws applicable to First Nations payors earning income on First Nations reserve lands and to payors earning income outside of Canada. If you have a problem in this area, you should consider hiring a lawyer to help you.

==Child support and parents' new partners==

Parents and guardians usually move on with their lives after the relationship that produced their children has ended. They will meet new people and enter into new romantic relationships. Parents and their new partners are often concerned about how their relationship will impact on the payor parent's obligation to pay child support. The parent might be concerned to know whether the new partner's income will be added to their income in calculating child support. The new partner will want to know whether they are now on the hook for support and must contribute to the parent's payments or towards the parent's children.

===Basic child support payments===

The income of a parent's new partner is not relevant to the payment of basic child support, nor is a payor's new partner obliged to pay child support. The new partner will not inherit the child support obligation in the event the payor dies, and the recipient of support won't be able to pursue the new partner for continuing or supplemental payments. If the new partner and the parent separate, however, the new partner might become obligated to pay child support as a result of them being a stepparent to the children. See the section that deals with stepparents’ obligations.

For the purposes of calculating the base amount of child support a parent must pay — that is, the parent's basic obligation under the Child Support Guidelines, before special and/or extraordinary expenses — the court will only look at the parent's income. The income of the new partner is not taken into account.

===Undue hardship claims===

Section 10 of the Child Support Guidelines allows parties to argue that the base amount of support set out in the Guidelines tables is too low or too high and would cause ''undue hardship'' if the table amount was paid. Payors will claim that the base amount is too high, while recipients will argue that it is too low. This chapter discusses exceptions to the Guidelines more thoroughly in the section, [[Exceptions to the Child Support Guidelines]].

If undue hardship is claimed, the court will look at the standard of living of each parent's ''household'', rather than the standard of living of each parent alone. This means that the court, in deciding whether there is undue hardship, will look at the total expenses and total income of each parent's household, including the income of each parent's new partner. This will not cause the new partner to be liable to pay support; it just means that their income will be taken into consideration to see whether the usual table amount of support payable is unduly high or low.

===Incomes in excess of $150,000===

The tables provided in the Child Support Guidelines set out the amount of support owing by payors who earn up to $150,000 per year. The Guidelines provide a mathematical formula for figuring out what parents earning more than $150,000 must pay, while payors earning less than $12,000 pay nothing.

Section 4 of the Guidelines deals with parents who earn more than $150,000 each year. Under this section, the income (or lack of income) of a parent's new partner may be taken into account in deciding whether the formula gives a fair result. The calculation of support owing by parents with incomes in excess of $150,000 is discussed in more detail in [[Exceptions to the Child Support Guidelines]].

Section 4(b)(ii) of the Guidelines says that when considering the amount payable above the basic amount for a payor whose annual income is $150,000, the court should apply the formula but take into account:

<blockquote><tt>... the condition, means, needs and other circumstances of the children who are entitled to support and the financial ability of each spouse to contribute to the support of the children ...</tt></blockquote>

In other words, the income of a new partner can be taken into account under the general heading of "financial ability" of a spouse in determining whether the formula amount is fair.

===Special expenses===

Section 7 of the Guidelines allows for sharing of the children's special and/or extraordinary expenses between the parents, as discussed above. In figuring out how much a parent should have to contribute to these expenses, the court is required to take into account, among other things, "the necessity and reasonableness of the expense in relation to the means of the spouses and those of the child."

A parent's new partner's income can be taken into consideration in assessing the "means of the spouses," which is exactly what the court did in the 2000 Supreme Court case of ''[http://canlii.ca/t/1fm6b Baum v. Baum]'', 2000 BCSC 1835. In that decision, the court held that ''means of the spouses'' should be interpreted broadly as including all of the means available to the paying parent, including the financial contribution of their new partner.

Again, the new partner will not be responsible to pay child support or a share of the children's special expenses as a result; only the payor's obligation will be affected by the new partner's income.

===Death of the payor===

A number of readers have asked whether they will have any responsibility to make child support payments if their partner, who is a parent or guardian under an obligation to pay child support, dies. The simple answer to that question is no, they will have no responsibility. The fact that they are in a relationship with a paying parent doesn't necessarily mean that they will have a duty to keep paying support if that parent dies.

While that is a good general rule, and one you can probably rely on, it is possible that a claim could be made against the new partner as a ''stepparent'' of the child under the ''[[Family Law Act]]''. The act says that all parents, guardians, and stepparents are required to support their children, but section 147 says that stepparents who are obliged to pay child support must have contributed to the support of the child for at least one year. In other words, a new partner who marries a paying parent may have an obligation if they have contributed to the support of the child. Again, while this is technically possible, orders against new partners following the death of the paying parent are extremely rare.

The deceased parent’s estate may, however, be liable to pay child support and a claim could be made against the estate under the ''Wills Estates and Succession Act'', but this is beyond the scope of this chapter.

==Agreements and orders for child support==

===Orders for child support===

An order for child support typically contains the following elements:

*a statement of the names and birthdates of the children for whom support will be paid,
*a declaration of the payor's income,
*an order as to the Guidelines amount payable,
*an order about the exchange of income information, and
*a statement of the date on which child support will no longer be payable.

These elements look like this in a typical order made under the ''[[Divorce Act]]'':

<blockquote><tt>UPON the Court being advised that the children of the marriage are</tt></blockquote>
<blockquote><blockquote><tt>Jesse Ann Doe, born on 1 March 1998, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>Sandra Alexandra Doe, born on 1 April 2000;</tt></blockquote></blockquote>
<blockquote><tt>AND UPON the Court finding that the Claimant's income for the purposes of the Child Support Guidelines is $72,000.00 per year;</tt></blockquote>
<blockquote><tt>THIS COURT ORDERS that:</tt></blockquote>
<blockquote><tt>1. The Claimant, Jane Doe, payor, shall pay to the Respondent, John Doe, recipient, the sum of $1,092 per month, commencing on the first day of April 2013 and continuing on the first day of each and every month thereafter until such time as the children are no longer "children of the marriage" as defined by the ''Divorce Act''; and,</tt></blockquote>
<blockquote><tt>2. The Claimant shall provide to the Respondent a copy of her tax return on the first day of May 2014 and continuing on the first day of May for each and every year thereafter until such time as the children are no longer "children of the marriage," and the Claimant shall provide to the Respondent a copy of each Canada Revenue Agency Notice of Assessment or Notice of Reassessment within two weeks of her receipt of the same, and adjusting child support accordingly, and continuing until such time as the children are no longer "children of the marriage." </tt></blockquote>

Under the ''[[Family Law Act]]'', the order would look like this:

<blockquote><tt>UPON the Court being advised that the children are</tt></blockquote>
<blockquote><blockquote><tt>Jesse Ann Doe, born on 1 March 2008, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>Sandra Alexandra Doe, born on 1 April 2010;</tt></blockquote></blockquote>
<blockquote><tt>AND UPON the Court finding that the Claimant's income for the purposes of the Child Support Guidelines is $72,000.00 per year;</tt></blockquote>
<blockquote><tt>THIS COURT ORDERS that:</tt></blockquote>
<blockquote><tt>1. The Claimant, Jane Doe, payor, shall pay to the Respondent, John Doe, recipient, the sum of $1,092 per month, commencing on the first day of April 2018 and continuing on the first day of each and every month thereafter until such time as the children are no longer "children" as defined by the ''Family Law Act''; and,</tt></blockquote>
<blockquote><tt>2. The Claimant shall provide to the Respondent a copy of her tax return on the first day of May 2019 and continuing on the first day of May for each and every year thereafter until such time as the children are no longer "children" as defined by the ''Family Law Act'', and the Claimant shall provide to the Respondent a copy of each Canada Revenue Agency Notice of Assessment or Notice of Reassessment within two weeks of her receipt of the same, and adjusting child support accordingly, and continuing until such time as the children are no longer "children." </tt></blockquote>

The point of the last clause of each of these sample orders is to require the payor to annually provide evidence of their income to the recipient so that both parties can decide whether an increase or a decrease in the amount payable is appropriate.

If the Order is to include special and extraordinary expenses, the Order will usually include:
* the recipient spouse’s income (including any spousal support they might be receiving),
* the percentage contribution due for each parent to cover special expenses, and
* a requirement that both parents exchange income information each year.

Disclosure of income by both parents is also required in shared and split custody cases.

It is a good idea to specify in a child support order whether the order is made under the ''Divorce Act'' or the ''Family Law Act'' as it could have an effect on a future variation application. For more information, see the case of [http://canlii.ca/t/fspd1 ''Yu v. Jordan''], 2012, BCCA 367.

===Agreements for child support===

Separation agreements, like all family law agreements, have two types of statements. The ''recitals'' are statements that talk about the parties and their relationship. They explain the parties' background and why they signed their agreement. The ''operative clauses'' of an agreement are statements that say what each party has promised to do.

The recitals to a separation agreement about child support would include statements like these:

<blockquote><tt>D. Jane Doe is a plumber working for ABC Plumbing, earning about $72,000 per year.</tt></blockquote>
<blockquote><tt>E. John Doe is a graphic artist working for Sunny Skies Art and Design, earning about $40,000 per year.</tt></blockquote>
<blockquote><tt>F. Jane and John have two children, Jesse, who is 15, and Sandra who is 13.</tt></blockquote>

The operative clauses about child support might say something like this:

<blockquote><tt>15. Jane will pay child support to John in the amount of $1,092 per month, beginning on 1 April 2013 and continuing on the first day of each month thereafter while Jesse and Sandra remain "children" as defined by the ''Family Law Act''.</tt></blockquote>
<blockquote><tt>16. Jane will give John a copy of her tax return by no later than May 31 each year and will also give John a copy of each Canada Revenue Agency Notice of Assessment or Notice of Reassessment within two weeks of receiving it each year for so long as the children are still "children" as defined by the ''Family Law Act''.</tt></blockquote>

Both court orders and separation agreements should include the children’s full names, birth dates, the amounts of basic child support and special expenses, the date for the commencement of those payments, and the Act under which the child support order is made. Those details are important so that the court orders and agreements can be enforced.

==Child support tables and calculators==

The [http://laws-lois.justice.gc.ca/eng/regulations/SOR-97-175/page-11.html#h-15 simplified Child Support Guidelines Tables for British Columbia] are available from the website of the federal Department of Justice. The federal government has published an [http://www.justice.gc.ca/eng/fl-df/child-enfant/look-rech.asp online child support calculator].

The provincial government also operates the BC Child Support Info Line which offers free information about child support and the child support tables. Contact the Info Line at:

*Lower Mainland: 604-660-2192 
*Outside the Lower Mainland: 888-216-2211


==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [http://canlii.ca/t/80mh Child Support Guidelines]

===Links===

* [http://laws-lois.justice.gc.ca/eng/regulations/SOR-97-175/page-11.html#h-15 Child Support Guidelines Tables for British Columbia]
* [http://www.justice.gc.ca/eng/fl-df/child-enfant/look-rech.asp Online Child Support Calculator]
* [http://www.clicklaw.bc.ca/resource/1175 BC Ministry of Attorney General's FMEP Child Support Calculator]
* [http://www.clicklaw.bc.ca/resource/1235 Dial-A-Law Script "Child support"]
* [http://www.clicklaw.bc.ca/resource/1618 Legal Services Society's Family Law website's information page "Child & spousal support"]
** Under "Child support", see "What are the child support guidelines and how do they work?"

{{REVIEWED | reviewer = [[Bill Murphy-Dyson | William Murphy-Dyson]] and [[Inga Phillips]], June 14, 2019}}

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[[Category:JP Boyd on Family Law]]

Child Support Guidelines

2021-03-06T21:15:19Z

Jpboyd: /* Special and/or extraordinary expenses */

{{JP Boyd on Family Law TOC|expanded = childsupport}}{{JPBOFL Editor Badge
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| link = [https://www.clicklaw.bc.ca/global/search?k=child%20support child support]
}}Often simply referred to as the Guidelines, the [http://canlii.ca/t/80mh Child Support Guidelines], SOR/97-175, is a federal regulation, adopted by all of the provinces except Quebec, that describes the rules that the courts must apply when making an order for child support.

The most important feature of the Guidelines is the child support tables that fix the amount of support payments according to both the annual income of the person paying support and the number of children the support is to be paid for.

The Guidelines cover every aspect of child support, including the calculation of income, how children's special expenses are paid for, the amount of support payable when the parents have the children for an almost equal amount of time, and the amount payable when one or more of the children live full-time with each parent.

This section talks about the basic principles of the Guidelines, the sharing of special and extraordinary expenses, the calculation of income, ''imputing'' income, and the circumstances in which the income of a parent's or guardian's new partner may be taken into account. It also provides an example of the contents of a typical child support order.

'''Important changes''' 
Look for explanations under this heading to read about recent changes to family law affecting the information provided in this section.

==Basic principles==

It used to be that the party claiming child support, the ''recipient'', had to show the amount of support the child needed and prove that the person being asked to pay support, the ''payor'', had the means to pay that amount. Now, the amount of a child support order or an agreement for child support is based on the amounts set out in the tables attached to the Child Support Guidelines. The Guidelines have generally reduced the amount of disagreement between parents about the amount of child support, whether they're in court arguing about an order, or are negotiating a separation agreement. Most of the disagreement now tends to be about either the income of the payor or child support for children over 19.

The Guidelines tables were most recently adjusted on November 22, 2017. If you are relying on a printed version of the child support tables to figure out how much child support should be paid, make sure that your materials reflect the new table amounts, effective as of November 22, 2017.

The Guidelines' key presumption is set out in section 3(1):

<blockquote><tt>Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority is</tt></blockquote>
<blockquote><blockquote><tt>(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the amount, if any, determined under section 7.</tt></blockquote></blockquote>

This is, however, only a presumption, and can be challenged or ''rebutted'', as is discussed in this chapter's next section, [[Exceptions to the Child Support Guidelines]]. In the vast majority of cases, however, the amount of child support payable is calculated using the payor's gross (before tax) yearly income at the time the order is made.

Over time, of course, the payor's income may go up or down. Both the payor and the recipient can make an application to change the original order or the agreement so that the amount of child support reflects the payor's current income. The payor would make the application if their income has fallen, while the recipient would make the application when the payor's income has increased. To avoid a situation where parents are continually making trips back to court to seek an adjustment of child support, it's a good idea to include a term in the court order or agreement that requires both parents to regularly exchange income information, usually every year after taxes have been filed, so that child support can be adjusted from time to time without having to go to court.

Another important presumption in the Guidelines is that the amount of support payable is set according to the number of children to which each particular support order relates. If a payor has two children from one relationship and three from another, the first order will be based on the Guidelines amount for two children and the second will be based on the amount for three children. The payor's obligation is not based on the Guidelines amount for the total number of five children.

Finally, the amount of support payable is based only on the payor's income, unless there is a shared or a split parenting arrangement, in which case both parents’ incomes are taken into account.

==Special expenses and extraordinary expenses==

The basic amount of child support a parent pays is presumed to cover a very wide scope of common day-to-day expenses associated with raising children: the child's share of lodging, utilities, shoes, groceries, diapers, clothes, toothpaste, school field trip fees, entertainment, haircuts, and so forth. The basic amount of support is not always presumed to include certain other kinds of expenses that are infrequent but expensive, such as the cost of daycare or orthodontic work. In addition to the basic amount of support payable, the parents may also be required to cover their respective portions of these other expenses, so long as they qualify as ''special and/or extraordinary expenses'' under the Guidelines.

Special and/or extraordinary expenses are defined in section 7(1) of the Guidelines:

<blockquote><tt>(a) child care expenses incurred as a result of the custodial parent's employment, illness, disability or education or training for employment;</tt></blockquote>
<blockquote><tt>(b) that portion of the medical and dental insurance premiums attributable to the child;</tt></blockquote>
<blockquote><tt>(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;</tt></blockquote>
<blockquote><tt>(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child's particular needs;</tt></blockquote>
<blockquote><tt>(e) expenses for post-secondary education; and</tt></blockquote>
<blockquote><tt>(f) extraordinary expenses for extracurricular activities.</tt></blockquote>

Section 7(1.1) clarifies (1)(d) and (1)(f), and says that for these subsections "extraordinary expenses" means:

<blockquote><tt>(a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or</tt></blockquote>
<blockquote><tt>(b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account</tt></blockquote>
<blockquote><blockquote><tt>(i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) the nature and number of the educational programs and extracurricular activities,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(iii) any special needs and talents of the child or children,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(iv) the overall cost of the programs and activities, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(v) any other similar factor that the court considers relevant.</tt></blockquote></blockquote>

Special expenses are shared between the payor and recipient in proportion to their incomes. These provisions of the Guidelines are intended to ensure that, if either parent incurs significant additional expenses for the child's needs or activities, ''both'' parents will share the cost on the principle that it is in children's best interests to have such needs met or to participate in such activities.

If an expense is found to qualify as a special and/or extraordinary expense under the section 7(1) and section 7(1.1) definitions, the court may make an order that both parties pay additional amounts, in addition to the usual Guidelines basic amount of support, to cover all or a portion of the cost of the expense.

===Qualifying expenses as "special and/or extraordinary"===

Just because an expense appears to fall into one of the categories listed in section 7 of the Guidelines doesn't necessarily make it a shareable special and/or extraordinary expense. As well, just because an expense has been incurred doesn't mean it will automatically be shared; if you're not sure whether a planned expense will qualify as a shareable special expense, get some legal advice or talk to the other parent first to see if they will agree to share in the expense.

An expense that may not qualify as a special expense for higher earning families may qualify as such for low income families. For example, if guideline child support of $2,000.00 for one child is being paid, the $200.00 cost of soccer registration will probably not be considered a special expense (and will have to be paid from the $2,000 basic child support by the recipient parent), but that same $200.00 expense may be a special expense if only $500.00 per month Guideline support is being paid (and will therefore have to be shared between the parents).

According to section 7(1) of the Guidelines, the court must not only find that an expense fits into one of the categories listed above, but also consider:

*the "reasonableness of the expense in relation to the means of the spouses and those of the child and to the family's spending pattern prior to the separation," and
#the necessity of the expense in relation to the child's best interests,

The court must bear in mind the special test for primary- and secondary-school education and extracurricular activities required by section 7(1.1). Here's a helpful summary from a 2010 case from our Supreme Court, ''[http://canlii.ca/t/2dpzr Piper v. Piper]'', 2010 BCSC 1718:

<blockquote>"Under section 7(1.1)(a) the court is first required to consider whether the income of the requesting spouse, including any child support received, can reasonably cover the expense claimed or whether the expense exceeds her ability to pay without any consideration of the factors enumerated in section 7(1.1)(b). If the income cannot cover the expense, the expense is deemed to be extraordinary and the court's next analysis turns to consideration of the factors enumerated in section 7(1) which, of course, brings into consideration the parties' means and pre-separation spending pattern."</blockquote>

====Reasonableness====

When the court is asked to consider a particular expense, it should first decide whether the expense is necessary and reasonable according to the parties' financial resources. For lower income parents, fewer expenses will be considered reasonable.

*Daycare will almost always be considered necessary and reasonable, if that daycare is incurred as a result of the parent’s employment, illness, disability, or education or training for employment. Daycare subsidies will be taken into account when apportioning daycare expenses between the parents, as will tax-deductibility.

For parents with more money, more expenses may qualify as reasonable:

*Cosmetic orthodontic work.
*Dance, music, and art classes, swimming lessons, and summer day camps.
*Less expensive team sports, like soccer, baseball, and basketball.
*Basic high-school graduation costs, such as tickets and gown or tuxedo rentals.
*Basic post-secondary education costs, such as tuition fees for a local college or university, student fees, and textbook costs.

For parents with lots of money, almost every big-ticket expense is probably going to be considered reasonable:

*Multiple week summer camps and trips abroad.
*Private school fees.
*Expensive team sports, like hockey and horseback polo, and expensive solo sports like skiing and scuba diving.
*Post-secondary education costs, including meal plans and residence costs.

====Necessity====

Sometimes the needs of the child will outweigh the cost of the expense to the child, and an expense will qualify as a special expense whether at a hardship to the parents or not.

*Medical costs, including costs that aren't covered by MSP such as autism therapies.
*Counselling services, where the counselling is necessary for the child's mental health.
*Tutoring services, where the child needs the extra help to get through school.
*Lessons or coaching in arts and sports, where the child has a special talent that should be nurtured.

A driver training course, for example, is unlikely to qualify as a special expense under the heading of necessity, since you can learn to drive and obtain a driver's license without it, as was decided in a 2011 Supreme Court case, ''[http://canlii.ca/t/2fzs4 M.S.J. v. J.M.J.]'', 2011 BCSC 245. On the other hand, if a semester with Sylvan Learning Centre will mean the difference between passing or failing a grade, the tutoring would probably be considered a necessity.

===Sharing qualifying expenses===

Under section 7(2) of the Guidelines, expenses that qualify as special and/or extraordinary expenses are generally shared by the parties in proportion to their incomes, after deducting any contribution to those costs made by the child or the government, through things like grants or tax deductions. The idea here is to look at the total pot of money available to the child — the income of the payor plus the income of the recipient — and to figure out how much each party's share of that pot is, and then pay the child's special expenses according to each parent's share.

The easiest way to calculate a parent's ''proportionate share'' is to add the incomes of both parents together and then figure out what percentage each income is of the total. Here are two examples.

:'''Example #1'''

<blockquote>If one parent earns $75,000 per year and the other $25,000, the total pot available to the child is $100,000. Of that sum, the first parent contributes 75% and the second parent 25%. As a result, the first parent would be ordered to pay 75% of qualifying expenses, and the second parent 25%.
</blockquote>

:'''Example #2'''

<blockquote>If one parent earns $48,000 per year and the other $62,000, the total of their incomes is $110,000. The first parent's income is 43.6% of the total, and the other parent's income is 56.4% of the total. The first parent would have to pay 43.6% of all qualifying special expenses, and the second would have to pay 54.6% of those expenses.</blockquote>

The cost that is being shared is the ''net cost'' of an expense, in other words, the amount that is actually being paid after any third-party contributions have been applied to reduce the expense. Daycare costs, for example, are sometimes subsidized for lower income earners and the amount paid by a parent is deductible from their income. It is the net expense after deducting any subsidy and any tax saving that is to be shared.

Note that the income of a parent's new spouse or partner may sometimes be taken into consideration in determining a parent's "means" in sharing a special expense. In the 2000 Supreme Court case of ''[http://canlii.ca/t/1fm6b Baum v. Baum]'', 2000 BCSC 1835, the court held that the section 7(1) consideration of the "means of the spouses" should be interpreted broadly as including all sources of income available to the paying parent, including the contribution of a parent's new partner. Also see the case of [http://canlii.ca/t/53kt ''Scott v. Scott''], 2000 BCSC 844.

==The calculation of income==

Before the court even looks at the Child Support Guidelines tables it has to decide what the payor's income is. The tables set out the amount of child support payable according to the payor's income. The Guidelines require that the court use the most up-to-date information available. Sections 15 to 20 of the Guidelines set out the rules the court must apply in determining income.

According to Rule 5-1 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules] and Rule 4 of the [http://canlii.ca/t/85pb Provincial Court (Family) Rules], when someone makes an application for child support, the payor or both the payor and recipient are required to disclose their financial circumstances using a court form called a Financial Statement. Financial statements require each party to set out their income and expenses, and assets and liabilities. Certain income documents must be attached to a financial statement, typically:

#the last three years' tax returns (what's required is the complete income tax and benefit return, not tax return "summaries" or "informations"),
#all notices of assessment and reassessment received for the last three tax years,
#the party's most recent paystub, showing their earnings to date, or if the party isn't working, then their most recent WCB statement, social assistance statement, or EI statement, and
#business records like financial statements and corporate income tax returns, if the party has a company.

The basic rule of thumb is that a party's income for the purposes of the Guidelines is the amount stated at line 150 of the payor's most recent tax return, although there are important exceptions that apply when a person's income is from self-employment. A party's income includes all of the party's income, not just income from a job. ''Income'' might include bonuses, rental income, profit from stock options, company dividends, Workers Compensation payments, long term or short term disability payments, personal injury awards (that relate to loss of income), pension income, government benefits, interest from an investment, and so forth, as well as employment and self-employment income.

Section 2(3) of the Guidelines requires that the most current income information be used; this can include a calculation of income based on paystub evidence. Most of the time income is based on the most recent tax year, since the income information for that year is complete. This means that there is usually a one-year lag between the amount of support being paid and the payor's income. However, if a payor's current income can be known with certainty, such as if the payor is an employee without bonus or commission income, child support can be determined using the payor's current income.

===Government benefits===

Payments from WCB, Employment Insurance, CPP, Old Age Security, and social assistance all count as income under the Guidelines. If a party is receiving these payments as a temporary substitute for employment income, the party's income may be assessed at their usual income. A temporary period on social assistance, for example, won't entitle a payor to have their income assessed at that unusually low level into the future.

Note that Canada Child Tax Benefits are not considered income for basic child support purposes, but may be taken into account when determining the sharing of special and extraordinary expenses.

===Fluctuating income===

Where a party's income changes from year to year for reasons beyond the party's control, such as fluctuating commission sales or bonuses that are assessed by an employer, the court may take the party's income over the past three years into consideration in setting the payor's income. In certain circumstances, the court may fix the party's income as the ''average'' of their income over the last three years.

===Unexpected losses and gains===

Where a payor has suffered an unexpected loss, such as a corporate loss or an investment loss, or enjoyed an unexpected gain, such as from cashing in RRSPs or selling stock, the court has the discretion to decide to take this into consideration in setting the payor's income, and potentially not consider the loss or gain, if it was a one-time occurrence.

===Court awards===

If a payor has received an award from a civil court proceeding such as for wrongful dismissal or for personal injury, the court may attribute the portion of the award allocated for ''lost wages'' to a payor's income. The whole amount of the award, including the parts relating to pain and suffering, will not be seen as income for the purposes of the Guidelines, just the part intended to compensate for lost wages.

===Windfalls===

Money received from an inheritance, the sale of a house, or a lottery win does not count as income under the Guidelines. Any interest or other investment income earned or that should reasonably be earned from the inheritance or lottery win would count as income.

==Imputing income==

To ''impute'' income means to attribute income to a payor above that which the payor claims they earn, usually for making a support award based on that higher amount. Typically, someone asks the court to impute income to a payor where:

#the payor works in the service industry, for example as a restaurant server or a taxi driver, and receives tip income that is not reported on income tax returns,
#the payor is intentionally unemployed or under-employed (i.e. not working to their full skills and capacity),
#the payor has quit or been fired from their job,
#the payor moves from full- to part-time work without a very good reason,
#the payor is self-employed and either receives unpaid benefits from their company (like a company car, paid meals, or a free cell phone), or doesn't report the full amount of money taken from the company,
#the payor has refused to provide full and complete financial disclosure,
#the payor has or will have income from a trust,
#the payor has hidden or appears to have hidden some of their income, or
#the payor is not using resources at hand that could generate income, such as a vacant house that could be rented out or savings that could be invested.

If the court decides to impute income to a payor, child support will be payable at the Guidelines rate for the higher income. The parties' proportionate responsibility to contribute to the cost of any qualifying special and/or extraordinary expenses may be based on imputed income, including income imputed to the recipient.

The court can decide to impute income for the purposes of calculating child support in other circumstances, such as when the payor is underemployed or unemployed, is income splitting with a new partner, or lives in a place with a lower tax rate than usual.

===Underemployment and unemployment===

Section 19(1) of the Guidelines says that:

<blockquote><tt>The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(e) the spouse's property is not reasonably utilized to generate income;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(f) the spouse has failed to provide income information when under a legal obligation to do so;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(g) the spouse unreasonably deducts expenses from income;</tt></blockquote></blockquote>

In other words, the court may decide that a payor has a different income than that which the payor says they have if:

*the payor has quit a job in order to avoid paying child support,
*the payor has taken lower-paying work than they used to have, or is capable of holding, in order to minimize the amount of child support payable, or
*the payor has tried to reduce their income by claiming unreasonable deductions.

If you are going to make an argument that income should be imputed to someone, you will have to prove that one or more of the conditions described in section 19(1) exist. If a party's underemployment or unemployment is caused by child care responsibilities, the court will not usually impute income.

