Clicklaw Wikibooks - User contributions [en]

Collaborative Negotiation

2026-06-03T23:09:28Z

Nate Russell:

{{JP Boyd on Family Law TOC|expanded = outofcourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Catherine Brink]] and [[Deirdre Severide]]
}}
{{Clicklawbadge
|resourcetype = more resources like this website from the BC Ministry of Attorney General on
|link = [https://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help/lawyers/collaborative-family-law Collaborative Law]
}}
In collaborative processes, the parties and their lawyers, and sometimes other professionals, work together as a team to find a resolution to the issues arising from the breakdown of the parties' relationship. The other professionals the parties might work with include psychologists or clinical counsellors, and experts such as child specialists and financial specialists, who are called upon as the need arises during the collaborative process.

Collaborative negotiation is meant to address both the legal and the emotional consequences of the breakdown of a relationship, in a cooperative rather than a competitive way. As a result, it can help people deal with difficult issues, like substance abuse and mental health problems, in a far more constructive way than going to court. It is, in my view, one of the best possible ways of resolving family law disputes.

This section provides a brief introduction to collaborative negotiation, a step-by-step overview of what happens in collaborative processes, and resources for learning more and getting started.

==Introduction==

Collaborative negotiation is a voluntary, cooperative process in which each party retains a collaboratively-trained lawyer, and other collaborative professionals as needed, to resolve not just the legal issues but also the emotional issues arising from the end of a long-term relationship. (Not surprisingly, the emotional issues that come up after separation can often be a barrier to resolving the legal issues.) The other professionals who might be involved in a collaborative process include:

*'''Divorce coaches:''' counsellors trained in collaborative negotiation who may work with each party to manage the emotions typically associated with separation and help them finalize a parenting plan that best meets the needs of the children. ("Divorce coach" really isn't the best name for the mental health professionals who take this role, since collaborative negotiation is available for all families, not just those in which the adults are married to each other.)
*'''Financial specialists:''' neutral financial experts, trained in collaborative negotiation, who may work with everybody to review and make recommendations about the available financial options. They include accountants, business valuators and investment advisors, as well as people who are experts in wills and estates, taxation, retirement planning and public benefits.
*'''Child specialists:''' neutral mental health experts, trained in collaborative negotiation, who may work with everybody and with the children to ensure the children's wishes and preferences are heard. They may also make recommendations about the parenting arrangements that will best meet the children's needs.

This sounds like an awful lot of professionals; however, in collaborative processes the lawyers and their clients work together to build the team that best suits their needs and circumstances. As well, this approach provides a more specialized, and often more cost-effective, way to deal with separation than just leaving it all to the lawyers. Most collaborative professionals believe that this process is normally more cost-effective and more efficient than litigation.

The purpose of collaborative negotiation is to help the parties negotiate a reasonable settlement that restructures their family in the most positive manner possible, recognizing that families continue and need to flourish despite the separation of the adults involved. Parents ''must'' be able to effectively work together to raise their children long after their romantic relationship has come to an end, and that is the fundamental goal of collaborative negotiation.

==How do I start a collaborative process?==

Because collaborative negotiation is voluntary, everyone has to agree to use it to resolve their dispute. Once the parties have agreed to use a collaborative process, they must each hire a collaboratively-trained lawyer. Sometimes the process starts when the parties meet with a divorce coach, and then decide to involve lawyers trained in collaborative processes.

===Finding a collaborative professional===

The first step in the process is to find and meet with a collaborative lawyer or divorce coach. To find collaborative lawyers and divorce coaches, go to these websites:

* [http://www.bccollaborativerostersociety.com BC Collaborative Roster Society] (province-wide)
* [http://www.collaborativedivorcebc.com Collaborative Divorce Vancouver] (Vancouver and the lower mainland)
* [http://www.collaborativefamilylawgroup.com Collaborative Family Separation Professionals] (Victoria)
* [http://www.collaborativefamilylaw.ca Okanagan Collaborative Family Law Group] (the interior)
* [http://www.nocourt.ca Collaborative Law Group of Nelson] (Nelson)
* [http://nocourt.net Collaborative Association in Metro Vancouver] (Surrey, New Westminster and the Fraser Valley)

===Signing the participation agreement===

Once each party has hired a collaboratively-trained lawyer, they will all sign a collaborative participation agreement. The process starts when the participation agreement is signed. The agreement says, among other things, that:

*no party will commence a court action while in the process,
*each party will make full disclosure of their financial information and circumstances,
*all communications between the parties are confidential, and will stay that way until a written separation agreement is signed,
*none of the lawyers can represent their clients if the collaborative process fails and the parties go to court,
*each of the lawyers must terminate the process if their client refuses to provide necessary financial disclosure, and
*the parties will make their best efforts to communicate with each other in a respectful manner.

==Next steps in collaborative processes==

Most of the work in collaborative negotiation takes place in meetings between the parties and the professional members of the process. The professionals work to identify the needs and interests of each of the parties, and, together with the parties, discuss options for settlement and the resolution of the legal issues. The parties are very involved in these discussions, and retain control over the collaborative process and its outcomes. Other professionals — divorce coaches, financial specialists, child specialists, and others — will participate in these meetings as needed.

===Financial disclosure===

As in all family law dispute resolution processes, honest, accurate and up-to-date financial disclosure is essential. The lawyers will work with the parties to make full disclosure of all relevant documents and information. The sort of documents that are most often important in making financial disclosure include:

*statements for bank accounts, retirement savings accounts, investment accounts, and other financial accounts,
*current statements for debts including loans, mortgages, and credit cards,
*income tax returns, along with notices of assessment and any notices of reassessment,
*corporate financial statements and corporate tax returns, and
*statements of the parties' current incomes.

The parties provide their documents and information to the collaborative team on the express understanding that all discussions and negotiations in the collaborative process are private and confidential. In fact, this is a requirement of the ''[[Family Law Act]]'' as well. Section 5 says that:

<blockquote><tt>(1) A party to a family law dispute must provide to the other party full and true information for the purposes of resolving a family law dispute.</tt></blockquote>
<blockquote><tt>(2) A person must not use information obtained under this section except as necessary to resolve a family law dispute.</tt></blockquote>

===Exploring options for settlement===

Once financial disclosure has been made, the parties and their lawyers, and sometimes a financial specialist, begin exploring options for settlement. If necessary, the lawyers will get expert opinions on the current market value of any property, businesses, artwork, collections, and other assets that can be difficult to value. In collaborative negotiation, the parties will usually retain a valuator or appraiser together. Discussions continue until the parties reach a resolution that meets their most important needs.

We've said a few times that collaborative processes are private and confidential. This includes both discussions in the negotiation process — whether those communications occur in meetings between the parties and their lawyers or in correspondence by mail and email — and the documents and information that are exchanged for the purposes of those discussions. The reason why these discussions and documents are private is to allow everyone to be as honest and as creative as possible in exploring options for settlement. Each party needs to be able to make settlement proposals and admissions without worrying that their statements will be held against them in the event the process goes off the rails and winds up being resolved in court.

