Clicklaw Wikibooks - User contributions [en]

General Legal Help Resources (23:I)

2026-05-13T20:35:22Z

LSLAP:

{{REVIEWED LSLAP | date= 1 September 2025}}
{{LSLAP Manual TOC|expanded = referrals}}

== Access Pro Bono's Lawyer Referral Service ==
Telephone: 604-687-3221

Website: https://www.accessprobono.ca/our-programs/lawyer-referral-service
* Consultation with a lawyer for up to 30 minutes for free, during which time fees are negotiated for further consultation, but a few well-organized questions can be answered
* Any ongoing legal assistance will require paying the lawyer’s regular fees

== Access Pro Bono ==
Telephone: 604-482-3195

Toll-Free: 1-877-762-6664

Website: https://www.accessprobono.ca

* '''Summary Legal Advice Program:''' Volunteer lawyers provide up to a half-hour of free legal advice to clients at summary legal advice clinics
* '''Roster Program:''' Pro bono representation for Court of Appeal, family law, Federal Court of Appeal, judicial review and wills and estates issues
* '''Employment Standards Program:''' Volunteer lawyers and students provide free legal representation to employees at the Employment Standards Branch
* '''Residential Tenancy Program:''' Legal representation for low-income tenants and landlords appearing before the Residential Tenancy Branch
* '''Solicitors’ Program:''' Connects non-profit organisations with pro-bono legal services
* '''Virtual Family Mediation Program:'''free online family mediation and advice services to low- and modest-income families across BC. The program aims to facilitate early resolution of family law matters, while saving users' money and freeing up BC's court resources.
* '''Everyone Legal Clinic:''' offers low-cost legal services to all British Columbians on a fixed-fee basis— in person or by virtual connection. Articling clinicians work under the supervision of practising lawyers, and provide affordable help for family, tenancy/strata, employment, wills/estates, civil, corporate, consumer or criminal law issues. Call: (778) 200-4478 weekdays between 9:30 a.m. and 4:30 p.m. or [https://app.qase.net/create_elc_referral book online].

== Legal Services Society (Legal Aid BC) ==
Legal Aid Applications: Telephone: 604-408-2172

Toll-Free: 1-866-577-2525

General Inquiries: Telephone: 604-601-6000

Website: https://legalaid.bc.ca/

* A range of free legal services provided to all British Columbians, with priority given to people with low incomes
* '''Information:''' Variety of publications available online to get general information about the law
* '''Advice:''' Legal advice on criminal, family and immigration issues from duty counsel lawyers and family advice lawyers
* '''Representation:''' A lawyer may be able to take your case and provide representation for criminal charges, mental health and prison issues, serious family problems, child protection matters and immigration problems

== Community Legal Assistance Society (CLAS) ==
Telephone: 604-685-3425

Toll-Free: 1-888-685-6222

Website: https://clasbc.net/

* Legal assistance for issues including housing, income security, employment insurance, workers' compensation, mental health, human rights
* CLAS generally provides assistance with judicial review of decisions from tribunals like the RTB, EAAT, SST, WCAT, EST, and the BC and Canadian Human Rights Tribunals. This makes CLAS a good referral for LSLAP clients after we receive tribunal decisions.
* Review decisions from a review panel under the Mental Health Act or Criminal Code, challenge certificates of incapability from the Public Guardian and Trustee, or assist with individuals detained under the Adult Guardianship Act.
* Can assist low-income homeowners facing foreclosure, members of housing co-ops whose membership has been terminated, and tenants with an order of possession requiring them to leave their home.

== Law Students’ Legal Advice Program (LSLAP) ==
Telephone: 604-822-5791

Website: https://www.lslap.bc.ca

* Free legal assistance through appointments for low-income individuals in the Greater Vancouver area, including representation, document drafting, summary advice, and referrals
* Help with criminal law (summary offences), tenancy, employment, small claims, welfare, human rights, immigration, and more
* No family law, personal injury, supreme court, business law, real property, or criminal law where there is a risk of jail time
* Operates a Criminal Code s. 684 project which helps convicted individuals fill out s. 684 applications for a court to assign counsel to act for an accused in an appeal

== Vancouver Justice Access Centre ==
Telephone: 604-660-2084

Toll-Free: 1-800-663-7867 (ask to be connected to 604-660-2084)

Virtual Initial Needs Determination: 1-844-747-3963

Website: https://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help/family-justice-services-division/justice-access-centres

* Legal information, self-help and other resources; limited legal advice on family and civil law issues (low-income eligibility requirements apply). No legal advice for criminal matters, small claims court forms and filings, or personal injury matters.
* Can give advice on family and civil justice issues such as separation or divorce, guardianship, child or spousal support, parenting after separation, protection orders, income security, employment, housing, debt, human rights, consumer issues, wills and estates, EI, worker’s compensation, and immigration/refugee issues.

== Seniors First BC ==
Telephone: 604-437-1940

Toll-Free: 1-866-437-1940

Website: https://seniorsfirstbc.ca/

* Provides services to people age 55 and over
* Helps victims of abuse or a crime to access the justice system
* Provides practical and emotional support
* Preparation and support for older adults who will be testifying in court about abuse or other crime
* Can assist with tenancy/housing, debt, pensions, assisted living, discrimination, abuse/neglect, financial exploitation, consumer complaints, and guardianship/capacity.
* Does not prepare wills or power of attorneys, or give advice on estate administration, real estate, criminal law or family law matters

== Dial-A-Law ==
Telephone: 604-687-4680

Toll-Free: 1-800-565-5297

Website: https://dialalaw.peopleslawschool.ca/

*General information on a variety of topics on law in British Columbia
*Library of legal information prepared by lawyers

== Clicklaw ==
Website: https://www.clicklaw.bc.ca

* Guides to practical legal information in British Columbia
* A services directory to find organizations that provide legal help in the province, mostly free and low-cost

== The Kettle Society ==
Telephone: 604-251-2801

Website: https://www.thekettle.ca/advocacy

* Advocacy and support, with a focus on mental health
* Family, tenancy, tax, welfare, ID replacement, and human rights

== Amici Curiae ==
Telephone: 778-522-2839

Website: https://www.legalformsbc.ca

[https://www.legalformsbc.ca/help-me-complete-my-legal-form.html Book online]

* Free assistance in completing legal forms (no criminal law, elder law, or wills and estates)

== The Law Centre (University of Victoria) ==
Telephone: 250-385-1221

Website: https://thelawcentre.ca/

* Law students at the University of Victoria provide legal assistance to low-income individuals with criminal, family, and civil law issues, including help with human rights, employment insurance, tenancy, welfare, and other administrative tribunals

== PovNet ==

Website: https://www.povnet.org

* Comprehensive source of legal referrals

== First United Church Advocacy ==
Telephone: 604-681-8365

Website: https://firstunited.ca/how-we-help/legal-advocacy

Drop-in Intakes:
Monday, Wednesday, Friday 9:30 AM to 11:30 AM
Tuesday, Thursday 1 PM to 3 PM

* Broad range of legal advocacy for low-income and vulnerable people in the Downtown Eastside Vancouver
* Focus on tenancy and social assistance

== Together Against Poverty Society (TAPS) ==
Telephone: 250-361-3521

Website: https://www.tapsbc.ca

* Legal advocacy in Victoria
* Income assistance, disability benefits, employment standards, tenancy, and income tax

== Civil Resolution Tribunal ==
Telephone: 1-844-322-2292

Website: https://www.civilresolutionbc.ca

* Tribunal which handles small claims matter under $5,000
* Solution explorer for alternative dispute options
* Start your claim online
* Also handles motor vehicle injury under $50,000, strata disputes, societies and cooperative associations disputes, and shared accommodations and some housing disputes

{{LSLAP Manual Navbox|type=chapters15-23}}

Introduction to Small Claims (20:I)

2025-11-11T16:36:54Z

LSLAP:

{{REVIEWED LSLAP | date= 11 July 2025}}
{{LSLAP Manual TOC|expanded = smallclaims}}

Most people with legal claims under $35,000 are not lawyers and do not have the benefit of legal representation. It can be challenging to choose how to resolve a dispute and how much to claim. While this guide primarily focuses on the Small Claims Court, it briefly reviews other options for resolving disputes, including the Civil Resolution Tribunal (CRT) for Small Claims up to $5,000 in British Columbia. On April 1, 2019, the CRT’s jurisdiction expanded to include certain claims about motor vehicle accidents, including liability and damages claims up to $50,000, minor injury determinations, and accident benefits. This chapter of the manual only covers small claims at provincial court and the CRT’s small claims jurisdiction, not the accident claims jurisdiction. The jurisdiction for motor vehicle accidents is complicated.

If you are a party to a small claims action or proceeding, take the time to read this guide in its entirety. If you fail to comply with the rules, the process may be delayed, your claim or defence may be weakened, and you may be liable to pay costs and penalties to the other party. Reading this guide will help you be more prepared and minimize confusion.

This guide is meant to explain the general Small Claims Court process; it is not legal advice. Read the guide along with the Small Claims Court Rules and the Civil Resolution Tribunal Rules and obtain legal advice where necessary.

[[File:Small_Claims_Avenues_JES.png|1000px]]

Figure: ''Is Small Claims Court for Me?'' from Justice Education Society’s Small Claims BC Online Help Guide: https://smallclaimsbc.ca/overview/small-claims-court-me

Directions for in-person proceedings and filings for small claims court (i.e., claims above $5,000) were significantly affected by the ongoing COVID-19 pandemic; however, many of the restrictions have since been removed. Consult the Provincial Court of BC website for up-to-date COVID-19 related notices, directions, and information. As of the time of writing, the following protocols apply to appearances:

* As of July 18th, 2022, BC Provincial court’s operations moved away from telephone/Teams audioconferences as the default method of appearance. Some appearances continue to be remote. For the default method of attendance for each appearance, see "Notices, policies, practice directions" on the BC Provincial Court website https://www.provincialcourt.bc.ca/news-notices-policies-and-practice-directions/notices-policies-practice-directions and "SM CL 02 Default Method of Attendence for Court Appearances Under the Small Claims Rules."

* For small claims trials, including Rule 9.1 simplified trials, and Rule 9.2 summary trials, and Rule 13 default hearings, payment hearings, and Applications to a judge that require a hearing, the default method of hearing and appearance will be in-person, unless a judge otherwise orders or directs.

* For small claims settlement conferences and trial conferences, the default method of appearance is Microsoft Teams unless otherwise stated.

For the latest updates, we recommend you contact the court registry or visit: https://www.provincialcourt.bc.ca/. The CRT is fully functional and remained so throughout the pandemic.

{{LSLAP Manual Navbox|type=chapters15-23}}

Introduction to Small Claims (20:I)

2025-11-11T16:35:18Z

LSLAP:

{{REVIEWED LSLAP | date= 11 July 2025}}
{{LSLAP Manual TOC|expanded = smallclaims}}

Most people with legal claims under $35,000 are not lawyers and do not have the benefit of legal representation. It can be challenging to choose how to resolve a dispute and how much to claim. While this guide primarily focuses on the Small Claims Court, it briefly reviews other options for resolving disputes, including the Civil Resolution Tribunal (CRT) for Small Claims up to $5,000 in British Columbia. On April 1, 2019, the CRT’s jurisdiction expanded to include certain claims about motor vehicle accidents, including liability and damages claims up to $50,000, minor injury determinations, and accident benefits. This chapter of the manual only covers small claims at provincial court and the CRT’s small claims jurisdiction, not the accident claims jurisdiction. The jurisdiction for motor vehicle accidents is complicated.

If you are a party to a small claims action or proceeding, take the time to read this guide in its entirety. If you fail to comply with the rules, the process may be delayed, your claim or defence may be weakened, and you may be liable to pay costs and penalties to the other party. Reading this guide will help you be more prepared and minimize confusion.

This guide is meant to explain the general Small Claims Court process; it is not legal advice. Read the guide along with the Small Claims Court Rules and the Civil Resolution Tribunal Rules and obtain legal advice where necessary.

[[File:Small_Claims_Avenues_JES.png|1000px]]

''Figure from Online Help Guide Small Claims BC produced by Justice Education Society in article titled ''Is Small Claims Court for me?'': https://smallclaimsbc.ca/overview/small-claims-court-me''

Directions for in-person proceedings and filings for small claims court (i.e., claims above $5,000) were significantly affected by the ongoing COVID-19 pandemic; however, many of the restrictions have since been removed. Consult the Provincial Court of BC website for up-to-date COVID-19 related notices, directions, and information. As of the time of writing, the following protocols apply to appearances:

* As of July 18th, 2022, BC Provincial court’s operations moved away from telephone/Teams audioconferences as the default method of appearance. Some appearances continue to be remote. For the default method of attendance for each appearance, see "Notices, policies, practice directions" on the BC Provincial Court website https://www.provincialcourt.bc.ca/news-notices-policies-and-practice-directions/notices-policies-practice-directions and "SM CL 02 Default Method of Attendence for Court Appearances Under the Small Claims Rules."

* For small claims trials, including Rule 9.1 simplified trials, and Rule 9.2 summary trials, and Rule 13 default hearings, payment hearings, and Applications to a judge that require a hearing, the default method of hearing and appearance will be in-person, unless a judge otherwise orders or directs.

* For small claims settlement conferences and trial conferences, the default method of appearance is Microsoft Teams unless otherwise stated.

For the latest updates, we recommend you contact the court registry or visit: https://www.provincialcourt.bc.ca/. The CRT is fully functional and remained so throughout the pandemic.

{{LSLAP Manual Navbox|type=chapters15-23}}

Introduction to Small Claims (20:I)

2025-11-11T16:31:39Z

LSLAP:

{{REVIEWED LSLAP | date= 11 July 2025}}
{{LSLAP Manual TOC|expanded = smallclaims}}

Most people with legal claims under $35,000 are not lawyers and do not have the benefit of legal representation. It can be challenging to choose how to resolve a dispute and how much to claim. While this guide primarily focuses on the Small Claims Court, it briefly reviews other options for resolving disputes, including the Civil Resolution Tribunal (CRT) for Small Claims up to $5,000 in British Columbia. On April 1, 2019, the CRT’s jurisdiction expanded to include certain claims about motor vehicle accidents, including liability and damages claims up to $50,000, minor injury determinations, and accident benefits. This chapter of the manual only covers small claims at provincial court and the CRT’s small claims jurisdiction, not the accident claims jurisdiction. The jurisdiction for motor vehicle accidents is complicated.

If you are a party to a small claims action or proceeding, take the time to read this guide in its entirety. If you fail to comply with the rules, the process may be delayed, your claim or defence may be weakened, and you may be liable to pay costs and penalties to the other party. Reading this guide will help you be more prepared and minimize confusion.

This guide is meant to explain the general Small Claims Court process; it is not legal advice. Read the guide along with the Small Claims Court Rules and the Civil Resolution Tribunal Rules and obtain legal advice where necessary.

[[File:Small_Claims_Avenues_JES.png|1000px]]

''Figure from Online Help Guide Small Claims BC produced by Justice Education Society: https://smallclaimsbc.ca/overview/small-claims-court-me''

Directions for in-person proceedings and filings for small claims court (i.e., claims above $5,000) were significantly affected by the ongoing COVID-19 pandemic; however, many of the restrictions have since been removed. Consult the Provincial Court of BC website for up-to-date COVID-19 related notices, directions, and information. As of the time of writing, the following protocols apply to appearances:

* As of July 18th, 2022, BC Provincial court’s operations moved away from telephone/Teams audioconferences as the default method of appearance. Some appearances continue to be remote. For the default method of attendance for each appearance, see "Notices, policies, practice directions" on the BC Provincial Court website https://www.provincialcourt.bc.ca/news-notices-policies-and-practice-directions/notices-policies-practice-directions and "SM CL 02 Default Method of Attendence for Court Appearances Under the Small Claims Rules."

* For small claims trials, including Rule 9.1 simplified trials, and Rule 9.2 summary trials, and Rule 13 default hearings, payment hearings, and Applications to a judge that require a hearing, the default method of hearing and appearance will be in-person, unless a judge otherwise orders or directs.

* For small claims settlement conferences and trial conferences, the default method of appearance is Microsoft Teams unless otherwise stated.

For the latest updates, we recommend you contact the court registry or visit: https://www.provincialcourt.bc.ca/. The CRT is fully functional and remained so throughout the pandemic.

{{LSLAP Manual Navbox|type=chapters15-23}}

Introduction to Small Claims (20:I)

2025-11-11T16:31:28Z

LSLAP:

{{REVIEWED LSLAP | date= 11 July 2025}}
{{LSLAP Manual TOC|expanded = smallclaims}}

Most people with legal claims under $35,000 are not lawyers and do not have the benefit of legal representation. It can be challenging to choose how to resolve a dispute and how much to claim. While this guide primarily focuses on the Small Claims Court, it briefly reviews other options for resolving disputes, including the Civil Resolution Tribunal (CRT) for Small Claims up to $5,000 in British Columbia. On April 1, 2019, the CRT’s jurisdiction expanded to include certain claims about motor vehicle accidents, including liability and damages claims up to $50,000, minor injury determinations, and accident benefits. This chapter of the manual only covers small claims at provincial court and the CRT’s small claims jurisdiction, not the accident claims jurisdiction. The jurisdiction for motor vehicle accidents is complicated.

If you are a party to a small claims action or proceeding, take the time to read this guide in its entirety. If you fail to comply with the rules, the process may be delayed, your claim or defence may be weakened, and you may be liable to pay costs and penalties to the other party. Reading this guide will help you be more prepared and minimize confusion.

This guide is meant to explain the general Small Claims Court process; it is not legal advice. Read the guide along with the Small Claims Court Rules and the Civil Resolution Tribunal Rules and obtain legal advice where necessary.

[[File:Small_Claims_Avenues_JES.png|1000px]]

''Figure from Online Help Guide Small Claims BC produced by Justice Education Society: https://smallclaimsbc.ca/overview/small-claims-court-me''

Directions for in-person proceedings and filings for small claims court (i.e., claims above $5,000) were significantly affected by the ongoing COVID-19 pandemic; however, many of the restrictions have since been removed. Consult the Provincial Court of BC website for up-to-date COVID-19 related notices, directions, and information. As of the time of writing, the following protocols apply to appearances:

* As of July 18th, 2022, BC Provincial court’s operations moved away from telephone/Teams audioconferences as the default method of appearance. Some appearances continue to be remote. For the default method of attendance for each appearance, see "Notices, policies, practice directions" on the BC Provincial Court website https://www.provincialcourt.bc.ca/news-notices-policies-and-practice-directions/notices-policies-practice-directions and "SM CL 02 Default Method of Attendence for Court Appearances Under the Small Claims Rules."

* For small claims trials, including Rule 9.1 simplified trials, and Rule 9.2 summary trials, and Rule 13 default hearings, payment hearings, and Applications to a judge that require a hearing, the default method of hearing and appearance will be in-person, unless a judge otherwise orders or directs.

* For small claims settlement conferences and trial conferences, the default method of appearance is Microsoft Teams unless otherwise stated.

For the latest updates, we recommend you contact the court registry or visit: https://www.provincialcourt.bc.ca/. The CRT is fully functional and remained so throughout the pandemic.

{{LSLAP Manual Navbox|type=chapters15-23}}

Introduction to Small Claims (20:I)

2025-11-11T16:30:59Z

LSLAP:

{{REVIEWED LSLAP | date= 11 July 2025}}
{{LSLAP Manual TOC|expanded = smallclaims}}

Most people with legal claims under $35,000 are not lawyers and do not have the benefit of legal representation. It can be challenging to choose how to resolve a dispute and how much to claim. While this guide primarily focuses on the Small Claims Court, it briefly reviews other options for resolving disputes, including the Civil Resolution Tribunal (CRT) for Small Claims up to $5,000 in British Columbia. On April 1, 2019, the CRT’s jurisdiction expanded to include certain claims about motor vehicle accidents, including liability and damages claims up to $50,000, minor injury determinations, and accident benefits. This chapter of the manual only covers small claims at provincial court and the CRT’s small claims jurisdiction, not the accident claims jurisdiction. The jurisdiction for motor vehicle accidents is complicated.

If you are a party to a small claims action or proceeding, take the time to read this guide in its entirety. If you fail to comply with the rules, the process may be delayed, your claim or defence may be weakened, and you may be liable to pay costs and penalties to the other party. Reading this guide will help you be more prepared and minimize confusion.

This guide is meant to explain the general Small Claims Court process; it is not legal advice. Read the guide along with the Small Claims Court Rules and the Civil Resolution Tribunal Rules and obtain legal advice where necessary.

[[File:Small_Claims_Avenues_JES.png|1000px]]
''Figure from Online Help Guide Small Claims BC produced by Justice Education Society: https://smallclaimsbc.ca/overview/small-claims-court-me''

Directions for in-person proceedings and filings for small claims court (i.e., claims above $5,000) were significantly affected by the ongoing COVID-19 pandemic; however, many of the restrictions have since been removed. Consult the Provincial Court of BC website for up-to-date COVID-19 related notices, directions, and information. As of the time of writing, the following protocols apply to appearances:

* As of July 18th, 2022, BC Provincial court’s operations moved away from telephone/Teams audioconferences as the default method of appearance. Some appearances continue to be remote. For the default method of attendance for each appearance, see "Notices, policies, practice directions" on the BC Provincial Court website https://www.provincialcourt.bc.ca/news-notices-policies-and-practice-directions/notices-policies-practice-directions and "SM CL 02 Default Method of Attendence for Court Appearances Under the Small Claims Rules."

* For small claims trials, including Rule 9.1 simplified trials, and Rule 9.2 summary trials, and Rule 13 default hearings, payment hearings, and Applications to a judge that require a hearing, the default method of hearing and appearance will be in-person, unless a judge otherwise orders or directs.

* For small claims settlement conferences and trial conferences, the default method of appearance is Microsoft Teams unless otherwise stated.

For the latest updates, we recommend you contact the court registry or visit: https://www.provincialcourt.bc.ca/. The CRT is fully functional and remained so throughout the pandemic.

{{LSLAP Manual Navbox|type=chapters15-23}}

Introduction to Small Claims (20:I)

2025-11-11T16:27:28Z

LSLAP:

{{REVIEWED LSLAP | date= 11 July 2025}}
{{LSLAP Manual TOC|expanded = smallclaims}}

Most people with legal claims under $35,000 are not lawyers and do not have the benefit of legal representation. It can be challenging to choose how to resolve a dispute and how much to claim. While this guide primarily focuses on the Small Claims Court, it briefly reviews other options for resolving disputes, including the Civil Resolution Tribunal (CRT) for Small Claims up to $5,000 in British Columbia. On April 1, 2019, the CRT’s jurisdiction expanded to include certain claims about motor vehicle accidents, including liability and damages claims up to $50,000, minor injury determinations, and accident benefits. This chapter of the manual only covers small claims at provincial court and the CRT’s small claims jurisdiction, not the accident claims jurisdiction. The jurisdiction for motor vehicle accidents is complicated.

If you are a party to a small claims action or proceeding, take the time to read this guide in its entirety. If you fail to comply with the rules, the process may be delayed, your claim or defence may be weakened, and you may be liable to pay costs and penalties to the other party. Reading this guide will help you be more prepared and minimize confusion.

This guide is meant to explain the general Small Claims Court process; it is not legal advice. Read the guide along with the Small Claims Court Rules and the Civil Resolution Tribunal Rules and obtain legal advice where necessary.

[[File:Small_Claims_Avenues_JES.png|1000px]]

Directions for in-person proceedings and filings for small claims court (i.e., claims above $5,000) were significantly affected by the ongoing COVID-19 pandemic; however, many of the restrictions have since been removed. Consult the Provincial Court of BC website for up-to-date COVID-19 related notices, directions, and information. As of the time of writing, the following protocols apply to appearances:

* As of July 18th, 2022, BC Provincial court’s operations moved away from telephone/Teams audioconferences as the default method of appearance. Some appearances continue to be remote. For the default method of attendance for each appearance, see "Notices, policies, practice directions" on the BC Provincial Court website https://www.provincialcourt.bc.ca/news-notices-policies-and-practice-directions/notices-policies-practice-directions and "SM CL 02 Default Method of Attendence for Court Appearances Under the Small Claims Rules."

* For small claims trials, including Rule 9.1 simplified trials, and Rule 9.2 summary trials, and Rule 13 default hearings, payment hearings, and Applications to a judge that require a hearing, the default method of hearing and appearance will be in-person, unless a judge otherwise orders or directs.

* For small claims settlement conferences and trial conferences, the default method of appearance is Microsoft Teams unless otherwise stated.

For the latest updates, we recommend you contact the court registry or visit: https://www.provincialcourt.bc.ca/. The CRT is fully functional and remained so throughout the pandemic.

{{LSLAP Manual Navbox|type=chapters15-23}}

File:Small Claims Avenues JES.png

2025-11-11T16:26:55Z

LSLAP: Infographic depicting avenues for Small Claims for Chapter 20 of the LSLAP Manual. Courtesy of Online Help Guide Small Claims BC, Produced by Justice Education Society. https://smallclaimsbc.ca/overview/small-claims-court-me

== Summary ==
Infographic depicting avenues for Small Claims for Chapter 20 of the LSLAP Manual.

Courtesy of Online Help Guide Small Claims BC, Produced by Justice Education Society.
https://smallclaimsbc.ca/overview/small-claims-court-me

Introduction to Family Law (3:I)

2025-11-11T16:10:42Z

LSLAP:

{{REVIEWED LSLAP | date= November 8, 2025}}
{{LSLAP Manual TOC|expanded = family}}

This chapter provides a general overview of family law in British Columbia, intended as a guide for law students and individuals navigating legal issues that arise from family relationships. It outlines the legal frameworks and procedures concerning the formation of relationships, divorce and separation, division of family property and assets, and issues involving children in family law matters. This chapter also includes useful resources for individuals dealing with family law matters, as well as information on related legal processes, such as adoption and name changes.

Please note that family law is a complex area governed by multiple statutes and case law. Accordingly, the information provided in this chapter should be used for reference purposes only.

{{LSLAP Manual Navbox|type=chapters1-7}}

LSLAP Manual Introduction Acknowledgements

2025-11-10T20:42:06Z

LSLAP: /* Chapter Three: Family Law */

{{LSLAP Manual TOC}}

==Law Students' Legal Advice Manual 49th Edition - 2025==

'''Executive Editor: Jang Hyun (Jerome) Kim'''

The Greater Vancouver Law Students' Legal Advice Society is a non-profit organization that relies on the generous support of public and private entities to maintain its services to the citizens of the Lower Mainland.

We give our thanks to our largest contributors, whose generous support allows us to provide legal services to the community:

===Contributing Sponsors===
* The Law Foundation of British Columbia
* Government of Canada
* City of Vancouver
* City of North Vancouver
* City of Surrey
* Alfonso Chen, Taylor Janis Workplace Law

==Acknowledgments==
Listed below are the names of the editors and resource persons who were responsible for editing the substantive content of the Manual, and whose efforts made the 2025 edition of the Manual possible. The Greater Vancouver Law Students’ Legal Advice Society wishes to thank all contributors and acknowledge their efforts on the Manual. The Editor would also like to thank the Student Executive, Supervising Lawyers, and summer clinicians for assisting with the production and distribution of the Manual.

===Chapter One: Criminal Law===

'''Editor:''' Arden Jansen 
'''Resource Person:''' Kyla Lee

===Chapter Two: Youth Justice===

'''Editor:''' David Darbinian 
'''Resource Person:''' Trevor Martin

===Chapter Three: Family Law===

'''Editor:''' Jang Hyun (Jerome) Kim 
'''Resource Person:''' Talia Magder

=== Chapter Four: Victims ===

'''Editor:''' Anders Mirabee 
'''Resource Person:''' Justine Davidson

=== Chapter Five: Public Complaints ===

'''Editor:''' Mia Gill 
'''Resource Person:''' Douglas King

=== Chapter Six: Human Rights ===

'''Editor:''' Muhammad Salyani 
'''Resource Person:''' Laura Track

=== Chapter Seven: Workers’ Compensation ===

'''Editor:''' Sean Deacon 
'''Resource Person:''' Jessica Johnson

=== Chapter Eight: Employment Insurance ===

'''Editor:''' Victoria Li 
'''Resource Person:''' Kevin Love

=== Chapter Nine: Employment Law ===

'''Editor:''' Emily Zou 
'''Resource Person:''' Jonas McKay

=== Chapter Ten: Creditors’ Remedies and Debtors’ Assistance ===

'''Editor:''' Sean Deacon 
'''Resource Person:''' Aminollah Sabzevari

=== Chapter Eleven: Consumer Protection ===

'''Editor:''' Isaac Waller 
'''Resource Person:''' Matthew Sveinson

=== Chapter Twelve: Automobile Insurance (ICBC) ===

'''Editor:''' Emily Ngo 
'''Resource Person:''' Meghann Bruneau

=== Chapter Thirteen: Motor Vehicle Law ===

'''Editor:''' Emily Ngo 
'''Resource Person:''' Kyla Lee

=== Chapter Fourteen: Mental Health Law ===

'''Editor:''' Anders Mirabee 
'''Resource Person:''' Dante Abbey and Midhath Mahir

=== Chapter Fifteen: Adult Guardianship and Substitute Decision-Making ===

'''Editor:''' Molly McVean 
'''Resource Person:''' Amalia Szilagyi

=== Chapter Sixteen: Wills and Estate Administration ===

'''Editor:''' VIctoria Li 
'''Resource Person:''' Nicco Bautista

=== Chapter Seventeen: Citizenship ===

'''Editor:''' Mia Gill 
'''Resource Person:''' Laura Schemitsch

=== Chapter Eighteen: Immigration Law ===

'''Editor:''' Muhammad Salyani 
'''Resource Person:''' Laura Schemitsch

=== Chapter Nineteen: Landlord and Tenant Law ===

'''Editor:''' David Darbinian 
'''Resource Person:''' Zuzana Modrovic

=== Chapter Twenty: Small Claims===

'''Editor:''' Annika Thornton 
'''Resource Person:''' Micah Carmody

=== Chapter Twenty-One: Welfare (Income Assistance) Law ===

'''Editors:''' Brigham Yang 
'''Resource Person:''' Alison Ward and Manjeet Chana

=== Chapter Twenty-Two: Strata Law ===

'''Editors:''' Alan Phuong 
'''Resource Person:''' Eric Regehr

{{LSLAP Manual Navbox | type=intro}}

LSLAP Manual Introduction Acknowledgements

2025-11-10T20:40:55Z

LSLAP: /* Law Students' Legal Advice Manual 49th Edition - 2025 */

{{LSLAP Manual TOC}}

==Law Students' Legal Advice Manual 49th Edition - 2025==

'''Executive Editor: Jang Hyun (Jerome) Kim'''

The Greater Vancouver Law Students' Legal Advice Society is a non-profit organization that relies on the generous support of public and private entities to maintain its services to the citizens of the Lower Mainland.

We give our thanks to our largest contributors, whose generous support allows us to provide legal services to the community:

===Contributing Sponsors===
* The Law Foundation of British Columbia
* Government of Canada
* City of Vancouver
* City of North Vancouver
* City of Surrey
* Alfonso Chen, Taylor Janis Workplace Law

==Acknowledgments==
Listed below are the names of the editors and resource persons who were responsible for editing the substantive content of the Manual, and whose efforts made the 2025 edition of the Manual possible. The Greater Vancouver Law Students’ Legal Advice Society wishes to thank all contributors and acknowledge their efforts on the Manual. The Editor would also like to thank the Student Executive, Supervising Lawyers, and summer clinicians for assisting with the production and distribution of the Manual.

===Chapter One: Criminal Law===

'''Editor:''' Arden Jansen 
'''Resource Person:''' Kyla Lee

===Chapter Two: Youth Justice===

'''Editor:''' David Darbinian 
'''Resource Person:''' Trevor Martin

===Chapter Three: Family Law===

'''Editor:''' Erin Chen 
'''Resource Person:''' Chris Wong

=== Chapter Four: Victims ===

'''Editor:''' Anders Mirabee 
'''Resource Person:''' Justine Davidson

=== Chapter Five: Public Complaints ===

'''Editor:''' Mia Gill 
'''Resource Person:''' Douglas King

=== Chapter Six: Human Rights ===

'''Editor:''' Muhammad Salyani 
'''Resource Person:''' Laura Track

=== Chapter Seven: Workers’ Compensation ===

'''Editor:''' Sean Deacon 
'''Resource Person:''' Jessica Johnson

=== Chapter Eight: Employment Insurance ===

'''Editor:''' Victoria Li 
'''Resource Person:''' Kevin Love

=== Chapter Nine: Employment Law ===

'''Editor:''' Emily Zou 
'''Resource Person:''' Jonas McKay

=== Chapter Ten: Creditors’ Remedies and Debtors’ Assistance ===

'''Editor:''' Sean Deacon 
'''Resource Person:''' Aminollah Sabzevari

=== Chapter Eleven: Consumer Protection ===

'''Editor:''' Isaac Waller 
'''Resource Person:''' Matthew Sveinson

=== Chapter Twelve: Automobile Insurance (ICBC) ===

'''Editor:''' Emily Ngo 
'''Resource Person:''' Meghann Bruneau

=== Chapter Thirteen: Motor Vehicle Law ===

'''Editor:''' Emily Ngo 
'''Resource Person:''' Kyla Lee

=== Chapter Fourteen: Mental Health Law ===

'''Editor:''' Anders Mirabee 
'''Resource Person:''' Dante Abbey and Midhath Mahir

=== Chapter Fifteen: Adult Guardianship and Substitute Decision-Making ===

'''Editor:''' Molly McVean 
'''Resource Person:''' Amalia Szilagyi

=== Chapter Sixteen: Wills and Estate Administration ===

'''Editor:''' VIctoria Li 
'''Resource Person:''' Nicco Bautista

=== Chapter Seventeen: Citizenship ===

'''Editor:''' Mia Gill 
'''Resource Person:''' Laura Schemitsch

=== Chapter Eighteen: Immigration Law ===

'''Editor:''' Muhammad Salyani 
'''Resource Person:''' Laura Schemitsch

=== Chapter Nineteen: Landlord and Tenant Law ===

'''Editor:''' David Darbinian 
'''Resource Person:''' Zuzana Modrovic

=== Chapter Twenty: Small Claims===

'''Editor:''' Annika Thornton 
'''Resource Person:''' Micah Carmody

=== Chapter Twenty-One: Welfare (Income Assistance) Law ===

'''Editors:''' Brigham Yang 
'''Resource Person:''' Alison Ward and Manjeet Chana

=== Chapter Twenty-Two: Strata Law ===

'''Editors:''' Alan Phuong 
'''Resource Person:''' Eric Regehr

{{LSLAP Manual Navbox | type=intro}}

Marriage (3:III)

2025-11-10T20:28:53Z

LSLAP: /* C. Common-Law Relationships */

{{REVIEWED LSLAP | date= November 8, 2025}}
{{LSLAP Manual TOC|expanded = family}}

== A. Marriage ==

Marriage creates a legal relationship between two people, giving each certain legal rights and obligations. A legal marriage must comply with certain legal requirements. Therefore, not all marriages are legally recognized.

== B. Legal Requirements and Barriers ==

To be legally recognized or considered “valid”, a marriage must meet several legal requirements. Failure to meet these requirements may render the marriage void ab initio (void from the beginning). In other circumstances, such as sham marriages or marriages in which one party did not consent or did so under duress, the marriage may be voidable, meaning the marriage is valid until an order is made by the Court to annul the marriage.

=== 1) Sex ===

In the past, spouses had to be of opposite sexes. This has been found to be unconstitutional (see [http://canlii.ca/t/1jdhv ''Reference re Same Sex Marriage''], [2004] SCR 698, [2004], SCJ No 75), and same-sex couples can now marry in every province and territory with the passing of Bill C-38 in the House of Commons, and subsequent passing in the Senate. Bill C-38 received Royal Assent on July 20, 2005, becoming the [http://canlii.ca/t/7w02 ''Civil Marriage Act'', SC 2005, c 33].

=== 2) Relatedness ===

The federal [http://canlii.ca/t/7vq2 ''Marriage (Prohibited Degrees) Act''], 1990, c 46, bars marriage between lineal relatives, including half-siblings and adopted siblings.

=== 3) Marital Status ===

Both spouses must be unmarried at the time of the marriage.

=== 4) Age ===

Both spouses must be over the age of majority (19 in BC; see the [http://canlii.ca/t/5224c ''Age of Majority Act''], RSBC 1996, c7, s 1). In BC, a minor between the ages of 16 and 19 can marry only with the consent of both of their parents (see the [https://canlii.ca/t/5643s ''Marriage Act''], RSBC 1996, c 282, s 28). A minor under the age of 16 can marry only if permission is granted in a Supreme Court order (s 29). However, a marriage is not automatically invalid if the requirements of s 28 and 29 have not been met at the time of marriage (s 30); the Court may preserve the marriage if it is in the interests of justice to do so (e.g., if parties have grown up and have lived as spouses for some time).

=== 5) Mental Capacity ===

At the time of the ceremony, both parties must be capable of understanding the nature of the ceremony and the rights and responsibilities involved in marriage.

=== 6) Residency ===

The ''[https://canlii.ca/t/52hdt Civil Marriage Act]'', SC 2005, c 33 was passed in 2005. With this act, marriages performed in Canada between non-Canadian residents will be valid in Canada, regardless of the law in either spouse’s country of residence. Additionally, Canadian courts will be able to grant divorces to non-resident spouses who were married in Canada, and who are unable to get divorced in their own state because that state does not recognize the validity of the marriage.

=== 7) Foreign Marriages ===

The common-law rule is that the formalities of marriage—i.e., who can marry, who can perform weddings—are those of the law where the marriage took place, while the legal capacity of each party is governed by the law of the place where they live.

=== 8) Sham Marriages ===

When parties marry solely for some purpose such as tax benefits or immigration status, the marriage may be voidable for lack of intent. However, the marriage may not be void for lack of intent alone, and courts may find the marriage valid and binding when the parties consented to the union (for example, see [http://canlii.ca/t/26v81 ''Grewal v Kaur''], 2009 CanLII 66913 (ON SC). Sham marriages are uncommon.

=== 9) Customary Marriage ===

The law recognizes traditional customary marriages of Indigenous people in some circumstances where the marriage meets the criteria of English common law.

== C. Common-Law Relationships ==

=== 1. General ===

Common-law spouses have certain rights/obligations conferred on them by various statutes and the common law. Each statute may give a slightly different definition of a common-law “spouse”. A general rule is that for most federal legislation it takes one year of living together in a “marriage-like relationship” to qualify as common law and for most provincial legislation it takes two years to qualify (see ''[https://canlii.ca/t/1dz3n Takacs v. Gallo]'', 1998 CanLII 6429 (BC CA)) for a summary of the indicators to be considered when determining whether parties have lived in a “marriage-like relationship”; (see ''[https://canlii.ca/t/g87vw Matteucci v. Greenberg]'', 2014 BCSC 1434 (CanLII); ''[https://canlii.ca/t/fx5b2 Trudeau v. Panter]'', 2013 BCSC 706 (CanLII)) that merely living together does not mean a relationship is marriage-like.

Under the ''FLA'', a person will be considered a ‘spouse’ if they have lived in a marriage-like relationship and have a child together (for spousal support only), or if they have lived in a marriage-like relationship for a continuous period of 2 years (see ''[https://canlii.ca/t/g7cp6 C.A.M. v. M.D.Q.]'', 2014 BCPC 110 (CanLII) regarding the child exception to living together for two years). This period begins when the couple began to live together in a marriage-like relationship.

See '''[[Family Law Glossary (3:App A) | Appendix A: Glossary]]''' at the end of this chapter for a brief list of definitions. For more extensive definitions, consult the current legislation.

Remember that a common-law relationship is '''not''' a legal marriage. Nevertheless, where legal rights and obligations are conferred on common-law spouses, the relationship is still valid even if one or both of the parties is currently married to someone else.

=== 2. Estate Considerations ===

==== a) Wills Estates, and Succession Act, SBC 2009, c 13 ====
Website: https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/09013_01

Two persons of either gender are considered spouses under this act if they are either married to each other, or if they have lived in a marriage-like relationship for at least 2 years (s 2(1)(b)). They cease to be considered spouses if one or both partners terminate the relationship (s 2(2)(b)).

If two or more persons are entitled to a spousal share of an intestate estate (estate for which the deceased has not left a will), they may agree on how to portion the share. If they cannot agree, a court will determine how to portion the spousal share between them.

If two or more persons are eligible to apply to be given priority as a spouse in the division of an intestate estate, they may agree on who is to apply. If they cannot agree, the Court can make a decision.

==== b) Canada Pension Plan Act, RSC 1985, c C-8 ====
Website: https://laws-lois.justice.gc.ca/eng/acts/c-8/index.html

Common-law spouses who have cohabited with a contributor for one year before the contributor’s death may be able to claim death benefits. Forms can be obtained from a CPP office.

==== c) Workers’ Compensation Act, RSBC 2019, c 1 ====
Website: https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/19001_00

A common law relationship is recognized after cohabitation for two years. If there is a child, one year is sufficient.

==== d) Employment and Assistance Act, SBC 2002, c 40 ====
Website: https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/02040_01

A common law relationship can arise from cohabitation as short as 3 months that is “consistent with a marriage-like relationship” (s 1.1(1)). Common-law relationships are dealt with as marriages, and as single-family units where there are children.

== D. Marriage and Cohabitation Agreements ==

=== 1. General ===

Marriage agreements, sometimes colloquially referred to as pre-nuptial agreements, are agreements drafted by a married couple or in contemplation of marriage that address how to resolve a family law dispute, if one should arise. Cohabitation agreements similarly govern family law disputes between unmarried couples who expect to live in a marriage-like relationship for at least 2 years. Agreements can address matters that may be the subject of a dispute in the future, the means of resolving a dispute, and the implementation of the agreement. Agreements cannot override dispute resolution procedures mandated by statute.

Independent legal advice is extremely important to have enforceable marriage or cohabitation agreements, and persons wishing to rely on a cohabitation or marriage agreement are strongly encouraged to seek the advice of a lawyer.

=== 2. Legislation: Family Law Act [FLA] ===

The ''FLA'' promotes the enforceability of marriage and cohabitation agreements, and provides clear guidelines for the circumstances under which they can be binding. Agreements will be binding on the parties regardless of whether a family dispute resolution professional has been consulted and/or the agreement has been filed with a court. Agreements will be binding on a person who is under 19 years of age if they are parents or spouses (Part 2, s 6).

Section 93(3) of the ''FLA'' also states that courts can set aside an agreement if:

:a) Spouses fail to disclose significant property or debts, or other information relevant to the negotiation of the agreement;
:b) One spouse takes improper advantage of another’s vulnerability;
:c) One spouse does not understand the nature or consequences of the agreement; and/or
:d) Other circumstances that would cause, under common law, all or part of the contract to be voidable.

The above concerns are often addressed by having the parties obtain independent legal advice.

Section 93(5) of the ''FLA'' states that the courts can also set aside an agreement if they find the agreement significantly unfair after considering these factors:

:a) The length of time that has passed since the agreement was made;
:b) The intention of the spouses, in making the agreement, to achieve certainty; and/or
:c) The degree to which the spouses relied on the terms of the agreement.

The ''FLA'' is drafted to make it difficult for courts to set aside agreements due to perceived unfairness. The Court will only set aside an agreement made between spouses respecting the division of property and debt, if the division agreed to would be "substantially different" from the division that the Court would order and "significantly unfair" to one of the spouses (see ''[https://canlii.ca/t/g6t11 Thomson v. Young]'', 2014 BCSC 799 (CanLII)).

The test for setting aside an agreement is to first look at the formation of the agreement (s 93(3)) and then the effects of the agreement (s 93(5)). Section 93(4) states that a Court may refuse to set an agreement aside even if it was unfairly reached (see ''[https://canlii.ca/t/g0jhk Asselin v. Roy]'', 2013 BCSC 1681 (CanLII)).

Section 1 of the ''FLA'' provides a definition of “Written Agreement” as an agreement written and signed by all parties. Written agreements should also be witnessed by someone over the age of 19 to address potential evidentiary issues at a later date.

=== 3. Substance of Contract ===

The main part of the agreement usually deals with the division of property and debt in the event of a relationship breakdown. The agreement may provide for management and/or ownership of family property during a marriage or cohabitation and/or when the relationship ends. The parties may also specify that neither party is responsible for debts of the other incurred either before or during the relationship.

While it was once against public policy to contract in anticipation of future separation, section 92 of the ''FLA'' explicitly anticipates such considerations in a marriage or cohabitation contract. Under the ''FLA'', spouses can agree on how to divide family property, and what debts or items are eligible for division.

Section 93 of the ''FLA'' states that agreements respecting property division can be set aside for lack of procedural fairness, such as failure to disclose, where one party has taken advantage of the other, or where one spouse did not appreciate the consequences of the agreement.

According to section 93(4) and (5) of the ''FLA'', the Court will only set aside an agreement on property under these sections “if the division agreed to would be ‘substantially different’ from the division that the Court would order and ‘significantly unfair’ to one of the spouses”.

==== a) Parenting Arrangements ====

Parenting arrangements are generally not included in cohabitation or marriage agreements.

Parenting arrangements are covered by section 44 of the ''FLA''. Please note that an agreement for contact is not an agreement for “parenting arrangements” and will not be enforced under this section.

Agreements made about parenting are not binding unless made after separation or when parties are about to separate with the purpose of being effective upon separation (s 44(2)).

''FLA'' section 44(3) holds that the written agreement may be given the force of a Court order if it is filed in a Supreme Court or Provincial Court registry. A Court must alter or set aside the terms of a parenting agreement if they are found not to be in the best interests of the child (s 44(4)), a concept discussed at length later in this chapter.

Section 58 of the ''FLA'' outlines guidelines for agreements regarding contact with children. The ''FLA'' emphasizes the importance of the “best interests” as the “only” consideration.

For more information on Parenting Time, see '''[[Parenting Orders, Guardianship, and Contact (3:XI)|Section XI: Parenting Orders, Guardianship, and Contact]]'''.

==== b) Child Support ====

Per section 148 of the ''FLA'', an agreement respecting child support is binding only if the agreement is made after separation, or when the parties are about to separate, for the purpose of being effective on separation. It would thus not be binding if it is in a marriage/cohabitation agreement.

Courts can override or vary any such terms that are inconsistent with ''Federal Child Support Guidelines'' (''[https://canlii.ca/t/g09dm Young v Young]'', 2013 BCSC 1574) or with section 150 of the ''FLA'' [''Determining Child Support'']. Section 150 states that the amount of child support is to be determined by the ''Federal Child Support Guidelines'' (''[https://canlii.ca/t/g6907 Thibault v White]'', 2014 BCSC 497).

The primary objective is to ensure, so far as practicable, that the children will enjoy a reasonably consistent, and reasonably adequate, standard of living, unaffected, so far as is practicable, by changes in the relationships among their parents and stepparents (see ''B (C) v B (M)'', [2014] CarswellBC 1212 (BCPC)). It is also important to note that any term purporting to exclude support obligations is likely to be found invalid on public policy grounds. The Court will seldom uphold an amount lower than the Guidelines, even if the parties agree on it, unless there is an appropriate reason to approve it, such as some other arrangement that directly benefits the child. It is important to note that the Court may refuse an application for a Divorce Order if the Court is not satisfied that appropriate arrangements have been made for the support of the parties’ children. See '''[[Spousal and Child Support (3:X) | Section X: Spousal and Child Support]]'''.

==== c) Spousal Support ====

The law relating to contracting out of spousal support is complex. Clients should seek professional legal advice before entering into an agreement for spousal support. Under the ''FLA'', spousal support agreements that are filed with a Court registry will be treated as an order of the Court (''FLA'', s 163), but can be set aside for lack of procedural fairness, such as failure to disclose, where one party has taken advantage of the other, or where one spouse did not appreciate the consequences of the agreement; they can also be set aside if the Court finds that the agreement is significantly unfair (see s 164 of the ''FLA''). See '''[[Spousal and Child Support (3:X) | Section X: Spousal and Child Support]]'''.

==== d) Void Conditions ====

Marriage contracts sometimes incorporate terms that are not enforceable at law. For example, a clause stating that one spouse shall do all the cooking is a contract for personal services; therefore, it is not enforceable. A breach of such an agreement cannot be grounds for divorce.

'''NOTE:''' Consider whether a marriage agreement should contain a clause stating: “Anything held to be void/voidable will be severed from the agreement leaving the rest of the agreement intact”. This prevents the whole of a marriage agreement being voided by the inclusion of void conditions or clauses. See ''[http://canlii.ca/t/1d921 Clarke v. Clarke]'', 1991 CanLII 885 (BC CA).

'''NOTE:''' Consider whether any agreement should contain a clause stating that the greater detail in the Agreement does not merge with any later Order. This ensures that if a Divorce Order is granted later, the terms of the Agreement continue to apply unless expressly stated otherwise. This is more applicable to Separation Agreements.

{{LSLAP Manual Navbox|type=chapters1-7}}

Marriage (3:III)

2025-11-10T20:28:15Z

LSLAP: /* 6) Residency */

{{REVIEWED LSLAP | date= November 8, 2025}}
{{LSLAP Manual TOC|expanded = family}}

== A. Marriage ==

Marriage creates a legal relationship between two people, giving each certain legal rights and obligations. A legal marriage must comply with certain legal requirements. Therefore, not all marriages are legally recognized.

== B. Legal Requirements and Barriers ==

To be legally recognized or considered “valid”, a marriage must meet several legal requirements. Failure to meet these requirements may render the marriage void ab initio (void from the beginning). In other circumstances, such as sham marriages or marriages in which one party did not consent or did so under duress, the marriage may be voidable, meaning the marriage is valid until an order is made by the Court to annul the marriage.

=== 1) Sex ===

In the past, spouses had to be of opposite sexes. This has been found to be unconstitutional (see [http://canlii.ca/t/1jdhv ''Reference re Same Sex Marriage''], [2004] SCR 698, [2004], SCJ No 75), and same-sex couples can now marry in every province and territory with the passing of Bill C-38 in the House of Commons, and subsequent passing in the Senate. Bill C-38 received Royal Assent on July 20, 2005, becoming the [http://canlii.ca/t/7w02 ''Civil Marriage Act'', SC 2005, c 33].

=== 2) Relatedness ===

The federal [http://canlii.ca/t/7vq2 ''Marriage (Prohibited Degrees) Act''], 1990, c 46, bars marriage between lineal relatives, including half-siblings and adopted siblings.

=== 3) Marital Status ===

Both spouses must be unmarried at the time of the marriage.

=== 4) Age ===

Both spouses must be over the age of majority (19 in BC; see the [http://canlii.ca/t/5224c ''Age of Majority Act''], RSBC 1996, c7, s 1). In BC, a minor between the ages of 16 and 19 can marry only with the consent of both of their parents (see the [https://canlii.ca/t/5643s ''Marriage Act''], RSBC 1996, c 282, s 28). A minor under the age of 16 can marry only if permission is granted in a Supreme Court order (s 29). However, a marriage is not automatically invalid if the requirements of s 28 and 29 have not been met at the time of marriage (s 30); the Court may preserve the marriage if it is in the interests of justice to do so (e.g., if parties have grown up and have lived as spouses for some time).

=== 5) Mental Capacity ===

At the time of the ceremony, both parties must be capable of understanding the nature of the ceremony and the rights and responsibilities involved in marriage.

=== 6) Residency ===

The ''[https://canlii.ca/t/52hdt Civil Marriage Act]'', SC 2005, c 33 was passed in 2005. With this act, marriages performed in Canada between non-Canadian residents will be valid in Canada, regardless of the law in either spouse’s country of residence. Additionally, Canadian courts will be able to grant divorces to non-resident spouses who were married in Canada, and who are unable to get divorced in their own state because that state does not recognize the validity of the marriage.

=== 7) Foreign Marriages ===

The common-law rule is that the formalities of marriage—i.e., who can marry, who can perform weddings—are those of the law where the marriage took place, while the legal capacity of each party is governed by the law of the place where they live.

=== 8) Sham Marriages ===

When parties marry solely for some purpose such as tax benefits or immigration status, the marriage may be voidable for lack of intent. However, the marriage may not be void for lack of intent alone, and courts may find the marriage valid and binding when the parties consented to the union (for example, see [http://canlii.ca/t/26v81 ''Grewal v Kaur''], 2009 CanLII 66913 (ON SC). Sham marriages are uncommon.

=== 9) Customary Marriage ===

The law recognizes traditional customary marriages of Indigenous people in some circumstances where the marriage meets the criteria of English common law.

== C. Common-Law Relationships ==

=== 1. General ===

Common-law spouses have certain rights/obligations conferred on them by various statutes and the common law. Each statute may give a slightly different definition of a common-law “spouse”. A general rule is that for most federal legislation it takes one year of living together in a “marriage-like relationship” to qualify as common law and for most provincial legislation it takes two years to qualify (see ''[https://canlii.ca/t/1dz3n Takacs v. Gallo]'', 1998 CanLII 6429 (BC CA)) for a summary of the indicators to be considered when determining whether parties have lived in a “marriage-like relationship”; (see ''[https://canlii.ca/t/g87vw Matteucci v. Greenberg]'', 2014 BCSC 1434 (CanLII); ''[https://canlii.ca/t/fx5b2 Trudeau v. Panter]'', 2013 BCSC 706 (CanLII)) that merely living together does not mean a relationship is marriage-like.

Under the ''FLA'', a person will be considered a ‘spouse’ if they have lived in a marriage-like relationship and have a child together (for spousal support only), or if they have lived in a marriage-like relationship for a continuous period of 2 years (see ''[https://canlii.ca/t/g7cp6 C.A.M. v. M.D.Q.]'', 2014 BCPC 110 (CanLII) regarding the child exception to living together for two years). This period begins when the couple began to live together in a marriage-like relationship.

See [[Family Law Glossary (3:App A) | Appendix A: Glossary]] at the end of this chapter for a brief list of definitions. For more extensive definitions, consult the current legislation.

Remember that a common-law relationship is '''not''' a legal marriage. Nevertheless, where legal rights and obligations are conferred on common-law spouses, the relationship is still valid even if one or both of the parties is currently married to someone else.

=== 2. Estate Considerations ===

==== a) Wills Estates, and Succession Act, SBC 2009, c 13 ====
Website: https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/09013_01

Two persons of either gender are considered spouses under this act if they are either married to each other, or if they have lived in a marriage-like relationship for at least 2 years (s 2(1)(b)). They cease to be considered spouses if one or both partners terminate the relationship (s 2(2)(b)).

If two or more persons are entitled to a spousal share of an intestate estate (estate for which the deceased has not left a will), they may agree on how to portion the share. If they cannot agree, a court will determine how to portion the spousal share between them.

If two or more persons are eligible to apply to be given priority as a spouse in the division of an intestate estate, they may agree on who is to apply. If they cannot agree, the Court can make a decision.

==== b) Canada Pension Plan Act, RSC 1985, c C-8 ====
Website: https://laws-lois.justice.gc.ca/eng/acts/c-8/index.html

Common-law spouses who have cohabited with a contributor for one year before the contributor’s death may be able to claim death benefits. Forms can be obtained from a CPP office.

==== c) Workers’ Compensation Act, RSBC 2019, c 1 ====
Website: https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/19001_00

A common law relationship is recognized after cohabitation for two years. If there is a child, one year is sufficient.

==== d) Employment and Assistance Act, SBC 2002, c 40 ====
Website: https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/02040_01

A common law relationship can arise from cohabitation as short as 3 months that is “consistent with a marriage-like relationship” (s 1.1(1)). Common-law relationships are dealt with as marriages, and as single-family units where there are children.