It's not enough merely to ''argue'' that one of the conditions listed in section 19(1) exist, you have to be able to ''provide evidence'' that the condition exists. The following factors were cited by the court in a 2003 Supreme Court case, ''[http://canlii.ca/t/1pt18 Nahu v. Chertkow]'', 2003 BCSC 1285, in determining whether a payor is intentionally underemployed or unemployed:

*the payor's education, training, and work experience,
*the payor's previous earnings and past borrowing of funds during unemployment,
*the payor's work history,
*the payor's spending patterns and lifestyle,
*the payor's efforts to upgrade their education and work qualifications,
*the nature and quality of the payor's attempts to obtain employment, and
*any evidence that the underemployment or unemployment is motivated by ill will towards the recipient.

This last point, about the payor's ill will, has to do with the idea that the payor is able to earn more but chooses not to. In the 1999 Supreme Court case ''[http://canlii.ca/t/1d2x1 Hanson v. Hanson]'', 1999 CanLII 6307 the court had this to say on the subject:

<blockquote>"1. There is a duty to seek employment in a case where a parent is healthy and there is no reason why the parent cannot work. It is 'no answer for a person liable to support a child to say that he is unemployed and does not intend to seek work or that his potential to earn income is an irrelevant factor' ...</blockquote>
<blockquote><tt>"2. When imputing income on the basis of intentional underemployment, a court must consider what is reasonable under the circumstances. The age, education, experience, skills and health of the parent are factors to be considered in addition to such matters as the availability of work, freedom to relocate and other obligations.</tt></blockquote>
<blockquote><tt>"3. A parent's limited work experience and job skills do not justify a failure to pursue employment that does not require significant skills, or employment in which the necessary skills can be earned on the job. ... [C]ourts have never sanctioned the refusal of a parent to take reasonable steps to support his or her children simply because the parent cannot obtain interesting or highly paid employment.</tt></blockquote>
<blockquote><tt>"4. Persistence in [poorly paid] employment may entitle the court to impute income.</tt></blockquote>
<blockquote><tt>"5. A parent cannot be excused from his or her child support obligations [to pursue] unrealistic or unproductive career aspirations.</tt></blockquote>
<blockquote><tt>"6. As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income."</tt></blockquote>

==="Grossing up" income===

Section 19(1) of the Guidelines also says that:

<blockquote><tt>The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:</tt></blockquote>
<blockquote><blockquote><tt>(b) the spouse is exempt from paying federal or provincial income tax;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax.</tt></blockquote></blockquote>

Under these sections of the Guidelines, payors who have a lower income tax obligation than usual, such as certain First Nations persons living on reserve who might pay no federal taxes, or persons who live in another country with a lower tax rate, can have their income ''grossed up'' to reflect this tax advantage when child support is determined.

The grossing up process essentially involves figuring out the amount of money the payor would have to earn to have the same after-tax income at the tax rates normally applicable to residents of British Columbia. This will result in income being imputed to the payor for the purposes of calculating child support, with a consequent increase in the amount of child support that will be payable.

The math behind grossing up someone's income is a bit complex. Essentially, the idea is to figure out the amount of income the person would have to earn before taxes to receive the amount they earn net of taxes. Think of it like this:

<blockquote>Say Mr. A earns $100,000 per year. As a resident of British Columbia, Mr. A pays income tax at, for example, 40%. This means that Mr. A's income, net of taxes, is $60,000 per year.</blockquote>
<blockquote>Mr. B also earns $100,000 per year. Mr. B, on the other hand, lives in Texas, and has an income tax rate of, for example, 25%. This means that Mr. B's net income is $75,000 per year.</blockquote>
<blockquote>Income for the purposes of the Guidelines would normally be calculated for both Mr. A and Mr. B at a gross income of $100,000. In reality, though, Mr. A has a lot less money after income taxes are paid than Mr. B does. Mr. B actually has a lot more money than Mr. A, and ought to pay child support based on this additional money.</blockquote>
<blockquote>Mr. B's income would be "grossed up" to figure out what income he would have to earn in BC to have an after-tax income of $75,000. Since he would pay income tax at a rate of 40% here, the court would consider Mr. B to have a gross income of $125,000 for the purposes of child support, since tax of 40% on a gross income of $125,000 leaves a net income of $75,000.</blockquote>
<blockquote>Mr. A and Mr. B both have incomes of $100,000 per year. Mr. A will pay his base amount of support at that income, but Mr. B will pay at a grossed up income of $125,000 to reflect what he would have to earn in BC to have the after-tax income of $75,000 he has living in Texas.</blockquote>

Grossing up a payor's income can be a bit tricky, and requires a knowledge of the income tax laws applicable to First Nations payors earning income on First Nations reserve lands and to payors earning income outside of Canada. If you have a problem in this area, you should consider hiring a lawyer to help you.

==Child support and parents' new partners==

Parents and guardians usually move on with their lives after the relationship that produced their children has ended. They will meet new people and enter into new romantic relationships. Parents and their new partners are often concerned about how their relationship will impact on the payor parent's obligation to pay child support. The parent might be concerned to know whether the new partner's income will be added to their income in calculating child support. The new partner will want to know whether they are now on the hook for support and must contribute to the parent's payments or towards the parent's children.

===Basic child support payments===

The income of a parent's new partner is not relevant to the payment of basic child support, nor is a payor's new partner obliged to pay child support. The new partner will not inherit the child support obligation in the event the payor dies, and the recipient of support won't be able to pursue the new partner for continuing or supplemental payments. If the new partner and the parent separate, however, the new partner might become obligated to pay child support as a result of them being a stepparent to the children. See the section that deals with stepparents’ obligations.

For the purposes of calculating the base amount of child support a parent must pay — that is, the parent's basic obligation under the Child Support Guidelines, before special and/or extraordinary expenses — the court will only look at the parent's income. The income of the new partner is not taken into account.

===Undue hardship claims===

Section 10 of the Child Support Guidelines allows parties to argue that the base amount of support set out in the Guidelines tables is too low or too high and would cause ''undue hardship'' if the table amount was paid. Payors will claim that the base amount is too high, while recipients will argue that it is too low. This chapter discusses exceptions to the Guidelines more thoroughly in the section, [[Exceptions to the Child Support Guidelines]].

If undue hardship is claimed, the court will look at the standard of living of each parent's ''household'', rather than the standard of living of each parent alone. This means that the court, in deciding whether there is undue hardship, will look at the total expenses and total income of each parent's household, including the income of each parent's new partner. This will not cause the new partner to be liable to pay support; it just means that their income will be taken into consideration to see whether the usual table amount of support payable is unduly high or low.

===Incomes in excess of $150,000===

The tables provided in the Child Support Guidelines set out the amount of support owing by payors who earn up to $150,000 per year. The Guidelines provide a mathematical formula for figuring out what parents earning more than $150,000 must pay, while payors earning less than $12,000 pay nothing.

Section 4 of the Guidelines deals with parents who earn more than $150,000 each year. Under this section, the income (or lack of income) of a parent's new partner may be taken into account in deciding whether the formula gives a fair result. The calculation of support owing by parents with incomes in excess of $150,000 is discussed in more detail in [[Exceptions to the Child Support Guidelines]].

Section 4(b)(ii) of the Guidelines says that when considering the amount payable above the basic amount for a payor whose annual income is $150,000, the court should apply the formula but take into account:

<blockquote><tt>... the condition, means, needs and other circumstances of the children who are entitled to support and the financial ability of each spouse to contribute to the support of the children ...</tt></blockquote>

In other words, the income of a new partner can be taken into account under the general heading of "financial ability" of a spouse in determining whether the formula amount is fair.

===Special expenses===

Section 7 of the Guidelines allows for sharing of the children's special and/or extraordinary expenses between the parents, as discussed above. In figuring out how much a parent should have to contribute to these expenses, the court is required to take into account, among other things, "the necessity and reasonableness of the expense in relation to the means of the spouses and those of the child."

A parent's new partner's income can be taken into consideration in assessing the "means of the spouses," which is exactly what the court did in the 2000 Supreme Court case of ''[http://canlii.ca/t/1fm6b Baum v. Baum]'', 2000 BCSC 1835. In that decision, the court held that ''means of the spouses'' should be interpreted broadly as including all of the means available to the paying parent, including the financial contribution of their new partner.

Again, the new partner will not be responsible to pay child support or a share of the children's special expenses as a result; only the payor's obligation will be affected by the new partner's income.

===Death of the payor===

A number of readers have asked whether they will have any responsibility to make child support payments if their partner, who is a parent or guardian under an obligation to pay child support, dies. The simple answer to that question is no, they will have no responsibility. The fact that they are in a relationship with a paying parent doesn't necessarily mean that they will have a duty to keep paying support if that parent dies.

While that is a good general rule, and one you can probably rely on, it is possible that a claim could be made against the new partner as a ''stepparent'' of the child under the ''[[Family Law Act]]''. The act says that all parents, guardians, and stepparents are required to support their children, but section 147 says that stepparents who are obliged to pay child support must have contributed to the support of the child for at least one year. In other words, a new partner who marries a paying parent may have an obligation if they have contributed to the support of the child. Again, while this is technically possible, orders against new partners following the death of the paying parent are extremely rare.

The deceased parent’s estate may, however, be liable to pay child support and a claim could be made against the estate under the ''Wills Estates and Succession Act'', but this is beyond the scope of this chapter.

==Agreements and orders for child support==

===Orders for child support===

An order for child support typically contains the following elements:

*a statement of the names and birthdates of the children for whom support will be paid,
*a declaration of the payor's income,
*an order as to the Guidelines amount payable,
*an order about the exchange of income information, and
*a statement of the date on which child support will no longer be payable.

These elements look like this in a typical order made under the ''[[Divorce Act]]'':

<blockquote><tt>UPON the Court being advised that the children of the marriage are</tt></blockquote>
<blockquote><blockquote><tt>Jesse Ann Doe, born on 1 March 1998, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>Sandra Alexandra Doe, born on 1 April 2000;</tt></blockquote></blockquote>
<blockquote><tt>AND UPON the Court finding that the Claimant's income for the purposes of the Child Support Guidelines is $72,000.00 per year;</tt></blockquote>
<blockquote><tt>THIS COURT ORDERS that:</tt></blockquote>
<blockquote><tt>1. The Claimant, Jane Doe, payor, shall pay to the Respondent, John Doe, recipient, the sum of $1,092 per month, commencing on the first day of April 2013 and continuing on the first day of each and every month thereafter until such time as the children are no longer "children of the marriage" as defined by the ''Divorce Act''; and,</tt></blockquote>
<blockquote><tt>2. The Claimant shall provide to the Respondent a copy of her tax return on the first day of May 2014 and continuing on the first day of May for each and every year thereafter until such time as the children are no longer "children of the marriage," and the Claimant shall provide to the Respondent a copy of each Canada Revenue Agency Notice of Assessment or Notice of Reassessment within two weeks of her receipt of the same, and adjusting child support accordingly, and continuing until such time as the children are no longer "children of the marriage." </tt></blockquote>

Under the ''[[Family Law Act]]'', the order would look like this:

<blockquote><tt>UPON the Court being advised that the children are</tt></blockquote>
<blockquote><blockquote><tt>Jesse Ann Doe, born on 1 March 2008, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>Sandra Alexandra Doe, born on 1 April 2010;</tt></blockquote></blockquote>
<blockquote><tt>AND UPON the Court finding that the Claimant's income for the purposes of the Child Support Guidelines is $72,000.00 per year;</tt></blockquote>
<blockquote><tt>THIS COURT ORDERS that:</tt></blockquote>
<blockquote><tt>1. The Claimant, Jane Doe, payor, shall pay to the Respondent, John Doe, recipient, the sum of $1,092 per month, commencing on the first day of April 2018 and continuing on the first day of each and every month thereafter until such time as the children are no longer "children" as defined by the ''Family Law Act''; and,</tt></blockquote>
<blockquote><tt>2. The Claimant shall provide to the Respondent a copy of her tax return on the first day of May 2019 and continuing on the first day of May for each and every year thereafter until such time as the children are no longer "children" as defined by the ''Family Law Act'', and the Claimant shall provide to the Respondent a copy of each Canada Revenue Agency Notice of Assessment or Notice of Reassessment within two weeks of her receipt of the same, and adjusting child support accordingly, and continuing until such time as the children are no longer "children." </tt></blockquote>

The point of the last clause of each of these sample orders is to require the payor to annually provide evidence of their income to the recipient so that both parties can decide whether an increase or a decrease in the amount payable is appropriate.

If the Order is to include special and extraordinary expenses, the Order will usually include:
* the recipient spouse’s income (including any spousal support they might be receiving),
* the percentage contribution due for each parent to cover special expenses, and
* a requirement that both parents exchange income information each year.

Disclosure of income by both parents is also required in shared and split custody cases.

It is a good idea to specify in a child support order whether the order is made under the ''Divorce Act'' or the ''Family Law Act'' as it could have an effect on a future variation application. For more information, see the case of [http://canlii.ca/t/fspd1 ''Yu v. Jordan''], 2012, BCCA 367.

===Agreements for child support===

Separation agreements, like all family law agreements, have two types of statements. The ''recitals'' are statements that talk about the parties and their relationship. They explain the parties' background and why they signed their agreement. The ''operative clauses'' of an agreement are statements that say what each party has promised to do.

The recitals to a separation agreement about child support would include statements like these:

<blockquote><tt>D. Jane Doe is a plumber working for ABC Plumbing, earning about $72,000 per year.</tt></blockquote>
<blockquote><tt>E. John Doe is a graphic artist working for Sunny Skies Art and Design, earning about $40,000 per year.</tt></blockquote>
<blockquote><tt>F. Jane and John have two children, Jesse, who is 15, and Sandra who is 13.</tt></blockquote>

The operative clauses about child support might say something like this:

<blockquote><tt>15. Jane will pay child support to John in the amount of $1,092 per month, beginning on 1 April 2013 and continuing on the first day of each month thereafter while Jesse and Sandra remain "children" as defined by the ''Family Law Act''.</tt></blockquote>
<blockquote><tt>16. Jane will give John a copy of her tax return by no later than May 31 each year and will also give John a copy of each Canada Revenue Agency Notice of Assessment or Notice of Reassessment within two weeks of receiving it each year for so long as the children are still "children" as defined by the ''Family Law Act''.</tt></blockquote>

Both court orders and separation agreements should include the children’s full names, birth dates, the amounts of basic child support and special expenses, the date for the commencement of those payments, and the Act under which the child support order is made. Those details are important so that the court orders and agreements can be enforced.

==Child support tables and calculators==

The [http://laws-lois.justice.gc.ca/eng/regulations/SOR-97-175/page-11.html#h-15 simplified Child Support Guidelines Tables for British Columbia] are available from the website of the federal Department of Justice. The federal government has published an [http://www.justice.gc.ca/eng/fl-df/child-enfant/look-rech.asp online child support calculator].

The provincial government also operates the BC Child Support Info Line which offers free information about child support and the child support tables. Contact the Info Line at:

*Lower Mainland: 604-660-2192 
*Outside the Lower Mainland: 888-216-2211


==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [http://canlii.ca/t/80mh Child Support Guidelines]

===Links===

* [http://laws-lois.justice.gc.ca/eng/regulations/SOR-97-175/page-11.html#h-15 Child Support Guidelines Tables for British Columbia]
* [http://www.justice.gc.ca/eng/fl-df/child-enfant/look-rech.asp Online Child Support Calculator]
* [http://www.clicklaw.bc.ca/resource/1175 BC Ministry of Attorney General's FMEP Child Support Calculator]
* [http://www.clicklaw.bc.ca/resource/1235 Dial-A-Law Script "Child support"]
* [http://www.clicklaw.bc.ca/resource/1618 Legal Services Society's Family Law website's information page "Child & spousal support"]
** Under "Child support", see "What are the child support guidelines and how do they work?"

{{REVIEWED | reviewer = [[Bill Murphy-Dyson | William Murphy-Dyson]] and [[Inga Phillips]], June 14, 2019}}

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[[Category:JP Boyd on Family Law]]

Child Support Guidelines

2021-03-06T21:14:57Z

Jpboyd:

{{JP Boyd on Family Law TOC|expanded = childsupport}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bill Murphy-Dyson]] and [[Inga Phillips]]
}}
{{Clicklawbadge
| resourcetype = more resources on 
| link = [https://www.clicklaw.bc.ca/global/search?k=child%20support child support]
}}Often simply referred to as the Guidelines, the [http://canlii.ca/t/80mh Child Support Guidelines], SOR/97-175, is a federal regulation, adopted by all of the provinces except Quebec, that describes the rules that the courts must apply when making an order for child support.

The most important feature of the Guidelines is the child support tables that fix the amount of support payments according to both the annual income of the person paying support and the number of children the support is to be paid for.

The Guidelines cover every aspect of child support, including the calculation of income, how children's special expenses are paid for, the amount of support payable when the parents have the children for an almost equal amount of time, and the amount payable when one or more of the children live full-time with each parent.

This section talks about the basic principles of the Guidelines, the sharing of special and extraordinary expenses, the calculation of income, ''imputing'' income, and the circumstances in which the income of a parent's or guardian's new partner may be taken into account. It also provides an example of the contents of a typical child support order.

'''Important changes''' 
Look for explanations under this heading to read about recent changes to family law affecting the information provided in this section.

==Basic principles==

It used to be that the party claiming child support, the ''recipient'', had to show the amount of support the child needed and prove that the person being asked to pay support, the ''payor'', had the means to pay that amount. Now, the amount of a child support order or an agreement for child support is based on the amounts set out in the tables attached to the Child Support Guidelines. The Guidelines have generally reduced the amount of disagreement between parents about the amount of child support, whether they're in court arguing about an order, or are negotiating a separation agreement. Most of the disagreement now tends to be about either the income of the payor or child support for children over 19.

The Guidelines tables were most recently adjusted on November 22, 2017. If you are relying on a printed version of the child support tables to figure out how much child support should be paid, make sure that your materials reflect the new table amounts, effective as of November 22, 2017.

The Guidelines' key presumption is set out in section 3(1):

<blockquote><tt>Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority is</tt></blockquote>
<blockquote><blockquote><tt>(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the amount, if any, determined under section 7.</tt></blockquote></blockquote>

This is, however, only a presumption, and can be challenged or ''rebutted'', as is discussed in this chapter's next section, [[Exceptions to the Child Support Guidelines]]. In the vast majority of cases, however, the amount of child support payable is calculated using the payor's gross (before tax) yearly income at the time the order is made.

Over time, of course, the payor's income may go up or down. Both the payor and the recipient can make an application to change the original order or the agreement so that the amount of child support reflects the payor's current income. The payor would make the application if their income has fallen, while the recipient would make the application when the payor's income has increased. To avoid a situation where parents are continually making trips back to court to seek an adjustment of child support, it's a good idea to include a term in the court order or agreement that requires both parents to regularly exchange income information, usually every year after taxes have been filed, so that child support can be adjusted from time to time without having to go to court.

Another important presumption in the Guidelines is that the amount of support payable is set according to the number of children to which each particular support order relates. If a payor has two children from one relationship and three from another, the first order will be based on the Guidelines amount for two children and the second will be based on the amount for three children. The payor's obligation is not based on the Guidelines amount for the total number of five children.

Finally, the amount of support payable is based only on the payor's income, unless there is a shared or a split parenting arrangement, in which case both parents’ incomes are taken into account.

==Special and/or extraordinary expenses==

The basic amount of child support a parent pays is presumed to cover a very wide scope of common day-to-day expenses associated with raising children: the child's share of lodging, utilities, shoes, groceries, diapers, clothes, toothpaste, school field trip fees, entertainment, haircuts, and so forth. The basic amount of support is not always presumed to include certain other kinds of expenses that are infrequent but expensive, such as the cost of daycare or orthodontic work. In addition to the basic amount of support payable, the parents may also be required to cover their respective portions of these other expenses, so long as they qualify as ''special and/or extraordinary expenses'' under the Guidelines.

Special and/or extraordinary expenses are defined in section 7(1) of the Guidelines:

<blockquote><tt>(a) child care expenses incurred as a result of the custodial parent's employment, illness, disability or education or training for employment;</tt></blockquote>
<blockquote><tt>(b) that portion of the medical and dental insurance premiums attributable to the child;</tt></blockquote>
<blockquote><tt>(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;</tt></blockquote>
<blockquote><tt>(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child's particular needs;</tt></blockquote>
<blockquote><tt>(e) expenses for post-secondary education; and</tt></blockquote>
<blockquote><tt>(f) extraordinary expenses for extracurricular activities.</tt></blockquote>

Section 7(1.1) clarifies (1)(d) and (1)(f), and says that for these subsections "extraordinary expenses" means:

<blockquote><tt>(a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or</tt></blockquote>
<blockquote><tt>(b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account</tt></blockquote>
<blockquote><blockquote><tt>(i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) the nature and number of the educational programs and extracurricular activities,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(iii) any special needs and talents of the child or children,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(iv) the overall cost of the programs and activities, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(v) any other similar factor that the court considers relevant.</tt></blockquote></blockquote>

Special expenses are shared between the payor and recipient in proportion to their incomes. These provisions of the Guidelines are intended to ensure that, if either parent incurs significant additional expenses for the child's needs or activities, ''both'' parents will share the cost on the principle that it is in children's best interests to have such needs met or to participate in such activities.

If an expense is found to qualify as a special and/or extraordinary expense under the section 7(1) and section 7(1.1) definitions, the court may make an order that both parties pay additional amounts, in addition to the usual Guidelines basic amount of support, to cover all or a portion of the cost of the expense.

===Qualifying expenses as "special and/or extraordinary"===

Just because an expense appears to fall into one of the categories listed in section 7 of the Guidelines doesn't necessarily make it a shareable special and/or extraordinary expense. As well, just because an expense has been incurred doesn't mean it will automatically be shared; if you're not sure whether a planned expense will qualify as a shareable special expense, get some legal advice or talk to the other parent first to see if they will agree to share in the expense.

An expense that may not qualify as a special expense for higher earning families may qualify as such for low income families. For example, if guideline child support of $2,000.00 for one child is being paid, the $200.00 cost of soccer registration will probably not be considered a special expense (and will have to be paid from the $2,000 basic child support by the recipient parent), but that same $200.00 expense may be a special expense if only $500.00 per month Guideline support is being paid (and will therefore have to be shared between the parents).

According to section 7(1) of the Guidelines, the court must not only find that an expense fits into one of the categories listed above, but also consider:

*the "reasonableness of the expense in relation to the means of the spouses and those of the child and to the family's spending pattern prior to the separation," and
#the necessity of the expense in relation to the child's best interests,

The court must bear in mind the special test for primary- and secondary-school education and extracurricular activities required by section 7(1.1). Here's a helpful summary from a 2010 case from our Supreme Court, ''[http://canlii.ca/t/2dpzr Piper v. Piper]'', 2010 BCSC 1718:

<blockquote>"Under section 7(1.1)(a) the court is first required to consider whether the income of the requesting spouse, including any child support received, can reasonably cover the expense claimed or whether the expense exceeds her ability to pay without any consideration of the factors enumerated in section 7(1.1)(b). If the income cannot cover the expense, the expense is deemed to be extraordinary and the court's next analysis turns to consideration of the factors enumerated in section 7(1) which, of course, brings into consideration the parties' means and pre-separation spending pattern."</blockquote>

====Reasonableness====

When the court is asked to consider a particular expense, it should first decide whether the expense is necessary and reasonable according to the parties' financial resources. For lower income parents, fewer expenses will be considered reasonable.

*Daycare will almost always be considered necessary and reasonable, if that daycare is incurred as a result of the parent’s employment, illness, disability, or education or training for employment. Daycare subsidies will be taken into account when apportioning daycare expenses between the parents, as will tax-deductibility.

For parents with more money, more expenses may qualify as reasonable:

*Cosmetic orthodontic work.
*Dance, music, and art classes, swimming lessons, and summer day camps.
*Less expensive team sports, like soccer, baseball, and basketball.
*Basic high-school graduation costs, such as tickets and gown or tuxedo rentals.
*Basic post-secondary education costs, such as tuition fees for a local college or university, student fees, and textbook costs.

For parents with lots of money, almost every big-ticket expense is probably going to be considered reasonable:

*Multiple week summer camps and trips abroad.
*Private school fees.
*Expensive team sports, like hockey and horseback polo, and expensive solo sports like skiing and scuba diving.
*Post-secondary education costs, including meal plans and residence costs.

====Necessity====

Sometimes the needs of the child will outweigh the cost of the expense to the child, and an expense will qualify as a special expense whether at a hardship to the parents or not.

*Medical costs, including costs that aren't covered by MSP such as autism therapies.
*Counselling services, where the counselling is necessary for the child's mental health.
*Tutoring services, where the child needs the extra help to get through school.
*Lessons or coaching in arts and sports, where the child has a special talent that should be nurtured.

A driver training course, for example, is unlikely to qualify as a special expense under the heading of necessity, since you can learn to drive and obtain a driver's license without it, as was decided in a 2011 Supreme Court case, ''[http://canlii.ca/t/2fzs4 M.S.J. v. J.M.J.]'', 2011 BCSC 245. On the other hand, if a semester with Sylvan Learning Centre will mean the difference between passing or failing a grade, the tutoring would probably be considered a necessity.

===Sharing qualifying expenses===

Under section 7(2) of the Guidelines, expenses that qualify as special and/or extraordinary expenses are generally shared by the parties in proportion to their incomes, after deducting any contribution to those costs made by the child or the government, through things like grants or tax deductions. The idea here is to look at the total pot of money available to the child — the income of the payor plus the income of the recipient — and to figure out how much each party's share of that pot is, and then pay the child's special expenses according to each parent's share.

The easiest way to calculate a parent's ''proportionate share'' is to add the incomes of both parents together and then figure out what percentage each income is of the total. Here are two examples.

:'''Example #1'''

<blockquote>If one parent earns $75,000 per year and the other $25,000, the total pot available to the child is $100,000. Of that sum, the first parent contributes 75% and the second parent 25%. As a result, the first parent would be ordered to pay 75% of qualifying expenses, and the second parent 25%.
</blockquote>

:'''Example #2'''

<blockquote>If one parent earns $48,000 per year and the other $62,000, the total of their incomes is $110,000. The first parent's income is 43.6% of the total, and the other parent's income is 56.4% of the total. The first parent would have to pay 43.6% of all qualifying special expenses, and the second would have to pay 54.6% of those expenses.</blockquote>

The cost that is being shared is the ''net cost'' of an expense, in other words, the amount that is actually being paid after any third-party contributions have been applied to reduce the expense. Daycare costs, for example, are sometimes subsidized for lower income earners and the amount paid by a parent is deductible from their income. It is the net expense after deducting any subsidy and any tax saving that is to be shared.

Note that the income of a parent's new spouse or partner may sometimes be taken into consideration in determining a parent's "means" in sharing a special expense. In the 2000 Supreme Court case of ''[http://canlii.ca/t/1fm6b Baum v. Baum]'', 2000 BCSC 1835, the court held that the section 7(1) consideration of the "means of the spouses" should be interpreted broadly as including all sources of income available to the paying parent, including the contribution of a parent's new partner. Also see the case of [http://canlii.ca/t/53kt ''Scott v. Scott''], 2000 BCSC 844.

==The calculation of income==

Before the court even looks at the Child Support Guidelines tables it has to decide what the payor's income is. The tables set out the amount of child support payable according to the payor's income. The Guidelines require that the court use the most up-to-date information available. Sections 15 to 20 of the Guidelines set out the rules the court must apply in determining income.

According to Rule 5-1 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules] and Rule 4 of the [http://canlii.ca/t/85pb Provincial Court (Family) Rules], when someone makes an application for child support, the payor or both the payor and recipient are required to disclose their financial circumstances using a court form called a Financial Statement. Financial statements require each party to set out their income and expenses, and assets and liabilities. Certain income documents must be attached to a financial statement, typically:

#the last three years' tax returns (what's required is the complete income tax and benefit return, not tax return "summaries" or "informations"),
#all notices of assessment and reassessment received for the last three tax years,
#the party's most recent paystub, showing their earnings to date, or if the party isn't working, then their most recent WCB statement, social assistance statement, or EI statement, and
#business records like financial statements and corporate income tax returns, if the party has a company.