Because collaborative negotiation is confidential, discussions to identify options for settlement tend to involve some surprisingly candid, transparent and imaginative brainstorming, even when the parties are dealing with very difficult subjects like substance use and abuse, physical and mental health challenges, and parenting deficits. The settlements that result from collaborative negotiation are usually equally creative, sometimes in ways that are not possible through processes like arbitration and litigation.

You may want to have a look at the discussion of [[Family Law Mediation#Tips for successful mediation|tips for successful mediation]] in the [[Family Law Mediation|Mediation]] section later in this chapter. It has information about communication skills that can be helpful during collaborative processes.

===Developing parenting plans===

When there are children, the parties will usually work with their divorce coaches to develop and settle on a parenting plan that focuses on the best interests of their children. If needed, a child specialist may be involved to meet separately with the children in an effort to bring other opinions, and sometimes the voice of the children, into the parents' discussions. While the coaches are working with the parents to finalize a parenting plan, they help the parents deal with any emotional issues that arise and work with the parents to equip them, as best as possible, to raise their children together and resolve any problems that may arise in the future.

===Reaching an agreement===

The lawyers and divorce coaches try to help the parties reach a durable, long-lasting agreement that addresses most of the parties' needs and priorities in a timely manner, without the pressures and conflict involved in going to court. When an agreement is reached, the lawyers will confirm the terms of the settlement in a separation agreement and attach the parenting plan to that agreement. The collaborative process ends when the separation agreement is finalized and everyone has signed the agreement.

Read the [[Agreements after Separation]] section in the [[Family Law Agreements]] chapter for a discussion about separation agreements and their effect.

==What if a resolution is not reached in a collaborative process?==

Approximately 92 to 95% of all family law disputes that go to collaborative negotiation are resolved. That's a pretty good success rate.

When a dispute is not resolved through collaborative negotiation, which doesn't happen all that often, the parties must hire new lawyers and try to resolve their dispute some other way. It is important to remember, however, that all of the discussions and negotiations that happened in the collaborative process are private and confidential, and can't be used by anyone in any court proceedings.

==Pro Bono Collaborative Family Law Project==

The BC Collaborative Roster Society offers a pro bono program for people who are separating, do not have lawyers, and are willing to meet with each other and negotiate using the principles of collaborative negotiation but can't afford the collaborative team for their case. The Pro Bono Collaborative Family Law Project is available in Vancouver and Victoria. To be eligible for the program, the parties must:

#both consent to participate in settlement meetings,
#have a combined gross annual income of less than $75,000, and
#own property, excluding pension plans, with less than $100,000 in equity.

The program gives preference to the most needy applicants.

Visit the website of the [https://www.bccollaborativerostersociety.com/pro-bono-collaborative-family-law-project/ BC Collaborative Roster Society] for more information.

==Resources and links==

===Legislation===

* ''[https://canlii.ca/t/8q3k Family Law Act]''

===Links===

* [https://www.bccollaborativerostersociety.com/ BC Collaborative Roster Society] (province-wide)
*[https://www.collaborativedivorcebc.com/ Collaborative Divorce Vancouver] (Vancouver and the lower mainland)
*[https://www.collaborativefamilylawgroup.com/ Collaborative Family Separation Professionals] (Victoria)
*[https://collaborativefamilylaw.ca/ Okanagan Collaborative Family Law Group] (the interior)
*[https://www.nocourt.net/ The Collaborative Association] (Surrey and the Fraser Valley)
* [https://dialalaw.peopleslawschool.ca/resolving-disputes-without-going-to-court/ Resolving Disputes Without Going to Court] from Dial-a-Law by the People's Law School
*[https://www.clicklaw.bc.ca/resources/dial-law-mediation-collaborative-negotiation-and-arbitration Mediation, Collaborative Negotiation, and Arbitration] from Dial-a-Law by the People's Law School

===Resources===

*Sample collaborative negotiation [[Media:Participation Agreement sample.pdf | participation agreement]] (PDF)
**This sample participation agreement may not look like the participation agreement you may be asked to sign. It provides a more or less accurate picture of what collaborative participation agreements usually say, but should be used only as a reference.
*[https://www.boydarbitration.ca/participationagreements Participation Agreements & Other Forms] from the website John-Paul Boyd Arbitration Chambers
**model participation agreements for download.
*[https://www.bccollaborativerostersociety.com/collaborative-practice/participation-agreements/precedents.php Participation Agreements] from the BC Collaborative Roster Society
**free, downloadable copies of the participation agreements currently used by its members.

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

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Collaborative Negotiation

2026-06-03T23:08:30Z

Nate Russell:

{{JP Boyd on Family Law TOC|expanded = outofcourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Catherine Brink]] and [[Deirdre Severide]]
}}
{{Clicklawbadge
|resourcetype = more resources like this website from the BC Ministry of Attorney General on
|link = [https://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help/lawyers/collaborative-family-law Collaborative Law]
}}
{{LSSbadge
|resourcetype = more information on
|link = [http://www.familylaw.lss.bc.ca/help/who_CollaborativeFamilyLawyers.php collaborative family lawyers]
}}In collaborative processes, the parties and their lawyers, and sometimes other professionals, work together as a team to find a resolution to the issues arising from the breakdown of the parties' relationship. The other professionals the parties might work with include psychologists or clinical counsellors, and experts such as child specialists and financial specialists, who are called upon as the need arises during the collaborative process.

Collaborative negotiation is meant to address both the legal and the emotional consequences of the breakdown of a relationship, in a cooperative rather than a competitive way. As a result, it can help people deal with difficult issues, like substance abuse and mental health problems, in a far more constructive way than going to court. It is, in my view, one of the best possible ways of resolving family law disputes.

This section provides a brief introduction to collaborative negotiation, a step-by-step overview of what happens in collaborative processes, and resources for learning more and getting started.

==Introduction==

Collaborative negotiation is a voluntary, cooperative process in which each party retains a collaboratively-trained lawyer, and other collaborative professionals as needed, to resolve not just the legal issues but also the emotional issues arising from the end of a long-term relationship. (Not surprisingly, the emotional issues that come up after separation can often be a barrier to resolving the legal issues.) The other professionals who might be involved in a collaborative process include:

*'''Divorce coaches:''' counsellors trained in collaborative negotiation who may work with each party to manage the emotions typically associated with separation and help them finalize a parenting plan that best meets the needs of the children. ("Divorce coach" really isn't the best name for the mental health professionals who take this role, since collaborative negotiation is available for all families, not just those in which the adults are married to each other.)
*'''Financial specialists:''' neutral financial experts, trained in collaborative negotiation, who may work with everybody to review and make recommendations about the available financial options. They include accountants, business valuators and investment advisors, as well as people who are experts in wills and estates, taxation, retirement planning and public benefits.
*'''Child specialists:''' neutral mental health experts, trained in collaborative negotiation, who may work with everybody and with the children to ensure the children's wishes and preferences are heard. They may also make recommendations about the parenting arrangements that will best meet the children's needs.

This sounds like an awful lot of professionals; however, in collaborative processes the lawyers and their clients work together to build the team that best suits their needs and circumstances. As well, this approach provides a more specialized, and often more cost-effective, way to deal with separation than just leaving it all to the lawyers. Most collaborative professionals believe that this process is normally more cost-effective and more efficient than litigation.