== D. Marriage and Cohabitation Agreements ==

=== 1. General ===

Marriage agreements, sometimes colloquially referred to as pre-nuptial agreements, are agreements drafted by a married couple or in contemplation of marriage that address how to resolve a family law dispute, if one should arise. Cohabitation agreements similarly govern family law disputes between unmarried couples who expect to live in a marriage-like relationship for at least 2 years. Agreements can address matters that may be the subject of a dispute in the future, the means of resolving a dispute, and the implementation of the agreement. Agreements cannot override dispute resolution procedures mandated by statute.

Independent legal advice is extremely important to have enforceable marriage or cohabitation agreements, and persons wishing to rely on a cohabitation or marriage agreement are strongly encouraged to seek the advice of a lawyer.

=== 2. Legislation: Family Law Act [FLA] ===

The ''FLA'' promotes the enforceability of marriage and cohabitation agreements, and provides clear guidelines for the circumstances under which they can be binding. Agreements will be binding on the parties regardless of whether a family dispute resolution professional has been consulted and/or the agreement has been filed with a court. Agreements will be binding on a person who is under 19 years of age if they are parents or spouses (Part 2, s 6).

Section 93(3) of the ''FLA'' also states that courts can set aside an agreement if:

:a) Spouses fail to disclose significant property or debts, or other information relevant to the negotiation of the agreement;
:b) One spouse takes improper advantage of another’s vulnerability;
:c) One spouse does not understand the nature or consequences of the agreement; and/or
:d) Other circumstances that would cause, under common law, all or part of the contract to be voidable.

The above concerns are often addressed by having the parties obtain independent legal advice.

Section 93(5) of the ''FLA'' states that the courts can also set aside an agreement if they find the agreement significantly unfair after considering these factors:

:a) The length of time that has passed since the agreement was made;
:b) The intention of the spouses, in making the agreement, to achieve certainty; and/or
:c) The degree to which the spouses relied on the terms of the agreement.

The ''FLA'' is drafted to make it difficult for courts to set aside agreements due to perceived unfairness. The Court will only set aside an agreement made between spouses respecting the division of property and debt, if the division agreed to would be "substantially different" from the division that the Court would order and "significantly unfair" to one of the spouses (see ''[https://canlii.ca/t/g6t11 Thomson v. Young]'', 2014 BCSC 799 (CanLII)).

The test for setting aside an agreement is to first look at the formation of the agreement (s 93(3)) and then the effects of the agreement (s 93(5)). Section 93(4) states that a Court may refuse to set an agreement aside even if it was unfairly reached (see ''[https://canlii.ca/t/g0jhk Asselin v. Roy]'', 2013 BCSC 1681 (CanLII)).

Section 1 of the ''FLA'' provides a definition of “Written Agreement” as an agreement written and signed by all parties. Written agreements should also be witnessed by someone over the age of 19 to address potential evidentiary issues at a later date.

=== 3. Substance of Contract ===

The main part of the agreement usually deals with the division of property and debt in the event of a relationship breakdown. The agreement may provide for management and/or ownership of family property during a marriage or cohabitation and/or when the relationship ends. The parties may also specify that neither party is responsible for debts of the other incurred either before or during the relationship.

While it was once against public policy to contract in anticipation of future separation, section 92 of the ''FLA'' explicitly anticipates such considerations in a marriage or cohabitation contract. Under the ''FLA'', spouses can agree on how to divide family property, and what debts or items are eligible for division.

Section 93 of the ''FLA'' states that agreements respecting property division can be set aside for lack of procedural fairness, such as failure to disclose, where one party has taken advantage of the other, or where one spouse did not appreciate the consequences of the agreement.

According to section 93(4) and (5) of the ''FLA'', the Court will only set aside an agreement on property under these sections “if the division agreed to would be ‘substantially different’ from the division that the Court would order and ‘significantly unfair’ to one of the spouses”.

==== a) Parenting Arrangements ====

Parenting arrangements are generally not included in cohabitation or marriage agreements.

Parenting arrangements are covered by section 44 of the ''FLA''. Please note that an agreement for contact is not an agreement for “parenting arrangements” and will not be enforced under this section.

Agreements made about parenting are not binding unless made after separation or when parties are about to separate with the purpose of being effective upon separation (s 44(2)).

''FLA'' section 44(3) holds that the written agreement may be given the force of a Court order if it is filed in a Supreme Court or Provincial Court registry. A Court must alter or set aside the terms of a parenting agreement if they are found not to be in the best interests of the child (s 44(4)), a concept discussed at length later in this chapter.

Section 58 of the ''FLA'' outlines guidelines for agreements regarding contact with children. The ''FLA'' emphasizes the importance of the “best interests” as the “only” consideration.

For more information on Parenting Time, see '''[[Parenting Orders, Guardianship, and Contact (3:XI)|Section XI: Parenting Orders, Guardianship, and Contact]]'''.

==== b) Child Support ====

Per section 148 of the ''FLA'', an agreement respecting child support is binding only if the agreement is made after separation, or when the parties are about to separate, for the purpose of being effective on separation. It would thus not be binding if it is in a marriage/cohabitation agreement.

Courts can override or vary any such terms that are inconsistent with ''Federal Child Support Guidelines'' (''[https://canlii.ca/t/g09dm Young v Young]'', 2013 BCSC 1574) or with section 150 of the ''FLA'' [''Determining Child Support'']. Section 150 states that the amount of child support is to be determined by the ''Federal Child Support Guidelines'' (''[https://canlii.ca/t/g6907 Thibault v White]'', 2014 BCSC 497).

The primary objective is to ensure, so far as practicable, that the children will enjoy a reasonably consistent, and reasonably adequate, standard of living, unaffected, so far as is practicable, by changes in the relationships among their parents and stepparents (see ''B (C) v B (M)'', [2014] CarswellBC 1212 (BCPC)). It is also important to note that any term purporting to exclude support obligations is likely to be found invalid on public policy grounds. The Court will seldom uphold an amount lower than the Guidelines, even if the parties agree on it, unless there is an appropriate reason to approve it, such as some other arrangement that directly benefits the child. It is important to note that the Court may refuse an application for a Divorce Order if the Court is not satisfied that appropriate arrangements have been made for the support of the parties’ children. See '''[[Spousal and Child Support (3:X) | Section X: Spousal and Child Support]]'''.

==== c) Spousal Support ====

The law relating to contracting out of spousal support is complex. Clients should seek professional legal advice before entering into an agreement for spousal support. Under the ''FLA'', spousal support agreements that are filed with a Court registry will be treated as an order of the Court (''FLA'', s 163), but can be set aside for lack of procedural fairness, such as failure to disclose, where one party has taken advantage of the other, or where one spouse did not appreciate the consequences of the agreement; they can also be set aside if the Court finds that the agreement is significantly unfair (see s 164 of the ''FLA''). See '''[[Spousal and Child Support (3:X) | Section X: Spousal and Child Support]]'''.

==== d) Void Conditions ====

Marriage contracts sometimes incorporate terms that are not enforceable at law. For example, a clause stating that one spouse shall do all the cooking is a contract for personal services; therefore, it is not enforceable. A breach of such an agreement cannot be grounds for divorce.

'''NOTE:''' Consider whether a marriage agreement should contain a clause stating: “Anything held to be void/voidable will be severed from the agreement leaving the rest of the agreement intact”. This prevents the whole of a marriage agreement being voided by the inclusion of void conditions or clauses. See ''[http://canlii.ca/t/1d921 Clarke v. Clarke]'', 1991 CanLII 885 (BC CA).

'''NOTE:''' Consider whether any agreement should contain a clause stating that the greater detail in the Agreement does not merge with any later Order. This ensures that if a Divorce Order is granted later, the terms of the Agreement continue to apply unless expressly stated otherwise. This is more applicable to Separation Agreements.

{{LSLAP Manual Navbox|type=chapters1-7}}

Adoption (3:XIII)

2025-11-10T20:20:01Z

LSLAP: /* 1. Adoption Act, RSBC 1996, c 5 */

{{REVIEWED LSLAP | date= November 8, 2025}}
{{LSLAP Manual TOC|expanded = family}}

== A. Legislation ==

=== 1. Adoption Act, RSBC 1996, c 5 ===

The ''Adoption Act'' governs adoptions in BC. The Act provides for the licensing of adoption agencies. These agencies, in addition to the Director of Adoption, have exclusive authority for facilitating adoptions, matching birth families with adoptive parents, adoption planning, pre-placement assessment, placement services, and post-placement counselling and assessments for non-relative adoptions in BC.

The ''Adoption Act'' enables any adult person to apply to adopt a child or to adopt another adult person. Under ss 5 and 29, one or two adults may apply to adopt a child. This allows unmarried couples, including same-sex couples, to apply to adopt.

The ''Adoption Act'' says that a child may be placed for adoption by the Director of Child, Family and Community Service; an adoption agency; a parent or guardian of a child by direct placement; or a parent or guardian of a child, if the child is placed with a relative of the child. A direct placement means the placing of a child by a parent or other guardian with one or 2 adults who are not a relative of the child. According to section 37(c), biological parents may also apply to adopt with a third party.

Section 37 of the ''Adoption Act'' states the effect of the adoption order. For all purposes, an adopted child becomes the child of the adopting parent(s) and the biological parents cease to have any parental rights or obligations with respect to the child.

Two legal exceptions under the ''Act'' are:
#An adopted First Nations child does not lose status, rights, privileges, disabilities, and limitations acquired under the ''Indian Act'' and other Acts (s 37(7)); and
#Adoption adds a prohibited degree of consanguinity for the purpose of marriage or laws relating to incest (s 37(4)).

The adopted person takes the given names specified in the adoption order and the surname of the adopting parents, unless the court orders otherwise at the request of the applicant (s 36).

Furthermore, openness agreements are recognized by statute (s 59) and may be entered into by the adoptive parents, the birth parents, and others with a relationship to the child, after consents to adoption have been signed.

An adoption effected under the law of a jurisdiction other than BC is valid in BC as though it had been made under BC’s adoption legislation (s 47).

Part 4 of the Adoption Act deals with interprovincial and intercountry adoptions. Before a person brings a child into the province for adoption, they must obtain the approval of a director or an adoption agency (s 48(1)). Part 4 Division 2 deals with intercountry adoption of children from countries that are signatories to the Hague Convention on Intercountry Adoption. To complete an adoption from a foreign country, whether that country is a “Hague Country” or not, a person needs the approval of the British Columbia Central Authority.

Under the ''Adoption Act'', ss 63(1) and 64(1), birth records may be disclosed to both birth parents and adult adoptees. The Reunion Registry facilitates reunions and disclosure of records. The Act provides for filing of non-disclosure vetoes and no-contact vetoes (ss 65 and 66).

== B. Procedure ==

=== 1. Consent ===

Section 13(1) of the ''Adoption Act'' states that no adoption order may be made without the written consent of:

*The child, if 12 years of age or over; children aged between 7 and 11 must be interviewed to ascertain whether they understand the meaning of adoption, and their views on the proposed name changes and a report must be filed with the court;
*The child’s parents. The birthing parent cannot sign consents until the child is at least 10 days old (s 14). The consent of the other biological parent, who is not presumed to be the child’s biological parent under s 26 of the Family Law Act, is not required unless the biological parent acknowledges they are a parent and they are named as a parent by the child’s birthing parent;
*The child’s guardians;

Where a child is a permanent ward of the Director of Child, Family, and Community Service, the Director, as guardian, must consent (s 13(5)).

The court may dispense with the need for consent from some of these parties. Parental consent may be dispensed with if it is in the best interest of the child or if the person has abandoned or deserted the child, cannot be found, is incapable of giving consent, has persistently neglected or refused to contribute to support for which they are liable, or is a person whose consent ought, in all the circumstances of the case, to be dispensed with (s 17). The consent of a child over 12 years of age can only be dispensed with if the child is not capable of giving informed consent (s 17(2)).

A person’s consent must be in the form of a sworn affidavit. Each affidavit must state that the effect of the consent and of adoption was fully explained to the person consenting, and that they signed the consent freely and voluntarily.

How and when a person can revoke their consent is set out below in section 6.

=== 2. Notifying the Director of Adoption ===

Within 14 days after receiving a child into their home for the purposes of adoption, the prospective adoptive parents must notify, in writing, the Director of Adoptions or an adoption agency (s 12).

A person wishing to apply to adopt must notify the Director of Adoption in writing of their intention (s 31) at least 30 days before filing the application unless:

*The child has been placed in a licensed adoption agency;
*The child is related to the applicant by blood; or
*The applicant is the child’s stepparent.

The Director of Adoption then makes an inquiry and files a report with the court before the hearing date. At least 30 days before the date fixed for the hearing of the application or an application to dispense with consent, the applicant must give a copy of the application with a notice of the date of hearing to the Director or licensed adoption agency.

The court may dispense with the times needed for the notices where the Director’s report shows good cause that the waiting period is not necessary to protect the interests of all parties (s 6(9)).

In cases of “direct placement”, potential adoptive parents must notify either the Director of Adoption or an adoption agency as soon as possible before the child is received in their home, and then in writing within 14 days after the child is received. Prior notice is required to allow the adoption agency or the Director of Adoption to receive or provide information to and from the birth and adoptive parents. Such information may include providing alternatives to the birth parents, doing a pre-placement assessment of the adoptive parents, counselling adoptive children if necessary, and ensuring that children over 12 have given informed consent.

Under s 33, a post-placement assessment must be made by either the Director of Adoption or an adoption agency, providing a recommendation on whether the adoption should be made or not, or whether insufficient information is available to make the determination.

=== 3. Adoption by the Child’s Blood Relatives or Stepparents ===

The Director of Adoption does not need to be notified or make a report where one adult may apply to the court to become a parent of a child jointly with another parent, nor where a blood relative of a child applies to adopt the child.

In the case of stepparent and blood relative adoptions, the application may not be made until the child has lived with, and been in the custody of, the applicant for at least six months prior to the application, except by order of the court. The court may still order a report from the Director. Where a report from the Director is not necessary, the material filed in support of the application should inform the court:

*In whose care the child has been since birth;
*Whether the parents have consented or proper reasons for the omission of such consent;
*How long the applicants have been married;
*The ages and occupations of the applicants;
*Whether either of the applicants has any other children living with them;
*That the applicants are able to bring up, maintain and educate the child; and
*Any unusual circumstances relevant to the application.

=== 4. Where all Parties Have Consented to Adoption ===

If all of the necessary consents have been obtained, no notice needs to be given and the application is made under Rule 17-1(24) of the ''BC Supreme Court Family Rules''. The real application is thus the Requisition made to the registry and all other documents can be “the material on which the application is founded”.

=== 5. Where Consent is Not Obtained ===

Subject to circumstances where s 42 of the ''Adoption Act'' applies, an application under s 11 of the ''Adoption Act'' dispensing with notice of a proposed adoption to a birth parent and an application under s 17 of the ''Adoption Act'' dispensing with consent to an adoption may be included in an application for an order for adoption under Supreme Court Family Rule 17-1(26). See [https://www.bccourts.ca/supreme_court/practice_and_procedure/practice_directions/family/FPD-14-Adoption_Applications.pdf Family Practice Direction 14: Adoption Applications].

=== 6. Revocation of Consent ===

Fraud, undue influence, and duress may invalidate consent. In the absence of such defect with the agreement, the court may only revoke consent if it is in the best interests of the child.

Consent may be revoked in writing before the child is placed (s 18). The birth parent may revoke their consent within 30 days of the child’s birth regardless of the child’s placement. The child may revoke consent at any time before the order is made (s 20). After the child has been placed, subject to the above, consent may be revoked only by court order and only if it would be in the best interests of the child. The application for revocation of consent must be made before the granting of the adoption order (s 22).

A person who consents to an adoption may revoke their consent prior to the child being placed if the revocation is in writing and received by the director or agency before placement.

=== 7. Checklist for Filing an Adoption ===

The necessary documents for an adoption application can be found on the BC Supreme Court website at: https://www2.gov.bc.ca/gov/content/justice/courthouse-services/documents-forms-records/court-forms/sup-family-forms

The applicant should include:

*The petitioners’ affidavit;
*Petition to the Court (Form F73);
*Affidavit of parent’s consent to adoption;
*Paternity affidavit of birth parent if no other parent is named;
*Birth parent expense affidavit, sworn by the adoptive parents;
*Requisition to have adoption heard in chambers, if necessary;
*Notice of Hearing of petition (Form F75), if necessary;
*Requisition re: Desk Order for Adoption, if the adoption is uncontested and the necessary consents have been obtained; and
*Desk Order for Adoption (no hearing necessary); and/or order after hearing in chambers.

An Adoption Package can be found at: https://www.bccourts.ca/supreme_court/self-represented_litigants/sc_info_packages/adoption_package.pdf

{{LSLAP Manual Navbox|type=chapters1-7}}

Parenting Orders, Guardianship, and Contact (3:XI)

2025-11-10T20:15:02Z

LSLAP: /* c) Parental Mobility (Under the FLA, this is referred to as Relocation which has separate considerations from that of Mobility under the DA) */

{{REVIEWED LSLAP | date= November 8, 2025}}
{{LSLAP Manual TOC|expanded = family}}

== A. General ==

Disputes over parenting time of minor children are often the most difficult issues to resolve during the breakdown of a marriage or other relationship. Parenting time decisions can always be changed; however, a material change of circumstances must be established. Thus, the decision about who gets interim parenting time is particularly important. Children usually stay with the parent who has provided primary care in the past and who can spend the most time with them. In most cases, courts will order a form of shared parenting time on an interim basis so that neither parent’s position is prejudiced. The best interest of the child is the '''only''' consideration in determining parenting time, contact, and parenting arrangements (''DA'', s 16(1)). The primary consideration in determining the child’s best interest will be given to the child’s physical, emotional, and psychological safety, security, and wellbeing (''DA'', s 16(2)). For all further factors please see '''[[Parenting Orders, Guardianship, and Contact (3:XI)#D. Parenting Time|Section XI Part D: Parenting Time]]''' or s 16(3) of the ''Divorce Act''.

In addition to parenting time, courts can also make decisions regarding guardianship of minor children. Guardianship gives a parent or other person “a full and active” role in determining the course of a child’s life and upbringing (see e.g. ''[https://canlii.ca/t/23r7t Charlton v Charlton]'', [1980] BCJ No 22). There is considerable overlap between the two, but it is useful to note that while having parenting time usually includes having guardianship, the reverse is often not true. This distinction is impacted somewhat by the ''FLA'' as the term “Guardianship” subsumes all the rights and responsibilities of a parent.

The case law on parenting time and guardianship has developed to the point where there is a presumption in favour of joint parenting time (defined on p. 51). A parent seeking sole parenting time will generally have to show that there is a serious defect in the other person’s parenting skills, that the other person is geographically distant, or that the parents are utterly unable to communicate without fighting before the Court will consider granting such an application, and in the last case, the Court may explore other options such as Parenting Coordination or parcelling out decision making and responsibilities to address the communication issue instead of granting sole parenting time to one parent.

== B. Legislation ==

=== 1. Divorce Act ===

The ''DA'' only speaks of contact and parenting time. Under s 16, the Supreme Court may make an order for parenting time. This order will supersede any existing ''FLA'' orders, which cover parenting time, contact, and guardianship, and can be registered for enforcement with any other Superior Provincial Court in Canada. The Supreme Court can also grant interim parenting time before a divorce action is heard.

The ''DA'' applies only to married couples. Under the Act, the person making the application for parenting time must have been “habitually resident” in the province for at least one year prior.

The court will only consider the best interest of the child while making a parenting order or contact order and when allocating parenting time (''DA'' s 16(1)). Subsections 16(2-6) outline the factors under consideration when “best interest of the child” is assessed. Subsection 16(4) outlines the role of family violence in assessing the best interests of the child (see '''[[Family Violence (3:VIII)]]''').

Amendments to the ''DA'' have resulted in changes to the terms of guardianship:

*Replacing of the terms “custody” and “custody order” with “parenting time” and “parenting order”.
*Using the term “contact order” to characterize time spent with someone other than a spouse, including grandparents.
*Adding the term “decision-making responsibility” to define a non-exhaustive list of areas of significant weight and how decisions about those areas must be made (with the “best interests of the child” in mind).

The aim of these changes is to emphasize the “best interests of the child” by focusing on relationships with children.

=== 2. Family Law Act ===

The ''Act'' contains the following definitions surrounding guardianship:

*Defining “guardianship” through a list of “parental responsibilities” that can be allocated to allow for more customized parenting arrangements.
*Provide that parents retain responsibility for their children upon separation if they have lived together with the child after the child’s birth. (Note: this does not mean that the law presumes an automatic 50-50 split of parental responsibilities or parenting time.) If they have not, the parent with whom the child lives is the guardian.

Under the ''FLA'', only guardianship will be considered. Additionally, the “best interests of the child” is not the paramount consideration under the ''FLA''; it is the '''only''' consideration.

== C. Courts ==

=== 1. Supreme Court ===

The Supreme Court has jurisdiction to deal with all matters relating to parenting time, guardianship, and access to children, pursuant to the ''DA'', the ''FLA'', and the ''CFCSA''. The Court almost never deals with the ''CFCSA'' unless there is the matter of adoption to be considered. The Supreme Court also has jurisdiction over orders restraining contact or entry to the matrimonial home.

The Supreme Court has ''parens patriae'' jurisdiction over all children in the province. In operation, this can allow the Court to transcend the statutory letter of the law in drafting orders that best represent the best interests of the child.

A written agreement about parenting time or guardianship may be given the force of a court order under section 44 of the ''FLA''.

An order made under the ''DA'' can be registered for enforcement in any other province’s Supreme Court registry.

=== 2. Provincial Court ===

The Provincial Court has jurisdiction to deal with all matters relating to parenting time, guardianship, access to children, and the ''CFCSA''. This includes restraining orders but does not include orders restraining entry to the matrimonial home. A written agreement about parenting time or guardianship may be given the force of a court order, or under s 44 of the ''FLA'', if it is filed in court.

== D. Parenting Time ==

In the absence of a court order or a written agreement, parenting time of a child remains with the person with whom the child usually resides. One must bear in mind that the ''Act'' does not touch on day-to-day life until it is invoked, usually by filing a lawsuit or by making an application.

=== 1. Factors in Awarding Parenting Time ===

The factors that the Court must consider in determining the “best interests of the child” are set out in s 37 of the ''FLA'':

:(a) The child's health and emotional well-being;
:(b) The child's views, unless it would be inappropriate to consider them;
:(c) The nature and strength of the relationships between the child and significant persons in the child's life;
:(d) The history of the child's care;
:(e) The child's need for stability, given the child's age and stage of development;
:(f) The ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise the person's responsibilities;
:(g) The impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;
:(h) Whether the actions of a person responsible for family violence indicate that the person may be impaired in the person's ability to care for the child and meet the child's needs;
:(i) The appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;
:(j) Any civil or criminal proceeding relevant to the child's safety, security or well-being.

And under s 16(1-6) of the ''DA'':

:(1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.
:(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional, and psychological safety, security and well-being.
:(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including
::(a) The child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
::(b) The nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
::(c) Each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
::(d) The history of care of the child;
::(e) The child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
::(f) The child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
::(g) Any plans for the child’s care;
::(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;
::(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;
::(j) Any family violence and its impact on, among other things,
:::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
:::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; and
::(k) Any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security, and well-being of the child.
:(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:
::(a) The nature, seriousness and frequency of the family violence and when it occurred;
::(b) Whether there is a pattern of coercive and controlling behaviour in relation to a family member;
::(c) Whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;
::(d) The physical, emotional and psychological harm or risk of harm to the child;
::(e) Any compromise to the safety of the child or other family member;
::(f) Whether the family violence causes the child or other family member to fear for their own safety or for that of another person;
::(g) Any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and
::(h) Any other relevant factor.
:(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.
:(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

These factors should not be viewed like a checklist. Rather, the discretionary, contextual, and complex nature of parenting time cases makes it more appropriate for the factors to be viewed holistically. Similarly, these factors do not necessarily form an exhaustive list of the factors to be considered. The best interest argument is often expansive, considering a range of factors illuminated at both the statutory and common-law level.

The Court will generally consider the child’s health and emotional well-being, their education, training, love, affection, and similar ties that exist between the child and other persons such as relatives and family friends. If appropriate, the views of the child will be considered. For a parenting order relating to a teenager to be practical, it must reasonably conform to the wishes of the child ([http://canlii.ca/t/1dxml ''O’Connell v McIndoe]'', (1998), 42 R.F.L. (4th) 77 (BCCA), [http://canlii.ca/t/23fnw ''Alexander v Alexander]'', (1988), 15 R.F.L. (3d) 363 (BCCA)).

Other factors have emerged through the common law, including a preference that siblings remain together and a willingness to look into the character, personality, and moral fitness of each parent. However, there is no presumption against the separation of siblings ''(P (AH) v P (AC)'', 1999 BCCA 203). The welfare of the child is not determined solely on the basis of material advantages or physical comfort, but also considers psychological, spiritual, and emotional factors ([http://canlii.ca/t/1fv1n ''King v Low]'',(1985), 44 R.F.L. (2d) 113 (SCC)). The Court will take into account the personality, character, stability, and conduct of a parent, if appropriate ([http://canlii.ca/t/23fhc ''Bell v Kirk]'', (1986), 3 R.F.L. (3d) 377 (BCCA)).

Agreements between parties regarding parenting time do not oust the Court’s jurisdiction. An agreement is important, but only one of several factors to be taken into consideration when determining the best interests of the child. The degree of bonding between child and parent is also taken into consideration. The biological link does not outweigh other considerations, but when all other factors are equal, the parenting time of the child is best served with the biological parents ([http://canlii.ca/t/1fnkk ''L (A) v K (D)]'',2000 BCCA 455; [http://canlii.ca/t/1kvhg ''H (CR) v H. (BA)]'', 2005 BCCA 277).

Race and aboriginal heritage are relevant considerations, but neither is determinative of parenting time alone. The importance of race differs in adoption cases, where it may be given more weight because the Court is making a decision about the child’s exposure to their race or culture ([http://canlii.ca/t/51z8 ''Van de Perre v Edwards]'', 2001 SCC 60). Aboriginal heritage is to be weighed along with other factors in a determination of a child’s best interests ([http://canlii.ca/t/1f50z ''H (D) v M (H)]'', [1997<nowiki>]</nowiki> BCJ No 2144 (QL) (SC)).

Clients may wish to vary a parenting order. The threshold for a variation of a parenting or access order is a material change in the circumstances affecting the child. There is no legal presumption in favour of the custodial parent, although that parent’s views are entitled to respect. The focus is on the best interests of the child, not the interests and rights of the parents ([http://canlii.ca/t/1fr99 ''Gordon v Goertz]'', [1996<nowiki>]</nowiki> 2 SCR 27).

Section 211 of the ''FLA'' allows the Court to order an assessment by a psychologist of each party’s parenting abilities and relationship with the child. These reports are particularly important where the dispute over parenting time is bitter and unlikely to settle. An assessment provides the Court with an independent and neutral expert opinion. Where expert evidence would assist the Court, the Court can order an ''FLA'' Section 211 report ([http://canlii.ca/t/4xfd ''Gupta v Gupta]'', 2001 BCSC 649).

=== 2. Types of Parenting Orders ===

Parenting orders refer to orders made under s 16.1(1) of the ''DA'' regarding parenting time and decision-making responsibilities.

==== a) Interim Orders ====

An interim order is a temporary order made once the proceedings have commenced but before the final order is pronounced. Courts will usually make interim parenting orders while an action in divorce is underway, with an eye to the child’s immediate best interests. Courts tend to favour stability, so an interim order is likely to favour the party with parenting time at the time of the marriage breakdown. This presumption toward stability can give an interim order substantial weight in determining a final parenting order.

==== b) Sole Parenting Time ====

Sole parenting time, in which one parent provides the primary residence and is mostly responsible for day-to-day care, can be granted in cases where the parents request such an arrangement, where they live far apart, or where relations between the parties are so poor as to preclude cooperation.

'''NOTE''': The concept of “full parenting time” does not exist. A parent using this term is most likely referring to sole parenting time.

==== c) Joint Parenting Time ====

In joint parenting time, both parents have parenting time with the child. While the child may reside primarily with one parent, the parents cooperate in raising the child, acting as both joint custodians and guardians of the child. '''In British Columbia, there is a presumption toward joint parenting time. '''

==== d) Shared Parenting Time ====

“Shared parenting time” is a term used by the Federal Child Support Guidelines, but not by either the ''DA'' or the ''FLA''. Shared parenting time is a form of joint parenting time in which the child spends an almost equal time with each parent. Typically, the child would be switching homes on a frequent basis, such as every few days or once a week. This usually requires that the parents live near one another and have good communication skills. It also requires that the child is able to adapt to living in two homes. Any agreement for shared parenting time will affect child support.

==== e) Split Parenting Time ====

“Split parenting time” is a term used by the Federal Child Support Guidelines, and not by either the ''DA'' or the ''FLA''. On rare occasions, courts will order siblings to live with separate parents. This is usually a drastic solution, ordered only after an ''FLA'' section 211 report (a court-ordered report respecting the needs of a child, the views of a child, and the ability and willingness of one of the parents to satisfy the needs of a child) is submitted to the Court. A split parenting time order will affect child support.

=== 3. Other Parenting Time Issues ===

==== a) Consent Orders ====

Where there is agreement on the terms of support or parenting time provisions, but no written agreement, a consent order may be made by the Court under s 219 of the ''FLA'' if the written consent of the party against whom the order is to be enforced has been obtained. The order can extend only to the terms consented to.

==== b) Enforcement of Parenting Time Orders ====

Where a parenting order is in force, the Court may make an order prohibiting interference with a child. The Court may further order sureties and/or documents from the person against whom the order is made and require that person to report to the Court for a period of time (''FLA'', s 183).

Under the ''FLA'', police officer enforcement clauses can only be granted when there has been a breach of an order (s 231).

A child abducted and taken elsewhere within the province will be returned to their rightful custodian. Abduction is an offence under the ''FLA'', s 188 that carries a possibility of criminal proceedings (''[https://canlii.ca/t/56hjs Criminal Code]'', RSC 1985, c C-46, ss 280-281). The ''Criminal Code'' makes it an offence for a non-custodial parent to abduct a child. Where a parenting order is in effect, abduction amounts to contempt of Court.

==== c) Parental Mobility (Under the ''FLA'', this is referred to as Relocation which has separate considerations from that of Mobility under the ''DA'') ====

Relocation is defined and explained under Division 6 of the ''FLA''. It considers relocation of a child that can reasonably be expected to have a significant impact on the child’s relationship with his/her guardian(s) or other adults with whom the child has a significant relationship (s 65). The guardian intending to relocate with the child must provide 60-day written notice to all other guardians and persons having contact with the child (s 66). The notice must include the date of the relocation, and the name of the proposed location. Exemptions to these requirements can be granted by the Court if they are satisfied that the notice cannot be given without incurring a risk of family violence by another guardian or a person having contact with the child or there is no ongoing relationship between the child and the other guardian or the person having contact with the child (s 66(2)).

The child’s other guardian(s) can object to the relocation within 30 days of receiving the notice. If an objection is made, the guardian requesting the relocation must satisfy the court that (s 69(4)(a)):

:(i) The proposed relocation is made in good faith, and
:(ii) The relocating guardian has proposed reasonable and workable arrangements to preserve the relationship between the child and the child's other guardians, persons who are entitled to contact with the child, and other persons who have a significant role in the child's life.

When considering the good faith requirement, the Court must consider (s 69(6)):

:(a) The reasons for the proposed relocation;
:(b) Whether the proposed relocation is likely to enhance the general quality of life of the child and, if applicable, of the relocating guardian, including increasing emotional well-being or financial or educational opportunities;
:(c) Whether notice was given under section 66 [notice of relocation];
:(d) Any restrictions on relocation contained in a written agreement or an order.

Issues of parental mobility may arise in conjunction with parenting time issues. That is, one parent may wish to relocate away from another parent with whom they share parenting time. In ''[https://canlii.ca/t/1fr99 Gordon v Goertz]'', [1996] 5 WWR 457 (SCC), the Supreme Court of Canada set out the basic principles for the ''DA''. Once the parent applying for the change meets a threshold requirement of demonstrating a material change in the circumstances affecting the child, the Court is required to begin a fresh inquiry into what is in the best interests of the child. Factors to be considered include: the desirability of maximizing contact between the child and both parents, the disruption to the child, and the child’s views.

[http://canlii.ca/t/1fmfc ''One v One]'', 2000 BCSC 1584, also a ''DA'' case, identifies the following list of factors to be considered in determining whether a proposed move is in a child’s best interests:

#The parenting capabilities of and the child’s relationship with parents and their new partners;
#Employment, security and prospects of the parents and, where appropriate, their partners;
#Access to and support of extended family;
#The difficulty of exercising the proposed access and the quality of the proposed access if the move is allowed;
#The effect of the move on the child’s academic situation;
#The psychological and emotional well-being of the child;
#The disruption of the child’s existing social and community support and routine;
#The desirability of the proposed new family unit for the child;
#The relative parenting capabilities of either parent and the respective ability to discharge parenting responsibilities;
#The child’s relationship with both parents;
#The separation of siblings;
#The retraining or educational opportunities for the moving parent.

== E. Contact ==

To gain contact with a child, a non-guardian can either arrange it unofficially with the guardian or seek a contact order.

Contact Orders are used to provide arrangements for '''non-guardians''' under the ''DA''. Anyone who wants a contact order under the Divorce Act must seek leave to apply (''DA'', s 15.5(3)).

Under the ''FLA'', the terms are "parenting time" for guardians, or "contact" for non-guardians. Some parents are not considered guardians and the law recognizes the child’s right to have a relationship with both parents whenever possible.

'''NOTE''': It is important to note that contact/parenting time is a distinct and separate issue from child support. Denial of contact/parenting time is not grounds to withhold support; nor is a failure to pay support grounds for withholding contact/parenting time.

== F. Guardianship ==

Guardianship may be the most important aspect of any legal arrangements concerning the care and control of the children. Guardianship encompasses the whole bundle of rights and obligations involved in parenting a child, including making decisions about the child’s school, moral instruction, religion, health care, dental care, extracurricular activities, etc.

Under the ''FLA'', guardianship is primarily governed by sections 39, 41, and 42.

Parents can also appoint a guardian in a will. If the parents are both dead or have abandoned the child, the Public Guardian and Trustee becomes the child’s guardian.

While a child’s parents are living together and after the child’s parents separate, each parent of the child is presumed to be the child’s guardian (s 39). Upon marital breakdown, this can change either by agreement or by order of the Court.

Section 39 of the ''FLA'' also provides for three other scenarios under which a parent is presumed to be a guardian. A parent who has never resided with a child is not the child’s guardian unless:

#There is an agreement made under section 30 of the ''FLA'',
#The parent and all the child’s guardians make an agreement providing that the parent is also a guardian, or
#The parent regularly cares for the child.

Additionally, a person does not become a child’s guardian by reason only of marriage or a marriage-like relationship.

At the time of birth, the two parents of a child are presumed to be its biological parents unless the child was born as a result of assisted reproduction (section 26, ''FLA''). Assisted reproduction has, at present, always included the use of one or more of donated eggs, donated sperm, and the cooperation of a woman who is willing to carry the baby to term. Section 24 of the ''FLA'' clarifies that a donor of eggs or sperm is not the parent of a child on the basis of their biological contribution alone – donors cannot be made to pay child support unless there is some other connection to the child which justifies holding that the person is a parent under the ''FLA''. If a donor wishes to be regarded as a parent, written agreements can be drafted and signed before the child’s birth which would substantiate their parental claim under the ''FLA''. Unlike donors, surrogates are presumed to be a parent of the child under the ''FLA'' since they are the birth parent. However, this presumption can be overcome by the intended parents and the surrogate signing a written agreement before the child is conceived which states that the surrogate will not be a parent to that child. Without such an agreement, the surrogate and sperm-providing parent would be the presumed parents.

=== 1. Responsibilities of a Guardian ===

Section 41 of the ''FLA'' lists out the parental responsibilities with respect to a child:

:a) Making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child;
:b) Making decisions respecting where the child will reside;
:c) Making decisions respecting with whom the child will live and associate;
:d) Making decisions respecting the child's education and participation in extracurricular activities, including the nature, extent and location;
:e) Making decisions respecting the child's cultural, linguistic, religious and spiritual upbringing and heritage, including, if the child is an aboriginal child, the child's aboriginal identity;
:f) Subject to section 17 of the Infants Act, giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the child;
:g) Applying for a passport, licence, permit, benefit, privilege or other thing for the child;
:h) Giving, refusing or withdrawing consent for the child, if consent is required;
:i) Receiving and responding to any notice that a parent or guardian is entitled or required by law to receive;
:j) Requesting and receiving health, education or other information respecting the child from third parties;
::(i) Subject to any applicable provincial legislation,
::(ii) Starting, defending, compromising, or settling any proceeding relating to the child, and
:k) Identifying, advancing, and protecting the child's legal and financial interests;
:l) Exercising any other responsibilities reasonably necessary to nurture the child's development.

Section 42 of the ''FLA'' defines parenting time as time that a child is with a guardian. During this parenting time, a guardian may exercise the parental responsibility of making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child.

=== 2. Guardianship Orders ===

A person who is not a parent or a parent who is not a guardian may become a guardian of the child by court order, pursuant to section 50 of the ''FLA''. The person applying to court for a guardianship order must demonstrate why it would be in the best interests of the child and provide notice to all of the child’s guardians and adults with whom the child resides (s 51). If the child is over 12, the child’s written consent is also required.

The evidentiary requirements to obtain a Guardianship order are set out under the ''Supreme Court Family Rules'' Rule 15-2.1 and the ''Provincial Court Family Rules'' Rules 26, 51, and 172. The applicant must provide:

:1. An affidavit (The Guardianship Affidavit (Form 5) for provincial jurisdiction and a Form F101 for Supreme Court) requires the following information:

::a. The nature and length of the applicant’s relationship with the child,
::b. The child's living arrangements,
::c. A detailed plan for how the applicant is going to care for the child,
::d. Information about any other children in the applicant’s care,
::e. Information about any incidents of family violence that may affect the child, and
::f. Information about any family or child protection court proceedings the applicant has been involved in;

:2. A Ministry of Children and Family Development records check;

:3. A Protection Order Registry records check; and

:4. A criminal record check.

If an application is made for guardianship of a treaty First Nation’s child, the child’s First Nation’s government must be served notice of the application and has standing in the proceeding (ss 208 and 209 of the ''FLA'').

=== 3. Terminating Guardianship ===

Sole guardianship and joint guardianship are not terms used in the ''FLA''. The parents or a court may decide that one parent should be the only guardian of the child. This terminates the presumption of guardianship for the other parent. The parents may terminate one parent’s guardianship via written agreement (s 39). The court can terminate one parent’s guardianship pursuant to section 51 of the ''FLA''. This is an extreme step, taken only when one parent has been shown to be either uninterested in or incapable of proper parenting.

=== 4. Both Parents are Guardians ===

Under the ''FLA'', the standard guardianship agreement, wherein both parents are or remain guardians, is structured such that parental responsibilities and parenting time are specified in the agreement, with specific provisions which govern the allocation of parenting responsibilities. If no such provisions are included, then each party may exercise all parental responsibilities in consultation with the other guardians (''FLA'' section 40(2)).

The following are standard elements typically included in guardianship agreements:

:a) Both parents equally have all of the parental responsibilities of guardians [with any exceptions listed].
:b) A guardian, after becoming aware of important information relating to the child not known to the other guardian(s), must immediately notify the other guardian(s) about that information.
:c) Subject to other clauses in the agreement, both guardians must consult about any important decisions that must be made and try to reach agreement concerning these important decisions.
:d) During parenting time, a guardian may exercise the parental responsibility of making day-to-day decisions affecting the child provided that the guardian must advise the other parent of any matters of a significant nature affecting the child.
:e) Optionally, the agreement may specify that if one guardian dies, the remaining guardian will assume all parenting responsibilities.

Also, agreements will typically include a dispute resolution clause which governs the situation where the guardians cannot reach agreement over one of their shared responsibilities. The options include:

:a) One parent has the final word; however, the other party can apply to court if they disagree with the deciding parent. In particularly high-conflict cases, giving one parent decision-making authority may be the only solution (''[https://canlii.ca/t/gpphm Friedlander v Claman]'', 2015 BCSC 2409);
:b) The parties go to mediation, wherein the mediator will have the final word if the parties cannot agree;
:c) The parties go to a parenting coordinator who has decision-making authority;
:d) Other collaborative law processes; or
:e) The parties can resolve the matter in court.

=== 5. Relocation ===

Division 6 of Part 4 of the new ''FLA'' states that if you are a child’s guardian and you want to relocate with the child, you must give any other person who can contact the child 60 days’ notice which includes both the date of the relocation and the name of the proposed location.

The Court may grant an exemption to give notice if it is satisfied that notice cannot be given without incurring a risk of family violence by another guardian or a person having contact with the child or there is no ongoing relationship between the child and the other guardian or the person having contact with the child. Once notice is given, a child’s guardians and persons having contact with the child must use their best efforts to resolve any issues relating to the proposed relocation. The proposed relocation may occur unless another guardian of the child files an application to prohibit the relocation within 30 days of receiving notice. The Court will make its decision based on s 37 of the ''FLA'' considering what would be in the best interests of the child.

== G. Parenting Responsibilities and Parenting Time ==

=== 1. Family Law Act ===

According to section 42 of the ''FLA'', parenting time refers to the amount of time that a child spends under the care of a guardian, as determined by an order or agreement. When the child is under their care, guardians assume responsibility for day-to-day care and decision-making for the child (please see section 41 of the ''FLA'' for a range of parenting responsibilities). Parenting time and responsibilities may or may not be allocated equally amongst guardians, and guardians may or may not be required to consult with one another depending on the terms of the order or agreement.

Decisions as to parenting time and responsibilities are determined according to the best interests of the child only. Section 40 of the ''FLA'' notes that the equal division of parenting time and parenting responsibilities is not presumed to be in the best interests of the child, nor should it be presumed that it is inherently better to make decisions separately or jointly. Guardians should not expect that they are entitled to equal sharing of parenting time or parenting responsibility. The best interests of the child are determined by weighing the following non-exhaustive list of considerations set out in section 37(2) of the ''FLA'':

:a. The child's health and emotional well-being;
:b. The child's views, unless it would be inappropriate to consider them;
:c. The nature and strength of the relationships between the child and significant persons in the child's life;
:d. The history of the child's care;
:e. The child's need for stability, given the child's age and stage of development;
:f. The ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;
:g. The impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;
:h. Whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs;
:i. The appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;
:j. Any civil or criminal proceeding relevant to the child's safety, security, or well-being.

A person’s conduct is considered only where their conduct stands to impact any of the above considerations regarding the best interests of the child.

=== 2. Divorce Act ===

Under the ''DA'', the term “parenting time” is used to refer to matters concerning the care, upbringing, and other relevant details pertaining to a child (s 2); parenting time is designated by what is referred to as a parenting order under the current ''DA''. The provisions of section 16 give a brief overview of how an order for parenting is decided and issued, including who may apply for an order, who may issue an order, and several of the court’s considerations when issuing such orders.

As of March 1, 2021, updates to the ''DA'' mean that the term “custody” was replaced by “parenting time” and “parenting responsibilities” to emphasize the importance of the needs of the child rather than on the child as a possession of a parent. Similarly, “order for custody” was replaced by “parenting order.” Section 16(1) through 16(10) were repealed and replaced with a new section entitled “Best Interests of the Child”. This section includes more expansive provisions which focus on determining parenting time and responsibilities based on the best interests of the child. The new section 16(3) provides guidance as to the factors to be considered, including:

:(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
:(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
:(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
:(d) the history of care of the child;
:(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
:(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
:(g) any plans for the child’s care;
:(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;
:(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;
:(j) any family violence and its impact on, among other things,
::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
::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; and
:(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

The updated ''DA'' also sets out the required contents of a parenting order (s 16.1(4)). A parenting order allocates parenting time—and, correspondingly day-to-day decision-making responsibilities—and may include a schedule and permitted means of communication between a child and a person with parenting responsibilities. Parenting orders submitted by consent by the parties must be mutually agreed to when submitted, though a court may modify according to the best interests of the child.

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Parenting Orders, Guardianship, and Contact (3:XI)

2025-11-10T20:13:01Z

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== A. General ==

Disputes over parenting time of minor children are often the most difficult issues to resolve during the breakdown of a marriage or other relationship. Parenting time decisions can always be changed; however, a material change of circumstances must be established. Thus, the decision about who gets interim parenting time is particularly important. Children usually stay with the parent who has provided primary care in the past and who can spend the most time with them. In most cases, courts will order a form of shared parenting time on an interim basis so that neither parent’s position is prejudiced. The best interest of the child is the '''only''' consideration in determining parenting time, contact, and parenting arrangements (''DA'', s 16(1)). The primary consideration in determining the child’s best interest will be given to the child’s physical, emotional, and psychological safety, security, and wellbeing (''DA'', s 16(2)). For all further factors please see '''[[Parenting Orders, Guardianship, and Contact (3:XI)#D. Parenting Time|Section XI Part D: Parenting Time]]''' or s 16(3) of the ''Divorce Act''.

In addition to parenting time, courts can also make decisions regarding guardianship of minor children. Guardianship gives a parent or other person “a full and active” role in determining the course of a child’s life and upbringing (see e.g. ''[https://canlii.ca/t/23r7t Charlton v Charlton]'', [1980] BCJ No 22). There is considerable overlap between the two, but it is useful to note that while having parenting time usually includes having guardianship, the reverse is often not true. This distinction is impacted somewhat by the ''FLA'' as the term “Guardianship” subsumes all the rights and responsibilities of a parent.

The case law on parenting time and guardianship has developed to the point where there is a presumption in favour of joint parenting time (defined on p. 51). A parent seeking sole parenting time will generally have to show that there is a serious defect in the other person’s parenting skills, that the other person is geographically distant, or that the parents are utterly unable to communicate without fighting before the Court will consider granting such an application, and in the last case, the Court may explore other options such as Parenting Coordination or parcelling out decision making and responsibilities to address the communication issue instead of granting sole parenting time to one parent.

== B. Legislation ==

=== 1. Divorce Act ===

The ''DA'' only speaks of contact and parenting time. Under s 16, the Supreme Court may make an order for parenting time. This order will supersede any existing ''FLA'' orders, which cover parenting time, contact, and guardianship, and can be registered for enforcement with any other Superior Provincial Court in Canada. The Supreme Court can also grant interim parenting time before a divorce action is heard.

The ''DA'' applies only to married couples. Under the Act, the person making the application for parenting time must have been “habitually resident” in the province for at least one year prior.

The court will only consider the best interest of the child while making a parenting order or contact order and when allocating parenting time (''DA'' s 16(1)). Subsections 16(2-6) outline the factors under consideration when “best interest of the child” is assessed. Subsection 16(4) outlines the role of family violence in assessing the best interests of the child (see '''[[Family Violence (3:VIII)]]''').

Amendments to the ''DA'' have resulted in changes to the terms of guardianship:

*Replacing of the terms “custody” and “custody order” with “parenting time” and “parenting order”.
*Using the term “contact order” to characterize time spent with someone other than a spouse, including grandparents.
*Adding the term “decision-making responsibility” to define a non-exhaustive list of areas of significant weight and how decisions about those areas must be made (with the “best interests of the child” in mind).

The aim of these changes is to emphasize the “best interests of the child” by focusing on relationships with children.

=== 2. Family Law Act ===

The ''Act'' contains the following definitions surrounding guardianship:

*Defining “guardianship” through a list of “parental responsibilities” that can be allocated to allow for more customized parenting arrangements.
*Provide that parents retain responsibility for their children upon separation if they have lived together with the child after the child’s birth. (Note: this does not mean that the law presumes an automatic 50-50 split of parental responsibilities or parenting time.) If they have not, the parent with whom the child lives is the guardian.

Under the ''FLA'', only guardianship will be considered. Additionally, the “best interests of the child” is not the paramount consideration under the ''FLA''; it is the '''only''' consideration.

== C. Courts ==

=== 1. Supreme Court ===

The Supreme Court has jurisdiction to deal with all matters relating to parenting time, guardianship, and access to children, pursuant to the ''DA'', the ''FLA'', and the ''CFCSA''. The Court almost never deals with the ''CFCSA'' unless there is the matter of adoption to be considered. The Supreme Court also has jurisdiction over orders restraining contact or entry to the matrimonial home.

The Supreme Court has ''parens patriae'' jurisdiction over all children in the province. In operation, this can allow the Court to transcend the statutory letter of the law in drafting orders that best represent the best interests of the child.

A written agreement about parenting time or guardianship may be given the force of a court order under section 44 of the ''FLA''.

An order made under the ''DA'' can be registered for enforcement in any other province’s Supreme Court registry.

=== 2. Provincial Court ===

The Provincial Court has jurisdiction to deal with all matters relating to parenting time, guardianship, access to children, and the ''CFCSA''. This includes restraining orders but does not include orders restraining entry to the matrimonial home. A written agreement about parenting time or guardianship may be given the force of a court order, or under s 44 of the ''FLA'', if it is filed in court.

== D. Parenting Time ==

In the absence of a court order or a written agreement, parenting time of a child remains with the person with whom the child usually resides. One must bear in mind that the ''Act'' does not touch on day-to-day life until it is invoked, usually by filing a lawsuit or by making an application.

=== 1. Factors in Awarding Parenting Time ===

The factors that the Court must consider in determining the “best interests of the child” are set out in s 37 of the ''FLA'':

:(a) The child's health and emotional well-being;
:(b) The child's views, unless it would be inappropriate to consider them;
:(c) The nature and strength of the relationships between the child and significant persons in the child's life;
:(d) The history of the child's care;
:(e) The child's need for stability, given the child's age and stage of development;
:(f) The ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise the person's responsibilities;
:(g) The impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;
:(h) Whether the actions of a person responsible for family violence indicate that the person may be impaired in the person's ability to care for the child and meet the child's needs;
:(i) The appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;
:(j) Any civil or criminal proceeding relevant to the child's safety, security or well-being.

And under s 16(1-6) of the ''DA'':

:(1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.
:(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional, and psychological safety, security and well-being.
:(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including
::(a) The child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
::(b) The nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
::(c) Each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
::(d) The history of care of the child;
::(e) The child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
::(f) The child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
::(g) Any plans for the child’s care;
::(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;
::(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;
::(j) Any family violence and its impact on, among other things,
:::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
:::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; and
::(k) Any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security, and well-being of the child.
:(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:
::(a) The nature, seriousness and frequency of the family violence and when it occurred;
::(b) Whether there is a pattern of coercive and controlling behaviour in relation to a family member;
::(c) Whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;
::(d) The physical, emotional and psychological harm or risk of harm to the child;
::(e) Any compromise to the safety of the child or other family member;
::(f) Whether the family violence causes the child or other family member to fear for their own safety or for that of another person;
::(g) Any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and
::(h) Any other relevant factor.
:(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.
:(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

These factors should not be viewed like a checklist. Rather, the discretionary, contextual, and complex nature of parenting time cases makes it more appropriate for the factors to be viewed holistically. Similarly, these factors do not necessarily form an exhaustive list of the factors to be considered. The best interest argument is often expansive, considering a range of factors illuminated at both the statutory and common-law level.

The Court will generally consider the child’s health and emotional well-being, their education, training, love, affection, and similar ties that exist between the child and other persons such as relatives and family friends. If appropriate, the views of the child will be considered. For a parenting order relating to a teenager to be practical, it must reasonably conform to the wishes of the child ([http://canlii.ca/t/1dxml ''O’Connell v McIndoe]'', (1998), 42 R.F.L. (4th) 77 (BCCA), [http://canlii.ca/t/23fnw ''Alexander v Alexander]'', (1988), 15 R.F.L. (3d) 363 (BCCA)).

Other factors have emerged through the common law, including a preference that siblings remain together and a willingness to look into the character, personality, and moral fitness of each parent. However, there is no presumption against the separation of siblings ''(P (AH) v P (AC)'', 1999 BCCA 203). The welfare of the child is not determined solely on the basis of material advantages or physical comfort, but also considers psychological, spiritual, and emotional factors ([http://canlii.ca/t/1fv1n ''King v Low]'',(1985), 44 R.F.L. (2d) 113 (SCC)). The Court will take into account the personality, character, stability, and conduct of a parent, if appropriate ([http://canlii.ca/t/23fhc ''Bell v Kirk]'', (1986), 3 R.F.L. (3d) 377 (BCCA)).

Agreements between parties regarding parenting time do not oust the Court’s jurisdiction. An agreement is important, but only one of several factors to be taken into consideration when determining the best interests of the child. The degree of bonding between child and parent is also taken into consideration. The biological link does not outweigh other considerations, but when all other factors are equal, the parenting time of the child is best served with the biological parents ([http://canlii.ca/t/1fnkk ''L (A) v K (D)]'',2000 BCCA 455; [http://canlii.ca/t/1kvhg ''H (CR) v H. (BA)]'', 2005 BCCA 277).

Race and aboriginal heritage are relevant considerations, but neither is determinative of parenting time alone. The importance of race differs in adoption cases, where it may be given more weight because the Court is making a decision about the child’s exposure to their race or culture ([http://canlii.ca/t/51z8 ''Van de Perre v Edwards]'', 2001 SCC 60). Aboriginal heritage is to be weighed along with other factors in a determination of a child’s best interests ([http://canlii.ca/t/1f50z ''H (D) v M (H)]'', [1997<nowiki>]</nowiki> BCJ No 2144 (QL) (SC)).

Clients may wish to vary a parenting order. The threshold for a variation of a parenting or access order is a material change in the circumstances affecting the child. There is no legal presumption in favour of the custodial parent, although that parent’s views are entitled to respect. The focus is on the best interests of the child, not the interests and rights of the parents ([http://canlii.ca/t/1fr99 ''Gordon v Goertz]'', [1996<nowiki>]</nowiki> 2 SCR 27).

Section 211 of the ''FLA'' allows the Court to order an assessment by a psychologist of each party’s parenting abilities and relationship with the child. These reports are particularly important where the dispute over parenting time is bitter and unlikely to settle. An assessment provides the Court with an independent and neutral expert opinion. Where expert evidence would assist the Court, the Court can order an ''FLA'' Section 211 report ([http://canlii.ca/t/4xfd ''Gupta v Gupta]'', 2001 BCSC 649).

=== 2. Types of Parenting Orders ===

Parenting orders refer to orders made under s 16.1(1) of the ''DA'' regarding parenting time and decision-making responsibilities.

==== a) Interim Orders ====

An interim order is a temporary order made once the proceedings have commenced but before the final order is pronounced. Courts will usually make interim parenting orders while an action in divorce is underway, with an eye to the child’s immediate best interests. Courts tend to favour stability, so an interim order is likely to favour the party with parenting time at the time of the marriage breakdown. This presumption toward stability can give an interim order substantial weight in determining a final parenting order.

==== b) Sole Parenting Time ====

Sole parenting time, in which one parent provides the primary residence and is mostly responsible for day-to-day care, can be granted in cases where the parents request such an arrangement, where they live far apart, or where relations between the parties are so poor as to preclude cooperation.

'''NOTE''': The concept of “full parenting time” does not exist. A parent using this term is most likely referring to sole parenting time.

==== c) Joint Parenting Time ====

In joint parenting time, both parents have parenting time with the child. While the child may reside primarily with one parent, the parents cooperate in raising the child, acting as both joint custodians and guardians of the child. '''In British Columbia, there is a presumption toward joint parenting time. '''

==== d) Shared Parenting Time ====

“Shared parenting time” is a term used by the Federal Child Support Guidelines, but not by either the ''DA'' or the ''FLA''. Shared parenting time is a form of joint parenting time in which the child spends an almost equal time with each parent. Typically, the child would be switching homes on a frequent basis, such as every few days or once a week. This usually requires that the parents live near one another and have good communication skills. It also requires that the child is able to adapt to living in two homes. Any agreement for shared parenting time will affect child support.