The basic rule of thumb is that a party's income for the purposes of the Guidelines is the amount stated at line 150 of the payor's most recent tax return, although there are important exceptions that apply when a person's income is from self-employment. A party's income includes all of the party's income, not just income from a job. ''Income'' might include bonuses, rental income, profit from stock options, company dividends, Workers Compensation payments, long term or short term disability payments, personal injury awards (that relate to loss of income), pension income, government benefits, interest from an investment, and so forth, as well as employment and self-employment income.

Section 2(3) of the Guidelines requires that the most current income information be used; this can include a calculation of income based on paystub evidence. Most of the time income is based on the most recent tax year, since the income information for that year is complete. This means that there is usually a one-year lag between the amount of support being paid and the payor's income. However, if a payor's current income can be known with certainty, such as if the payor is an employee without bonus or commission income, child support can be determined using the payor's current income.

===Government benefits===

Payments from WCB, Employment Insurance, CPP, Old Age Security, and social assistance all count as income under the Guidelines. If a party is receiving these payments as a temporary substitute for employment income, the party's income may be assessed at their usual income. A temporary period on social assistance, for example, won't entitle a payor to have their income assessed at that unusually low level into the future.

Note that Canada Child Tax Benefits are not considered income for basic child support purposes, but may be taken into account when determining the sharing of special and extraordinary expenses.

===Fluctuating income===

Where a party's income changes from year to year for reasons beyond the party's control, such as fluctuating commission sales or bonuses that are assessed by an employer, the court may take the party's income over the past three years into consideration in setting the payor's income. In certain circumstances, the court may fix the party's income as the ''average'' of their income over the last three years.

===Unexpected losses and gains===

Where a payor has suffered an unexpected loss, such as a corporate loss or an investment loss, or enjoyed an unexpected gain, such as from cashing in RRSPs or selling stock, the court has the discretion to decide to take this into consideration in setting the payor's income, and potentially not consider the loss or gain, if it was a one-time occurrence.

===Court awards===

If a payor has received an award from a civil court proceeding such as for wrongful dismissal or for personal injury, the court may attribute the portion of the award allocated for ''lost wages'' to a payor's income. The whole amount of the award, including the parts relating to pain and suffering, will not be seen as income for the purposes of the Guidelines, just the part intended to compensate for lost wages.

===Windfalls===

Money received from an inheritance, the sale of a house, or a lottery win does not count as income under the Guidelines. Any interest or other investment income earned or that should reasonably be earned from the inheritance or lottery win would count as income.

==Imputing income==

To ''impute'' income means to attribute income to a payor above that which the payor claims they earn, usually for making a support award based on that higher amount. Typically, someone asks the court to impute income to a payor where:

#the payor works in the service industry, for example as a restaurant server or a taxi driver, and receives tip income that is not reported on income tax returns,
#the payor is intentionally unemployed or under-employed (i.e. not working to their full skills and capacity),
#the payor has quit or been fired from their job,
#the payor moves from full- to part-time work without a very good reason,
#the payor is self-employed and either receives unpaid benefits from their company (like a company car, paid meals, or a free cell phone), or doesn't report the full amount of money taken from the company,
#the payor has refused to provide full and complete financial disclosure,
#the payor has or will have income from a trust,
#the payor has hidden or appears to have hidden some of their income, or
#the payor is not using resources at hand that could generate income, such as a vacant house that could be rented out or savings that could be invested.

If the court decides to impute income to a payor, child support will be payable at the Guidelines rate for the higher income. The parties' proportionate responsibility to contribute to the cost of any qualifying special and/or extraordinary expenses may be based on imputed income, including income imputed to the recipient.

The court can decide to impute income for the purposes of calculating child support in other circumstances, such as when the payor is underemployed or unemployed, is income splitting with a new partner, or lives in a place with a lower tax rate than usual.

===Underemployment and unemployment===

Section 19(1) of the Guidelines says that:

<blockquote><tt>The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(e) the spouse's property is not reasonably utilized to generate income;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(f) the spouse has failed to provide income information when under a legal obligation to do so;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(g) the spouse unreasonably deducts expenses from income;</tt></blockquote></blockquote>

In other words, the court may decide that a payor has a different income than that which the payor says they have if:

*the payor has quit a job in order to avoid paying child support,
*the payor has taken lower-paying work than they used to have, or is capable of holding, in order to minimize the amount of child support payable, or
*the payor has tried to reduce their income by claiming unreasonable deductions.

If you are going to make an argument that income should be imputed to someone, you will have to prove that one or more of the conditions described in section 19(1) exist. If a party's underemployment or unemployment is caused by child care responsibilities, the court will not usually impute income.

It's not enough merely to ''argue'' that one of the conditions listed in section 19(1) exist, you have to be able to ''provide evidence'' that the condition exists. The following factors were cited by the court in a 2003 Supreme Court case, ''[http://canlii.ca/t/1pt18 Nahu v. Chertkow]'', 2003 BCSC 1285, in determining whether a payor is intentionally underemployed or unemployed:

*the payor's education, training, and work experience,
*the payor's previous earnings and past borrowing of funds during unemployment,
*the payor's work history,
*the payor's spending patterns and lifestyle,
*the payor's efforts to upgrade their education and work qualifications,
*the nature and quality of the payor's attempts to obtain employment, and
*any evidence that the underemployment or unemployment is motivated by ill will towards the recipient.

This last point, about the payor's ill will, has to do with the idea that the payor is able to earn more but chooses not to. In the 1999 Supreme Court case ''[http://canlii.ca/t/1d2x1 Hanson v. Hanson]'', 1999 CanLII 6307 the court had this to say on the subject:

<blockquote>"1. There is a duty to seek employment in a case where a parent is healthy and there is no reason why the parent cannot work. It is 'no answer for a person liable to support a child to say that he is unemployed and does not intend to seek work or that his potential to earn income is an irrelevant factor' ...</blockquote>
<blockquote><tt>"2. When imputing income on the basis of intentional underemployment, a court must consider what is reasonable under the circumstances. The age, education, experience, skills and health of the parent are factors to be considered in addition to such matters as the availability of work, freedom to relocate and other obligations.</tt></blockquote>
<blockquote><tt>"3. A parent's limited work experience and job skills do not justify a failure to pursue employment that does not require significant skills, or employment in which the necessary skills can be earned on the job. ... [C]ourts have never sanctioned the refusal of a parent to take reasonable steps to support his or her children simply because the parent cannot obtain interesting or highly paid employment.</tt></blockquote>
<blockquote><tt>"4. Persistence in [poorly paid] employment may entitle the court to impute income.</tt></blockquote>
<blockquote><tt>"5. A parent cannot be excused from his or her child support obligations [to pursue] unrealistic or unproductive career aspirations.</tt></blockquote>
<blockquote><tt>"6. As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income."</tt></blockquote>

==="Grossing up" income===

Section 19(1) of the Guidelines also says that:

<blockquote><tt>The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:</tt></blockquote>
<blockquote><blockquote><tt>(b) the spouse is exempt from paying federal or provincial income tax;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax.</tt></blockquote></blockquote>

Under these sections of the Guidelines, payors who have a lower income tax obligation than usual, such as certain First Nations persons living on reserve who might pay no federal taxes, or persons who live in another country with a lower tax rate, can have their income ''grossed up'' to reflect this tax advantage when child support is determined.

The grossing up process essentially involves figuring out the amount of money the payor would have to earn to have the same after-tax income at the tax rates normally applicable to residents of British Columbia. This will result in income being imputed to the payor for the purposes of calculating child support, with a consequent increase in the amount of child support that will be payable.

The math behind grossing up someone's income is a bit complex. Essentially, the idea is to figure out the amount of income the person would have to earn before taxes to receive the amount they earn net of taxes. Think of it like this:

<blockquote>Say Mr. A earns $100,000 per year. As a resident of British Columbia, Mr. A pays income tax at, for example, 40%. This means that Mr. A's income, net of taxes, is $60,000 per year.</blockquote>
<blockquote>Mr. B also earns $100,000 per year. Mr. B, on the other hand, lives in Texas, and has an income tax rate of, for example, 25%. This means that Mr. B's net income is $75,000 per year.</blockquote>
<blockquote>Income for the purposes of the Guidelines would normally be calculated for both Mr. A and Mr. B at a gross income of $100,000. In reality, though, Mr. A has a lot less money after income taxes are paid than Mr. B does. Mr. B actually has a lot more money than Mr. A, and ought to pay child support based on this additional money.</blockquote>
<blockquote>Mr. B's income would be "grossed up" to figure out what income he would have to earn in BC to have an after-tax income of $75,000. Since he would pay income tax at a rate of 40% here, the court would consider Mr. B to have a gross income of $125,000 for the purposes of child support, since tax of 40% on a gross income of $125,000 leaves a net income of $75,000.</blockquote>
<blockquote>Mr. A and Mr. B both have incomes of $100,000 per year. Mr. A will pay his base amount of support at that income, but Mr. B will pay at a grossed up income of $125,000 to reflect what he would have to earn in BC to have the after-tax income of $75,000 he has living in Texas.</blockquote>

Grossing up a payor's income can be a bit tricky, and requires a knowledge of the income tax laws applicable to First Nations payors earning income on First Nations reserve lands and to payors earning income outside of Canada. If you have a problem in this area, you should consider hiring a lawyer to help you.

==Child support and parents' new partners==

Parents and guardians usually move on with their lives after the relationship that produced their children has ended. They will meet new people and enter into new romantic relationships. Parents and their new partners are often concerned about how their relationship will impact on the payor parent's obligation to pay child support. The parent might be concerned to know whether the new partner's income will be added to their income in calculating child support. The new partner will want to know whether they are now on the hook for support and must contribute to the parent's payments or towards the parent's children.

===Basic child support payments===

The income of a parent's new partner is not relevant to the payment of basic child support, nor is a payor's new partner obliged to pay child support. The new partner will not inherit the child support obligation in the event the payor dies, and the recipient of support won't be able to pursue the new partner for continuing or supplemental payments. If the new partner and the parent separate, however, the new partner might become obligated to pay child support as a result of them being a stepparent to the children. See the section that deals with stepparents’ obligations.

For the purposes of calculating the base amount of child support a parent must pay — that is, the parent's basic obligation under the Child Support Guidelines, before special and/or extraordinary expenses — the court will only look at the parent's income. The income of the new partner is not taken into account.

===Undue hardship claims===

Section 10 of the Child Support Guidelines allows parties to argue that the base amount of support set out in the Guidelines tables is too low or too high and would cause ''undue hardship'' if the table amount was paid. Payors will claim that the base amount is too high, while recipients will argue that it is too low. This chapter discusses exceptions to the Guidelines more thoroughly in the section, [[Exceptions to the Child Support Guidelines]].

If undue hardship is claimed, the court will look at the standard of living of each parent's ''household'', rather than the standard of living of each parent alone. This means that the court, in deciding whether there is undue hardship, will look at the total expenses and total income of each parent's household, including the income of each parent's new partner. This will not cause the new partner to be liable to pay support; it just means that their income will be taken into consideration to see whether the usual table amount of support payable is unduly high or low.

===Incomes in excess of $150,000===

The tables provided in the Child Support Guidelines set out the amount of support owing by payors who earn up to $150,000 per year. The Guidelines provide a mathematical formula for figuring out what parents earning more than $150,000 must pay, while payors earning less than $12,000 pay nothing.

Section 4 of the Guidelines deals with parents who earn more than $150,000 each year. Under this section, the income (or lack of income) of a parent's new partner may be taken into account in deciding whether the formula gives a fair result. The calculation of support owing by parents with incomes in excess of $150,000 is discussed in more detail in [[Exceptions to the Child Support Guidelines]].

Section 4(b)(ii) of the Guidelines says that when considering the amount payable above the basic amount for a payor whose annual income is $150,000, the court should apply the formula but take into account:

<blockquote><tt>... the condition, means, needs and other circumstances of the children who are entitled to support and the financial ability of each spouse to contribute to the support of the children ...</tt></blockquote>

In other words, the income of a new partner can be taken into account under the general heading of "financial ability" of a spouse in determining whether the formula amount is fair.

===Special expenses===

Section 7 of the Guidelines allows for sharing of the children's special and/or extraordinary expenses between the parents, as discussed above. In figuring out how much a parent should have to contribute to these expenses, the court is required to take into account, among other things, "the necessity and reasonableness of the expense in relation to the means of the spouses and those of the child."

A parent's new partner's income can be taken into consideration in assessing the "means of the spouses," which is exactly what the court did in the 2000 Supreme Court case of ''[http://canlii.ca/t/1fm6b Baum v. Baum]'', 2000 BCSC 1835. In that decision, the court held that ''means of the spouses'' should be interpreted broadly as including all of the means available to the paying parent, including the financial contribution of their new partner.

Again, the new partner will not be responsible to pay child support or a share of the children's special expenses as a result; only the payor's obligation will be affected by the new partner's income.

===Death of the payor===

A number of readers have asked whether they will have any responsibility to make child support payments if their partner, who is a parent or guardian under an obligation to pay child support, dies. The simple answer to that question is no, they will have no responsibility. The fact that they are in a relationship with a paying parent doesn't necessarily mean that they will have a duty to keep paying support if that parent dies.

While that is a good general rule, and one you can probably rely on, it is possible that a claim could be made against the new partner as a ''stepparent'' of the child under the ''[[Family Law Act]]''. The act says that all parents, guardians, and stepparents are required to support their children, but section 147 says that stepparents who are obliged to pay child support must have contributed to the support of the child for at least one year. In other words, a new partner who marries a paying parent may have an obligation if they have contributed to the support of the child. Again, while this is technically possible, orders against new partners following the death of the paying parent are extremely rare.

The deceased parent’s estate may, however, be liable to pay child support and a claim could be made against the estate under the ''Wills Estates and Succession Act'', but this is beyond the scope of this chapter.

==Agreements and orders for child support==

===Orders for child support===

An order for child support typically contains the following elements:

*a statement of the names and birthdates of the children for whom support will be paid,
*a declaration of the payor's income,
*an order as to the Guidelines amount payable,
*an order about the exchange of income information, and
*a statement of the date on which child support will no longer be payable.

These elements look like this in a typical order made under the ''[[Divorce Act]]'':

<blockquote><tt>UPON the Court being advised that the children of the marriage are</tt></blockquote>
<blockquote><blockquote><tt>Jesse Ann Doe, born on 1 March 1998, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>Sandra Alexandra Doe, born on 1 April 2000;</tt></blockquote></blockquote>
<blockquote><tt>AND UPON the Court finding that the Claimant's income for the purposes of the Child Support Guidelines is $72,000.00 per year;</tt></blockquote>
<blockquote><tt>THIS COURT ORDERS that:</tt></blockquote>
<blockquote><tt>1. The Claimant, Jane Doe, payor, shall pay to the Respondent, John Doe, recipient, the sum of $1,092 per month, commencing on the first day of April 2013 and continuing on the first day of each and every month thereafter until such time as the children are no longer "children of the marriage" as defined by the ''Divorce Act''; and,</tt></blockquote>
<blockquote><tt>2. The Claimant shall provide to the Respondent a copy of her tax return on the first day of May 2014 and continuing on the first day of May for each and every year thereafter until such time as the children are no longer "children of the marriage," and the Claimant shall provide to the Respondent a copy of each Canada Revenue Agency Notice of Assessment or Notice of Reassessment within two weeks of her receipt of the same, and adjusting child support accordingly, and continuing until such time as the children are no longer "children of the marriage." </tt></blockquote>

Under the ''[[Family Law Act]]'', the order would look like this:

<blockquote><tt>UPON the Court being advised that the children are</tt></blockquote>
<blockquote><blockquote><tt>Jesse Ann Doe, born on 1 March 2008, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>Sandra Alexandra Doe, born on 1 April 2010;</tt></blockquote></blockquote>
<blockquote><tt>AND UPON the Court finding that the Claimant's income for the purposes of the Child Support Guidelines is $72,000.00 per year;</tt></blockquote>
<blockquote><tt>THIS COURT ORDERS that:</tt></blockquote>
<blockquote><tt>1. The Claimant, Jane Doe, payor, shall pay to the Respondent, John Doe, recipient, the sum of $1,092 per month, commencing on the first day of April 2018 and continuing on the first day of each and every month thereafter until such time as the children are no longer "children" as defined by the ''Family Law Act''; and,</tt></blockquote>
<blockquote><tt>2. The Claimant shall provide to the Respondent a copy of her tax return on the first day of May 2019 and continuing on the first day of May for each and every year thereafter until such time as the children are no longer "children" as defined by the ''Family Law Act'', and the Claimant shall provide to the Respondent a copy of each Canada Revenue Agency Notice of Assessment or Notice of Reassessment within two weeks of her receipt of the same, and adjusting child support accordingly, and continuing until such time as the children are no longer "children." </tt></blockquote>

The point of the last clause of each of these sample orders is to require the payor to annually provide evidence of their income to the recipient so that both parties can decide whether an increase or a decrease in the amount payable is appropriate.

If the Order is to include special and extraordinary expenses, the Order will usually include:
* the recipient spouse’s income (including any spousal support they might be receiving),
* the percentage contribution due for each parent to cover special expenses, and
* a requirement that both parents exchange income information each year.

Disclosure of income by both parents is also required in shared and split custody cases.

It is a good idea to specify in a child support order whether the order is made under the ''Divorce Act'' or the ''Family Law Act'' as it could have an effect on a future variation application. For more information, see the case of [http://canlii.ca/t/fspd1 ''Yu v. Jordan''], 2012, BCCA 367.

===Agreements for child support===

Separation agreements, like all family law agreements, have two types of statements. The ''recitals'' are statements that talk about the parties and their relationship. They explain the parties' background and why they signed their agreement. The ''operative clauses'' of an agreement are statements that say what each party has promised to do.

The recitals to a separation agreement about child support would include statements like these:

<blockquote><tt>D. Jane Doe is a plumber working for ABC Plumbing, earning about $72,000 per year.</tt></blockquote>
<blockquote><tt>E. John Doe is a graphic artist working for Sunny Skies Art and Design, earning about $40,000 per year.</tt></blockquote>
<blockquote><tt>F. Jane and John have two children, Jesse, who is 15, and Sandra who is 13.</tt></blockquote>

The operative clauses about child support might say something like this:

<blockquote><tt>15. Jane will pay child support to John in the amount of $1,092 per month, beginning on 1 April 2013 and continuing on the first day of each month thereafter while Jesse and Sandra remain "children" as defined by the ''Family Law Act''.</tt></blockquote>
<blockquote><tt>16. Jane will give John a copy of her tax return by no later than May 31 each year and will also give John a copy of each Canada Revenue Agency Notice of Assessment or Notice of Reassessment within two weeks of receiving it each year for so long as the children are still "children" as defined by the ''Family Law Act''.</tt></blockquote>

Both court orders and separation agreements should include the children’s full names, birth dates, the amounts of basic child support and special expenses, the date for the commencement of those payments, and the Act under which the child support order is made. Those details are important so that the court orders and agreements can be enforced.

==Child support tables and calculators==

The [http://laws-lois.justice.gc.ca/eng/regulations/SOR-97-175/page-11.html#h-15 simplified Child Support Guidelines Tables for British Columbia] are available from the website of the federal Department of Justice. The federal government has published an [http://www.justice.gc.ca/eng/fl-df/child-enfant/look-rech.asp online child support calculator].

The provincial government also operates the BC Child Support Info Line which offers free information about child support and the child support tables. Contact the Info Line at:

*Lower Mainland: 604-660-2192 
*Outside the Lower Mainland: 888-216-2211


==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [http://canlii.ca/t/80mh Child Support Guidelines]

===Links===

* [http://laws-lois.justice.gc.ca/eng/regulations/SOR-97-175/page-11.html#h-15 Child Support Guidelines Tables for British Columbia]
* [http://www.justice.gc.ca/eng/fl-df/child-enfant/look-rech.asp Online Child Support Calculator]
* [http://www.clicklaw.bc.ca/resource/1175 BC Ministry of Attorney General's FMEP Child Support Calculator]
* [http://www.clicklaw.bc.ca/resource/1235 Dial-A-Law Script "Child support"]
* [http://www.clicklaw.bc.ca/resource/1618 Legal Services Society's Family Law website's information page "Child & spousal support"]
** Under "Child support", see "What are the child support guidelines and how do they work?"

{{REVIEWED | reviewer = [[Bill Murphy-Dyson | William Murphy-Dyson]] and [[Inga Phillips]], June 14, 2019}}

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[[Category:JP Boyd on Family Law]]

Child Support

2021-03-06T21:14:40Z

Jpboyd: /* Links */

{{JPBOFL Start Chapter
|Related = [[Child Support Guidelines|The Guidelines]]{{·}}[[Exceptions to the Child Support Guidelines|Exceptions to the Guidelines]]
{{·}}[[Making Changes to Child Support|Making Changes]]{{·}}[[Child Support Arrears]]
}}
{{JP Boyd on Family Law TOC|expanded = childsupport}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bill Murphy-Dyson]] and [[Inga Phillips]]
}}
{{Clicklawbadge
| resourcetype = more resources on 
| link = [https://www.clicklaw.bc.ca/global/search?k=child%20support child support]
}}Child support is money paid by one parent or guardian to the other to help cover the expenses associated with raising the children. The amount of child support payable is usually fixed according to tables contained in the [[Child Support Guidelines]] (the Guidelines), which sets support according to the number of children and the income of the person paying support. While there are some exceptions to the Guidelines, the amount of child support payable is almost always the amount set out in the tables.

This section discusses the basics of child support, and child support orders or agreements under the ''[[Divorce Act]]'' and the ''[[Family Law Act]]''. It briefly looks at how to get a child support order inside and outside of British Columbia. It also looks at the income tax implications of child support, what happens when someone entitled to receive child support goes on social assistance, and the rights of children to claim child support. The obligation to pay child support for adult children is also discussed.

Other sections in this chapter look at the [[Child Support Guidelines|Guidelines in more detail]]. They also discuss [[Exceptions to the Child Support Guidelines|exceptions to the Guidelines]], [[Making Changes to Child Support|how to make changes]], and [[Child Support Arrears|how to deal with arrears of child support]].

'''Important changes''' 
Look for explanations under this heading to read about recent changes to family law affecting the information provided in this section.

==Introduction==

After parents separate, they usually find that their individual financial situations have gotten worse. Instead of the family income paying for one rent payment, one phone bill, one electricity bill, and so forth, the same amount of income must now cover two rent payments, two phone bills, and two electricity bills. If a child lives mostly with one parent, that parent will inevitably have to pay for more of the child's expenses for things like school fees, food and clothing, as well as accommodation. Child support is intended to help distribute the cost associated with raising a child between the child's parents and other people who may be responsible for supporting the child, such as stepparents.

Child support is a payment made by one parent or guardian (the ''payor''), to the other parent or guardian, the (''recipient''), to help meet the costs the recipient bears as a result of the child's needs. The payment of child support helps to maintain or improve the child's living conditions. Child support is not a supplement to spousal support; it's money that is paid for the benefit of the child, not the parent with whom the child lives.
Inevitably, however, there will be some overlap between the recipient parent’s expenses, and the child’s expenses, such as rent or mortgage payments.

Child support is not a fee paid in exchange for time with the child. With some exceptions (such as child support paid for children over 19, or shared parenting situations), child support is different from and virtually unrelated to parenting time or contact time.

Child support is payable on the principle that both parents have a legal duty to financially contribute to their child's upbringing. The simple fact of parenthood triggers this obligation, even if the payor never sees the child and has no role in the child's life. Child support can also be payable by stepparents and people who are guardians and not parents, although the rules are slightly different for these people and their obligation is often tempered by a biological parent's obligation.

An order for child support can be made under section 15(1) of the federal ''[[Divorce Act]]'' or section 149 of the provincial ''[[Family Law Act]]''. Alternatively, the parents can agree on child support in a separation agreement. Either way, the amount of support should, with only a few exceptions, conform to the rules set out in the federal [[Child Support Guidelines]].

The Guidelines contain a series of tables, particular to each province, which set out the amount payable based on the payor's income and the number of children for whom support is being paid. There are some exceptions to this basic rule, and they are described later in this chapter. The tables were most recently updated on November 22, 2017. For most people, the changes resulted in a small increase in the amount of child support payable.

Both the ''[[Divorce Act]]'' and the ''[[Family Law Act]]'' require the court and parents or guardians to give child support priority over spousal support when both child support and spousal support might be payable. In other words, if there isn't enough money to pay both, child support will take priority. Going one step further, both child support and spousal support in most cases take priority over debt payments and other expenses, and both obligations survive an assignment into bankruptcy.

'''Important changes''' 
Under the changes to the ''Divorce Act'' that took effect on 1 March 2021, "custody" is now known as ''decision-making responsibility'' and "access" is now known as ''parenting time'', for people who are or used to be married to each other, or as ''contact'' for other people. As a result of these changes, the language used in the Child Support Guidelines has also changed. "Split custody" is now known as ''split parenting time'' and "shared custody" is now known as ''shared parenting time''.

==The ''Divorce Act''==
Child support can be ordered under section 15(1) of the ''Divorce Act'' but only if:

* the parents (or one parent and one step-parent) are or have been legally married, and

* at least one of the parents or a step-parent have lived in the province continuously for at least one year immediately before the court action is started.

A divorce action can only be started in Supreme Court, not Provincial Court.

Parents who do not qualify to apply for child support under the ''Divorce Act'' (or who do not want to go that route) can still apply for child support under the ''Family Law Act'' either in the Provincial Court or Supreme Court.

===Qualifying for child support===

In the ''Divorce Act'', children are referred to as ''children of the marriage'', and a child must fall within the Act's definition of a child of the marriage to be eligible for support. There are a couple of important definitions in section 2(1) that apply in determining whether a child is a child of the marriage:

<blockquote><tt>"age of majority", in respect of a child, means the age of majority as determined by the laws of the province where the child ordinarily resides, or, if the child ordinarily resides outside of Canada, eighteen years of age;</tt></blockquote>
<blockquote><tt>"child of the marriage" means a child of two spouses or former spouses who, at the material time,</tt></blockquote>
<blockquote><blockquote><tt>(a) is under the age of majority and who has not withdrawn from their charge, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life;</tt></blockquote></blockquote>

As well, section 2(2) of the act says that:

<blockquote><tt>For the purposes of the definition "child of the marriage" in subsection (1), a child of two spouses or former spouses includes</tt></blockquote>
<blockquote><blockquote><tt>(a) any child for whom they both stand in the place of parents; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) any child of whom one is the parent and for whom the other stands in the place of a parent.</tt></blockquote></blockquote>

Taken together these definitions mean that:

*child support can be owing from an adoptive parent, as well as a natural parent,
*child support can be owing from stepparents (spouses who "stand in the place of a parent"),
*child support is payable until a child reaches the age of majority in the province where the child lives (19 in British Columbia), and
*child support can be payable after the child reaches the age of majority if the child is still financially dependent on the parents.

The ''[[Divorce Act]]'' says that an adult child can continue to be eligible for child support as long as they cannot withdraw from the charge of the parents. The two main reasons why a child might not be able to withdraw are because the child is going to university, or because the child has a serious, chronic illness that prevents them from becoming self-supporting. The factors a court will consider to decide if a child's academic career qualifies them as a "child of the marriage" include the following:

*the age of the adult child,
*whether the academic program is full- or part-time, and whether the program is connected to the child's future employment,
*the child's ability to contribute to their own support through part-time work, student loans, grants, bursaries, RESPs, or other resources,
*the child's academic performance and dedication to their studies,
*both parents’ financial situation, and
*any plans the parents may have made for the child's post-secondary schooling while they were still together.

In general, the courts will allow an adult child to benefit from child support for one program of post-secondary study — one degree or one diploma — so long as the child is enrolled full-time. Where one or both parents have a very high income and had always expected, during their relationship, that the child would take an advanced degree, child support can be payable for more than one degree program.