The purpose of collaborative negotiation is to help the parties negotiate a reasonable settlement that restructures their family in the most positive manner possible, recognizing that families continue and need to flourish despite the separation of the adults involved. Parents ''must'' be able to effectively work together to raise their children long after their romantic relationship has come to an end, and that is the fundamental goal of collaborative negotiation.

==How do I start a collaborative process?==

Because collaborative negotiation is voluntary, everyone has to agree to use it to resolve their dispute. Once the parties have agreed to use a collaborative process, they must each hire a collaboratively-trained lawyer. Sometimes the process starts when the parties meet with a divorce coach, and then decide to involve lawyers trained in collaborative processes.

===Finding a collaborative professional===

The first step in the process is to find and meet with a collaborative lawyer or divorce coach. To find collaborative lawyers and divorce coaches, go to these websites:

* [http://www.bccollaborativerostersociety.com BC Collaborative Roster Society] (province-wide)
* [http://www.collaborativedivorcebc.com Collaborative Divorce Vancouver] (Vancouver and the lower mainland)
* [http://www.collaborativefamilylawgroup.com Collaborative Family Separation Professionals] (Victoria)
* [http://www.collaborativefamilylaw.ca Okanagan Collaborative Family Law Group] (the interior)
* [http://www.nocourt.ca Collaborative Law Group of Nelson] (Nelson)
* [http://nocourt.net Collaborative Association in Metro Vancouver] (Surrey, New Westminster and the Fraser Valley)

===Signing the participation agreement===

Once each party has hired a collaboratively-trained lawyer, they will all sign a collaborative participation agreement. The process starts when the participation agreement is signed. The agreement says, among other things, that:

*no party will commence a court action while in the process,
*each party will make full disclosure of their financial information and circumstances,
*all communications between the parties are confidential, and will stay that way until a written separation agreement is signed,
*none of the lawyers can represent their clients if the collaborative process fails and the parties go to court,
*each of the lawyers must terminate the process if their client refuses to provide necessary financial disclosure, and
*the parties will make their best efforts to communicate with each other in a respectful manner.

==Next steps in collaborative processes==

Most of the work in collaborative negotiation takes place in meetings between the parties and the professional members of the process. The professionals work to identify the needs and interests of each of the parties, and, together with the parties, discuss options for settlement and the resolution of the legal issues. The parties are very involved in these discussions, and retain control over the collaborative process and its outcomes. Other professionals — divorce coaches, financial specialists, child specialists, and others — will participate in these meetings as needed.

===Financial disclosure===

As in all family law dispute resolution processes, honest, accurate and up-to-date financial disclosure is essential. The lawyers will work with the parties to make full disclosure of all relevant documents and information. The sort of documents that are most often important in making financial disclosure include:

*statements for bank accounts, retirement savings accounts, investment accounts, and other financial accounts,
*current statements for debts including loans, mortgages, and credit cards,
*income tax returns, along with notices of assessment and any notices of reassessment,
*corporate financial statements and corporate tax returns, and
*statements of the parties' current incomes.

The parties provide their documents and information to the collaborative team on the express understanding that all discussions and negotiations in the collaborative process are private and confidential. In fact, this is a requirement of the ''[[Family Law Act]]'' as well. Section 5 says that:

<blockquote><tt>(1) A party to a family law dispute must provide to the other party full and true information for the purposes of resolving a family law dispute.</tt></blockquote>
<blockquote><tt>(2) A person must not use information obtained under this section except as necessary to resolve a family law dispute.</tt></blockquote>

===Exploring options for settlement===

Once financial disclosure has been made, the parties and their lawyers, and sometimes a financial specialist, begin exploring options for settlement. If necessary, the lawyers will get expert opinions on the current market value of any property, businesses, artwork, collections, and other assets that can be difficult to value. In collaborative negotiation, the parties will usually retain a valuator or appraiser together. Discussions continue until the parties reach a resolution that meets their most important needs.

We've said a few times that collaborative processes are private and confidential. This includes both discussions in the negotiation process — whether those communications occur in meetings between the parties and their lawyers or in correspondence by mail and email — and the documents and information that are exchanged for the purposes of those discussions. The reason why these discussions and documents are private is to allow everyone to be as honest and as creative as possible in exploring options for settlement. Each party needs to be able to make settlement proposals and admissions without worrying that their statements will be held against them in the event the process goes off the rails and winds up being resolved in court.

Because collaborative negotiation is confidential, discussions to identify options for settlement tend to involve some surprisingly candid, transparent and imaginative brainstorming, even when the parties are dealing with very difficult subjects like substance use and abuse, physical and mental health challenges, and parenting deficits. The settlements that result from collaborative negotiation are usually equally creative, sometimes in ways that are not possible through processes like arbitration and litigation.

You may want to have a look at the discussion of [[Family Law Mediation#Tips for successful mediation|tips for successful mediation]] in the [[Family Law Mediation|Mediation]] section later in this chapter. It has information about communication skills that can be helpful during collaborative processes.

===Developing parenting plans===

When there are children, the parties will usually work with their divorce coaches to develop and settle on a parenting plan that focuses on the best interests of their children. If needed, a child specialist may be involved to meet separately with the children in an effort to bring other opinions, and sometimes the voice of the children, into the parents' discussions. While the coaches are working with the parents to finalize a parenting plan, they help the parents deal with any emotional issues that arise and work with the parents to equip them, as best as possible, to raise their children together and resolve any problems that may arise in the future.

===Reaching an agreement===

The lawyers and divorce coaches try to help the parties reach a durable, long-lasting agreement that addresses most of the parties' needs and priorities in a timely manner, without the pressures and conflict involved in going to court. When an agreement is reached, the lawyers will confirm the terms of the settlement in a separation agreement and attach the parenting plan to that agreement. The collaborative process ends when the separation agreement is finalized and everyone has signed the agreement.

Read the [[Agreements after Separation]] section in the [[Family Law Agreements]] chapter for a discussion about separation agreements and their effect.

==What if a resolution is not reached in a collaborative process?==

Approximately 92 to 95% of all family law disputes that go to collaborative negotiation are resolved. That's a pretty good success rate.

When a dispute is not resolved through collaborative negotiation, which doesn't happen all that often, the parties must hire new lawyers and try to resolve their dispute some other way. It is important to remember, however, that all of the discussions and negotiations that happened in the collaborative process are private and confidential, and can't be used by anyone in any court proceedings.

==Pro Bono Collaborative Family Law Project==

The BC Collaborative Roster Society offers a pro bono program for people who are separating, do not have lawyers, and are willing to meet with each other and negotiate using the principles of collaborative negotiation but can't afford the collaborative team for their case. The Pro Bono Collaborative Family Law Project is available in Vancouver and Victoria. To be eligible for the program, the parties must:

#both consent to participate in settlement meetings,
#have a combined gross annual income of less than $75,000, and
#own property, excluding pension plans, with less than $100,000 in equity.

The program gives preference to the most needy applicants.

Visit the website of the [https://www.bccollaborativerostersociety.com/pro-bono-collaborative-family-law-project/ BC Collaborative Roster Society] for more information.