==== e) Split Parenting Time ====

“Split parenting time” is a term used by the Federal Child Support Guidelines, and not by either the ''DA'' or the ''FLA''. On rare occasions, courts will order siblings to live with separate parents. This is usually a drastic solution, ordered only after an ''FLA'' section 211 report (a court-ordered report respecting the needs of a child, the views of a child, and the ability and willingness of one of the parents to satisfy the needs of a child) is submitted to the Court. A split parenting time order will affect child support.

=== 3. Other Parenting Time Issues ===

==== a) Consent Orders ====

Where there is agreement on the terms of support or parenting time provisions, but no written agreement, a consent order may be made by the Court under s 219 of the ''FLA'' if the written consent of the party against whom the order is to be enforced has been obtained. The order can extend only to the terms consented to.

==== b) Enforcement of Parenting Time Orders ====

Where a parenting order is in force, the Court may make an order prohibiting interference with a child. The Court may further order sureties and/or documents from the person against whom the order is made and require that person to report to the Court for a period of time (''FLA'', s 183).

Under the ''FLA'', police officer enforcement clauses can only be granted when there has been a breach of an order (s 231).

A child abducted and taken elsewhere within the province will be returned to their rightful custodian. Abduction is an offence under the ''FLA'', s 188 that carries a possibility of criminal proceedings (''[https://canlii.ca/t/56hjs Criminal Code]'', RSC 1985, c C-46, ss 280-281). The ''Criminal Code'' makes it an offence for a non-custodial parent to abduct a child. Where a parenting order is in effect, abduction amounts to contempt of Court.

==== c) ''Parental Mobility'' (Under the ''FLA'', this is referred to as Relocation which has separate considerations from that of Mobility under the ''DA'') ====

Relocation is defined and explained under Division 6 of the ''FLA''. It considers relocation of a child that can reasonably be expected to have a significant impact on the child’s relationship with his/her guardian(s) or other adults with whom the child has a significant relationship (s 65). The guardian intending to relocate with the child must provide 60-day written notice to all other guardians and persons having contact with the child (s 66). The notice must include the date of the relocation, and the name of the proposed location. Exemptions to these requirements can be granted by the Court if they are satisfied that the notice cannot be given without incurring a risk of family violence by another guardian or a person having contact with the child or there is no ongoing relationship between the child and the other guardian or the person having contact with the child (s 66(2)).

The child’s other guardian(s) can object to the relocation within 30 days of receiving the notice. If an objection is made, the guardian requesting the relocation must satisfy the court that (s 69(4)(a)):

:(i) The proposed relocation is made in good faith, and
:(ii) The relocating guardian has proposed reasonable and workable arrangements to preserve the relationship between the child and the child's other guardians, persons who are entitled to contact with the child, and other persons who have a significant role in the child's life.

When considering the good faith requirement, the Court must consider (s 69(6)):

:(a) The reasons for the proposed relocation;
:(b) Whether the proposed relocation is likely to enhance the general quality of life of the child and, if applicable, of the relocating guardian, including increasing emotional well-being or financial or educational opportunities;
:(c) Whether notice was given under section 66 [notice of relocation];
:(d) Any restrictions on relocation contained in a written agreement or an order.

Issues of parental mobility may arise in conjunction with parenting time issues. That is, one parent may wish to relocate away from another parent with whom they share parenting time. In ''[https://canlii.ca/t/1fr99 Gordon v Goertz]'', [1996] 5 WWR 457 (SCC), the Supreme Court of Canada set out the basic principles for the ''DA''. Once the parent applying for the change meets a threshold requirement of demonstrating a material change in the circumstances affecting the child, the Court is required to begin a fresh inquiry into what is in the best interests of the child. Factors to be considered include: the desirability of maximizing contact between the child and both parents, the disruption to the child, and the child’s views.

[http://canlii.ca/t/1fmfc ''One v One]'', 2000 BCSC 1584, also a ''DA'' case, identifies the following list of factors to be considered in determining whether a proposed move is in a child’s best interests:

#The parenting capabilities of and the child’s relationship with parents and their new partners;
#Employment, security and prospects of the parents and, where appropriate, their partners;
#Access to and support of extended family;
#The difficulty of exercising the proposed access and the quality of the proposed access if the move is allowed;
#The effect of the move on the child’s academic situation;
#The psychological and emotional well-being of the child;
#The disruption of the child’s existing social and community support and routine;
#The desirability of the proposed new family unit for the child;
#The relative parenting capabilities of either parent and the respective ability to discharge parenting responsibilities;
#The child’s relationship with both parents;
#The separation of siblings;
#The retraining or educational opportunities for the moving parent.

== E. Contact ==

To gain contact with a child, a non-guardian can either arrange it unofficially with the guardian or seek a contact order.

Contact Orders are used to provide arrangements for '''non-guardians''' under the ''DA''. Anyone who wants a contact order under the Divorce Act must seek leave to apply (''DA'', s 15.5(3)).

Under the ''FLA'', the terms are "parenting time" for guardians, or "contact" for non-guardians. Some parents are not considered guardians and the law recognizes the child’s right to have a relationship with both parents whenever possible.

'''NOTE''': It is important to note that contact/parenting time is a distinct and separate issue from child support. Denial of contact/parenting time is not grounds to withhold support; nor is a failure to pay support grounds for withholding contact/parenting time.

== F. Guardianship ==

Guardianship may be the most important aspect of any legal arrangements concerning the care and control of the children. Guardianship encompasses the whole bundle of rights and obligations involved in parenting a child, including making decisions about the child’s school, moral instruction, religion, health care, dental care, extracurricular activities, etc.

Under the ''FLA'', guardianship is primarily governed by sections 39, 41, and 42.

Parents can also appoint a guardian in a will. If the parents are both dead or have abandoned the child, the Public Guardian and Trustee becomes the child’s guardian.

While a child’s parents are living together and after the child’s parents separate, each parent of the child is presumed to be the child’s guardian (s 39). Upon marital breakdown, this can change either by agreement or by order of the Court.

Section 39 of the ''FLA'' also provides for three other scenarios under which a parent is presumed to be a guardian. A parent who has never resided with a child is not the child’s guardian unless:

#There is an agreement made under section 30 of the ''FLA'',
#The parent and all the child’s guardians make an agreement providing that the parent is also a guardian, or
#The parent regularly cares for the child.

Additionally, a person does not become a child’s guardian by reason only of marriage or a marriage-like relationship.

At the time of birth, the two parents of a child are presumed to be its biological parents unless the child was born as a result of assisted reproduction (section 26, ''FLA''). Assisted reproduction has, at present, always included the use of one or more of donated eggs, donated sperm, and the cooperation of a woman who is willing to carry the baby to term. Section 24 of the ''FLA'' clarifies that a donor of eggs or sperm is not the parent of a child on the basis of their biological contribution alone – donors cannot be made to pay child support unless there is some other connection to the child which justifies holding that the person is a parent under the ''FLA''. If a donor wishes to be regarded as a parent, written agreements can be drafted and signed before the child’s birth which would substantiate their parental claim under the ''FLA''. Unlike donors, surrogates are presumed to be a parent of the child under the ''FLA'' since they are the birth parent. However, this presumption can be overcome by the intended parents and the surrogate signing a written agreement before the child is conceived which states that the surrogate will not be a parent to that child. Without such an agreement, the surrogate and sperm-providing parent would be the presumed parents.

=== 1. Responsibilities of a Guardian ===

Section 41 of the ''FLA'' lists out the parental responsibilities with respect to a child:

:a) Making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child;
:b) Making decisions respecting where the child will reside;
:c) Making decisions respecting with whom the child will live and associate;
:d) Making decisions respecting the child's education and participation in extracurricular activities, including the nature, extent and location;
:e) Making decisions respecting the child's cultural, linguistic, religious and spiritual upbringing and heritage, including, if the child is an aboriginal child, the child's aboriginal identity;
:f) Subject to section 17 of the Infants Act, giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the child;
:g) Applying for a passport, licence, permit, benefit, privilege or other thing for the child;
:h) Giving, refusing or withdrawing consent for the child, if consent is required;
:i) Receiving and responding to any notice that a parent or guardian is entitled or required by law to receive;
:j) Requesting and receiving health, education or other information respecting the child from third parties;
::(i) Subject to any applicable provincial legislation,
::(ii) Starting, defending, compromising, or settling any proceeding relating to the child, and
:k) Identifying, advancing, and protecting the child's legal and financial interests;
:l) Exercising any other responsibilities reasonably necessary to nurture the child's development.

Section 42 of the ''FLA'' defines parenting time as time that a child is with a guardian. During this parenting time, a guardian may exercise the parental responsibility of making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child.

=== 2. Guardianship Orders ===

A person who is not a parent or a parent who is not a guardian may become a guardian of the child by court order, pursuant to section 50 of the ''FLA''. The person applying to court for a guardianship order must demonstrate why it would be in the best interests of the child and provide notice to all of the child’s guardians and adults with whom the child resides (s 51). If the child is over 12, the child’s written consent is also required.

The evidentiary requirements to obtain a Guardianship order are set out under the ''Supreme Court Family Rules'' Rule 15-2.1 and the ''Provincial Court Family Rules'' Rules 26, 51, and 172. The applicant must provide:

:1. An affidavit (The Guardianship Affidavit (Form 5) for provincial jurisdiction and a Form F101 for Supreme Court) requires the following information:

::a. The nature and length of the applicant’s relationship with the child,
::b. The child's living arrangements,
::c. A detailed plan for how the applicant is going to care for the child,
::d. Information about any other children in the applicant’s care,
::e. Information about any incidents of family violence that may affect the child, and
::f. Information about any family or child protection court proceedings the applicant has been involved in;

:2. A Ministry of Children and Family Development records check;

:3. A Protection Order Registry records check; and

:4. A criminal record check.

If an application is made for guardianship of a treaty First Nation’s child, the child’s First Nation’s government must be served notice of the application and has standing in the proceeding (ss 208 and 209 of the ''FLA'').

=== 3. Terminating Guardianship ===

Sole guardianship and joint guardianship are not terms used in the ''FLA''. The parents or a court may decide that one parent should be the only guardian of the child. This terminates the presumption of guardianship for the other parent. The parents may terminate one parent’s guardianship via written agreement (s 39). The court can terminate one parent’s guardianship pursuant to section 51 of the ''FLA''. This is an extreme step, taken only when one parent has been shown to be either uninterested in or incapable of proper parenting.

=== 4. Both Parents are Guardians ===

Under the ''FLA'', the standard guardianship agreement, wherein both parents are or remain guardians, is structured such that parental responsibilities and parenting time are specified in the agreement, with specific provisions which govern the allocation of parenting responsibilities. If no such provisions are included, then each party may exercise all parental responsibilities in consultation with the other guardians (''FLA'' section 40(2)).

The following are standard elements typically included in guardianship agreements:

:a) Both parents equally have all of the parental responsibilities of guardians [with any exceptions listed].
:b) A guardian, after becoming aware of important information relating to the child not known to the other guardian(s), must immediately notify the other guardian(s) about that information.
:c) Subject to other clauses in the agreement, both guardians must consult about any important decisions that must be made and try to reach agreement concerning these important decisions.
:d) During parenting time, a guardian may exercise the parental responsibility of making day-to-day decisions affecting the child provided that the guardian must advise the other parent of any matters of a significant nature affecting the child.
:e) Optionally, the agreement may specify that if one guardian dies, the remaining guardian will assume all parenting responsibilities.

Also, agreements will typically include a dispute resolution clause which governs the situation where the guardians cannot reach agreement over one of their shared responsibilities. The options include:

:a) One parent has the final word; however, the other party can apply to court if they disagree with the deciding parent. In particularly high-conflict cases, giving one parent decision-making authority may be the only solution (''[https://canlii.ca/t/gpphm Friedlander v Claman]'', 2015 BCSC 2409);
:b) The parties go to mediation, wherein the mediator will have the final word if the parties cannot agree;
:c) The parties go to a parenting coordinator who has decision-making authority;
:d) Other collaborative law processes; or
:e) The parties can resolve the matter in court.

=== 5. Relocation ===

Division 6 of Part 4 of the new ''FLA'' states that if you are a child’s guardian and you want to relocate with the child, you must give any other person who can contact the child 60 days’ notice which includes both the date of the relocation and the name of the proposed location.

The Court may grant an exemption to give notice if it is satisfied that notice cannot be given without incurring a risk of family violence by another guardian or a person having contact with the child or there is no ongoing relationship between the child and the other guardian or the person having contact with the child. Once notice is given, a child’s guardians and persons having contact with the child must use their best efforts to resolve any issues relating to the proposed relocation. The proposed relocation may occur unless another guardian of the child files an application to prohibit the relocation within 30 days of receiving notice. The Court will make its decision based on s 37 of the ''FLA'' considering what would be in the best interests of the child.

== G. Parenting Responsibilities and Parenting Time ==

=== 1. Family Law Act ===

According to section 42 of the ''FLA'', parenting time refers to the amount of time that a child spends under the care of a guardian, as determined by an order or agreement. When the child is under their care, guardians assume responsibility for day-to-day care and decision-making for the child (please see section 41 of the ''FLA'' for a range of parenting responsibilities). Parenting time and responsibilities may or may not be allocated equally amongst guardians, and guardians may or may not be required to consult with one another depending on the terms of the order or agreement.

Decisions as to parenting time and responsibilities are determined according to the best interests of the child only. Section 40 of the ''FLA'' notes that the equal division of parenting time and parenting responsibilities is not presumed to be in the best interests of the child, nor should it be presumed that it is inherently better to make decisions separately or jointly. Guardians should not expect that they are entitled to equal sharing of parenting time or parenting responsibility. The best interests of the child are determined by weighing the following non-exhaustive list of considerations set out in section 37(2) of the ''FLA'':

:a. The child's health and emotional well-being;
:b. The child's views, unless it would be inappropriate to consider them;
:c. The nature and strength of the relationships between the child and significant persons in the child's life;
:d. The history of the child's care;
:e. The child's need for stability, given the child's age and stage of development;
:f. The ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;
:g. The impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;
:h. Whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs;
:i. The appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;
:j. Any civil or criminal proceeding relevant to the child's safety, security, or well-being.

A person’s conduct is considered only where their conduct stands to impact any of the above considerations regarding the best interests of the child.

=== 2. Divorce Act ===

Under the ''DA'', the term “parenting time” is used to refer to matters concerning the care, upbringing, and other relevant details pertaining to a child (s 2); parenting time is designated by what is referred to as a parenting order under the current ''DA''. The provisions of section 16 give a brief overview of how an order for parenting is decided and issued, including who may apply for an order, who may issue an order, and several of the court’s considerations when issuing such orders.

As of March 1, 2021, updates to the ''DA'' mean that the term “custody” was replaced by “parenting time” and “parenting responsibilities” to emphasize the importance of the needs of the child rather than on the child as a possession of a parent. Similarly, “order for custody” was replaced by “parenting order.” Section 16(1) through 16(10) were repealed and replaced with a new section entitled “Best Interests of the Child”. This section includes more expansive provisions which focus on determining parenting time and responsibilities based on the best interests of the child. The new section 16(3) provides guidance as to the factors to be considered, including:

:(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
:(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
:(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
:(d) the history of care of the child;
:(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
:(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
:(g) any plans for the child’s care;
:(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;
:(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;
:(j) any family violence and its impact on, among other things,
::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
::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; and
:(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

The updated ''DA'' also sets out the required contents of a parenting order (s 16.1(4)). A parenting order allocates parenting time—and, correspondingly day-to-day decision-making responsibilities—and may include a schedule and permitted means of communication between a child and a person with parenting responsibilities. Parenting orders submitted by consent by the parties must be mutually agreed to when submitted, though a court may modify according to the best interests of the child.

{{LSLAP Manual Navbox|type=chapters1-7}}

Assets of Couples (3:IX)

2025-11-10T20:06:53Z

LSLAP: /* 3. Supreme Court Family Rules [SCFR] */

{{REVIEWED LSLAP | date= November 8, 2025}}
{{LSLAP Manual TOC|expanded = family}}

== A. General ==

The division of property on marriage breakdown is dealt with in Part 5 of the ''FLA''. It operates on the presumption that spouses are equally entitled to family property and equally responsible for family debt (s 81). It also provides that unmarried spouses (who have lived together in a marriage-like relationship for at least two years) may avail themselves of the property and liability provisions of the FLA in Parts 5 and 6.

== B. Legislation ==

=== 1. Divorce Act [DA] ===

The ''DA'' does not deal with property division.

=== 2. Family Law Act [FLA] ===

Section 81 of the ''FLA'' outlines that each spouse is entitled to an undivided, one-half interest of family property and is equally responsible for debt upon separation (''[https://canlii.ca/t/g7f6f Stonehouse v Stonehouse]'', 2014 BCSC 1057; ''[https://canlii.ca/t/gdpwf Joffres v Joffres]'', 2014 BCSC 1778). However, spouses generally keep property they bring into a relationship and share only in the increase in value of that property and the net value of new property obtained after cohabitation or marriage.

Section 81.1 of the ''FLA'' specifies that the common law doctrines of presumption of advancement and presumption of resulting trust do not apply to questions of ownership of property between spouses.

The ''FLA'' carves out a category of ''excluded property'' under section 85. Section 85 (1) of the ''FLA'' reads as follows:

The following is excluded from family property:

:(a) Property acquired by a spouse before the relationship between the spouses began;
:(b) Inheritances to a spouse;
:(b.1) Gifts to a spouse from a third party;
:(c) A settlement or an award of damages to a spouse as compensation for injury or loss, unless the settlement or award represents compensation for
::(i) Loss to both spouses, or
::(ii) Lost income of a spouse;
:(d) Money paid or payable under an insurance policy, other than a policy respecting property, except any portion that represents compensation for
::(i) Loss to both spouses, or
::(ii) Lost income of a spouse;
:(e) Property referred to in any of paragraphs (a) to (d) that is held in trust for the benefit of a spouse;
:(f) A spouse's beneficial interest in property held in a discretionary trust
::(i) To which the spouse did not contribute, and
::(ii) That is settled by a person other than the spouse;
:(g) Property derived from property or the disposition of property referred to in any of paragraphs (a) to (f).

Any increases in the value of the excluded property that occur during the relationship are considered family property and are not excluded from division. The spouse claiming that the property in question qualifies as ''excluded property'' is responsible for demonstrating that it fits the definition under s 85(1) (''[https://canlii.ca/t/g0d8k Bressette v Henderson]'', 2013 BCSC 1661).

However, if property is excluded under s 85(1), then it remains excluded even if legal or beneficial ownership transfers from one spouse to the other.

This property division regime applies to all married spouses as well as all unmarried common-law spouses who have lived in a marriage-like relationship for at least two years. The date of separation will be the relevant date used to identify the pool of family property to be divided. However, it is the date of the hearing or agreement which determines the date of valuation of property. Spouses may choose to opt out of these property division rules but must make these different arrangements through an agreement.

Family property is defined at s 84(1):

:(a) On the date the spouses separate,
::(i) Property that is owned by at least one spouse, or
::(ii) A beneficial interest of at least one spouse in property;
:(b) After separation,
::(i) Property acquired by at least one spouse if the property is derived from property referred to in paragraph (a) (i) or from a beneficial interest referred to in paragraph (a) (ii), or from the disposition of either, or
::(ii) A beneficial interest acquired by at least one spouse in property if the beneficial interest is derived from property referred to in paragraph (a) (i) or from a beneficial interest referred to in paragraph (a) (ii), or from the disposition of either.

=== 3. Supreme Court Family Rules [SCFR] ===

The ''Supreme Court Family Rules'' contain several procedural provisions for dealing with property.

For example, Rule 12-1 allows for the detention, preservation, and recovery of property that is the subject matter of a family law case. Rule 12-4 allows for a pre-trial injunction. Rule 15-8 permits the Court to order a sale of property if it appears necessary and expedient that the property be sold. Where a dispute arises, an application can be made to the Supreme Court to settle the matter, but clients should be advised that a court action is costly. Additionally, a negotiated settlement is generally to their advantage because courts have a wide discretion to distribute family property. For example, a court could order the sale of property at a time when the housing market is poor, resulting in a low sale price. Sometimes, a spouse should consider selling their interest in a property to the other spouse.

== C. Types of Assets ==

=== 1. Family Property ===

Under section 84 of the ''FLA'', family property includes all real and personal property owned by one or both spouses at the date of separation unless the asset in question is excluded, in which case only the increase in the value of the asset during the relationship is divisible. It is no longer relevant whether an asset was ordinarily used for a family purpose in deciding if it is family property.

Pursuant to section 85 of the ''FLA'', certain property is excluded from family property, including the following:
*Property acquired by a spouse before the relationship between the spouses began;
*Gifts (from a third party) or inheritances to one spouse, unless the gift or inheritance was transferred into the parties’ joint names or the other spouse’s sole name, in which case there is an argument that it was gifted to the other spouse and becomes family property;
*Most damage awards and insurance proceeds, except those intended to compensate both spouses and the loss of income of one spouse;
*Some kinds of trust property;
:*Under s 85(e), property that is described in s 85(a) to (d) and is held in trust for the benefit of a spouse
:*A spouse’s beneficial interest in property held in a discretionary trust to which the spouse did not contribute, and that is settled by a person other than the spouse is also excluded from family property under s 85(f)

Family property is presumptively divided equally unless it would be significantly unfair to do so (ss 81 and 95 of the ''FLA'').

Family debt is divided equally, unless equal division would be significantly unfair to one spouse. The value of all property is calculated at either an agreed date, or at the date of a court hearing respecting the division of family property and family debt. Any increases in the value of the excluded property that occur during the relationship are considered family property and are not excluded from division.

=== 2. Savings ===

Under the ''FLA'', all money held by one spouse in a financial institution is considered family property and equally divisible, unless that spouse can prove that it is excluded property.

=== 3. Pensions, RRSPs, LIFs and LIRAs ===

Rights under an annuity, pension, home ownership, or registered retirement savings plan are considered family property, including each party’s Canadian Pension Plan (CPP) credits.

The division of pensions is clarified in the ''FLA''. Unless the pension is proven to be excluded property, it will be divisible. The presumption is equal division unless it would be significantly unfair based on the considerations in s 95 of the ''FLA''. If a spouse is to receive benefits at a later date, they may become a limited member of the plan. If they cease to be a limited member, then their share is transferred.

The manner in which benefits are divided depends on the type of pension plan. For plans where benefits are determined under a defined contribution provision – where the member (or someone on the member’s behalf, such as an employer) makes contributions to the account, and benefits are determined based on actual contributions and returns, similar to an RRSP – the spouse may receive a lump sum immediately (transferred to a prescribed locked-in financial vehicle), or with the consent of the plan administrator, become a limited member of the plan (s 144) and have their proportionate share administered under the same plan.

For plans where benefits are determined under a benefit formula provision – where the benefits are calculated based on a predetermined formula, often using factors such as age, pre-retirement salary, employment history, etc., rather than actual contributions – the spouse may elect to receive a lump sum only if the division is made before the pension commences, and then they will receive it only when the pension commences (in contrast to defined contribution plans, where the lump sum is received immediately). Otherwise, the spouse must become a limited member of the plan. If the division is made before the pension commences, the spouse is entitled to a separate pension payable for the ''spouse’s'' lifetime; if the division is made after the pension commences, the spouse is entitled to a portion of payments for the ''member’s'' lifetime (or until benefits terminate under the plan).

If an agreement or order regarding the benefits of a pension provides that the benefits are not divisible or is silent on entitlement to benefits, the benefits are considered to be allocated to the member (s 111).

If an agreement or order provides that the member must pay the spouse a proportionate share of benefits under a plan where the member’s pension commences and the member’s pension has not commenced, the member and spouse may agree, by the spouse giving notice to the pension administrator, to divide the benefits in accordance with Part 6 of the ''FLA'', and unless the member and spouse agree otherwise, the original agreement or order must be administered in accordance with the regulations.

BC is one of the few provinces that allow spouses to enter into a written agreement to waive the equalization of their pensionable credits under the CPP.

'''NOTE''': Bill 17, which received Royal Assent on May 11, 2023, amended the ''FLA'' to clarify that Life Income Funds (LIFs) and Locked-in Retirement Accounts (LIRAs) are considered pension benefits that can be divided under Part 6 of the ''FLA''. It also provides provisions for dividing money held in LIFs and LIRAs (s 117.1), which came into force in January 2025.

=== 4. Real Property ===

It is often necessary to take early steps to secure the title to real property when there is a separation. In fact, it is recommended for clients to file as soon as possible to avoid missing any limitation dates and preserve their claim. This is particularly so where property is registered in the name of only one spouse, and there is a risk of that party disposing of or encumbering the property, or where judgments are likely to be registered against one party’s interest, which might prejudice the other party. Under section 91 of the ''FLA'' and Rules 12-1 and 12-4 of the ''Supreme Court Family Rules'', one may request an automatic restraining order to prevent the sale or disposal of family property including real property. There are several ways of protecting a spouse’s interest.

==== a) Certificates of Pending Litigation and Caveats ====

Caveats and Certificates of Pending Litigation are warnings to potential purchasers and establish claim priority over the property from the day the Caveat or Certificate of Pending Litigation is filed. This document will defeat the presumption of claim priority given to the bona fide purchaser for value. Entitlement to a certificate of pending litigation is limited. See the ''[https://canlii.ca/t/569bk Land Title Act]'', RSBC 1996, c250 and ''Annotated Land Title Act'' by Gregory and Gregory for the procedure and forms. Note that Caveats have an expiry date and are therefore a temporary measure to protect a party’s interest.

==== b) Land (Spouse Protection) Act, RSBC 1996, c 246 ====

This Act applies where a party has elected not to commence legal proceedings but needs to protect their interest in real property. It provides an alternative to a Certificate of Pending Litigation for a married spouse (not common law) where the “property” was the “matrimonial home”. The Act allows a charge to be placed on land that will prevent disposition of the property without the written consent of the applicant for the charge (refer to the ''[https://canlii.ca/t/527w8 Land (Spouse Protection) Act]'' and the ''Land Title Act'' for the registration procedure). Note that this only applies while the parties are legally married. The charge may be struck out on the death of, or final divorce from, the applicant.

Registration of a charge by one spouse under the ''Land (Spouse Protection) Act'' prevents the other spouse from selling or encumbering their share but is not protection against a creditor who could obtain an order for sale of the house. So long as one is legally married to their spouse, one may file against the property without the other spouse’s notice or consent, to prevent the transfer of the property.

==== c) Registration of a Notice Under the Land Title Act ====

A spouse who is a party to a cohabitation agreement, a marriage agreement, or a separation agreement may file a notice in the Land Title Office regarding any lands to which the agreement relates (''FLA'' s 99). This applies to married spouses and common-law spouses who have lived in a marriage-like relationship for at least two years.

The information required in the notice includes the names and addresses of the spouses, the legal description of the land, and the provisions of the agreement relating to that land. The Registrar may then register this notice in the same manner as a charge on the land.

Once the notice is registered, there can be no subsequent registration of a lease, mortgage, transfer, etc., unless both spouses or former spouses sign a cancellation or postponement notice in the prescribed form. A spouse or former spouse may apply to the Supreme Court for an order to cancel or postpone a notice where the other party to the agreement cannot be found after reasonable search, unreasonably refuses to sign a cancellation or postponement, or is mentally incompetent.

The use of this notice also extends to mobile homes.

==== d) Supreme Court Family Rules Rule 12-1 and 12-2 and section 91 of the Family Law Act ====

Section 91 of the ''FLA'' and ''SCFR'' R 12-1 and 12-2 allow for temporary orders respecting the protection of property. On application by a party, the Supreme Court can:

*Make an order restraining the other party from disposing of any property at issue under Part 5 (property) or Part 6 (pension division);
*Make an order for the detention, custody, or preservation of any property that is the subject matter of a family law case or as to which a question may arise
*Make an order to allow the whole or party of the income of the property to be paid to a party who has an interest in it
*In the case of personal property, make an order that part of the personal property be delivered to or transferred to a party; and
*Make an order for a pre-trial injunction.

=== 5. Business Assets ===

Business property is family property unless it is excluded property under the ''FLA''.

=== 6. Companion Animals ===

Guide dogs, service dogs, animals owned as part of a business or for agricultural purposes are not considered companion animals under the ''FLA'' (s 3.1).

Spouses may agree to jointly own, share possession or give exclusive ownership or possession of a companion animal to one of the spouses (''FLA'' s 92). However, if the spouses cannot come to an agreement and the Supreme Court makes an order regarding a companion animal, it cannot order that the spouses jointly own or share possession of the animal. In making such an order, the Supreme Court must consider a variety of factors relating to the animal’s welfare (''FLA'' s 97), such as whether a party has a history of violence towards the animal.

== D. Use of Assets ==

The Court can award one spouse exclusive use of assets pending further agreement between the parties or a Court order. This can include large assets such as a home and car; or smaller assets as may be required to operate a business, or for the departing spouse’s television, computer, or books, for example.

== E. Unmarried Couples ==

Under the ''FLA'', unmarried couples who have lived in a marriage-like relationship for at least two years are treated the same way as married couples.

The courts will recognize an equitable interest of a common-law spouse in all the property and assets acquired by the couple through the joint efforts of the two spouses, although registered in the name of the other spouse (i.e. a constructive trust). The scope of constructive trusts was greatly expanded in ''[https://canlii.ca/t/1fs3f Peter v. Beblow]'', 1993 CanLII 126 (SCC), in which the Court found a constructive trust arising from the contributions made by homemaking and childcare services, which allowed for the retention of money that would otherwise be paid for such services to be used as mortgage payments. Claims in trust may be constructive (as follows), resulting (implied trusts), or express. Constructive trusts are the most common type of trust claim, where the Court imposes a trust to remedy the unjust enrichment of one party at the deprivation of the other. However, there are limits, and a court will not interfere where the elements of constructive trust are not present. A causal connection must be found to exist between the contribution made and the property in question. Refer to a general text for a more comprehensive description of the elements of constructive trust. Because common law constructive trusts are relief granted by a court, spouses can make use of both the ''FLA'' requirements for equal division and common law constructive trust principles when seeking relief for unfair division of property.

== F. Interim Relief ==

The Court may make a number of orders for interim relief under Part 5, Division 3 of the ''FLA''. This means that prior to a trial on all the issues in the proceeding, the Court may:

:*Order an interim distribution of family property that is at issue to provide money to fund (s 89):
::*Family dispute resolution,
::*All or part of a proceeding under the ''FLA'', or
::*Obtaining information or evidence in support of family dispute resolution or an application to a court.
:*Order temporary exclusive occupation and possession of the family residence by just one spouse (s 90).
:*Order restraining a spouse from disposing of any property at issue under Part 5 (property division) or Part 6 (pension division) until or unless the other spouse establishes that a claim made under Part 5 or Part 6 will not be defeated or adversely affected by the disposal of property (s 91(1)).
:*Order the possession, delivery, safekeeping, and preservation of property (s 91(2)(a)).
:*Prohibit one spouse from disposing of, transferring, converting, or exchanging into another form, property in which the application may have an interest, or vesting all or a portion of property in, or in trust for, the application (s 91(2)(b)).

== G. Limitation Period ==

See '''[[Court Procedures in Family Law (3:XV)#A. Limitation Dates|Section XV Part A: Limitation Dates]]''' for the limitation periods for beginning property division proceedings for married spouses and common-law spouses.

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Children and the Law (3:XII)

2025-11-10T19:52:20Z

LSLAP:

{{REVIEWED LSLAP | date= November 8, 2025}}
{{LSLAP Manual TOC|expanded = family}}

== A. Relevant Ages ==

=== 1. Age of Majority ===

The [http://canlii.ca/t/84gw ''Age of Majority Act]'', RSBC 1996, c 7, s 1 states that the age of majority in B.C. is 19 years. Section 1 also applies to private documents, such as wills. A person’s age is determined by the provisions set forth in s 25.1 of the [https://canlii.ca/t/5656s ''Interpretation Act]'', RSBC 1996, c 238.

=== 2. Other Relevant Ages ===

==== a) Sexual Consent ====

As of 1890, the age of consent for sexual activity was set at 14 years. Since 2008, the age of consent in Canada has been changed from 14 to '''16 years''' (Tackling Violent Crime Act, Bill C2, An Act to amend the Criminal Code and to make consequential amendments to other Acts, 39th Parliament, 2nd Session, October 2007, effective May 1st, 2008). However, if the sexual activity involves exploitative activity, such as prostitution, pornography or where there is a relationship of trust, authority or dependency, the age of consent is 18 years.

Section 150.1(3) of the ''Criminal Code'' provides what is often referred to as a “close in age” or “peer group” exception: a 12 or 13-year-old can consent to engage in sexual activity with another person who is less than two years older and with whom there is no relationship of trust, authority, or dependency. A 14 or 15-year-old can consent to engage in sexual activity with a partner who is less than five years older with whom there is no relationship of trust, authority, or dependency. An exception is also available for pre-existing marriages and equivalent relationships.

==== b) Marriage ====

Both parties to the marriage must be at least 19 years old. However, the ''Marriage Act'', RSBC 1996, c 282, provides that individuals between the ages of 16 and 19 may marry without the consent of anyone if they are a widower or widow (s 28(1)), and that other persons between the ages of 16 and 19 may marry '''if they have the consent of''':

:a) Both parents or of the parent having sole guardianship, or the surviving parent (s 28(1)(a);
:b) A lawfully appointed guardian of that person (s 28(1)(b));
:c) The Public Guardian or the Supreme Court if both parents are dead and there is no lawfully appointed guardian (s 28(1)(c)); '''or'''
:d) A judge of the Supreme Court where the person whose consent is required cannot be located, or where their consent is unreasonably withheld (s 28(2)).

No person under the age of 16 can marry unless the marriage is shown to a Supreme Court judge to be expedient and in the interest of the parties (s 29). If the parent or guardian “unreasonably or from undue motives refuses or withholds consent to the marriage,” a minor may apply to court for a declaration to allow the marriage (s 28(2)).

Section 28(6) provides that a marriage of a minor must not be solemnized, and a license must not be issued, unless a birth certificate or other satisfactory proof of age has been produced to the issuer of marriage licenses or to the religious representative.

However, s 30 provides that failure to comply with ss 28 or 29 will not invalidate a marriage that has taken place. In other words, if someone manages to get married at 15 and obtains a valid marriage license, the marriage is valid.

== B. Child Abduction ==

=== 1. Criminal Code ===

Sections 280 to 285 of the ''Criminal Code'' deal with the offences of abduction. Section 282(1) provides that:

:Every one who, being the parent, guardian or person having the lawful care or charge of a child under the age of 14 years, takes, entices away, conceals, detains, receives or harbours that child, in contravention of a custody order or a parenting order made by a court anywhere in Canada, with intent to deprive a parent or guardian, or any other person who has the lawful care or charge of that child, of the possession of that child is guilty of an indictable offence (maximum 10 years imprisonment)... or an offence punishable on summary conviction.

Section 283 creates a similar offence for circumstances in which there is no parenting order.

'''NOTE''': One should be especially careful when giving advice in parenting time disputes to avoid inadvertently giving advice that may lead to the commission of these offences. If there is evidence that a parent may abduct a child, or if there is evidence that visits are very “disturbing and harmful”, access may be denied. See ''[https://canlii.ca/t/gd0r0 Sharp v. Sharp]'', 1962 CanLII 349 (BC CA).

=== 2. Child Abduction Convention ===

The [https://www.hcch.net/en/instruments/conventions/full-text/?cid=24 ''Hague Convention on the Civil Aspects of International Child Abduction''] enables a person whose parenting time rights have been violated to apply to a “Central Authority” (each party to the convention must create such a body) for the voluntary return of the child, or to apply for a court order. Keep in mind that not every country is a signatory to the ''Hague Convention''. Applications can be made either in the person’s jurisdiction or in the jurisdiction to which the child has been abducted.

Each Central Authority has several tasks:

:1. To discover the whereabouts of the child;
:2. To take precautions to prevent harm to the child;
:3. To encourage voluntary return of the child or some other agreeable arrangement;
:4. To facilitate administrative processes; and
:5. To arrange for legal advice where necessary.

It appears that the Convention applies where the parents are formally separated and the child has been in the sole parenting time of one parent.

Finally, it should be noted that the Central Authority does not decide the merits of any parenting order. It is merely an enforcement agency.

If the child has been taken to another jurisdiction, contact

:'''Global Affairs Canada'''
:125 Sussex Drive
:Ottawa, Ontario
:K1A 0G2

For more information, see https://international.canada.ca/en/global-affairs.

A further resource in the case of abductions and violations of parenting orders is the Representative for Children and Youth at Suite 400, 1019 Wharf Street, Victoria, BC V8W 2Y9. The contact number is (250) 356-6710.

== C. Discipline ==

The ''Criminal Code'' (s 43) allows a parent, a person standing in the place of a parent, or a schoolteacher to discipline a child, by way of correction, provided that only reasonable force is used. However, section 76(3) of the [http://canlii.ca/t/84c4 ''School Act]'', RSBC 1996, c 412 requires that teachers ensure the discipline is similar to that of a kind, firm, and judicious parent, and must not include the use of corporal punishment.

The Supreme Court of Canada examined s 43 in ''[https://canlii.ca/t/1g990 Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General)]'', 2004 SCC 4 (CanLII), [2004] 1 SCR 76. The Court held that section 43 does not violate the constitutional rights of children. The discipline must be “by way of correction” meaning “only sober, reasoned uses of force that address the actual behaviour of the child and are designed to restrain, control or express some symbolic disapproval of their behaviour” (para 24). Furthermore, the Court provided a comprehensive definition of “reasonable force”:

Generally, s 43 exempts from criminal sanction only minor corrective force of a transitory and trifling nature. Based on current expert consensus, it does not apply to corporal punishment of children under two or teenagers. Degrading, inhuman, or harmful conduct is not protected. Discipline by the use of objects or blows or slaps to the head is unreasonable. Teachers may reasonably apply force to remove a child from a classroom or secure compliance with instructions, but not merely as corporal punishment. Coupled with the requirement that the conduct be corrective, this rules out conduct stemming from the caregiver's frustration, loss of temper or abusive personality.

== D. Child Protection ==

Under the ''Child, Family and Community Service Act [CFCSA]'', RSBC 1996, C 46, a Director or member of the municipal or provincial police forces can apprehend any child under the age of 19 years when the child is believed to be in need of protection or care. Section 6 lists conditions justifying temporary protective custody under this ''Act''.

Within seven days after the child’s removal, a Director must attend Supreme or Provincial Court for a presentation hearing. The Director must, if possible, inform the child, if 12 years of age or over, and each parent of the time, date, and place of the hearing. If the situation warrants it, a hearing may result in temporary (or permanent) custody of the child being given to the Director or some other agency.

=== 1. Principles ===

The ''CFCSA'' codifies child protection remedies available in B.C. It also gives specific rights to children in care under the Act (section 70). Section 6 of the ''Representative for Children and Youth Act'', SBC 2006, c 29 provides that it is the responsibility of the Representative to:

*Support, assist, inform and advise children and their families respecting designated services;
*Monitor, review, audit and conduct research on the provision of a designated service by a public body or director for the purpose of making recommendations to improve the effectiveness and responsiveness of that service, and comment publicly on any of these functions
*Review, investigate and report on the critical injuries and deaths of children as set out in Part 4

The guiding principles in section 2 of the ''CFCSA'' provide that:

#Children are entitled to be protected from abuse, neglect, harm, or threat of harm;
#The family is the preferred environment for the care and upbringing of children and the responsibility for the protection of children rests primarily with the parents;
#If, with available support services, a family can provide a safe and nurturing environment for a child, support services should be provided;
#The child’s views should be considered when decisions relating to that child are made;
#Kinship ties to extended family should be maintained;
#The cultural identity of Aboriginal children should be preserved; and
#Decisions relating to children should be made and implemented in a timely manner.

''B.C. Children and Youth Review: An Independent Review of B.C.'s Child Protection System'' (April 7, 2006) recommends a number of changes to the sections discussed in this chapter, including the appointment of a Representative for Children and Youth. The full report can be viewed online at http://cwrp.ca/sites/default/files/publications/en/BC-HuguesReviewReport.pdf.

=== 2. Best Interests of the Child ===

Section 4 of the ''CFCSA'' defines “best interests of the child” somewhat differently than does the ''FLA''. Factors that must be considered under the ''CFCSA'' include:

#The child’s safety;
#The child’s physical and emotional needs and level of development;
#Continuity in child care;
#The quality of relationships with parents;
#The child’s cultural, racial, linguistic and religious heritage;
#The child’s views; and
#The effect on the child of any delays in making a decision.

Section 4(2) mandates that, in assessing the best interests of Indigenous children, the importance of preserving the child’s cultural identity must be considered.

The ''CFCSA'' definition of when a child needs protection includes the following (s 13):

#Situations where there is a risk of physical or sexual abuse, harm, or exploitation;
#Emotional harm by a parent’s conduct;
#Deprivation of necessary health care;
#Situations where the parent is unable or unwilling to care for the child and has not made adequate provision for the child’s care; and
#Where the child has been abandoned and adequate provision has not been made for the child’s care.

See s 13 for a complete enumeration of circumstances where children need protection.

=== 3. Duty to Report Need for Protection ===

The ''CFCSA'' (s 14(1)) requires that someone who believes a child is being or is likely to be physically harmed, sexually abused, or exploited to report the matter to the Ministry of Children and Family Development. The Helpline for Children (310-1234) provides 24-hour access to social workers in case of an emergency.

Reports to the Ministry are anonymous. No action lies against a person making a report unless it is made maliciously or without reasonable grounds. Failure to report cases of abuse or exploitation constitutes an offence (s 14(3)), even when the information was confidential or privileged, '''except''' for when the information was obtained through a solicitor-client relationship (s 14(2)). The Director under the ''CFCSA'' must assess the information reported (s 16). Case law has demonstrated that the duty of the director to act is actually broader than the legislated duty: see ''[https://canlii.ca/t/1dz13 BS v British Columbia (Director of Children, Family, and Community Services)]'', [1998] 8 WWR 1 (BCCA).

=== 4. Removal ===

Under the ''Child, Family and Community Service Act [CFCSA]'', the Ministry for Children and Families has different options to deal with an unattended child (s 25), or a lost or runaway child (s 26). Pursuant to these sections, the Ministry can take the child for up to 72 hours without formally removing the child from their parents. Furthermore, the Ministry can take a child away to provide essential health care without legally removing the child, provided that the Ministry first obtains a court order under s 29 of the ''CFCSA''. In situations where there are reasonable grounds to believe that the child’s health or safety is in immediate danger, a police officer may take charge of the child (s 27).

=== 5. Removal Procedure ===

Under the ''CFCSA'', Directors are appointed to enforce the ''Act''. A Director may, without a court order, remove a child if there are reasonable grounds to believe that the child needs protection and that the child’s health or safety is in immediate danger, or no other less disruptive measure that is available is adequate to protect the child (s 30). When removing a child, a Director must make all reasonable efforts to notify each parent of the child’s removal (s 31). Practically speaking, the Director delegates their duty to social workers who then carry out the removal procedure.

=== 6. Presentation Hearing ===

The Director must attend a presentation hearing within seven days of the removal (''CFCSA'', s 34) and present a written report that includes:

#The circumstances of the removal;
#Information about less disruptive measures considered before removal; and
#An interim plan of care for the child, including, in the case of an Aboriginal child, the steps to be taken to preserve the child’s aboriginal identity (s 35).

A child who is removed under the ''CFCSA'' is put under the care of the Director until the Court makes an interim order about the child, the child is returned, or until the Court makes a parenting or supervision order (s 32). A presentation hearing is a summary hearing and must be concluded as soon as possible (normally within 30 days) (s 33.3).

If the parents consent to the interim removal, an order will be made that the child remain in the custody of the Director pending a protection hearing (see below). If the parent(s) disagree with the removal, a presentation hearing will be scheduled as soon as possible (s 33.3) to determine where the child should live pending the full protection hearing. The presentation hearing may proceed by way of affidavits or ''viva voce'' (testimonial) evidence. At the conclusion of the presentation hearing, the child may stay in the custody of the Director, may be returned to their parent(s) or may be returned to their parent(s) under supervision (s 35(2)). It is important to note that the notice of the presentation hearing need not be formally served, and informal notice is adequate.

=== 7. Protection Hearing ===

A protection hearing must start within 45 days after the conclusion of the presentation hearing (''CFCSA'', s 37(2)). The purpose of the protection hearing is to determine whether the child needs protection (s 40(1)). The Director must return the child to the parent(s) as soon as possible if it is determined that the child does not need protection (s 40(2)). A child can be returned and still be under minimum supervision of the Director or returned without supervision. If the child is returned without supervision, the proceedings are at an end (s 37(1)).

=== 8. Orders ===

Section 41 of the ''CFCSA'' outlines orders that can be made at a protection hearing:

#An order to return the child to the custody of the parents while being under the Director’s supervision for a period of up to six months;
#An order that the child be placed in the custody of a person other than the parent (e.g. a relative) with the consent of that other person and under the Director’s supervision for a specified period of time;
#An order that the child remain or be placed in the custody of the Director for a specified period of time; or
#An order that the child be placed in the continuing (permanent) custody of the Director. Continuing (permanent) orders should be made under s 49.
##The parents may consent to or oppose the order. If the parents oppose the order, a Rule 2 case conference is scheduled as soon as possible and a judge will attempt to resolve any issues in dispute (see ''Provincial Court (Child, Family and Community Service Act) Rules'', BC Reg 533/95 for a complete description). If the matter is not settled at the case conference, a date is scheduled to determine whether the child needs protection.
##The content of supervision orders is outlined in the ''CFCSA'', section 41.1. Terms and conditions that may be attached to a supervision order include:
#Services for the child’s parent(s);
#Day-care or respite care;
#The Director’s right to visit the child; and
#The Director’s duty to remove the child if the person with custody does not comply with the order.

Section 43 outlines the time limits for temporary custody orders and s 47 outlines the rights and responsibilities of a Director who has custody of a child either under an interim or temporary custody order. These rights and responsibilities include:

#Consenting to health care for the child;
#Making decisions about the child’s education and religious upbringing; and
#Exercising any other rights to carry out any other responsibilities as guardian of the child, except consent to adoption.

Temporary orders can be extended under section 44.

When a continuing custody order is made, the Director becomes the sole guardian of the person of the child and the natural parents’ legal rights to the child are extinguished. The Director may then consent to the child’s adoption. The Public Guardian becomes the sole guardian of the estate of the child. The order, however, does not affect the child’s rights with respect to inheritance or succession of property (s 50(1)). In certain cases, the Director can seek a last-chance order of up to six months (s 49(7)).

Parents can apply to set aside both temporary and continuing (permanent) orders under s 54. They are also entitled to full disclosure under s 64. Temporary custody orders may also be extended where a permanent transfer of custody is planned under s 54.01.

=== 9. Access and Consent Orders ===

Section 55 of the Child, ''Family and Community Service Act [CFCSA]'' allows parents, or other persons, to apply for an access order at the time of, or after, an interim or temporary custody order is made. Section 56 provides for applications for access by parents or other persons after a continuing custody order is made. This entitles parents to apply for access visits during any apprehension, whether interim or permanent, if the Director opposes access.

Consent orders under the ''CFCSA'' may be an advisable option for parents. A consent order is outlined in s 60, which provides that the Court may make any custody or supervision order without a finding of fact that their child actually needed protection and without an admission of any of the grounds alleged by the Director for removing the child (ss 60(4) and (5)).
A consent order requires the written consent of:

#The Director;
#The child, if 12 years of age or older;
#Each parent of the child; and
#Any person with whom the Director may be placing the child in temporary custody.

Children 12 years of age or older must be given notice of the hearings, report copies, etc.

=== 10. Rights of Children in Care of the Director ===

Section 70 of the ''Child, Family and Community Service Act [CFCSA]'' sets out the rights to which children are entitled while in care of the Director. Children in care have the right to be fed, clothed, and nurtured according to community standards; be informed about plans regarding their care; be consulted with respect to decisions affecting them; reasonable privacy and possession of their personal belongings; be free from corporal punishment; and receive medical and dental care when required. For a complete list of enumerated rights, see s 70.

=== 11. Priority in Placing Children with a Relative ===

When deciding where to place a child, the Director must consider the child’s best interests (s 71(1)). The Director must give priority to placing the child with a relative before considering a foster parent, unless that is inconsistent with the child’s best interests (s 71(2)).

Children under protection can be placed in the custody of extended family or other concerned parties (s 8). This is known as a “kith and kin” agreement. The Director may also refer the matter to a family conference co-ordinator to allow the family to reach an agreement on a “plan of care” that serves the best interests of the child (ss 20, 21).

Relatives looking after a child in their home may be eligible for the child tax benefit, the B.C. family bonus, the universal childcare benefit, and/or the child disability benefit. For more information, see https://www2.gov.bc.ca/gov/content/governments/policies-for-government/bcea-policy-and-procedure-manual/eligibility/child-in-home-of-relative.

An alternative (but not a substitute) for relatives to consider is the Extended Family Program benefits available through the Ministry of Children and Family Development (see https://www2.gov.bc.ca/gov/content/family-social-supports/fostering/out-of-care-kinship-care-options-for-children-and-youth-in-bc/temporary-out-of-care-arrangements) These benefits are intended to be temporary and the relative is not eligible if they have a guardianship order. The application for benefits must be initiated by the child’s parent.

=== 12. Priority in Placing Aboriginal Children with an Aboriginal Family ===

The Director must give priority to placing an Aboriginal child with the child’s extended family within the child’s Aboriginal community or with another Aboriginal family (s 71(3)). Section 39(1) mandates notification of the band. See also ss 2(f), 3(b) and (c), and 4(2) of the ''CFCSA''. If a child is of mixed heritage, the Ministry will generally treat the child as an Aboriginal child and notify the band accordingly.

Certain additional considerations are provided throughout the Act for an Aboriginal, Nisga’a or treaty First Nations child.

== E. Child Leaving Home or Parent Giving Up Custody of a Child ==

Children may leave home before the age of majority, or alternatively, parents may voluntarily give up legal custody of their children. Please note that “emancipation” (a legal mechanism by which a person may be legally separated from their parents before the age of majority) is not a legal remedy for children in B.C. as it is in some parts of the United States.

=== 1. Rights of the Child ===

Children may leave home as soon as they are able to support themselves. The following considerations should be kept in mind:

#Under the ''School Act'', a child must attend school until age 16 (s 3(1)(b)). It would be extremely difficult for the child to go to school and maintain a job to support themselves sufficiently at a younger age than this;
#A child under 15 needs written permission from their parent or guardian prior to working (''Employment Standards Act'', RSBC 1996, c113, s 9(1)). Additionally, a child under 12 needs the written permission of the Director of Employment Standards prior to working (s 9(2));
#Pursuant to s 26(1) of the ''Child, Family and Community Service Act [CFCSA]'', a Director may take charge of a child for a period of up to 72 hours if it appears that the child is lost or has run away. If the person responsible for the child is not located by the end of the 72-hour period, the Director no longer has charge of the child (s 26(5)). (Note that “child” is defined in the ''CFCSA'' as a person under the age of 19 years and includes a youth.); and
#A child under 19 may qualify for social assistance if they do not live with a parent or guardian, and if the ministry is convinced that no parental support is being provided.

=== 2. Giving Up Custody of a Child ===

There are two basic ways that a parent can voluntarily give up legal custody of a child under the ''Adoption Act'', RSBC 1996, c 5. This is done by transferring the rights that the parent possessed through one of the following mechanisms:

#By the parent(s) consenting to the adoption of the child by other persons (s 13(1)); or
#By a written agreement between the parent and the Director of Child, Family and Community Service where the parent transfers their rights to the Director (s 23).

== F. Child Benefits ==

=== 1. Child Disability Benefit ===

The Child Disability Benefit (CDB) is a non-taxable supplement to the Canada Child Tax Benefit (CCTB) and Children’s Special Allowance. To receive the CDB, a child must be eligible to receive the CCTB and must also qualify for the Disability Tax Credit (DTC). Not all children with disabilities qualify. For more information about eligibility visit the Canada Revenue Agency website at https://www.canada.ca/en/revenue-agency/services/child-family-benefits/child-disability-benefit.html or call 1-800-387-1193.

At the time of writing (July 2025), the CDB provides up to $3,411 per year, per child who qualifies for the disability amount, for low- and modest-income families caring for children under the age of 18 who have a severe and prolonged mental or physical impairment.

=== 2. Canada Child Benefit ===

In July 2016, the Government replaced the Universal Childcare Benefit (UCCB) and the Canadian Child Tax Benefit (CCTB) with the Canada Child Benefit (CCB), a benefit paid monthly to help eligible families provide childcare for their children under 18 years of age. At the time of writing (July 2025), the CCB provides families up to $7,997 annually for a child less than 6 years of age, and up to $6,478 annually for a child aged 6 to 17. The CCB benefit is reduced based on the family’s income and the number of children. When the family’s income exceeds $37,487 or there is more than one child in a family whose income exceeds $37,487, the CCB starts being reduced, and, eventually, the CCB benefit reaches $0. The CCB benefit is tax free. One must apply for CCB through Canada Revenue Agency.

For more information on eligibility, the application process, the calculation of the amount of the benefit based on number of children and household income, and access to an online application, visit the Canada Revenue Agency website at https://www.canada.ca/en/revenue-agency.html or call 1-800-387-1193 Monday to Friday from 8 AM to 8 PM or Saturdays from 9 AM to 5 PM.

{{LSLAP Manual Navbox|type=chapters1-7}}

Adoption (3:XIII)

2025-11-10T19:41:43Z

LSLAP: /* 1. Adoption Act, RSBC l996, c 5 */

{{REVIEWED LSLAP | date= November 8, 2025}}
{{LSLAP Manual TOC|expanded = family}}

== A. Legislation ==

=== 1. Adoption Act, RSBC 1996, c 5 ===

The ''Adoption Act'' governs adoptions in BC. The Act provides for the licensing of adoption agencies. These agencies, in addition to the Director of Adoption, have exclusive authority for facilitating adoptions, matching birth families with adoptive parents, adoption planning, pre-placement assessment, placement services, and post-placement counselling and assessments for non-relative adoptions in BC.

The ''Adoption Act'' enables any adult person to apply to adopt a child or to adopt another adult person. Under ss 5 and 29, one or two adults may apply to adopt a child. This allows unmarried couples, including same-sex couples, to apply to adopt.

The ''Adoption Act'' says that a child may be placed for adoption by the Director of Child, Family and Community Service; an adoption agency; a parent or guardian of a child by direct placement; or a parent or guardian of a child, if the child is placed with a relative of the child. A direct placement means the placing of a child by a parent or other guardian with one or 2 adults who are not a relative of the child. According to section 37(c), biological parents may also apply to adopt with a third party.

Section 37 of the ''Adoption Act'' states the effect of the adoption order. For all purposes, an adopted child becomes the child of the adopting parent(s) and the biological parents cease to have any parental rights or obligations with respect to the child.

Two legal exceptions under the Act are:
#An adopted First Nations child does not lose status, rights, privileges, disabilities, and limitations acquired under the ''Indian Act'' and other Acts (s 37(7)); and
#Adoption adds a prohibited degree of consanguinity for the purpose of marriage or laws relating to incest (s 37(4)).

The adopted person takes the given names specified in the adoption order and the surname of the adopting parents, unless the court orders otherwise at the request of the applicant (s 36).