Many post-secondary institutions consider that 60% of a full course load is “full-time” and the courts usually go along with this.

Although for dependent children over 19 child support is presumed to be the Guideline table amount, section 3(2) of the Guidelines allows the court to order a different amount that the court considers appropriate, taking into account the child’s needs, and other circumstances, and the financial circumstances of the child and the parents.

===Statutory provisions===

The primary sections of the ''[[Divorce Act]]'' dealing with child support are these:

*s. 2: definitions
*s. 4: jurisdiction to make child support orders (child support is a kind of corollary relief)
*s. 5: jurisdiction to change orders
*s. 15(1): child support
*s. 15(3): child support has priority over spousal support
*s. 17: variation proceedings

==The ''Family Law Act''==

A parent or guardian can apply for child support under the ''[[Family Law Act]]'' whether the parties are married spouses, unmarried spouses, or if they were in no particular relationship with each other at all but had a child together. People other than parents can also apply for child support if they are caring for a child, including grandparents who are guardians of their grandchildren and people who have been appointed as a guardian of a child.

Both the Supreme Court and the Provincial Court can make orders for child support under the ''Family Law Act''.

===Qualifying for child support===

Definitions play an important role in determining eligibility and responsibility for child support under the ''[[Family Law Act]]'', just as they do under the ''[[Divorce Act]]''. Section 147 of the ''[[Family Law Act]]'' says that each parent and guardian of a child is responsible for the support of that child, and section 146 defines ''child'', ''parent'', and ''guardian'' as follows:

<blockquote><tt>"child" includes a person who is 19 years of age or older and unable, because of illness, disability or another reason, to obtain the necessaries of life or withdraw from the charge of his or her parents or guardians;</tt></blockquote>
<blockquote><tt>"guardian" does not include a guardian</tt></blockquote>
<blockquote><blockquote><tt>(a) who is not a parent, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) whose only parental responsibility is respecting the child's legal and financial interests;</tt></blockquote></blockquote>
<blockquote><tt>"parent" includes a stepparent, if the stepparent has a duty to provide for the child under section 147 (4) [duty to provide support for child];</tt></blockquote>

Section 146 gives a definition of ''stepparent'' for the definition of parent and says that:

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

However, section 147 puts some really important limits on support for minor children, and on when stepparents are and aren't responsible to pay child support:

<blockquote><tt>(1) Each parent and guardian of a child has a duty to provide support for the child, unless the child</tt></blockquote>
<blockquote><blockquote><tt>(a) is a spouse, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) is under 19 years of age and has voluntarily withdrawn from his or her parents' or guardians' charge, except if the child withdrew because of family violence or because the child's circumstances were, considered objectively, intolerable.</tt></blockquote></blockquote>
<blockquote><tt>...</tt></blockquote>
<blockquote><tt>(4) A child's stepparent does not have a duty to provide support for the child unless</tt></blockquote>
<blockquote><blockquote><tt>(a) the stepparent contributed to the support of the child for at least one year, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) a proceeding for an order under this Part, against the stepparent, is started within one year after the date the stepparent last contributed to the support of the child.</tt></blockquote></blockquote>

Section 149(3)(b) also says that an order can't be made against a stepparent until the stepparent and parent have separated. It is interesting that while the stepparent and the child’s parent live together, the stepparent has no legal obligation to support that child, unless the stepparent becomes a guardian of the child.

As you can see, these definitions cast a very wide net and it's fairly easy to qualify as a parent who must pay child support. A few important points come from the case law on these definitions:

*All parents are responsible to pay child support, regardless of the nature of the parents' relationship with each other (there are some exceptions where child support for adult children is concerned).

*Child support obligations may end for an adult child (but only if the parents agree or a court so orders) if the adult child unilaterally without good reason stops having a meaningful relationship with the parent who pays support. See the case of [http://canlii.ca/t/1dk6h Farden v. Farden]
*In the case of stepparents and adult children the existence (or non-existence) of the relationship between them may be important when deciding child support obligations and amounts.
*Child support can be paid by guardians and stepparents.
*The definition of stepparent includes anyone who has been the spouse of a parent and contributed to the support of their child for at least one year.
*The phrase "contributed to the support of the child for at least one year" does not mean for one whole, continuous calendar year: ''Hagen v. Muir'', [1999] B.C.J. No. 1458.
*Any application for child support from a stepparent must be brought within one year of the date of the stepparent's last contribution to the support of the child and can only be made after the stepparent and parent have split up.
*What qualifies as “contribution” to the support of the child depends on the facts. Trivial or sporadic financial contributions are not sufficient: [http://canlii.ca/t/1rn88 ''McConnell v. McConnell''], 2007 BCSC 748.
*Child support can be payable by more than one parent, guardian, and stepparent at the same time.
*A duty to pay child support can end before a child turns 19 if the child becomes a spouse or leaves home.
*Child support can be payable after the child turns 19 if the child is unable to withdraw from the care of their parents because of illness, a reasonable delay in finishing high school, or the child attending post-secondary education.

On this last point, the factors a court will consider in deciding if a child's academic career continues to qualify the child for support are the same factors listed under the [[{{PAGENAME}}#The Divorce Act |''Divorce Act'']] above.

===Stepparents and child support===

The ''[[Family Law Act]]'' says that stepparents can be responsible for paying child support just as biological and adoptive parents are responsible for paying child support. This has meant that in some cases, multiple people who meet the Act's definitions of ''parent'' and ''stepparent'' can be responsible for paying child support for the same child at the same time. In fact, there are a few cases in which parents have engaged in a number of long-term relationships, each of which were long enough to attract a child support obligation from the successive partners of those parents.

A 2004 case of the British Columbia Supreme Court, ''[http://canlii.ca/t/1gfqg H.J.H. v. N.H.H.]'', 2004 BCSC 179, decided under the old ''Family Relations Act'', offers some guidance for stepparents trying to stick-handle around this issue. In this case, the parties had been married for less than three years when they separated. Each had been previously married, and the problem centered around the wife's child from a previous relationship and whether the husband should have to support the child. The court found that the husband, who qualified as a stepparent under the Act, was not responsible for paying support, because of the combined effect of the following factors:

*the marriage was short,
*the stepparent's relationship with the child broke down shortly into the marriage,
*the stepparent had no ongoing relationship with the child, and any such relationship with the child was opposed by the parent,
*the stepparent had a "modest" income, out of which the stepparent was already responsible for paying support for two children from his previous marriage,
*the child's biological parent was paying support, and
*the parent had extended health and dental coverage for the child through her employment.

The ''[[Family Law Act]]'' helps to clear up some of these confusing issues. Section 147(5) says:

<blockquote><tt>If a stepparent has a duty to provide support for a child under subsection (4), the stepparent's duty</tt></blockquote>
<blockquote><blockquote><tt>(a) is secondary to that of the child's parents and guardians, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) extends only as appropriate on consideration of</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) the standard of living experienced by the child during the relationship between the stepparent and his or her spouse, and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) the length of time during which the child lived with the stepparent.</tt></blockquote></blockquote></blockquote>

In most cases, stepparents aren't let off the hook entirely. Most of the time, the court will take a biological or adoptive parent's obligation into account when assessing child support against a stepparent, look at the obligation of any non-parent guardians, and require stepparents only to make a sort of top-up payment rather than pay the full amount required by the Guidelines.

===Securing a child support obligation===

Under section 170, the court may make a number of additional orders when it is making an order for child support that can help to ensure that child support continues to be paid, including after the death of the payor. The court may:

*order that a charge be registered against property,
*require a payor with life insurance to maintain that policy and specify that the other parent or a child will be the beneficiary of the policy, or
*order that child support continue to be paid after the payor's death and be paid from their estate.

Before the court makes an order that requires child support to be paid from the payor's estate, under section 171(1), the court must consider:

*whether the recipient's need for support will survive the payor's death,
*whether the payor's estate is sufficient to meet the recipient's needs, taking into account the interests of the people who stand to inherit from the payor's estate and the creditors entitled to be paid from the payor's estate, and
*whether any other means exist to meet the recipient's needs.

But be aware that the person who receives child support can register a charge against the real estate property that belongs to the person who pays child support even if there are no arrears of child support. See ''Family Maintenance Enforcement Act'', Section 26.

===Child support when the payor dies===

When a payor dies, the recipient can apply to court for an order under section 171(3)(b) that the payor's support obligation will continue and be paid from their estate.

When a recipient applies to continue a support obligation or if a support order says that the obligation will continue past the payor's death, the payor's ''personal representative'', the person managing the payor's estate and will, has the right to defend against the recipient's application or apply to vary or terminate the continuing obligation.

===Statutory provisions===

The primary sections of the ''[[Family Law Act]]'' dealing with child support are these:

*s. 1: definitions
*s. 146: more definitions
*s. 147: duty to pay child support
*s. 148: agreements about child support
*s. 149: orders about child support
*s. 150: determining how much child support should be paid
*s. 152: varying orders about child support
*s. 170: securing a child support obligation
*s. 173: child support has priority over spousal support

==Getting a child support order==

There are five things the court must consider before a child support order can be made:

#Does the person asking for the order have the right to claim child support?
#Is the child entitled to receive child support?
#Does the person against whom the order is sought have a duty to pay child support?
#How much support should the child receive?
#How long should support be paid for?

First, the court must decide that the person applying for a child support order, the ''applicant'', is able to make the application. Usually, this is just a matter of fitting into the definitions given in the legislation. To make an order under the ''[[Divorce Act]]'', the court must have jurisdiction to pronounce a divorce, which requires that the applicant must be a spouse or former spouse who has lived in the province in which the application is made for at least one year. Under the ''[[Family Law Act]]'', the applicant can be anyone included in the definitions of ''parent'' or ''guardian'', and, if the claim is being made against a stepparent, the claim must be made within one year after the stepparent last contributed to the child's upkeep and after the stepparent and parent have separated, not later than one year after separation.

Second, the court must find that the child qualifies as a ''child'' as set out in the ''Family Law Act'' or as a ''child of the marriage'' as set out in the ''Divorce Act'', and under the ''Family Law Act'', the court must also find that the child is not a spouse and has not withdrawn from the care of their parents or guardians.

It is important that the application for child support be made while the child still qualifies for child support, otherwise, the court will not have jurisdiction to make a child support order, even a retroactive child support order. There may be an exception to this general rule in variations of an existing order or an agreement, see the cases of ''MacCarthy v. MacCarthy'', 2015 BCCA 496 and ''Colucci v. Colucci'', 2017 ONCA 892.

Third, the court must find that the person against whom the claim is made has a duty to pay child support. This is also a matter of fitting within the definitions.

If the first three conditions have been met, the fourth decision the court must make is to figure out how much the payor should pay. The court must first decide what the payor's annual income is, with the help of the parties' financial information, and then fix the amount of support payable according to the tables set out in the [[Child Support Guidelines]] based on the number of children and the payor's income. There are exceptions to this basic rule, which this chapter discusses in the section [[Exceptions to the Child Support Guidelines]].

Fifth, the court will look at how long the payor's obligation should last. This issue is not always argued about, as both the ''[[Divorce Act]]'' and the ''[[Family Law Act]]'' have cut-off dates after which children are no longer eligible to receive support. Most orders and agreements say that child support shall be paid "until," for example, "the child is no longer a child of the marriage as defined by the ''Divorce Act''," "the child is no longer a child as defined by the ''Family Law Act''," or "the child reaches the age of 19." The question of a stop date for support usually only crops up where the child is an adult engaged in post-secondary studies or is otherwise "unable to withdraw from the charge" of their parents, and the court must then consider the factors described earlier.

The situation can be more complicated for payors who are not parents, that is, stepparents. How much child support and for how long depends on whether or not the biological parent is or should be paying child support. Often a stepparent is required to pay less, having regard to what the biological parent is or should be paying. A receiving parent may be required to take a court action against the biological parent before the court will make any orders against a stepparent.

===Getting an order inside British Columbia===

A parent or guardian who is seeking a child support order can apply for that order in either the Supreme Court or the Provincial Court. If there are divorce and/or property division issues (which can only be heard by the Supreme Court) as well as support issues, it usually makes sense to proceed in Supreme Court. Whichever court the parent or guardian wants to proceed in, they must start a court proceeding. The process for starting a court proceeding is described in the chapter [[Resolving Family Law Problems in Court]], in the section [[Starting a Court Proceeding in a Family Matter]].

===Getting an order outside British Columbia===

A parent or guardian living with a child in British Columbia who wants to get child support from someone living outside of the province has three choices:

#start the application process here, in British Columbia, using the provincial ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]'',
#start a court proceeding in the place where the other parent lives, or
#start a court proceeding here under the ''[[Divorce Act]]'' or the ''[[Family Law Act]]'', get a child support order, and try to enforce that order in the place where the other parent lives.

The ''Interjurisdictional Support Orders Act'' allows a person who lives in British Columbia to start a process that will result in an order being made in the jurisdiction in which the other parent lives. The applicant fills out paperwork here, and gives it to the provincial Reciprocals Office. A staff member will forward that package to the [http://www.justice.gc.ca/eng/fl-df/enforce-execution/info_cont.html Reciprocals Office] where the other parent lives, and the court there will have a hearing, on notice to the other parent, which may result in a child support order being made. The law that will apply is the law where the other parent lives, which will not be British Columbia's ''Family Law Act'', or (if the other parent is outside Canada) the ''Divorce Act''.

Only certain jurisdictions have agreed to the ''Interjurisdictional Support Orders Act'' process. If the non-Canadian jurisdiction where the other parent lives hasn't made an agreement with British Columbia about child support orders, someone who wants to get a child support order will normally have to start a court proceeding in the place where the other parent lives. This will require hiring a lawyer in that country, and the law that will apply will be the laws of that country, not the ''[[Family Law Act]]'' or the ''[[Divorce Act]]''.

The countries that will cooperate with a proceeding under the ''Interjurisdictional Support Orders Act'' are:
* Canada — all of the provinces and territories,
* United States of America — all of the United States, including the District of Columbia, Puerto Rico, Guam, American Samoa, and the US Virgin Islands,
* Pacific Ocean — Australia, Fiji, New Zealand (including the Cook Islands), Papua New Guinea,
* Europe — Austria, Czech Republic, Germany, Norway, Slovak Republic, Swiss Confederation, Gibraltar, United Kingdom of Great Britain and Northern Ireland,
* Caribbean — Barbados and its Dependencies,
* Africa — South Africa, Zimbabwe, and
* Asia — Hong Kong, Republic of Singapore

See the [http://canlii.ca/t/84vn Interjurisdictional Support Orders Regulation] for the current list.

In BC, [https://www.isoforms.bc.ca/ Interjurisdictional Support Services] posts the forms required by the ''Interjurisdictional Support Orders Act'' of this province.

'''Important changes''' 
The changes to the ''Divorce Act'' include some important changes to the process for changing support orders when the spouses live in different provinces. The new process is a lot like the single-hearing process used by the ''Interjurisdictional Support Orders Act''.

==Income tax considerations==

It used to be the case that the person paying child support could claim an income tax deduction for their support payments, while the recipient had to claim it as taxable income. Not so anymore. Any child support payments made pursuant to a written agreement or court order made after April 30, 1997 are neither deductible for the payor nor taxable for the recipient.

The portion of a lawyer's bill attributable to obtaining, increasing, or enforcing a child support order is tax-deductible. The cost of defending a claim for child support is not deductible. Read the Canada Revenue Agency's * [http://www.cra-arc.gc.ca/tx/tchncl/ncmtx/fls/s1/f3/s1-f3-c3-eng.html#N10C4B Canada Revenue Agency's Income Tax Folio S1-F3-C3, Support Payments] for the fine print, and speak to an accountant to get advice to see if you qualify to write off a portion of the lawyer’s bill that relates to child support.

To claim this deduction, the lawyer must write a letter to the CRA setting out what portion of their fees were attributable to advancing or enforcing a child support claim. If you intend to ask your lawyer for a letter like this, you must tell your lawyer as soon as possible, preferably the moment the lawyer takes your case, so that they can keep a log of time spent on the child support claim.

In a shared parenting situation, where each parent has to pay child support to the other parent, the higher income parent often just pays the difference between the higher amount they owe and the lower amount they would receive. This difference is called a ''set-off amount''. In a court order or agreement, however, it matters how this arrangement is worded. Recently, the Canada Revenue Agency (CRA) has taken the position that:

*If the agreement or court order says that ''only'' the higher income earning parent pays the difference, then
*the CRA will treat the situation as if there is only ''one'' payor and ''one'' recipient of child support.

In that case, the CRA will not allow the parents to share child tax deductions or grants, and will not allow the parents to claim the children as dependants when they file taxes. It is important, therefore, to state that ''each'' parent pays child support to the other. And it's probably best to not even mention in the court order or agreement the net set-off amount actually paid.

Suggested wording for an agreement dealing with child support in shared parenting situations might be as follows:

<blockquote><tt>1. The present parenting arrangements made with respect to the children qualify as shared custody within the meaning of the Federal Child Support Guidelines (the “Guidelines”), in that it is anticipated by Parent 1 and Parent 2 that the children will live with each Parent not less than 40% of the time.</tt></blockquote>
<blockquote><tt>1. For the purposes of determining the basic child support payable pursuant to the Guidelines, Jane and John agree that:</tt></blockquote>
<blockquote><blockquote><tt>(a) Jane’s annual income for present calculation purposes is $_______;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) John’s annual income for present calculation purposes is $_______; </tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) Such that Jane will pay John the sum of $___ as base Guidelines child support for 2 children, and John will pay Jane the sum of $___ as base Guidelines child support for 2 children.</tt></blockquote></blockquote>
Some lawyers and accountants even suggest that actual cheques for the full amounts should be exchanged to show that each parent pays child support to the other.

===Applying for child support from a recipient of social assistance===

You can apply to receive child support from a parent who is receiving social assistance or disability social assistance, but don't expect to get much for your trouble. The Guidelines do not require that a parent pay child support if the parent's annual income is less than $12,100 per year. Social assistance or disability assistance payments, which are non-taxable, would be subject to ''gross up'' for child support calculation purposes. (''Grossing up'' is explained more in the [[Child Support Guidelines]] section of this chapter, but it's essentially a process for increasing the figure used in calculating someone's child support obligation when they do not pay as much tax as a typical Canadian on all or some of their income.)

Even if you're not likely to get a lot of money out of the other parent, it may be a good idea to make the application and get an order, since the order will at least establish the payor's obligation to pay child support. It's often easier to ask for an increase in the amount payable later on, when the payor is back on their feet, than it is to apply for an original child support order. As well, some people who might be normally responsible to pay support, like a stepparent, may lose their obligation to pay support under the ''[[Family Law Act]]'' if the application isn't made within a year of the person's last contribution to the child's support. It can be critical to get an order that child support be paid early on.

==Children's right to claim child support==

In almost all cases, it is the parent who claims child support on behalf of a child, not the child. However, the right to benefit from the payment of child support belongs to the child, not the parent. It follows from this that if child support is the right of the child, children should be able to ask for support on their own, without having to go through a parent.

===When there is an order between the parents===

A parent can only be subject to a single order to pay child support for a particular child, and if there is an order between the parents to pay child support, an adult child cannot obtain a new order. The adult child can, however, apply to enforce the old order if their parents are not complying with the order and arrears of support are owed.

When someone does not pay child support, or pays less than they are required to pay, ''arrears'' build up. The arrears are the sum of money that should have been paid according to the court order or an agreement but wasn't paid. Arrears are a ''judgment debt'', just like any other debt owing because of a court order that requires someone to pay money to someone else. Judgment debts can be enforced under the provincial ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]'', which allows the debtor's wages and benefits to be garnished, and allows real property and personal property to be sold to pay off a judgment debt. Interest, calculated under the ''[http://canlii.ca/t/84h6 Court Order Interest Act]'', is owing on judgment debts.

A child who is the subject of a child support order can apply to enforce any arrears as a judgment debt. The child can apply to enforce the old order starting when they become an adult able to sue someone at the age of 19 in British Columbia.

The ''[http://canlii.ca/t/8qx3 Limitation Act]'', SBC 2012, c 13, does not apply to claims for arrears of child support payable under a judgment or an agreement that has been filed with the court – see section 3(1)(l).

===When there isn't an order between the parents===

Nothing prevents a child from applying for child support, as long as the child would normally be entitled to receive child support, but it is a bit complicated.

First, the child cannot apply for child support under the ''[[Divorce Act]]'', because that act only applies to ''spouses'', defined as people who are or who used to be married to each other. Under section 15.1 of the act, the court can only order a spouse to pay child support. The only other law that might apply is the ''[[Family Law Act]]''. Section 147(1) says that "each parent and guardian of a child" is responsible for supporting that child; section 149(2)(b) says that a child can apply for a support order.

Second, for so long as the child's parents are together and the child continues to live with them, the child will not be entitled to ask for a child support order as the court will assume that the child's needs are being met.

Third, a child seeking a child support order must qualify as a ''child'', as defined by section 147 of the ''[[Family Law Act]]'', in order to claim child support. While the court cannot grant a child a support order if the child doesn't qualify as a child within the meaning of the Act, it is also the case that children under the age of 19 are under a ''legal disability'', which means they cannot start a court proceeding and apply for child support on their own.

This leaves two options:
#The child is 19 or older and applies for support as an adult child "unable to withdraw" from the care of their parents (and therefore still qualifies as a "child" entitled to receive support).
#The child is a minor and applies for support through a ''litigation guardian'' (formerly known as a guardian ''ad litem'').

If you are a child thinking of making a claim for child support, you really should speak to a lawyer. This area of the law is not straightforward at all.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [http://canlii.ca/t/80mh Child Support Guidelines]
* ''[http://canlii.ca/t/7vf2 Criminal Code]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''
* [http://canlii.ca/t/84vn Interjurisdictional Support Orders Regulation]
* ''[http://canlii.ca/t/7vb7 Income Tax Act]''
* ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''
* ''[http://canlii.ca/t/84h6 Court Order Interest Act]''
* ''[http://canlii.ca/t/8qx3 Limitation Act]''
* ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''

===Links===

* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/info_cont.html Department of Justice's website "Provincial and Territorial Information on Interjurisdictional and International Support Order Enforcement"] (list of reciprocals offices by province)
* [http://www.isoforms.bc.ca Ministry of Attorney General Interjurisdictional Support Services] (BC reciprocals office)
* [http://www.cra-arc.gc.ca/tx/tchncl/ncmtx/fls/s1/f3/s1-f3-c3-eng.html#N10C4B Canada Revenue Agency's Income Tax Folio: S1-F3-C3, Support Payments]
* [http://www2.gov.bc.ca/gov/content/governments/policies-for-government/bcea-policy-and-procedure-manual/general-supplements-and-programs/family-maintenance-services Ministry of Attorney General's website "Family Maintenance Services"]
* [http://www.clicklaw.bc.ca/resource/1235 Dial-A-Law Script "Child support"]
* [http://www.clicklaw.bc.ca/resource/1618 Legal Services Society's Family Law website's information page "Child & spousal support"]
** Under "Child support", see "What are the child support guidelines and how do they work?"

{{REVIEWED | reviewer = [[JP Boyd]], March 6, 2021}}

{{JP Boyd on Family Law Navbox|type=chapters}}
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[[Category:JP Boyd on Family Law]]

Child Support

2021-03-06T21:14:15Z

Jpboyd: /* Getting an order outside British Columbia */

{{JPBOFL Start Chapter
|Related = [[Child Support Guidelines|The Guidelines]]{{·}}[[Exceptions to the Child Support Guidelines|Exceptions to the Guidelines]]
{{·}}[[Making Changes to Child Support|Making Changes]]{{·}}[[Child Support Arrears]]
}}
{{JP Boyd on Family Law TOC|expanded = childsupport}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bill Murphy-Dyson]] and [[Inga Phillips]]
}}
{{Clicklawbadge
| resourcetype = more resources on 
| link = [https://www.clicklaw.bc.ca/global/search?k=child%20support child support]
}}Child support is money paid by one parent or guardian to the other to help cover the expenses associated with raising the children. The amount of child support payable is usually fixed according to tables contained in the [[Child Support Guidelines]] (the Guidelines), which sets support according to the number of children and the income of the person paying support. While there are some exceptions to the Guidelines, the amount of child support payable is almost always the amount set out in the tables.

This section discusses the basics of child support, and child support orders or agreements under the ''[[Divorce Act]]'' and the ''[[Family Law Act]]''. It briefly looks at how to get a child support order inside and outside of British Columbia. It also looks at the income tax implications of child support, what happens when someone entitled to receive child support goes on social assistance, and the rights of children to claim child support. The obligation to pay child support for adult children is also discussed.

Other sections in this chapter look at the [[Child Support Guidelines|Guidelines in more detail]]. They also discuss [[Exceptions to the Child Support Guidelines|exceptions to the Guidelines]], [[Making Changes to Child Support|how to make changes]], and [[Child Support Arrears|how to deal with arrears of child support]].

'''Important changes''' 
Look for explanations under this heading to read about recent changes to family law affecting the information provided in this section.

==Introduction==

After parents separate, they usually find that their individual financial situations have gotten worse. Instead of the family income paying for one rent payment, one phone bill, one electricity bill, and so forth, the same amount of income must now cover two rent payments, two phone bills, and two electricity bills. If a child lives mostly with one parent, that parent will inevitably have to pay for more of the child's expenses for things like school fees, food and clothing, as well as accommodation. Child support is intended to help distribute the cost associated with raising a child between the child's parents and other people who may be responsible for supporting the child, such as stepparents.

Child support is a payment made by one parent or guardian (the ''payor''), to the other parent or guardian, the (''recipient''), to help meet the costs the recipient bears as a result of the child's needs. The payment of child support helps to maintain or improve the child's living conditions. Child support is not a supplement to spousal support; it's money that is paid for the benefit of the child, not the parent with whom the child lives.
Inevitably, however, there will be some overlap between the recipient parent’s expenses, and the child’s expenses, such as rent or mortgage payments.

Child support is not a fee paid in exchange for time with the child. With some exceptions (such as child support paid for children over 19, or shared parenting situations), child support is different from and virtually unrelated to parenting time or contact time.

Child support is payable on the principle that both parents have a legal duty to financially contribute to their child's upbringing. The simple fact of parenthood triggers this obligation, even if the payor never sees the child and has no role in the child's life. Child support can also be payable by stepparents and people who are guardians and not parents, although the rules are slightly different for these people and their obligation is often tempered by a biological parent's obligation.

An order for child support can be made under section 15(1) of the federal ''[[Divorce Act]]'' or section 149 of the provincial ''[[Family Law Act]]''. Alternatively, the parents can agree on child support in a separation agreement. Either way, the amount of support should, with only a few exceptions, conform to the rules set out in the federal [[Child Support Guidelines]].

The Guidelines contain a series of tables, particular to each province, which set out the amount payable based on the payor's income and the number of children for whom support is being paid. There are some exceptions to this basic rule, and they are described later in this chapter. The tables were most recently updated on November 22, 2017. For most people, the changes resulted in a small increase in the amount of child support payable.

Both the ''[[Divorce Act]]'' and the ''[[Family Law Act]]'' require the court and parents or guardians to give child support priority over spousal support when both child support and spousal support might be payable. In other words, if there isn't enough money to pay both, child support will take priority. Going one step further, both child support and spousal support in most cases take priority over debt payments and other expenses, and both obligations survive an assignment into bankruptcy.

'''Important changes''' 
Under the changes to the ''Divorce Act'' that took effect on 1 March 2021, "custody" is now known as ''decision-making responsibility'' and "access" is now known as ''parenting time'', for people who are or used to be married to each other, or as ''contact'' for other people. As a result of these changes, the language used in the Child Support Guidelines has also changed. "Split custody" is now known as ''split parenting time'' and "shared custody" is now known as ''shared parenting time''.

==The ''Divorce Act''==
Child support can be ordered under section 15(1) of the ''Divorce Act'' but only if:

* the parents (or one parent and one step-parent) are or have been legally married, and

* at least one of the parents or a step-parent have lived in the province continuously for at least one year immediately before the court action is started.

A divorce action can only be started in Supreme Court, not Provincial Court.