==Resources and links==

===Legislation===

* ''[https://canlii.ca/t/8q3k Family Law Act]''

===Links===

* [https://www.bccollaborativerostersociety.com/ BC Collaborative Roster Society] (province-wide)
*[https://www.collaborativedivorcebc.com/ Collaborative Divorce Vancouver] (Vancouver and the lower mainland)
*[https://www.collaborativefamilylawgroup.com/ Collaborative Family Separation Professionals] (Victoria)
*[https://collaborativefamilylaw.ca/ Okanagan Collaborative Family Law Group] (the interior)
*[https://www.nocourt.net/ The Collaborative Association] (Surrey and the Fraser Valley)
* [https://dialalaw.peopleslawschool.ca/resolving-disputes-without-going-to-court/ Resolving Disputes Without Going to Court] from Dial-a-Law by the People's Law School
*[https://www.clicklaw.bc.ca/resources/dial-law-mediation-collaborative-negotiation-and-arbitration Mediation, Collaborative Negotiation, and Arbitration] from Dial-a-Law by the People's Law School

===Resources===

*Sample collaborative negotiation [[Media:Participation Agreement sample.pdf | participation agreement]] (PDF)
**This sample participation agreement may not look like the participation agreement you may be asked to sign. It provides a more or less accurate picture of what collaborative participation agreements usually say, but should be used only as a reference.
*[https://www.boydarbitration.ca/participationagreements Participation Agreements & Other Forms] from the website John-Paul Boyd Arbitration Chambers
**model participation agreements for download.
*[https://www.bccollaborativerostersociety.com/collaborative-practice/participation-agreements/precedents.php Participation Agreements] from the BC Collaborative Roster Society
**free, downloadable copies of the participation agreements currently used by its members.

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

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[[Category:JP Boyd on Family Law]]

Template:JPBOFLARCHIVE

2026-06-03T19:12:07Z

Nate Russell:

<noinclude>__NOGLOSSARY__</noinclude>
{{Ambox
| name = Ambox
| text = '''This section has been archived and is no longer being updated''' This page was removed from or incorporated into another section or chapter of ''[[JP Boyd on Family Law]]''. It is now part of [[:Category:Archived Sections from JP Boyd on Family Law]]. '''Important Note:''' Information on this page has not been updated and much of it will be out-of-date.
| type = content
| textstyle = color: #000000
}}
<noinclude>
[[Category:Editing Notices]]
[[Category:Exclude in print|!]]
</noinclude>

Template:JPBOFLARCHIVE

2026-06-03T19:08:22Z

Nate Russell:

<noinclude>__NOGLOSSARY__</noinclude>
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| text = '''This section has been archived and is no longer being updated''' This page was removed from or incorporated into another section or chapter of ''[[JP Boyd on Family Law]]''. Information has not been updated and much of it will be out-of-date.
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}}
<noinclude>
[[Category:Editing Notices]]
[[Category:Exclude in print|!]]
</noinclude>

Wills and Estates Issues in Family Law

2026-06-03T19:06:57Z

Nate Russell:

{{Template:JPBOFLARCHIVE}}{{JP Boyd on Family Law TOC|expanded = overlapping}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bob Mostar]] and [[Mark Norton]]
}}
''Wills and estates'' refers to the area of law that deals with the drafting and interpretation of wills, how a deceased person's estate is distributed when there is a valid will, how a deceased person's estate is distributed when there isn't a valid will, and how certain relatives can challenge a deceased person's will. In family law, issues concerning a person's will most often arise when a couple have separated or are getting a divorce.

Making, changing, revoking, and enforcing wills are governed by the provincial ''[http://canlii.ca/t/8mhj Wills, Estates and Succession Act]'' (''WESA''). Section 37 sets out the basic requirements for a valid will:

<blockquote><tt>'''37''' (1) To be valid, a will must be</tt></blockquote>

<blockquote><blockquote><tt>(a) in writing,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) signed at its end by the will-maker, or the signature at the end must be acknowledged by the will-maker as his or hers, in the presence of 2 or more witnesses present at the same time, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) signed by 2 or more witnesses in the presence of the will-maker.</tt></blockquote></blockquote>

British Columbia courts have said that people are presumed to have a moral duty to provide for members of their immediate family. Under ''WESA'', spouses and children who have not been provided for in a will are able to challenge the will and ask the court that they be included and receive a share, or a bigger share, of the dead person's estate. This is often referred to as a variation of a will.

A person who dies without leaving a will is said to die ''intestate''. If a person dies intestate, their assets are dealt with according to the terms of ''WESA''. This law requires a person's estate to be distributed in a certain way, with the surviving spouse receiving a first, fixed share of the estate, which is adjusted if the surviving spouse is not the other parent of the deceased's surviving children, and the remainder being split with any surviving children (sections 20 to 23 of ''WESA'').

If a person dies without a will, only people who qualify as the person's spouse and children can benefit from the provisions of ''WESA''. If the dead person had been married or in a marriage-like relationship which either party had terminated prior to the first person’s death, the former spouse can't make a claim under the act.

If a person dies with a will which gives a benefit to a spouse, but either party had terminated the relationship prior to the will-maker's death, the benefit is cancelled.

==Resources and links==

===Legislation===

* ''[http://canlii.ca/t/8mhj Wills, Estates and Succession Act]''

===Links===
* [http://www.clicklaw.bc.ca/question/commonquestion/1157 Clicklaw Common Question "I want to contest or dispute a will. What can I do?"]
* [http://www.clicklaw.bc.ca/question/commonquestion/1045 Clicklaw Common Question "My common-law partner died. What legal issues do I need to know about?"]

{{REVIEWED | reviewer = [[Bob Mostar]] and [[Mark Norton]], June 24, 2019}}

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Specific Communities and Family Law

2026-06-03T19:06:54Z

Nate Russell:

{{Template:JPBOFLARCHIVE}}{{JPBOFL Start Chapter
| Related =
[[Aboriginal Families]]{{·}}[[Immigrants and Family Law]]{{·}}[[Same-Sex Relationships and Issues Affecting Transgendered and Transsexual People]]
}}
{{JP Boyd on Family Law TOC|expanded = specific}}{{JPBOFL Editor Badge
|ChapterEditors = [[Rhaea Bailey]], [[Taruna Agrawal]], and [[Todd Bell]]
}}

While family law has evolved to treat many minority groups, such as same-sex couples, in the same way as it treats the majority, this is not always true. People are sometimes subject to different laws in certain circumstances.

The resource you're reading has been updated to explain and recognize some of the ways laws apply differently to specific communities. Parts of this chapter deal with further topics unique to [[Aboriginal Families|Aboriginal families]] and/or those living on reserves, [[Immigrants and Family Law|newcomers to Canada]] and those who support or rely on them, and [[Same-Sex Relationships and Issues Affecting Transgendered and Transsexual People| the LGBTQ community]].

===Aboriginal families===
Aboriginal people exist in a unique legal environment arising from the fact that they are the first peoples of what is now known as Canada. Aboriginal people's longstanding occupancy and use of these lands give rise to ''Aboriginal rights'' which became constitutionally protected when section 35 of the ''Constitution Act, 1982'' was enacted over 35 years ago. The ''Constitution'' recognizes and affirms aboriginal and treaty rights of the First Nations, Inuit, and Métis peoples of Canada.