Furthermore, openness agreements are recognized by statute (s 59) and may be entered into by the adoptive parents, the birth parents, and others with a relationship to the child, after consents to adoption have been signed.

An adoption effected under the law of a jurisdiction other than BC is valid in BC as though it had been made under BC’s adoption legislation (s 47).

Part 4 of the Adoption Act deals with interprovincial and intercountry adoptions. Before a person brings a child into the province for adoption, they must obtain the approval of a director or an adoption agency (s 48(1)). Part 4 Division 2 deals with intercountry adoption of children from countries that are signatories to the Hague Convention on Intercountry Adoption. To complete an adoption from a foreign country, whether that country is a “Hague Country” or not, a person needs the approval of the British Columbia Central Authority.

Under the ''Adoption Act'', ss 63(1) and 64(1), birth records may be disclosed to both birth parents and adult adoptees. The Reunion Registry facilitates reunions and disclosure of records. The Act provides for filing of non-disclosure vetoes and no-contact vetoes (ss 65 and 66).

== B. Procedure ==

=== 1. Consent ===

Section 13(1) of the ''Adoption Act'' states that no adoption order may be made without the written consent of:

*The child, if 12 years of age or over; children aged between 7 and 11 must be interviewed to ascertain whether they understand the meaning of adoption, and their views on the proposed name changes and a report must be filed with the court;
*The child’s parents. The birthing parent cannot sign consents until the child is at least 10 days old (s 14). The consent of the other biological parent, who is not presumed to be the child’s biological parent under s 26 of the Family Law Act, is not required unless the biological parent acknowledges they are a parent and they are named as a parent by the child’s birthing parent;
*The child’s guardians;

Where a child is a permanent ward of the Director of Child, Family, and Community Service, the Director, as guardian, must consent (s 13(5)).

The court may dispense with the need for consent from some of these parties. Parental consent may be dispensed with if it is in the best interest of the child or if the person has abandoned or deserted the child, cannot be found, is incapable of giving consent, has persistently neglected or refused to contribute to support for which they are liable, or is a person whose consent ought, in all the circumstances of the case, to be dispensed with (s 17). The consent of a child over 12 years of age can only be dispensed with if the child is not capable of giving informed consent (s 17(2)).

A person’s consent must be in the form of a sworn affidavit. Each affidavit must state that the effect of the consent and of adoption was fully explained to the person consenting, and that they signed the consent freely and voluntarily.

How and when a person can revoke their consent is set out below in section 6.

=== 2. Notifying the Director of Adoption ===

Within 14 days after receiving a child into their home for the purposes of adoption, the prospective adoptive parents must notify, in writing, the Director of Adoptions or an adoption agency (s 12).

A person wishing to apply to adopt must notify the Director of Adoption in writing of their intention (s 31) at least 30 days before filing the application unless:

*The child has been placed in a licensed adoption agency;
*The child is related to the applicant by blood; or
*The applicant is the child’s stepparent.

The Director of Adoption then makes an inquiry and files a report with the court before the hearing date. At least 30 days before the date fixed for the hearing of the application or an application to dispense with consent, the applicant must give a copy of the application with a notice of the date of hearing to the Director or licensed adoption agency.

The court may dispense with the times needed for the notices where the Director’s report shows good cause that the waiting period is not necessary to protect the interests of all parties (s 6(9)).

In cases of “direct placement”, potential adoptive parents must notify either the Director of Adoption or an adoption agency as soon as possible before the child is received in their home, and then in writing within 14 days after the child is received. Prior notice is required to allow the adoption agency or the Director of Adoption to receive or provide information to and from the birth and adoptive parents. Such information may include providing alternatives to the birth parents, doing a pre-placement assessment of the adoptive parents, counselling adoptive children if necessary, and ensuring that children over 12 have given informed consent.

Under s 33, a post-placement assessment must be made by either the Director of Adoption or an adoption agency, providing a recommendation on whether the adoption should be made or not, or whether insufficient information is available to make the determination.

=== 3. Adoption by the Child’s Blood Relatives or Stepparents ===

The Director of Adoption does not need to be notified or make a report where one adult may apply to the court to become a parent of a child jointly with another parent, nor where a blood relative of a child applies to adopt the child.

In the case of stepparent and blood relative adoptions, the application may not be made until the child has lived with, and been in the custody of, the applicant for at least six months prior to the application, except by order of the court. The court may still order a report from the Director. Where a report from the Director is not necessary, the material filed in support of the application should inform the court:

*In whose care the child has been since birth;
*Whether the parents have consented or proper reasons for the omission of such consent;
*How long the applicants have been married;
*The ages and occupations of the applicants;
*Whether either of the applicants has any other children living with them;
*That the applicants are able to bring up, maintain and educate the child; and
*Any unusual circumstances relevant to the application.

=== 4. Where all Parties Have Consented to Adoption ===

If all of the necessary consents have been obtained, no notice needs to be given and the application is made under Rule 17-1(24) of the ''BC Supreme Court Family Rules''. The real application is thus the Requisition made to the registry and all other documents can be “the material on which the application is founded”.

=== 5. Where Consent is Not Obtained ===

Subject to circumstances where s 42 of the ''Adoption Act'' applies, an application under s 11 of the ''Adoption Act'' dispensing with notice of a proposed adoption to a birth parent and an application under s 17 of the ''Adoption Act'' dispensing with consent to an adoption may be included in an application for an order for adoption under Supreme Court Family Rule 17-1(26). See [https://www.bccourts.ca/supreme_court/practice_and_procedure/practice_directions/family/FPD-14-Adoption_Applications.pdf Family Practice Direction 14: Adoption Applications].

=== 6. Revocation of Consent ===

Fraud, undue influence, and duress may invalidate consent. In the absence of such defect with the agreement, the court may only revoke consent if it is in the best interests of the child.

Consent may be revoked in writing before the child is placed (s 18). The birth parent may revoke their consent within 30 days of the child’s birth regardless of the child’s placement. The child may revoke consent at any time before the order is made (s 20). After the child has been placed, subject to the above, consent may be revoked only by court order and only if it would be in the best interests of the child. The application for revocation of consent must be made before the granting of the adoption order (s 22).

A person who consents to an adoption may revoke their consent prior to the child being placed if the revocation is in writing and received by the director or agency before placement.

=== 7. Checklist for Filing an Adoption ===

The necessary documents for an adoption application can be found on the BC Supreme Court website at: https://www2.gov.bc.ca/gov/content/justice/courthouse-services/documents-forms-records/court-forms/sup-family-forms

The applicant should include:

*The petitioners’ affidavit;
*Petition to the Court (Form F73);
*Affidavit of parent’s consent to adoption;
*Paternity affidavit of birth parent if no other parent is named;
*Birth parent expense affidavit, sworn by the adoptive parents;
*Requisition to have adoption heard in chambers, if necessary;
*Notice of Hearing of petition (Form F75), if necessary;
*Requisition re: Desk Order for Adoption, if the adoption is uncontested and the necessary consents have been obtained; and
*Desk Order for Adoption (no hearing necessary); and/or order after hearing in chambers.

An Adoption Package can be found at: https://www.bccourts.ca/supreme_court/self-represented_litigants/sc_info_packages/adoption_package.pdf

{{LSLAP Manual Navbox|type=chapters1-7}}

Parenting Orders, Guardianship, and Contact (3:XI)

2025-11-10T19:36:44Z

LSLAP: /* A. General */

{{REVIEWED LSLAP | date= November 8, 2025}}
{{LSLAP Manual TOC|expanded = family}}

== A. General ==

Disputes over parenting time of minor children are often the most difficult issues to resolve during the breakdown of a marriage or other relationship. Parenting time decisions can always be changed; however, a material change of circumstances must be established. Thus, the decision about who gets interim parenting time is particularly important. Children usually stay with the parent who has provided primary care in the past and who can spend the most time with them. In most cases, courts will order a form of shared parenting time on an interim basis so that neither parent’s position is prejudiced. The best interest of the child is the '''only''' consideration in determining parenting time, contact, and parenting arrangements (''DA'', s 16(1)). The primary consideration in determining the child’s best interest will be given to the child’s physical, emotional, and psychological safety, security, and wellbeing (''DA'', s 16(2)). For all further factors please see '''[[Parenting Orders, Guardianship, and Contact (3:XI)#D. Parenting Time|Section XI Part D: Parenting Time]]''' or s 16(3) of the ''Divorce Act''.

In addition to parenting time, courts can also make decisions regarding guardianship of minor children. Guardianship gives a parent or other person “a full and active” role in determining the course of a child’s life and upbringing (see e.g. ''[https://canlii.ca/t/23r7t Charlton v Charlton]'', [1980] BCJ No 22). There is considerable overlap between the two, but it is useful to note that while having parenting time usually includes having guardianship, the reverse is often not true. This distinction is impacted somewhat by the ''FLA'' as the term “Guardianship” subsumes all the rights and responsibilities of a parent.

The case law on parenting time and guardianship has developed to the point where there is a presumption in favour of joint parenting time (defined on p. 51). A parent seeking sole parenting time will generally have to show that there is a serious defect in the other person’s parenting skills, that the other person is geographically distant, or that the parents are utterly unable to communicate without fighting before the Court will consider granting such an application, and in the last case, the Court may explore other options such as Parenting Coordination or parcelling out decision making and responsibilities to address the communication issue instead of granting sole parenting time to one parent.

== B. Legislation ==

=== 1. Divorce Act ===

The ''DA'' only speaks of contact and parenting time. Under s 16, the Supreme Court may make an order for parenting time. This order will supersede any existing ''FLA'' orders, which cover parenting time, contact, and guardianship, and can be registered for enforcement with any other Superior Provincial Court in Canada. The Supreme Court can also grant interim parenting time before a divorce action is heard.

The ''DA'' applies only to married couples. Under the Act, the person making the application for parenting time must have been “habitually resident” in the province for at least one year prior.

The court will only consider the best interest of the child while making a parenting order or contact order and when allocating parenting time (''DA'' s 16(1)). Subsections 16(2-6) outline the factors under consideration when “best interest of the child” is assessed. Subsection 16(4) outlines the role of family violence in assessing the best interests of the child (see '''[[Family Violence (3:VIII)]]''').

Amendments to the ''DA'' have resulted in changes to the terms of guardianship:

*Replacing of the terms “custody” and “custody order” with “parenting time” and “parenting order”.
*Using the term “contact order” to characterize time spent with someone other than a spouse, including grandparents.
*Adding the term “decision-making responsibility” to define a non-exhaustive list of areas of significant weight and how decisions about those areas must be made (with the “best interests of the child” in mind).

The aim of these changes is to emphasize the “best interests of the child” by focusing on relationships with children.

=== 2. Family Law Act ===

The ''Act'' contains the following definitions surrounding guardianship:

*Defining “guardianship” through a list of “parental responsibilities” that can be allocated to allow for more customized parenting arrangements.
*Provide that parents retain responsibility for their children upon separation if they have lived together with the child after the child’s birth. (Note: this does not mean that the law presumes an automatic 50-50 split of parental responsibilities or parenting time.) If they have not, the parent with whom the child lives is the guardian.

Under the ''FLA'', only guardianship will be considered. Additionally, the “best interests of the child” is not the paramount consideration under the ''FLA''; it is the '''only''' consideration.

== C. Courts ==

=== 1. Supreme Court ===

The Supreme Court has jurisdiction to deal with all matters relating to parenting time, guardianship, and access to children, pursuant to the ''DA'', the ''FLA'', and the ''CFCSA''. The Court almost never deals with the ''CFCSA'' unless there is the matter of adoption to be considered. The Supreme Court also has jurisdiction over orders restraining contact or entry to the matrimonial home.

The Supreme Court has ''parens patriae'' jurisdiction over all children in the province. In operation, this can allow the Court to transcend the statutory letter of the law in drafting orders that best represent the best interests of the child.

A written agreement about parenting time or guardianship may be given the force of a court order under section 44 of the ''FLA''.

An order made under the ''DA'' can be registered for enforcement in any other province’s Supreme Court registry.

=== 2. Provincial Court ===

The Provincial Court has jurisdiction to deal with all matters relating to parenting time, guardianship, access to children, and the ''CFCSA''. This includes restraining orders but does not include orders restraining entry to the matrimonial home. A written agreement about parenting time or guardianship may be given the force of a court order, or under s 44 of the ''FLA'', if it is filed in court.

== D. Parenting Time ==

In the absence of a court order or a written agreement, parenting time of a child remains with the person with whom the child usually resides. One must bear in mind that the ''Act'' does not touch on day-to-day life until it is invoked, usually by filing a lawsuit or by making an application.

=== 1. Factors in Awarding Parenting Time ===

The factors that the Court must consider in determining the “best interests of the child” are set out in s 37 of the ''FLA'':

:(a) The child's health and emotional well-being;
:(b) The child's views, unless it would be inappropriate to consider them;
:(c) The nature and strength of the relationships between the child and significant persons in the child's life;
:(d) The history of the child's care;
:(e) The child's need for stability, given the child's age and stage of development;
:(f) The ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise the person's responsibilities;
:(g) The impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;
:(h) Whether the actions of a person responsible for family violence indicate that the person may be impaired in the person's ability to care for the child and meet the child's needs;
:(i) The appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;
:(j) Any civil or criminal proceeding relevant to the child's safety, security or well-being.

And under s 16(1-6) of the ''DA'':

:(1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.
:(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional, and psychological safety, security and well-being.
:(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including
::(a) The child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
::(b) The nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
::(c) Each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
::(d) The history of care of the child;
::(e) The child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
::(f) The child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
::(g) Any plans for the child’s care;
::(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;
:::(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;
::(j) Any family violence and its impact on, among other things,
:::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
:::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; and
::(k) Any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security, and well-being of the child.
:(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:
::(a) The nature, seriousness and frequency of the family violence and when it occurred;
::(b) Whether there is a pattern of coercive and controlling behaviour in relation to a family member;
::(c) Whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;
::(d) The physical, emotional and psychological harm or risk of harm to the child;
::(e) Any compromise to the safety of the child or other family member;
::(f) Whether the family violence causes the child or other family member to fear for their own safety or for that of another person;
::(g) Any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and
::(h) Any other relevant factor.
:(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.
:(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

These factors should not be viewed like a checklist. Rather, the discretionary, contextual, and complex nature of parenting time cases makes it more appropriate for the factors to be viewed holistically. Similarly, these factors do not necessarily form an exhaustive list of the factors to be considered. The best interest argument is often expansive, considering a range of factors illuminated at both the statutory and common-law level.

The Court will generally consider the child’s health and emotional well-being, their education, training, love, affection, and similar ties that exist between the child and other persons such as relatives and family friends. If appropriate, the views of the child will be considered. For a parenting order relating to a teenager to be practical, it must reasonably conform to the wishes of the child ([http://canlii.ca/t/1dxml ''O’Connell v McIndoe]'', (1998), 42 R.F.L. (4th) 77 (BCCA), [http://canlii.ca/t/23fnw ''Alexander v Alexander]'', (1988), 15 R.F.L. (3d) 363 (BCCA)).

Other factors have emerged through the common law, including a preference that siblings remain together and a willingness to look into the character, personality, and moral fitness of each parent. However, there is no presumption against the separation of siblings ''(P (AH) v P (AC)'', 1999 BCCA 203). The welfare of the child is not determined solely on the basis of material advantages or physical comfort, but also considers psychological, spiritual, and emotional factors ([http://canlii.ca/t/1fv1n ''King v Low]'',(1985), 44 R.F.L. (2d) 113 (SCC)). The Court will take into account the personality, character, stability, and conduct of a parent, if appropriate ([http://canlii.ca/t/23fhc ''Bell v Kirk]'', (1986), 3 R.F.L. (3d) 377 (BCCA)).

Agreements between parties regarding parenting time do not oust the Court’s jurisdiction. An agreement is important, but only one of several factors to be taken into consideration when determining the best interests of the child. The degree of bonding between child and parent is also taken into consideration. The biological link does not outweigh other considerations, but when all other factors are equal, the parenting time of the child is best served with the biological parents ([http://canlii.ca/t/1fnkk ''L (A) v K (D)]'',2000 BCCA 455; [http://canlii.ca/t/1kvhg ''H (CR) v H. (BA)]'', 2005 BCCA 277).

Race and aboriginal heritage are relevant considerations, but neither is determinative of parenting time alone. The importance of race differs in adoption cases, where it may be given more weight because the Court is making a decision about the child’s exposure to their race or culture ([http://canlii.ca/t/51z8 ''Van de Perre v Edwards]'', 2001 SCC 60). Aboriginal heritage is to be weighed along with other factors in a determination of a child’s best interests ([http://canlii.ca/t/1f50z ''H (D) v M (H)]'', [1997<nowiki>]</nowiki> BCJ No 2144 (QL) (SC)).

Clients may wish to vary a parenting order. The threshold for a variation of a parenting or access order is a material change in the circumstances affecting the child. There is no legal presumption in favour of the custodial parent, although that parent’s views are entitled to respect. The focus is on the best interests of the child, not the interests and rights of the parents ([http://canlii.ca/t/1fr99 ''Gordon v Goertz]'', [1996<nowiki>]</nowiki> 2 SCR 27).

Section 211 of the ''FLA'' allows the Court to order an assessment by a psychologist of each party’s parenting abilities and relationship with the child. These reports are particularly important where the dispute over parenting time is bitter and unlikely to settle. An assessment provides the Court with an independent and neutral expert opinion. Where expert evidence would assist the Court, the Court can order an ''FLA'' Section 211 report ([http://canlii.ca/t/4xfd ''Gupta v Gupta]'', 2001 BCSC 649).

=== 2. Types of Parenting Orders ===

Parenting orders refer to orders made under s 16.1(1) of the ''DA'' regarding parenting time and decision-making responsibilities.

==== a) Interim Orders ====

An interim order is a temporary order made once the proceedings have commenced but before the final order is pronounced. Courts will usually make interim parenting orders while an action in divorce is underway, with an eye to the child’s immediate best interests. Courts tend to favour stability, so an interim order is likely to favour the party with parenting time at the time of the marriage breakdown. This presumption toward stability can give an interim order substantial weight in determining a final parenting order.

==== b) Sole Parenting Time ====

Sole parenting time, in which one parent provides the primary residence and is mostly responsible for day-to-day care, can be granted in cases where the parents request such an arrangement, where they live far apart, or where relations between the parties are so poor as to preclude cooperation.

'''NOTE''': The concept of “full parenting time” does not exist. A parent using this term is most likely referring to sole parenting time.

==== c) Joint Parenting Time ====

In joint parenting time, both parents have parenting time with the child. While the child may reside primarily with one parent, the parents cooperate in raising the child, acting as both joint custodians and guardians of the child. '''In British Columbia, there is a presumption toward joint parenting time. '''

==== d) Shared Parenting Time ====

“Shared parenting time” is a term used by the Federal Child Support Guidelines, but not by either the ''DA'' or the ''FLA''. Shared parenting time is a form of joint parenting time in which the child spends an almost equal time with each parent. Typically, the child would be switching homes on a frequent basis, such as every few days or once a week. This usually requires that the parents live near one another and have good communication skills. It also requires that the child is able to adapt to living in two homes. Any agreement for shared parenting time will affect child support.

==== e) Split Parenting Time ====

“Split parenting time” is a term used by the Federal Child Support Guidelines, and not by either the ''DA'' or the ''FLA''. On rare occasions, courts will order siblings to live with separate parents. This is usually a drastic solution, ordered only after an ''FLA'' section 211 report (a court-ordered report respecting the needs of a child, the views of a child, and the ability and willingness of one of the parents to satisfy the needs of a child) is submitted to the Court. A split parenting time order will affect child support.

=== 3. Other Parenting Time Issues ===

==== a) Consent Orders ====

Where there is agreement on the terms of support or parenting time provisions, but no written agreement, a consent order may be made by the Court under s 219 of the ''FLA'' if the written consent of the party against whom the order is to be enforced has been obtained. The order can extend only to the terms consented to.

==== b) Enforcement of Parenting Time Orders ====

Where a parenting order is in force, the Court may make an order prohibiting interference with a child. The Court may further order sureties and/or documents from the person against whom the order is made and require that person to report to the Court for a period of time (''FLA'', s 183).

Under the ''FLA'', police officer enforcement clauses can only be granted when there has been a breach of an order (s 231).

A child abducted and taken elsewhere within the province will be returned to their rightful custodian. Abduction is an offence under the ''FLA'', s 188 that carries a possibility of criminal proceedings (''[https://canlii.ca/t/56hjs Criminal Code]'', RSC 1985, c C-46, ss 280-281). The ''Criminal Code'' makes it an offence for a non-custodial parent to abduct a child. Where a parenting order is in effect, abduction amounts to contempt of Court.

==== c) ''Parental Mobility'' (Under the ''FLA'', this is referred to as Relocation which has separate considerations from that of Mobility under the ''DA'') ====

Relocation is defined and explained under Division 6 of the ''FLA''. It considers relocation of a child that can reasonably be expected to have a significant impact on the child’s relationship with his/her guardian(s) or other adults with whom the child has a significant relationship (s 65). The guardian intending to relocate with the child must provide 60-day written notice to all other guardians and persons having contact with the child (s 66). The notice must include the date of the relocation, and the name of the proposed location. Exemptions to these requirements can be granted by the Court if they are satisfied that the notice cannot be given without incurring a risk of family violence by another guardian or a person having contact with the child or there is no ongoing relationship between the child and the other guardian or the person having contact with the child (s 66(2)).

The child’s other guardian(s) can object to the relocation within 30 days of receiving the notice. If an objection is made, the guardian requesting the relocation must satisfy the court that (s 69(4)(a)):

:(i) The proposed relocation is made in good faith, and
:(ii) The relocating guardian has proposed reasonable and workable arrangements to preserve the relationship between the child and the child's other guardians, persons who are entitled to contact with the child, and other persons who have a significant role in the child's life.

When considering the good faith requirement, the Court must consider (s 69(6)):

:(a) The reasons for the proposed relocation;
:(b) Whether the proposed relocation is likely to enhance the general quality of life of the child and, if applicable, of the relocating guardian, including increasing emotional well-being or financial or educational opportunities;
:(c) Whether notice was given under section 66 [notice of relocation];
:(d) Any restrictions on relocation contained in a written agreement or an order.

Issues of parental mobility may arise in conjunction with parenting time issues. That is, one parent may wish to relocate away from another parent with whom they share parenting time. In ''[https://canlii.ca/t/1fr99 Gordon v Goertz]'', [1996] 5 WWR 457 (SCC), the Supreme Court of Canada set out the basic principles for the ''DA''. Once the parent applying for the change meets a threshold requirement of demonstrating a material change in the circumstances affecting the child, the Court is required to begin a fresh inquiry into what is in the best interests of the child. Factors to be considered include: the desirability of maximizing contact between the child and both parents, the disruption to the child, and the child’s views.

[http://canlii.ca/t/1fmfc ''One v One]'', 2000 BCSC 1584, also a ''DA'' case, identifies the following list of factors to be considered in determining whether a proposed move is in a child’s best interests:

#The parenting capabilities of and the child’s relationship with parents and their new partners;
#Employment, security and prospects of the parents and, where appropriate, their partners;
#Access to and support of extended family;
#The difficulty of exercising the proposed access and the quality of the proposed access if the move is allowed;
#The effect of the move on the child’s academic situation;
#The psychological and emotional well-being of the child;
#The disruption of the child’s existing social and community support and routine;
#The desirability of the proposed new family unit for the child;
#The relative parenting capabilities of either parent and the respective ability to discharge parenting responsibilities;
#The child’s relationship with both parents;
#The separation of siblings;
#The retraining or educational opportunities for the moving parent.

== E. Contact ==

To gain contact with a child, a non-guardian can either arrange it unofficially with the guardian or seek a contact order.

Contact Orders are used to provide arrangements for '''non-guardians''' under the ''DA''. Anyone who wants a contact order under the Divorce Act must seek leave to apply (''DA'', s 15.5(3)).

Under the ''FLA'', the terms are "parenting time" for guardians, or "contact" for non-guardians. Some parents are not considered guardians and the law recognizes the child’s right to have a relationship with both parents whenever possible.

'''NOTE''': It is important to note that contact/parenting time is a distinct and separate issue from child support. Denial of contact/parenting time is not grounds to withhold support; nor is a failure to pay support grounds for withholding contact/parenting time.

== F. Guardianship ==

Guardianship may be the most important aspect of any legal arrangements concerning the care and control of the children. Guardianship encompasses the whole bundle of rights and obligations involved in parenting a child, including making decisions about the child’s school, moral instruction, religion, health care, dental care, extracurricular activities, etc.

Under the ''FLA'', guardianship is primarily governed by sections 39, 41, and 42.

Parents can also appoint a guardian in a will. If the parents are both dead or have abandoned the child, the Public Guardian and Trustee becomes the child’s guardian.

While a child’s parents are living together and after the child’s parents separate, each parent of the child is presumed to be the child’s guardian (s 39). Upon marital breakdown, this can change either by agreement or by order of the Court.

Section 39 of the ''FLA'' also provides for three other scenarios under which a parent is presumed to be a guardian. A parent who has never resided with a child is not the child’s guardian unless:

#There is an agreement made under section 30 of the ''FLA'',
#The parent and all the child’s guardians make an agreement providing that the parent is also a guardian, or
#The parent regularly cares for the child.

Additionally, a person does not become a child’s guardian by reason only of marriage or a marriage-like relationship.

At the time of birth, the two parents of a child are presumed to be its biological parents unless the child was born as a result of assisted reproduction (section 26, ''FLA''). Assisted reproduction has, at present, always included the use of one or more of donated eggs, donated sperm, and the cooperation of a woman who is willing to carry the baby to term. Section 24 of the ''FLA'' clarifies that a donor of eggs or sperm is not the parent of a child on the basis of their biological contribution alone – donors cannot be made to pay child support unless there is some other connection to the child which justifies holding that the person is a parent under the ''FLA''. If a donor wishes to be regarded as a parent, written agreements can be drafted and signed before the child’s birth which would substantiate their parental claim under the ''FLA''. Unlike donors, surrogates are presumed to be a parent of the child under the ''FLA'' since they are the birth parent. However, this presumption can be overcome by the intended parents and the surrogate signing a written agreement before the child is conceived which states that the surrogate will not be a parent to that child. Without such an agreement, the surrogate and sperm-providing parent would be the presumed parents.

=== 1. Responsibilities of a Guardian ===

Section 41 of the ''FLA'' lists out the parental responsibilities with respect to a child:

:a) Making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child;
:b) Making decisions respecting where the child will reside;
:c) Making decisions respecting with whom the child will live and associate;
:d) Making decisions respecting the child's education and participation in extracurricular activities, including the nature, extent and location;
:e) Making decisions respecting the child's cultural, linguistic, religious and spiritual upbringing and heritage, including, if the child is an aboriginal child, the child's aboriginal identity;
:f) Subject to section 17 of the Infants Act, giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the child;
:g) Applying for a passport, licence, permit, benefit, privilege or other thing for the child;
:h) Giving, refusing or withdrawing consent for the child, if consent is required;
:i) Receiving and responding to any notice that a parent or guardian is entitled or required by law to receive;
:j) Requesting and receiving health, education or other information respecting the child from third parties;
::(i) Subject to any applicable provincial legislation,
::(ii) Starting, defending, compromising, or settling any proceeding relating to the child, and
:k) Identifying, advancing, and protecting the child's legal and financial interests;
:l) Exercising any other responsibilities reasonably necessary to nurture the child's development.

Section 42 of the ''FLA'' defines parenting time as time that a child is with a guardian. During this parenting time, a guardian may exercise the parental responsibility of making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child.

=== 2. Guardianship Orders ===

A person who is not a parent or a parent who is not a guardian may become a guardian of the child by court order, pursuant to section 50 of the ''FLA''. The person applying to court for a guardianship order must demonstrate why it would be in the best interests of the child and provide notice to all of the child’s guardians and adults with whom the child resides (s 51). If the child is over 12, the child’s written consent is also required.

The evidentiary requirements to obtain a Guardianship order are set out under the ''Supreme Court Family Rules'' Rule 15-2.1 and the ''Provincial Court Family Rules'' Rules 26, 51, and 172. The applicant must provide:

:1. An affidavit (The Guardianship Affidavit (Form 5) for provincial jurisdiction and a Form F101 for Supreme Court) requires the following information:

::a. The nature and length of the applicant’s relationship with the child,
::b. The child's living arrangements,
::c. A detailed plan for how the applicant is going to care for the child,
::d. Information about any other children in the applicant’s care,
::e. Information about any incidents of family violence that may affect the child, and
::f. Information about any family or child protection court proceedings the applicant has been involved in;

:2. A Ministry of Children and Family Development records check;

:3. A Protection Order Registry records check; and

:4. A criminal record check.

If an application is made for guardianship of a treaty First Nation’s child, the child’s First Nation’s government must be served notice of the application and has standing in the proceeding (ss 208 and 209 of the ''FLA'').

=== 3. Terminating Guardianship ===

Sole guardianship and joint guardianship are not terms used in the ''FLA''. The parents or a court may decide that one parent should be the only guardian of the child. This terminates the presumption of guardianship for the other parent. The parents may terminate one parent’s guardianship via written agreement (s 39). The court can terminate one parent’s guardianship pursuant to section 51 of the ''FLA''. This is an extreme step, taken only when one parent has been shown to be either uninterested in or incapable of proper parenting.

=== 4. Both Parents are Guardians ===

Under the ''FLA'', the standard guardianship agreement, wherein both parents are or remain guardians, is structured such that parental responsibilities and parenting time are specified in the agreement, with specific provisions which govern the allocation of parenting responsibilities. If no such provisions are included, then each party may exercise all parental responsibilities in consultation with the other guardians (''FLA'' section 40(2)).

The following are standard elements typically included in guardianship agreements:

:a) Both parents equally have all of the parental responsibilities of guardians [with any exceptions listed].
:b) A guardian, after becoming aware of important information relating to the child not known to the other guardian(s), must immediately notify the other guardian(s) about that information.
:c) Subject to other clauses in the agreement, both guardians must consult about any important decisions that must be made and try to reach agreement concerning these important decisions.
:d) During parenting time, a guardian may exercise the parental responsibility of making day-to-day decisions affecting the child provided that the guardian must advise the other parent of any matters of a significant nature affecting the child.
:e) Optionally, the agreement may specify that if one guardian dies, the remaining guardian will assume all parenting responsibilities.

Also, agreements will typically include a dispute resolution clause which governs the situation where the guardians cannot reach agreement over one of their shared responsibilities. The options include:

:a) One parent has the final word; however, the other party can apply to court if they disagree with the deciding parent. In particularly high-conflict cases, giving one parent decision-making authority may be the only solution (''[https://canlii.ca/t/gpphm Friedlander v Claman]'', 2015 BCSC 2409);
:b) The parties go to mediation, wherein the mediator will have the final word if the parties cannot agree;
:c) The parties go to a parenting coordinator who has decision-making authority;
:d) Other collaborative law processes; or
:e) The parties can resolve the matter in court.

=== 5. Relocation ===

Division 6 of Part 4 of the new ''FLA'' states that if you are a child’s guardian and you want to relocate with the child, you must give any other person who can contact the child 60 days’ notice which includes both the date of the relocation and the name of the proposed location.

The Court may grant an exemption to give notice if it is satisfied that notice cannot be given without incurring a risk of family violence by another guardian or a person having contact with the child or there is no ongoing relationship between the child and the other guardian or the person having contact with the child. Once notice is given, a child’s guardians and persons having contact with the child must use their best efforts to resolve any issues relating to the proposed relocation. The proposed relocation may occur unless another guardian of the child files an application to prohibit the relocation within 30 days of receiving notice. The Court will make its decision based on s 37 of the ''FLA'' considering what would be in the best interests of the child.

== G. Parenting Responsibilities and Parenting Time ==

=== 1. Family Law Act ===

According to section 42 of the ''FLA'', parenting time refers to the amount of time that a child spends under the care of a guardian, as determined by an order or agreement. When the child is under their care, guardians assume responsibility for day-to-day care and decision-making for the child (please see section 41 of the ''FLA'' for a range of parenting responsibilities). Parenting time and responsibilities may or may not be allocated equally amongst guardians, and guardians may or may not be required to consult with one another depending on the terms of the order or agreement.

Decisions as to parenting time and responsibilities are determined according to the best interests of the child only. Section 40 of the ''FLA'' notes that the equal division of parenting time and parenting responsibilities is not presumed to be in the best interests of the child, nor should it be presumed that it is inherently better to make decisions separately or jointly. Guardians should not expect that they are entitled to equal sharing of parenting time or parenting responsibility. The best interests of the child are determined by weighing the following non-exhaustive list of considerations set out in section 37(2) of the ''FLA'':

:a. The child's health and emotional well-being;
:b. The child's views, unless it would be inappropriate to consider them;
:c. The nature and strength of the relationships between the child and significant persons in the child's life;
:d. The history of the child's care;
:e. The child's need for stability, given the child's age and stage of development;
:f. The ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;
:g. The impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;
:h. Whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs;
:i. The appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;
:j. Any civil or criminal proceeding relevant to the child's safety, security, or well-being.

A person’s conduct is considered only where their conduct stands to impact any of the above considerations regarding the best interests of the child.

=== 2. Divorce Act ===

Under the ''DA'', the term “parenting time” is used to refer to matters concerning the care, upbringing, and other relevant details pertaining to a child (s 2); parenting time is designated by what is referred to as a parenting order under the current ''DA''. The provisions of section 16 give a brief overview of how an order for parenting is decided and issued, including who may apply for an order, who may issue an order, and several of the court’s considerations when issuing such orders.

As of March 1, 2021, updates to the ''DA'' mean that the term “custody” was replaced by “parenting time” and “parenting responsibilities” to emphasize the importance of the needs of the child rather than on the child as a possession of a parent. Similarly, “order for custody” was replaced by “parenting order.” Section 16(1) through 16(10) were repealed and replaced with a new section entitled “Best Interests of the Child”. This section includes more expansive provisions which focus on determining parenting time and responsibilities based on the best interests of the child. The new section 16(3) provides guidance as to the factors to be considered, including:

:(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
:(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
:(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
:(d) the history of care of the child;
:(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
:(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
:(g) any plans for the child’s care;
:(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;
:(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;
:(j) any family violence and its impact on, among other things,
::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
::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; and
:(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

The updated ''DA'' also sets out the required contents of a parenting order (s 16.1(4)). A parenting order allocates parenting time—and, correspondingly day-to-day decision-making responsibilities—and may include a schedule and permitted means of communication between a child and a person with parenting responsibilities. Parenting orders submitted by consent by the parties must be mutually agreed to when submitted, though a court may modify according to the best interests of the child.

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Parenting Orders, Guardianship, and Contact (3:XI)

2025-11-10T19:35:45Z

LSLAP: /* A. General */

{{REVIEWED LSLAP | date= November 8, 2025}}
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== A. General ==

Disputes over parenting time of minor children are often the most difficult issues to resolve during the breakdown of a marriage or other relationship. Parenting time decisions can always be changed; however, a material change of circumstances must be established. Thus, the decision about who gets interim parenting time is particularly important. Children usually stay with the parent who has provided primary care in the past and who can spend the most time with them. In most cases, courts will order a form of shared parenting time on an interim basis so that neither parent’s position is prejudiced. The best interest of the child is the '''only''' consideration in determining parenting time, contact, and parenting arrangements (''DA'', s 16(1)). The primary consideration in determining the child’s best interest will be given to the child’s physical, emotional, and psychological safety, security, and wellbeing (''DA'', s 16(2)). For all further factors please see '''[[Parenting Orders, Guardianship, and Contact (3:XI)#1. Factors in Awarding Parenting Time|Section XI Part D: Parenting Time]]''' or s 16(3) of the ''Divorce Act''.

In addition to parenting time, courts can also make decisions regarding guardianship of minor children. Guardianship gives a parent or other person “a full and active” role in determining the course of a child’s life and upbringing (see e.g. ''[https://canlii.ca/t/23r7t Charlton v Charlton]'', [1980] BCJ No 22). There is considerable overlap between the two, but it is useful to note that while having parenting time usually includes having guardianship, the reverse is often not true. This distinction is impacted somewhat by the ''FLA'' as the term “Guardianship” subsumes all the rights and responsibilities of a parent.

The case law on parenting time and guardianship has developed to the point where there is a presumption in favour of joint parenting time (defined on p. 51). A parent seeking sole parenting time will generally have to show that there is a serious defect in the other person’s parenting skills, that the other person is geographically distant, or that the parents are utterly unable to communicate without fighting before the Court will consider granting such an application, and in the last case, the Court may explore other options such as Parenting Coordination or parcelling out decision making and responsibilities to address the communication issue instead of granting sole parenting time to one parent.

== B. Legislation ==

=== 1. Divorce Act ===

The ''DA'' only speaks of contact and parenting time. Under s 16, the Supreme Court may make an order for parenting time. This order will supersede any existing ''FLA'' orders, which cover parenting time, contact, and guardianship, and can be registered for enforcement with any other Superior Provincial Court in Canada. The Supreme Court can also grant interim parenting time before a divorce action is heard.

The ''DA'' applies only to married couples. Under the Act, the person making the application for parenting time must have been “habitually resident” in the province for at least one year prior.

The court will only consider the best interest of the child while making a parenting order or contact order and when allocating parenting time (''DA'' s 16(1)). Subsections 16(2-6) outline the factors under consideration when “best interest of the child” is assessed. Subsection 16(4) outlines the role of family violence in assessing the best interests of the child (see '''[[Family Violence (3:VIII)]]''').

Amendments to the ''DA'' have resulted in changes to the terms of guardianship:

*Replacing of the terms “custody” and “custody order” with “parenting time” and “parenting order”.
*Using the term “contact order” to characterize time spent with someone other than a spouse, including grandparents.
*Adding the term “decision-making responsibility” to define a non-exhaustive list of areas of significant weight and how decisions about those areas must be made (with the “best interests of the child” in mind).

The aim of these changes is to emphasize the “best interests of the child” by focusing on relationships with children.

=== 2. Family Law Act ===

The ''Act'' contains the following definitions surrounding guardianship:

*Defining “guardianship” through a list of “parental responsibilities” that can be allocated to allow for more customized parenting arrangements.
*Provide that parents retain responsibility for their children upon separation if they have lived together with the child after the child’s birth. (Note: this does not mean that the law presumes an automatic 50-50 split of parental responsibilities or parenting time.) If they have not, the parent with whom the child lives is the guardian.

Under the ''FLA'', only guardianship will be considered. Additionally, the “best interests of the child” is not the paramount consideration under the ''FLA''; it is the '''only''' consideration.

== C. Courts ==

=== 1. Supreme Court ===

The Supreme Court has jurisdiction to deal with all matters relating to parenting time, guardianship, and access to children, pursuant to the ''DA'', the ''FLA'', and the ''CFCSA''. The Court almost never deals with the ''CFCSA'' unless there is the matter of adoption to be considered. The Supreme Court also has jurisdiction over orders restraining contact or entry to the matrimonial home.

The Supreme Court has ''parens patriae'' jurisdiction over all children in the province. In operation, this can allow the Court to transcend the statutory letter of the law in drafting orders that best represent the best interests of the child.

A written agreement about parenting time or guardianship may be given the force of a court order under section 44 of the ''FLA''.

An order made under the ''DA'' can be registered for enforcement in any other province’s Supreme Court registry.

=== 2. Provincial Court ===

The Provincial Court has jurisdiction to deal with all matters relating to parenting time, guardianship, access to children, and the ''CFCSA''. This includes restraining orders but does not include orders restraining entry to the matrimonial home. A written agreement about parenting time or guardianship may be given the force of a court order, or under s 44 of the ''FLA'', if it is filed in court.

== D. Parenting Time ==

In the absence of a court order or a written agreement, parenting time of a child remains with the person with whom the child usually resides. One must bear in mind that the ''Act'' does not touch on day-to-day life until it is invoked, usually by filing a lawsuit or by making an application.

=== 1. Factors in Awarding Parenting Time ===

The factors that the Court must consider in determining the “best interests of the child” are set out in s 37 of the ''FLA'':

:(a) The child's health and emotional well-being;
:(b) The child's views, unless it would be inappropriate to consider them;
:(c) The nature and strength of the relationships between the child and significant persons in the child's life;
:(d) The history of the child's care;
:(e) The child's need for stability, given the child's age and stage of development;
:(f) The ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise the person's responsibilities;
:(g) The impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;
:(h) Whether the actions of a person responsible for family violence indicate that the person may be impaired in the person's ability to care for the child and meet the child's needs;
:(i) The appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;
:(j) Any civil or criminal proceeding relevant to the child's safety, security or well-being.

And under s 16(1-6) of the ''DA'':

:(1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.
:(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional, and psychological safety, security and well-being.
:(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including
::(a) The child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
::(b) The nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
::(c) Each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
::(d) The history of care of the child;
::(e) The child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
::(f) The child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
::(g) Any plans for the child’s care;
::(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;
:::(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;
::(j) Any family violence and its impact on, among other things,
:::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
:::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; and
::(k) Any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security, and well-being of the child.
:(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:
::(a) The nature, seriousness and frequency of the family violence and when it occurred;
::(b) Whether there is a pattern of coercive and controlling behaviour in relation to a family member;
::(c) Whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;
::(d) The physical, emotional and psychological harm or risk of harm to the child;
::(e) Any compromise to the safety of the child or other family member;
::(f) Whether the family violence causes the child or other family member to fear for their own safety or for that of another person;
::(g) Any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and
::(h) Any other relevant factor.
:(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.
:(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

These factors should not be viewed like a checklist. Rather, the discretionary, contextual, and complex nature of parenting time cases makes it more appropriate for the factors to be viewed holistically. Similarly, these factors do not necessarily form an exhaustive list of the factors to be considered. The best interest argument is often expansive, considering a range of factors illuminated at both the statutory and common-law level.

The Court will generally consider the child’s health and emotional well-being, their education, training, love, affection, and similar ties that exist between the child and other persons such as relatives and family friends. If appropriate, the views of the child will be considered. For a parenting order relating to a teenager to be practical, it must reasonably conform to the wishes of the child ([http://canlii.ca/t/1dxml ''O’Connell v McIndoe]'', (1998), 42 R.F.L. (4th) 77 (BCCA), [http://canlii.ca/t/23fnw ''Alexander v Alexander]'', (1988), 15 R.F.L. (3d) 363 (BCCA)).

Other factors have emerged through the common law, including a preference that siblings remain together and a willingness to look into the character, personality, and moral fitness of each parent. However, there is no presumption against the separation of siblings ''(P (AH) v P (AC)'', 1999 BCCA 203). The welfare of the child is not determined solely on the basis of material advantages or physical comfort, but also considers psychological, spiritual, and emotional factors ([http://canlii.ca/t/1fv1n ''King v Low]'',(1985), 44 R.F.L. (2d) 113 (SCC)). The Court will take into account the personality, character, stability, and conduct of a parent, if appropriate ([http://canlii.ca/t/23fhc ''Bell v Kirk]'', (1986), 3 R.F.L. (3d) 377 (BCCA)).

Agreements between parties regarding parenting time do not oust the Court’s jurisdiction. An agreement is important, but only one of several factors to be taken into consideration when determining the best interests of the child. The degree of bonding between child and parent is also taken into consideration. The biological link does not outweigh other considerations, but when all other factors are equal, the parenting time of the child is best served with the biological parents ([http://canlii.ca/t/1fnkk ''L (A) v K (D)]'',2000 BCCA 455; [http://canlii.ca/t/1kvhg ''H (CR) v H. (BA)]'', 2005 BCCA 277).

Race and aboriginal heritage are relevant considerations, but neither is determinative of parenting time alone. The importance of race differs in adoption cases, where it may be given more weight because the Court is making a decision about the child’s exposure to their race or culture ([http://canlii.ca/t/51z8 ''Van de Perre v Edwards]'', 2001 SCC 60). Aboriginal heritage is to be weighed along with other factors in a determination of a child’s best interests ([http://canlii.ca/t/1f50z ''H (D) v M (H)]'', [1997<nowiki>]</nowiki> BCJ No 2144 (QL) (SC)).

Clients may wish to vary a parenting order. The threshold for a variation of a parenting or access order is a material change in the circumstances affecting the child. There is no legal presumption in favour of the custodial parent, although that parent’s views are entitled to respect. The focus is on the best interests of the child, not the interests and rights of the parents ([http://canlii.ca/t/1fr99 ''Gordon v Goertz]'', [1996<nowiki>]</nowiki> 2 SCR 27).

Section 211 of the ''FLA'' allows the Court to order an assessment by a psychologist of each party’s parenting abilities and relationship with the child. These reports are particularly important where the dispute over parenting time is bitter and unlikely to settle. An assessment provides the Court with an independent and neutral expert opinion. Where expert evidence would assist the Court, the Court can order an ''FLA'' Section 211 report ([http://canlii.ca/t/4xfd ''Gupta v Gupta]'', 2001 BCSC 649).

=== 2. Types of Parenting Orders ===

Parenting orders refer to orders made under s 16.1(1) of the ''DA'' regarding parenting time and decision-making responsibilities.

==== a) Interim Orders ====

An interim order is a temporary order made once the proceedings have commenced but before the final order is pronounced. Courts will usually make interim parenting orders while an action in divorce is underway, with an eye to the child’s immediate best interests. Courts tend to favour stability, so an interim order is likely to favour the party with parenting time at the time of the marriage breakdown. This presumption toward stability can give an interim order substantial weight in determining a final parenting order.

==== b) Sole Parenting Time ====

Sole parenting time, in which one parent provides the primary residence and is mostly responsible for day-to-day care, can be granted in cases where the parents request such an arrangement, where they live far apart, or where relations between the parties are so poor as to preclude cooperation.

'''NOTE''': The concept of “full parenting time” does not exist. A parent using this term is most likely referring to sole parenting time.

==== c) Joint Parenting Time ====

In joint parenting time, both parents have parenting time with the child. While the child may reside primarily with one parent, the parents cooperate in raising the child, acting as both joint custodians and guardians of the child. '''In British Columbia, there is a presumption toward joint parenting time. '''

==== d) Shared Parenting Time ====

“Shared parenting time” is a term used by the Federal Child Support Guidelines, but not by either the ''DA'' or the ''FLA''. Shared parenting time is a form of joint parenting time in which the child spends an almost equal time with each parent. Typically, the child would be switching homes on a frequent basis, such as every few days or once a week. This usually requires that the parents live near one another and have good communication skills. It also requires that the child is able to adapt to living in two homes. Any agreement for shared parenting time will affect child support.

==== e) Split Parenting Time ====

“Split parenting time” is a term used by the Federal Child Support Guidelines, and not by either the ''DA'' or the ''FLA''. On rare occasions, courts will order siblings to live with separate parents. This is usually a drastic solution, ordered only after an ''FLA'' section 211 report (a court-ordered report respecting the needs of a child, the views of a child, and the ability and willingness of one of the parents to satisfy the needs of a child) is submitted to the Court. A split parenting time order will affect child support.

=== 3. Other Parenting Time Issues ===

==== a) Consent Orders ====

Where there is agreement on the terms of support or parenting time provisions, but no written agreement, a consent order may be made by the Court under s 219 of the ''FLA'' if the written consent of the party against whom the order is to be enforced has been obtained. The order can extend only to the terms consented to.

==== b) Enforcement of Parenting Time Orders ====

Where a parenting order is in force, the Court may make an order prohibiting interference with a child. The Court may further order sureties and/or documents from the person against whom the order is made and require that person to report to the Court for a period of time (''FLA'', s 183).

Under the ''FLA'', police officer enforcement clauses can only be granted when there has been a breach of an order (s 231).

A child abducted and taken elsewhere within the province will be returned to their rightful custodian. Abduction is an offence under the ''FLA'', s 188 that carries a possibility of criminal proceedings (''[https://canlii.ca/t/56hjs Criminal Code]'', RSC 1985, c C-46, ss 280-281). The ''Criminal Code'' makes it an offence for a non-custodial parent to abduct a child. Where a parenting order is in effect, abduction amounts to contempt of Court.

==== c) ''Parental Mobility'' (Under the ''FLA'', this is referred to as Relocation which has separate considerations from that of Mobility under the ''DA'') ====

Relocation is defined and explained under Division 6 of the ''FLA''. It considers relocation of a child that can reasonably be expected to have a significant impact on the child’s relationship with his/her guardian(s) or other adults with whom the child has a significant relationship (s 65). The guardian intending to relocate with the child must provide 60-day written notice to all other guardians and persons having contact with the child (s 66). The notice must include the date of the relocation, and the name of the proposed location. Exemptions to these requirements can be granted by the Court if they are satisfied that the notice cannot be given without incurring a risk of family violence by another guardian or a person having contact with the child or there is no ongoing relationship between the child and the other guardian or the person having contact with the child (s 66(2)).

The child’s other guardian(s) can object to the relocation within 30 days of receiving the notice. If an objection is made, the guardian requesting the relocation must satisfy the court that (s 69(4)(a)):

:(i) The proposed relocation is made in good faith, and
:(ii) The relocating guardian has proposed reasonable and workable arrangements to preserve the relationship between the child and the child's other guardians, persons who are entitled to contact with the child, and other persons who have a significant role in the child's life.

When considering the good faith requirement, the Court must consider (s 69(6)):

:(a) The reasons for the proposed relocation;
:(b) Whether the proposed relocation is likely to enhance the general quality of life of the child and, if applicable, of the relocating guardian, including increasing emotional well-being or financial or educational opportunities;
:(c) Whether notice was given under section 66 [notice of relocation];
:(d) Any restrictions on relocation contained in a written agreement or an order.

Issues of parental mobility may arise in conjunction with parenting time issues. That is, one parent may wish to relocate away from another parent with whom they share parenting time. In ''[https://canlii.ca/t/1fr99 Gordon v Goertz]'', [1996] 5 WWR 457 (SCC), the Supreme Court of Canada set out the basic principles for the ''DA''. Once the parent applying for the change meets a threshold requirement of demonstrating a material change in the circumstances affecting the child, the Court is required to begin a fresh inquiry into what is in the best interests of the child. Factors to be considered include: the desirability of maximizing contact between the child and both parents, the disruption to the child, and the child’s views.

[http://canlii.ca/t/1fmfc ''One v One]'', 2000 BCSC 1584, also a ''DA'' case, identifies the following list of factors to be considered in determining whether a proposed move is in a child’s best interests:

#The parenting capabilities of and the child’s relationship with parents and their new partners;
#Employment, security and prospects of the parents and, where appropriate, their partners;
#Access to and support of extended family;
#The difficulty of exercising the proposed access and the quality of the proposed access if the move is allowed;
#The effect of the move on the child’s academic situation;
#The psychological and emotional well-being of the child;
#The disruption of the child’s existing social and community support and routine;
#The desirability of the proposed new family unit for the child;
#The relative parenting capabilities of either parent and the respective ability to discharge parenting responsibilities;
#The child’s relationship with both parents;
#The separation of siblings;
#The retraining or educational opportunities for the moving parent.

== E. Contact ==

To gain contact with a child, a non-guardian can either arrange it unofficially with the guardian or seek a contact order.

Contact Orders are used to provide arrangements for '''non-guardians''' under the ''DA''. Anyone who wants a contact order under the Divorce Act must seek leave to apply (''DA'', s 15.5(3)).

Under the ''FLA'', the terms are "parenting time" for guardians, or "contact" for non-guardians. Some parents are not considered guardians and the law recognizes the child’s right to have a relationship with both parents whenever possible.

'''NOTE''': It is important to note that contact/parenting time is a distinct and separate issue from child support. Denial of contact/parenting time is not grounds to withhold support; nor is a failure to pay support grounds for withholding contact/parenting time.

== F. Guardianship ==

Guardianship may be the most important aspect of any legal arrangements concerning the care and control of the children. Guardianship encompasses the whole bundle of rights and obligations involved in parenting a child, including making decisions about the child’s school, moral instruction, religion, health care, dental care, extracurricular activities, etc.

Under the ''FLA'', guardianship is primarily governed by sections 39, 41, and 42.

Parents can also appoint a guardian in a will. If the parents are both dead or have abandoned the child, the Public Guardian and Trustee becomes the child’s guardian.

While a child’s parents are living together and after the child’s parents separate, each parent of the child is presumed to be the child’s guardian (s 39). Upon marital breakdown, this can change either by agreement or by order of the Court.

Section 39 of the ''FLA'' also provides for three other scenarios under which a parent is presumed to be a guardian. A parent who has never resided with a child is not the child’s guardian unless:

#There is an agreement made under section 30 of the ''FLA'',
#The parent and all the child’s guardians make an agreement providing that the parent is also a guardian, or
#The parent regularly cares for the child.

Additionally, a person does not become a child’s guardian by reason only of marriage or a marriage-like relationship.

At the time of birth, the two parents of a child are presumed to be its biological parents unless the child was born as a result of assisted reproduction (section 26, ''FLA''). Assisted reproduction has, at present, always included the use of one or more of donated eggs, donated sperm, and the cooperation of a woman who is willing to carry the baby to term. Section 24 of the ''FLA'' clarifies that a donor of eggs or sperm is not the parent of a child on the basis of their biological contribution alone – donors cannot be made to pay child support unless there is some other connection to the child which justifies holding that the person is a parent under the ''FLA''. If a donor wishes to be regarded as a parent, written agreements can be drafted and signed before the child’s birth which would substantiate their parental claim under the ''FLA''. Unlike donors, surrogates are presumed to be a parent of the child under the ''FLA'' since they are the birth parent. However, this presumption can be overcome by the intended parents and the surrogate signing a written agreement before the child is conceived which states that the surrogate will not be a parent to that child. Without such an agreement, the surrogate and sperm-providing parent would be the presumed parents.

=== 1. Responsibilities of a Guardian ===

Section 41 of the ''FLA'' lists out the parental responsibilities with respect to a child:

:a) Making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child;
:b) Making decisions respecting where the child will reside;
:c) Making decisions respecting with whom the child will live and associate;
:d) Making decisions respecting the child's education and participation in extracurricular activities, including the nature, extent and location;
:e) Making decisions respecting the child's cultural, linguistic, religious and spiritual upbringing and heritage, including, if the child is an aboriginal child, the child's aboriginal identity;
:f) Subject to section 17 of the Infants Act, giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the child;
:g) Applying for a passport, licence, permit, benefit, privilege or other thing for the child;
:h) Giving, refusing or withdrawing consent for the child, if consent is required;
:i) Receiving and responding to any notice that a parent or guardian is entitled or required by law to receive;
:j) Requesting and receiving health, education or other information respecting the child from third parties;
::(i) Subject to any applicable provincial legislation,
::(ii) Starting, defending, compromising, or settling any proceeding relating to the child, and
:k) Identifying, advancing, and protecting the child's legal and financial interests;
:l) Exercising any other responsibilities reasonably necessary to nurture the child's development.

Section 42 of the ''FLA'' defines parenting time as time that a child is with a guardian. During this parenting time, a guardian may exercise the parental responsibility of making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child.

=== 2. Guardianship Orders ===

A person who is not a parent or a parent who is not a guardian may become a guardian of the child by court order, pursuant to section 50 of the ''FLA''. The person applying to court for a guardianship order must demonstrate why it would be in the best interests of the child and provide notice to all of the child’s guardians and adults with whom the child resides (s 51). If the child is over 12, the child’s written consent is also required.