Parents who do not qualify to apply for child support under the ''Divorce Act'' (or who do not want to go that route) can still apply for child support under the ''Family Law Act'' either in the Provincial Court or Supreme Court.

===Qualifying for child support===

In the ''Divorce Act'', children are referred to as ''children of the marriage'', and a child must fall within the Act's definition of a child of the marriage to be eligible for support. There are a couple of important definitions in section 2(1) that apply in determining whether a child is a child of the marriage:

<blockquote><tt>"age of majority", in respect of a child, means the age of majority as determined by the laws of the province where the child ordinarily resides, or, if the child ordinarily resides outside of Canada, eighteen years of age;</tt></blockquote>
<blockquote><tt>"child of the marriage" means a child of two spouses or former spouses who, at the material time,</tt></blockquote>
<blockquote><blockquote><tt>(a) is under the age of majority and who has not withdrawn from their charge, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life;</tt></blockquote></blockquote>

As well, section 2(2) of the act says that:

<blockquote><tt>For the purposes of the definition "child of the marriage" in subsection (1), a child of two spouses or former spouses includes</tt></blockquote>
<blockquote><blockquote><tt>(a) any child for whom they both stand in the place of parents; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) any child of whom one is the parent and for whom the other stands in the place of a parent.</tt></blockquote></blockquote>

Taken together these definitions mean that:

*child support can be owing from an adoptive parent, as well as a natural parent,
*child support can be owing from stepparents (spouses who "stand in the place of a parent"),
*child support is payable until a child reaches the age of majority in the province where the child lives (19 in British Columbia), and
*child support can be payable after the child reaches the age of majority if the child is still financially dependent on the parents.

The ''[[Divorce Act]]'' says that an adult child can continue to be eligible for child support as long as they cannot withdraw from the charge of the parents. The two main reasons why a child might not be able to withdraw are because the child is going to university, or because the child has a serious, chronic illness that prevents them from becoming self-supporting. The factors a court will consider to decide if a child's academic career qualifies them as a "child of the marriage" include the following:

*the age of the adult child,
*whether the academic program is full- or part-time, and whether the program is connected to the child's future employment,
*the child's ability to contribute to their own support through part-time work, student loans, grants, bursaries, RESPs, or other resources,
*the child's academic performance and dedication to their studies,
*both parents’ financial situation, and
*any plans the parents may have made for the child's post-secondary schooling while they were still together.

In general, the courts will allow an adult child to benefit from child support for one program of post-secondary study — one degree or one diploma — so long as the child is enrolled full-time. Where one or both parents have a very high income and had always expected, during their relationship, that the child would take an advanced degree, child support can be payable for more than one degree program.

Many post-secondary institutions consider that 60% of a full course load is “full-time” and the courts usually go along with this.

Although for dependent children over 19 child support is presumed to be the Guideline table amount, section 3(2) of the Guidelines allows the court to order a different amount that the court considers appropriate, taking into account the child’s needs, and other circumstances, and the financial circumstances of the child and the parents.

===Statutory provisions===

The primary sections of the ''[[Divorce Act]]'' dealing with child support are these:

*s. 2: definitions
*s. 4: jurisdiction to make child support orders (child support is a kind of corollary relief)
*s. 5: jurisdiction to change orders
*s. 15(1): child support
*s. 15(3): child support has priority over spousal support
*s. 17: variation proceedings

==The ''Family Law Act''==

A parent or guardian can apply for child support under the ''[[Family Law Act]]'' whether the parties are married spouses, unmarried spouses, or if they were in no particular relationship with each other at all but had a child together. People other than parents can also apply for child support if they are caring for a child, including grandparents who are guardians of their grandchildren and people who have been appointed as a guardian of a child.

Both the Supreme Court and the Provincial Court can make orders for child support under the ''Family Law Act''.

===Qualifying for child support===

Definitions play an important role in determining eligibility and responsibility for child support under the ''[[Family Law Act]]'', just as they do under the ''[[Divorce Act]]''. Section 147 of the ''[[Family Law Act]]'' says that each parent and guardian of a child is responsible for the support of that child, and section 146 defines ''child'', ''parent'', and ''guardian'' as follows:

<blockquote><tt>"child" includes a person who is 19 years of age or older and unable, because of illness, disability or another reason, to obtain the necessaries of life or withdraw from the charge of his or her parents or guardians;</tt></blockquote>
<blockquote><tt>"guardian" does not include a guardian</tt></blockquote>
<blockquote><blockquote><tt>(a) who is not a parent, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) whose only parental responsibility is respecting the child's legal and financial interests;</tt></blockquote></blockquote>
<blockquote><tt>"parent" includes a stepparent, if the stepparent has a duty to provide for the child under section 147 (4) [duty to provide support for child];</tt></blockquote>

Section 146 gives a definition of ''stepparent'' for the definition of parent and says that:

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

However, section 147 puts some really important limits on support for minor children, and on when stepparents are and aren't responsible to pay child support:

<blockquote><tt>(1) Each parent and guardian of a child has a duty to provide support for the child, unless the child</tt></blockquote>
<blockquote><blockquote><tt>(a) is a spouse, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) is under 19 years of age and has voluntarily withdrawn from his or her parents' or guardians' charge, except if the child withdrew because of family violence or because the child's circumstances were, considered objectively, intolerable.</tt></blockquote></blockquote>
<blockquote><tt>...</tt></blockquote>
<blockquote><tt>(4) A child's stepparent does not have a duty to provide support for the child unless</tt></blockquote>
<blockquote><blockquote><tt>(a) the stepparent contributed to the support of the child for at least one year, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) a proceeding for an order under this Part, against the stepparent, is started within one year after the date the stepparent last contributed to the support of the child.</tt></blockquote></blockquote>

Section 149(3)(b) also says that an order can't be made against a stepparent until the stepparent and parent have separated. It is interesting that while the stepparent and the child’s parent live together, the stepparent has no legal obligation to support that child, unless the stepparent becomes a guardian of the child.

As you can see, these definitions cast a very wide net and it's fairly easy to qualify as a parent who must pay child support. A few important points come from the case law on these definitions:

*All parents are responsible to pay child support, regardless of the nature of the parents' relationship with each other (there are some exceptions where child support for adult children is concerned).

*Child support obligations may end for an adult child (but only if the parents agree or a court so orders) if the adult child unilaterally without good reason stops having a meaningful relationship with the parent who pays support. See the case of [http://canlii.ca/t/1dk6h Farden v. Farden]
*In the case of stepparents and adult children the existence (or non-existence) of the relationship between them may be important when deciding child support obligations and amounts.
*Child support can be paid by guardians and stepparents.
*The definition of stepparent includes anyone who has been the spouse of a parent and contributed to the support of their child for at least one year.
*The phrase "contributed to the support of the child for at least one year" does not mean for one whole, continuous calendar year: ''Hagen v. Muir'', [1999] B.C.J. No. 1458.
*Any application for child support from a stepparent must be brought within one year of the date of the stepparent's last contribution to the support of the child and can only be made after the stepparent and parent have split up.
*What qualifies as “contribution” to the support of the child depends on the facts. Trivial or sporadic financial contributions are not sufficient: [http://canlii.ca/t/1rn88 ''McConnell v. McConnell''], 2007 BCSC 748.
*Child support can be payable by more than one parent, guardian, and stepparent at the same time.
*A duty to pay child support can end before a child turns 19 if the child becomes a spouse or leaves home.
*Child support can be payable after the child turns 19 if the child is unable to withdraw from the care of their parents because of illness, a reasonable delay in finishing high school, or the child attending post-secondary education.

On this last point, the factors a court will consider in deciding if a child's academic career continues to qualify the child for support are the same factors listed under the [[{{PAGENAME}}#The Divorce Act |''Divorce Act'']] above.

===Stepparents and child support===

The ''[[Family Law Act]]'' says that stepparents can be responsible for paying child support just as biological and adoptive parents are responsible for paying child support. This has meant that in some cases, multiple people who meet the Act's definitions of ''parent'' and ''stepparent'' can be responsible for paying child support for the same child at the same time. In fact, there are a few cases in which parents have engaged in a number of long-term relationships, each of which were long enough to attract a child support obligation from the successive partners of those parents.

A 2004 case of the British Columbia Supreme Court, ''[http://canlii.ca/t/1gfqg H.J.H. v. N.H.H.]'', 2004 BCSC 179, decided under the old ''Family Relations Act'', offers some guidance for stepparents trying to stick-handle around this issue. In this case, the parties had been married for less than three years when they separated. Each had been previously married, and the problem centered around the wife's child from a previous relationship and whether the husband should have to support the child. The court found that the husband, who qualified as a stepparent under the Act, was not responsible for paying support, because of the combined effect of the following factors:

*the marriage was short,
*the stepparent's relationship with the child broke down shortly into the marriage,
*the stepparent had no ongoing relationship with the child, and any such relationship with the child was opposed by the parent,
*the stepparent had a "modest" income, out of which the stepparent was already responsible for paying support for two children from his previous marriage,
*the child's biological parent was paying support, and
*the parent had extended health and dental coverage for the child through her employment.

The ''[[Family Law Act]]'' helps to clear up some of these confusing issues. Section 147(5) says:

<blockquote><tt>If a stepparent has a duty to provide support for a child under subsection (4), the stepparent's duty</tt></blockquote>
<blockquote><blockquote><tt>(a) is secondary to that of the child's parents and guardians, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) extends only as appropriate on consideration of</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) the standard of living experienced by the child during the relationship between the stepparent and his or her spouse, and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) the length of time during which the child lived with the stepparent.</tt></blockquote></blockquote></blockquote>

In most cases, stepparents aren't let off the hook entirely. Most of the time, the court will take a biological or adoptive parent's obligation into account when assessing child support against a stepparent, look at the obligation of any non-parent guardians, and require stepparents only to make a sort of top-up payment rather than pay the full amount required by the Guidelines.

===Securing a child support obligation===

Under section 170, the court may make a number of additional orders when it is making an order for child support that can help to ensure that child support continues to be paid, including after the death of the payor. The court may:

*order that a charge be registered against property,
*require a payor with life insurance to maintain that policy and specify that the other parent or a child will be the beneficiary of the policy, or
*order that child support continue to be paid after the payor's death and be paid from their estate.

Before the court makes an order that requires child support to be paid from the payor's estate, under section 171(1), the court must consider:

*whether the recipient's need for support will survive the payor's death,
*whether the payor's estate is sufficient to meet the recipient's needs, taking into account the interests of the people who stand to inherit from the payor's estate and the creditors entitled to be paid from the payor's estate, and
*whether any other means exist to meet the recipient's needs.

But be aware that the person who receives child support can register a charge against the real estate property that belongs to the person who pays child support even if there are no arrears of child support. See ''Family Maintenance Enforcement Act'', Section 26.

===Child support when the payor dies===

When a payor dies, the recipient can apply to court for an order under section 171(3)(b) that the payor's support obligation will continue and be paid from their estate.

When a recipient applies to continue a support obligation or if a support order says that the obligation will continue past the payor's death, the payor's ''personal representative'', the person managing the payor's estate and will, has the right to defend against the recipient's application or apply to vary or terminate the continuing obligation.

===Statutory provisions===

The primary sections of the ''[[Family Law Act]]'' dealing with child support are these:

*s. 1: definitions
*s. 146: more definitions
*s. 147: duty to pay child support
*s. 148: agreements about child support
*s. 149: orders about child support
*s. 150: determining how much child support should be paid
*s. 152: varying orders about child support
*s. 170: securing a child support obligation
*s. 173: child support has priority over spousal support

==Getting a child support order==

There are five things the court must consider before a child support order can be made:

#Does the person asking for the order have the right to claim child support?
#Is the child entitled to receive child support?
#Does the person against whom the order is sought have a duty to pay child support?
#How much support should the child receive?
#How long should support be paid for?

First, the court must decide that the person applying for a child support order, the ''applicant'', is able to make the application. Usually, this is just a matter of fitting into the definitions given in the legislation. To make an order under the ''[[Divorce Act]]'', the court must have jurisdiction to pronounce a divorce, which requires that the applicant must be a spouse or former spouse who has lived in the province in which the application is made for at least one year. Under the ''[[Family Law Act]]'', the applicant can be anyone included in the definitions of ''parent'' or ''guardian'', and, if the claim is being made against a stepparent, the claim must be made within one year after the stepparent last contributed to the child's upkeep and after the stepparent and parent have separated, not later than one year after separation.

Second, the court must find that the child qualifies as a ''child'' as set out in the ''Family Law Act'' or as a ''child of the marriage'' as set out in the ''Divorce Act'', and under the ''Family Law Act'', the court must also find that the child is not a spouse and has not withdrawn from the care of their parents or guardians.

It is important that the application for child support be made while the child still qualifies for child support, otherwise, the court will not have jurisdiction to make a child support order, even a retroactive child support order. There may be an exception to this general rule in variations of an existing order or an agreement, see the cases of ''MacCarthy v. MacCarthy'', 2015 BCCA 496 and ''Colucci v. Colucci'', 2017 ONCA 892.

Third, the court must find that the person against whom the claim is made has a duty to pay child support. This is also a matter of fitting within the definitions.

If the first three conditions have been met, the fourth decision the court must make is to figure out how much the payor should pay. The court must first decide what the payor's annual income is, with the help of the parties' financial information, and then fix the amount of support payable according to the tables set out in the [[Child Support Guidelines]] based on the number of children and the payor's income. There are exceptions to this basic rule, which this chapter discusses in the section [[Exceptions to the Child Support Guidelines]].

Fifth, the court will look at how long the payor's obligation should last. This issue is not always argued about, as both the ''[[Divorce Act]]'' and the ''[[Family Law Act]]'' have cut-off dates after which children are no longer eligible to receive support. Most orders and agreements say that child support shall be paid "until," for example, "the child is no longer a child of the marriage as defined by the ''Divorce Act''," "the child is no longer a child as defined by the ''Family Law Act''," or "the child reaches the age of 19." The question of a stop date for support usually only crops up where the child is an adult engaged in post-secondary studies or is otherwise "unable to withdraw from the charge" of their parents, and the court must then consider the factors described earlier.

The situation can be more complicated for payors who are not parents, that is, stepparents. How much child support and for how long depends on whether or not the biological parent is or should be paying child support. Often a stepparent is required to pay less, having regard to what the biological parent is or should be paying. A receiving parent may be required to take a court action against the biological parent before the court will make any orders against a stepparent.

===Getting an order inside British Columbia===

A parent or guardian who is seeking a child support order can apply for that order in either the Supreme Court or the Provincial Court. If there are divorce and/or property division issues (which can only be heard by the Supreme Court) as well as support issues, it usually makes sense to proceed in Supreme Court. Whichever court the parent or guardian wants to proceed in, they must start a court proceeding. The process for starting a court proceeding is described in the chapter [[Resolving Family Law Problems in Court]], in the section [[Starting a Court Proceeding in a Family Matter]].

===Getting an order outside British Columbia===

A parent or guardian living with a child in British Columbia who wants to get child support from someone living outside of the province has three choices:

#start the application process here, in British Columbia, using the provincial ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]'',
#start a court proceeding in the place where the other parent lives, or
#start a court proceeding here under the ''[[Divorce Act]]'' or the ''[[Family Law Act]]'', get a child support order, and try to enforce that order in the place where the other parent lives.

The ''Interjurisdictional Support Orders Act'' allows a person who lives in British Columbia to start a process that will result in an order being made in the jurisdiction in which the other parent lives. The applicant fills out paperwork here, and gives it to the provincial Reciprocals Office. A staff member will forward that package to the [http://www.justice.gc.ca/eng/fl-df/enforce-execution/info_cont.html Reciprocals Office] where the other parent lives, and the court there will have a hearing, on notice to the other parent, which may result in a child support order being made. The law that will apply is the law where the other parent lives, which will not be British Columbia's ''Family Law Act'', or (if the other parent is outside Canada) the ''Divorce Act''.

Only certain jurisdictions have agreed to the ''Interjurisdictional Support Orders Act'' process. If the non-Canadian jurisdiction where the other parent lives hasn't made an agreement with British Columbia about child support orders, someone who wants to get a child support order will normally have to start a court proceeding in the place where the other parent lives. This will require hiring a lawyer in that country, and the law that will apply will be the laws of that country, not the ''[[Family Law Act]]'' or the ''[[Divorce Act]]''.

The countries that will cooperate with a proceeding under the ''Interjurisdictional Support Orders Act'' are:
* Canada — all of the provinces and territories,
* United States of America — all of the United States, including the District of Columbia, Puerto Rico, Guam, American Samoa, and the US Virgin Islands,
* Pacific Ocean — Australia, Fiji, New Zealand (including the Cook Islands), Papua New Guinea,
* Europe — Austria, Czech Republic, Germany, Norway, Slovak Republic, Swiss Confederation, Gibraltar, United Kingdom of Great Britain and Northern Ireland,
* Caribbean — Barbados and its Dependencies,
* Africa — South Africa, Zimbabwe, and
* Asia — Hong Kong, Republic of Singapore

See the [http://canlii.ca/t/84vn Interjurisdictional Support Orders Regulation] for the current list.

In BC, [https://www.isoforms.bc.ca/ Interjurisdictional Support Services] posts the forms required by the ''Interjurisdictional Support Orders Act'' of this province.

'''Important changes''' 
The changes to the ''Divorce Act'' include some important changes to the process for changing support orders when the spouses live in different provinces. The new process is a lot like the single-hearing process used by the ''Interjurisdictional Support Orders Act''.

==Income tax considerations==

It used to be the case that the person paying child support could claim an income tax deduction for their support payments, while the recipient had to claim it as taxable income. Not so anymore. Any child support payments made pursuant to a written agreement or court order made after April 30, 1997 are neither deductible for the payor nor taxable for the recipient.

The portion of a lawyer's bill attributable to obtaining, increasing, or enforcing a child support order is tax-deductible. The cost of defending a claim for child support is not deductible. Read the Canada Revenue Agency's * [http://www.cra-arc.gc.ca/tx/tchncl/ncmtx/fls/s1/f3/s1-f3-c3-eng.html#N10C4B Canada Revenue Agency's Income Tax Folio S1-F3-C3, Support Payments] for the fine print, and speak to an accountant to get advice to see if you qualify to write off a portion of the lawyer’s bill that relates to child support.

To claim this deduction, the lawyer must write a letter to the CRA setting out what portion of their fees were attributable to advancing or enforcing a child support claim. If you intend to ask your lawyer for a letter like this, you must tell your lawyer as soon as possible, preferably the moment the lawyer takes your case, so that they can keep a log of time spent on the child support claim.

In a shared parenting situation, where each parent has to pay child support to the other parent, the higher income parent often just pays the difference between the higher amount they owe and the lower amount they would receive. This difference is called a ''set-off amount''. In a court order or agreement, however, it matters how this arrangement is worded. Recently, the Canada Revenue Agency (CRA) has taken the position that:

*If the agreement or court order says that ''only'' the higher income earning parent pays the difference, then
*the CRA will treat the situation as if there is only ''one'' payor and ''one'' recipient of child support.

In that case, the CRA will not allow the parents to share child tax deductions or grants, and will not allow the parents to claim the children as dependants when they file taxes. It is important, therefore, to state that ''each'' parent pays child support to the other. And it's probably best to not even mention in the court order or agreement the net set-off amount actually paid.

Suggested wording for an agreement dealing with child support in shared parenting situations might be as follows:

<blockquote><tt>1. The present parenting arrangements made with respect to the children qualify as shared custody within the meaning of the Federal Child Support Guidelines (the “Guidelines”), in that it is anticipated by Parent 1 and Parent 2 that the children will live with each Parent not less than 40% of the time.</tt></blockquote>
<blockquote><tt>1. For the purposes of determining the basic child support payable pursuant to the Guidelines, Jane and John agree that:</tt></blockquote>
<blockquote><blockquote><tt>(a) Jane’s annual income for present calculation purposes is $_______;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) John’s annual income for present calculation purposes is $_______; </tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) Such that Jane will pay John the sum of $___ as base Guidelines child support for 2 children, and John will pay Jane the sum of $___ as base Guidelines child support for 2 children.</tt></blockquote></blockquote>
Some lawyers and accountants even suggest that actual cheques for the full amounts should be exchanged to show that each parent pays child support to the other.

===Applying for child support from a recipient of social assistance===

You can apply to receive child support from a parent who is receiving social assistance or disability social assistance, but don't expect to get much for your trouble. The Guidelines do not require that a parent pay child support if the parent's annual income is less than $12,100 per year. Social assistance or disability assistance payments, which are non-taxable, would be subject to ''gross up'' for child support calculation purposes. (''Grossing up'' is explained more in the [[Child Support Guidelines]] section of this chapter, but it's essentially a process for increasing the figure used in calculating someone's child support obligation when they do not pay as much tax as a typical Canadian on all or some of their income.)

Even if you're not likely to get a lot of money out of the other parent, it may be a good idea to make the application and get an order, since the order will at least establish the payor's obligation to pay child support. It's often easier to ask for an increase in the amount payable later on, when the payor is back on their feet, than it is to apply for an original child support order. As well, some people who might be normally responsible to pay support, like a stepparent, may lose their obligation to pay support under the ''[[Family Law Act]]'' if the application isn't made within a year of the person's last contribution to the child's support. It can be critical to get an order that child support be paid early on.

==Children's right to claim child support==

In almost all cases, it is the parent who claims child support on behalf of a child, not the child. However, the right to benefit from the payment of child support belongs to the child, not the parent. It follows from this that if child support is the right of the child, children should be able to ask for support on their own, without having to go through a parent.

===When there is an order between the parents===

A parent can only be subject to a single order to pay child support for a particular child, and if there is an order between the parents to pay child support, an adult child cannot obtain a new order. The adult child can, however, apply to enforce the old order if their parents are not complying with the order and arrears of support are owed.

When someone does not pay child support, or pays less than they are required to pay, ''arrears'' build up. The arrears are the sum of money that should have been paid according to the court order or an agreement but wasn't paid. Arrears are a ''judgment debt'', just like any other debt owing because of a court order that requires someone to pay money to someone else. Judgment debts can be enforced under the provincial ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]'', which allows the debtor's wages and benefits to be garnished, and allows real property and personal property to be sold to pay off a judgment debt. Interest, calculated under the ''[http://canlii.ca/t/84h6 Court Order Interest Act]'', is owing on judgment debts.

A child who is the subject of a child support order can apply to enforce any arrears as a judgment debt. The child can apply to enforce the old order starting when they become an adult able to sue someone at the age of 19 in British Columbia.

The ''[http://canlii.ca/t/8qx3 Limitation Act]'', SBC 2012, c 13, does not apply to claims for arrears of child support payable under a judgment or an agreement that has been filed with the court – see section 3(1)(l).

===When there isn't an order between the parents===

Nothing prevents a child from applying for child support, as long as the child would normally be entitled to receive child support, but it is a bit complicated.

First, the child cannot apply for child support under the ''[[Divorce Act]]'', because that act only applies to ''spouses'', defined as people who are or who used to be married to each other. Under section 15.1 of the act, the court can only order a spouse to pay child support. The only other law that might apply is the ''[[Family Law Act]]''. Section 147(1) says that "each parent and guardian of a child" is responsible for supporting that child; section 149(2)(b) says that a child can apply for a support order.

Second, for so long as the child's parents are together and the child continues to live with them, the child will not be entitled to ask for a child support order as the court will assume that the child's needs are being met.

Third, a child seeking a child support order must qualify as a ''child'', as defined by section 147 of the ''[[Family Law Act]]'', in order to claim child support. While the court cannot grant a child a support order if the child doesn't qualify as a child within the meaning of the Act, it is also the case that children under the age of 19 are under a ''legal disability'', which means they cannot start a court proceeding and apply for child support on their own.

This leaves two options:
#The child is 19 or older and applies for support as an adult child "unable to withdraw" from the care of their parents (and therefore still qualifies as a "child" entitled to receive support).
#The child is a minor and applies for support through a ''litigation guardian'' (formerly known as a guardian ''ad litem'').

If you are a child thinking of making a claim for child support, you really should speak to a lawyer. This area of the law is not straightforward at all.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [http://canlii.ca/t/80mh Child Support Guidelines]
* ''[http://canlii.ca/t/7vf2 Criminal Code]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''
* [http://canlii.ca/t/84vn Interjurisdictional Support Orders Regulation]
* ''[http://canlii.ca/t/7vb7 Income Tax Act]''
* ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''
* ''[http://canlii.ca/t/84h6 Court Order Interest Act]''
* ''[http://canlii.ca/t/8qx3 Limitation Act]''
* ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''

===Links===

* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/info_cont.html Department of Justice's website "Provincial and Territorial Information on Interjurisdictional and International Support Order Enforcement"] (list of reciprocals offices by province)
* [http://www.isoforms.bc.ca Ministry of Attorney General Interjurisdictional Support Services] (BC reciprocals office)
* [http://www.cra-arc.gc.ca/tx/tchncl/ncmtx/fls/s1/f3/s1-f3-c3-eng.html#N10C4B Canada Revenue Agency's Income Tax Folio: S1-F3-C3, Support Payments]
* [http://www2.gov.bc.ca/gov/content/governments/policies-for-government/bcea-policy-and-procedure-manual/general-supplements-and-programs/family-maintenance-services Ministry of Attorney General's website "Family Maintenance Services"]
* [http://www.clicklaw.bc.ca/resource/1235 Dial-A-Law Script "Child support"]
* [http://www.clicklaw.bc.ca/resource/1618 Legal Services Society's Family Law website's information page "Child & spousal support"]
** Under "Child support", see "What are the child support guidelines and how do they work?"

{{REVIEWED | reviewer = [[Bill Murphy-Dyson | William Murphy-Dyson]] and [[Inga Phillips]], June 14, 2019}}

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[[Category:JP Boyd on Family Law]]

Child Support

2021-03-06T21:11:50Z

Jpboyd: /* The Divorce Act */

{{JPBOFL Start Chapter
|Related = [[Child Support Guidelines|The Guidelines]]{{·}}[[Exceptions to the Child Support Guidelines|Exceptions to the Guidelines]]
{{·}}[[Making Changes to Child Support|Making Changes]]{{·}}[[Child Support Arrears]]
}}
{{JP Boyd on Family Law TOC|expanded = childsupport}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bill Murphy-Dyson]] and [[Inga Phillips]]
}}
{{Clicklawbadge
| resourcetype = more resources on 
| link = [https://www.clicklaw.bc.ca/global/search?k=child%20support child support]
}}Child support is money paid by one parent or guardian to the other to help cover the expenses associated with raising the children. The amount of child support payable is usually fixed according to tables contained in the [[Child Support Guidelines]] (the Guidelines), which sets support according to the number of children and the income of the person paying support. While there are some exceptions to the Guidelines, the amount of child support payable is almost always the amount set out in the tables.

This section discusses the basics of child support, and child support orders or agreements under the ''[[Divorce Act]]'' and the ''[[Family Law Act]]''. It briefly looks at how to get a child support order inside and outside of British Columbia. It also looks at the income tax implications of child support, what happens when someone entitled to receive child support goes on social assistance, and the rights of children to claim child support. The obligation to pay child support for adult children is also discussed.

Other sections in this chapter look at the [[Child Support Guidelines|Guidelines in more detail]]. They also discuss [[Exceptions to the Child Support Guidelines|exceptions to the Guidelines]], [[Making Changes to Child Support|how to make changes]], and [[Child Support Arrears|how to deal with arrears of child support]].

'''Important changes''' 
Look for explanations under this heading to read about recent changes to family law affecting the information provided in this section.

==Introduction==

After parents separate, they usually find that their individual financial situations have gotten worse. Instead of the family income paying for one rent payment, one phone bill, one electricity bill, and so forth, the same amount of income must now cover two rent payments, two phone bills, and two electricity bills. If a child lives mostly with one parent, that parent will inevitably have to pay for more of the child's expenses for things like school fees, food and clothing, as well as accommodation. Child support is intended to help distribute the cost associated with raising a child between the child's parents and other people who may be responsible for supporting the child, such as stepparents.