This chapter focuses on issues in family law that affect BC's Aboriginal families. While all of the usual factors apply to Aboriginal families, courts must also pay attention to Aboriginal ancestry, culture, and traditions when they make decisions, including determining the best interests of Aboriginal children. This is because Aboriginal children have the right to keep a connection to both their culture and heritage, which are the strong foundations of many Aboriginal families. This section briefly reviews particular issues unique to Aboriginal families, including:
*the care of children,
*child support,
*spousal support, and
*family property and family debt.

The section on [[Aboriginal Families]] also briefly addresses issues caused by the ''[http://canlii.ca/t/7vhk Indian Act]'', a law which has allowed the government to control most aspects of Aboriginal life since its inception in 1876.

===Newcomers to Canada and their families===
Many Canadian families are the product of Canadian citizens or permanent residents who partner with people from other countries. ''Sponsorship'' by a Canadian citizen or permanent resident of a foreign spouse creates legal issues that are unique to families with members who are immigrants or refugees.

This chapter talks about how family and immigration law overlap in British Columbia. The chapter discusses the differences in vocabulary in the ''[[Family Law Act]]'' and the federal ''[http://canlii.ca/t/7vwq Immigration and Refugee Protection Act]'', a sponsor's obligations towards their spouse, and options for immigrant spouses who want to leave an abusive relationship.

===LGBTQ issues in family law===
Not too long ago, this resource had an entire chapter about the particular issues affecting those in same-sex relationships. A stand-alone chapter for same-sex relationships, however, is no longer necessary.

For the last 30 years or so, there has been a steady erosion of legislated discrimination between opposite- and same-sex relationships. While gays and lesbians may have to deal with homophobia and intolerance in their day-to-day lives, at least the discrimination that used to exist because of legislation has been on the wane. From the [http://canlii.ca/t/5239 ''Little Sisters'' decision] on censorship to ''[http://canlii.ca/t/1frkt Egan v. Canada]'', [1995] 2 SCR 513 on spousal benefits, the courts of Canada have proven increasingly willing to extend the protection of the ''[http://canlii.ca/t/8q7l Charter of Rights and Freedoms]'' to overturn discriminatory legislation and, after some initial resistance, the governments of Canada have followed suit.

Gays and lesbians are just as entitled as straight people to pursue claims relating to:
*the care of children,
*child support,
*spousal support, and
*the division of property.

Sexual orientation plays no part in the division of family property, nor is it a factor in determining issues relating to children or support.

This said, legal uncertainty exists for people who are trans or gender non-binary, at least in some contexts. The section on ''[[Same Sex Relationships and Issues Affecting Transgender and Transsexual People#Issues affecting transgender and transsexual people|Issues affecting transgender and transsexual people]]'' discusses some of the difficulties that the law has in serving people who traverse the gender spectrum.

{{REVIEWED | reviewer = [[Taruna Agrawal]], June 10, 2019}}

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Same Sex Relationships and Issues Affecting Transgender and Transsexual People

2026-06-03T19:06:50Z

Nate Russell:

{{Template:JPBOFLARCHIVE}}The law in British Columbia has erased the divide between same-sex and opposite-sex couples. A person’s sexual orientation is rarely a relevant factor in the court’s analysis. The courts’ responses to family law matters involving LGBTQ individuals are outlined below.

{{JP Boyd on Family Law TOC|expanded = specific}}{{JPBOFL Editor Badge
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==Same-sex relationships==

Legislated discrimination in British Columbia between opposite- and same sex relationships has steadily been erased in the context of family law. To quote [http://www.barbarafindlay.com/ barbara findlay QC], a tireless advocate for queer rights, from a speech to the [http://www.cba.org/bc/home/main/ Canadian Bar Association British Columbia] a number of years ago:

<blockquote>"Gays and lesbians in British Columbia now have exactly the same rights and obligations towards one another as straight people do. Exactly the same. Full stop."</blockquote>

She is entirely correct. As far as the provincial statutes of British Columbia are concerned, and indeed the vast majority of federal statutes as well, there is equality. The Court of Appeal for British Columbia was among the first of Canada's appellate courts to acknowledge that restricting the right to marry to straight couples alone was an egregious breach of the equality rights of gays and lesbians. BC's ''[http://canlii.ca/t/84g5 Adoption Act]'' is one of the few in Canada that permit adoption by same-sex couples.

Gays and lesbians are just as entitled to pursue claims relating to the care of children, child support, spousal support, and the division of property as straight people are. Sexual orientation plays no part in the division of family property, nor is it a factor in determining issues relating to children or support.

How does modern family law in BC apply to LGBTQ relationships? In all the ways that it applies to straight couples. There is no relief known to family law of which straight couples can avail themselves that same sex couples cannot.

===Marriage===

As a result of the 2005 federal ''[http://canlii.ca/t/7w02 Civil Marriage Act]'', same sex couples can legally marry throughout Canada. Of course, not everyone can marry, such as close relatives or minors under a certain age. See the [[Marriage & Married Spouses]] section of the [[Family Relationships]] chapter for more information about the capacity to marry, valid marriages, and invalid marriages.

It's not just Canadian couples who can marry. Anyone from anywhere can get married in Canada, as long as they meet the Canadian criteria for a valid marriage. However, while a Canadian marriage is certainly legal in Canada, it may not be recognized as a valid marriage at home. If a couple's home country does not recognize same-sex marriages as valid marriages, the Canadian marriage is unlikely to be valid in that country.

===Children===

Whether the battle over a child is between two same-gender parents, two parents of opposite genders, or more than two parents or guardians in a single family, the single concern that parents must keep in mind is the same. Arrangements respecting guardianship, parenting arrangements, or contact with a child, must only be made considering the best interests of the child. That's the court's only concern when making orders dealing with children. The courts have also been crystal clear that the sexual orientation of the child's parents is only one of many factors to be considered, and is often a non-issue. This is what a few judges have had to say:

''[http://canlii.ca/t/1f6rk Anger v. Anger]'', 1998 CanLII 4490 (BCSC):

<blockquote>A mother sought an order that her children live primarily with her. The father opposed the application as he found the mother's sexual orientation "repugnant on religious and moral grounds." The court found the father was doing everything he could to cut the mother out of the children's lives, and accepted a psychologist's recommendation that the children should live with their mother. The mother's application was allowed. No weight was given to the mother's sexual orientation.</blockquote>

''Murphy v. Laurence'', [2002] O.J. No. 1368 (ONSC):

<blockquote>The biological mother of a child and the mother's same-sex partner made competing applications for custody and child support. The two women had a three-year unmarried relationship. Both women acted as parents to the child and, following separation, the partner exercised liberal access to the child. Eventually, by agreement, the child went to live mostly with the partner. The court found the child to have benefited from the care of both women, and ordered joint custody with the primary residence of the child to be with the biological mother of the child. Notably, very little access was given to the biological father in light of a history of disinterest in the child. No weight was given to the mother's sexual orientation.</blockquote>
<blockquote>"The best interests of [the child] are, of course, what will govern any decision relating to custody in this matter. In this fundamental principle, same sex parents seeking custody are no different than opposite sex parents seeking custody."</blockquote>

''[http://canlii.ca/t/1w5d8 Bubis v. Jones]'', 2000 CanLII 22571 (ONSC), at paragraphs 22-23:

<blockquote>"There is no evidence that families with heterosexual parents are better able to meet the physical, psychological, emotional or intellectual needs of children than are families with homosexual parents [...]. Furthermore, lesbian relationships do not break down at a significantly different rate than do heterosexual relationships and the sexual orientation of children is not influenced by the gender preference of their parents. It is true that the children of a lesbian in a same sex relationship may be ostracized by some peers because of the lifestyle of their mother. However, I do not think that a rational decision by this court should be precluded by the possibility that it may provoke an irrational response in others.</blockquote>

<blockquote>"The end result of all of this is that the same sex preference of a parent is merely one of the many factors which a court should consider when determining the best interests of children. A lesbian relationship, conducted with discretion and sensitivity, is no more harmful to children than a heterosexual relationship, conducted with discretion and sensitivity. Heterosexual parenting is not better than lesbian parenting—just different.</blockquote>

''[http://canlii.ca/t/1hl5f J.S.B. v. D.L.S.]'', 2004 CanLII 5031 (ONSC):

<blockquote>The father argued that it was in the children's best interests to reside with him as the mother's new same-sex relationship was deviant. </blockquote>
<blockquote>The court underscored the need for respect and recognition of same sex relationships, and noted with approval the Ontario Court of Appeal's comments in ''[http://canlii.ca/t/6v7k Halpern v. Canada (Attorney general)]]'', 2003 CanLII 26403:
<blockquote>"Intimacy, companionship, societal recognition, economic benefits and the blending of two families, to name a few, are other reasons that couples choose to marry. Denying same-sex couples the right to marry perpetuates the view that they are not capable of forming loving and lasting relationships, and that same-sex relationships are not worthy of the same respect and recognition of opposite-sex relationships." </blockquote></blockquote>

===Child support===

Regardless of your sexual orientation or identity, if you qualify as a ''parent'' for the purposes of the ''[[Family Law Act]]'', or the child qualifies as a ''child of the marriage'' for the purposes of the ''[[Divorce Act]]'', child support will be payable by the person who has the child for the least amount of time to the person who has the child for the most amount of time. Child support will be payable in the amount specified under the [[Child Support Guidelines]] unless the parent paying support, the ''payor'', fits into one of a very narrow range of exceptions:

*payment of support in the usual amount would be too much and cause "undue hardship" (the recipient of support may ask for an increased amount of support if payment of the usual amount would be too little and also cause undue hardship),
*the payor is responsible for the care and control of the child for more than 40% of the child's time,
*the child is 19 or older,
*the payor earns more than $150,000 per year, and payment of the table amount would result in an unfair windfall to the recipient, or
*other persons are also under a legal obligation to care for the child.

The only one of these exceptions that has any special relevance to same-sex couples is the last: where another person is also under an obligation to support the child. Assuming there is another parent in the picture apart from the other party to the relationship, that other parent will also be obliged to contribute to the support of the child. In ''Murphy v. Laurence'', the biological mother of a child was entitled to receive child support from both her former lesbian partner and the child's father.

===Divorce===

The ''[[Divorce Act]]'' no longer requires spouses to be of opposite genders to qualify for a divorce order.

==Issues affecting transgender and transsexual people==

To be brutally frank, the jury is still out on how family law impacts on the trans community. Right now, the laws have slipped into a comfortable understanding of ''the same or opposite genders'' and only accommodates people on the spectrum in between with difficulty. While bisexuality is as close to a non-issue in this context as there can be, transgender and transsexual people may well encounter difficulty in dealing with family law matters. This discussion offers only a gloss on some of the issues affecting this community.

If you have a family law problem and your orientation, gender, or identity becomes an issue, contact a lawyer known to be sympathetic or one who is an activist on the issue, such as barbara findlay QC, or another lawyer she can refer you to.

===Marriage===

As a result of the 2005 federal ''[http://canlii.ca/t/7w02 Civil Marriage Act]'', gender is irrelevant in determining the ability of a couple to marry.

===Children===

Those who have discovered another self-identity during a relationship may find their new identities hotly at issue in the event that the living arrangements for any children must be decided in court. The problem here is that while on-screen entertainment like "Will and Grace," "The Birdcage," "The L Word", or even "Brooklyn Nine-Nine" have made homosexuality something commonly understood and empathized with, few shows have popularized and explained the experience of the transgender community.

It can be very difficult for people, including ex-partners, to understand transgender issues, and this problem is especially acute in courtroom discussions about the care and control of children. Often the most important task is to demystify the person's self-identity and explain why their self-identity has no impact at all on their ability to parent, nor on the expected outcomes for the children.

On the bright side, the first reported case I was able to find in researching transgender and transsexual family law issues dealt fairly positively with the subject. (This research was a few years ago, and some cases have cited it since.) In ''[http://canlii.ca/t/fvzvc Forrester v. Saliba]'', 2000 CanLII 28722 ONCJ, a 2000 decision of the Ontario Court of Justice, the father of the child had begun the process of transitioning to female following the pronouncement of a consent order which provided that the parents would have joint custody of the child. The mother brought an application to vary the order to obtain sole custody of the child based on the stress and depression that affected the parents since the commencement of the transitioning process. Here are some interesting excerpts from the decision:

<blockquote>"I indicated at the beginning of the trial to both parties and their counsel that the [father's] transsexuality, in itself, without further evidence, would not constitute a material change in circumstances [necessary to consider varying a consent order], nor would it be considered a negative factor in a custody determination."</blockquote>
<blockquote>"The entire focus of this trial has been upon the consequences of the [father's] transgendering, the mental health issues that have arisen as a result of the [father's] transgendering process, and the [mother's] mental health issues. The evidence discloses that throughout all these problems suffered by the parties, the child Christine has remained happy and healthy and continues to enjoy a positive relationship with both parties. ... It appears from the evidence that Christine is a very well-adjusted, happy, healthy little girl, who in her own way has been able to accept the changes in her father and continues to enjoy a healthy relationship with her father, now a woman psychologically, as a person and a loving and caring human being."</blockquote>

The mother's application was dismissed.

In a more recent case here in British Columbia, ''[http://canlii.ca/t/gpphw K. (N.) v H. (A.)]'', 2016 BCSC 744, the larger dispute centered around the parents’ disagreement over gender transition therapy involving their 11 year old child. The mother supported the transition whereas the father did not. At issue before Justice Skolrood in that proceeding was whether or not the child was entitled to an independent voice in the litigation. The court held that this was appropriate, saying at paragraphs 39-40:

<blockquote>"I am satisfied that J.K. should be permitted to participate directly in this proceeding. To my mind, this case is different from the many family law cases that come before the courts in which the views of the child are sought on issues relating to guardianship and parenting time, and where those views are typically presented through third party reports.</blockquote>

<blockquote>"I agree with Ms. findlay's characterization that this case is really about J.K. and his role in determining his own future. In my view, these issues cannot be properly considered without J.K.’s direct participation, nor would it be fair to J.K. for the court to attempt to do so."</blockquote>

In ''A.B. v. C.D. and E.F.'', 2019 BCSC 254, the court allowed the 14-year-old child’s application to undergo gender transition treatment. The father, C.D., opposed the application. A major issue was whether the child, A.B., fully understood the implications of his decision.