The evidentiary requirements to obtain a Guardianship order are set out under the ''Supreme Court Family Rules'' Rule 15-2.1 and the ''Provincial Court Family Rules'' Rules 26, 51, and 172. The applicant must provide:

:1. An affidavit (The Guardianship Affidavit (Form 5) for provincial jurisdiction and a Form F101 for Supreme Court) requires the following information:

::a. The nature and length of the applicant’s relationship with the child,
::b. The child's living arrangements,
::c. A detailed plan for how the applicant is going to care for the child,
::d. Information about any other children in the applicant’s care,
::e. Information about any incidents of family violence that may affect the child, and
::f. Information about any family or child protection court proceedings the applicant has been involved in;

:2. A Ministry of Children and Family Development records check;

:3. A Protection Order Registry records check; and

:4. A criminal record check.

If an application is made for guardianship of a treaty First Nation’s child, the child’s First Nation’s government must be served notice of the application and has standing in the proceeding (ss 208 and 209 of the ''FLA'').

=== 3. Terminating Guardianship ===

Sole guardianship and joint guardianship are not terms used in the ''FLA''. The parents or a court may decide that one parent should be the only guardian of the child. This terminates the presumption of guardianship for the other parent. The parents may terminate one parent’s guardianship via written agreement (s 39). The court can terminate one parent’s guardianship pursuant to section 51 of the ''FLA''. This is an extreme step, taken only when one parent has been shown to be either uninterested in or incapable of proper parenting.

=== 4. Both Parents are Guardians ===

Under the ''FLA'', the standard guardianship agreement, wherein both parents are or remain guardians, is structured such that parental responsibilities and parenting time are specified in the agreement, with specific provisions which govern the allocation of parenting responsibilities. If no such provisions are included, then each party may exercise all parental responsibilities in consultation with the other guardians (''FLA'' section 40(2)).

The following are standard elements typically included in guardianship agreements:

:a) Both parents equally have all of the parental responsibilities of guardians [with any exceptions listed].
:b) A guardian, after becoming aware of important information relating to the child not known to the other guardian(s), must immediately notify the other guardian(s) about that information.
:c) Subject to other clauses in the agreement, both guardians must consult about any important decisions that must be made and try to reach agreement concerning these important decisions.
:d) During parenting time, a guardian may exercise the parental responsibility of making day-to-day decisions affecting the child provided that the guardian must advise the other parent of any matters of a significant nature affecting the child.
:e) Optionally, the agreement may specify that if one guardian dies, the remaining guardian will assume all parenting responsibilities.

Also, agreements will typically include a dispute resolution clause which governs the situation where the guardians cannot reach agreement over one of their shared responsibilities. The options include:

:a) One parent has the final word; however, the other party can apply to court if they disagree with the deciding parent. In particularly high-conflict cases, giving one parent decision-making authority may be the only solution (''[https://canlii.ca/t/gpphm Friedlander v Claman]'', 2015 BCSC 2409);
:b) The parties go to mediation, wherein the mediator will have the final word if the parties cannot agree;
:c) The parties go to a parenting coordinator who has decision-making authority;
:d) Other collaborative law processes; or
:e) The parties can resolve the matter in court.

=== 5. Relocation ===

Division 6 of Part 4 of the new ''FLA'' states that if you are a child’s guardian and you want to relocate with the child, you must give any other person who can contact the child 60 days’ notice which includes both the date of the relocation and the name of the proposed location.

The Court may grant an exemption to give notice if it is satisfied that notice cannot be given without incurring a risk of family violence by another guardian or a person having contact with the child or there is no ongoing relationship between the child and the other guardian or the person having contact with the child. Once notice is given, a child’s guardians and persons having contact with the child must use their best efforts to resolve any issues relating to the proposed relocation. The proposed relocation may occur unless another guardian of the child files an application to prohibit the relocation within 30 days of receiving notice. The Court will make its decision based on s 37 of the ''FLA'' considering what would be in the best interests of the child.

== G. Parenting Responsibilities and Parenting Time ==

=== 1. Family Law Act ===

According to section 42 of the ''FLA'', parenting time refers to the amount of time that a child spends under the care of a guardian, as determined by an order or agreement. When the child is under their care, guardians assume responsibility for day-to-day care and decision-making for the child (please see section 41 of the ''FLA'' for a range of parenting responsibilities). Parenting time and responsibilities may or may not be allocated equally amongst guardians, and guardians may or may not be required to consult with one another depending on the terms of the order or agreement.

Decisions as to parenting time and responsibilities are determined according to the best interests of the child only. Section 40 of the ''FLA'' notes that the equal division of parenting time and parenting responsibilities is not presumed to be in the best interests of the child, nor should it be presumed that it is inherently better to make decisions separately or jointly. Guardians should not expect that they are entitled to equal sharing of parenting time or parenting responsibility. The best interests of the child are determined by weighing the following non-exhaustive list of considerations set out in section 37(2) of the ''FLA'':

:a. The child's health and emotional well-being;
:b. The child's views, unless it would be inappropriate to consider them;
:c. The nature and strength of the relationships between the child and significant persons in the child's life;
:d. The history of the child's care;
:e. The child's need for stability, given the child's age and stage of development;
:f. The ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;
:g. The impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;
:h. Whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs;
:i. The appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;
:j. Any civil or criminal proceeding relevant to the child's safety, security, or well-being.

A person’s conduct is considered only where their conduct stands to impact any of the above considerations regarding the best interests of the child.

=== 2. Divorce Act ===

Under the ''DA'', the term “parenting time” is used to refer to matters concerning the care, upbringing, and other relevant details pertaining to a child (s 2); parenting time is designated by what is referred to as a parenting order under the current ''DA''. The provisions of section 16 give a brief overview of how an order for parenting is decided and issued, including who may apply for an order, who may issue an order, and several of the court’s considerations when issuing such orders.

As of March 1, 2021, updates to the ''DA'' mean that the term “custody” was replaced by “parenting time” and “parenting responsibilities” to emphasize the importance of the needs of the child rather than on the child as a possession of a parent. Similarly, “order for custody” was replaced by “parenting order.” Section 16(1) through 16(10) were repealed and replaced with a new section entitled “Best Interests of the Child”. This section includes more expansive provisions which focus on determining parenting time and responsibilities based on the best interests of the child. The new section 16(3) provides guidance as to the factors to be considered, including:

:(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
:(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
:(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
:(d) the history of care of the child;
:(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
:(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
:(g) any plans for the child’s care;
:(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;
:(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;
:(j) any family violence and its impact on, among other things,
::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
::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; and
:(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

The updated ''DA'' also sets out the required contents of a parenting order (s 16.1(4)). A parenting order allocates parenting time—and, correspondingly day-to-day decision-making responsibilities—and may include a schedule and permitted means of communication between a child and a person with parenting responsibilities. Parenting orders submitted by consent by the parties must be mutually agreed to when submitted, though a court may modify according to the best interests of the child.

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Parenting Orders, Guardianship, and Contact (3:XI)

2025-11-10T19:35:10Z

LSLAP: /* A. General */

{{REVIEWED LSLAP | date= November 8, 2025}}
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== A. General ==

Disputes over parenting time of minor children are often the most difficult issues to resolve during the breakdown of a marriage or other relationship. Parenting time decisions can always be changed; however, a material change of circumstances must be established. Thus, the decision about who gets interim parenting time is particularly important. Children usually stay with the parent who has provided primary care in the past and who can spend the most time with them. In most cases, courts will order a form of shared parenting time on an interim basis so that neither parent’s position is prejudiced. The best interest of the child is the '''only''' consideration in determining parenting time, contact, and parenting arrangements (''DA'', s 16(1)). The primary consideration in determining the child’s best interest will be given to the child’s physical, emotional, and psychological safety, security, and wellbeing (''DA'', s 16(2)). For all further factors please see '''[[Parenting Orders, Guardianship, and Contact (3:XI)#D. Parenting Time|Section XI Part D: Parenting Time]]''', Factors in Awarding Parenting Time below or s 16(3) of the ''Divorce Act''.

In addition to parenting time, courts can also make decisions regarding guardianship of minor children. Guardianship gives a parent or other person “a full and active” role in determining the course of a child’s life and upbringing (see e.g. ''[https://canlii.ca/t/23r7t Charlton v Charlton]'', [1980] BCJ No 22). There is considerable overlap between the two, but it is useful to note that while having parenting time usually includes having guardianship, the reverse is often not true. This distinction is impacted somewhat by the ''FLA'' as the term “Guardianship” subsumes all the rights and responsibilities of a parent.

The case law on parenting time and guardianship has developed to the point where there is a presumption in favour of joint parenting time (defined on p. 51). A parent seeking sole parenting time will generally have to show that there is a serious defect in the other person’s parenting skills, that the other person is geographically distant, or that the parents are utterly unable to communicate without fighting before the Court will consider granting such an application, and in the last case, the Court may explore other options such as Parenting Coordination or parcelling out decision making and responsibilities to address the communication issue instead of granting sole parenting time to one parent.

== B. Legislation ==

=== 1. Divorce Act ===

The ''DA'' only speaks of contact and parenting time. Under s 16, the Supreme Court may make an order for parenting time. This order will supersede any existing ''FLA'' orders, which cover parenting time, contact, and guardianship, and can be registered for enforcement with any other Superior Provincial Court in Canada. The Supreme Court can also grant interim parenting time before a divorce action is heard.

The ''DA'' applies only to married couples. Under the Act, the person making the application for parenting time must have been “habitually resident” in the province for at least one year prior.

The court will only consider the best interest of the child while making a parenting order or contact order and when allocating parenting time (''DA'' s 16(1)). Subsections 16(2-6) outline the factors under consideration when “best interest of the child” is assessed. Subsection 16(4) outlines the role of family violence in assessing the best interests of the child (see '''[[Family Violence (3:VIII)]]''').

Amendments to the ''DA'' have resulted in changes to the terms of guardianship:

*Replacing of the terms “custody” and “custody order” with “parenting time” and “parenting order”.
*Using the term “contact order” to characterize time spent with someone other than a spouse, including grandparents.
*Adding the term “decision-making responsibility” to define a non-exhaustive list of areas of significant weight and how decisions about those areas must be made (with the “best interests of the child” in mind).

The aim of these changes is to emphasize the “best interests of the child” by focusing on relationships with children.

=== 2. Family Law Act ===

The ''Act'' contains the following definitions surrounding guardianship:

*Defining “guardianship” through a list of “parental responsibilities” that can be allocated to allow for more customized parenting arrangements.
*Provide that parents retain responsibility for their children upon separation if they have lived together with the child after the child’s birth. (Note: this does not mean that the law presumes an automatic 50-50 split of parental responsibilities or parenting time.) If they have not, the parent with whom the child lives is the guardian.

Under the ''FLA'', only guardianship will be considered. Additionally, the “best interests of the child” is not the paramount consideration under the ''FLA''; it is the '''only''' consideration.

== C. Courts ==

=== 1. Supreme Court ===

The Supreme Court has jurisdiction to deal with all matters relating to parenting time, guardianship, and access to children, pursuant to the ''DA'', the ''FLA'', and the ''CFCSA''. The Court almost never deals with the ''CFCSA'' unless there is the matter of adoption to be considered. The Supreme Court also has jurisdiction over orders restraining contact or entry to the matrimonial home.

The Supreme Court has ''parens patriae'' jurisdiction over all children in the province. In operation, this can allow the Court to transcend the statutory letter of the law in drafting orders that best represent the best interests of the child.

A written agreement about parenting time or guardianship may be given the force of a court order under section 44 of the ''FLA''.

An order made under the ''DA'' can be registered for enforcement in any other province’s Supreme Court registry.

=== 2. Provincial Court ===

The Provincial Court has jurisdiction to deal with all matters relating to parenting time, guardianship, access to children, and the ''CFCSA''. This includes restraining orders but does not include orders restraining entry to the matrimonial home. A written agreement about parenting time or guardianship may be given the force of a court order, or under s 44 of the ''FLA'', if it is filed in court.

== D. Parenting Time ==

In the absence of a court order or a written agreement, parenting time of a child remains with the person with whom the child usually resides. One must bear in mind that the ''Act'' does not touch on day-to-day life until it is invoked, usually by filing a lawsuit or by making an application.

=== 1. Factors in Awarding Parenting Time ===

The factors that the Court must consider in determining the “best interests of the child” are set out in s 37 of the ''FLA'':

:(a) The child's health and emotional well-being;
:(b) The child's views, unless it would be inappropriate to consider them;
:(c) The nature and strength of the relationships between the child and significant persons in the child's life;
:(d) The history of the child's care;
:(e) The child's need for stability, given the child's age and stage of development;
:(f) The ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise the person's responsibilities;
:(g) The impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;
:(h) Whether the actions of a person responsible for family violence indicate that the person may be impaired in the person's ability to care for the child and meet the child's needs;
:(i) The appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;
:(j) Any civil or criminal proceeding relevant to the child's safety, security or well-being.

And under s 16(1-6) of the ''DA'':

:(1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.
:(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional, and psychological safety, security and well-being.
:(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including
::(a) The child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
::(b) The nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
::(c) Each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
::(d) The history of care of the child;
::(e) The child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
::(f) The child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
::(g) Any plans for the child’s care;
::(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;
:::(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;
::(j) Any family violence and its impact on, among other things,
:::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
:::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; and
::(k) Any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security, and well-being of the child.
:(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:
::(a) The nature, seriousness and frequency of the family violence and when it occurred;
::(b) Whether there is a pattern of coercive and controlling behaviour in relation to a family member;
::(c) Whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;
::(d) The physical, emotional and psychological harm or risk of harm to the child;
::(e) Any compromise to the safety of the child or other family member;
::(f) Whether the family violence causes the child or other family member to fear for their own safety or for that of another person;
::(g) Any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and
::(h) Any other relevant factor.
:(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.
:(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

These factors should not be viewed like a checklist. Rather, the discretionary, contextual, and complex nature of parenting time cases makes it more appropriate for the factors to be viewed holistically. Similarly, these factors do not necessarily form an exhaustive list of the factors to be considered. The best interest argument is often expansive, considering a range of factors illuminated at both the statutory and common-law level.

The Court will generally consider the child’s health and emotional well-being, their education, training, love, affection, and similar ties that exist between the child and other persons such as relatives and family friends. If appropriate, the views of the child will be considered. For a parenting order relating to a teenager to be practical, it must reasonably conform to the wishes of the child ([http://canlii.ca/t/1dxml ''O’Connell v McIndoe]'', (1998), 42 R.F.L. (4th) 77 (BCCA), [http://canlii.ca/t/23fnw ''Alexander v Alexander]'', (1988), 15 R.F.L. (3d) 363 (BCCA)).

Other factors have emerged through the common law, including a preference that siblings remain together and a willingness to look into the character, personality, and moral fitness of each parent. However, there is no presumption against the separation of siblings ''(P (AH) v P (AC)'', 1999 BCCA 203). The welfare of the child is not determined solely on the basis of material advantages or physical comfort, but also considers psychological, spiritual, and emotional factors ([http://canlii.ca/t/1fv1n ''King v Low]'',(1985), 44 R.F.L. (2d) 113 (SCC)). The Court will take into account the personality, character, stability, and conduct of a parent, if appropriate ([http://canlii.ca/t/23fhc ''Bell v Kirk]'', (1986), 3 R.F.L. (3d) 377 (BCCA)).

Agreements between parties regarding parenting time do not oust the Court’s jurisdiction. An agreement is important, but only one of several factors to be taken into consideration when determining the best interests of the child. The degree of bonding between child and parent is also taken into consideration. The biological link does not outweigh other considerations, but when all other factors are equal, the parenting time of the child is best served with the biological parents ([http://canlii.ca/t/1fnkk ''L (A) v K (D)]'',2000 BCCA 455; [http://canlii.ca/t/1kvhg ''H (CR) v H. (BA)]'', 2005 BCCA 277).

Race and aboriginal heritage are relevant considerations, but neither is determinative of parenting time alone. The importance of race differs in adoption cases, where it may be given more weight because the Court is making a decision about the child’s exposure to their race or culture ([http://canlii.ca/t/51z8 ''Van de Perre v Edwards]'', 2001 SCC 60). Aboriginal heritage is to be weighed along with other factors in a determination of a child’s best interests ([http://canlii.ca/t/1f50z ''H (D) v M (H)]'', [1997<nowiki>]</nowiki> BCJ No 2144 (QL) (SC)).

Clients may wish to vary a parenting order. The threshold for a variation of a parenting or access order is a material change in the circumstances affecting the child. There is no legal presumption in favour of the custodial parent, although that parent’s views are entitled to respect. The focus is on the best interests of the child, not the interests and rights of the parents ([http://canlii.ca/t/1fr99 ''Gordon v Goertz]'', [1996<nowiki>]</nowiki> 2 SCR 27).

Section 211 of the ''FLA'' allows the Court to order an assessment by a psychologist of each party’s parenting abilities and relationship with the child. These reports are particularly important where the dispute over parenting time is bitter and unlikely to settle. An assessment provides the Court with an independent and neutral expert opinion. Where expert evidence would assist the Court, the Court can order an ''FLA'' Section 211 report ([http://canlii.ca/t/4xfd ''Gupta v Gupta]'', 2001 BCSC 649).

=== 2. Types of Parenting Orders ===

Parenting orders refer to orders made under s 16.1(1) of the ''DA'' regarding parenting time and decision-making responsibilities.

==== a) Interim Orders ====

An interim order is a temporary order made once the proceedings have commenced but before the final order is pronounced. Courts will usually make interim parenting orders while an action in divorce is underway, with an eye to the child’s immediate best interests. Courts tend to favour stability, so an interim order is likely to favour the party with parenting time at the time of the marriage breakdown. This presumption toward stability can give an interim order substantial weight in determining a final parenting order.

==== b) Sole Parenting Time ====

Sole parenting time, in which one parent provides the primary residence and is mostly responsible for day-to-day care, can be granted in cases where the parents request such an arrangement, where they live far apart, or where relations between the parties are so poor as to preclude cooperation.

'''NOTE''': The concept of “full parenting time” does not exist. A parent using this term is most likely referring to sole parenting time.

==== c) Joint Parenting Time ====

In joint parenting time, both parents have parenting time with the child. While the child may reside primarily with one parent, the parents cooperate in raising the child, acting as both joint custodians and guardians of the child. '''In British Columbia, there is a presumption toward joint parenting time. '''

==== d) Shared Parenting Time ====

“Shared parenting time” is a term used by the Federal Child Support Guidelines, but not by either the ''DA'' or the ''FLA''. Shared parenting time is a form of joint parenting time in which the child spends an almost equal time with each parent. Typically, the child would be switching homes on a frequent basis, such as every few days or once a week. This usually requires that the parents live near one another and have good communication skills. It also requires that the child is able to adapt to living in two homes. Any agreement for shared parenting time will affect child support.

==== e) Split Parenting Time ====

“Split parenting time” is a term used by the Federal Child Support Guidelines, and not by either the ''DA'' or the ''FLA''. On rare occasions, courts will order siblings to live with separate parents. This is usually a drastic solution, ordered only after an ''FLA'' section 211 report (a court-ordered report respecting the needs of a child, the views of a child, and the ability and willingness of one of the parents to satisfy the needs of a child) is submitted to the Court. A split parenting time order will affect child support.

=== 3. Other Parenting Time Issues ===

==== a) Consent Orders ====

Where there is agreement on the terms of support or parenting time provisions, but no written agreement, a consent order may be made by the Court under s 219 of the ''FLA'' if the written consent of the party against whom the order is to be enforced has been obtained. The order can extend only to the terms consented to.

==== b) Enforcement of Parenting Time Orders ====

Where a parenting order is in force, the Court may make an order prohibiting interference with a child. The Court may further order sureties and/or documents from the person against whom the order is made and require that person to report to the Court for a period of time (''FLA'', s 183).

Under the ''FLA'', police officer enforcement clauses can only be granted when there has been a breach of an order (s 231).

A child abducted and taken elsewhere within the province will be returned to their rightful custodian. Abduction is an offence under the ''FLA'', s 188 that carries a possibility of criminal proceedings (''[https://canlii.ca/t/56hjs Criminal Code]'', RSC 1985, c C-46, ss 280-281). The ''Criminal Code'' makes it an offence for a non-custodial parent to abduct a child. Where a parenting order is in effect, abduction amounts to contempt of Court.

==== c) ''Parental Mobility'' (Under the ''FLA'', this is referred to as Relocation which has separate considerations from that of Mobility under the ''DA'') ====

Relocation is defined and explained under Division 6 of the ''FLA''. It considers relocation of a child that can reasonably be expected to have a significant impact on the child’s relationship with his/her guardian(s) or other adults with whom the child has a significant relationship (s 65). The guardian intending to relocate with the child must provide 60-day written notice to all other guardians and persons having contact with the child (s 66). The notice must include the date of the relocation, and the name of the proposed location. Exemptions to these requirements can be granted by the Court if they are satisfied that the notice cannot be given without incurring a risk of family violence by another guardian or a person having contact with the child or there is no ongoing relationship between the child and the other guardian or the person having contact with the child (s 66(2)).

The child’s other guardian(s) can object to the relocation within 30 days of receiving the notice. If an objection is made, the guardian requesting the relocation must satisfy the court that (s 69(4)(a)):

:(i) The proposed relocation is made in good faith, and
:(ii) The relocating guardian has proposed reasonable and workable arrangements to preserve the relationship between the child and the child's other guardians, persons who are entitled to contact with the child, and other persons who have a significant role in the child's life.

When considering the good faith requirement, the Court must consider (s 69(6)):

:(a) The reasons for the proposed relocation;
:(b) Whether the proposed relocation is likely to enhance the general quality of life of the child and, if applicable, of the relocating guardian, including increasing emotional well-being or financial or educational opportunities;
:(c) Whether notice was given under section 66 [notice of relocation];
:(d) Any restrictions on relocation contained in a written agreement or an order.

Issues of parental mobility may arise in conjunction with parenting time issues. That is, one parent may wish to relocate away from another parent with whom they share parenting time. In ''[https://canlii.ca/t/1fr99 Gordon v Goertz]'', [1996] 5 WWR 457 (SCC), the Supreme Court of Canada set out the basic principles for the ''DA''. Once the parent applying for the change meets a threshold requirement of demonstrating a material change in the circumstances affecting the child, the Court is required to begin a fresh inquiry into what is in the best interests of the child. Factors to be considered include: the desirability of maximizing contact between the child and both parents, the disruption to the child, and the child’s views.

[http://canlii.ca/t/1fmfc ''One v One]'', 2000 BCSC 1584, also a ''DA'' case, identifies the following list of factors to be considered in determining whether a proposed move is in a child’s best interests:

#The parenting capabilities of and the child’s relationship with parents and their new partners;
#Employment, security and prospects of the parents and, where appropriate, their partners;
#Access to and support of extended family;
#The difficulty of exercising the proposed access and the quality of the proposed access if the move is allowed;
#The effect of the move on the child’s academic situation;
#The psychological and emotional well-being of the child;
#The disruption of the child’s existing social and community support and routine;
#The desirability of the proposed new family unit for the child;
#The relative parenting capabilities of either parent and the respective ability to discharge parenting responsibilities;
#The child’s relationship with both parents;
#The separation of siblings;
#The retraining or educational opportunities for the moving parent.

== E. Contact ==

To gain contact with a child, a non-guardian can either arrange it unofficially with the guardian or seek a contact order.

Contact Orders are used to provide arrangements for '''non-guardians''' under the ''DA''. Anyone who wants a contact order under the Divorce Act must seek leave to apply (''DA'', s 15.5(3)).

Under the ''FLA'', the terms are "parenting time" for guardians, or "contact" for non-guardians. Some parents are not considered guardians and the law recognizes the child’s right to have a relationship with both parents whenever possible.

'''NOTE''': It is important to note that contact/parenting time is a distinct and separate issue from child support. Denial of contact/parenting time is not grounds to withhold support; nor is a failure to pay support grounds for withholding contact/parenting time.

== F. Guardianship ==

Guardianship may be the most important aspect of any legal arrangements concerning the care and control of the children. Guardianship encompasses the whole bundle of rights and obligations involved in parenting a child, including making decisions about the child’s school, moral instruction, religion, health care, dental care, extracurricular activities, etc.

Under the ''FLA'', guardianship is primarily governed by sections 39, 41, and 42.

Parents can also appoint a guardian in a will. If the parents are both dead or have abandoned the child, the Public Guardian and Trustee becomes the child’s guardian.

While a child’s parents are living together and after the child’s parents separate, each parent of the child is presumed to be the child’s guardian (s 39). Upon marital breakdown, this can change either by agreement or by order of the Court.

Section 39 of the ''FLA'' also provides for three other scenarios under which a parent is presumed to be a guardian. A parent who has never resided with a child is not the child’s guardian unless:

#There is an agreement made under section 30 of the ''FLA'',
#The parent and all the child’s guardians make an agreement providing that the parent is also a guardian, or
#The parent regularly cares for the child.

Additionally, a person does not become a child’s guardian by reason only of marriage or a marriage-like relationship.

At the time of birth, the two parents of a child are presumed to be its biological parents unless the child was born as a result of assisted reproduction (section 26, ''FLA''). Assisted reproduction has, at present, always included the use of one or more of donated eggs, donated sperm, and the cooperation of a woman who is willing to carry the baby to term. Section 24 of the ''FLA'' clarifies that a donor of eggs or sperm is not the parent of a child on the basis of their biological contribution alone – donors cannot be made to pay child support unless there is some other connection to the child which justifies holding that the person is a parent under the ''FLA''. If a donor wishes to be regarded as a parent, written agreements can be drafted and signed before the child’s birth which would substantiate their parental claim under the ''FLA''. Unlike donors, surrogates are presumed to be a parent of the child under the ''FLA'' since they are the birth parent. However, this presumption can be overcome by the intended parents and the surrogate signing a written agreement before the child is conceived which states that the surrogate will not be a parent to that child. Without such an agreement, the surrogate and sperm-providing parent would be the presumed parents.

=== 1. Responsibilities of a Guardian ===

Section 41 of the ''FLA'' lists out the parental responsibilities with respect to a child:

:a) Making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child;
:b) Making decisions respecting where the child will reside;
:c) Making decisions respecting with whom the child will live and associate;
:d) Making decisions respecting the child's education and participation in extracurricular activities, including the nature, extent and location;
:e) Making decisions respecting the child's cultural, linguistic, religious and spiritual upbringing and heritage, including, if the child is an aboriginal child, the child's aboriginal identity;
:f) Subject to section 17 of the Infants Act, giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the child;
:g) Applying for a passport, licence, permit, benefit, privilege or other thing for the child;
:h) Giving, refusing or withdrawing consent for the child, if consent is required;
:i) Receiving and responding to any notice that a parent or guardian is entitled or required by law to receive;
:j) Requesting and receiving health, education or other information respecting the child from third parties;
::(i) Subject to any applicable provincial legislation,
::(ii) Starting, defending, compromising, or settling any proceeding relating to the child, and
:k) Identifying, advancing, and protecting the child's legal and financial interests;
:l) Exercising any other responsibilities reasonably necessary to nurture the child's development.

Section 42 of the ''FLA'' defines parenting time as time that a child is with a guardian. During this parenting time, a guardian may exercise the parental responsibility of making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child.

=== 2. Guardianship Orders ===

A person who is not a parent or a parent who is not a guardian may become a guardian of the child by court order, pursuant to section 50 of the ''FLA''. The person applying to court for a guardianship order must demonstrate why it would be in the best interests of the child and provide notice to all of the child’s guardians and adults with whom the child resides (s 51). If the child is over 12, the child’s written consent is also required.

The evidentiary requirements to obtain a Guardianship order are set out under the ''Supreme Court Family Rules'' Rule 15-2.1 and the ''Provincial Court Family Rules'' Rules 26, 51, and 172. The applicant must provide:

:1. An affidavit (The Guardianship Affidavit (Form 5) for provincial jurisdiction and a Form F101 for Supreme Court) requires the following information:

::a. The nature and length of the applicant’s relationship with the child,
::b. The child's living arrangements,
::c. A detailed plan for how the applicant is going to care for the child,
::d. Information about any other children in the applicant’s care,
::e. Information about any incidents of family violence that may affect the child, and
::f. Information about any family or child protection court proceedings the applicant has been involved in;

:2. A Ministry of Children and Family Development records check;

:3. A Protection Order Registry records check; and

:4. A criminal record check.

If an application is made for guardianship of a treaty First Nation’s child, the child’s First Nation’s government must be served notice of the application and has standing in the proceeding (ss 208 and 209 of the ''FLA'').

=== 3. Terminating Guardianship ===

Sole guardianship and joint guardianship are not terms used in the ''FLA''. The parents or a court may decide that one parent should be the only guardian of the child. This terminates the presumption of guardianship for the other parent. The parents may terminate one parent’s guardianship via written agreement (s 39). The court can terminate one parent’s guardianship pursuant to section 51 of the ''FLA''. This is an extreme step, taken only when one parent has been shown to be either uninterested in or incapable of proper parenting.

=== 4. Both Parents are Guardians ===

Under the ''FLA'', the standard guardianship agreement, wherein both parents are or remain guardians, is structured such that parental responsibilities and parenting time are specified in the agreement, with specific provisions which govern the allocation of parenting responsibilities. If no such provisions are included, then each party may exercise all parental responsibilities in consultation with the other guardians (''FLA'' section 40(2)).

The following are standard elements typically included in guardianship agreements:

:a) Both parents equally have all of the parental responsibilities of guardians [with any exceptions listed].
:b) A guardian, after becoming aware of important information relating to the child not known to the other guardian(s), must immediately notify the other guardian(s) about that information.
:c) Subject to other clauses in the agreement, both guardians must consult about any important decisions that must be made and try to reach agreement concerning these important decisions.
:d) During parenting time, a guardian may exercise the parental responsibility of making day-to-day decisions affecting the child provided that the guardian must advise the other parent of any matters of a significant nature affecting the child.
:e) Optionally, the agreement may specify that if one guardian dies, the remaining guardian will assume all parenting responsibilities.

Also, agreements will typically include a dispute resolution clause which governs the situation where the guardians cannot reach agreement over one of their shared responsibilities. The options include:

:a) One parent has the final word; however, the other party can apply to court if they disagree with the deciding parent. In particularly high-conflict cases, giving one parent decision-making authority may be the only solution (''[https://canlii.ca/t/gpphm Friedlander v Claman]'', 2015 BCSC 2409);
:b) The parties go to mediation, wherein the mediator will have the final word if the parties cannot agree;
:c) The parties go to a parenting coordinator who has decision-making authority;
:d) Other collaborative law processes; or
:e) The parties can resolve the matter in court.

=== 5. Relocation ===

Division 6 of Part 4 of the new ''FLA'' states that if you are a child’s guardian and you want to relocate with the child, you must give any other person who can contact the child 60 days’ notice which includes both the date of the relocation and the name of the proposed location.

The Court may grant an exemption to give notice if it is satisfied that notice cannot be given without incurring a risk of family violence by another guardian or a person having contact with the child or there is no ongoing relationship between the child and the other guardian or the person having contact with the child. Once notice is given, a child’s guardians and persons having contact with the child must use their best efforts to resolve any issues relating to the proposed relocation. The proposed relocation may occur unless another guardian of the child files an application to prohibit the relocation within 30 days of receiving notice. The Court will make its decision based on s 37 of the ''FLA'' considering what would be in the best interests of the child.

== G. Parenting Responsibilities and Parenting Time ==

=== 1. Family Law Act ===

According to section 42 of the ''FLA'', parenting time refers to the amount of time that a child spends under the care of a guardian, as determined by an order or agreement. When the child is under their care, guardians assume responsibility for day-to-day care and decision-making for the child (please see section 41 of the ''FLA'' for a range of parenting responsibilities). Parenting time and responsibilities may or may not be allocated equally amongst guardians, and guardians may or may not be required to consult with one another depending on the terms of the order or agreement.

Decisions as to parenting time and responsibilities are determined according to the best interests of the child only. Section 40 of the ''FLA'' notes that the equal division of parenting time and parenting responsibilities is not presumed to be in the best interests of the child, nor should it be presumed that it is inherently better to make decisions separately or jointly. Guardians should not expect that they are entitled to equal sharing of parenting time or parenting responsibility. The best interests of the child are determined by weighing the following non-exhaustive list of considerations set out in section 37(2) of the ''FLA'':

:a. The child's health and emotional well-being;
:b. The child's views, unless it would be inappropriate to consider them;
:c. The nature and strength of the relationships between the child and significant persons in the child's life;
:d. The history of the child's care;
:e. The child's need for stability, given the child's age and stage of development;
:f. The ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;
:g. The impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;
:h. Whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs;
:i. The appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;
:j. Any civil or criminal proceeding relevant to the child's safety, security, or well-being.

A person’s conduct is considered only where their conduct stands to impact any of the above considerations regarding the best interests of the child.

=== 2. Divorce Act ===

Under the ''DA'', the term “parenting time” is used to refer to matters concerning the care, upbringing, and other relevant details pertaining to a child (s 2); parenting time is designated by what is referred to as a parenting order under the current ''DA''. The provisions of section 16 give a brief overview of how an order for parenting is decided and issued, including who may apply for an order, who may issue an order, and several of the court’s considerations when issuing such orders.

As of March 1, 2021, updates to the ''DA'' mean that the term “custody” was replaced by “parenting time” and “parenting responsibilities” to emphasize the importance of the needs of the child rather than on the child as a possession of a parent. Similarly, “order for custody” was replaced by “parenting order.” Section 16(1) through 16(10) were repealed and replaced with a new section entitled “Best Interests of the Child”. This section includes more expansive provisions which focus on determining parenting time and responsibilities based on the best interests of the child. The new section 16(3) provides guidance as to the factors to be considered, including:

:(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
:(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
:(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
:(d) the history of care of the child;
:(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
:(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
:(g) any plans for the child’s care;
:(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;
:(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;
:(j) any family violence and its impact on, among other things,
::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
::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; and
:(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

The updated ''DA'' also sets out the required contents of a parenting order (s 16.1(4)). A parenting order allocates parenting time—and, correspondingly day-to-day decision-making responsibilities—and may include a schedule and permitted means of communication between a child and a person with parenting responsibilities. Parenting orders submitted by consent by the parties must be mutually agreed to when submitted, though a court may modify according to the best interests of the child.

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Parenting Orders, Guardianship, and Contact (3:XI)

2025-11-10T19:34:39Z

LSLAP: /* A. General */

{{REVIEWED LSLAP | date= November 8, 2025}}
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== A. General ==

Disputes over parenting time of minor children are often the most difficult issues to resolve during the breakdown of a marriage or other relationship. Parenting time decisions can always be changed; however, a material change of circumstances must be established. Thus, the decision about who gets interim parenting time is particularly important. Children usually stay with the parent who has provided primary care in the past and who can spend the most time with them. In most cases, courts will order a form of shared parenting time on an interim basis so that neither parent’s position is prejudiced. The best interest of the child is the '''only''' consideration in determining parenting time, contact, and parenting arrangements (''DA'', s 16(1)). The primary consideration in determining the child’s best interest will be given to the child’s physical, emotional, and psychological safety, security, and wellbeing (''DA'', s 16(2)). For all further factors please see '''[[Parenting Orders, Guardianship, and Contact (3:XI)#D. Parenting Time|Section XI Part D: Parenting Time]]''', Factors in Awarding Parenting Time or s 16(3) of the ''Divorce Act''.

In addition to parenting time, courts can also make decisions regarding guardianship of minor children. Guardianship gives a parent or other person “a full and active” role in determining the course of a child’s life and upbringing (see e.g. ''[https://canlii.ca/t/23r7t Charlton v Charlton]'', [1980] BCJ No 22). There is considerable overlap between the two, but it is useful to note that while having parenting time usually includes having guardianship, the reverse is often not true. This distinction is impacted somewhat by the ''FLA'' as the term “Guardianship” subsumes all the rights and responsibilities of a parent.

The case law on parenting time and guardianship has developed to the point where there is a presumption in favour of joint parenting time (defined on p. 51). A parent seeking sole parenting time will generally have to show that there is a serious defect in the other person’s parenting skills, that the other person is geographically distant, or that the parents are utterly unable to communicate without fighting before the Court will consider granting such an application, and in the last case, the Court may explore other options such as Parenting Coordination or parcelling out decision making and responsibilities to address the communication issue instead of granting sole parenting time to one parent.

== B. Legislation ==

=== 1. Divorce Act ===

The ''DA'' only speaks of contact and parenting time. Under s 16, the Supreme Court may make an order for parenting time. This order will supersede any existing ''FLA'' orders, which cover parenting time, contact, and guardianship, and can be registered for enforcement with any other Superior Provincial Court in Canada. The Supreme Court can also grant interim parenting time before a divorce action is heard.

The ''DA'' applies only to married couples. Under the Act, the person making the application for parenting time must have been “habitually resident” in the province for at least one year prior.

The court will only consider the best interest of the child while making a parenting order or contact order and when allocating parenting time (''DA'' s 16(1)). Subsections 16(2-6) outline the factors under consideration when “best interest of the child” is assessed. Subsection 16(4) outlines the role of family violence in assessing the best interests of the child (see '''[[Family Violence (3:VIII)]]''').

Amendments to the ''DA'' have resulted in changes to the terms of guardianship:

*Replacing of the terms “custody” and “custody order” with “parenting time” and “parenting order”.
*Using the term “contact order” to characterize time spent with someone other than a spouse, including grandparents.
*Adding the term “decision-making responsibility” to define a non-exhaustive list of areas of significant weight and how decisions about those areas must be made (with the “best interests of the child” in mind).

The aim of these changes is to emphasize the “best interests of the child” by focusing on relationships with children.

=== 2. Family Law Act ===

The ''Act'' contains the following definitions surrounding guardianship:

*Defining “guardianship” through a list of “parental responsibilities” that can be allocated to allow for more customized parenting arrangements.
*Provide that parents retain responsibility for their children upon separation if they have lived together with the child after the child’s birth. (Note: this does not mean that the law presumes an automatic 50-50 split of parental responsibilities or parenting time.) If they have not, the parent with whom the child lives is the guardian.

Under the ''FLA'', only guardianship will be considered. Additionally, the “best interests of the child” is not the paramount consideration under the ''FLA''; it is the '''only''' consideration.

== C. Courts ==

=== 1. Supreme Court ===

The Supreme Court has jurisdiction to deal with all matters relating to parenting time, guardianship, and access to children, pursuant to the ''DA'', the ''FLA'', and the ''CFCSA''. The Court almost never deals with the ''CFCSA'' unless there is the matter of adoption to be considered. The Supreme Court also has jurisdiction over orders restraining contact or entry to the matrimonial home.

The Supreme Court has ''parens patriae'' jurisdiction over all children in the province. In operation, this can allow the Court to transcend the statutory letter of the law in drafting orders that best represent the best interests of the child.

A written agreement about parenting time or guardianship may be given the force of a court order under section 44 of the ''FLA''.

An order made under the ''DA'' can be registered for enforcement in any other province’s Supreme Court registry.

=== 2. Provincial Court ===

The Provincial Court has jurisdiction to deal with all matters relating to parenting time, guardianship, access to children, and the ''CFCSA''. This includes restraining orders but does not include orders restraining entry to the matrimonial home. A written agreement about parenting time or guardianship may be given the force of a court order, or under s 44 of the ''FLA'', if it is filed in court.

== D. Parenting Time ==

In the absence of a court order or a written agreement, parenting time of a child remains with the person with whom the child usually resides. One must bear in mind that the ''Act'' does not touch on day-to-day life until it is invoked, usually by filing a lawsuit or by making an application.

=== 1. Factors in Awarding Parenting Time ===

The factors that the Court must consider in determining the “best interests of the child” are set out in s 37 of the ''FLA'':

:(a) The child's health and emotional well-being;
:(b) The child's views, unless it would be inappropriate to consider them;
:(c) The nature and strength of the relationships between the child and significant persons in the child's life;
:(d) The history of the child's care;
:(e) The child's need for stability, given the child's age and stage of development;
:(f) The ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise the person's responsibilities;
:(g) The impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;
:(h) Whether the actions of a person responsible for family violence indicate that the person may be impaired in the person's ability to care for the child and meet the child's needs;
:(i) The appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;
:(j) Any civil or criminal proceeding relevant to the child's safety, security or well-being.

And under s 16(1-6) of the ''DA'':

:(1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.
:(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional, and psychological safety, security and well-being.
:(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including
::(a) The child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
::(b) The nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
::(c) Each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
::(d) The history of care of the child;
::(e) The child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
::(f) The child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
::(g) Any plans for the child’s care;
::(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;
:::(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;
::(j) Any family violence and its impact on, among other things,
:::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
:::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; and
::(k) Any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security, and well-being of the child.
:(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:
::(a) The nature, seriousness and frequency of the family violence and when it occurred;
::(b) Whether there is a pattern of coercive and controlling behaviour in relation to a family member;
::(c) Whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;
::(d) The physical, emotional and psychological harm or risk of harm to the child;
::(e) Any compromise to the safety of the child or other family member;
::(f) Whether the family violence causes the child or other family member to fear for their own safety or for that of another person;
::(g) Any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and
::(h) Any other relevant factor.
:(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.
:(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

These factors should not be viewed like a checklist. Rather, the discretionary, contextual, and complex nature of parenting time cases makes it more appropriate for the factors to be viewed holistically. Similarly, these factors do not necessarily form an exhaustive list of the factors to be considered. The best interest argument is often expansive, considering a range of factors illuminated at both the statutory and common-law level.

The Court will generally consider the child’s health and emotional well-being, their education, training, love, affection, and similar ties that exist between the child and other persons such as relatives and family friends. If appropriate, the views of the child will be considered. For a parenting order relating to a teenager to be practical, it must reasonably conform to the wishes of the child ([http://canlii.ca/t/1dxml ''O’Connell v McIndoe]'', (1998), 42 R.F.L. (4th) 77 (BCCA), [http://canlii.ca/t/23fnw ''Alexander v Alexander]'', (1988), 15 R.F.L. (3d) 363 (BCCA)).

Other factors have emerged through the common law, including a preference that siblings remain together and a willingness to look into the character, personality, and moral fitness of each parent. However, there is no presumption against the separation of siblings ''(P (AH) v P (AC)'', 1999 BCCA 203). The welfare of the child is not determined solely on the basis of material advantages or physical comfort, but also considers psychological, spiritual, and emotional factors ([http://canlii.ca/t/1fv1n ''King v Low]'',(1985), 44 R.F.L. (2d) 113 (SCC)). The Court will take into account the personality, character, stability, and conduct of a parent, if appropriate ([http://canlii.ca/t/23fhc ''Bell v Kirk]'', (1986), 3 R.F.L. (3d) 377 (BCCA)).

Agreements between parties regarding parenting time do not oust the Court’s jurisdiction. An agreement is important, but only one of several factors to be taken into consideration when determining the best interests of the child. The degree of bonding between child and parent is also taken into consideration. The biological link does not outweigh other considerations, but when all other factors are equal, the parenting time of the child is best served with the biological parents ([http://canlii.ca/t/1fnkk ''L (A) v K (D)]'',2000 BCCA 455; [http://canlii.ca/t/1kvhg ''H (CR) v H. (BA)]'', 2005 BCCA 277).

Race and aboriginal heritage are relevant considerations, but neither is determinative of parenting time alone. The importance of race differs in adoption cases, where it may be given more weight because the Court is making a decision about the child’s exposure to their race or culture ([http://canlii.ca/t/51z8 ''Van de Perre v Edwards]'', 2001 SCC 60). Aboriginal heritage is to be weighed along with other factors in a determination of a child’s best interests ([http://canlii.ca/t/1f50z ''H (D) v M (H)]'', [1997<nowiki>]</nowiki> BCJ No 2144 (QL) (SC)).

Clients may wish to vary a parenting order. The threshold for a variation of a parenting or access order is a material change in the circumstances affecting the child. There is no legal presumption in favour of the custodial parent, although that parent’s views are entitled to respect. The focus is on the best interests of the child, not the interests and rights of the parents ([http://canlii.ca/t/1fr99 ''Gordon v Goertz]'', [1996<nowiki>]</nowiki> 2 SCR 27).

Section 211 of the ''FLA'' allows the Court to order an assessment by a psychologist of each party’s parenting abilities and relationship with the child. These reports are particularly important where the dispute over parenting time is bitter and unlikely to settle. An assessment provides the Court with an independent and neutral expert opinion. Where expert evidence would assist the Court, the Court can order an ''FLA'' Section 211 report ([http://canlii.ca/t/4xfd ''Gupta v Gupta]'', 2001 BCSC 649).

=== 2. Types of Parenting Orders ===

Parenting orders refer to orders made under s 16.1(1) of the ''DA'' regarding parenting time and decision-making responsibilities.

==== a) Interim Orders ====

An interim order is a temporary order made once the proceedings have commenced but before the final order is pronounced. Courts will usually make interim parenting orders while an action in divorce is underway, with an eye to the child’s immediate best interests. Courts tend to favour stability, so an interim order is likely to favour the party with parenting time at the time of the marriage breakdown. This presumption toward stability can give an interim order substantial weight in determining a final parenting order.

==== b) Sole Parenting Time ====

Sole parenting time, in which one parent provides the primary residence and is mostly responsible for day-to-day care, can be granted in cases where the parents request such an arrangement, where they live far apart, or where relations between the parties are so poor as to preclude cooperation.

'''NOTE''': The concept of “full parenting time” does not exist. A parent using this term is most likely referring to sole parenting time.

==== c) Joint Parenting Time ====

In joint parenting time, both parents have parenting time with the child. While the child may reside primarily with one parent, the parents cooperate in raising the child, acting as both joint custodians and guardians of the child. '''In British Columbia, there is a presumption toward joint parenting time. '''

==== d) Shared Parenting Time ====

“Shared parenting time” is a term used by the Federal Child Support Guidelines, but not by either the ''DA'' or the ''FLA''. Shared parenting time is a form of joint parenting time in which the child spends an almost equal time with each parent. Typically, the child would be switching homes on a frequent basis, such as every few days or once a week. This usually requires that the parents live near one another and have good communication skills. It also requires that the child is able to adapt to living in two homes. Any agreement for shared parenting time will affect child support.

==== e) Split Parenting Time ====

“Split parenting time” is a term used by the Federal Child Support Guidelines, and not by either the ''DA'' or the ''FLA''. On rare occasions, courts will order siblings to live with separate parents. This is usually a drastic solution, ordered only after an ''FLA'' section 211 report (a court-ordered report respecting the needs of a child, the views of a child, and the ability and willingness of one of the parents to satisfy the needs of a child) is submitted to the Court. A split parenting time order will affect child support.

=== 3. Other Parenting Time Issues ===

==== a) Consent Orders ====

Where there is agreement on the terms of support or parenting time provisions, but no written agreement, a consent order may be made by the Court under s 219 of the ''FLA'' if the written consent of the party against whom the order is to be enforced has been obtained. The order can extend only to the terms consented to.

==== b) Enforcement of Parenting Time Orders ====

Where a parenting order is in force, the Court may make an order prohibiting interference with a child. The Court may further order sureties and/or documents from the person against whom the order is made and require that person to report to the Court for a period of time (''FLA'', s 183).

Under the ''FLA'', police officer enforcement clauses can only be granted when there has been a breach of an order (s 231).

A child abducted and taken elsewhere within the province will be returned to their rightful custodian. Abduction is an offence under the ''FLA'', s 188 that carries a possibility of criminal proceedings (''[https://canlii.ca/t/56hjs Criminal Code]'', RSC 1985, c C-46, ss 280-281). The ''Criminal Code'' makes it an offence for a non-custodial parent to abduct a child. Where a parenting order is in effect, abduction amounts to contempt of Court.

==== c) ''Parental Mobility'' (Under the ''FLA'', this is referred to as Relocation which has separate considerations from that of Mobility under the ''DA'') ====

Relocation is defined and explained under Division 6 of the ''FLA''. It considers relocation of a child that can reasonably be expected to have a significant impact on the child’s relationship with his/her guardian(s) or other adults with whom the child has a significant relationship (s 65). The guardian intending to relocate with the child must provide 60-day written notice to all other guardians and persons having contact with the child (s 66). The notice must include the date of the relocation, and the name of the proposed location. Exemptions to these requirements can be granted by the Court if they are satisfied that the notice cannot be given without incurring a risk of family violence by another guardian or a person having contact with the child or there is no ongoing relationship between the child and the other guardian or the person having contact with the child (s 66(2)).

The child’s other guardian(s) can object to the relocation within 30 days of receiving the notice. If an objection is made, the guardian requesting the relocation must satisfy the court that (s 69(4)(a)):

:(i) The proposed relocation is made in good faith, and
:(ii) The relocating guardian has proposed reasonable and workable arrangements to preserve the relationship between the child and the child's other guardians, persons who are entitled to contact with the child, and other persons who have a significant role in the child's life.

When considering the good faith requirement, the Court must consider (s 69(6)):

:(a) The reasons for the proposed relocation;
:(b) Whether the proposed relocation is likely to enhance the general quality of life of the child and, if applicable, of the relocating guardian, including increasing emotional well-being or financial or educational opportunities;
:(c) Whether notice was given under section 66 [notice of relocation];
:(d) Any restrictions on relocation contained in a written agreement or an order.

Issues of parental mobility may arise in conjunction with parenting time issues. That is, one parent may wish to relocate away from another parent with whom they share parenting time. In ''[https://canlii.ca/t/1fr99 Gordon v Goertz]'', [1996] 5 WWR 457 (SCC), the Supreme Court of Canada set out the basic principles for the ''DA''. Once the parent applying for the change meets a threshold requirement of demonstrating a material change in the circumstances affecting the child, the Court is required to begin a fresh inquiry into what is in the best interests of the child. Factors to be considered include: the desirability of maximizing contact between the child and both parents, the disruption to the child, and the child’s views.

[http://canlii.ca/t/1fmfc ''One v One]'', 2000 BCSC 1584, also a ''DA'' case, identifies the following list of factors to be considered in determining whether a proposed move is in a child’s best interests:

#The parenting capabilities of and the child’s relationship with parents and their new partners;
#Employment, security and prospects of the parents and, where appropriate, their partners;
#Access to and support of extended family;
#The difficulty of exercising the proposed access and the quality of the proposed access if the move is allowed;
#The effect of the move on the child’s academic situation;
#The psychological and emotional well-being of the child;
#The disruption of the child’s existing social and community support and routine;
#The desirability of the proposed new family unit for the child;
#The relative parenting capabilities of either parent and the respective ability to discharge parenting responsibilities;
#The child’s relationship with both parents;
#The separation of siblings;
#The retraining or educational opportunities for the moving parent.

== E. Contact ==

To gain contact with a child, a non-guardian can either arrange it unofficially with the guardian or seek a contact order.

Contact Orders are used to provide arrangements for '''non-guardians''' under the ''DA''. Anyone who wants a contact order under the Divorce Act must seek leave to apply (''DA'', s 15.5(3)).

Under the ''FLA'', the terms are "parenting time" for guardians, or "contact" for non-guardians. Some parents are not considered guardians and the law recognizes the child’s right to have a relationship with both parents whenever possible.

'''NOTE''': It is important to note that contact/parenting time is a distinct and separate issue from child support. Denial of contact/parenting time is not grounds to withhold support; nor is a failure to pay support grounds for withholding contact/parenting time.

== F. Guardianship ==

Guardianship may be the most important aspect of any legal arrangements concerning the care and control of the children. Guardianship encompasses the whole bundle of rights and obligations involved in parenting a child, including making decisions about the child’s school, moral instruction, religion, health care, dental care, extracurricular activities, etc.

Under the ''FLA'', guardianship is primarily governed by sections 39, 41, and 42.

Parents can also appoint a guardian in a will. If the parents are both dead or have abandoned the child, the Public Guardian and Trustee becomes the child’s guardian.

While a child’s parents are living together and after the child’s parents separate, each parent of the child is presumed to be the child’s guardian (s 39). Upon marital breakdown, this can change either by agreement or by order of the Court.

Section 39 of the ''FLA'' also provides for three other scenarios under which a parent is presumed to be a guardian. A parent who has never resided with a child is not the child’s guardian unless:

#There is an agreement made under section 30 of the ''FLA'',
#The parent and all the child’s guardians make an agreement providing that the parent is also a guardian, or
#The parent regularly cares for the child.

Additionally, a person does not become a child’s guardian by reason only of marriage or a marriage-like relationship.

At the time of birth, the two parents of a child are presumed to be its biological parents unless the child was born as a result of assisted reproduction (section 26, ''FLA''). Assisted reproduction has, at present, always included the use of one or more of donated eggs, donated sperm, and the cooperation of a woman who is willing to carry the baby to term. Section 24 of the ''FLA'' clarifies that a donor of eggs or sperm is not the parent of a child on the basis of their biological contribution alone – donors cannot be made to pay child support unless there is some other connection to the child which justifies holding that the person is a parent under the ''FLA''. If a donor wishes to be regarded as a parent, written agreements can be drafted and signed before the child’s birth which would substantiate their parental claim under the ''FLA''. Unlike donors, surrogates are presumed to be a parent of the child under the ''FLA'' since they are the birth parent. However, this presumption can be overcome by the intended parents and the surrogate signing a written agreement before the child is conceived which states that the surrogate will not be a parent to that child. Without such an agreement, the surrogate and sperm-providing parent would be the presumed parents.

=== 1. Responsibilities of a Guardian ===

Section 41 of the ''FLA'' lists out the parental responsibilities with respect to a child:

:a) Making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child;
:b) Making decisions respecting where the child will reside;
:c) Making decisions respecting with whom the child will live and associate;
:d) Making decisions respecting the child's education and participation in extracurricular activities, including the nature, extent and location;
:e) Making decisions respecting the child's cultural, linguistic, religious and spiritual upbringing and heritage, including, if the child is an aboriginal child, the child's aboriginal identity;
:f) Subject to section 17 of the Infants Act, giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the child;
:g) Applying for a passport, licence, permit, benefit, privilege or other thing for the child;
:h) Giving, refusing or withdrawing consent for the child, if consent is required;
:i) Receiving and responding to any notice that a parent or guardian is entitled or required by law to receive;
:j) Requesting and receiving health, education or other information respecting the child from third parties;
::(i) Subject to any applicable provincial legislation,
::(ii) Starting, defending, compromising, or settling any proceeding relating to the child, and
:k) Identifying, advancing, and protecting the child's legal and financial interests;
:l) Exercising any other responsibilities reasonably necessary to nurture the child's development.

Section 42 of the ''FLA'' defines parenting time as time that a child is with a guardian. During this parenting time, a guardian may exercise the parental responsibility of making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child.

=== 2. Guardianship Orders ===

A person who is not a parent or a parent who is not a guardian may become a guardian of the child by court order, pursuant to section 50 of the ''FLA''. The person applying to court for a guardianship order must demonstrate why it would be in the best interests of the child and provide notice to all of the child’s guardians and adults with whom the child resides (s 51). If the child is over 12, the child’s written consent is also required.

The evidentiary requirements to obtain a Guardianship order are set out under the ''Supreme Court Family Rules'' Rule 15-2.1 and the ''Provincial Court Family Rules'' Rules 26, 51, and 172. The applicant must provide:

:1. An affidavit (The Guardianship Affidavit (Form 5) for provincial jurisdiction and a Form F101 for Supreme Court) requires the following information:

::a. The nature and length of the applicant’s relationship with the child,
::b. The child's living arrangements,
::c. A detailed plan for how the applicant is going to care for the child,
::d. Information about any other children in the applicant’s care,
::e. Information about any incidents of family violence that may affect the child, and
::f. Information about any family or child protection court proceedings the applicant has been involved in;

:2. A Ministry of Children and Family Development records check;

:3. A Protection Order Registry records check; and

:4. A criminal record check.

If an application is made for guardianship of a treaty First Nation’s child, the child’s First Nation’s government must be served notice of the application and has standing in the proceeding (ss 208 and 209 of the ''FLA'').