Child support is a payment made by one parent or guardian (the ''payor''), to the other parent or guardian, the (''recipient''), to help meet the costs the recipient bears as a result of the child's needs. The payment of child support helps to maintain or improve the child's living conditions. Child support is not a supplement to spousal support; it's money that is paid for the benefit of the child, not the parent with whom the child lives.
Inevitably, however, there will be some overlap between the recipient parent’s expenses, and the child’s expenses, such as rent or mortgage payments.

Child support is not a fee paid in exchange for time with the child. With some exceptions (such as child support paid for children over 19, or shared parenting situations), child support is different from and virtually unrelated to parenting time or contact time.

Child support is payable on the principle that both parents have a legal duty to financially contribute to their child's upbringing. The simple fact of parenthood triggers this obligation, even if the payor never sees the child and has no role in the child's life. Child support can also be payable by stepparents and people who are guardians and not parents, although the rules are slightly different for these people and their obligation is often tempered by a biological parent's obligation.

An order for child support can be made under section 15(1) of the federal ''[[Divorce Act]]'' or section 149 of the provincial ''[[Family Law Act]]''. Alternatively, the parents can agree on child support in a separation agreement. Either way, the amount of support should, with only a few exceptions, conform to the rules set out in the federal [[Child Support Guidelines]].

The Guidelines contain a series of tables, particular to each province, which set out the amount payable based on the payor's income and the number of children for whom support is being paid. There are some exceptions to this basic rule, and they are described later in this chapter. The tables were most recently updated on November 22, 2017. For most people, the changes resulted in a small increase in the amount of child support payable.

Both the ''[[Divorce Act]]'' and the ''[[Family Law Act]]'' require the court and parents or guardians to give child support priority over spousal support when both child support and spousal support might be payable. In other words, if there isn't enough money to pay both, child support will take priority. Going one step further, both child support and spousal support in most cases take priority over debt payments and other expenses, and both obligations survive an assignment into bankruptcy.

'''Important changes''' 
Under the changes to the ''Divorce Act'' that took effect on 1 March 2021, "custody" is now known as ''decision-making responsibility'' and "access" is now known as ''parenting time'', for people who are or used to be married to each other, or as ''contact'' for other people. As a result of these changes, the language used in the Child Support Guidelines has also changed. "Split custody" is now known as ''split parenting time'' and "shared custody" is now known as ''shared parenting time''.

==The ''Divorce Act''==
Child support can be ordered under section 15(1) of the ''Divorce Act'' but only if:

* the parents (or one parent and one step-parent) are or have been legally married, and

* at least one of the parents or a step-parent have lived in the province continuously for at least one year immediately before the court action is started.

A divorce action can only be started in Supreme Court, not Provincial Court.

Parents who do not qualify to apply for child support under the ''Divorce Act'' (or who do not want to go that route) can still apply for child support under the ''Family Law Act'' either in the Provincial Court or Supreme Court.

===Qualifying for child support===

In the ''Divorce Act'', children are referred to as ''children of the marriage'', and a child must fall within the Act's definition of a child of the marriage to be eligible for support. There are a couple of important definitions in section 2(1) that apply in determining whether a child is a child of the marriage:

<blockquote><tt>"age of majority", in respect of a child, means the age of majority as determined by the laws of the province where the child ordinarily resides, or, if the child ordinarily resides outside of Canada, eighteen years of age;</tt></blockquote>
<blockquote><tt>"child of the marriage" means a child of two spouses or former spouses who, at the material time,</tt></blockquote>
<blockquote><blockquote><tt>(a) is under the age of majority and who has not withdrawn from their charge, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life;</tt></blockquote></blockquote>

As well, section 2(2) of the act says that:

<blockquote><tt>For the purposes of the definition "child of the marriage" in subsection (1), a child of two spouses or former spouses includes</tt></blockquote>
<blockquote><blockquote><tt>(a) any child for whom they both stand in the place of parents; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) any child of whom one is the parent and for whom the other stands in the place of a parent.</tt></blockquote></blockquote>

Taken together these definitions mean that:

*child support can be owing from an adoptive parent, as well as a natural parent,
*child support can be owing from stepparents (spouses who "stand in the place of a parent"),
*child support is payable until a child reaches the age of majority in the province where the child lives (19 in British Columbia), and
*child support can be payable after the child reaches the age of majority if the child is still financially dependent on the parents.

The ''[[Divorce Act]]'' says that an adult child can continue to be eligible for child support as long as they cannot withdraw from the charge of the parents. The two main reasons why a child might not be able to withdraw are because the child is going to university, or because the child has a serious, chronic illness that prevents them from becoming self-supporting. The factors a court will consider to decide if a child's academic career qualifies them as a "child of the marriage" include the following:

*the age of the adult child,
*whether the academic program is full- or part-time, and whether the program is connected to the child's future employment,
*the child's ability to contribute to their own support through part-time work, student loans, grants, bursaries, RESPs, or other resources,
*the child's academic performance and dedication to their studies,
*both parents’ financial situation, and
*any plans the parents may have made for the child's post-secondary schooling while they were still together.

In general, the courts will allow an adult child to benefit from child support for one program of post-secondary study — one degree or one diploma — so long as the child is enrolled full-time. Where one or both parents have a very high income and had always expected, during their relationship, that the child would take an advanced degree, child support can be payable for more than one degree program.

Many post-secondary institutions consider that 60% of a full course load is “full-time” and the courts usually go along with this.

Although for dependent children over 19 child support is presumed to be the Guideline table amount, section 3(2) of the Guidelines allows the court to order a different amount that the court considers appropriate, taking into account the child’s needs, and other circumstances, and the financial circumstances of the child and the parents.

===Statutory provisions===

The primary sections of the ''[[Divorce Act]]'' dealing with child support are these:

*s. 2: definitions
*s. 4: jurisdiction to make child support orders (child support is a kind of corollary relief)
*s. 5: jurisdiction to change orders
*s. 15(1): child support
*s. 15(3): child support has priority over spousal support
*s. 17: variation proceedings

==The ''Family Law Act''==

A parent or guardian can apply for child support under the ''[[Family Law Act]]'' whether the parties are married spouses, unmarried spouses, or if they were in no particular relationship with each other at all but had a child together. People other than parents can also apply for child support if they are caring for a child, including grandparents who are guardians of their grandchildren and people who have been appointed as a guardian of a child.

Both the Supreme Court and the Provincial Court can make orders for child support under the ''Family Law Act''.

===Qualifying for child support===

Definitions play an important role in determining eligibility and responsibility for child support under the ''[[Family Law Act]]'', just as they do under the ''[[Divorce Act]]''. Section 147 of the ''[[Family Law Act]]'' says that each parent and guardian of a child is responsible for the support of that child, and section 146 defines ''child'', ''parent'', and ''guardian'' as follows:

<blockquote><tt>"child" includes a person who is 19 years of age or older and unable, because of illness, disability or another reason, to obtain the necessaries of life or withdraw from the charge of his or her parents or guardians;</tt></blockquote>
<blockquote><tt>"guardian" does not include a guardian</tt></blockquote>
<blockquote><blockquote><tt>(a) who is not a parent, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) whose only parental responsibility is respecting the child's legal and financial interests;</tt></blockquote></blockquote>
<blockquote><tt>"parent" includes a stepparent, if the stepparent has a duty to provide for the child under section 147 (4) [duty to provide support for child];</tt></blockquote>

Section 146 gives a definition of ''stepparent'' for the definition of parent and says that:

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

However, section 147 puts some really important limits on support for minor children, and on when stepparents are and aren't responsible to pay child support:

<blockquote><tt>(1) Each parent and guardian of a child has a duty to provide support for the child, unless the child</tt></blockquote>
<blockquote><blockquote><tt>(a) is a spouse, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) is under 19 years of age and has voluntarily withdrawn from his or her parents' or guardians' charge, except if the child withdrew because of family violence or because the child's circumstances were, considered objectively, intolerable.</tt></blockquote></blockquote>
<blockquote><tt>...</tt></blockquote>
<blockquote><tt>(4) A child's stepparent does not have a duty to provide support for the child unless</tt></blockquote>
<blockquote><blockquote><tt>(a) the stepparent contributed to the support of the child for at least one year, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) a proceeding for an order under this Part, against the stepparent, is started within one year after the date the stepparent last contributed to the support of the child.</tt></blockquote></blockquote>

Section 149(3)(b) also says that an order can't be made against a stepparent until the stepparent and parent have separated. It is interesting that while the stepparent and the child’s parent live together, the stepparent has no legal obligation to support that child, unless the stepparent becomes a guardian of the child.

As you can see, these definitions cast a very wide net and it's fairly easy to qualify as a parent who must pay child support. A few important points come from the case law on these definitions:

*All parents are responsible to pay child support, regardless of the nature of the parents' relationship with each other (there are some exceptions where child support for adult children is concerned).

*Child support obligations may end for an adult child (but only if the parents agree or a court so orders) if the adult child unilaterally without good reason stops having a meaningful relationship with the parent who pays support. See the case of [http://canlii.ca/t/1dk6h Farden v. Farden]
*In the case of stepparents and adult children the existence (or non-existence) of the relationship between them may be important when deciding child support obligations and amounts.
*Child support can be paid by guardians and stepparents.
*The definition of stepparent includes anyone who has been the spouse of a parent and contributed to the support of their child for at least one year.
*The phrase "contributed to the support of the child for at least one year" does not mean for one whole, continuous calendar year: ''Hagen v. Muir'', [1999] B.C.J. No. 1458.
*Any application for child support from a stepparent must be brought within one year of the date of the stepparent's last contribution to the support of the child and can only be made after the stepparent and parent have split up.
*What qualifies as “contribution” to the support of the child depends on the facts. Trivial or sporadic financial contributions are not sufficient: [http://canlii.ca/t/1rn88 ''McConnell v. McConnell''], 2007 BCSC 748.
*Child support can be payable by more than one parent, guardian, and stepparent at the same time.
*A duty to pay child support can end before a child turns 19 if the child becomes a spouse or leaves home.
*Child support can be payable after the child turns 19 if the child is unable to withdraw from the care of their parents because of illness, a reasonable delay in finishing high school, or the child attending post-secondary education.

On this last point, the factors a court will consider in deciding if a child's academic career continues to qualify the child for support are the same factors listed under the [[{{PAGENAME}}#The Divorce Act |''Divorce Act'']] above.

===Stepparents and child support===

The ''[[Family Law Act]]'' says that stepparents can be responsible for paying child support just as biological and adoptive parents are responsible for paying child support. This has meant that in some cases, multiple people who meet the Act's definitions of ''parent'' and ''stepparent'' can be responsible for paying child support for the same child at the same time. In fact, there are a few cases in which parents have engaged in a number of long-term relationships, each of which were long enough to attract a child support obligation from the successive partners of those parents.

A 2004 case of the British Columbia Supreme Court, ''[http://canlii.ca/t/1gfqg H.J.H. v. N.H.H.]'', 2004 BCSC 179, decided under the old ''Family Relations Act'', offers some guidance for stepparents trying to stick-handle around this issue. In this case, the parties had been married for less than three years when they separated. Each had been previously married, and the problem centered around the wife's child from a previous relationship and whether the husband should have to support the child. The court found that the husband, who qualified as a stepparent under the Act, was not responsible for paying support, because of the combined effect of the following factors:

*the marriage was short,
*the stepparent's relationship with the child broke down shortly into the marriage,
*the stepparent had no ongoing relationship with the child, and any such relationship with the child was opposed by the parent,
*the stepparent had a "modest" income, out of which the stepparent was already responsible for paying support for two children from his previous marriage,
*the child's biological parent was paying support, and
*the parent had extended health and dental coverage for the child through her employment.

The ''[[Family Law Act]]'' helps to clear up some of these confusing issues. Section 147(5) says:

<blockquote><tt>If a stepparent has a duty to provide support for a child under subsection (4), the stepparent's duty</tt></blockquote>
<blockquote><blockquote><tt>(a) is secondary to that of the child's parents and guardians, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) extends only as appropriate on consideration of</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) the standard of living experienced by the child during the relationship between the stepparent and his or her spouse, and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) the length of time during which the child lived with the stepparent.</tt></blockquote></blockquote></blockquote>

In most cases, stepparents aren't let off the hook entirely. Most of the time, the court will take a biological or adoptive parent's obligation into account when assessing child support against a stepparent, look at the obligation of any non-parent guardians, and require stepparents only to make a sort of top-up payment rather than pay the full amount required by the Guidelines.

===Securing a child support obligation===

Under section 170, the court may make a number of additional orders when it is making an order for child support that can help to ensure that child support continues to be paid, including after the death of the payor. The court may:

*order that a charge be registered against property,
*require a payor with life insurance to maintain that policy and specify that the other parent or a child will be the beneficiary of the policy, or
*order that child support continue to be paid after the payor's death and be paid from their estate.

Before the court makes an order that requires child support to be paid from the payor's estate, under section 171(1), the court must consider:

*whether the recipient's need for support will survive the payor's death,
*whether the payor's estate is sufficient to meet the recipient's needs, taking into account the interests of the people who stand to inherit from the payor's estate and the creditors entitled to be paid from the payor's estate, and
*whether any other means exist to meet the recipient's needs.

But be aware that the person who receives child support can register a charge against the real estate property that belongs to the person who pays child support even if there are no arrears of child support. See ''Family Maintenance Enforcement Act'', Section 26.

===Child support when the payor dies===

When a payor dies, the recipient can apply to court for an order under section 171(3)(b) that the payor's support obligation will continue and be paid from their estate.

When a recipient applies to continue a support obligation or if a support order says that the obligation will continue past the payor's death, the payor's ''personal representative'', the person managing the payor's estate and will, has the right to defend against the recipient's application or apply to vary or terminate the continuing obligation.

===Statutory provisions===

The primary sections of the ''[[Family Law Act]]'' dealing with child support are these:

*s. 1: definitions
*s. 146: more definitions
*s. 147: duty to pay child support
*s. 148: agreements about child support
*s. 149: orders about child support
*s. 150: determining how much child support should be paid
*s. 152: varying orders about child support
*s. 170: securing a child support obligation
*s. 173: child support has priority over spousal support

==Getting a child support order==

There are five things the court must consider before a child support order can be made:

#Does the person asking for the order have the right to claim child support?
#Is the child entitled to receive child support?
#Does the person against whom the order is sought have a duty to pay child support?
#How much support should the child receive?
#How long should support be paid for?

First, the court must decide that the person applying for a child support order, the ''applicant'', is able to make the application. Usually, this is just a matter of fitting into the definitions given in the legislation. To make an order under the ''[[Divorce Act]]'', the court must have jurisdiction to pronounce a divorce, which requires that the applicant must be a spouse or former spouse who has lived in the province in which the application is made for at least one year. Under the ''[[Family Law Act]]'', the applicant can be anyone included in the definitions of ''parent'' or ''guardian'', and, if the claim is being made against a stepparent, the claim must be made within one year after the stepparent last contributed to the child's upkeep and after the stepparent and parent have separated, not later than one year after separation.

Second, the court must find that the child qualifies as a ''child'' as set out in the ''Family Law Act'' or as a ''child of the marriage'' as set out in the ''Divorce Act'', and under the ''Family Law Act'', the court must also find that the child is not a spouse and has not withdrawn from the care of their parents or guardians.

It is important that the application for child support be made while the child still qualifies for child support, otherwise, the court will not have jurisdiction to make a child support order, even a retroactive child support order. There may be an exception to this general rule in variations of an existing order or an agreement, see the cases of ''MacCarthy v. MacCarthy'', 2015 BCCA 496 and ''Colucci v. Colucci'', 2017 ONCA 892.

Third, the court must find that the person against whom the claim is made has a duty to pay child support. This is also a matter of fitting within the definitions.

If the first three conditions have been met, the fourth decision the court must make is to figure out how much the payor should pay. The court must first decide what the payor's annual income is, with the help of the parties' financial information, and then fix the amount of support payable according to the tables set out in the [[Child Support Guidelines]] based on the number of children and the payor's income. There are exceptions to this basic rule, which this chapter discusses in the section [[Exceptions to the Child Support Guidelines]].

Fifth, the court will look at how long the payor's obligation should last. This issue is not always argued about, as both the ''[[Divorce Act]]'' and the ''[[Family Law Act]]'' have cut-off dates after which children are no longer eligible to receive support. Most orders and agreements say that child support shall be paid "until," for example, "the child is no longer a child of the marriage as defined by the ''Divorce Act''," "the child is no longer a child as defined by the ''Family Law Act''," or "the child reaches the age of 19." The question of a stop date for support usually only crops up where the child is an adult engaged in post-secondary studies or is otherwise "unable to withdraw from the charge" of their parents, and the court must then consider the factors described earlier.

The situation can be more complicated for payors who are not parents, that is, stepparents. How much child support and for how long depends on whether or not the biological parent is or should be paying child support. Often a stepparent is required to pay less, having regard to what the biological parent is or should be paying. A receiving parent may be required to take a court action against the biological parent before the court will make any orders against a stepparent.

===Getting an order inside British Columbia===

A parent or guardian who is seeking a child support order can apply for that order in either the Supreme Court or the Provincial Court. If there are divorce and/or property division issues (which can only be heard by the Supreme Court) as well as support issues, it usually makes sense to proceed in Supreme Court. Whichever court the parent or guardian wants to proceed in, they must start a court proceeding. The process for starting a court proceeding is described in the chapter [[Resolving Family Law Problems in Court]], in the section [[Starting a Court Proceeding in a Family Matter]].

===Getting an order outside British Columbia===

A parent or guardian living with a child in British Columbia who wants to get child support from someone living outside of the province has three choices:

#start the application process here, in British Columbia, using the provincial ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]'',
#start a court proceeding in the place where the other parent lives, or
#start a court proceeding here under the ''[[Divorce Act]]'' or the ''[[Family Law Act]]'', get a child support order, and try to enforce that order in the place where the other parent lives.

The ''Interjurisdictional Support Orders Act'' allows a person who lives in British Columbia to start a process that will result in an order being made in the jurisdiction in which the other parent lives. The applicant fills out paperwork here, and gives it to the provincial Reciprocals Office. A staff member will forward that package to the [http://www.justice.gc.ca/eng/fl-df/enforce-execution/info_cont.html Reciprocals Office] where the other parent lives, and the court there will have a hearing, on notice to the other parent, which may result in a child support order being made. The law that will apply is the law where the other parent lives, which will not be British Columbia's ''Family Law Act'', or (if the other parent is outside Canada) the ''Divorce Act''.

Only certain jurisdictions have agreed to the ''Interjurisdictional Support Orders Act'' process. If the non-Canadian jurisdiction where the other parent lives hasn't made an agreement with British Columbia about child support orders, someone who wants to get a child support order will normally have to start a court proceeding in the place where the other parent lives. This will require hiring a lawyer in that country, and the law that will apply will be the laws of that country, not the ''[[Family Law Act]]'' or the ''[[Divorce Act]]''.

The countries that will cooperate with a proceeding under the ''Interjurisdictional Support Orders Act'' are:
* Canada — all of the provinces and territories,
* United States of America — all of the United States, including the District of Columbia, Puerto Rico, Guam, American Samoa, and the US Virgin Islands,
* Pacific Ocean — Australia, Fiji, New Zealand (including the Cook Islands), Papua New Guinea,
* Europe — Austria, Czech Republic, Germany, Norway, Slovak Republic, Swiss Confederation, Gibraltar, United Kingdom of Great Britain and Northern Ireland,
* Caribbean — Barbados and its Dependencies,
* Africa — South Africa, Zimbabwe, and
* Asia — Hong Kong, Republic of Singapore

See the [http://canlii.ca/t/84vn Interjurisdictional Support Orders Regulation] for the current list.

In BC, [https://www.isoforms.bc.ca/ Interjurisdictional Support Services] posts the forms required by the ''Interjurisdictional Support Orders Act'' of this province.

==Income tax considerations==

It used to be the case that the person paying child support could claim an income tax deduction for their support payments, while the recipient had to claim it as taxable income. Not so anymore. Any child support payments made pursuant to a written agreement or court order made after April 30, 1997 are neither deductible for the payor nor taxable for the recipient.

The portion of a lawyer's bill attributable to obtaining, increasing, or enforcing a child support order is tax-deductible. The cost of defending a claim for child support is not deductible. Read the Canada Revenue Agency's * [http://www.cra-arc.gc.ca/tx/tchncl/ncmtx/fls/s1/f3/s1-f3-c3-eng.html#N10C4B Canada Revenue Agency's Income Tax Folio S1-F3-C3, Support Payments] for the fine print, and speak to an accountant to get advice to see if you qualify to write off a portion of the lawyer’s bill that relates to child support.

To claim this deduction, the lawyer must write a letter to the CRA setting out what portion of their fees were attributable to advancing or enforcing a child support claim. If you intend to ask your lawyer for a letter like this, you must tell your lawyer as soon as possible, preferably the moment the lawyer takes your case, so that they can keep a log of time spent on the child support claim.

In a shared parenting situation, where each parent has to pay child support to the other parent, the higher income parent often just pays the difference between the higher amount they owe and the lower amount they would receive. This difference is called a ''set-off amount''. In a court order or agreement, however, it matters how this arrangement is worded. Recently, the Canada Revenue Agency (CRA) has taken the position that:

*If the agreement or court order says that ''only'' the higher income earning parent pays the difference, then
*the CRA will treat the situation as if there is only ''one'' payor and ''one'' recipient of child support.

In that case, the CRA will not allow the parents to share child tax deductions or grants, and will not allow the parents to claim the children as dependants when they file taxes. It is important, therefore, to state that ''each'' parent pays child support to the other. And it's probably best to not even mention in the court order or agreement the net set-off amount actually paid.

Suggested wording for an agreement dealing with child support in shared parenting situations might be as follows:

<blockquote><tt>1. The present parenting arrangements made with respect to the children qualify as shared custody within the meaning of the Federal Child Support Guidelines (the “Guidelines”), in that it is anticipated by Parent 1 and Parent 2 that the children will live with each Parent not less than 40% of the time.</tt></blockquote>
<blockquote><tt>1. For the purposes of determining the basic child support payable pursuant to the Guidelines, Jane and John agree that:</tt></blockquote>
<blockquote><blockquote><tt>(a) Jane’s annual income for present calculation purposes is $_______;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) John’s annual income for present calculation purposes is $_______; </tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) Such that Jane will pay John the sum of $___ as base Guidelines child support for 2 children, and John will pay Jane the sum of $___ as base Guidelines child support for 2 children.</tt></blockquote></blockquote>
Some lawyers and accountants even suggest that actual cheques for the full amounts should be exchanged to show that each parent pays child support to the other.

===Applying for child support from a recipient of social assistance===

You can apply to receive child support from a parent who is receiving social assistance or disability social assistance, but don't expect to get much for your trouble. The Guidelines do not require that a parent pay child support if the parent's annual income is less than $12,100 per year. Social assistance or disability assistance payments, which are non-taxable, would be subject to ''gross up'' for child support calculation purposes. (''Grossing up'' is explained more in the [[Child Support Guidelines]] section of this chapter, but it's essentially a process for increasing the figure used in calculating someone's child support obligation when they do not pay as much tax as a typical Canadian on all or some of their income.)

Even if you're not likely to get a lot of money out of the other parent, it may be a good idea to make the application and get an order, since the order will at least establish the payor's obligation to pay child support. It's often easier to ask for an increase in the amount payable later on, when the payor is back on their feet, than it is to apply for an original child support order. As well, some people who might be normally responsible to pay support, like a stepparent, may lose their obligation to pay support under the ''[[Family Law Act]]'' if the application isn't made within a year of the person's last contribution to the child's support. It can be critical to get an order that child support be paid early on.

==Children's right to claim child support==

In almost all cases, it is the parent who claims child support on behalf of a child, not the child. However, the right to benefit from the payment of child support belongs to the child, not the parent. It follows from this that if child support is the right of the child, children should be able to ask for support on their own, without having to go through a parent.

===When there is an order between the parents===

A parent can only be subject to a single order to pay child support for a particular child, and if there is an order between the parents to pay child support, an adult child cannot obtain a new order. The adult child can, however, apply to enforce the old order if their parents are not complying with the order and arrears of support are owed.

When someone does not pay child support, or pays less than they are required to pay, ''arrears'' build up. The arrears are the sum of money that should have been paid according to the court order or an agreement but wasn't paid. Arrears are a ''judgment debt'', just like any other debt owing because of a court order that requires someone to pay money to someone else. Judgment debts can be enforced under the provincial ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]'', which allows the debtor's wages and benefits to be garnished, and allows real property and personal property to be sold to pay off a judgment debt. Interest, calculated under the ''[http://canlii.ca/t/84h6 Court Order Interest Act]'', is owing on judgment debts.

A child who is the subject of a child support order can apply to enforce any arrears as a judgment debt. The child can apply to enforce the old order starting when they become an adult able to sue someone at the age of 19 in British Columbia.

The ''[http://canlii.ca/t/8qx3 Limitation Act]'', SBC 2012, c 13, does not apply to claims for arrears of child support payable under a judgment or an agreement that has been filed with the court – see section 3(1)(l).

===When there isn't an order between the parents===

Nothing prevents a child from applying for child support, as long as the child would normally be entitled to receive child support, but it is a bit complicated.

First, the child cannot apply for child support under the ''[[Divorce Act]]'', because that act only applies to ''spouses'', defined as people who are or who used to be married to each other. Under section 15.1 of the act, the court can only order a spouse to pay child support. The only other law that might apply is the ''[[Family Law Act]]''. Section 147(1) says that "each parent and guardian of a child" is responsible for supporting that child; section 149(2)(b) says that a child can apply for a support order.

Second, for so long as the child's parents are together and the child continues to live with them, the child will not be entitled to ask for a child support order as the court will assume that the child's needs are being met.

Third, a child seeking a child support order must qualify as a ''child'', as defined by section 147 of the ''[[Family Law Act]]'', in order to claim child support. While the court cannot grant a child a support order if the child doesn't qualify as a child within the meaning of the Act, it is also the case that children under the age of 19 are under a ''legal disability'', which means they cannot start a court proceeding and apply for child support on their own.

This leaves two options:
#The child is 19 or older and applies for support as an adult child "unable to withdraw" from the care of their parents (and therefore still qualifies as a "child" entitled to receive support).
#The child is a minor and applies for support through a ''litigation guardian'' (formerly known as a guardian ''ad litem'').

If you are a child thinking of making a claim for child support, you really should speak to a lawyer. This area of the law is not straightforward at all.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [http://canlii.ca/t/80mh Child Support Guidelines]
* ''[http://canlii.ca/t/7vf2 Criminal Code]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''
* [http://canlii.ca/t/84vn Interjurisdictional Support Orders Regulation]
* ''[http://canlii.ca/t/7vb7 Income Tax Act]''
* ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''
* ''[http://canlii.ca/t/84h6 Court Order Interest Act]''
* ''[http://canlii.ca/t/8qx3 Limitation Act]''
* ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''

===Links===

* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/info_cont.html Department of Justice's website "Provincial and Territorial Information on Interjurisdictional and International Support Order Enforcement"] (list of reciprocals offices by province)
* [http://www.isoforms.bc.ca Ministry of Attorney General Interjurisdictional Support Services] (BC reciprocals office)
* [http://www.cra-arc.gc.ca/tx/tchncl/ncmtx/fls/s1/f3/s1-f3-c3-eng.html#N10C4B Canada Revenue Agency's Income Tax Folio: S1-F3-C3, Support Payments]
* [http://www2.gov.bc.ca/gov/content/governments/policies-for-government/bcea-policy-and-procedure-manual/general-supplements-and-programs/family-maintenance-services Ministry of Attorney General's website "Family Maintenance Services"]
* [http://www.clicklaw.bc.ca/resource/1235 Dial-A-Law Script "Child support"]
* [http://www.clicklaw.bc.ca/resource/1618 Legal Services Society's Family Law website's information page "Child & spousal support"]
** Under "Child support", see "What are the child support guidelines and how do they work?"