In allowing the application of the child, A.B., the court stated as follows:

<blockquote>"Having considered the form of consent signed by A.B. and the evidence of [his psychologist, his physician, and his psychiatrist] I am satisfied that A.B.'s health care providers have explained to A.B. the nature and consequences as well as the foreseeable benefits and risks of the treatment recommended by them, that A.B. understands those explanations and the health care providers have concluded that such health care is in A.B.'s best interests."</blockquote>

A.B.'s case has been before the Court of Appeal of BC three times since the 2019 decision by the Supreme Court. In ''A.B. v. C.D.'', [https://www.canlii.org/en/bc/bcca/doc/2020/2020bcca11/2020bcca11.html?resultIndex=1 2020 BCCA 11], the Court of Appeal, in essence, upheld A.B.'s right to consent to gender transition treatment. Of note is that the Court did not take issue with the lower court's ruling regarding family violence. A.B.'s father kept referring to A.B. using female pronouns and using his birth name. The Supreme Court ruled that this behaviour constituted family violence. The Court of Appeal thought so too.

===Child support===

Transgender issues have no impact at all on the determination of child support. If you are a parent or qualify as a stepparent within the meaning of the applicable legislation, child support will be payable or receivable. End of story.

===Spousal support===

The simple fact of financial dependence, which would ordinarily have to be established to support a claim to spousal support, should be sufficient to prove an entitlement to support. If, however, the cause of the dependence or inability to be independent relates to or stems from the transgender issue, be prepared to face some resistance. The problem will lie in establishing the legitimacy of the financial dependency arising from the transgender issue; in other words, the problem will lie in convincing the judge dealing with the matter, if the matter has to go to court, that the issue you are dealing with isn't one of choice or a voluntary financial dependence.

===Divorce===

The ''[[Divorce Act]]'' no longer requires spouses to be of opposite genders, whether at the end of their marriage or at its beginning, to qualify for a divorce order.

==Resources and links==

===Legislation===

* ''[http://canlii.ca/t/8q7l Charter of Rights and Freedoms]''
* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* ''[http://canlii.ca/t/7w02 Civil Marriage Act]''

===Links===

*[http://www.clicklaw.bc.ca/global/search?k=trans Clicklaw resources on trans issues]

{{REVIEWED | reviewer = [[Todd Bell]], January 2020}}

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Overlapping Legal Issues and Family Law

2026-06-03T19:06:47Z

Nate Russell:

{{Template:JPBOFLARCHIVE}}{{JPBOFL Start Chapter
| Related =
[[Naming and Changes of Name]]{{·}}[[Wills and Estates Issues in Family Law]]{{·}}[[Conflict of Laws]]
}}
{{JP Boyd on Family Law TOC|expanded = overlapping}}{{JPBOFL Editor Badge
|ChapterEditors = [[Nate Russell]], [[Bob Mostar]] and [[Mark Norton]]
}}

Parenting arrangements, support payments, and the division of property are the everyday issues that crop up when a relationship breaks down. A whole host of other legal issues fall under the family law umbrella, however. And it's a big umbrella. For example, many financial, insurance, and tax planning issues arise when new relationships are formed or existing ones end. The ripples of family law unrest are drivers in business and shareholders agreements. Even the textbooks on animal law consider how pets are dealt with when spouses split up. And on it goes, deep into the legal debates and constitutional questions surrounding religious freedom and family law, which illustrate the historical connection between religion, families as a concept, and civil society. Most of this rich variety and overlap is not covered by this resource.

This chapter takes a look at a selection of relatively common legal questions that are also family law problems. It talks about issues affecting:

*your [[Naming and Changes of Name|legal rights relating to your name]], and when you can change your name (or change it back),
*the overlap between [[Wills and Estates Issues in Family Law|wills and estates law and family law]], and
*what happens [[Conflict of Laws Issues in Family Law|when laws from one place conflict with those of another]], such as when people and property are located in different legal jurisdictions.

Again, this is not a comprehensive list of all the overlapping issues someone with a family law problem might encounter.

==Resources and links==
===Resources===
* [https://www.clicklaw.bc.ca/helpmap/service/1009 Courthouse Libraries BC] operates 29 branches in courthouses around BC. All branches have public computers with legal databases essential for researching unique or overlapping legal issues, and the librarians staff a 1-800 number and an email service through which anyone in BC can ask a legal information question.

{{REVIEWED | reviewer = [[Mark Norton and Bob Mostar]], June 24, 2019}}

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Newcomers to Canada and Family Law

2026-06-03T19:06:44Z

Nate Russell:

{{Template:JPBOFLARCHIVE}}{{JP Boyd on Family Law TOC|expanded = specific}}{{JPBOFL Editor Badge
|ChapterEditors = [[Taruna Agrawal]]
}}
Family law problems involving immigration law usually happen because a relationship breaks down after a spouse or common-law partner has been sponsored to come to Canada. Below is an overview of some overlapping legal issues that may result. If you are a newcomer to Canada with a family law concern, you should seek a lawyer (or an advocate or duty counsel) who is familiar with both family law and the rights and obligations around immigration and sponsorship. Several organizations specialize in supporting newcomers in this way. [https://www.clicklaw.bc.ca/helpmap/service/1013 MOSAIC] provides information, summary advice, referrals and legal representation to low-income immigrants and refugees. The Legal Services Society also publishes a useful booklet called ''[https://www.clicklaw.bc.ca/resource/1073 Sponsorship Breakdown]''.

Let's look at some differences in concepts and language between ''family law'' and ''immigration law'' to start.

===Use of the term "common-law" or "spouse"===

Generally speaking, the term "common-law spouse" or "common-law partner" is not useful when discussing rights and obligations under provincial legislation. The ''Family Law Act'' in BC does not use the term "common-law." The act defines ''spouse'' under section 3(1), and the definition broadly captures both married people and unmarried people who live in a "marriage-like" relationship—if that relationship has continued for at least ''two years''.

For federal laws, the term and even the criteria are quite different. The [http://canlii.ca/t/7xsp Immigration and Refugee Protection Regulations] defines "common-law partner":
<blockquote><tt>common-law partner means, in relation to a person, an individual who is cohabiting with the person in a conjugal relationship, having so cohabited for a period of at least one year.</tt></blockquote>

Notice the time difference? It's important to remember that qualifying as a common-law spouse under Canadian immigration law does not necessarily mean you qualify as an unmarried spouse for the purposes of ''Family Law Act''. If you have lived together for over one year but less than two, are not married, and your relationship ends, you may be a ''common-law spouse'' under federal law, but not a spouse of any kind under the provincial act.

===Best interests of the child===

Section 37(1) of the ''[[Family Law Act]]'' states that best interests of the child is the only consideration when making decisions about guardianship, parenting arrangements, and contact with the child.

Section 3(1)(d) of the ''[[http://canlii.ca/t/7vwq Immigration and Refugee Protection Act]]'' states that one of the objectives of the act is "to see that families are reunited in Canada." A very important case for immigration law, ''[http://canlii.ca/t/1fqlk Baker v. Canada (Minister of Citizenship and Immigration)]'', [1999] 2 SCR 817 says that "the decision-maker should consider children's best interests as an important factor, give them substantial weight, and be alert, alive and sensitive to them."