=== 3. Terminating Guardianship ===

Sole guardianship and joint guardianship are not terms used in the ''FLA''. The parents or a court may decide that one parent should be the only guardian of the child. This terminates the presumption of guardianship for the other parent. The parents may terminate one parent’s guardianship via written agreement (s 39). The court can terminate one parent’s guardianship pursuant to section 51 of the ''FLA''. This is an extreme step, taken only when one parent has been shown to be either uninterested in or incapable of proper parenting.

=== 4. Both Parents are Guardians ===

Under the ''FLA'', the standard guardianship agreement, wherein both parents are or remain guardians, is structured such that parental responsibilities and parenting time are specified in the agreement, with specific provisions which govern the allocation of parenting responsibilities. If no such provisions are included, then each party may exercise all parental responsibilities in consultation with the other guardians (''FLA'' section 40(2)).

The following are standard elements typically included in guardianship agreements:

:a) Both parents equally have all of the parental responsibilities of guardians [with any exceptions listed].
:b) A guardian, after becoming aware of important information relating to the child not known to the other guardian(s), must immediately notify the other guardian(s) about that information.
:c) Subject to other clauses in the agreement, both guardians must consult about any important decisions that must be made and try to reach agreement concerning these important decisions.
:d) During parenting time, a guardian may exercise the parental responsibility of making day-to-day decisions affecting the child provided that the guardian must advise the other parent of any matters of a significant nature affecting the child.
:e) Optionally, the agreement may specify that if one guardian dies, the remaining guardian will assume all parenting responsibilities.

Also, agreements will typically include a dispute resolution clause which governs the situation where the guardians cannot reach agreement over one of their shared responsibilities. The options include:

:a) One parent has the final word; however, the other party can apply to court if they disagree with the deciding parent. In particularly high-conflict cases, giving one parent decision-making authority may be the only solution (''[https://canlii.ca/t/gpphm Friedlander v Claman]'', 2015 BCSC 2409);
:b) The parties go to mediation, wherein the mediator will have the final word if the parties cannot agree;
:c) The parties go to a parenting coordinator who has decision-making authority;
:d) Other collaborative law processes; or
:e) The parties can resolve the matter in court.

=== 5. Relocation ===

Division 6 of Part 4 of the new ''FLA'' states that if you are a child’s guardian and you want to relocate with the child, you must give any other person who can contact the child 60 days’ notice which includes both the date of the relocation and the name of the proposed location.

The Court may grant an exemption to give notice if it is satisfied that notice cannot be given without incurring a risk of family violence by another guardian or a person having contact with the child or there is no ongoing relationship between the child and the other guardian or the person having contact with the child. Once notice is given, a child’s guardians and persons having contact with the child must use their best efforts to resolve any issues relating to the proposed relocation. The proposed relocation may occur unless another guardian of the child files an application to prohibit the relocation within 30 days of receiving notice. The Court will make its decision based on s 37 of the ''FLA'' considering what would be in the best interests of the child.

== G. Parenting Responsibilities and Parenting Time ==

=== 1. Family Law Act ===

According to section 42 of the ''FLA'', parenting time refers to the amount of time that a child spends under the care of a guardian, as determined by an order or agreement. When the child is under their care, guardians assume responsibility for day-to-day care and decision-making for the child (please see section 41 of the ''FLA'' for a range of parenting responsibilities). Parenting time and responsibilities may or may not be allocated equally amongst guardians, and guardians may or may not be required to consult with one another depending on the terms of the order or agreement.

Decisions as to parenting time and responsibilities are determined according to the best interests of the child only. Section 40 of the ''FLA'' notes that the equal division of parenting time and parenting responsibilities is not presumed to be in the best interests of the child, nor should it be presumed that it is inherently better to make decisions separately or jointly. Guardians should not expect that they are entitled to equal sharing of parenting time or parenting responsibility. The best interests of the child are determined by weighing the following non-exhaustive list of considerations set out in section 37(2) of the ''FLA'':

:a. The child's health and emotional well-being;
:b. The child's views, unless it would be inappropriate to consider them;
:c. The nature and strength of the relationships between the child and significant persons in the child's life;
:d. The history of the child's care;
:e. The child's need for stability, given the child's age and stage of development;
:f. The ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;
:g. The impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;
:h. Whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs;
:i. The appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;
:j. Any civil or criminal proceeding relevant to the child's safety, security, or well-being.

A person’s conduct is considered only where their conduct stands to impact any of the above considerations regarding the best interests of the child.

=== 2. Divorce Act ===

Under the ''DA'', the term “parenting time” is used to refer to matters concerning the care, upbringing, and other relevant details pertaining to a child (s 2); parenting time is designated by what is referred to as a parenting order under the current ''DA''. The provisions of section 16 give a brief overview of how an order for parenting is decided and issued, including who may apply for an order, who may issue an order, and several of the court’s considerations when issuing such orders.

As of March 1, 2021, updates to the ''DA'' mean that the term “custody” was replaced by “parenting time” and “parenting responsibilities” to emphasize the importance of the needs of the child rather than on the child as a possession of a parent. Similarly, “order for custody” was replaced by “parenting order.” Section 16(1) through 16(10) were repealed and replaced with a new section entitled “Best Interests of the Child”. This section includes more expansive provisions which focus on determining parenting time and responsibilities based on the best interests of the child. The new section 16(3) provides guidance as to the factors to be considered, including:

:(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
:(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
:(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
:(d) the history of care of the child;
:(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
:(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
:(g) any plans for the child’s care;
:(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;
:(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;
:(j) any family violence and its impact on, among other things,
::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
::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; and
:(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

The updated ''DA'' also sets out the required contents of a parenting order (s 16.1(4)). A parenting order allocates parenting time—and, correspondingly day-to-day decision-making responsibilities—and may include a schedule and permitted means of communication between a child and a person with parenting responsibilities. Parenting orders submitted by consent by the parties must be mutually agreed to when submitted, though a court may modify according to the best interests of the child.

{{LSLAP Manual Navbox|type=chapters1-7}}

Parenting Orders, Guardianship, and Contact (3:XI)

2025-11-10T19:34:21Z

LSLAP: /* A. General */

{{REVIEWED LSLAP | date= November 8, 2025}}
{{LSLAP Manual TOC|expanded = family}}

== A. General ==

Disputes over parenting time of minor children are often the most difficult issues to resolve during the breakdown of a marriage or other relationship. Parenting time decisions can always be changed; however, a material change of circumstances must be established. Thus, the decision about who gets interim parenting time is particularly important. Children usually stay with the parent who has provided primary care in the past and who can spend the most time with them. In most cases, courts will order a form of shared parenting time on an interim basis so that neither parent’s position is prejudiced. The best interest of the child is the '''only''' consideration in determining parenting time, contact, and parenting arrangements (''DA'', s 16(1)). The primary consideration in determining the child’s best interest will be given to the child’s physical, emotional, and psychological safety, security, and wellbeing (''DA'', s 16(2)). For all further factors please see '''[[Parenting Orders, Guardianship, and Contact (3:XI)#D. Parenting Time|Section XI Part D: Parenting Time]]''' Factors in Awarding Parenting Time or s 16(3) of the ''Divorce Act''.

In addition to parenting time, courts can also make decisions regarding guardianship of minor children. Guardianship gives a parent or other person “a full and active” role in determining the course of a child’s life and upbringing (see e.g. ''[https://canlii.ca/t/23r7t Charlton v Charlton]'', [1980] BCJ No 22). There is considerable overlap between the two, but it is useful to note that while having parenting time usually includes having guardianship, the reverse is often not true. This distinction is impacted somewhat by the ''FLA'' as the term “Guardianship” subsumes all the rights and responsibilities of a parent.

The case law on parenting time and guardianship has developed to the point where there is a presumption in favour of joint parenting time (defined on p. 51). A parent seeking sole parenting time will generally have to show that there is a serious defect in the other person’s parenting skills, that the other person is geographically distant, or that the parents are utterly unable to communicate without fighting before the Court will consider granting such an application, and in the last case, the Court may explore other options such as Parenting Coordination or parcelling out decision making and responsibilities to address the communication issue instead of granting sole parenting time to one parent.

== B. Legislation ==

=== 1. Divorce Act ===

The ''DA'' only speaks of contact and parenting time. Under s 16, the Supreme Court may make an order for parenting time. This order will supersede any existing ''FLA'' orders, which cover parenting time, contact, and guardianship, and can be registered for enforcement with any other Superior Provincial Court in Canada. The Supreme Court can also grant interim parenting time before a divorce action is heard.

The ''DA'' applies only to married couples. Under the Act, the person making the application for parenting time must have been “habitually resident” in the province for at least one year prior.

The court will only consider the best interest of the child while making a parenting order or contact order and when allocating parenting time (''DA'' s 16(1)). Subsections 16(2-6) outline the factors under consideration when “best interest of the child” is assessed. Subsection 16(4) outlines the role of family violence in assessing the best interests of the child (see '''[[Family Violence (3:VIII)]]''').

Amendments to the ''DA'' have resulted in changes to the terms of guardianship:

*Replacing of the terms “custody” and “custody order” with “parenting time” and “parenting order”.
*Using the term “contact order” to characterize time spent with someone other than a spouse, including grandparents.
*Adding the term “decision-making responsibility” to define a non-exhaustive list of areas of significant weight and how decisions about those areas must be made (with the “best interests of the child” in mind).

The aim of these changes is to emphasize the “best interests of the child” by focusing on relationships with children.

=== 2. Family Law Act ===

The ''Act'' contains the following definitions surrounding guardianship:

*Defining “guardianship” through a list of “parental responsibilities” that can be allocated to allow for more customized parenting arrangements.
*Provide that parents retain responsibility for their children upon separation if they have lived together with the child after the child’s birth. (Note: this does not mean that the law presumes an automatic 50-50 split of parental responsibilities or parenting time.) If they have not, the parent with whom the child lives is the guardian.

Under the ''FLA'', only guardianship will be considered. Additionally, the “best interests of the child” is not the paramount consideration under the ''FLA''; it is the '''only''' consideration.

== C. Courts ==

=== 1. Supreme Court ===

The Supreme Court has jurisdiction to deal with all matters relating to parenting time, guardianship, and access to children, pursuant to the ''DA'', the ''FLA'', and the ''CFCSA''. The Court almost never deals with the ''CFCSA'' unless there is the matter of adoption to be considered. The Supreme Court also has jurisdiction over orders restraining contact or entry to the matrimonial home.

The Supreme Court has ''parens patriae'' jurisdiction over all children in the province. In operation, this can allow the Court to transcend the statutory letter of the law in drafting orders that best represent the best interests of the child.

A written agreement about parenting time or guardianship may be given the force of a court order under section 44 of the ''FLA''.

An order made under the ''DA'' can be registered for enforcement in any other province’s Supreme Court registry.

=== 2. Provincial Court ===

The Provincial Court has jurisdiction to deal with all matters relating to parenting time, guardianship, access to children, and the ''CFCSA''. This includes restraining orders but does not include orders restraining entry to the matrimonial home. A written agreement about parenting time or guardianship may be given the force of a court order, or under s 44 of the ''FLA'', if it is filed in court.

== D. Parenting Time ==

In the absence of a court order or a written agreement, parenting time of a child remains with the person with whom the child usually resides. One must bear in mind that the ''Act'' does not touch on day-to-day life until it is invoked, usually by filing a lawsuit or by making an application.

=== 1. Factors in Awarding Parenting Time ===

The factors that the Court must consider in determining the “best interests of the child” are set out in s 37 of the ''FLA'':

:(a) The child's health and emotional well-being;
:(b) The child's views, unless it would be inappropriate to consider them;
:(c) The nature and strength of the relationships between the child and significant persons in the child's life;
:(d) The history of the child's care;
:(e) The child's need for stability, given the child's age and stage of development;
:(f) The ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise the person's responsibilities;
:(g) The impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;
:(h) Whether the actions of a person responsible for family violence indicate that the person may be impaired in the person's ability to care for the child and meet the child's needs;
:(i) The appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;
:(j) Any civil or criminal proceeding relevant to the child's safety, security or well-being.

And under s 16(1-6) of the ''DA'':

:(1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.
:(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional, and psychological safety, security and well-being.
:(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including
::(a) The child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
::(b) The nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
::(c) Each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
::(d) The history of care of the child;
::(e) The child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
::(f) The child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
::(g) Any plans for the child’s care;
::(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;
:::(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;
::(j) Any family violence and its impact on, among other things,
:::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
:::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; and
::(k) Any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security, and well-being of the child.
:(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:
::(a) The nature, seriousness and frequency of the family violence and when it occurred;
::(b) Whether there is a pattern of coercive and controlling behaviour in relation to a family member;
::(c) Whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;
::(d) The physical, emotional and psychological harm or risk of harm to the child;
::(e) Any compromise to the safety of the child or other family member;
::(f) Whether the family violence causes the child or other family member to fear for their own safety or for that of another person;
::(g) Any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and
::(h) Any other relevant factor.
:(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.
:(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

These factors should not be viewed like a checklist. Rather, the discretionary, contextual, and complex nature of parenting time cases makes it more appropriate for the factors to be viewed holistically. Similarly, these factors do not necessarily form an exhaustive list of the factors to be considered. The best interest argument is often expansive, considering a range of factors illuminated at both the statutory and common-law level.

The Court will generally consider the child’s health and emotional well-being, their education, training, love, affection, and similar ties that exist between the child and other persons such as relatives and family friends. If appropriate, the views of the child will be considered. For a parenting order relating to a teenager to be practical, it must reasonably conform to the wishes of the child ([http://canlii.ca/t/1dxml ''O’Connell v McIndoe]'', (1998), 42 R.F.L. (4th) 77 (BCCA), [http://canlii.ca/t/23fnw ''Alexander v Alexander]'', (1988), 15 R.F.L. (3d) 363 (BCCA)).

Other factors have emerged through the common law, including a preference that siblings remain together and a willingness to look into the character, personality, and moral fitness of each parent. However, there is no presumption against the separation of siblings ''(P (AH) v P (AC)'', 1999 BCCA 203). The welfare of the child is not determined solely on the basis of material advantages or physical comfort, but also considers psychological, spiritual, and emotional factors ([http://canlii.ca/t/1fv1n ''King v Low]'',(1985), 44 R.F.L. (2d) 113 (SCC)). The Court will take into account the personality, character, stability, and conduct of a parent, if appropriate ([http://canlii.ca/t/23fhc ''Bell v Kirk]'', (1986), 3 R.F.L. (3d) 377 (BCCA)).

Agreements between parties regarding parenting time do not oust the Court’s jurisdiction. An agreement is important, but only one of several factors to be taken into consideration when determining the best interests of the child. The degree of bonding between child and parent is also taken into consideration. The biological link does not outweigh other considerations, but when all other factors are equal, the parenting time of the child is best served with the biological parents ([http://canlii.ca/t/1fnkk ''L (A) v K (D)]'',2000 BCCA 455; [http://canlii.ca/t/1kvhg ''H (CR) v H. (BA)]'', 2005 BCCA 277).

Race and aboriginal heritage are relevant considerations, but neither is determinative of parenting time alone. The importance of race differs in adoption cases, where it may be given more weight because the Court is making a decision about the child’s exposure to their race or culture ([http://canlii.ca/t/51z8 ''Van de Perre v Edwards]'', 2001 SCC 60). Aboriginal heritage is to be weighed along with other factors in a determination of a child’s best interests ([http://canlii.ca/t/1f50z ''H (D) v M (H)]'', [1997<nowiki>]</nowiki> BCJ No 2144 (QL) (SC)).

Clients may wish to vary a parenting order. The threshold for a variation of a parenting or access order is a material change in the circumstances affecting the child. There is no legal presumption in favour of the custodial parent, although that parent’s views are entitled to respect. The focus is on the best interests of the child, not the interests and rights of the parents ([http://canlii.ca/t/1fr99 ''Gordon v Goertz]'', [1996<nowiki>]</nowiki> 2 SCR 27).

Section 211 of the ''FLA'' allows the Court to order an assessment by a psychologist of each party’s parenting abilities and relationship with the child. These reports are particularly important where the dispute over parenting time is bitter and unlikely to settle. An assessment provides the Court with an independent and neutral expert opinion. Where expert evidence would assist the Court, the Court can order an ''FLA'' Section 211 report ([http://canlii.ca/t/4xfd ''Gupta v Gupta]'', 2001 BCSC 649).

=== 2. Types of Parenting Orders ===

Parenting orders refer to orders made under s 16.1(1) of the ''DA'' regarding parenting time and decision-making responsibilities.

==== a) Interim Orders ====

An interim order is a temporary order made once the proceedings have commenced but before the final order is pronounced. Courts will usually make interim parenting orders while an action in divorce is underway, with an eye to the child’s immediate best interests. Courts tend to favour stability, so an interim order is likely to favour the party with parenting time at the time of the marriage breakdown. This presumption toward stability can give an interim order substantial weight in determining a final parenting order.

==== b) Sole Parenting Time ====

Sole parenting time, in which one parent provides the primary residence and is mostly responsible for day-to-day care, can be granted in cases where the parents request such an arrangement, where they live far apart, or where relations between the parties are so poor as to preclude cooperation.

'''NOTE''': The concept of “full parenting time” does not exist. A parent using this term is most likely referring to sole parenting time.

==== c) Joint Parenting Time ====

In joint parenting time, both parents have parenting time with the child. While the child may reside primarily with one parent, the parents cooperate in raising the child, acting as both joint custodians and guardians of the child. '''In British Columbia, there is a presumption toward joint parenting time. '''

==== d) Shared Parenting Time ====

“Shared parenting time” is a term used by the Federal Child Support Guidelines, but not by either the ''DA'' or the ''FLA''. Shared parenting time is a form of joint parenting time in which the child spends an almost equal time with each parent. Typically, the child would be switching homes on a frequent basis, such as every few days or once a week. This usually requires that the parents live near one another and have good communication skills. It also requires that the child is able to adapt to living in two homes. Any agreement for shared parenting time will affect child support.

==== e) Split Parenting Time ====

“Split parenting time” is a term used by the Federal Child Support Guidelines, and not by either the ''DA'' or the ''FLA''. On rare occasions, courts will order siblings to live with separate parents. This is usually a drastic solution, ordered only after an ''FLA'' section 211 report (a court-ordered report respecting the needs of a child, the views of a child, and the ability and willingness of one of the parents to satisfy the needs of a child) is submitted to the Court. A split parenting time order will affect child support.

=== 3. Other Parenting Time Issues ===

==== a) Consent Orders ====

Where there is agreement on the terms of support or parenting time provisions, but no written agreement, a consent order may be made by the Court under s 219 of the ''FLA'' if the written consent of the party against whom the order is to be enforced has been obtained. The order can extend only to the terms consented to.

==== b) Enforcement of Parenting Time Orders ====

Where a parenting order is in force, the Court may make an order prohibiting interference with a child. The Court may further order sureties and/or documents from the person against whom the order is made and require that person to report to the Court for a period of time (''FLA'', s 183).

Under the ''FLA'', police officer enforcement clauses can only be granted when there has been a breach of an order (s 231).

A child abducted and taken elsewhere within the province will be returned to their rightful custodian. Abduction is an offence under the ''FLA'', s 188 that carries a possibility of criminal proceedings (''[https://canlii.ca/t/56hjs Criminal Code]'', RSC 1985, c C-46, ss 280-281). The ''Criminal Code'' makes it an offence for a non-custodial parent to abduct a child. Where a parenting order is in effect, abduction amounts to contempt of Court.

==== c) ''Parental Mobility'' (Under the ''FLA'', this is referred to as Relocation which has separate considerations from that of Mobility under the ''DA'') ====

Relocation is defined and explained under Division 6 of the ''FLA''. It considers relocation of a child that can reasonably be expected to have a significant impact on the child’s relationship with his/her guardian(s) or other adults with whom the child has a significant relationship (s 65). The guardian intending to relocate with the child must provide 60-day written notice to all other guardians and persons having contact with the child (s 66). The notice must include the date of the relocation, and the name of the proposed location. Exemptions to these requirements can be granted by the Court if they are satisfied that the notice cannot be given without incurring a risk of family violence by another guardian or a person having contact with the child or there is no ongoing relationship between the child and the other guardian or the person having contact with the child (s 66(2)).

The child’s other guardian(s) can object to the relocation within 30 days of receiving the notice. If an objection is made, the guardian requesting the relocation must satisfy the court that (s 69(4)(a)):

:(i) The proposed relocation is made in good faith, and
:(ii) The relocating guardian has proposed reasonable and workable arrangements to preserve the relationship between the child and the child's other guardians, persons who are entitled to contact with the child, and other persons who have a significant role in the child's life.

When considering the good faith requirement, the Court must consider (s 69(6)):

:(a) The reasons for the proposed relocation;
:(b) Whether the proposed relocation is likely to enhance the general quality of life of the child and, if applicable, of the relocating guardian, including increasing emotional well-being or financial or educational opportunities;
:(c) Whether notice was given under section 66 [notice of relocation];
:(d) Any restrictions on relocation contained in a written agreement or an order.

Issues of parental mobility may arise in conjunction with parenting time issues. That is, one parent may wish to relocate away from another parent with whom they share parenting time. In ''[https://canlii.ca/t/1fr99 Gordon v Goertz]'', [1996] 5 WWR 457 (SCC), the Supreme Court of Canada set out the basic principles for the ''DA''. Once the parent applying for the change meets a threshold requirement of demonstrating a material change in the circumstances affecting the child, the Court is required to begin a fresh inquiry into what is in the best interests of the child. Factors to be considered include: the desirability of maximizing contact between the child and both parents, the disruption to the child, and the child’s views.

[http://canlii.ca/t/1fmfc ''One v One]'', 2000 BCSC 1584, also a ''DA'' case, identifies the following list of factors to be considered in determining whether a proposed move is in a child’s best interests:

#The parenting capabilities of and the child’s relationship with parents and their new partners;
#Employment, security and prospects of the parents and, where appropriate, their partners;
#Access to and support of extended family;
#The difficulty of exercising the proposed access and the quality of the proposed access if the move is allowed;
#The effect of the move on the child’s academic situation;
#The psychological and emotional well-being of the child;
#The disruption of the child’s existing social and community support and routine;
#The desirability of the proposed new family unit for the child;
#The relative parenting capabilities of either parent and the respective ability to discharge parenting responsibilities;
#The child’s relationship with both parents;
#The separation of siblings;
#The retraining or educational opportunities for the moving parent.

== E. Contact ==

To gain contact with a child, a non-guardian can either arrange it unofficially with the guardian or seek a contact order.

Contact Orders are used to provide arrangements for '''non-guardians''' under the ''DA''. Anyone who wants a contact order under the Divorce Act must seek leave to apply (''DA'', s 15.5(3)).

Under the ''FLA'', the terms are "parenting time" for guardians, or "contact" for non-guardians. Some parents are not considered guardians and the law recognizes the child’s right to have a relationship with both parents whenever possible.

'''NOTE''': It is important to note that contact/parenting time is a distinct and separate issue from child support. Denial of contact/parenting time is not grounds to withhold support; nor is a failure to pay support grounds for withholding contact/parenting time.

== F. Guardianship ==

Guardianship may be the most important aspect of any legal arrangements concerning the care and control of the children. Guardianship encompasses the whole bundle of rights and obligations involved in parenting a child, including making decisions about the child’s school, moral instruction, religion, health care, dental care, extracurricular activities, etc.

Under the ''FLA'', guardianship is primarily governed by sections 39, 41, and 42.

Parents can also appoint a guardian in a will. If the parents are both dead or have abandoned the child, the Public Guardian and Trustee becomes the child’s guardian.

While a child’s parents are living together and after the child’s parents separate, each parent of the child is presumed to be the child’s guardian (s 39). Upon marital breakdown, this can change either by agreement or by order of the Court.

Section 39 of the ''FLA'' also provides for three other scenarios under which a parent is presumed to be a guardian. A parent who has never resided with a child is not the child’s guardian unless:

#There is an agreement made under section 30 of the ''FLA'',
#The parent and all the child’s guardians make an agreement providing that the parent is also a guardian, or
#The parent regularly cares for the child.

Additionally, a person does not become a child’s guardian by reason only of marriage or a marriage-like relationship.

At the time of birth, the two parents of a child are presumed to be its biological parents unless the child was born as a result of assisted reproduction (section 26, ''FLA''). Assisted reproduction has, at present, always included the use of one or more of donated eggs, donated sperm, and the cooperation of a woman who is willing to carry the baby to term. Section 24 of the ''FLA'' clarifies that a donor of eggs or sperm is not the parent of a child on the basis of their biological contribution alone – donors cannot be made to pay child support unless there is some other connection to the child which justifies holding that the person is a parent under the ''FLA''. If a donor wishes to be regarded as a parent, written agreements can be drafted and signed before the child’s birth which would substantiate their parental claim under the ''FLA''. Unlike donors, surrogates are presumed to be a parent of the child under the ''FLA'' since they are the birth parent. However, this presumption can be overcome by the intended parents and the surrogate signing a written agreement before the child is conceived which states that the surrogate will not be a parent to that child. Without such an agreement, the surrogate and sperm-providing parent would be the presumed parents.

=== 1. Responsibilities of a Guardian ===

Section 41 of the ''FLA'' lists out the parental responsibilities with respect to a child:

:a) Making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child;
:b) Making decisions respecting where the child will reside;
:c) Making decisions respecting with whom the child will live and associate;
:d) Making decisions respecting the child's education and participation in extracurricular activities, including the nature, extent and location;
:e) Making decisions respecting the child's cultural, linguistic, religious and spiritual upbringing and heritage, including, if the child is an aboriginal child, the child's aboriginal identity;
:f) Subject to section 17 of the Infants Act, giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the child;
:g) Applying for a passport, licence, permit, benefit, privilege or other thing for the child;
:h) Giving, refusing or withdrawing consent for the child, if consent is required;
:i) Receiving and responding to any notice that a parent or guardian is entitled or required by law to receive;
:j) Requesting and receiving health, education or other information respecting the child from third parties;
::(i) Subject to any applicable provincial legislation,
::(ii) Starting, defending, compromising, or settling any proceeding relating to the child, and
:k) Identifying, advancing, and protecting the child's legal and financial interests;
:l) Exercising any other responsibilities reasonably necessary to nurture the child's development.

Section 42 of the ''FLA'' defines parenting time as time that a child is with a guardian. During this parenting time, a guardian may exercise the parental responsibility of making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child.

=== 2. Guardianship Orders ===

A person who is not a parent or a parent who is not a guardian may become a guardian of the child by court order, pursuant to section 50 of the ''FLA''. The person applying to court for a guardianship order must demonstrate why it would be in the best interests of the child and provide notice to all of the child’s guardians and adults with whom the child resides (s 51). If the child is over 12, the child’s written consent is also required.

The evidentiary requirements to obtain a Guardianship order are set out under the ''Supreme Court Family Rules'' Rule 15-2.1 and the ''Provincial Court Family Rules'' Rules 26, 51, and 172. The applicant must provide:

:1. An affidavit (The Guardianship Affidavit (Form 5) for provincial jurisdiction and a Form F101 for Supreme Court) requires the following information:

::a. The nature and length of the applicant’s relationship with the child,
::b. The child's living arrangements,
::c. A detailed plan for how the applicant is going to care for the child,
::d. Information about any other children in the applicant’s care,
::e. Information about any incidents of family violence that may affect the child, and
::f. Information about any family or child protection court proceedings the applicant has been involved in;

:2. A Ministry of Children and Family Development records check;

:3. A Protection Order Registry records check; and

:4. A criminal record check.

If an application is made for guardianship of a treaty First Nation’s child, the child’s First Nation’s government must be served notice of the application and has standing in the proceeding (ss 208 and 209 of the ''FLA'').

=== 3. Terminating Guardianship ===

Sole guardianship and joint guardianship are not terms used in the ''FLA''. The parents or a court may decide that one parent should be the only guardian of the child. This terminates the presumption of guardianship for the other parent. The parents may terminate one parent’s guardianship via written agreement (s 39). The court can terminate one parent’s guardianship pursuant to section 51 of the ''FLA''. This is an extreme step, taken only when one parent has been shown to be either uninterested in or incapable of proper parenting.

=== 4. Both Parents are Guardians ===

Under the ''FLA'', the standard guardianship agreement, wherein both parents are or remain guardians, is structured such that parental responsibilities and parenting time are specified in the agreement, with specific provisions which govern the allocation of parenting responsibilities. If no such provisions are included, then each party may exercise all parental responsibilities in consultation with the other guardians (''FLA'' section 40(2)).

The following are standard elements typically included in guardianship agreements:

:a) Both parents equally have all of the parental responsibilities of guardians [with any exceptions listed].
:b) A guardian, after becoming aware of important information relating to the child not known to the other guardian(s), must immediately notify the other guardian(s) about that information.
:c) Subject to other clauses in the agreement, both guardians must consult about any important decisions that must be made and try to reach agreement concerning these important decisions.
:d) During parenting time, a guardian may exercise the parental responsibility of making day-to-day decisions affecting the child provided that the guardian must advise the other parent of any matters of a significant nature affecting the child.
:e) Optionally, the agreement may specify that if one guardian dies, the remaining guardian will assume all parenting responsibilities.

Also, agreements will typically include a dispute resolution clause which governs the situation where the guardians cannot reach agreement over one of their shared responsibilities. The options include:

:a) One parent has the final word; however, the other party can apply to court if they disagree with the deciding parent. In particularly high-conflict cases, giving one parent decision-making authority may be the only solution (''[https://canlii.ca/t/gpphm Friedlander v Claman]'', 2015 BCSC 2409);
:b) The parties go to mediation, wherein the mediator will have the final word if the parties cannot agree;
:c) The parties go to a parenting coordinator who has decision-making authority;
:d) Other collaborative law processes; or
:e) The parties can resolve the matter in court.

=== 5. Relocation ===

Division 6 of Part 4 of the new ''FLA'' states that if you are a child’s guardian and you want to relocate with the child, you must give any other person who can contact the child 60 days’ notice which includes both the date of the relocation and the name of the proposed location.

The Court may grant an exemption to give notice if it is satisfied that notice cannot be given without incurring a risk of family violence by another guardian or a person having contact with the child or there is no ongoing relationship between the child and the other guardian or the person having contact with the child. Once notice is given, a child’s guardians and persons having contact with the child must use their best efforts to resolve any issues relating to the proposed relocation. The proposed relocation may occur unless another guardian of the child files an application to prohibit the relocation within 30 days of receiving notice. The Court will make its decision based on s 37 of the ''FLA'' considering what would be in the best interests of the child.

== G. Parenting Responsibilities and Parenting Time ==

=== 1. Family Law Act ===

According to section 42 of the ''FLA'', parenting time refers to the amount of time that a child spends under the care of a guardian, as determined by an order or agreement. When the child is under their care, guardians assume responsibility for day-to-day care and decision-making for the child (please see section 41 of the ''FLA'' for a range of parenting responsibilities). Parenting time and responsibilities may or may not be allocated equally amongst guardians, and guardians may or may not be required to consult with one another depending on the terms of the order or agreement.

Decisions as to parenting time and responsibilities are determined according to the best interests of the child only. Section 40 of the ''FLA'' notes that the equal division of parenting time and parenting responsibilities is not presumed to be in the best interests of the child, nor should it be presumed that it is inherently better to make decisions separately or jointly. Guardians should not expect that they are entitled to equal sharing of parenting time or parenting responsibility. The best interests of the child are determined by weighing the following non-exhaustive list of considerations set out in section 37(2) of the ''FLA'':

:a. The child's health and emotional well-being;
:b. The child's views, unless it would be inappropriate to consider them;
:c. The nature and strength of the relationships between the child and significant persons in the child's life;
:d. The history of the child's care;
:e. The child's need for stability, given the child's age and stage of development;
:f. The ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;
:g. The impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;
:h. Whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs;
:i. The appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;
:j. Any civil or criminal proceeding relevant to the child's safety, security, or well-being.

A person’s conduct is considered only where their conduct stands to impact any of the above considerations regarding the best interests of the child.

=== 2. Divorce Act ===

Under the ''DA'', the term “parenting time” is used to refer to matters concerning the care, upbringing, and other relevant details pertaining to a child (s 2); parenting time is designated by what is referred to as a parenting order under the current ''DA''. The provisions of section 16 give a brief overview of how an order for parenting is decided and issued, including who may apply for an order, who may issue an order, and several of the court’s considerations when issuing such orders.

As of March 1, 2021, updates to the ''DA'' mean that the term “custody” was replaced by “parenting time” and “parenting responsibilities” to emphasize the importance of the needs of the child rather than on the child as a possession of a parent. Similarly, “order for custody” was replaced by “parenting order.” Section 16(1) through 16(10) were repealed and replaced with a new section entitled “Best Interests of the Child”. This section includes more expansive provisions which focus on determining parenting time and responsibilities based on the best interests of the child. The new section 16(3) provides guidance as to the factors to be considered, including:

:(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
:(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
:(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
:(d) the history of care of the child;
:(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
:(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
:(g) any plans for the child’s care;
:(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;
:(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;
:(j) any family violence and its impact on, among other things,
::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
::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; and
:(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

The updated ''DA'' also sets out the required contents of a parenting order (s 16.1(4)). A parenting order allocates parenting time—and, correspondingly day-to-day decision-making responsibilities—and may include a schedule and permitted means of communication between a child and a person with parenting responsibilities. Parenting orders submitted by consent by the parties must be mutually agreed to when submitted, though a court may modify according to the best interests of the child.

{{LSLAP Manual Navbox|type=chapters1-7}}

Divorce (3:IV)

2025-11-10T19:19:42Z

LSLAP: /* 1. Adultery: s 8(2)(b)(i) */

{{REVIEWED LSLAP | date= November 8, 2025}}
{{LSLAP Manual TOC|expanded = family}}

== A. Legislation ==

The federal legislation governing divorces in Canada is the ''Divorce Act [DA]''. The ''DA'' applies to legally married couples, including same-sex couples so long as residency requirements for one spouse are met. It does not apply to common-law couples or other unmarried couples. The provincial family law legislation in BC is the ''Family Law Act [FLA]'', which applies to people in all relationships. The reason there are two statutes governing this area is the division of powers under sections 91 and 92 of the ''Constitution Act'', 1867. This gives the federal government jurisdiction over “Marriage and Divorce” (s 91), while giving provincial governments jurisdiction over “The Solemnization of Marriage in the Province” and “Property and Civil Rights” (s 92).

== B. Jurisdiction ==

=== 1. Supreme Court ===

The Supreme Court of British Columbia has jurisdiction over both the ''DA'' and the ''FLA''. Because all divorce claims must be heard under the ''DA'', the Supreme Court has exclusive jurisdiction over divorce claims. The Supreme Court has concurrent jurisdiction with Provincial Court over guardianship, parenting arrangements and support for children (including common-law couples) while division of property is under the exclusive jurisdiction of the Supreme Court. If a Supreme Court order for parenting time, access, or support is made under the ''DA'', that order supersedes any existing ''FLA'' order.

An uncontested divorce does not require a personal appearance in Supreme Court. Evidence can be submitted by affidavit with the application for the Divorce Order, called a “Desk Order Divorce”. In fact, parties are required to submit applications for Divorce by way of a “Desk Order” unless there is a reason to bring it on by way of application in Chambers.

'''Note that as of March 1, 2021, the term “custody” under the ''DA'' was repealed, and the term “parenting time” is used in its place.'''

=== 2. Provincial Court ===

The Provincial Court only has jurisdiction to hear matters under the ''FLA'' and cannot hear any claim under the ''DA'', including divorce applications. The Provincial Court can make orders or vary original Provincial Court orders relating to guardianship, parenting arrangements, contact, child support, and spousal support. The Court does '''not''' have jurisdiction to deal with claims for the division of property under the ''FLA''.

== C. Requirements for a Divorce ==

=== 1. Jurisdiction ===

To obtain a divorce in a particular province, one of the parties to the claim must have been “ordinarily resident” in that province for at least one year immediately preceding the presentation of the Notice of Family Claim (''DA'', s 3(1)), unless the below exception applies. A person can be “ordinarily resident” in a province and still travel or have casual or temporary residence outside the province.

''[https://canlii.ca/t/539nk An Act to Amend the Civil Marriage Act]'', SNB 2013, c 25 received Royal Assent and came into force on June 26, 2013. It allows non-resident couples married in Canada to divorce in Canada if they cannot get a divorce in their country of residence.

There must not be another divorce proceeding involving the same parties in another jurisdiction. If two actions are pending and were commenced on different days (divorce, corollary relief or variation), the court in which a divorce proceeding was commenced first has exclusive jurisdiction unless the first proceeding is discontinued (''DA'' s 3(2)). As of February 01, 2024, there is no requirement that the first proceeding be discontinued within a certain amount of time to instead move forward with the second proceeding.

If two proceedings were commenced on the same day, the parties have 40 days to discontinue one of such proceedings (divorce, corollary relief, or variation) (''DA'' s 3(3), 4(3), 5(3)). If neither proceeding is discontinued within the allotted time, an application can be made by either or both of the parties to have the Federal Court determine which court retains jurisdiction by applying the following:

#If either proceeding includes parenting order application, the court that retains jurisdiction is the court in the province in which the child is habitually present;
#If no parenting order, the court in the province the spouses last maintained habitual residence in common retains jurisdiction; and
#In any other case, the court that the Federal Court determines most appropriate retains jurisdiction.

Parties must submit a clearance form, filled out online and printed, at the time of filing the Notice of Family Claim and Marriage Certificate.

=== 2. A Valid Marriage: Proof of Marriage ===

Section 52(1) of the [https://canlii.ca/t/56c3t ''Evidence Act''], RSBC 1996, c 124 states that if it is alleged in a civil proceeding that a ceremony of marriage took place in BC or another jurisdiction, either of the following can serve as evidence that the ceremony took place:
#the evidence of a person present at the ceremony (less common);
#or a document purporting to be the original or a certified copy of the certificate of marriage (the church certificate is not acceptable).

'''Note''': A certified copy is often not accepted by the Registry and all efforts should be made to obtain the original marriage certificate.

The simplest way is to use a certificate of marriage or registration of marriage. Only if the certificate or registration of marriage is not available should the evidence of a person present at the ceremony be used. An official translation of the marriage certificate and a translator’s affidavit must be provided if the marriage certificate is in any language other than English or French. The Court may require further proof that the marriage is valid if the documents evidencing the marriage appear questionable. Since a recent change on December 1, 2024, French can be used in BC divorce filings, but it is advisable to verify with the Supreme Court registry if documents in French need translation. Immigration and landing documents can be used as additional proof of marriage in these situations. In British Columbia, a party can order an original marriage certificate from Vital Statistics by filling out a request form, available at https://ecos.vs.gov.bc.ca/.

If a marriage certificate absolutely cannot be provided (e.g. the records cannot be obtained from the parties’ country of origin or were destroyed), and if there are no witnesses to the marriage available, a party to the divorce proceeding can attempt to prove their marriage by attesting to “cohabitation and reputation” in an affidavit. The Court will hear evidence of the couple’s “cohabitation and reputation” from the parties and witnesses. Where there are witnesses to the marriage available, a witness will be required to sign and swear an affidavit stating that: they were at the ceremony, it was conducted in accordance with the laws and religion of the country where the parties married, and to the best of their knowledge, the two parties were in fact married according to their law and traditions.

=== 3. Grounds for Divorce ===

In accordance with s 8(1) of the ''DA'', either or both spouses may apply for a divorce on the ground that there has been a breakdown of their marriage as evidenced by '''separation for a year, adultery, or physical or mental cruelty''' (see below). For the divorce action to succeed, the claimant must have valid grounds under s 8(2)(a) or 8(2)(b), and the respondent must be unable to raise a valid defence. Most divorces are based on separation rather than adultery or cruelty, in part because the accusing party must prove adultery and/or cruelty on the balance of probabilities. Where a claim for divorce based on adultery or cruelty has been filed for more than one year before the application for divorce is heard, the Court will usually grant the divorce on the ground of one-year separation.

Note the decision of ''[https://canlii.ca/t/4zgl McPhail v McPhail]'', 2001 BCCA 250 (CanLII), in which the Court found that, where both the grounds of cruelty and the grounds of a one-year separation for divorce exist, it would be appropriate for a trial judge to exercise their discretion to grant the divorce on the grounds of a one-year separation (no-fault) instead of on cruelty (fault). This was extended in ''[https://canlii.ca/t/fw3t1 Aquilini v Aquilini]'', 2013 BCSC 217 (CanLII) to state that a one-year separation should be used as the grounds for divorce instead of adultery where both exist.

== D. Divorces Based on Separation: s 8(2)(a) ==

=== 1. Separation - One Year ===

Under the ''DA'', neither party needs to prove “fault” to get a divorce. Most divorces will proceed under s 8(2)(a), separation for a period of at least one year. '''Although the pleadings starting the action can be filed immediately upon separation, the Divorce Order cannot be sought until one day after the parties have been separated for one year'''.

The ground of separation requires recognition by '''one''' of the parties that the marriage is at its end. It is not necessary that the parties form a joint intention. It is also not necessary that the two parties live in separate homes, although they must live “separate and apart” and demonstrate the intention to separate. For example, the parties may move into separate bedrooms in the same home.

=== 2. 90-Day Reconciliation Period ===

Any number of reconciliation attempts may be made during the separation year without affecting the application for divorce. However, if:

#the length of any reconciliation attempt exceeds 90 days, or
#the aggregate total length of reconciliations exceeds 90 days,

then the time for calculating the one-year period of separation must start over again with the first day of calculation being the first day of separation after the 90+ day reconciliation ended (s 8(3)(b)(ii)).

=== 3. Living Under the Same Roof ===

Some couples may choose to continue to live under the same roof after they have decided to separate for financial reasons or for the sake of the children. Indications of separation include: separate bank accounts, separate bedrooms, cooking their own meals, doing their own laundry, etc. (i.e., if there is an obvious severance of the conjugal relationship), they can still be considered separated.

This is the case for the ''DA'', though it should be noted that the Canada Revenue Agency (CRA) takes a different position when it comes to taxes and child benefit payments. The CRA does not recognize living separate and apart under the same roof for the purpose of tax benefits unless there is a separate suite in the home.

== E. Divorces Based on Cruelty or Adultery: Divorce Act, s 8(2)(b) ==

Divorces based on separation require at least one year to pass before the divorce order can be granted. Divorce claims based on the ground of cruelty or adultery can result in an immediate divorce.

=== 1. Adultery: s 8(2)(b)(i) ===

Adultery is voluntary sexual intercourse between a married person and someone other than their spouse. The meaning of “adultery” includes sexual acts outside the marriage with a person of the same sex (''[https://canlii.ca/t/1llw5 P. (S.E.) v. P. (D.D.)]'', 2005 BCSC 1290 (CanLII)). The standard of proof for adultery is the same as the civil standard: the Court must be satisfied on a balance of probabilities (see ''[https://canlii.ca/t/gd8mn Adolph v. Adolph]'', 1964 CanLII 843 (BC CA)). Proof can come in the form of an affidavit from one or both of the adulterers.

The Court will require proof that the adulterous conduct was not forgiven by the innocent spouse (condonation) and that the conduct was not conspired towards for the purposes of obtaining the divorce (collusion and connivance, see below).

=== 2. Physical or Mental Cruelty: s 8(2)(b)(ii) ===

The test for cruelty is subjective. The question asked in a cruelty case is whether the conduct is of such a kind as to render intolerable the continued cohabitation of the spouses. There is no objective standard in the sense that certain conduct will constitute cruelty in every case while other conduct will not. The respondent’s conduct may constitute cruelty even if there is no intent to be cruel. What must be determined is the effect of the conduct on a particular person, rather than the nature of the acts committed (''[https://canlii.ca/t/k3gpk P.S.X. v. A.B.]'', 2024 ONSC 1260 (CanLII)).

If the spouses are still cohabiting, the Court will infer that the conduct was not intolerable unless the claimant had no means or opportunity for leaving. Lack of income, children at home, and difficulty with the English language may qualify as reasons for continuing cohabitation.

Again, to make a case based on cruelty, there must be proof on the balance of probabilities. Things that could be entered as evidence in this area include medical evidence such as charts and doctors' statements.

== F. Why a Divorce Application May Be Rejected ==

=== 1. Collusion ===

Collusion is, simply put, both parties conspiring to obtain a divorce. A more expansive definition can be found in s 11(4) of the ''DA''. Collusion is an '''absolute bar''' to a divorce on the grounds of cruelty or adultery.

=== 2. Condonation ===

Condonation consists of forgiving a marital offence that would otherwise be a ground for divorce. There are three requirements: knowledge of the matrimonial offence by the claimant; forgiveness of the offence; and actual reinstatement of the relationship. A single attempt or a series of attempts at reconciliation totalling less than 90 days does '''not''' qualify as condonation.

Condonation is a '''discretionary bar''' to a divorce. If the matter is raised, the onus is on the claimant to disprove it.

=== 3. Connivance ===

Connivance occurs when one spouse encourages the other to commit adultery or cruelty. There must be a “corrupt intention… …to promote or encourage either initiation or the continuance… …or it may consist of a passive acquiescence”. Keeping watch on the other spouse does not constitute passive acquiescence: ''[https://canlii.ca/t/g14fn Maddock v. Maddock]'', 1958 CanLII 132 (ON CA).

Connivance is a '''discretionary bar''' to a divorce, similar in effect to condonation.

=== 4. Discretion of the Court ===

In cases of condonation or connivance, the claim for divorce will be dismissed unless, in the Court’s opinion, the public interest would be better served by granting the divorce.

The Court may also reject an application for divorce where: a divorce is pending in another jurisdiction; a marriage certificate or registration of marriage has not been provided; there are defects in the application materials; or there are defects in the form of draft order provided with the application. The Court registry is very particular about the content and form of both the application materials and the draft order, which may result in the rejection of the application before it gets to a judge.

=== 5. Divorce Will Not Be Granted Until Child Support Is Settled ===

In a divorce proceeding, it is the duty of the Court to satisfy itself that “reasonable arrangements” have been made for the support of any children of the marriage, typically having regard to the Federal Child Support Guidelines. If such arrangements have not been made, s 11(1)(b) of the ''DA'' requires the Court to stay the granting of the divorce. When stepchildren are involved, the Court will determine child support requirements for a stepparent on a case-by-case basis. The definition of “child of the marriage” in s 2 of the ''DA'' is broad enough to include children for whom one spouse “stands in the place of a parent”.

== G. Separation Agreements ==

=== 1. General – Family Law Act ===

The ''FLA'' defines a written agreement as an agreement that is in writing and signed by all parties (''FLA'', s 1). A separation agreement is a legal contract that generally provides for a division of property and debt, the support of a dependent spouse, and for the support, guardianship, and parenting arrangements of a child by a parent.

A separation agreement can deal with some or all of these issues. It can eliminate much of the emotional disturbance involved in courtroom proceedings and provide the parties with an arrangement to which they have both agreed, as opposed to a Court order, with which neither party may be happy. Part 2, Section 6 outlines that parties are able to make agreements to resolve disputes and respecting matters at issue in a family law dispute and subject to the ''FLA'', the agreement is binding on the parties.

The overarching test for any agreements made regarding Part 4 of the ''FLA'' (guardianship, parenting arrangement contact) is the best interest of the child test in section 37 of the ''FLA''.
A separation agreement between spouses can also deal with division of family property and family debt, as well as any assets excluded from division.

Section 85 of the ''FLA'' excludes the following from the division of family property:

*Property acquired by a spouse before the relationship between the spouses began;
*Inheritances to a spouse;
*Gifts to a spouse from a third party;
*A settlement or an award of damages to a spouse as compensation for injury or loss, unless the settlement or award represents compensation for
**Loss to both spouses, or
**Lost income of a spouse;
*Money paid or payable under an insurance policy, other than a policy respecting property, except any portion that represents compensation for
**Loss to both spouses, or
**Lost income of a spouse;
*Property referred to in any of the paragraphs above that is held in trust for the benefit of a spouse;
*A spouse's beneficial interest in property held in a discretionary trust
**To which the spouse did not contribute, and
**That is settled by a person other than the spouse;
*Property derived from property or the disposition of property referred to in any of the above paragraphs.

Each spouse must be aware of the potential influence of any agreement on future expectations, and the legal implications of the agreement on questions of ownership and title in family property. Each spouse should have independent legal advice, even in cases where the parties seem to agree on the terms of a separation agreement. If a separation agreement has been signed and one party did not have independent legal advice this may go towards evidence of unfair contracting, and it may be possible to overturn the contract.

It is possible that a separation agreement containing provisions for support may be regarded by the Court as evidence of liability on the part of the supporting spouse. While the agreement does not usurp the Court’s jurisdiction in support, guardianship or parenting arrangements, the Court will consider the terms of the agreement when making the order. Whether the Court will uphold the terms of the agreement changes depending on the subject matter of the agreement. See sections of the ''FLA'' that apply to each subject matter. Note also that any orders respecting agreements are subject to s 214 of the ''FLA''.

In addition to property settlements, guardianship or parenting arrangements, and support, the separation agreement may embrace any other matters the parties wish to include in it, and often includes estate provisions, releases, penalties for breach of the contract, etc. A separation agreement can be more flexible than a Court order. For example, a Court order cannot contain contingent terms, but a separation agreement can.

'''NOTE:''' Because of the complicated nature of separation agreements, clients who wish to make a separation agreement should be given family law referrals.

== H. Other Points to Note ==

=== 1. Jurisdictions to Vary Proceedings ===

Section 5(1) of the ''DA'' allows a Court in a province other than the Court of original jurisdiction (that is, the Court which originally made an order) to vary an order made under the ''DA'' if:
*One of the former spouses is ordinarily resident in the province at the commencement of the proceeding; or
*Both former spouses accept the jurisdiction of the Court.

=== 2. Adjournment for Reconciliation under the DA ===

Where at any stage in a divorce proceeding it appears to the Court from the nature of the case, the evidence, or the attitude of either or both spouses that there is a possibility of reconciliation of the spouses, s 10(2) of the ''DA'' allows the Court to adjourn proceedings to give the spouses an opportunity to reconcile. The Court can also, with the spouses' consent, nominate a marriage counsellor, or in special circumstances, some other suitable person to assist a reconciliation.

=== 3. Alteration of Effective Date of Divorce ===

Under s 12 of the ''DA'', a divorce takes effect on the 31st day after the day on which the judgment granting the divorce is rendered. The 31 days allow for the appeal period to expire. The Court may order that the divorce take effect before this if it is of the opinion there are special circumstances, and the spouses agree that no appeal from the judgment will be taken. The impending birth of a child and remarriage are generally '''not''' considered compelling reasons to shorten the appeal period. However, one may file an appeal waiver to remarry sooner.

=== 4. Support Order After Divorce Has Been Granted ===

Under s 2(1) of the current ''DA'' “spouse” means two persons who are currently married to each other or were formerly married to one another. As such, a former spouse may be able to get a support order after the divorce has been granted. '''The amended ''DA'' has repealed s 15 and updated the definition of “spouse” under s 2(1) to reflect the sections under which the meaning of “spouse” is inclusive of “former spouse.” This change came into effect March 1, 2021.'''

=== 5. Mediation ===

A form of mediation for separating couples is provided by the Family Justice Counsellors of the Ministry of Attorney General. It is intended to steer people out of the Court system. Similar to the small claims process, if the two parties come to an agreement through mediation, they may choose to sign a binding contract after the process. Should either party choose not to sign, the agreement will not be binding. Family Justice Counsellors work in Family Justice Centres and Justice Access Centres which are located throughout British Columbia:

:Family Justice Centre and Justice Access Centre Locations:

:Website: https://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help/family-justice-services-division/family-justice-centres/locations

:Contact: 1-844-747-3963

There is also the Family Mediation Practicum Program which aims to provide affordable mediation services to participants while also offering practical training to new mediators (along with an experienced mentor mediator). See '''[[Governing Legislation and Resources for Family Law (3:II)#B. Resources on the Internet | Section II Part B: Resources on the Internet]]'''.

Parties may wish to retain a private family law mediator to assist them in mediating a resolution to their family law matter. They may contact the British Columbia Mediator Roster Society for names of family law mediators. See '''[[Governing Legislation and Resources for Family Law (3:II)#B. Resources on the Internet | Section II Part B: Resources on the Internet]]'''. Not all family law mediators are listed on the roster, and there are many family lawyers who are specifically trained and accredited in family law mediation.

The ''FLA'' favours out of Court resolution of issues, and even gives courts the authority to refer parties to counselling and mediation (''FLA'', s 224). It also formally recognizes the role of and duties of family dispute resolution professionals (Section 8), family justice counsellors (Section 10), and parenting coordinators (Part 2, Division 3).

=== 6. Collaborative Divorce ===

Another option for parties dealing with family law matters is the Collaborative Divorce Model. This offers an option for parties to resolve disputes respectfully and without going to Court. Parties work out a negotiated settlement with the help of collaboratively trained professionals including (as needed) lawyers, divorce coaches, child specialists and financial specialists. This allows the parties to negotiate a settlement without the threat of Court. If the parties are unable to resolve matters through the Collaborative process, the Collaborative professionals will not be involved in Court proceedings. See the websites listed in '''[[Governing Legislation and Resources for Family Law (3:II)#B. Resources on the Internet | Section II Part B: Resources on the Internet]]''' above for more information.

=== 7. Rule 7-1: Judicial Case Conferences ===

In cases where relief other than a simple divorce is sought in the Supreme Court, Rule 7-1 of the ''[https://canlii.ca/t/56dv0 Supreme Court Family Rules]'', BC Reg 169/2009 requires that a judicial case conference (JCC) be held before a party to a contested family law proceeding delivers a notice of application or affidavit in support of an interlocutory application to the other party. There are exceptions to this rule. A party may file and serve a notice of application and supporting affidavits in any of the following applications even though a JCC has not yet been conducted:
*An application for an order under section 91 of the FLA restraining the disposition of any property at issue;
*An application for an order under section 32 or 39 of the ''[https://canlii.ca/t/55vcd Family Homes on Reserves and Matrimonial Interests or Rights Act]'', SC 2013, c 20 or a First Nation's law made under that Act with respect to an equivalent matter;
*An application for a consent order;
*An application without notice;
*An application to change, suspend or terminate a final order;
*An application to set aside or replace the whole or any part of an agreement;
*An application to change or set aside the determination of a parenting coordinator.

The purpose of a JCC is to help the parties come to an agreement on some or all of the matters at issue, to identify the issues that are in dispute and those that are not, to explore alternatives to litigation, to schedule disclosure, discoveries, and the exchange of documents, and to schedule interim applications and the trial date. JCCs may be heard by either judges or masters and are set for approximately an hour and a half. Parties can set more than one Judicial Case Conference.

=== 8. Divorce Law and First Nations People ===

Special concerns arise in cases involving First Nations People registered under the ''[https://canlii.ca/t/5439p Indian Act]'', RSC 1985, c I-5. The Indian Act sets out guidelines for and definitions of Aboriginal people and defines who is eligible for “status”. Only “status” people are affected by the legislation under the ''Indian Act''. One spouse’s treaty payment may be directed to the other “where the Ministry is satisfied he deserted his spouse or family without sufficient cause, conducted himself in such a manner as to justify the refusal of his spouse or family to live with him, or has been separated by imprisonment from his spouse and family” (''Indian Act'', s 68). As well, reserve land allocated by a certificate of possession cannot be dealt with in the same manner as a matrimonial home because the rules in the ''FLA'' do not apply to reserve land. However, in such cases, the Court may ask that the spouse in possession of the reserve land pay cash compensation to the other spouse (''[https://canlii.ca/t/231qm George v George]'', 1997 CanLII 14474 (BC CA)). Keep in mind that most provincial laws apply to Aboriginal people and reserve land unless they are in direct conflict with the ''Indian Act''. Further, courts will almost always take the cultural identity of the children into consideration when making an order for parenting time; see e.g. ''D.H. v H.M.'', [1999] SCJ No 22, and see ''[https://canlii.ca/t/51z8 Van de Perre v. Edwards]'', 2001 SCC 60.