{{REVIEWED | reviewer = [[Bill Murphy-Dyson | William Murphy-Dyson]] and [[Inga Phillips]], June 14, 2019}}

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[[Category:JP Boyd on Family Law]]

Child Support

2021-03-06T21:11:29Z

Jpboyd:

{{JPBOFL Start Chapter
|Related = [[Child Support Guidelines|The Guidelines]]{{·}}[[Exceptions to the Child Support Guidelines|Exceptions to the Guidelines]]
{{·}}[[Making Changes to Child Support|Making Changes]]{{·}}[[Child Support Arrears]]
}}
{{JP Boyd on Family Law TOC|expanded = childsupport}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bill Murphy-Dyson]] and [[Inga Phillips]]
}}
{{Clicklawbadge
| resourcetype = more resources on 
| link = [https://www.clicklaw.bc.ca/global/search?k=child%20support child support]
}}Child support is money paid by one parent or guardian to the other to help cover the expenses associated with raising the children. The amount of child support payable is usually fixed according to tables contained in the [[Child Support Guidelines]] (the Guidelines), which sets support according to the number of children and the income of the person paying support. While there are some exceptions to the Guidelines, the amount of child support payable is almost always the amount set out in the tables.

This section discusses the basics of child support, and child support orders or agreements under the ''[[Divorce Act]]'' and the ''[[Family Law Act]]''. It briefly looks at how to get a child support order inside and outside of British Columbia. It also looks at the income tax implications of child support, what happens when someone entitled to receive child support goes on social assistance, and the rights of children to claim child support. The obligation to pay child support for adult children is also discussed.

Other sections in this chapter look at the [[Child Support Guidelines|Guidelines in more detail]]. They also discuss [[Exceptions to the Child Support Guidelines|exceptions to the Guidelines]], [[Making Changes to Child Support|how to make changes]], and [[Child Support Arrears|how to deal with arrears of child support]].

'''Important changes''' 
Look for explanations under this heading to read about recent changes to family law affecting the information provided in this section.

==Introduction==

After parents separate, they usually find that their individual financial situations have gotten worse. Instead of the family income paying for one rent payment, one phone bill, one electricity bill, and so forth, the same amount of income must now cover two rent payments, two phone bills, and two electricity bills. If a child lives mostly with one parent, that parent will inevitably have to pay for more of the child's expenses for things like school fees, food and clothing, as well as accommodation. Child support is intended to help distribute the cost associated with raising a child between the child's parents and other people who may be responsible for supporting the child, such as stepparents.

Child support is a payment made by one parent or guardian (the ''payor''), to the other parent or guardian, the (''recipient''), to help meet the costs the recipient bears as a result of the child's needs. The payment of child support helps to maintain or improve the child's living conditions. Child support is not a supplement to spousal support; it's money that is paid for the benefit of the child, not the parent with whom the child lives.
Inevitably, however, there will be some overlap between the recipient parent’s expenses, and the child’s expenses, such as rent or mortgage payments.

Child support is not a fee paid in exchange for time with the child. With some exceptions (such as child support paid for children over 19, or shared parenting situations), child support is different from and virtually unrelated to parenting time or contact time.

Child support is payable on the principle that both parents have a legal duty to financially contribute to their child's upbringing. The simple fact of parenthood triggers this obligation, even if the payor never sees the child and has no role in the child's life. Child support can also be payable by stepparents and people who are guardians and not parents, although the rules are slightly different for these people and their obligation is often tempered by a biological parent's obligation.

An order for child support can be made under section 15(1) of the federal ''[[Divorce Act]]'' or section 149 of the provincial ''[[Family Law Act]]''. Alternatively, the parents can agree on child support in a separation agreement. Either way, the amount of support should, with only a few exceptions, conform to the rules set out in the federal [[Child Support Guidelines]].

The Guidelines contain a series of tables, particular to each province, which set out the amount payable based on the payor's income and the number of children for whom support is being paid. There are some exceptions to this basic rule, and they are described later in this chapter. The tables were most recently updated on November 22, 2017. For most people, the changes resulted in a small increase in the amount of child support payable.

Both the ''[[Divorce Act]]'' and the ''[[Family Law Act]]'' require the court and parents or guardians to give child support priority over spousal support when both child support and spousal support might be payable. In other words, if there isn't enough money to pay both, child support will take priority. Going one step further, both child support and spousal support in most cases take priority over debt payments and other expenses, and both obligations survive an assignment into bankruptcy.

'''Important changes''' 
Under the changes to the ''Divorce Act'' that took effect on 1 March 2021, "custody" is now known as ''decision-making responsibility'' and "access" is now known as ''parenting time'', for people who are or used to be married to each other, or as ''contact'' for other people. As a result of these changes, the language used in the Child Support Guidelines has also changed. "Split custody" is now known as ''split parenting time'' and "shared custody" is now known as ''shared parenting time''.

==The ''Divorce Act''==
Child support can be ordered under section 15(1) of the ''Divorce Act'' but only if:

*) the parents (or one parent and one step-parent) are or have been legally married, and

*) at least one of the parents or a step-parent have lived in the province continuously for at least one year immediately before the court action is started.

A divorce action can only be started in Supreme Court, not Provincial Court.

Parents who do not qualify to apply for child support under the ''Divorce Act'' (or who do not want to go that route) can still apply for child support under the ''Family Law Act'' either in the Provincial Court or Supreme Court.

===Qualifying for child support===

In the ''Divorce Act'', children are referred to as ''children of the marriage'', and a child must fall within the Act's definition of a child of the marriage to be eligible for support. There are a couple of important definitions in section 2(1) that apply in determining whether a child is a child of the marriage:

<blockquote><tt>"age of majority", in respect of a child, means the age of majority as determined by the laws of the province where the child ordinarily resides, or, if the child ordinarily resides outside of Canada, eighteen years of age;</tt></blockquote>
<blockquote><tt>"child of the marriage" means a child of two spouses or former spouses who, at the material time,</tt></blockquote>
<blockquote><blockquote><tt>(a) is under the age of majority and who has not withdrawn from their charge, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life;</tt></blockquote></blockquote>

As well, section 2(2) of the act says that:

<blockquote><tt>For the purposes of the definition "child of the marriage" in subsection (1), a child of two spouses or former spouses includes</tt></blockquote>
<blockquote><blockquote><tt>(a) any child for whom they both stand in the place of parents; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) any child of whom one is the parent and for whom the other stands in the place of a parent.</tt></blockquote></blockquote>

Taken together these definitions mean that:

*child support can be owing from an adoptive parent, as well as a natural parent,
*child support can be owing from stepparents (spouses who "stand in the place of a parent"),
*child support is payable until a child reaches the age of majority in the province where the child lives (19 in British Columbia), and
*child support can be payable after the child reaches the age of majority if the child is still financially dependent on the parents.

The ''[[Divorce Act]]'' says that an adult child can continue to be eligible for child support as long as they cannot withdraw from the charge of the parents. The two main reasons why a child might not be able to withdraw are because the child is going to university, or because the child has a serious, chronic illness that prevents them from becoming self-supporting. The factors a court will consider to decide if a child's academic career qualifies them as a "child of the marriage" include the following:

*the age of the adult child,
*whether the academic program is full- or part-time, and whether the program is connected to the child's future employment,
*the child's ability to contribute to their own support through part-time work, student loans, grants, bursaries, RESPs, or other resources,
*the child's academic performance and dedication to their studies,
*both parents’ financial situation, and
*any plans the parents may have made for the child's post-secondary schooling while they were still together.

In general, the courts will allow an adult child to benefit from child support for one program of post-secondary study — one degree or one diploma — so long as the child is enrolled full-time. Where one or both parents have a very high income and had always expected, during their relationship, that the child would take an advanced degree, child support can be payable for more than one degree program.

Many post-secondary institutions consider that 60% of a full course load is “full-time” and the courts usually go along with this.

Although for dependent children over 19 child support is presumed to be the Guideline table amount, section 3(2) of the Guidelines allows the court to order a different amount that the court considers appropriate, taking into account the child’s needs, and other circumstances, and the financial circumstances of the child and the parents.

===Statutory provisions===

The primary sections of the ''[[Divorce Act]]'' dealing with child support are these:

*s. 2: definitions
*s. 4: jurisdiction to make child support orders (child support is a kind of corollary relief)
*s. 5: jurisdiction to change orders
*s. 15(1): child support
*s. 15(3): child support has priority over spousal support
*s. 17: variation proceedings

==The ''Family Law Act''==

A parent or guardian can apply for child support under the ''[[Family Law Act]]'' whether the parties are married spouses, unmarried spouses, or if they were in no particular relationship with each other at all but had a child together. People other than parents can also apply for child support if they are caring for a child, including grandparents who are guardians of their grandchildren and people who have been appointed as a guardian of a child.

Both the Supreme Court and the Provincial Court can make orders for child support under the ''Family Law Act''.

===Qualifying for child support===

Definitions play an important role in determining eligibility and responsibility for child support under the ''[[Family Law Act]]'', just as they do under the ''[[Divorce Act]]''. Section 147 of the ''[[Family Law Act]]'' says that each parent and guardian of a child is responsible for the support of that child, and section 146 defines ''child'', ''parent'', and ''guardian'' as follows:

<blockquote><tt>"child" includes a person who is 19 years of age or older and unable, because of illness, disability or another reason, to obtain the necessaries of life or withdraw from the charge of his or her parents or guardians;</tt></blockquote>
<blockquote><tt>"guardian" does not include a guardian</tt></blockquote>
<blockquote><blockquote><tt>(a) who is not a parent, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) whose only parental responsibility is respecting the child's legal and financial interests;</tt></blockquote></blockquote>
<blockquote><tt>"parent" includes a stepparent, if the stepparent has a duty to provide for the child under section 147 (4) [duty to provide support for child];</tt></blockquote>

Section 146 gives a definition of ''stepparent'' for the definition of parent and says that:

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

However, section 147 puts some really important limits on support for minor children, and on when stepparents are and aren't responsible to pay child support:

<blockquote><tt>(1) Each parent and guardian of a child has a duty to provide support for the child, unless the child</tt></blockquote>
<blockquote><blockquote><tt>(a) is a spouse, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) is under 19 years of age and has voluntarily withdrawn from his or her parents' or guardians' charge, except if the child withdrew because of family violence or because the child's circumstances were, considered objectively, intolerable.</tt></blockquote></blockquote>
<blockquote><tt>...</tt></blockquote>
<blockquote><tt>(4) A child's stepparent does not have a duty to provide support for the child unless</tt></blockquote>
<blockquote><blockquote><tt>(a) the stepparent contributed to the support of the child for at least one year, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) a proceeding for an order under this Part, against the stepparent, is started within one year after the date the stepparent last contributed to the support of the child.</tt></blockquote></blockquote>

Section 149(3)(b) also says that an order can't be made against a stepparent until the stepparent and parent have separated. It is interesting that while the stepparent and the child’s parent live together, the stepparent has no legal obligation to support that child, unless the stepparent becomes a guardian of the child.

As you can see, these definitions cast a very wide net and it's fairly easy to qualify as a parent who must pay child support. A few important points come from the case law on these definitions:

*All parents are responsible to pay child support, regardless of the nature of the parents' relationship with each other (there are some exceptions where child support for adult children is concerned).

*Child support obligations may end for an adult child (but only if the parents agree or a court so orders) if the adult child unilaterally without good reason stops having a meaningful relationship with the parent who pays support. See the case of [http://canlii.ca/t/1dk6h Farden v. Farden]
*In the case of stepparents and adult children the existence (or non-existence) of the relationship between them may be important when deciding child support obligations and amounts.
*Child support can be paid by guardians and stepparents.
*The definition of stepparent includes anyone who has been the spouse of a parent and contributed to the support of their child for at least one year.
*The phrase "contributed to the support of the child for at least one year" does not mean for one whole, continuous calendar year: ''Hagen v. Muir'', [1999] B.C.J. No. 1458.
*Any application for child support from a stepparent must be brought within one year of the date of the stepparent's last contribution to the support of the child and can only be made after the stepparent and parent have split up.
*What qualifies as “contribution” to the support of the child depends on the facts. Trivial or sporadic financial contributions are not sufficient: [http://canlii.ca/t/1rn88 ''McConnell v. McConnell''], 2007 BCSC 748.
*Child support can be payable by more than one parent, guardian, and stepparent at the same time.
*A duty to pay child support can end before a child turns 19 if the child becomes a spouse or leaves home.
*Child support can be payable after the child turns 19 if the child is unable to withdraw from the care of their parents because of illness, a reasonable delay in finishing high school, or the child attending post-secondary education.

On this last point, the factors a court will consider in deciding if a child's academic career continues to qualify the child for support are the same factors listed under the [[{{PAGENAME}}#The Divorce Act |''Divorce Act'']] above.

===Stepparents and child support===

The ''[[Family Law Act]]'' says that stepparents can be responsible for paying child support just as biological and adoptive parents are responsible for paying child support. This has meant that in some cases, multiple people who meet the Act's definitions of ''parent'' and ''stepparent'' can be responsible for paying child support for the same child at the same time. In fact, there are a few cases in which parents have engaged in a number of long-term relationships, each of which were long enough to attract a child support obligation from the successive partners of those parents.

A 2004 case of the British Columbia Supreme Court, ''[http://canlii.ca/t/1gfqg H.J.H. v. N.H.H.]'', 2004 BCSC 179, decided under the old ''Family Relations Act'', offers some guidance for stepparents trying to stick-handle around this issue. In this case, the parties had been married for less than three years when they separated. Each had been previously married, and the problem centered around the wife's child from a previous relationship and whether the husband should have to support the child. The court found that the husband, who qualified as a stepparent under the Act, was not responsible for paying support, because of the combined effect of the following factors:

*the marriage was short,
*the stepparent's relationship with the child broke down shortly into the marriage,
*the stepparent had no ongoing relationship with the child, and any such relationship with the child was opposed by the parent,
*the stepparent had a "modest" income, out of which the stepparent was already responsible for paying support for two children from his previous marriage,
*the child's biological parent was paying support, and
*the parent had extended health and dental coverage for the child through her employment.

The ''[[Family Law Act]]'' helps to clear up some of these confusing issues. Section 147(5) says:

<blockquote><tt>If a stepparent has a duty to provide support for a child under subsection (4), the stepparent's duty</tt></blockquote>
<blockquote><blockquote><tt>(a) is secondary to that of the child's parents and guardians, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) extends only as appropriate on consideration of</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) the standard of living experienced by the child during the relationship between the stepparent and his or her spouse, and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) the length of time during which the child lived with the stepparent.</tt></blockquote></blockquote></blockquote>

In most cases, stepparents aren't let off the hook entirely. Most of the time, the court will take a biological or adoptive parent's obligation into account when assessing child support against a stepparent, look at the obligation of any non-parent guardians, and require stepparents only to make a sort of top-up payment rather than pay the full amount required by the Guidelines.

===Securing a child support obligation===

Under section 170, the court may make a number of additional orders when it is making an order for child support that can help to ensure that child support continues to be paid, including after the death of the payor. The court may:

*order that a charge be registered against property,
*require a payor with life insurance to maintain that policy and specify that the other parent or a child will be the beneficiary of the policy, or
*order that child support continue to be paid after the payor's death and be paid from their estate.

Before the court makes an order that requires child support to be paid from the payor's estate, under section 171(1), the court must consider:

*whether the recipient's need for support will survive the payor's death,
*whether the payor's estate is sufficient to meet the recipient's needs, taking into account the interests of the people who stand to inherit from the payor's estate and the creditors entitled to be paid from the payor's estate, and
*whether any other means exist to meet the recipient's needs.

But be aware that the person who receives child support can register a charge against the real estate property that belongs to the person who pays child support even if there are no arrears of child support. See ''Family Maintenance Enforcement Act'', Section 26.

===Child support when the payor dies===

When a payor dies, the recipient can apply to court for an order under section 171(3)(b) that the payor's support obligation will continue and be paid from their estate.

When a recipient applies to continue a support obligation or if a support order says that the obligation will continue past the payor's death, the payor's ''personal representative'', the person managing the payor's estate and will, has the right to defend against the recipient's application or apply to vary or terminate the continuing obligation.

===Statutory provisions===

The primary sections of the ''[[Family Law Act]]'' dealing with child support are these:

*s. 1: definitions
*s. 146: more definitions
*s. 147: duty to pay child support
*s. 148: agreements about child support
*s. 149: orders about child support
*s. 150: determining how much child support should be paid
*s. 152: varying orders about child support
*s. 170: securing a child support obligation
*s. 173: child support has priority over spousal support

==Getting a child support order==

There are five things the court must consider before a child support order can be made:

#Does the person asking for the order have the right to claim child support?
#Is the child entitled to receive child support?
#Does the person against whom the order is sought have a duty to pay child support?
#How much support should the child receive?
#How long should support be paid for?

First, the court must decide that the person applying for a child support order, the ''applicant'', is able to make the application. Usually, this is just a matter of fitting into the definitions given in the legislation. To make an order under the ''[[Divorce Act]]'', the court must have jurisdiction to pronounce a divorce, which requires that the applicant must be a spouse or former spouse who has lived in the province in which the application is made for at least one year. Under the ''[[Family Law Act]]'', the applicant can be anyone included in the definitions of ''parent'' or ''guardian'', and, if the claim is being made against a stepparent, the claim must be made within one year after the stepparent last contributed to the child's upkeep and after the stepparent and parent have separated, not later than one year after separation.

Second, the court must find that the child qualifies as a ''child'' as set out in the ''Family Law Act'' or as a ''child of the marriage'' as set out in the ''Divorce Act'', and under the ''Family Law Act'', the court must also find that the child is not a spouse and has not withdrawn from the care of their parents or guardians.

It is important that the application for child support be made while the child still qualifies for child support, otherwise, the court will not have jurisdiction to make a child support order, even a retroactive child support order. There may be an exception to this general rule in variations of an existing order or an agreement, see the cases of ''MacCarthy v. MacCarthy'', 2015 BCCA 496 and ''Colucci v. Colucci'', 2017 ONCA 892.

Third, the court must find that the person against whom the claim is made has a duty to pay child support. This is also a matter of fitting within the definitions.

If the first three conditions have been met, the fourth decision the court must make is to figure out how much the payor should pay. The court must first decide what the payor's annual income is, with the help of the parties' financial information, and then fix the amount of support payable according to the tables set out in the [[Child Support Guidelines]] based on the number of children and the payor's income. There are exceptions to this basic rule, which this chapter discusses in the section [[Exceptions to the Child Support Guidelines]].

Fifth, the court will look at how long the payor's obligation should last. This issue is not always argued about, as both the ''[[Divorce Act]]'' and the ''[[Family Law Act]]'' have cut-off dates after which children are no longer eligible to receive support. Most orders and agreements say that child support shall be paid "until," for example, "the child is no longer a child of the marriage as defined by the ''Divorce Act''," "the child is no longer a child as defined by the ''Family Law Act''," or "the child reaches the age of 19." The question of a stop date for support usually only crops up where the child is an adult engaged in post-secondary studies or is otherwise "unable to withdraw from the charge" of their parents, and the court must then consider the factors described earlier.

The situation can be more complicated for payors who are not parents, that is, stepparents. How much child support and for how long depends on whether or not the biological parent is or should be paying child support. Often a stepparent is required to pay less, having regard to what the biological parent is or should be paying. A receiving parent may be required to take a court action against the biological parent before the court will make any orders against a stepparent.

===Getting an order inside British Columbia===

A parent or guardian who is seeking a child support order can apply for that order in either the Supreme Court or the Provincial Court. If there are divorce and/or property division issues (which can only be heard by the Supreme Court) as well as support issues, it usually makes sense to proceed in Supreme Court. Whichever court the parent or guardian wants to proceed in, they must start a court proceeding. The process for starting a court proceeding is described in the chapter [[Resolving Family Law Problems in Court]], in the section [[Starting a Court Proceeding in a Family Matter]].

===Getting an order outside British Columbia===

A parent or guardian living with a child in British Columbia who wants to get child support from someone living outside of the province has three choices:

#start the application process here, in British Columbia, using the provincial ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]'',
#start a court proceeding in the place where the other parent lives, or
#start a court proceeding here under the ''[[Divorce Act]]'' or the ''[[Family Law Act]]'', get a child support order, and try to enforce that order in the place where the other parent lives.

The ''Interjurisdictional Support Orders Act'' allows a person who lives in British Columbia to start a process that will result in an order being made in the jurisdiction in which the other parent lives. The applicant fills out paperwork here, and gives it to the provincial Reciprocals Office. A staff member will forward that package to the [http://www.justice.gc.ca/eng/fl-df/enforce-execution/info_cont.html Reciprocals Office] where the other parent lives, and the court there will have a hearing, on notice to the other parent, which may result in a child support order being made. The law that will apply is the law where the other parent lives, which will not be British Columbia's ''Family Law Act'', or (if the other parent is outside Canada) the ''Divorce Act''.

Only certain jurisdictions have agreed to the ''Interjurisdictional Support Orders Act'' process. If the non-Canadian jurisdiction where the other parent lives hasn't made an agreement with British Columbia about child support orders, someone who wants to get a child support order will normally have to start a court proceeding in the place where the other parent lives. This will require hiring a lawyer in that country, and the law that will apply will be the laws of that country, not the ''[[Family Law Act]]'' or the ''[[Divorce Act]]''.

The countries that will cooperate with a proceeding under the ''Interjurisdictional Support Orders Act'' are:
* Canada — all of the provinces and territories,
* United States of America — all of the United States, including the District of Columbia, Puerto Rico, Guam, American Samoa, and the US Virgin Islands,
* Pacific Ocean — Australia, Fiji, New Zealand (including the Cook Islands), Papua New Guinea,
* Europe — Austria, Czech Republic, Germany, Norway, Slovak Republic, Swiss Confederation, Gibraltar, United Kingdom of Great Britain and Northern Ireland,
* Caribbean — Barbados and its Dependencies,
* Africa — South Africa, Zimbabwe, and
* Asia — Hong Kong, Republic of Singapore

See the [http://canlii.ca/t/84vn Interjurisdictional Support Orders Regulation] for the current list.

In BC, [https://www.isoforms.bc.ca/ Interjurisdictional Support Services] posts the forms required by the ''Interjurisdictional Support Orders Act'' of this province.

==Income tax considerations==

It used to be the case that the person paying child support could claim an income tax deduction for their support payments, while the recipient had to claim it as taxable income. Not so anymore. Any child support payments made pursuant to a written agreement or court order made after April 30, 1997 are neither deductible for the payor nor taxable for the recipient.

The portion of a lawyer's bill attributable to obtaining, increasing, or enforcing a child support order is tax-deductible. The cost of defending a claim for child support is not deductible. Read the Canada Revenue Agency's * [http://www.cra-arc.gc.ca/tx/tchncl/ncmtx/fls/s1/f3/s1-f3-c3-eng.html#N10C4B Canada Revenue Agency's Income Tax Folio S1-F3-C3, Support Payments] for the fine print, and speak to an accountant to get advice to see if you qualify to write off a portion of the lawyer’s bill that relates to child support.

To claim this deduction, the lawyer must write a letter to the CRA setting out what portion of their fees were attributable to advancing or enforcing a child support claim. If you intend to ask your lawyer for a letter like this, you must tell your lawyer as soon as possible, preferably the moment the lawyer takes your case, so that they can keep a log of time spent on the child support claim.

In a shared parenting situation, where each parent has to pay child support to the other parent, the higher income parent often just pays the difference between the higher amount they owe and the lower amount they would receive. This difference is called a ''set-off amount''. In a court order or agreement, however, it matters how this arrangement is worded. Recently, the Canada Revenue Agency (CRA) has taken the position that:

*If the agreement or court order says that ''only'' the higher income earning parent pays the difference, then
*the CRA will treat the situation as if there is only ''one'' payor and ''one'' recipient of child support.

In that case, the CRA will not allow the parents to share child tax deductions or grants, and will not allow the parents to claim the children as dependants when they file taxes. It is important, therefore, to state that ''each'' parent pays child support to the other. And it's probably best to not even mention in the court order or agreement the net set-off amount actually paid.

Suggested wording for an agreement dealing with child support in shared parenting situations might be as follows:

<blockquote><tt>1. The present parenting arrangements made with respect to the children qualify as shared custody within the meaning of the Federal Child Support Guidelines (the “Guidelines”), in that it is anticipated by Parent 1 and Parent 2 that the children will live with each Parent not less than 40% of the time.</tt></blockquote>
<blockquote><tt>1. For the purposes of determining the basic child support payable pursuant to the Guidelines, Jane and John agree that:</tt></blockquote>
<blockquote><blockquote><tt>(a) Jane’s annual income for present calculation purposes is $_______;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) John’s annual income for present calculation purposes is $_______; </tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) Such that Jane will pay John the sum of $___ as base Guidelines child support for 2 children, and John will pay Jane the sum of $___ as base Guidelines child support for 2 children.</tt></blockquote></blockquote>
Some lawyers and accountants even suggest that actual cheques for the full amounts should be exchanged to show that each parent pays child support to the other.

===Applying for child support from a recipient of social assistance===

You can apply to receive child support from a parent who is receiving social assistance or disability social assistance, but don't expect to get much for your trouble. The Guidelines do not require that a parent pay child support if the parent's annual income is less than $12,100 per year. Social assistance or disability assistance payments, which are non-taxable, would be subject to ''gross up'' for child support calculation purposes. (''Grossing up'' is explained more in the [[Child Support Guidelines]] section of this chapter, but it's essentially a process for increasing the figure used in calculating someone's child support obligation when they do not pay as much tax as a typical Canadian on all or some of their income.)

Even if you're not likely to get a lot of money out of the other parent, it may be a good idea to make the application and get an order, since the order will at least establish the payor's obligation to pay child support. It's often easier to ask for an increase in the amount payable later on, when the payor is back on their feet, than it is to apply for an original child support order. As well, some people who might be normally responsible to pay support, like a stepparent, may lose their obligation to pay support under the ''[[Family Law Act]]'' if the application isn't made within a year of the person's last contribution to the child's support. It can be critical to get an order that child support be paid early on.

==Children's right to claim child support==

In almost all cases, it is the parent who claims child support on behalf of a child, not the child. However, the right to benefit from the payment of child support belongs to the child, not the parent. It follows from this that if child support is the right of the child, children should be able to ask for support on their own, without having to go through a parent.

===When there is an order between the parents===

A parent can only be subject to a single order to pay child support for a particular child, and if there is an order between the parents to pay child support, an adult child cannot obtain a new order. The adult child can, however, apply to enforce the old order if their parents are not complying with the order and arrears of support are owed.

When someone does not pay child support, or pays less than they are required to pay, ''arrears'' build up. The arrears are the sum of money that should have been paid according to the court order or an agreement but wasn't paid. Arrears are a ''judgment debt'', just like any other debt owing because of a court order that requires someone to pay money to someone else. Judgment debts can be enforced under the provincial ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]'', which allows the debtor's wages and benefits to be garnished, and allows real property and personal property to be sold to pay off a judgment debt. Interest, calculated under the ''[http://canlii.ca/t/84h6 Court Order Interest Act]'', is owing on judgment debts.

A child who is the subject of a child support order can apply to enforce any arrears as a judgment debt. The child can apply to enforce the old order starting when they become an adult able to sue someone at the age of 19 in British Columbia.

The ''[http://canlii.ca/t/8qx3 Limitation Act]'', SBC 2012, c 13, does not apply to claims for arrears of child support payable under a judgment or an agreement that has been filed with the court – see section 3(1)(l).

===When there isn't an order between the parents===

Nothing prevents a child from applying for child support, as long as the child would normally be entitled to receive child support, but it is a bit complicated.

First, the child cannot apply for child support under the ''[[Divorce Act]]'', because that act only applies to ''spouses'', defined as people who are or who used to be married to each other. Under section 15.1 of the act, the court can only order a spouse to pay child support. The only other law that might apply is the ''[[Family Law Act]]''. Section 147(1) says that "each parent and guardian of a child" is responsible for supporting that child; section 149(2)(b) says that a child can apply for a support order.

Second, for so long as the child's parents are together and the child continues to live with them, the child will not be entitled to ask for a child support order as the court will assume that the child's needs are being met.