Furthermore, for First Nation Peoples living on reserves, the ''Family Homes on Reserves and Matrimonial Interests or Rights Act'', SC 2013, c. 20 applies and can affect the division of assets in the case of divorce or separation (see ss 43, 46).

=== 9. Other Procedural Options ===

There are many other procedural options available to parties in Family Law disputes. Section 8 of the ''FLA'' requires counsel and other Family Dispute Resolution Professionals to discuss the advisability of the various types of family dispute resolution, which include those listed above as well as the following:
* Family Law Arbitration. For more information see https://family.legalaid.bc.ca/visit/arbitrators
* Med/Arb, which is a combination of both Mediation and Arbitration.
* Judicial Settlement Conferences pursuant to Rule 7-2 of the ''Supreme Court Family Rules''
* Family Management Conferences pursuant to Rule 7(1) of the ''Provincial Court Family Rules''
* The use of a Parenting Coordinator to address ongoing parenting and communication issues between the parties after an order or agreement has been reached for the parenting arrangement. For more information see http://www.bcparentingcoordinators.com/

== I. Availability of Divorce Services in BC ==

=== 1. Legal Aid ===

Legal Aid BC may be able to provide assistance in some cases, depending on income and the type of the family law issue. For brief advice over the phone, you can also contact Family LawLINE. For more information see https://legalaid.bc.ca/services/family-law-legal-advice

=== 2. Lawyers ===

Most lawyers will expect an initial payment from their client. The amount of the initial retainer will vary depending on the lawyer’s hourly rate and their estimation of the complexity of the case. We advise clients to use the Lawyer Referral Service (604) 687-3221 or 1-800-663-1919. The 15-30 minutes of the initial consultation with the lawyer are free and conducted over the phone, with the lawyer charging a fee after the initial consultation.

To minimize costs when retaining a lawyer, clients should be advised to:
*Negotiate the cost of legal services in advance so they do not come as a surprise;
*Collect all necessary documentation personally rather than paying the lawyer to do it;
*Call the lawyer only when imparting necessary information (every phone call costs money);
*Use Family Court and Supreme Court resources (such as Family Justice Counsellors) if appropriate;
*Ask for regular or scheduled billing to monitor escalating legal costs;
*Carefully read all correspondence sent by the lawyer; and
*Treat the lawyer as a professional.

=== 3. Amici Curiae (AC) Friends of Court ===
Amici Curiae (AC) Friends of Court is a free service where volunteers assist individuals by helping them complete and draft legal forms, including applications for uncontested BC Supreme Court divorces. Please note that volunteers do not provide legal advice. For more information see https://www.legalformsbc.ca/

=== 4. Other Resources ===
See '''[[Governing Legislation and Resources for Family Law (3:II)#B. Resources on the Internet | Section II Part B: Resources on the Internet]]''' above for more services and information.

{{LSLAP Manual Navbox|type=chapters1-7}}

Marriage (3:III)

2025-11-10T19:15:14Z

LSLAP: /* 2. Legislation: Family Law Act [FLA] */

{{REVIEWED LSLAP | date= November 8, 2025}}
{{LSLAP Manual TOC|expanded = family}}

== A. Marriage ==

Marriage creates a legal relationship between two people, giving each certain legal rights and obligations. A legal marriage must comply with certain legal requirements. Therefore, not all marriages are legally recognized.

== B. Legal Requirements and Barriers ==

To be legally recognized or considered “valid”, a marriage must meet several legal requirements. Failure to meet these requirements may render the marriage void ab initio (void from the beginning). In other circumstances, such as sham marriages or marriages in which one party did not consent or did so under duress, the marriage may be voidable, meaning the marriage is valid until an order is made by the Court to annul the marriage.

=== 1) Sex ===

In the past, spouses had to be of opposite sexes. This has been found to be unconstitutional (see [http://canlii.ca/t/1jdhv ''Reference re Same Sex Marriage''], [2004] SCR 698, [2004], SCJ No 75), and same-sex couples can now marry in every province and territory with the passing of Bill C-38 in the House of Commons, and subsequent passing in the Senate. Bill C-38 received Royal Assent on July 20, 2005, becoming the [http://canlii.ca/t/7w02 ''Civil Marriage Act'', SC 2005, c 33].

=== 2) Relatedness ===

The federal [http://canlii.ca/t/7vq2 ''Marriage (Prohibited Degrees) Act''], 1990, c 46, bars marriage between lineal relatives, including half-siblings and adopted siblings.

=== 3) Marital Status ===

Both spouses must be unmarried at the time of the marriage.

=== 4) Age ===

Both spouses must be over the age of majority (19 in BC; see the [http://canlii.ca/t/5224c ''Age of Majority Act''], RSBC 1996, c7, s 1). In BC, a minor between the ages of 16 and 19 can marry only with the consent of both of their parents (see the [https://canlii.ca/t/5643s ''Marriage Act''], RSBC 1996, c 282, s 28). A minor under the age of 16 can marry only if permission is granted in a Supreme Court order (s 29). However, a marriage is not automatically invalid if the requirements of s 28 and 29 have not been met at the time of marriage (s 30); the Court may preserve the marriage if it is in the interests of justice to do so (e.g., if parties have grown up and have lived as spouses for some time).

=== 5) Mental Capacity ===

At the time of the ceremony, both parties must be capable of understanding the nature of the ceremony and the rights and responsibilities involved in marriage.

=== 6) Residency ===

The ''[https://canlii.ca/t/52hdt Civil Marriage Act]'', SC 2005, c 33 was passed in 2014. With this act, marriages performed in Canada between non-Canadian residents will be valid in Canada, regardless of the law in either spouse’s country of residence. Additionally, Canadian courts will be able to grant divorces to non-resident spouses who were married in Canada, and who are unable to get divorced in their own state because that state does not recognize the validity of the marriage.

=== 7) Foreign Marriages ===

The common-law rule is that the formalities of marriage—i.e., who can marry, who can perform weddings—are those of the law where the marriage took place, while the legal capacity of each party is governed by the law of the place where they live.

=== 8) Sham Marriages ===

When parties marry solely for some purpose such as tax benefits or immigration status, the marriage may be voidable for lack of intent. However, the marriage may not be void for lack of intent alone, and courts may find the marriage valid and binding when the parties consented to the union (for example, see [http://canlii.ca/t/26v81 ''Grewal v Kaur''], 2009 CanLII 66913 (ON SC). Sham marriages are uncommon.

=== 9) Customary Marriage ===

The law recognizes traditional customary marriages of Indigenous people in some circumstances where the marriage meets the criteria of English common law.

== C. Common-Law Relationships ==

=== 1. General ===

Common-law spouses have certain rights/obligations conferred on them by various statutes and the common law. Each statute may give a slightly different definition of a common-law “spouse”. A general rule is that for most federal legislation it takes one year of living together in a “marriage-like relationship” to qualify as common law and for most provincial legislation it takes two years to qualify (see ''[https://canlii.ca/t/1dz3n Takacs v. Gallo]'', 1998 CanLII 6429 (BC CA)) for a summary of the indicators to be considered when determining whether parties have lived in a “marriage-like relationship”; (see ''[https://canlii.ca/t/g87vw Matteucci v. Greenberg]'', 2014 BCSC 1434 (CanLII); ''[https://canlii.ca/t/fx5b2 Trudeau v. Panter]'', 2013 BCSC 706 (CanLII)) that merely living together does not mean a relationship is marriage-like.

Under the ''FLA'', a person will be considered a ‘spouse’ if they have lived in a marriage-like relationship and have a child together (for spousal support only), or if they have lived in a marriage-like relationship for a continuous period of 2 years (see ''[https://canlii.ca/t/g7cp6 C.A.M. v. M.D.Q.]'', 2014 BCPC 110 (CanLII) regarding the child exception to living together for two years). This period begins when the couple began to live together in a marriage-like relationship.

See [[Family Law Glossary (3:App A) | Appendix A: Glossary]] at the end of this chapter for a brief list of definitions. For more extensive definitions, consult the current legislation.

Remember that a common-law relationship is '''not''' a legal marriage. Nevertheless, where legal rights and obligations are conferred on common-law spouses, the relationship is still valid even if one or both of the parties is currently married to someone else.

=== 2. Estate Considerations ===

==== a) Wills Estates, and Succession Act, SBC 2009, c 13 ====
Website: https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/09013_01

Two persons of either gender are considered spouses under this act if they are either married to each other, or if they have lived in a marriage-like relationship for at least 2 years (s 2(1)(b)). They cease to be considered spouses if one or both partners terminate the relationship (s 2(2)(b)).

If two or more persons are entitled to a spousal share of an intestate estate (estate for which the deceased has not left a will), they may agree on how to portion the share. If they cannot agree, a court will determine how to portion the spousal share between them.

If two or more persons are eligible to apply to be given priority as a spouse in the division of an intestate estate, they may agree on who is to apply. If they cannot agree, the Court can make a decision.

==== b) Canada Pension Plan Act, RSC 1985, c C-8 ====
Website: https://laws-lois.justice.gc.ca/eng/acts/c-8/index.html

Common-law spouses who have cohabited with a contributor for one year before the contributor’s death may be able to claim death benefits. Forms can be obtained from a CPP office.

==== c) Workers’ Compensation Act, RSBC 2019, c 1 ====
Website: https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/19001_00

A common law relationship is recognized after cohabitation for two years. If there is a child, one year is sufficient.

==== d) Employment and Assistance Act, SBC 2002, c 40 ====
Website: https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/02040_01

A common law relationship can arise from cohabitation as short as 3 months that is “consistent with a marriage-like relationship” (s 1.1(1)). Common-law relationships are dealt with as marriages, and as single-family units where there are children.

== D. Marriage and Cohabitation Agreements ==

=== 1. General ===

Marriage agreements, sometimes colloquially referred to as pre-nuptial agreements, are agreements drafted by a married couple or in contemplation of marriage that address how to resolve a family law dispute, if one should arise. Cohabitation agreements similarly govern family law disputes between unmarried couples who expect to live in a marriage-like relationship for at least 2 years. Agreements can address matters that may be the subject of a dispute in the future, the means of resolving a dispute, and the implementation of the agreement. Agreements cannot override dispute resolution procedures mandated by statute.

Independent legal advice is extremely important to have enforceable marriage or cohabitation agreements, and persons wishing to rely on a cohabitation or marriage agreement are strongly encouraged to seek the advice of a lawyer.

=== 2. Legislation: Family Law Act [FLA] ===

The ''FLA'' promotes the enforceability of marriage and cohabitation agreements, and provides clear guidelines for the circumstances under which they can be binding. Agreements will be binding on the parties regardless of whether a family dispute resolution professional has been consulted and/or the agreement has been filed with a court. Agreements will be binding on a person who is under 19 years of age if they are parents or spouses (Part 2, s 6).

Section 93(3) of the ''FLA'' also states that courts can set aside an agreement if:

:a) Spouses fail to disclose significant property or debts, or other information relevant to the negotiation of the agreement;
:b) One spouse takes improper advantage of another’s vulnerability;
:c) One spouse does not understand the nature or consequences of the agreement; and/or
:d) Other circumstances that would cause, under common law, all or part of the contract to be voidable.

The above concerns are often addressed by having the parties obtain independent legal advice.

Section 93(5) of the ''FLA'' states that the courts can also set aside an agreement if they find the agreement significantly unfair after considering these factors:

:a) The length of time that has passed since the agreement was made;
:b) The intention of the spouses, in making the agreement, to achieve certainty; and/or
:c) The degree to which the spouses relied on the terms of the agreement.

The ''FLA'' is drafted to make it difficult for courts to set aside agreements due to perceived unfairness. The Court will only set aside an agreement made between spouses respecting the division of property and debt, if the division agreed to would be "substantially different" from the division that the Court would order and "significantly unfair" to one of the spouses (see ''[https://canlii.ca/t/g6t11 Thomson v. Young]'', 2014 BCSC 799 (CanLII)).

The test for setting aside an agreement is to first look at the formation of the agreement (s 93(3)) and then the effects of the agreement (s 93(5)). Section 93(4) states that a Court may refuse to set an agreement aside even if it was unfairly reached (see ''[https://canlii.ca/t/g0jhk Asselin v. Roy]'', 2013 BCSC 1681 (CanLII)).

Section 1 of the ''FLA'' provides a definition of “Written Agreement” as an agreement written and signed by all parties. Written agreements should also be witnessed by someone over the age of 19 to address potential evidentiary issues at a later date.

=== 3. Substance of Contract ===

The main part of the agreement usually deals with the division of property and debt in the event of a relationship breakdown. The agreement may provide for management and/or ownership of family property during a marriage or cohabitation and/or when the relationship ends. The parties may also specify that neither party is responsible for debts of the other incurred either before or during the relationship.

While it was once against public policy to contract in anticipation of future separation, section 92 of the ''FLA'' explicitly anticipates such considerations in a marriage or cohabitation contract. Under the ''FLA'', spouses can agree on how to divide family property, and what debts or items are eligible for division.

Section 93 of the ''FLA'' states that agreements respecting property division can be set aside for lack of procedural fairness, such as failure to disclose, where one party has taken advantage of the other, or where one spouse did not appreciate the consequences of the agreement.

According to section 93(4) and (5) of the ''FLA'', the Court will only set aside an agreement on property under these sections “if the division agreed to would be ‘substantially different’ from the division that the Court would order and ‘significantly unfair’ to one of the spouses”.

==== a) Parenting Arrangements ====

Parenting arrangements are generally not included in cohabitation or marriage agreements.

Parenting arrangements are covered by section 44 of the ''FLA''. Please note that an agreement for contact is not an agreement for “parenting arrangements” and will not be enforced under this section.

Agreements made about parenting are not binding unless made after separation or when parties are about to separate with the purpose of being effective upon separation (s 44(2)).

''FLA'' section 44(3) holds that the written agreement may be given the force of a Court order if it is filed in a Supreme Court or Provincial Court registry. A Court must alter or set aside the terms of a parenting agreement if they are found not to be in the best interests of the child (s 44(4)), a concept discussed at length later in this chapter.

Section 58 of the ''FLA'' outlines guidelines for agreements regarding contact with children. The ''FLA'' emphasizes the importance of the “best interests” as the “only” consideration.

For more information on Parenting Time, see '''[[Parenting Orders, Guardianship, and Contact (3:XI)|Section XI: Parenting Orders, Guardianship, and Contact]]'''.

==== b) Child Support ====

Per section 148 of the ''FLA'', an agreement respecting child support is binding only if the agreement is made after separation, or when the parties are about to separate, for the purpose of being effective on separation. It would thus not be binding if it is in a marriage/cohabitation agreement.

Courts can override or vary any such terms that are inconsistent with ''Federal Child Support Guidelines'' (''[https://canlii.ca/t/g09dm Young v Young]'', 2013 BCSC 1574) or with section 150 of the ''FLA'' [''Determining Child Support'']. Section 150 states that the amount of child support is to be determined by the ''Federal Child Support Guidelines'' (''[https://canlii.ca/t/g6907 Thibault v White]'', 2014 BCSC 497).

The primary objective is to ensure, so far as practicable, that the children will enjoy a reasonably consistent, and reasonably adequate, standard of living, unaffected, so far as is practicable, by changes in the relationships among their parents and stepparents (see ''B (C) v B (M)'', [2014] CarswellBC 1212 (BCPC)). It is also important to note that any term purporting to exclude support obligations is likely to be found invalid on public policy grounds. The Court will seldom uphold an amount lower than the Guidelines, even if the parties agree on it, unless there is an appropriate reason to approve it, such as some other arrangement that directly benefits the child. It is important to note that the Court may refuse an application for a Divorce Order if the Court is not satisfied that appropriate arrangements have been made for the support of the parties’ children. See '''[[Spousal and Child Support (3:X) | Section X: Spousal and Child Support]]'''.

==== c) Spousal Support ====

The law relating to contracting out of spousal support is complex. Clients should seek professional legal advice before entering into an agreement for spousal support. Under the ''FLA'', spousal support agreements that are filed with a Court registry will be treated as an order of the Court (''FLA'', s 163), but can be set aside for lack of procedural fairness, such as failure to disclose, where one party has taken advantage of the other, or where one spouse did not appreciate the consequences of the agreement; they can also be set aside if the Court finds that the agreement is significantly unfair (see s 164 of the ''FLA''). See '''[[Spousal and Child Support (3:X) | Section X: Spousal and Child Support]]'''.

==== d) Void Conditions ====

Marriage contracts sometimes incorporate terms that are not enforceable at law. For example, a clause stating that one spouse shall do all the cooking is a contract for personal services; therefore, it is not enforceable. A breach of such an agreement cannot be grounds for divorce.

'''NOTE:''' Consider whether a marriage agreement should contain a clause stating: “Anything held to be void/voidable will be severed from the agreement leaving the rest of the agreement intact”. This prevents the whole of a marriage agreement being voided by the inclusion of void conditions or clauses. See ''[http://canlii.ca/t/1d921 Clarke v. Clarke]'', 1991 CanLII 885 (BC CA).

'''NOTE:''' Consider whether any agreement should contain a clause stating that the greater detail in the Agreement does not merge with any later Order. This ensures that if a Divorce Order is granted later, the terms of the Agreement continue to apply unless expressly stated otherwise. This is more applicable to Separation Agreements.

{{LSLAP Manual Navbox|type=chapters1-7}}

Marriage (3:III)

2025-11-10T19:13:49Z

LSLAP: /* 1. General */

{{REVIEWED LSLAP | date= November 8, 2025}}
{{LSLAP Manual TOC|expanded = family}}

== A. Marriage ==

Marriage creates a legal relationship between two people, giving each certain legal rights and obligations. A legal marriage must comply with certain legal requirements. Therefore, not all marriages are legally recognized.

== B. Legal Requirements and Barriers ==

To be legally recognized or considered “valid”, a marriage must meet several legal requirements. Failure to meet these requirements may render the marriage void ab initio (void from the beginning). In other circumstances, such as sham marriages or marriages in which one party did not consent or did so under duress, the marriage may be voidable, meaning the marriage is valid until an order is made by the Court to annul the marriage.

=== 1) Sex ===

In the past, spouses had to be of opposite sexes. This has been found to be unconstitutional (see [http://canlii.ca/t/1jdhv ''Reference re Same Sex Marriage''], [2004] SCR 698, [2004], SCJ No 75), and same-sex couples can now marry in every province and territory with the passing of Bill C-38 in the House of Commons, and subsequent passing in the Senate. Bill C-38 received Royal Assent on July 20, 2005, becoming the [http://canlii.ca/t/7w02 ''Civil Marriage Act'', SC 2005, c 33].

=== 2) Relatedness ===

The federal [http://canlii.ca/t/7vq2 ''Marriage (Prohibited Degrees) Act''], 1990, c 46, bars marriage between lineal relatives, including half-siblings and adopted siblings.

=== 3) Marital Status ===

Both spouses must be unmarried at the time of the marriage.

=== 4) Age ===

Both spouses must be over the age of majority (19 in BC; see the [http://canlii.ca/t/5224c ''Age of Majority Act''], RSBC 1996, c7, s 1). In BC, a minor between the ages of 16 and 19 can marry only with the consent of both of their parents (see the [https://canlii.ca/t/5643s ''Marriage Act''], RSBC 1996, c 282, s 28). A minor under the age of 16 can marry only if permission is granted in a Supreme Court order (s 29). However, a marriage is not automatically invalid if the requirements of s 28 and 29 have not been met at the time of marriage (s 30); the Court may preserve the marriage if it is in the interests of justice to do so (e.g., if parties have grown up and have lived as spouses for some time).

=== 5) Mental Capacity ===

At the time of the ceremony, both parties must be capable of understanding the nature of the ceremony and the rights and responsibilities involved in marriage.

=== 6) Residency ===

The ''[https://canlii.ca/t/52hdt Civil Marriage Act]'', SC 2005, c 33 was passed in 2014. With this act, marriages performed in Canada between non-Canadian residents will be valid in Canada, regardless of the law in either spouse’s country of residence. Additionally, Canadian courts will be able to grant divorces to non-resident spouses who were married in Canada, and who are unable to get divorced in their own state because that state does not recognize the validity of the marriage.

=== 7) Foreign Marriages ===

The common-law rule is that the formalities of marriage—i.e., who can marry, who can perform weddings—are those of the law where the marriage took place, while the legal capacity of each party is governed by the law of the place where they live.

=== 8) Sham Marriages ===

When parties marry solely for some purpose such as tax benefits or immigration status, the marriage may be voidable for lack of intent. However, the marriage may not be void for lack of intent alone, and courts may find the marriage valid and binding when the parties consented to the union (for example, see [http://canlii.ca/t/26v81 ''Grewal v Kaur''], 2009 CanLII 66913 (ON SC). Sham marriages are uncommon.

=== 9) Customary Marriage ===

The law recognizes traditional customary marriages of Indigenous people in some circumstances where the marriage meets the criteria of English common law.

== C. Common-Law Relationships ==

=== 1. General ===

Common-law spouses have certain rights/obligations conferred on them by various statutes and the common law. Each statute may give a slightly different definition of a common-law “spouse”. A general rule is that for most federal legislation it takes one year of living together in a “marriage-like relationship” to qualify as common law and for most provincial legislation it takes two years to qualify (see ''[https://canlii.ca/t/1dz3n Takacs v. Gallo]'', 1998 CanLII 6429 (BC CA)) for a summary of the indicators to be considered when determining whether parties have lived in a “marriage-like relationship”; (see ''[https://canlii.ca/t/g87vw Matteucci v. Greenberg]'', 2014 BCSC 1434 (CanLII); ''[https://canlii.ca/t/fx5b2 Trudeau v. Panter]'', 2013 BCSC 706 (CanLII)) that merely living together does not mean a relationship is marriage-like.

Under the ''FLA'', a person will be considered a ‘spouse’ if they have lived in a marriage-like relationship and have a child together (for spousal support only), or if they have lived in a marriage-like relationship for a continuous period of 2 years (see ''[https://canlii.ca/t/g7cp6 C.A.M. v. M.D.Q.]'', 2014 BCPC 110 (CanLII) regarding the child exception to living together for two years). This period begins when the couple began to live together in a marriage-like relationship.

See [[Family Law Glossary (3:App A) | Appendix A: Glossary]] at the end of this chapter for a brief list of definitions. For more extensive definitions, consult the current legislation.

Remember that a common-law relationship is '''not''' a legal marriage. Nevertheless, where legal rights and obligations are conferred on common-law spouses, the relationship is still valid even if one or both of the parties is currently married to someone else.

=== 2. Estate Considerations ===

==== a) Wills Estates, and Succession Act, SBC 2009, c 13 ====
Website: https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/09013_01

Two persons of either gender are considered spouses under this act if they are either married to each other, or if they have lived in a marriage-like relationship for at least 2 years (s 2(1)(b)). They cease to be considered spouses if one or both partners terminate the relationship (s 2(2)(b)).

If two or more persons are entitled to a spousal share of an intestate estate (estate for which the deceased has not left a will), they may agree on how to portion the share. If they cannot agree, a court will determine how to portion the spousal share between them.

If two or more persons are eligible to apply to be given priority as a spouse in the division of an intestate estate, they may agree on who is to apply. If they cannot agree, the Court can make a decision.

==== b) Canada Pension Plan Act, RSC 1985, c C-8 ====
Website: https://laws-lois.justice.gc.ca/eng/acts/c-8/index.html

Common-law spouses who have cohabited with a contributor for one year before the contributor’s death may be able to claim death benefits. Forms can be obtained from a CPP office.

==== c) Workers’ Compensation Act, RSBC 2019, c 1 ====
Website: https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/19001_00

A common law relationship is recognized after cohabitation for two years. If there is a child, one year is sufficient.

==== d) Employment and Assistance Act, SBC 2002, c 40 ====
Website: https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/02040_01

A common law relationship can arise from cohabitation as short as 3 months that is “consistent with a marriage-like relationship” (s 1.1(1)). Common-law relationships are dealt with as marriages, and as single-family units where there are children.

== D. Marriage and Cohabitation Agreements ==

=== 1. General ===

Marriage agreements, sometimes colloquially referred to as pre-nuptial agreements, are agreements drafted by a married couple or in contemplation of marriage that address how to resolve a family law dispute, if one should arise. Cohabitation agreements similarly govern family law disputes between unmarried couples who expect to live in a marriage-like relationship for at least 2 years. Agreements can address matters that may be the subject of a dispute in the future, the means of resolving a dispute, and the implementation of the agreement. Agreements cannot override dispute resolution procedures mandated by statute.

Independent legal advice is extremely important to have enforceable marriage or cohabitation agreements, and persons wishing to rely on a cohabitation or marriage agreement are strongly encouraged to seek the advice of a lawyer.

=== 2. Legislation: Family Law Act [FLA] ===

The ''FLA'' promotes the enforceability of marriage and cohabitation agreements, and to provides clear guidelines for the circumstances under which they can be binding. Agreements will be binding on the parties regardless of whether a family dispute resolution professional has been consulted and/or the agreement has been filed with a court. Agreements will be binding on a person who is under 19 years of age if they are parents or spouses (Part 2, s 6).

Section 93(3) of the ''FLA'' also states that courts can set aside an agreement if:

:a) Spouses fail to disclose significant property or debts, or other information relevant to the negotiation of the agreement;
:b) One spouse takes improper advantage of another’s vulnerability;
:c) One spouse does not understand the nature or consequences of the agreement; and/or
:d) Other circumstances that would cause, under common law, all or part of the contract to be voidable.

The above concerns are often addressed by having the parties obtain independent legal advice.

Section 93(5) of the ''FLA'' states that the courts can also set aside an agreement if they find the agreement significantly unfair after considering these factors:

:a) The length of time that has passed since the agreement was made;
:b) The intention of the spouses, in making the agreement, to achieve certainty; and/or
:c) The degree to which the spouses relied on the terms of the agreement.

The ''FLA'' is drafted to make it difficult for courts to set aside agreements due to perceived unfairness. The Court will only set aside an agreement made between spouses respecting the division of property and debt, if the division agreed to would be "substantially different" from the division that the Court would order and "significantly unfair" to one of the spouses (see ''[https://canlii.ca/t/g6t11 Thomson v. Young]'', 2014 BCSC 799 (CanLII)).

The test for setting aside an agreement is to first look at the formation of the agreement (s 93(3)) and then the effects of the agreement (s 93(5)). Section 93(4) states that a Court may refuse to set an agreement aside even if it was unfairly reached (see ''[https://canlii.ca/t/g0jhk Asselin v. Roy]'', 2013 BCSC 1681 (CanLII)).

Section 1 of the ''FLA'' provides a definition of “Written Agreement” as an agreement written and signed by all parties. Written agreements should also be witnessed by someone over the age of 19 to address potential evidentiary issues at a later date.

=== 3. Substance of Contract ===

The main part of the agreement usually deals with the division of property and debt in the event of a relationship breakdown. The agreement may provide for management and/or ownership of family property during a marriage or cohabitation and/or when the relationship ends. The parties may also specify that neither party is responsible for debts of the other incurred either before or during the relationship.

While it was once against public policy to contract in anticipation of future separation, section 92 of the ''FLA'' explicitly anticipates such considerations in a marriage or cohabitation contract. Under the ''FLA'', spouses can agree on how to divide family property, and what debts or items are eligible for division.

Section 93 of the ''FLA'' states that agreements respecting property division can be set aside for lack of procedural fairness, such as failure to disclose, where one party has taken advantage of the other, or where one spouse did not appreciate the consequences of the agreement.

According to section 93(4) and (5) of the ''FLA'', the Court will only set aside an agreement on property under these sections “if the division agreed to would be ‘substantially different’ from the division that the Court would order and ‘significantly unfair’ to one of the spouses”.

==== a) Parenting Arrangements ====

Parenting arrangements are generally not included in cohabitation or marriage agreements.

Parenting arrangements are covered by section 44 of the ''FLA''. Please note that an agreement for contact is not an agreement for “parenting arrangements” and will not be enforced under this section.

Agreements made about parenting are not binding unless made after separation or when parties are about to separate with the purpose of being effective upon separation (s 44(2)).

''FLA'' section 44(3) holds that the written agreement may be given the force of a Court order if it is filed in a Supreme Court or Provincial Court registry. A Court must alter or set aside the terms of a parenting agreement if they are found not to be in the best interests of the child (s 44(4)), a concept discussed at length later in this chapter.

Section 58 of the ''FLA'' outlines guidelines for agreements regarding contact with children. The ''FLA'' emphasizes the importance of the “best interests” as the “only” consideration.

For more information on Parenting Time, see '''[[Parenting Orders, Guardianship, and Contact (3:XI)|Section XI: Parenting Orders, Guardianship, and Contact]]'''.

==== b) Child Support ====

Per section 148 of the ''FLA'', an agreement respecting child support is binding only if the agreement is made after separation, or when the parties are about to separate, for the purpose of being effective on separation. It would thus not be binding if it is in a marriage/cohabitation agreement.

Courts can override or vary any such terms that are inconsistent with ''Federal Child Support Guidelines'' (''[https://canlii.ca/t/g09dm Young v Young]'', 2013 BCSC 1574) or with section 150 of the ''FLA'' [''Determining Child Support'']. Section 150 states that the amount of child support is to be determined by the ''Federal Child Support Guidelines'' (''[https://canlii.ca/t/g6907 Thibault v White]'', 2014 BCSC 497).

The primary objective is to ensure, so far as practicable, that the children will enjoy a reasonably consistent, and reasonably adequate, standard of living, unaffected, so far as is practicable, by changes in the relationships among their parents and stepparents (see ''B (C) v B (M)'', [2014] CarswellBC 1212 (BCPC)). It is also important to note that any term purporting to exclude support obligations is likely to be found invalid on public policy grounds. The Court will seldom uphold an amount lower than the Guidelines, even if the parties agree on it, unless there is an appropriate reason to approve it, such as some other arrangement that directly benefits the child. It is important to note that the Court may refuse an application for a Divorce Order if the Court is not satisfied that appropriate arrangements have been made for the support of the parties’ children. See '''[[Spousal and Child Support (3:X) | Section X: Spousal and Child Support]]'''.

==== c) Spousal Support ====

The law relating to contracting out of spousal support is complex. Clients should seek professional legal advice before entering into an agreement for spousal support. Under the ''FLA'', spousal support agreements that are filed with a Court registry will be treated as an order of the Court (''FLA'', s 163), but can be set aside for lack of procedural fairness, such as failure to disclose, where one party has taken advantage of the other, or where one spouse did not appreciate the consequences of the agreement; they can also be set aside if the Court finds that the agreement is significantly unfair (see s 164 of the ''FLA''). See '''[[Spousal and Child Support (3:X) | Section X: Spousal and Child Support]]'''.

==== d) Void Conditions ====

Marriage contracts sometimes incorporate terms that are not enforceable at law. For example, a clause stating that one spouse shall do all the cooking is a contract for personal services; therefore, it is not enforceable. A breach of such an agreement cannot be grounds for divorce.

'''NOTE:''' Consider whether a marriage agreement should contain a clause stating: “Anything held to be void/voidable will be severed from the agreement leaving the rest of the agreement intact”. This prevents the whole of a marriage agreement being voided by the inclusion of void conditions or clauses. See ''[http://canlii.ca/t/1d921 Clarke v. Clarke]'', 1991 CanLII 885 (BC CA).

'''NOTE:''' Consider whether any agreement should contain a clause stating that the greater detail in the Agreement does not merge with any later Order. This ensures that if a Divorce Order is granted later, the terms of the Agreement continue to apply unless expressly stated otherwise. This is more applicable to Separation Agreements.

{{LSLAP Manual Navbox|type=chapters1-7}}

Marriage (3:III)

2025-11-10T19:12:33Z

LSLAP:

{{REVIEWED LSLAP | date= November 8, 2025}}
{{LSLAP Manual TOC|expanded = family}}

== A. Marriage ==

Marriage creates a legal relationship between two people, giving each certain legal rights and obligations. A legal marriage must comply with certain legal requirements. Therefore, not all marriages are legally recognized.

== B. Legal Requirements and Barriers ==

To be legally recognized or considered “valid”, a marriage must meet several legal requirements. Failure to meet these requirements may render the marriage void ab initio (void from the beginning). In other circumstances, such as sham marriages or marriages in which one party did not consent or did so under duress, the marriage may be voidable, meaning the marriage is valid until an order is made by the Court to annul the marriage.

=== 1) Sex ===

In the past, spouses had to be of opposite sexes. This has been found to be unconstitutional (see [http://canlii.ca/t/1jdhv ''Reference re Same Sex Marriage''], [2004] SCR 698, [2004], SCJ No 75), and same-sex couples can now marry in every province and territory with the passing of Bill C-38 in the House of Commons, and subsequent passing in the Senate. Bill C-38 received Royal Assent on July 20, 2005, becoming the [http://canlii.ca/t/7w02 ''Civil Marriage Act'', SC 2005, c 33].

=== 2) Relatedness ===

The federal [http://canlii.ca/t/7vq2 ''Marriage (Prohibited Degrees) Act''], 1990, c 46, bars marriage between lineal relatives, including half-siblings and adopted siblings.

=== 3) Marital Status ===

Both spouses must be unmarried at the time of the marriage.

=== 4) Age ===

Both spouses must be over the age of majority (19 in BC; see the [http://canlii.ca/t/5224c ''Age of Majority Act''], RSBC 1996, c7, s 1). In BC, a minor between the ages of 16 and 19 can marry only with the consent of both of their parents (see the [https://canlii.ca/t/5643s ''Marriage Act''], RSBC 1996, c 282, s 28). A minor under the age of 16 can marry only if permission is granted in a Supreme Court order (s 29). However, a marriage is not automatically invalid if the requirements of s 28 and 29 have not been met at the time of marriage (s 30); the Court may preserve the marriage if it is in the interests of justice to do so (e.g., if parties have grown up and have lived as spouses for some time).

=== 5) Mental Capacity ===

At the time of the ceremony, both parties must be capable of understanding the nature of the ceremony and the rights and responsibilities involved in marriage.

=== 6) Residency ===

The ''[https://canlii.ca/t/52hdt Civil Marriage Act]'', SC 2005, c 33 was passed in 2014. With this act, marriages performed in Canada between non-Canadian residents will be valid in Canada, regardless of the law in either spouse’s country of residence. Additionally, Canadian courts will be able to grant divorces to non-resident spouses who were married in Canada, and who are unable to get divorced in their own state because that state does not recognize the validity of the marriage.

=== 7) Foreign Marriages ===

The common-law rule is that the formalities of marriage—i.e., who can marry, who can perform weddings—are those of the law where the marriage took place, while the legal capacity of each party is governed by the law of the place where they live.

=== 8) Sham Marriages ===

When parties marry solely for some purpose such as tax benefits or immigration status, the marriage may be voidable for lack of intent. However, the marriage may not be void for lack of intent alone, and courts may find the marriage valid and binding when the parties consented to the union (for example, see [http://canlii.ca/t/26v81 ''Grewal v Kaur''], 2009 CanLII 66913 (ON SC). Sham marriages are uncommon.

=== 9) Customary Marriage ===

The law recognizes traditional customary marriages of Indigenous people in some circumstances where the marriage meets the criteria of English common law.

== C. Common-Law Relationships ==

=== 1. General ===

Common-law spouses have certain rights/obligations conferred on them by various statutes and the common law. Each statute may give a slightly different definition of a common-law “spouse”. A general rule is that for most federal legislation it takes one year of living together in a “marriage-like relationship” to qualify as common law and for most provincial legislation it takes two years to qualify (see ''[https://canlii.ca/t/1dz3n Takacs v. Gallo]'', 1998 CanLII 6429 (BC CA)) for a summary of the indicators to be considered when determining whether parties have lived in a “marriage-like relationship”; (see ''[https://canlii.ca/t/g87vw Matteucci v. Greenberg]'', 2014 BCSC 1434 (CanLII); ''[https://canlii.ca/t/fx5b2 Trudeau v. Panter]'', 2013 BCSC 706 (CanLII)) that merely living together does not mean a relationship is marriage-like.

Under the ''FLA'', a person will be considered a ‘spouse’ if they have lived in a marriage-like relationship and have a child together (for spousal support only), or if they have lived in a marriage-like relationship for a continuous period of 2 years (see ''[https://canlii.ca/t/g7cp6 C.A.M. v. M.D.Q.]'', 2014 BCPC 110 (CanLII)) regarding the child exception to living together for two years). This period begins when the couple began to live together in a marriage-like relationship.

See [[Family Law Glossary (3:App A) | Appendix A: Glossary]] at the end of this chapter for a brief list of definitions. For more extensive definitions, consult the current legislation.

Remember that a common-law relationship is '''not''' a legal marriage. Nevertheless, where legal rights and obligations are conferred on common-law spouses, the relationship is still valid even if one or both of the parties is currently married to someone else.

=== 2. Estate Considerations ===

==== a) Wills Estates, and Succession Act, SBC 2009, c 13 ====
Website: https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/09013_01

Two persons of either gender are considered spouses under this act if they are either married to each other, or if they have lived in a marriage-like relationship for at least 2 years (s 2(1)(b)). They cease to be considered spouses if one or both partners terminate the relationship (s 2(2)(b)).

If two or more persons are entitled to a spousal share of an intestate estate (estate for which the deceased has not left a will), they may agree on how to portion the share. If they cannot agree, a court will determine how to portion the spousal share between them.

If two or more persons are eligible to apply to be given priority as a spouse in the division of an intestate estate, they may agree on who is to apply. If they cannot agree, the Court can make a decision.

==== b) Canada Pension Plan Act, RSC 1985, c C-8 ====
Website: https://laws-lois.justice.gc.ca/eng/acts/c-8/index.html

Common-law spouses who have cohabited with a contributor for one year before the contributor’s death may be able to claim death benefits. Forms can be obtained from a CPP office.

==== c) Workers’ Compensation Act, RSBC 2019, c 1 ====
Website: https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/19001_00

A common law relationship is recognized after cohabitation for two years. If there is a child, one year is sufficient.

==== d) Employment and Assistance Act, SBC 2002, c 40 ====
Website: https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/02040_01

A common law relationship can arise from cohabitation as short as 3 months that is “consistent with a marriage-like relationship” (s 1.1(1)). Common-law relationships are dealt with as marriages, and as single-family units where there are children.

== D. Marriage and Cohabitation Agreements ==

=== 1. General ===

Marriage agreements, sometimes colloquially referred to as pre-nuptial agreements, are agreements drafted by a married couple or in contemplation of marriage that address how to resolve a family law dispute, if one should arise. Cohabitation agreements similarly govern family law disputes between unmarried couples who expect to live in a marriage-like relationship for at least 2 years. Agreements can address matters that may be the subject of a dispute in the future, the means of resolving a dispute, and the implementation of the agreement. Agreements cannot override dispute resolution procedures mandated by statute.

Independent legal advice is extremely important to have enforceable marriage or cohabitation agreements, and persons wishing to rely on a cohabitation or marriage agreement are strongly encouraged to seek the advice of a lawyer.

=== 2. Legislation: Family Law Act [FLA] ===

The ''FLA'' promotes the enforceability of marriage and cohabitation agreements, and to provides clear guidelines for the circumstances under which they can be binding. Agreements will be binding on the parties regardless of whether a family dispute resolution professional has been consulted and/or the agreement has been filed with a court. Agreements will be binding on a person who is under 19 years of age if they are parents or spouses (Part 2, s 6).

Section 93(3) of the ''FLA'' also states that courts can set aside an agreement if:

:a) Spouses fail to disclose significant property or debts, or other information relevant to the negotiation of the agreement;
:b) One spouse takes improper advantage of another’s vulnerability;
:c) One spouse does not understand the nature or consequences of the agreement; and/or
:d) Other circumstances that would cause, under common law, all or part of the contract to be voidable.

The above concerns are often addressed by having the parties obtain independent legal advice.

Section 93(5) of the ''FLA'' states that the courts can also set aside an agreement if they find the agreement significantly unfair after considering these factors:

:a) The length of time that has passed since the agreement was made;
:b) The intention of the spouses, in making the agreement, to achieve certainty; and/or
:c) The degree to which the spouses relied on the terms of the agreement.

The ''FLA'' is drafted to make it difficult for courts to set aside agreements due to perceived unfairness. The Court will only set aside an agreement made between spouses respecting the division of property and debt, if the division agreed to would be "substantially different" from the division that the Court would order and "significantly unfair" to one of the spouses (see ''[https://canlii.ca/t/g6t11 Thomson v. Young]'', 2014 BCSC 799 (CanLII)).

The test for setting aside an agreement is to first look at the formation of the agreement (s 93(3)) and then the effects of the agreement (s 93(5)). Section 93(4) states that a Court may refuse to set an agreement aside even if it was unfairly reached (see ''[https://canlii.ca/t/g0jhk Asselin v. Roy]'', 2013 BCSC 1681 (CanLII)).

Section 1 of the ''FLA'' provides a definition of “Written Agreement” as an agreement written and signed by all parties. Written agreements should also be witnessed by someone over the age of 19 to address potential evidentiary issues at a later date.

=== 3. Substance of Contract ===

The main part of the agreement usually deals with the division of property and debt in the event of a relationship breakdown. The agreement may provide for management and/or ownership of family property during a marriage or cohabitation and/or when the relationship ends. The parties may also specify that neither party is responsible for debts of the other incurred either before or during the relationship.

While it was once against public policy to contract in anticipation of future separation, section 92 of the ''FLA'' explicitly anticipates such considerations in a marriage or cohabitation contract. Under the ''FLA'', spouses can agree on how to divide family property, and what debts or items are eligible for division.

Section 93 of the ''FLA'' states that agreements respecting property division can be set aside for lack of procedural fairness, such as failure to disclose, where one party has taken advantage of the other, or where one spouse did not appreciate the consequences of the agreement.

According to section 93(4) and (5) of the ''FLA'', the Court will only set aside an agreement on property under these sections “if the division agreed to would be ‘substantially different’ from the division that the Court would order and ‘significantly unfair’ to one of the spouses”.

==== a) Parenting Arrangements ====

Parenting arrangements are generally not included in cohabitation or marriage agreements.

Parenting arrangements are covered by section 44 of the ''FLA''. Please note that an agreement for contact is not an agreement for “parenting arrangements” and will not be enforced under this section.

Agreements made about parenting are not binding unless made after separation or when parties are about to separate with the purpose of being effective upon separation (s 44(2)).

''FLA'' section 44(3) holds that the written agreement may be given the force of a Court order if it is filed in a Supreme Court or Provincial Court registry. A Court must alter or set aside the terms of a parenting agreement if they are found not to be in the best interests of the child (s 44(4)), a concept discussed at length later in this chapter.

Section 58 of the ''FLA'' outlines guidelines for agreements regarding contact with children. The ''FLA'' emphasizes the importance of the “best interests” as the “only” consideration.

For more information on Parenting Time, see '''[[Parenting Orders, Guardianship, and Contact (3:XI)|Section XI: Parenting Orders, Guardianship, and Contact]]'''.

==== b) Child Support ====

Per section 148 of the ''FLA'', an agreement respecting child support is binding only if the agreement is made after separation, or when the parties are about to separate, for the purpose of being effective on separation. It would thus not be binding if it is in a marriage/cohabitation agreement.

Courts can override or vary any such terms that are inconsistent with ''Federal Child Support Guidelines'' (''[https://canlii.ca/t/g09dm Young v Young]'', 2013 BCSC 1574) or with section 150 of the ''FLA'' [''Determining Child Support'']. Section 150 states that the amount of child support is to be determined by the ''Federal Child Support Guidelines'' (''[https://canlii.ca/t/g6907 Thibault v White]'', 2014 BCSC 497).

The primary objective is to ensure, so far as practicable, that the children will enjoy a reasonably consistent, and reasonably adequate, standard of living, unaffected, so far as is practicable, by changes in the relationships among their parents and stepparents (see ''B (C) v B (M)'', [2014] CarswellBC 1212 (BCPC)). It is also important to note that any term purporting to exclude support obligations is likely to be found invalid on public policy grounds. The Court will seldom uphold an amount lower than the Guidelines, even if the parties agree on it, unless there is an appropriate reason to approve it, such as some other arrangement that directly benefits the child. It is important to note that the Court may refuse an application for a Divorce Order if the Court is not satisfied that appropriate arrangements have been made for the support of the parties’ children. See '''[[Spousal and Child Support (3:X) | Section X: Spousal and Child Support]]'''.

==== c) Spousal Support ====

The law relating to contracting out of spousal support is complex. Clients should seek professional legal advice before entering into an agreement for spousal support. Under the ''FLA'', spousal support agreements that are filed with a Court registry will be treated as an order of the Court (''FLA'', s 163), but can be set aside for lack of procedural fairness, such as failure to disclose, where one party has taken advantage of the other, or where one spouse did not appreciate the consequences of the agreement; they can also be set aside if the Court finds that the agreement is significantly unfair (see s 164 of the ''FLA''). See '''[[Spousal and Child Support (3:X) | Section X: Spousal and Child Support]]'''.

==== d) Void Conditions ====

Marriage contracts sometimes incorporate terms that are not enforceable at law. For example, a clause stating that one spouse shall do all the cooking is a contract for personal services; therefore, it is not enforceable. A breach of such an agreement cannot be grounds for divorce.

'''NOTE:''' Consider whether a marriage agreement should contain a clause stating: “Anything held to be void/voidable will be severed from the agreement leaving the rest of the agreement intact”. This prevents the whole of a marriage agreement being voided by the inclusion of void conditions or clauses. See ''[http://canlii.ca/t/1d921 Clarke v. Clarke]'', 1991 CanLII 885 (BC CA).

'''NOTE:''' Consider whether any agreement should contain a clause stating that the greater detail in the Agreement does not merge with any later Order. This ensures that if a Divorce Order is granted later, the terms of the Agreement continue to apply unless expressly stated otherwise. This is more applicable to Separation Agreements.

{{LSLAP Manual Navbox|type=chapters1-7}}

Governing Legislation and Resources for Family Law (3:II)

2025-11-10T17:40:14Z

LSLAP: /* 1. Ministry of Justice – Family Law Legislation */

{{REVIEWED LSLAP | date= November 8, 2025}}
{{LSLAP Manual TOC|expanded = family}}

== A. Resources in Print ==

#Continuing Legal Education Society of British Columbia, ''Family Law Sourcebook for British Columbia'' (Vancouver: Continuing Legal Education Society of British Columbia, 2022).
#*This loose-leaf sourcebook contains a thorough overview of all aspects of family law, with citations to the relevant authorities for each statement of law.
#Continuing Legal Education Society of British Columbia, ''Annotated Family Practice 2023–2024'' [regular updates]. (Vancouver: Continuing Legal Education Society of British Columbia, 2008).
#*This is an essential resource for many family law lawyers and is updated each year.
#Continuing Legal Education Society of British Columbia, ''British Columbia Family Practice Manual'', 5th ed. [regular updates] (Vancouver: Continuing Legal Education Society of British Columbia, 2011).
#*Loose-leaf manual providing a solid how-to approach to common family law problems and processes.
#Continuing Legal Education Society of British Columbia, ''Desk Order Divorce—An Annotated Guide'' (Vancouver: Continuing Legal Education Society of British Columbia, 2013).
#*Annotated guide to divorce, with regular updates.
#Trudi L Brown, QC, ''British Columbia Family Law Practice, 2023 Edition + E-Book'' (LexisNexis Canada, 2022).
#*This loose-leaf guide contains annotated legislation and judicial consideration of statutes pertaining to family law. Please note that it will only contain amendments up to the date of publication.

Library References:

#Mary Jane Mossman, ''Families and the Law in Canada: Cases and Commentary'' (Toronto: Emond Montgomery Publications, 2004).
#*A good casebook, which provides an overview of new family law issues in Canada.
#Julien D. Payne, ''Payne on Divorce'' (Scarborough: Carswell, 1996).
#*A very good Canadian text on family law.

== B. Resources on the Internet ==

=== 1. Ministry of Justice – Family Law Legislation ===

[https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/11025_00 Government website for the Family Law Act]

On March 18, 2013, British Columbia’s ''Family Law Act [FLA]'' came into force replacing the ''Family Relations Act [FRA]''. Resources that are relevant to this change include:

*[https://www2.gov.bc.ca/assets/gov/law-crime-and-justice/about-bc-justice-system/legislation-policy/fla/concordance.pdf Table of Concordance] – Allows for quick cross-referencing from the ''FRA'' sections to the ''FLA'' sections.
*[https://www2.gov.bc.ca/gov/content/justice/about-bcs-justice-system/legislation-policy/active-reviews/family-law-act/the-family-law-act-explained The Family Law Act explained] – - Explains the meaning and intention of each section of the ''FLA'' as it was implemented in 2013 and provides information on where each section replaced, changed or carried over a section of the ''FRA''.
*[https://www2.gov.bc.ca/assets/gov/law-crime-and-justice/about-bc-justice-system/justice-reform-initiatives/family-civil/pcfr-explained.pdf The Ministry of Attorney General - ''Provincial Court Family Rules Explained''] - A document developed by the Ministry of Attorney General to support the transition to the new Provincial Court Family Rules, last updated January 2022.
*[https://www2.gov.bc.ca/gov/content/justice/about-bcs-justice-system/legislation-policy/active-reviews/family-law-act/family-law-act-questions-and-answers Questions and Answers] – Question and answers on this website provide a concise introductory comparison between the ''FLA'' and ''FRA''. Perhaps the best and most concise comparison between ''FLA'' and ''FRA'' can be found on this website.

=== 2. Online Help Guide Supreme Court BC – Family Law ===

Website: https://supremecourtbc.ca/family-law

*This service provides accurate and easy-to-understand information to help users prepare the procedural aspects of a family or civil case. This is an educational online resource.

=== 3. J.P. Boyd’s BC Family Law Web Resource ===

Website: http://wiki.clicklaw.bc.ca/index.php/JP_Boyd_on_Family_Law.

*This is an excellent site for those unfamiliar with family law rights and procedures, written in plain English. It is a good place to begin for those who have not had the benefit of a family law course.
*The Family Law Resource is one of the leading resources in BC, particularly for the ''Family Law Act''.
*There is a link to forms for both matters in the Provincial Court and Supreme Court.
*Note: If using this site, ensure that it is up to date with the new Provincial Court Rules.

=== 4. BC Family Maintenance Agency (BCFMA) ===

Website: https://www.bcfma.ca/

*This program helps families to enforce child support and spousal support orders from ex-partners. Enrollment for the BCFMA can be done online or via mail.

=== 5. Family Law in BC ===

Website: https://www.familylawinbc.ca/

*This site has general information on family law, including self-help materials, forms a client needs to file for an uncontested divorce, and step-by-step instructions for filling out the forms.

=== 6. Legal Aid BC ===

Website: https://info.legalaid.bc.ca/resources/family-law/living-together-or-living-apart

*Legal Aid BC family law publications. ''[https://legalaid.bc.ca/publications/pub/living-together-or-living-apart Living Together, Living Apart: Common-Law Relationships, Marriage, Separation and Divorce]'' is very useful.

This publication is available in English.

=== 7. British Columbia Vital Statistics Agency ===

Website: http://www2.gov.bc.ca/gov/content/life-events

*The Vital Statistics Agency is a service provided by the provincial Ministry of Health Services. The web site includes information on birth and death registration and certificates. It also includes wills notice registration and searches, information on how to change your name, and information on marriage licences. Contact numbers are available for various services including adoption records information. Marriage certificates can also be ordered online.

=== 8. Ministry of Attorney General ===

Website: http://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice

*This site provides general information about several issues of interest to BC couples who have separated or who are about to separate. It may also be useful for guardians and other family members, such as grandparents, who may be involved in making important decisions about the family and its future.

=== 9. Department of Justice Canada ===

About Spousal Support/Spousal Support Advisory Guidelines: http://www.justice.gc.ca/eng/fl-df/spousal-epoux/ssag-ldfpae.html

About Child Support/Federal Child Support Guidelines, P.C. 1997-469: https://www.justice.gc.ca/eng/fl-df/child-enfant/index.html

=== 10. Support Calculator ===

Website: http://www.mysupportcalculator.ca/

*People can use this website to calculate how much child support and spousal support they must pay under the relevant guidelines.

=== 11. British Columbia Supreme Court ===

Website: http://www.bccourts.ca/supreme_court

*Procedural guidelines for divorce proceedings can be found on this website.

=== 12. Divorce Registry of Canada ===

Website: http://www.justice.gc.ca/eng/fl-df/divorce/crdp-bead.html

Telephone: (613) 957-4519

*The registry is relevant as you need to fill in and print out a form and file it with the Court when you are seeking a divorce. This is required so that the Divorce Registry can confirm that you have not already been divorced.

=== 13. MOSAIC ===

Website: http://www.mosaicbc.com

Telephone: (604) 254-0244

*This resource deals with issues that affect immigrants and refugees while settling into Canadian society. They also offer translation services.

=== 14. Interjurisdictional Support Orders ===

Web site: http://www.isoforms.bc.ca

*Interjurisdictional Support Orders (ISOs) can be obtained from other Canadian provinces and territories and from reciprocating foreign countries by following the procedure set out in the ''Interjurisdictional Support Orders Act'', SBC 2002, Chapter 29.

=== 15. Children and Travel ===

Website: http://travel.gc.ca/travelling/publications/travelling-with-children

*This website provides general information helpful when travelling with children.

=== 16. Ministry of Justice Dispute Resolution Office ===

Website: https://www2.gov.bc.ca/gov/content/justice/about-bcs-justice-system/mediation

Phone (Lower Mainland): (604) 684-1300

Toll-Free (Rest of BC): 1-877-656-1300

*Develops and implements dispute resolution services and justice transformation projects with administrative tribunals, courts, government ministries, agencies, and external organizations.

=== 17. Collaborative Divorce ===

Website: http://www.collaborativepractice.com

Website: http://www.nocourt.net (Lower Mainland)

Website: http://www.bccollaborativerostersociety.com

*These websites provide information about Collaborative Divorce, an option for parties wishing to resolve disputes respectfully and without going to court. Parties work out a negotiated settlement with the help of collaboratively trained professionals including (as needed) lawyers, divorce coaches, child specialists, and financial specialists.

=== 18. Clicklaw ===

Website: https://www.clicklaw.bc.ca

*Described as a “portal-project”, Clicklaw is a website aimed at enhancing access to justice in British Columbia by helping users to sort through the myriad of legal information and assistance that is available and find the most appropriate resources for a given situation.
*Visitors are directed to user-friendly resources designed for the public by contributor organizations (including the Community Legal Assistance Society and Law Students’ Legal Advice Program).

=== 19. BC Hear the Child Society ===

Website: http://www.hearthechild.ca

*This society provides a provincial roster of qualified child interviewers who work in the legal and mental health fields.

=== 20. The Law Centre ===

Website: https://thelawcentre.ca/

*A service of the University of Victoria, Faculty of Law which offers legal assistance on various matters, including family law, to eligible individuals.

=== 21. BC First Nations Justice Council===
Website: https://bcfnjc.com/

*The Indigenous Justice Centre offers legal services, including family law matters, to eligible Indigenous individuals.

=== 22. Rise Women’s Legal Centre ===

Website: https://www.womenslegalcentre.ca/

*Provides legal services primarily related to family law for self-identified women and gender-diverse people in BC.

=== 23. Access Pro Bono ===

Website: https://www.accessprobono.ca/

*Access Pro Bono provides a range of legal services and programs to qualifying individuals, including the Virtual Family Mediation Program.

== C. Resources by Telephone ==

=== 1. Family Justice Centres ===

Family Justice Centres assist families going through a separation with issues of parenting time and access, and spousal support as well as child support issues. Family justice counsellors provide dispute resolution services, and make referrals to legal aid, other legal services, and community resources for families facing separation.

'''Note: The Family Justice Centres are not legal resources.'''

{| class="wikitable"
|-
! Location !! Telephone
|-
| Abbotsford || (604) 851-7055
1-888-260-3344
|-
| Campbell River || (250) 286-7527
1-(800) 757-9406
|-
| Chilliwack || (604) 795-8257
1-888-295-3344
|-
| Courtenay || (250) 897-7556
1-(800) 371-0799
|-
| Cranbrook || (250) 426-1660
1-(888) 518-8822
|-
| Kamloops || (250) 828-4688
1-(888) 764-3663
|-
| Kelowna || (250) 712-3636
1-(888) 227-7734
|-
| Langley || (604) 501-3100
|-
| Maple Ridge || (604) 466-7345
1-888-312-3344
|-
| Nanaimo || (250) 741-5447
1-(800) 578-8511
|-
| Nelson || (250) 354-6433
1-(888) 526-2229
|-
| New Westminster || (604) 660-8636
1-888-640-3344
|-
| North Vancouver || (604) 981-0084
1-(888) 837-1116
|-
| Penticton || (250) 487-4030
1-(888) 201-0045
|-
| Port Coquitlam || (604) 927-2217
1-888-683-3344
|-
| Powell River and Qathet Regional District || 1-844-747-3963
|-
| Prince George || (250) 565-4222
1-(888) 668-1602
|-
| Richmond || (604) 660-3511
1-888-664-3344
|-
| Sechelt || (604) 740-8936
1-(888) 245-1903
|-
| Surrey || (604) 501-3100
1-(800) 663-7867
|-
| Terrace || (250) 638-6557
1-(888) 800-1433
|-
| Vancouver – Commercial Drive || (604) 660-6828
1-888-771-3344
|-
| Vancouver – Hornby Street || (604) 660-2084
1-(800) 663-7867
|-
| Vernon || (250) 549-5644
1-(888) 282-2283
|-
| Victoria || (250) 356-7012
1-844-747-3963
|}

=== 2. Provincial Court Vancouver Registry ===

Family Court Registry: (604) 660-8989

=== 3. Provincial Court Vancouver Family Duty Counsel Service ===

Telephone: (604) 601-6086

*Duty counsel is also available in other cities, contact Legal Aid BC for a current list
*Legal Aid BC, general inquiries telephone line: (604) 601-6000
*Family duty counsel services are provided primarily in person, with phone-only services available at specific locations. For contact information and hours, please call the general inquiry line above or visit: https://legalaid.bc.ca/legal_aid/familyDutyCounsel.

=== 4. Supreme Court Vancouver Registry ===

Administration: (604) 660-2847

Family Law Registry: (604) 660-2486

Courthouse Library: (604) 660-2841

Scheduling: (604) 660-2853

=== 5. Supreme Court New Westminster Registry ===

Civil Registry: (604) 660-8522

Criminal Registry: (604) 660-8522

Divorce: (604) 660-8522

Courthouse Library: (604) 660-8577

Family Law Duty Counsel: (604)-601-6052

== D. Relevant Legislation ==

=== 1. Divorce Act, RSC 1985, c 3 [DA] ===
Website: https://laws-lois.justice.gc.ca/eng/acts/d-3.4/

The ''Divorce Act'' is the federal legislation that has effect on divorce law and the determination of corollary relief (support, parenting time, and access). Support orders under the ''Divorce Act'' have effect throughout Canada. All actions under the ''Divorce Act'' are generally heard in BC Supreme Court. However, if the Attorney General has designated a Provincial Court registry as a Supreme Court Registry under section 4 of the ''Provincial Court Act'', then that Provincial Court may decide interlocutory applications made under the ''Divorce Act''.

:'''Note:''' The ''DA'' does not provide for division of matrimonial assets. A person must seek division of matrimonial assets under the ''Family Law Act'' [''FLA''].

'''An amendment to the ''DA'' came into effect on March 1, 2021. These amendments include:'''
*Increasing focus on the best interests of the child
*Bringing definitions into alignment with the ''Family Law Act'' and focusing them on the relationship with the child. For instance, the amendments remove terms such as custody/custody order and add new terms such as parenting time/parenting order
*New provisions defining family violence and compelling courts to consider family violence in divorce proceedings

=== 2. Child, Family and Community Service Act, RSBC 1996, c 46 [CFCSA] ===
Website: https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/96046_01

This Act provides for official apprehension of children (under 19 in BC) who are believed to need protection or care. A hearing must be held before a judge within seven days. The hearing does not lead to any temporary or permanent parenting time orders, except by consent. Separate hearings are held for temporarily custodial orders and continuing custodial orders.

=== 3. Family Maintenance Enforcement Act, RSBC 1996, c 127 [FMEA] ===
Website: https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/96127_01

The enforcement of child support and spousal support orders is administered by the Family Maintenance Enforcement Program pursuant to the ''Family Maintenance Enforcement Act''.

=== 4. Family Relations Act, RSBC 1996, c 128 [FRA] ===
Website: https://www.bclaws.gov.bc.ca/civix/document/id/consol20/consol20/00_96128_01

The ''FRA'' has been replaced by the ''FLA''. The FRA is no longer in force except for actions that began before March 18, 2013, and only in respect to property and pension division.

=== 5. Family Law Act, SBC 2011, c 25 [FLA] ===
Website: https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/11025_00

The ''FLA'' came into force on March 18, 2013, and replaced the ''FRA''. The ''FLA'' prioritizes the safety and best interests of the child when families are going through separation and divorce. It also clarifies parental responsibilities and the division of assets if relationships break down, in addition to addressing family violence and encouraging families to resolve their disputes out of court when possible.

Some of the main changes in the ''FLA'', when compared to the ''FRA'', include:
*Shifting focus to the safety and best interests of the child
*Shifting away from custody in favour of guardianship and parenting arrangements
*Clarifying the law on family violence and its impact on family Court decisions
*Defining the responsibilities of guardians
*Expanding the toolbox to enforce family Court orders

Since March 18, 2013, the ''FRA'' no longer applies except in dealing with the division of assets for proceedings which were filed before March 18, 2013. Essentially, this means that child-related issues are determined by the ''FLA'', while property division issues that commenced under the ''FRA'' (prior to March 18, 2013) will continue to be governed by the ''FRA'' unless the parties agree to transition their legal matter to be governed under the ''FLA''. Sections 250-255 of the ''FLA'' allow parties to transition legal matters concerning care of and time with children, property division, pension benefits, and restraining orders from the ''FRA'' to the ''FLA''. Property division for cases that were started after March 18, 2013 will be governed by the ''FLA'', including actions commenced by common-law spouses before the ''FLA'' came into force, if the pleadings are amended to include division of property and debt under the ''FLA''.

=== 6. Family Homes on Reserves and Matrimonial Interests or Rights Act, (SC 2013, c 20) [FHRMIRA] ===

Website: https://laws-lois.justice.gc.ca/eng/acts/F-1.2/

''FHRMIRA'' came into force in 2013 and governs family law cases involving property located on First Nation Reserves. ''FHRMIRA'' also incorporates the local laws of the First Nation where the Reserve is located.

Matters regarding the division of matrimonial interests or rights in property on Reserve may become complicated as some orders require consultation with the Band Council and with other Band Members, other than the spouses, who have an interest or right in the home. It is important to consult ''FHRMIRA'' as well as the Band’s legislation and investigate all potential interests in the matrimonial home when dealing with these matters.

=== 7. British Columbia Supreme Court Family Rules, BC Reg. 168/2009 ===

Website: https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/169_2009_00

These are the procedural rules that govern family law cases brought in the Supreme Court. Refer to these rules for the specific procedural requirements when making family law applications.

=== 8. British Columbia Provincial Family Court Rules, BC Reg. 417/98 ===

Website: https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/120_2020

These are the procedural rules that govern family law cases brought in the Provincial Court. New rules took effect May 17, 2021, which altered the procedures for BC Provincial Family Court. Please see Provincial (Family) Court Proceedings (i.e., “The Rules”) under section XV Court Procedures for specific requirements and step-by-step information.

== E. Referrals ==

=== 1. The Non-Legal Problem ===

Many clients will have problems that are not strictly legal. If the client has a personal problem, refer the client to an appropriate social service agency in the lower mainland. The [https://uwbc.ca/helpline-services/ United Way British Columbia] is a very useful resource for this purpose. Often, even when a client does have a legal problem, the legal remedy will not resolve all issues for that person. Be aware of this and try to get clients the help they need.

=== 2. The Legal Problem ===

Care should be taken in making referrals. Someone has referred this person to you and the client does not want to be shoved further down the line. Do not refer unless you are sure that the agency handles such problems.

{{LSLAP Manual Navbox|type=chapters1-7}}

Governing Legislation and Resources for Family Law (3:II)

2025-11-10T17:39:17Z

LSLAP: /* A. Resources in Print */

{{REVIEWED LSLAP | date= November 8, 2025}}
{{LSLAP Manual TOC|expanded = family}}

== A. Resources in Print ==

#Continuing Legal Education Society of British Columbia, ''Family Law Sourcebook for British Columbia'' (Vancouver: Continuing Legal Education Society of British Columbia, 2022).
#*This loose-leaf sourcebook contains a thorough overview of all aspects of family law, with citations to the relevant authorities for each statement of law.
#Continuing Legal Education Society of British Columbia, ''Annotated Family Practice 2023–2024'' [regular updates]. (Vancouver: Continuing Legal Education Society of British Columbia, 2008).
#*This is an essential resource for many family law lawyers and is updated each year.
#Continuing Legal Education Society of British Columbia, ''British Columbia Family Practice Manual'', 5th ed. [regular updates] (Vancouver: Continuing Legal Education Society of British Columbia, 2011).
#*Loose-leaf manual providing a solid how-to approach to common family law problems and processes.
#Continuing Legal Education Society of British Columbia, ''Desk Order Divorce—An Annotated Guide'' (Vancouver: Continuing Legal Education Society of British Columbia, 2013).
#*Annotated guide to divorce, with regular updates.
#Trudi L Brown, QC, ''British Columbia Family Law Practice, 2023 Edition + E-Book'' (LexisNexis Canada, 2022).
#*This loose-leaf guide contains annotated legislation and judicial consideration of statutes pertaining to family law. Please note that it will only contain amendments up to the date of publication.

Library References:

#Mary Jane Mossman, ''Families and the Law in Canada: Cases and Commentary'' (Toronto: Emond Montgomery Publications, 2004).
#*A good casebook, which provides an overview of new family law issues in Canada.
#Julien D. Payne, ''Payne on Divorce'' (Scarborough: Carswell, 1996).
#*A very good Canadian text on family law.

== B. Resources on the Internet ==

=== 1. Ministry of Justice – Family Law Legislation ===

[https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/11025_00 Government website for the Family Law Act]

On March 18, 2013, British Columbia’s ''Family Law Act [FLA]'' came into force replacing the ''Family Relations Act [FRA]''. Resources that are relevant to this change include:

Resources that are particularly relevant include:
*[https://www2.gov.bc.ca/assets/gov/law-crime-and-justice/about-bc-justice-system/legislation-policy/fla/concordance.pdf Table of Concordance] – Allows for quick cross-referencing from the ''FRA'' sections to the ''FLA'' sections.
*[https://www2.gov.bc.ca/gov/content/justice/about-bcs-justice-system/legislation-policy/active-reviews/family-law-act/the-family-law-act-explained The Family Law Act explained] – - Explains the meaning and intention of each section of the ''FLA'' as it was implemented in 2013 and provides information on where each section replaced, changed or carried over a section of the ''FRA''.
*[https://www2.gov.bc.ca/assets/gov/law-crime-and-justice/about-bc-justice-system/justice-reform-initiatives/family-civil/pcfr-explained.pdf The Ministry of Attorney General - ''Provincial Court Family Rules Explained''] - A document developed by the Ministry of Attorney General to support the transition to the new Provincial Court Family Rules, last updated January 2022.
*[https://www2.gov.bc.ca/gov/content/justice/about-bcs-justice-system/legislation-policy/active-reviews/family-law-act/family-law-act-questions-and-answers Questions and Answers] – Question and answers on this website provide a concise introductory comparison between the ''FLA'' and ''FRA''. Perhaps the best and most concise comparison between ''FLA'' and ''FRA'' can be found on this website.

=== 2. Online Help Guide Supreme Court BC – Family Law ===

Website: https://supremecourtbc.ca/family-law

*This service provides accurate and easy-to-understand information to help users prepare the procedural aspects of a family or civil case. This is an educational online resource.

=== 3. J.P. Boyd’s BC Family Law Web Resource ===

Website: http://wiki.clicklaw.bc.ca/index.php/JP_Boyd_on_Family_Law.

*This is an excellent site for those unfamiliar with family law rights and procedures, written in plain English. It is a good place to begin for those who have not had the benefit of a family law course.
*The Family Law Resource is one of the leading resources in BC, particularly for the ''Family Law Act''.
*There is a link to forms for both matters in the Provincial Court and Supreme Court.
*Note: If using this site, ensure that it is up to date with the new Provincial Court Rules.

=== 4. BC Family Maintenance Agency (BCFMA) ===

Website: https://www.bcfma.ca/

*This program helps families to enforce child support and spousal support orders from ex-partners. Enrollment for the BCFMA can be done online or via mail.

=== 5. Family Law in BC ===

Website: https://www.familylawinbc.ca/

*This site has general information on family law, including self-help materials, forms a client needs to file for an uncontested divorce, and step-by-step instructions for filling out the forms.

=== 6. Legal Aid BC ===

Website: https://info.legalaid.bc.ca/resources/family-law/living-together-or-living-apart

*Legal Aid BC family law publications. ''[https://legalaid.bc.ca/publications/pub/living-together-or-living-apart Living Together, Living Apart: Common-Law Relationships, Marriage, Separation and Divorce]'' is very useful.

This publication is available in English.

=== 7. British Columbia Vital Statistics Agency ===

Website: http://www2.gov.bc.ca/gov/content/life-events

*The Vital Statistics Agency is a service provided by the provincial Ministry of Health Services. The web site includes information on birth and death registration and certificates. It also includes wills notice registration and searches, information on how to change your name, and information on marriage licences. Contact numbers are available for various services including adoption records information. Marriage certificates can also be ordered online.

=== 8. Ministry of Attorney General ===

Website: http://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice

*This site provides general information about several issues of interest to BC couples who have separated or who are about to separate. It may also be useful for guardians and other family members, such as grandparents, who may be involved in making important decisions about the family and its future.

=== 9. Department of Justice Canada ===

About Spousal Support/Spousal Support Advisory Guidelines: http://www.justice.gc.ca/eng/fl-df/spousal-epoux/ssag-ldfpae.html

About Child Support/Federal Child Support Guidelines, P.C. 1997-469: https://www.justice.gc.ca/eng/fl-df/child-enfant/index.html

=== 10. Support Calculator ===

Website: http://www.mysupportcalculator.ca/

*People can use this website to calculate how much child support and spousal support they must pay under the relevant guidelines.

=== 11. British Columbia Supreme Court ===

Website: http://www.bccourts.ca/supreme_court

*Procedural guidelines for divorce proceedings can be found on this website.

=== 12. Divorce Registry of Canada ===

Website: http://www.justice.gc.ca/eng/fl-df/divorce/crdp-bead.html

Telephone: (613) 957-4519

*The registry is relevant as you need to fill in and print out a form and file it with the Court when you are seeking a divorce. This is required so that the Divorce Registry can confirm that you have not already been divorced.

=== 13. MOSAIC ===

Website: http://www.mosaicbc.com

Telephone: (604) 254-0244

*This resource deals with issues that affect immigrants and refugees while settling into Canadian society. They also offer translation services.

=== 14. Interjurisdictional Support Orders ===

Web site: http://www.isoforms.bc.ca

*Interjurisdictional Support Orders (ISOs) can be obtained from other Canadian provinces and territories and from reciprocating foreign countries by following the procedure set out in the ''Interjurisdictional Support Orders Act'', SBC 2002, Chapter 29.

=== 15. Children and Travel ===

Website: http://travel.gc.ca/travelling/publications/travelling-with-children

*This website provides general information helpful when travelling with children.

=== 16. Ministry of Justice Dispute Resolution Office ===

Website: https://www2.gov.bc.ca/gov/content/justice/about-bcs-justice-system/mediation

Phone (Lower Mainland): (604) 684-1300

Toll-Free (Rest of BC): 1-877-656-1300

*Develops and implements dispute resolution services and justice transformation projects with administrative tribunals, courts, government ministries, agencies, and external organizations.

=== 17. Collaborative Divorce ===

Website: http://www.collaborativepractice.com

Website: http://www.nocourt.net (Lower Mainland)

Website: http://www.bccollaborativerostersociety.com

*These websites provide information about Collaborative Divorce, an option for parties wishing to resolve disputes respectfully and without going to court. Parties work out a negotiated settlement with the help of collaboratively trained professionals including (as needed) lawyers, divorce coaches, child specialists, and financial specialists.

=== 18. Clicklaw ===

Website: https://www.clicklaw.bc.ca

*Described as a “portal-project”, Clicklaw is a website aimed at enhancing access to justice in British Columbia by helping users to sort through the myriad of legal information and assistance that is available and find the most appropriate resources for a given situation.
*Visitors are directed to user-friendly resources designed for the public by contributor organizations (including the Community Legal Assistance Society and Law Students’ Legal Advice Program).

=== 19. BC Hear the Child Society ===

Website: http://www.hearthechild.ca

*This society provides a provincial roster of qualified child interviewers who work in the legal and mental health fields.

=== 20. The Law Centre ===

Website: https://thelawcentre.ca/

*A service of the University of Victoria, Faculty of Law which offers legal assistance on various matters, including family law, to eligible individuals.

=== 21. BC First Nations Justice Council===
Website: https://bcfnjc.com/

*The Indigenous Justice Centre offers legal services, including family law matters, to eligible Indigenous individuals.

=== 22. Rise Women’s Legal Centre ===

Website: https://www.womenslegalcentre.ca/

*Provides legal services primarily related to family law for self-identified women and gender-diverse people in BC.

=== 23. Access Pro Bono ===

Website: https://www.accessprobono.ca/

*Access Pro Bono provides a range of legal services and programs to qualifying individuals, including the Virtual Family Mediation Program.

== C. Resources by Telephone ==

=== 1. Family Justice Centres ===

Family Justice Centres assist families going through a separation with issues of parenting time and access, and spousal support as well as child support issues. Family justice counsellors provide dispute resolution services, and make referrals to legal aid, other legal services, and community resources for families facing separation.

'''Note: The Family Justice Centres are not legal resources.'''

{| class="wikitable"
|-
! Location !! Telephone
|-
| Abbotsford || (604) 851-7055
1-888-260-3344
|-
| Campbell River || (250) 286-7527
1-(800) 757-9406
|-
| Chilliwack || (604) 795-8257
1-888-295-3344
|-
| Courtenay || (250) 897-7556
1-(800) 371-0799
|-
| Cranbrook || (250) 426-1660
1-(888) 518-8822
|-
| Kamloops || (250) 828-4688
1-(888) 764-3663
|-
| Kelowna || (250) 712-3636
1-(888) 227-7734
|-
| Langley || (604) 501-3100
|-
| Maple Ridge || (604) 466-7345
1-888-312-3344
|-
| Nanaimo || (250) 741-5447
1-(800) 578-8511
|-
| Nelson || (250) 354-6433
1-(888) 526-2229
|-
| New Westminster || (604) 660-8636
1-888-640-3344
|-
| North Vancouver || (604) 981-0084
1-(888) 837-1116
|-
| Penticton || (250) 487-4030
1-(888) 201-0045
|-
| Port Coquitlam || (604) 927-2217
1-888-683-3344
|-
| Powell River and Qathet Regional District || 1-844-747-3963
|-
| Prince George || (250) 565-4222
1-(888) 668-1602
|-
| Richmond || (604) 660-3511
1-888-664-3344
|-
| Sechelt || (604) 740-8936
1-(888) 245-1903
|-
| Surrey || (604) 501-3100
1-(800) 663-7867
|-
| Terrace || (250) 638-6557
1-(888) 800-1433
|-
| Vancouver – Commercial Drive || (604) 660-6828
1-888-771-3344
|-
| Vancouver – Hornby Street || (604) 660-2084
1-(800) 663-7867
|-
| Vernon || (250) 549-5644
1-(888) 282-2283
|-
| Victoria || (250) 356-7012
1-844-747-3963
|}

=== 2. Provincial Court Vancouver Registry ===

Family Court Registry: (604) 660-8989

=== 3. Provincial Court Vancouver Family Duty Counsel Service ===

Telephone: (604) 601-6086

*Duty counsel is also available in other cities, contact Legal Aid BC for a current list
*Legal Aid BC, general inquiries telephone line: (604) 601-6000
*Family duty counsel services are provided primarily in person, with phone-only services available at specific locations. For contact information and hours, please call the general inquiry line above or visit: https://legalaid.bc.ca/legal_aid/familyDutyCounsel.

=== 4. Supreme Court Vancouver Registry ===

Administration: (604) 660-2847

Family Law Registry: (604) 660-2486

Courthouse Library: (604) 660-2841

Scheduling: (604) 660-2853

=== 5. Supreme Court New Westminster Registry ===

Civil Registry: (604) 660-8522

Criminal Registry: (604) 660-8522

Divorce: (604) 660-8522

Courthouse Library: (604) 660-8577

Family Law Duty Counsel: (604)-601-6052

== D. Relevant Legislation ==

=== 1. Divorce Act, RSC 1985, c 3 [DA] ===
Website: https://laws-lois.justice.gc.ca/eng/acts/d-3.4/

The ''Divorce Act'' is the federal legislation that has effect on divorce law and the determination of corollary relief (support, parenting time, and access). Support orders under the ''Divorce Act'' have effect throughout Canada. All actions under the ''Divorce Act'' are generally heard in BC Supreme Court. However, if the Attorney General has designated a Provincial Court registry as a Supreme Court Registry under section 4 of the ''Provincial Court Act'', then that Provincial Court may decide interlocutory applications made under the ''Divorce Act''.

:'''Note:''' The ''DA'' does not provide for division of matrimonial assets. A person must seek division of matrimonial assets under the ''Family Law Act'' [''FLA''].

'''An amendment to the ''DA'' came into effect on March 1, 2021. These amendments include:'''
*Increasing focus on the best interests of the child
*Bringing definitions into alignment with the ''Family Law Act'' and focusing them on the relationship with the child. For instance, the amendments remove terms such as custody/custody order and add new terms such as parenting time/parenting order
*New provisions defining family violence and compelling courts to consider family violence in divorce proceedings

=== 2. Child, Family and Community Service Act, RSBC 1996, c 46 [CFCSA] ===
Website: https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/96046_01

This Act provides for official apprehension of children (under 19 in BC) who are believed to need protection or care. A hearing must be held before a judge within seven days. The hearing does not lead to any temporary or permanent parenting time orders, except by consent. Separate hearings are held for temporarily custodial orders and continuing custodial orders.

=== 3. Family Maintenance Enforcement Act, RSBC 1996, c 127 [FMEA] ===
Website: https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/96127_01

The enforcement of child support and spousal support orders is administered by the Family Maintenance Enforcement Program pursuant to the ''Family Maintenance Enforcement Act''.

=== 4. Family Relations Act, RSBC 1996, c 128 [FRA] ===
Website: https://www.bclaws.gov.bc.ca/civix/document/id/consol20/consol20/00_96128_01

The ''FRA'' has been replaced by the ''FLA''. The FRA is no longer in force except for actions that began before March 18, 2013, and only in respect to property and pension division.

=== 5. Family Law Act, SBC 2011, c 25 [FLA] ===
Website: https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/11025_00

The ''FLA'' came into force on March 18, 2013, and replaced the ''FRA''. The ''FLA'' prioritizes the safety and best interests of the child when families are going through separation and divorce. It also clarifies parental responsibilities and the division of assets if relationships break down, in addition to addressing family violence and encouraging families to resolve their disputes out of court when possible.

Some of the main changes in the ''FLA'', when compared to the ''FRA'', include:
*Shifting focus to the safety and best interests of the child
*Shifting away from custody in favour of guardianship and parenting arrangements
*Clarifying the law on family violence and its impact on family Court decisions
*Defining the responsibilities of guardians
*Expanding the toolbox to enforce family Court orders

Since March 18, 2013, the ''FRA'' no longer applies except in dealing with the division of assets for proceedings which were filed before March 18, 2013. Essentially, this means that child-related issues are determined by the ''FLA'', while property division issues that commenced under the ''FRA'' (prior to March 18, 2013) will continue to be governed by the ''FRA'' unless the parties agree to transition their legal matter to be governed under the ''FLA''. Sections 250-255 of the ''FLA'' allow parties to transition legal matters concerning care of and time with children, property division, pension benefits, and restraining orders from the ''FRA'' to the ''FLA''. Property division for cases that were started after March 18, 2013 will be governed by the ''FLA'', including actions commenced by common-law spouses before the ''FLA'' came into force, if the pleadings are amended to include division of property and debt under the ''FLA''.

=== 6. Family Homes on Reserves and Matrimonial Interests or Rights Act, (SC 2013, c 20) [FHRMIRA] ===

Website: https://laws-lois.justice.gc.ca/eng/acts/F-1.2/

''FHRMIRA'' came into force in 2013 and governs family law cases involving property located on First Nation Reserves. ''FHRMIRA'' also incorporates the local laws of the First Nation where the Reserve is located.

Matters regarding the division of matrimonial interests or rights in property on Reserve may become complicated as some orders require consultation with the Band Council and with other Band Members, other than the spouses, who have an interest or right in the home. It is important to consult ''FHRMIRA'' as well as the Band’s legislation and investigate all potential interests in the matrimonial home when dealing with these matters.

=== 7. British Columbia Supreme Court Family Rules, BC Reg. 168/2009 ===

Website: https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/169_2009_00

These are the procedural rules that govern family law cases brought in the Supreme Court. Refer to these rules for the specific procedural requirements when making family law applications.

=== 8. British Columbia Provincial Family Court Rules, BC Reg. 417/98 ===

Website: https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/120_2020

These are the procedural rules that govern family law cases brought in the Provincial Court. New rules took effect May 17, 2021, which altered the procedures for BC Provincial Family Court. Please see Provincial (Family) Court Proceedings (i.e., “The Rules”) under section XV Court Procedures for specific requirements and step-by-step information.

== E. Referrals ==

=== 1. The Non-Legal Problem ===

Many clients will have problems that are not strictly legal. If the client has a personal problem, refer the client to an appropriate social service agency in the lower mainland. The [https://uwbc.ca/helpline-services/ United Way British Columbia] is a very useful resource for this purpose. Often, even when a client does have a legal problem, the legal remedy will not resolve all issues for that person. Be aware of this and try to get clients the help they need.

=== 2. The Legal Problem ===

Care should be taken in making referrals. Someone has referred this person to you and the client does not want to be shoved further down the line. Do not refer unless you are sure that the agency handles such problems.

{{LSLAP Manual Navbox|type=chapters1-7}}

Other Resources (23:XIII)

2025-11-10T17:31:54Z

LSLAP:

{{REVIEWED LSLAP | date= 1 September 2025}}
{{LSLAP Manual TOC|expanded = referrals}}

== The Law Society of British Columbia ==
Telephone: 604-669-2533

Toll-Free: 1-800-903-5300

Website: https://www.lawsociety.bc.ca/

* Considers all complaints about lawyer conduct or competency

== VictimLinkBC ==
Toll-Free: 1-800-563-0808

Email: 211-victimlinkbc@uwbc.ca

*Provides information and referral services to all victims of crime
*Immediate crisis support to victims of family and sexual violence

== The Vancouver Police Department (Victim Services) ==
Telephone: 604-717-2737
*Provide crime victims, witnesses and their family members with professional, supportive and timely assistance
*Emotional support, information and assistance with Victim Impact Statements and Crime Victim Assistance forms

== Crisis Intervention and Suicide Prevention Centre of BC (Crisis Centre) ==
Suicide Crisis Line: 9-8-8

Text: 9-8-8

Mental Health Crisis: 310-6789

Website: https://crisiscentre.bc.ca/

* 24/7 free crisis support and suicide prevention service

== Vital Statistics Agency ==
Website: https://www2.gov.bc.ca/gov/content/family-social-supports/seniors/health-safety/health-care-programs-and-services/vital-statistics

* Registers all births, marriages, deaths and changes of name

== Alma Mater Society of the University of British Columbia (Advocacy Office) ==
Telephone: (604) 822-4846

Website: https://www.ams.ubc.ca/support-services/ombuds/

*Provides confidential assistance and representation for undergraduate students involved in formal conflict with the University
*Help with academic appeals, student discipline cases and appeals, housing appeals, parking disputes and library fine appeals

== Brydges Line ==
Telephone: 1-866-458-5500

* Telephone line for individuals to speak to lawyer if they are arrested, detained, and under investigation (but not yet charged)

== West Coast Prison Justice Society ==
Telephone: 604-636-0470 (call for a referral)

Website: https://prisonjustice.org/

* Protects prisoners’ rights
* Assists with issues like solitary confinement, involuntary transfers, parole suspensions, disciplinary hearings, human rights, and health care

== Better Business Bureau ==
Website: https://www.bbb.org

* Can file complaints against businesses
* Provides resources for consumer education

{{LSLAP Manual Navbox|type=chapters15-23}}

Other Resources (23:XIII)

2025-11-10T17:30:24Z

LSLAP: /* West Coast Prison Justice Society */

{{REVIEWED LSLAP | date= 1 September 2025}}
{{LSLAP Manual TOC|expanded = referrals}}

== The Law Society of British Columbia ==
Telephone: 604-669-2533

Toll-Free: 1-800-903-5300

Website: https://www.lawsociety.bc.ca/

* Considers all complaints about lawyer conduct or competency

== VictimLinkBC ==
Toll-Free: 1-800-563-0808

Email: 211-victimlinkbc@uwbc.ca

*Provides information and referral services to all victims of crime
*Immediate crisis support to victims of family and sexual violence

== The Vancouver Police Department (Victim Services) ==
Telephone: 604-717-2737
*Provide crime victims, witnesses and their family members with professional, supportive and timely assistance
*Emotional support, information and assistance with Victim Impact Statements and Crime Victim Assistance forms

== Crisis Intervention and Suicide Prevention Centre of BC (Crisis Centre) ==
Suicide Crisis Line: 9-8-8

Text: 9-8-8

Mental Health Crisis: 310-6789

Website: https://crisiscentre.bc.ca/

* 24/7 free crisis support and suicide prevention service

== Vital Statistics Agency ==
Website: https://www2.gov.bc.ca/gov/content/family-social-supports/seniors/health-safety/health-care-programs-and-services/vital-statistics

* Registers all births, marriages, deaths and changes of name

== Alma Mater Society of the University of British Columbia (Advocacy Office) ==
Telephone: (604) 822-4846

Website: https://www.ams.ubc.ca/support-services/ombuds/

*Provides confidential assistance and representation for undergraduate students involved in formal conflict with the University
*Help with academic appeals, student discipline cases and appeals, housing appeals, parking disputes and library fine appeals

== Brydges Line ==
Telephone: 1-866-458-5500

* Telephone line for individuals to speak to lawyer if they are arrested, detained, and under investigation (but not yet charged)

== West Coast Prison Justice Society ==
Telephone: 604-636-0470 (call for a referral)

Website: https://prisonjustice.org/

* Protects prisoners’ rights
* Assists with issues like solitary confinement, involuntary transfers, parole suspensions, disciplinary hearings, human rights, and health care

== Personal Injury Resource Centre ==
Website: https://www.murphybattista.com/injury-resources/

* Offers a range of services for injured individuals, including no cost consultations

== Better Business Bureau ==
Website: https://www.bbb.org

* Can file complaints against businesses
* Provides resources for consumer education

{{LSLAP Manual Navbox|type=chapters15-23}}

Other Resources (23:XIII)

2025-11-10T17:29:44Z

LSLAP: /* Alma Mater Society of the University of British Columbia (Advocacy Office) */

{{REVIEWED LSLAP | date= 1 September 2025}}
{{LSLAP Manual TOC|expanded = referrals}}

== The Law Society of British Columbia ==
Telephone: 604-669-2533

Toll-Free: 1-800-903-5300

Website: https://www.lawsociety.bc.ca/

* Considers all complaints about lawyer conduct or competency

== VictimLinkBC ==
Toll-Free: 1-800-563-0808

Email: 211-victimlinkbc@uwbc.ca

*Provides information and referral services to all victims of crime
*Immediate crisis support to victims of family and sexual violence

== The Vancouver Police Department (Victim Services) ==
Telephone: 604-717-2737
*Provide crime victims, witnesses and their family members with professional, supportive and timely assistance
*Emotional support, information and assistance with Victim Impact Statements and Crime Victim Assistance forms

== Crisis Intervention and Suicide Prevention Centre of BC (Crisis Centre) ==
Suicide Crisis Line: 9-8-8

Text: 9-8-8

Mental Health Crisis: 310-6789

Website: https://crisiscentre.bc.ca/

* 24/7 free crisis support and suicide prevention service

== Vital Statistics Agency ==
Website: https://www2.gov.bc.ca/gov/content/family-social-supports/seniors/health-safety/health-care-programs-and-services/vital-statistics

* Registers all births, marriages, deaths and changes of name

== Alma Mater Society of the University of British Columbia (Advocacy Office) ==
Telephone: (604) 822-4846

Website: https://www.ams.ubc.ca/support-services/ombuds/

*Provides confidential assistance and representation for undergraduate students involved in formal conflict with the University
*Help with academic appeals, student discipline cases and appeals, housing appeals, parking disputes and library fine appeals

== Brydges Line ==
Telephone: 1-866-458-5500

* Telephone line for individuals to speak to lawyer if they are arrested, detained, and under investigation (but not yet charged)

== West Coast Prison Justice Society ==
Telephone: 604-636-0470 (call for a referral)
Website: https://prisonjustice.org/

* Protects prisoners’ rights
* Assists with issues like solitary confinement, involuntary transfers, parole suspensions, disciplinary hearings, human rights, and health care

== Personal Injury Resource Centre ==
Website: https://www.murphybattista.com/injury-resources/

* Offers a range of services for injured individuals, including no cost consultations

== Better Business Bureau ==
Website: https://www.bbb.org

* Can file complaints against businesses
* Provides resources for consumer education

{{LSLAP Manual Navbox|type=chapters15-23}}

Other Resources (23:XIII)

2025-11-10T17:29:25Z

LSLAP: /* Crisis Intervention and Suicide Prevention Centre of BC (Crisis Centre) */

{{REVIEWED LSLAP | date= 1 September 2025}}
{{LSLAP Manual TOC|expanded = referrals}}

== The Law Society of British Columbia ==
Telephone: 604-669-2533

Toll-Free: 1-800-903-5300

Website: https://www.lawsociety.bc.ca/

* Considers all complaints about lawyer conduct or competency

== VictimLinkBC ==
Toll-Free: 1-800-563-0808

Email: 211-victimlinkbc@uwbc.ca

*Provides information and referral services to all victims of crime
*Immediate crisis support to victims of family and sexual violence

== The Vancouver Police Department (Victim Services) ==
Telephone: 604-717-2737
*Provide crime victims, witnesses and their family members with professional, supportive and timely assistance
*Emotional support, information and assistance with Victim Impact Statements and Crime Victim Assistance forms

== Crisis Intervention and Suicide Prevention Centre of BC (Crisis Centre) ==
Suicide Crisis Line: 9-8-8

Text: 9-8-8

Mental Health Crisis: 310-6789

Website: https://crisiscentre.bc.ca/

* 24/7 free crisis support and suicide prevention service

== Vital Statistics Agency ==
Website: https://www2.gov.bc.ca/gov/content/family-social-supports/seniors/health-safety/health-care-programs-and-services/vital-statistics

* Registers all births, marriages, deaths and changes of name

== Alma Mater Society of the University of British Columbia (Advocacy Office) ==
Telephone: (604) 822-4846 Website: https://www.ams.ubc.ca/support-services/ombuds/

*Provides confidential assistance and representation for undergraduate students involved in formal conflict with the University
*Help with academic appeals, student discipline cases and appeals, housing appeals, parking disputes and library fine appeals

== Brydges Line ==
Telephone: 1-866-458-5500

* Telephone line for individuals to speak to lawyer if they are arrested, detained, and under investigation (but not yet charged)

== West Coast Prison Justice Society ==
Telephone: 604-636-0470 (call for a referral)
Website: https://prisonjustice.org/

* Protects prisoners’ rights
* Assists with issues like solitary confinement, involuntary transfers, parole suspensions, disciplinary hearings, human rights, and health care

== Personal Injury Resource Centre ==
Website: https://www.murphybattista.com/injury-resources/

* Offers a range of services for injured individuals, including no cost consultations

== Better Business Bureau ==
Website: https://www.bbb.org

* Can file complaints against businesses
* Provides resources for consumer education

{{LSLAP Manual Navbox|type=chapters15-23}}

Other Resources (23:XIII)

2025-11-10T17:28:57Z

LSLAP: /* VictimLinkBC */

{{REVIEWED LSLAP | date= 1 September 2025}}
{{LSLAP Manual TOC|expanded = referrals}}

== The Law Society of British Columbia ==
Telephone: 604-669-2533

Toll-Free: 1-800-903-5300

Website: https://www.lawsociety.bc.ca/

* Considers all complaints about lawyer conduct or competency

== VictimLinkBC ==
Toll-Free: 1-800-563-0808

Email: 211-victimlinkbc@uwbc.ca

*Provides information and referral services to all victims of crime
*Immediate crisis support to victims of family and sexual violence

== The Vancouver Police Department (Victim Services) ==
Telephone: 604-717-2737
*Provide crime victims, witnesses and their family members with professional, supportive and timely assistance
*Emotional support, information and assistance with Victim Impact Statements and Crime Victim Assistance forms

== Crisis Intervention and Suicide Prevention Centre of BC (Crisis Centre) ==
Suicide Crisis Line: 9-8-8
Text: 9-8-8
Mental Health Crisis: 310-6789

Website: https://crisiscentre.bc.ca/

* 24/7 free crisis support and suicide prevention service

== Vital Statistics Agency ==
Website: https://www2.gov.bc.ca/gov/content/family-social-supports/seniors/health-safety/health-care-programs-and-services/vital-statistics

* Registers all births, marriages, deaths and changes of name

== Alma Mater Society of the University of British Columbia (Advocacy Office) ==
Telephone: (604) 822-4846 Website: https://www.ams.ubc.ca/support-services/ombuds/

*Provides confidential assistance and representation for undergraduate students involved in formal conflict with the University
*Help with academic appeals, student discipline cases and appeals, housing appeals, parking disputes and library fine appeals

== Brydges Line ==
Telephone: 1-866-458-5500

* Telephone line for individuals to speak to lawyer if they are arrested, detained, and under investigation (but not yet charged)

== West Coast Prison Justice Society ==
Telephone: 604-636-0470 (call for a referral)
Website: https://prisonjustice.org/

* Protects prisoners’ rights
* Assists with issues like solitary confinement, involuntary transfers, parole suspensions, disciplinary hearings, human rights, and health care

== Personal Injury Resource Centre ==
Website: https://www.murphybattista.com/injury-resources/

* Offers a range of services for injured individuals, including no cost consultations

== Better Business Bureau ==
Website: https://www.bbb.org

* Can file complaints against businesses
* Provides resources for consumer education

{{LSLAP Manual Navbox|type=chapters15-23}}

Other Resources (23:XIII)

2025-11-10T17:28:43Z

LSLAP: /* The Law Society of British Columbia */

{{REVIEWED LSLAP | date= 1 September 2025}}
{{LSLAP Manual TOC|expanded = referrals}}

== The Law Society of British Columbia ==
Telephone: 604-669-2533

Toll-Free: 1-800-903-5300

Website: https://www.lawsociety.bc.ca/

* Considers all complaints about lawyer conduct or competency

== VictimLinkBC ==
Toll-Free: 1-800-563-0808
Email: 211-victimlinkbc@uwbc.ca

*Provides information and referral services to all victims of crime
*Immediate crisis support to victims of family and sexual violence

== The Vancouver Police Department (Victim Services) ==
Telephone: 604-717-2737
*Provide crime victims, witnesses and their family members with professional, supportive and timely assistance
*Emotional support, information and assistance with Victim Impact Statements and Crime Victim Assistance forms

== Crisis Intervention and Suicide Prevention Centre of BC (Crisis Centre) ==
Suicide Crisis Line: 9-8-8
Text: 9-8-8
Mental Health Crisis: 310-6789

Website: https://crisiscentre.bc.ca/

* 24/7 free crisis support and suicide prevention service

== Vital Statistics Agency ==
Website: https://www2.gov.bc.ca/gov/content/family-social-supports/seniors/health-safety/health-care-programs-and-services/vital-statistics

* Registers all births, marriages, deaths and changes of name

== Alma Mater Society of the University of British Columbia (Advocacy Office) ==
Telephone: (604) 822-4846 Website: https://www.ams.ubc.ca/support-services/ombuds/

*Provides confidential assistance and representation for undergraduate students involved in formal conflict with the University
*Help with academic appeals, student discipline cases and appeals, housing appeals, parking disputes and library fine appeals

== Brydges Line ==
Telephone: 1-866-458-5500

* Telephone line for individuals to speak to lawyer if they are arrested, detained, and under investigation (but not yet charged)

== West Coast Prison Justice Society ==
Telephone: 604-636-0470 (call for a referral)
Website: https://prisonjustice.org/

* Protects prisoners’ rights
* Assists with issues like solitary confinement, involuntary transfers, parole suspensions, disciplinary hearings, human rights, and health care

== Personal Injury Resource Centre ==
Website: https://www.murphybattista.com/injury-resources/

* Offers a range of services for injured individuals, including no cost consultations

== Better Business Bureau ==
Website: https://www.bbb.org

* Can file complaints against businesses
* Provides resources for consumer education

{{LSLAP Manual Navbox|type=chapters15-23}}

Chinese Language Resources (23:XII)

2025-11-10T17:28:14Z

LSLAP: /* S.U.C.C.E.S.S. */

{{REVIEWED LSLAP | date= 1 September 2025}}
{{LSLAP Manual TOC|expanded = referrals}}

== S.U.C.C.E.S.S. ==
Telephone: 604-684-1628

Website: https://successbc.ca/

*Service in Mandarin and Cantonese

{{LSLAP Manual Navbox|type=chapters15-23}}

Police Complaints Resources (23:XI)

2025-11-10T17:27:50Z

LSLAP: /* Office of the Police Complaint Commissioner */

{{REVIEWED LSLAP | date= 1 September 2025}}
{{LSLAP Manual TOC|expanded = referrals}}

== Office of the Police Complaint Commissioner ==
Telephone: 250-356-7458

Toll-Free: 1-877-999-8707

Website: https://opcc.bc.ca/

* Complaints against Municipal Police

== Civilian Review and Complaints Commission for the RCMP ==
Website: https://www.crcc-ccetp.gc.ca/en/make-complaint

* Complaints against the RCMP

{{LSLAP Manual Navbox|type=chapters15-23}}

Indigenous Resources (23:X)

2025-11-10T17:27:33Z

LSLAP: /* Native Courtworker and Counselling Association of British Columbia */

{{REVIEWED LSLAP | date= 1 September 2025}}
{{LSLAP Manual TOC|expanded = referrals}}

== UBC Indigenous Community Legal Clinic ==
Telephone: 604-822-5421

E-mail: iclc@allard.ubc.ca

* Free legal services for Indigenous people in the Downtown Eastside and throughout the Lower Mainland. Advice, assistance and representation for eligible clients who cannot afford a lawyer and who self-identify as Indigenous persons

== Native Courtworker and Counselling Association of British Columbia ==
Telephone: 604-985-5355

Toll-Free: 1-877-811-1190

Website: https://nccabc.ca/

* Legal and health services for Indigenous people. Help with the criminal justice system, assistance with substance abuse and detox issues, discrimination from health providers, family and youth issues, and violence and abuse

{{LSLAP Manual Navbox|type=chapters15-23}}

Indigenous Resources (23:X)

2025-11-10T17:27:14Z

LSLAP: /* UBC Indigenous Community Legal Clinic */

{{REVIEWED LSLAP | date= 1 September 2025}}
{{LSLAP Manual TOC|expanded = referrals}}

== UBC Indigenous Community Legal Clinic ==
Telephone: 604-822-5421

E-mail: iclc@allard.ubc.ca

* Free legal services for Indigenous people in the Downtown Eastside and throughout the Lower Mainland. Advice, assistance and representation for eligible clients who cannot afford a lawyer and who self-identify as Indigenous persons

== Native Courtworker and Counselling Association of British Columbia ==
Telephone: 604-985-5355
Toll-Free: 1-877-811-1190
Website: https://nccabc.ca/

* Legal and health services for Indigenous people. Help with the criminal justice system, assistance with substance abuse and detox issues, discrimination from health providers, family and youth issues, and violence and abuse

{{LSLAP Manual Navbox|type=chapters15-23}}

Debt Resources (23:IX)

2025-11-10T17:26:52Z

LSLAP: /* Bankruptcy Canada */

{{REVIEWED LSLAP | date= 1 September 2025}}
{{LSLAP Manual TOC|expanded = referrals}}

== Credit Counseling Society ==
Toll-Free: 1-888-527-8999

Website: https://www.nomoredebts.org/

*Free, confidential credit counselling
*Debt consolidation, repayment and settlement
*Money management and budgeting assistance
*Information and referrals

== Bankruptcy Canada ==
Telephone: 1-888-823-8239

Website: https://www.bankruptcy-canada.ca

* Offers free consultation with a licenced bankruptcy trustee

{{LSLAP Manual Navbox|type=chapters15-23}}

Debt Resources (23:IX)

2025-11-10T17:26:42Z

LSLAP: /* Credit Counseling Society */

{{REVIEWED LSLAP | date= 1 September 2025}}
{{LSLAP Manual TOC|expanded = referrals}}

== Credit Counseling Society ==
Toll-Free: 1-888-527-8999

Website: https://www.nomoredebts.org/

*Free, confidential credit counselling
*Debt consolidation, repayment and settlement
*Money management and budgeting assistance
*Information and referrals

== Bankruptcy Canada ==
Telephone: 1-888-823-8239 Website: https://www.bankruptcy-canada.ca

* Offers free consultation with a licenced bankruptcy trustee

{{LSLAP Manual Navbox|type=chapters15-23}}

Employment Resources (23:VIII)

2025-11-10T17:26:24Z

LSLAP: /* Employment Standards Branch */

{{REVIEWED LSLAP | date= 1 September 2025}}
{{LSLAP Manual TOC|expanded = referrals}}

== Employment Standards Branch ==
Toll-Free: 1-800-236-3700

Website: https://www2.gov.bc.ca/gov/content/employment-business/employment-standards-advice/employment-standards

* Administers the ''Employment Standards Act'' and ''Regulation''

{{LSLAP Manual Navbox|type=chapters15-23}}

Disability Resources (23:VII)

2025-11-10T17:25:56Z

LSLAP: /* Disability Alliance BC (Advocacy Access Program) */

{{REVIEWED LSLAP | date= 1 September 2025}}
{{LSLAP Manual TOC|expanded = referrals}}

== Disability Alliance BC (Advocacy Access Program) ==
Telephone: 236-427-1108

Toll-Free: 1-800-663-1278

Website: https://disabilityalliancebc.org/

Email: lawclinic@dabc.ca

*Free one-to-one assistance with provincial and federal disability benefits
*Advocacy services such as, applying for benefits, appealing the denial of benefits, help with taxes, Canada Pension Plan Disability, and more

{{LSLAP Manual Navbox|type=chapters15-23}}

Immigration and Refugee Resources (23:VI)

2025-11-10T17:24:32Z

LSLAP: /* Vancouver Association for Survivors of Torture */

{{REVIEWED LSLAP | date= 1 September 2025}}
{{LSLAP Manual TOC|expanded = referrals}}

== Immigration Services Society of BC ==
Telephone: 604-684-2561

Website: https://issbc.org/

*Support services for immigrants and refugees
*Settlement, education, language and employment services
*Supports refugee claimants throughout the process, including assistance filling out application forms, applying for Legal Aid, using the healthcare system, cultural orientation, and other general settlement services (Settlement Orientation Services: 604-255-1881)

== MOSAIC ==
Website: https://mosaicbc.org

* Offers settlement information and services for immigrants
* Legal advocacy program for low-income immigrants (604-254-9626)
* Interpretation and translation services (Interpretation: 604-254-8022 Translation: 604-254-0469)

== Immigration, Refugees, and Citizenship Canada Client Support Centre ==
Telephone: 1-888-242-2100

* Pre-recorded information about immigration programs, live chat with agents for general questions and specific questions about your case

== Vancouver Association for Survivors of Torture ==
Telephone: 778-372-6593

Website: https://www.vastbc.ca/

*Counselling and support services for survivors of torture, trauma and political violence
*Referrals to other agencies and professionals

{{LSLAP Manual Navbox|type=chapters15-23}}

Immigration and Refugee Resources (23:VI)

2025-11-10T17:24:05Z

LSLAP: /* Immigration Services Society of BC */

{{REVIEWED LSLAP | date= 1 September 2025}}
{{LSLAP Manual TOC|expanded = referrals}}

== Immigration Services Society of BC ==
Telephone: 604-684-2561

Website: https://issbc.org/

*Support services for immigrants and refugees
*Settlement, education, language and employment services
*Supports refugee claimants throughout the process, including assistance filling out application forms, applying for Legal Aid, using the healthcare system, cultural orientation, and other general settlement services (Settlement Orientation Services: 604-255-1881)

== MOSAIC ==
Website: https://mosaicbc.org

* Offers settlement information and services for immigrants
* Legal advocacy program for low-income immigrants (604-254-9626)
* Interpretation and translation services (Interpretation: 604-254-8022 Translation: 604-254-0469)

== Immigration, Refugees, and Citizenship Canada Client Support Centre ==
Telephone: 1-888-242-2100

* Pre-recorded information about immigration programs, live chat with agents for general questions and specific questions about your case

== Vancouver Association for Survivors of Torture ==
Telephone: 778-372-6593
Website: https://www.vastbc.ca/

*Counselling and support services for survivors of torture, trauma and political violence
*Referrals to other agencies and professionals

{{LSLAP Manual Navbox|type=chapters15-23}}

Wills and Estates Resources (23:V)

2025-11-10T17:23:35Z

LSLAP: /* Society of Notaries Public of British Columbia */

{{REVIEWED LSLAP | date= 1 September 2025}}
{{LSLAP Manual TOC|expanded = referrals}}

== Society of Notaries Public of British Columbia ==
Telephone: 604-681-4516

Website: https://snpbc.ca/

* Wills, power of attorneys, representation agreements and advance directives

{{LSLAP Manual Navbox|type=chapters15-23}}

Human Rights Resources (23:IV)

2025-11-10T17:23:13Z

LSLAP: /* BC Civil Liberties Association */

{{REVIEWED LSLAP | date= 1 September 2025}}
{{LSLAP Manual TOC|expanded = referrals}}

== BC Human Rights Clinic ==
Telephone: 604-622-1100

Toll-Free: 1-855-685-6222

Website: https://www.bchrc.net

* Operated by CLAS
* Short service clinic has 30 minute appointments with a human rights lawyer/advocate.
* Legal services program provides summary advice, legal assistance, or representation to complainants who apply for representation and qualify for assistance.
* You should apply within 30 days of the Tribunal accepting the complaint for filing.

== Canadian Human Rights Commission ==
Toll-Free: 1-888-214-1090

Website: https://www.chrc-ccdp.gc.ca/en

*Administers the ''Canadian Human Rights Act''
*Ensures compliance with the ''Employment Equity Act''
*Information about how to make a formal complaint regarding a business or organization regulated by the federal government.

== BC Human Rights Tribunal ==
Telephone: 604-775-2000

Toll-Free: 1-888-440-8844

Website: http://www.bchrt.bc.ca/

* Deals with human rights complaints that arise in British Columbia and are covered by the ''Human Rights Code''

== BC Civil Liberties Association ==
Telephone: 604-687-2919

Website: http://www.bccla.org/

* Assists the general public complaints against police officers and infringements on freedom of speech
* Provides a Legal Advocate Support Line which can provide legal information, referrals, and consultations for legal advocates working with clients facing civil liberties infringements

{{LSLAP Manual Navbox|type=chapters15-23}}

Human Rights Resources (23:IV)

2025-11-10T17:22:50Z

LSLAP: /* BC Human Rights Tribunal */

{{REVIEWED LSLAP | date= 1 September 2025}}
{{LSLAP Manual TOC|expanded = referrals}}

== BC Human Rights Clinic ==
Telephone: 604-622-1100

Toll-Free: 1-855-685-6222

Website: https://www.bchrc.net

* Operated by CLAS
* Short service clinic has 30 minute appointments with a human rights lawyer/advocate.
* Legal services program provides summary advice, legal assistance, or representation to complainants who apply for representation and qualify for assistance.
* You should apply within 30 days of the Tribunal accepting the complaint for filing.

== Canadian Human Rights Commission ==
Toll-Free: 1-888-214-1090

Website: https://www.chrc-ccdp.gc.ca/en

*Administers the ''Canadian Human Rights Act''
*Ensures compliance with the ''Employment Equity Act''
*Information about how to make a formal complaint regarding a business or organization regulated by the federal government.

== BC Human Rights Tribunal ==
Telephone: 604-775-2000

Toll-Free: 1-888-440-8844

Website: http://www.bchrt.bc.ca/

* Deals with human rights complaints that arise in British Columbia and are covered by the ''Human Rights Code''

== BC Civil Liberties Association ==
Telephone: 604-687-2919 Website: http://www.bccla.org/

* Assists the general public complaints against police officers and infringements on freedom of speech
* Provides a Legal Advocate Support Line which can provide legal information, referrals, and consultations for legal advocates working with clients facing civil liberties infringements

{{LSLAP Manual Navbox|type=chapters15-23}}

Human Rights Resources (23:IV)

2025-11-10T17:22:34Z

LSLAP: /* Canadian Human Rights Commission */

{{REVIEWED LSLAP | date= 1 September 2025}}
{{LSLAP Manual TOC|expanded = referrals}}

== BC Human Rights Clinic ==
Telephone: 604-622-1100

Toll-Free: 1-855-685-6222

Website: https://www.bchrc.net

* Operated by CLAS
* Short service clinic has 30 minute appointments with a human rights lawyer/advocate.
* Legal services program provides summary advice, legal assistance, or representation to complainants who apply for representation and qualify for assistance.
* You should apply within 30 days of the Tribunal accepting the complaint for filing.

== Canadian Human Rights Commission ==
Toll-Free: 1-888-214-1090

Website: https://www.chrc-ccdp.gc.ca/en

*Administers the ''Canadian Human Rights Act''
*Ensures compliance with the ''Employment Equity Act''
*Information about how to make a formal complaint regarding a business or organization regulated by the federal government.

== BC Human Rights Tribunal ==
Telephone: 604-775-2000
Toll-Free: 1-888-440-8844
Website: http://www.bchrt.bc.ca/

* Deals with human rights complaints that arise in British Columbia and are covered by the ''Human Rights Code''

== BC Civil Liberties Association ==
Telephone: 604-687-2919 Website: http://www.bccla.org/

* Assists the general public complaints against police officers and infringements on freedom of speech
* Provides a Legal Advocate Support Line which can provide legal information, referrals, and consultations for legal advocates working with clients facing civil liberties infringements

{{LSLAP Manual Navbox|type=chapters15-23}}