Third, a child seeking a child support order must qualify as a ''child'', as defined by section 147 of the ''[[Family Law Act]]'', in order to claim child support. While the court cannot grant a child a support order if the child doesn't qualify as a child within the meaning of the Act, it is also the case that children under the age of 19 are under a ''legal disability'', which means they cannot start a court proceeding and apply for child support on their own.

This leaves two options:
#The child is 19 or older and applies for support as an adult child "unable to withdraw" from the care of their parents (and therefore still qualifies as a "child" entitled to receive support).
#The child is a minor and applies for support through a ''litigation guardian'' (formerly known as a guardian ''ad litem'').

If you are a child thinking of making a claim for child support, you really should speak to a lawyer. This area of the law is not straightforward at all.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [http://canlii.ca/t/80mh Child Support Guidelines]
* ''[http://canlii.ca/t/7vf2 Criminal Code]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''
* [http://canlii.ca/t/84vn Interjurisdictional Support Orders Regulation]
* ''[http://canlii.ca/t/7vb7 Income Tax Act]''
* ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''
* ''[http://canlii.ca/t/84h6 Court Order Interest Act]''
* ''[http://canlii.ca/t/8qx3 Limitation Act]''
* ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''

===Links===

* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/info_cont.html Department of Justice's website "Provincial and Territorial Information on Interjurisdictional and International Support Order Enforcement"] (list of reciprocals offices by province)
* [http://www.isoforms.bc.ca Ministry of Attorney General Interjurisdictional Support Services] (BC reciprocals office)
* [http://www.cra-arc.gc.ca/tx/tchncl/ncmtx/fls/s1/f3/s1-f3-c3-eng.html#N10C4B Canada Revenue Agency's Income Tax Folio: S1-F3-C3, Support Payments]
* [http://www2.gov.bc.ca/gov/content/governments/policies-for-government/bcea-policy-and-procedure-manual/general-supplements-and-programs/family-maintenance-services Ministry of Attorney General's website "Family Maintenance Services"]
* [http://www.clicklaw.bc.ca/resource/1235 Dial-A-Law Script "Child support"]
* [http://www.clicklaw.bc.ca/resource/1618 Legal Services Society's Family Law website's information page "Child & spousal support"]
** Under "Child support", see "What are the child support guidelines and how do they work?"

{{REVIEWED | reviewer = [[Bill Murphy-Dyson | William Murphy-Dyson]] and [[Inga Phillips]], June 14, 2019}}

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[[Category:JP Boyd on Family Law]]

Changing Family Law Orders and Agreements Involving Children

2021-03-06T21:07:30Z

Jpboyd: /* Links */

{{JP Boyd on Family Law TOC|expanded = children}}{{JPBOFL Editor Badge
|ChapterEditors = [[Mary Mouat|Mary Mouat, QC]] and [[Samantha Rapoport]]
}}
{{LSSbadge
|resourcetype = a fact sheet on
|link = [http://www.familylaw.lss.bc.ca/resources/fact_sheets/changingFinalOrder.php when you can change a final order]
}}There really is no such thing as an absolutely final order or agreement involving children. All orders and agreements involving children may be changed, but, in general, something new must have happened since the original order or agreement was made that affects the best interests of the children. In family law, ''change in circumstances'' is the term used to describe when something new has happened that justifies a change to the order or agreement.

This section talks about changing orders for custody and access under the ''[[Divorce Act]]'' and about changing orders and agreements about parenting arrangements and contact under the ''[[Family Law Act]]''. It also discusses relocation, a special problem that comes up when a guardian wants to move, usually with the children, to a different town, province, or country.

'''Important changes''' 
Look for explanations under this heading to read about recent changes to family law affecting the information provided in this section.

==Introduction==

Changing an order is called ''varying'' an order. An order can only be varied by a new order. Changing an agreement is called ''amending'' an agreement. An agreement can be amended by making a new agreement, usually called an ''addendum agreement'' or something to the same effect. It can also be changed by the court setting the agreement aside and making an order in its place.

Parents usually want to vary an order or agreement because something has changed. The court will not vary an order or agreement lightly. The person who wants to change an order must establish that there has been a ''change in circumstances'' since the order was made.

The process for applying to vary an order will depend on whether the original order was made under the federal ''Divorce Act'' or the provincial ''Family Law Act''. If it was made under the ''Family Law Act'', it will depend on whether the order was made by the Supreme Court or the Provincial Court. Almost the same general considerations that apply to varying orders apply to setting aside agreements.

===The ''Divorce Act''===

Under section 5 of the ''[[Divorce Act]]'', the Supreme Court has the jurisdiction to vary a ''Divorce Act'' order for custody or access made anywhere in Canada as long as the person making the application, (the applicant), ordinarily lives in British Columbia when the application is made or if both spouses have agreed to have the application heard here. However, if the child has deeper roots and greater social ties in the other province or territory, the court is likely to transfer the matter to be heard in the other province or territory.

Section 17 gives the court the authority to hear and decide variation applications. Under this section, the court may vary, cancel, or suspend orders dealing with custody and access. Section 17 also sets out the test for the variation of custody and access orders, and the principle that it is in a child's best interests to have maximum contact with each parent. Section 17 says this:

<blockquote><tt>(5) Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change.</tt></blockquote>
<blockquote><tt>(9) In making a variation order varying a custody order, the court shall give effect to the principle that a child of the marriage should have as much contact with each former spouse as is consistent with the best interests of the child and, for that purpose, where the variation order would grant custody of the child to a person who does not currently have custody, the court shall take into consideration the willingness of that person to facilitate such contact.</tt></blockquote>

It is up to the applicant to show that there has been a change in the "condition, means, needs or other circumstances of the child" since the last order was made or the court won't change the order.

'''Important changes''' 
Under the changes to the ''Divorce Act'' that took effect on 1 March 2021, "custody" is now known as ''decision-making responsibility'' and "access" is now known as ''parenting time'', for people who are or used to be married to each other, or as ''contact'' for other people.

Older orders and agreements that use the terms custody and access are still good and don't need to be updated to the new language. If you have an older order or agreement that says you have custody, you now have decision-making responsibility for your children. If you are or were married to your ex and have an order or agreement that says you have access, you now have parenting time.

Judges also now have a long list of best-interests factors to take into consideration when making decisions about children, including decisions changing an order. The factors include things like the history of the children's care, the children's views and preferences, each spouse's plan for the care of the children, and the extent to which each spouse will support the children's relationship with the other spouse. Family violence is another factor, and when family violence is present, the ''Divorce Act'' now includes a list of additional factors for judges to consider, including the nature and frequency of the violence.

===The ''Family Law Act''===

The rules in the ''[[Family Law Act]]'' about varying orders and setting aside agreements are different from each other, and also change depending on the subject of the part of the order or agreement that is sought to be varied or set aside.

====Varying orders====

Both the Supreme Court and the Provincial Court have the jurisdiction to vary orders and set aside agreements for guardianship, parenting arrangements, and contact. As a rule of thumb, applications to vary orders can only be brought to the court that made the original order: an order of the Supreme Court can only be varied by the Supreme Court and an order of the Provincial Court can generally only be varied by the Provincial Court.

Section 47 of the ''Family Law Act'' sets out the test to vary orders about parenting arrangements:

<blockquote><tt>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.</tt></blockquote>

The test to vary orders about contact is at section 60, and says exactly the same thing, just with the word "contact" in place of the phrase "parenting arrangements".

The general test under the ''[[Family Law Act]]'' to vary orders is at section 215(1). It applies when there isn't a specific test required to vary a particular order, such as the way sections 47 and 60 set out the required test to vary orders about parenting arrangements and contact. Since there's no specific test to vary orders for guardianship, the general test set out in section 251(1) will apply:

<blockquote><tt>Subject to this Act, a court on application by a party may change, suspend or terminate an order, if there has been a change in circumstances since the order was made.</tt></blockquote>

Whenever the court is asked to make an order about guardianship, parenting arrangements, and contact, section 37(1) requires the court to consider only the best interests of the child. The factors to be taken into account in considering the best interests of the child are set out at section 37(2).

In [http://canlii.ca/t/gnftl ''Williamson v. Williamson''], 2016 BCCA 87, the Court of Appeal confirmed that the test to apply in an application to vary parenting time arrangements under the ''Family Law Act'' is the same test that applies to the variation of custody arrangements under the ''Divorce Act''. Under this test, a ''material change in circumstances'' is:

* a change in the condition, means, needs, or circumstances of the child and/or the ability of the parents to meet the needs of the child,
<blockquote>
* which materially affects the child, and</blockquote>
<blockquote>
* which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order. </blockquote>

====Setting aside agreements====

Under the ''[[Family Law Act]]'', the court cannot vary or amend a valid agreement. When the court is convinced that an agreement must change, the court will set aside the parts of the agreement that are causing the problem and make an order in place of the parts of the agreement that were set aside. Section 214 of the Act says this:

<blockquote><tt>(1) If an order is made to set aside part of an agreement, the part is deemed to be severed from the remainder of the agreement.</tt></blockquote>
<blockquote><tt>(2) A court may incorporate into an order all or part of a written agreement respecting a family law dispute made by the parties to the proceeding and, unless the court orders otherwise,</tt></blockquote>
<blockquote><blockquote><tt>(a) the order replaces that part of the agreement that is incorporated, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the remainder of the agreement remains effective.</tt></blockquote></blockquote>
<blockquote><tt>(3) Unless the court orders otherwise, if an agreement and an order made after the agreement provide differently for the same subject matter,</tt></blockquote>
<blockquote><blockquote><tt>(a) the order replaces the part of the agreement that provides differently for the same subject matter, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the remainder of the agreement remains effective.</tt></blockquote></blockquote>

The legal test that the court must apply to set aside part of an agreement depends on the nature of the change requested. Where the change sought relates to parenting arrangements for a child, the court will consider whether there has been a change in circumstances and will want to ensure that the agreement is in the best interests of the child.

==Changing orders about custody==

A 1996 case of the Supreme Court of Canada called ''[http://canlii.ca/t/1fr99 Gordon v. Goertz]'', [1996] 2 SCR 27, sets out the factors a court must consider when hearing an application to vary orders for custody or access made under the ''[[Divorce Act]]'':

*The parent applying for a change in the custody or access order must first prove that there has been a material change in the circumstances affecting the child.
*If this threshold is met, the judge on the application must make a fresh assessment about what is in the best interests of the child, considering all of the relevant facts relating to the child's needs and the ability of each parent to satisfy the child's needs.
*This assessment is based on the findings of the judge who made the previous order, as well as the new circumstances.
*The assessment does not begin with a legal presumption in favour of the parent with whom the child mostly lives, although that parent's views are entitled to great respect.
*The focus is on the best interests of the child, not the interests, rights, and entitlements of the parents.

In other words, the applicant must show that there has been a serious change in circumstances that affects the child's best interests before a court will even consider the application. Once this hurdle is crossed, the court will look at all of the circumstances before making a decision, as if the case was being heard for the first time. Most importantly, this means that there is no automatic presumption in favour of the status quo.

Cases where an order for custody has been varied include circumstances such as where:

*The change is in the best interests of the children in the long run.
*The parent with the children's primary residence has attempted to alienate the children from the other parent.
*The parent with the children's primary residence has repeatedly frustrated the other parent's access to the children.
*The child has been apprehended by child protection workers.
*The child has been abused by the parent whom the child primarily lives with.
*A mature child has expressed a wish to live with the other parent.

The courts are unlikely to change custody where the children are happy in an existing stable and secure setting.

'''Important changes''' 
Under the changes to the ''Divorce Act'' that took effect on 1 March 2021, "custody" is now known as ''decision-making responsibility'' and "access" is now known as ''parenting time'', for people who are or used to be married to each other, or as ''contact'' for other people.

==Changing orders and agreements about guardianship and parental responsibilities==

The ''[[Family Law Act]]'' has rules about who is presumed to be a guardian. When someone is presumed to be a guardian, that person ''is'' a guardian, without the need for an order. The only people who must have an order making them a guardian are the people who don't fit into those presumptions, like aunts and uncles, grandparents, and other people who have established a caring relationship with a child.

People who are guardians, whether by a court order or as a result of the presumptions of guardianship, manage the care and raising of a child by exercising ''parental responsibilities''. Under section 40(2) of the act, parental responsibilities are presumed to be shared by all guardians until an order or an agreement says otherwise, and section 40(3) says:

<blockquote><tt>Parental responsibilities may be allocated under an agreement or order such that they may be exercised by</tt></blockquote>
<blockquote><blockquote><tt>(a) one or more guardians only, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) each guardian acting separately or all guardians acting together.</tt></blockquote></blockquote>

Orders about guardianship and parental responsibilities can be varied by another order. Agreements about parental responsibilities can be changed if the parties decide to amend the agreement. If they can't agree, the court may set aside the agreement and replace it with an order about parental responsibilities.

===Guardianship===

Under section 51(1) of the ''[[Family Law Act]]'', the court may make an order appointing someone as a guardian of a child or make an order ''terminating'' someone's guardianship of a child. This section doesn't say what the court should consider when terminating someone's guardianship. However, s.37 (1) says that:

<blockquote><tt>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.</tt></blockquote>

Section 215 provides a general test to change orders that applies when no specific test is provided:

<blockquote><tt>... a court on application by a party may change, suspend or terminate an order, if there has been a change in circumstances since the order was made.</tt></blockquote>

In other words, to vary an order appointing a person as guardian, the applicant will have to show that there has been a change in circumstances and explain why it is in the best interests of the child that the person be removed as guardian.

===Parental responsibilities===

The ''[[Family Law Act]]'' provides a test to vary orders about parental responsibilities and a test to set aside agreements about parental responsibilities. Section 44(4) talks about agreements:

<blockquote><tt>... 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.</tt></blockquote>

Section 47 talks about orders:

<blockquote><tt>... 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.</tt></blockquote>

Under both tests, the court must also consider why the proposed result would or wouldn't be in the best interests of the child.

==Changing orders and agreements about access, parenting time and contact==

Orders and agreements about parenting schedules are most commonly varied because:
*one of the parties has been frustrating the schedule,
*a party is constantly late or cancels visits frequently,
*the child is older and is more able to spend more time with the visiting parent,
*a party has moved and the old parenting schedule is no longer convenient, or
*the child wishes to see the visiting party more or less often.

The case of ''[http://canlii.ca/t/1fr99 Gordon v. Goertz]'' also applies to changing access orders under the ''Divorce Act'': the applicant must show that there has been a serious change in circumstances that affects the child's best interests before a court will even consider the application and, once this hurdle is crossed, the court will look at all of the circumstances before making a decision about access as if the matter was being heard for the first time, with no presumption in favour of how things used to be.

Under sections 47 and 60 of the ''[[Family Law Act]]'', the court may vary an order for parenting time or contact if it is satisfied that:

<blockquote><tt>... 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.</tt></blockquote>

Sections 44(4) and 58(4) allow the court to set aside an agreement about parenting time or contact if it is:

<blockquote><tt>...satisfied that the agreement is not in the best interests of the child.</tt></blockquote>

When considering applications like these, both the ''[[Divorce Act]]'' and the ''[[Family Law Act]]'' require the court to consider the best interests of the child rather than the needs or interests of the parties.

'''Important changes''' 
Under the changes to the ''Divorce Act'' that took effect on 1 March 2021, "custody" is now known as ''decision-making responsibility'' and "access" is now known as ''parenting time'', for people who are or used to be married to each other, or as ''contact'' for other people.

Judges also now have a long list of best-interests factors to take into consideration when making decisions about children, including when making decisions about changing orders about parenting after separation. The factors include things like the history of the children's care, the children's views and preferences, each spouse's plan for the care of the children, and the extent to which each spouse will support the children's relationship with the other spouse. Family violence is another factor, and when family violence is present, the ''Divorce Act'' now includes a list of additional factors for judges to consider, including the nature and frequency of the violence.

===Vague parenting schedules===

Problems often crop up when an order or agreement says only that a parent will have liberal and generous time with a child, or sets a schedule that is too vague. In situations like this, it's too easy for a schedule not to work. What is liberal and generous time anyway? Who decides what is liberal and what is generous? Say an order or agreement says this:

<blockquote>"Sally will have parenting time from Friday to Sunday."</blockquote>

When exactly does Sally's access start? When does it end? Who is supposed to pick the child up and drop her off? Is the Sunday the Sunday immediately following the Friday or the Sunday a week later? A better order or agreement would say:

<blockquote>"Sally will have parenting time from Friday at 4:00pm or the end of the school day, whichever is earlier, to the following Sunday at 6:00pm, every other week. Sally will be responsible for picking the child up on Fridays and Bob will be responsible for picking the child up on Sundays."</blockquote>

Even better would be an order or agreement that says:

<blockquote>"Sally will have the child from Friday at 4:00pm or the end of the school day, whichever is earlier, to the following Sunday at 6:00pm, every other week. If the Friday is a statutory holiday or a school professional development day, Sally will have the child from Thursday at 4:00pm. If the Monday following the Sunday is a statutory holiday or a school professional development day, Sally will have the child until Monday at 6:00pm.</blockquote>
<blockquote>"Sally will be responsible for picking the child up at the beginning of her access to the child and Bob will be responsible for picking the child up at the conclusion of Sally's access to the child.</blockquote>
<blockquote>"In the event that Sally is unable to care for the child during a scheduled access visit, Sally will give at least two days' notice to Bob.</blockquote>
<blockquote>"On Fathers' Day, Sally's parenting time with the child will be suspended from 10:00am to 2:00pm, during which time Bob will have the child.</blockquote>
<blockquote>"Sally's parenting time with the child will be suspended during the summer, winter, and spring school holidays, during which periods the following holiday access schedule will prevail...."</blockquote>

Where there has been a history of difficulties, the court will generally be prepared to provide specific terms setting out the parenting arrangements.

===Reducing time with a child===

Cases where the parenting schedule in an order or agreement has been varied to reduce a person's time with a child include in circumstances where:

*a party has moved far enough away as to make the original access schedule impossible to comply with,
*a mature child has expressed a wish not to see the person,
*a party has suffered a mental or physical illness, such that the children's health and welfare are at risk in their care,
*the parties' relationship has worsened to the point that they can no longer cooperate,
*a party has attempted to interfere with the child's relationship with the other party, or
*the party's time with the child is proving harmful to the child's mental or physical health and welfare.

Where there are allegations involving mental health issues, parenting capacity, or the children's wishes, it is often essential to have a psychologist or psychiatrist provide a report or an assessment of the needs of the child, the views of the child, and the ability of each of the child's caregivers to meet the child's needs. The types of assessments that are available to parties to a family law case in British Columbia are discussed in more detail at the start of the [[Children in Family Law Matters#Reports and assessments|Children in Family Law Matters]] chapter, under the heading [[Children in Family Law Matters#Reports and assessments|Reports and Assessments]].

===Increasing time with a child===

Of course, parenting schedules can also be changed to increase the amount of time a person has with a child. Circumstances where this has happened include where:

*a party was interfering with the child's relationship with the other party, so that more time was required to restore the relationship,
*a party was interfering with and unreasonably limiting the time provided to the other person in an order or agreement,
*a child is older and able to spend more time away from a parent, or
*a child over the age of eleven or twelve or so has expressed a wish to see more of the other person.

These are just a few of the circumstances in which a person's time with the child can be increased from the amount given in an order or agreement. As long as there has been a change in circumstances since the order or agreement was made and the increased time is in the children's best interests, access arrangements should be adjusted.

==Relocating with or without a child==

Mobility is a fact of life in Canada. A parent who wants to move must have the other parent's consent or a court order. Generally, the reasons for moving include:

*there is an employment opportunity,
*the parent is in a new relationship with someone from out of town,
*the parent wants to be closer to family,
*there is a unique educational opportunity for either the parent or the children, or
*there is a unique medical or therapeutic opportunity for either the parent or the children.

Normally, the other parent doesn't want the children to move since a move could hamper that parent's ability to see the children as frequently and could harm the child's relationship with that parent. This is especially true when a parent seeks to move to another province or another country. Even within British Columbia, a relatively short move from Richmond to Chilliwack, for example, can impair a parent's schedule and relationship with their child.

These problems, which used to be called ''mobility issues'', are handled under the ''[[Divorce Act]]'' and the ''[[Family Law Act]]'' in different ways.

===The ''Divorce Act'' and ''Gordon v. Goertz''===

Relocation under the ''[[Divorce Act]]'' is about applying to vary an order for custody or access. Inevitably, a move of even only a few hours away can make it impossible for a spouse to have access to a child. In order for the spouse who is moving to avoid being in breach of an order for custody or access, the spouse will need to apply to the court for an order adjusting the arrangements for custody and access to allow the move. The most important case on this issue is ''[http://canlii.ca/t/1fr99 Gordon v. Goertz]'', discussed above. The reasoning from that case is roughly this:

*The parent applying for a change in the custody or access order must first prove that there has been a material change in the circumstances affecting the child.
*If this threshold is met, the judge on the application must make a fresh assessment about what is in the best interests of the child, considering all of the relevant facts relating to the child's needs and the ability of the each parent to satisfy the child's needs.
*This assessment is based on the findings of the judge who made the previous order and the new circumstances.
*The assessment does not begin with a legal presumption in favour of the parent with whom the child mostly lives, although that parent's views are entitled to great respect.
*The focus is on the best interests of the child, not the interests, rights, and entitlements of the parents.

It is always very difficult to say whether the court will allow a parent to move with the children or not. The case law following ''[http://canlii.ca/t/1fr99 Gordon v. Goertz]'' is quite contradictory and the best that can usually be said, apart from pointing out some general principles, is that a parent with the children's primary residence has almost a 60% chance of being allowed to do so. In 2011, Professor Rollie Thompson of the law school at Dalhousie University gave a presentation to local lawyers updating the case law on mobility issues in BC. His findings were also [https://perma.cc/7DPT-6P5V published]. What he learned was this:

*The parent with primary care is able to move about 50% of the time in Canadian cases these days, down from 60%. Moves are permitted about 57% of the time in BC.
*Moves are allowed about half the time at trial, but are allowed about three-quarters of the time when the application is brought as a variation of a trial decision.
*Moves were refused in eight of nine cases where the parents had shared custody of the children, but were allowed in 17 of 18 cases (after counting appeals) where the parent wishing to move was primarily responsible for the care of the children. Where there wasn't a parent who was clearly responsible, the move was allowed in 54% of cases.
*Moves were allowed three-quarters of the time when the children were aged 0 to five, declining to about half the time for children aged six and older.
*Appeals from decisions allowing a move rarely succeed. Appeals from decisions refusing permission to move succeeded 66% of the time.

The tough part about all of this is that it's all fine and dandy to know what happens to people on a ''statistical'' basis, but statistics don't tell you anything about what is going to happen if ''you'' want to move! However, some of the circumstances that courts have found to favour or reject a proposed move are these:
{| class = wikitable
! Factors in Favour
! Factors Against
|-
|
*The spouse seeking the move has better job prospects or a guaranteed job at the proposed destination.
*The spouse has a support network of family and friends at the new home.
*There is some benefit at the new home not available at the old home, like better schools or medical programs.
*The spouses have resources available to them that will allow the other spouse to visit the children frequently, like a lot of money or being an employee of an airline.
*The children aren't particularly close to or have no relationship with the spouse who will be staying behind.
|
*The children have lived in their present setting for a significant amount of time and have established roots in their community.
*The move will damage or terminate the other spouse's relationship with the children.
*The move is motivated by a wish to alienate the children from the other spouse.
*The parent seeking the move has no particular ties to the destination, or the move is proposed solely for that spouse to be in a new relationship.
*There is no way to balance the effect of the move with more extended time with the other spouse, such as extended summer access, or access over the whole of the winter holiday.
|}
It is almost impossible to predict the result of an application to move under ''[http://canlii.ca/t/1fr99 Gordon v. Goertz]''. Because relocation issues are among the most hotly argued and difficult issues there are in family law, the assistance of a lawyer is highly recommended.

'''Important changes''' 
The ''Divorce Act'' now also provides a test to help judges decide what should happen when a spouse wants to move away from the other spouse after separation. Although the ''Divorce Act'' test is similar to the ''Family Law Act'' test, they are not exactly the same. It is a good idea to speak to a lawyer whenever someone wants to move away after separation.

===The rules under the ''Family Law Act''===

The situation is much different under the ''[[Family Law Act]]''. One of the most important changes this law has introduced are new legal obligations for guardians who are planning on relocating. There are different processes depending on whether there is a court order or agreement in place with respect to parenting arrangements.

Where there is no court order or agreement with respect to parenting arrangements in place, section 46 of the ''Family Law Act'' applies. Here is how that process works:

Changing a child's residence can significantly impact the child's relationship with another guardian. When the potential for impact is reasonable to expect, the person wanting to change the child's residence must apply to court under section 45 of the ''Family Law Act'' for an order respecting parenting time.

Section 46(2) of the ''Family Law Act'' sets out the test to determine whether there can be changes to a child’s residence:

<blockquote><tt>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</tt></blockquote>

<blockquote><blockquote><tt>(a) must consider, in addition to the factors set out in section 37 (2) ''[best interests of child]'', the reasons for the change in the location of the child's residence, and</tt></blockquote></blockquote>

<blockquote><blockquote><tt>(b) must not consider whether the guardian who is planning to move would do so without the child.</tt></blockquote></blockquote>

Where the parties have an existing order or agreement with respect to parenting arrangements, the ''Family Law Act'' sets out two new tests to determine whether a guardian will be permitted to relocate if another guardian objects.

Here's how that process works:.

First, under section 66, a guardian who plans a move, with or without the child, that will have a significant impact on the child's relationship with a guardian or other people with a significant role in the child's life must give written notice of the proposed move at least 60 days before the move, to all other ''guardians'' and ''persons with contact'' with the child. (The guardian who is moving can apply to court for an exception to this requirement.) The notice must state the place the guardian plans on moving to and the date of the move. This requirement applies whether a guardian is planning on moving with a child or by themselves.

Second, under section 68, a guardian who objects to the proposed move must file an application in court to stop the move within 30 days of getting written notice of the move. The parties are required to try to resolve any disagreement about the move on their own, but this doesn't prevent a guardian from applying to stop the move. Only guardians can object; people with contact cannot. However, people with contact can make an application under section 59 of the ''Family Law Act'' or section 60 of the ''Family Law Act'' to seek an order or to change an existing order for contact, for the purpose of maintaining the relationship between the child and a person having contact with the child if the relocation occurs.

Third, if the parties can't resolve their differences about the move, then either guardian can apply to court for orders allowing or preventing the proposed move. There are different tests that the court will apply depending on whether the guardians have "substantially equal parenting time." The ''moving guardian'' must prove, under section 69(4) that:

*they have proposed to move ''in good faith,'' and
*they have proposed ''reasonable and workable'' arrangements to preserve the child's relationships with other guardians and persons with significant roles in the child's life.

If the guardian who is moving can do this, the move is presumed to be in the child's best interests unless the guardian who is objecting to the move can convince the court otherwise.

The test is a bit different if the moving guardian and the objecting guardian share the child's time equally or almost equally. In that case, the moving guardian must prove, under section 69(5) that:

*they have proposed to move "in good faith,"
*they have proposed "reasonable and workable" arrangements to preserve the child's relationships with other guardians and persons with significant roles in the child's life, and
*the move is in the child's best interests.

The meaning of ''good faith'' is discussed at section 69(6):

<blockquote><tt>For the purposes of determining if the proposed relocation is made in good faith, the court must consider all relevant factors, including the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) the reasons for the proposed relocation;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) whether the proposed relocation is likely to enhance the general quality of life of the child and, if applicable, of the relocating guardian, including increasing emotional well-being or financial or educational opportunities;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) whether notice was given under section 66;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) any restrictions on relocation contained in a written agreement or an order.</tt></blockquote></blockquote>

If the move is allowed, the objecting guardian may ask the court to vary the old arrangements for parenting time and, under section 70(2), the court is required to "seek to preserve, to a reasonable extent, parenting arrangements under the original agreement or order."

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''

===Links===

*[https://clicklaw.bc.ca/resource/4645 Legal Services Society's Family Law website's information page "Court orders"]
**See "Change an order or set aside an agreement made in BC" and "When can you change a final order?"

{{REVIEWED | reviewer = [[JP Boyd]], March 6, 2021}}

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