===Sponsor's obligations===

Immigration rules state that a sponsor must commit to providing for their spouse's (or common-law partner's) needs and the needs of any dependent children. This commitment is actually made to the government, and is called an ''undertaking''. The undertaking continues even if the relationship between a sponsor and their spouse or other dependent breaks down. If a sponsor and their spouse separate, and the sponsor will not or cannot support the spouse voluntarily, the spouse may apply for welfare or other government benefits to support themselves and any dependent children. If the government (whether provincial or federal) supports the spouse by paying benefits (such as welfare), the government will then turn to the sponsor and require them to pay back the cost of those benefits. Each undertaking lasts for a period of time called a ''length of undertaking'', during which time the sponsor is liable to support the spouse and repay the government for any support it provides the spouse. See [http://www.cic.gc.ca/english/helpcentre/answer.asp?qnum=1355 the CIC website] for a table showing the different lengths of undertaking, depending on who is sponsored.

''Family law'' and ''immigration law'' support obligations are different. Where an undertaking is an obligation between a sponsor and the government, a support obligation in family law is between the spouses as individuals. To get a sponsor to pay spousal or child support under family law, the immigrant spouse must claim it the same way any Canadian resident or citizen would — including applying to court if need be.

One family law case from BC Supreme Court, ''[http://canlii.ca/t/1q1m5 Aujla v. Aujla]'', 2004 BCSC 1566, shows that a sponsor's obligations under a sponsorship agreement and undertaking, are separate from the sponsor's obligation to pay spousal support based on family law legislation. If you were sponsored, have dependents, and your relationship with the sponsor has now ended, talk to a lawyer to discuss your entitlement to spousal or child support, or consult some of the resources mentioned here.

A sponsor's obligations could extend to stepchildren. For stepparents, both family law and immigration law outline obligations to provide for sponsored dependents in some way.

As discussed in the chapter on [[Child Support]], under the heading "Stepparents and child support", section 147(4) of the''[[Family Law Act]]'' imposes a duty on stepparents in some cases to pay child support.

If your spouse sponsored you and your children to come to Canada, and if they helped support that child for at least one year, then you may be able to get a child support order under the ''Family Law Act''. Be aware of the one-year limitation period for making a claim, noted in section 147(4)(b).

===Sponsorship application===

If you leave your sponsoring spouse while the sponsorship application is still in progress, you must inform Immigration, Refugees and Citizenship Canada of this change in your application. Failure to do so constitutes misrepresentation, which is a ground for refusal of your Permanent Residence application. At this point, you may not be able to proceed with your sponsorship application for Permanent Residence, but there may be other options available to you that allow you to stay in Canada. This could include a Permanent Resident application on humanitarian and compassionate grounds. This is especially the case if you leave your partner due to abuse in the relationship. Contact the [https://lss.bc.ca/legal_aid/immigrationProblems Legal Services Society], or other community resources like [https://www.clicklaw.bc.ca/helpmap/service/1013 MOSAIC], to see if you qualify for a free lawyer.

You should also inform IRCC of your change of address, so that they may continue to correspond with you after you leave your spouse’s residence.

===Permanent resident spouses===

In October 2012, the government of Canada introduced a rule that most sponsored spouses were under ''conditional permanent residency status'' for the first two years. This condition was removed on April 28, 2017, when the government introduced [http://www.cic.gc.ca/english/department/media/notices/2017-04-28.asp a rule] that sponsored spouses or common-law partners of Canadian citizens and permanent residents no longer need to live with their sponsor in order to keep their permanent resident status.

If your sponsor is abusive, you no longer need to worry about the threat of deportation or potential loss of status. Your residency status is no longer contingent on the length of the relationship. That being said, the government of Canada will still continue to investigate complaints about marriage fraud (where someone marries a Canadian citizen or permanent resident for the sole purpose of gaining entry into Canada). This means that if you leave your spouse, there is a possibility that he or she may file a complaint of marriage fraud with IRCC. IRCC will then send you a letter with a 30 day deadline to respond to their concerns and tell your side of the story. If that happens, you should seek legal advice. You could also write to the IRCC officer and ask for an extension on the response date. This will buy you some time to find a lawyer. If you do not receive a positive response from the officer, then you must respond by the date listed on the letter to avoid a removal order.

No matter what, your spouse may still remain responsible for supporting you and your children. If you are married or qualify as an unmarried spouse under the ''[[Family Law Act]]'' you may also be entitled to claim a share in the family property. See the chapter on [[Property & Debt in Family Law Matters|Property & Debt]].

So long as your sponsorship is still within the term of undertaking (discussed above), your sponsor's obligation to support you continues. You will not lose your permanent resident status if you have to apply for welfare. If you do apply for welfare, keep in mind that you will be expected to show that you tried to obtain support from your spouse. If your relationship ended because of abuse, you may not have to try to get support from your spouse. The booklet on ''Sponsorship Breakdown'' contains good information on this topic.

===Non-resident spouses===

If you do not have permanent resident status, you must seek legal advice and help right away, since the breakdown of your relationship with your sponsor may affect your ability to remain in Canada (if that is in fact what you would like to do). There are a number of agencies that help immigrants and refugees. See the booklet ''[http://www.clicklaw.bc.ca/resource/1073 Sponsorship Breakdown]'' for a list of community workers and settlement agencies.

===Links===
*[http://www.clicklaw.bc.ca/resource/1073 Legal Services Society's booklet ''Sponsorship Breakdown'']
*[http://www.cic.gc.ca/english/helpcentre/answer.asp?qnum=1355 Immigration, Refugees and Citizenship Canada's Help Centre "How long am I financially responsible for the family member or relative I sponsor?"]
*[https://www.clicklaw.bc.ca/helpmap/service/1013 MOSAIC's Legal Advocacy Program]
*[https://lss.bc.ca/legal_aid/immigrationProblems Legal Services Society's Legal Aid website "Immigration problems"]

{{REVIEWED | reviewer = [[Taruna Agrawal]], May 24, 2019}}

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Indigenous Families

2026-06-03T19:06:38Z

Nate Russell:

{{Template:JPBOFLARCHIVE}}{{JP Boyd on Family Law TOC|expanded = specific}}{{JPBOFL Editor Badge
|ChapterEditors = [[Rhaea Bailey]]
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{{Clicklawbadge
|resourcetype = many resources on
|link = [https://www.clicklaw.bc.ca/global/search?f=Aboriginal Aboriginal law topics]
}}Aboriginal people who are dealing with a family law problem may face some particular issues. Some of them involve cultural concerns while others stem from the federal government's ''[http://canlii.ca/t/7vhk Indian Act]''. This section addresses these issues briefly. However, for more complete information I strongly encourage you to consult with a family law lawyer who has expertise in Aboriginal legal issues.

This section looks at issues specific to Aboriginal people that relate to the care and control of children, calculating the amount of child and spousal support payments, and dividing family property and family debt.

==The care of children==

All of the usual factors that govern the court's consideration of issues involving the care and control of children apply to the care and control of Aboriginal children, whether the child's ancestry comes from one parent or from both. In addition to the usual factors, however, the court will also look at a few other issues related to the child's Aboriginal heritage.

===Custody under the ''Divorce Act''===

In addition to the usual factors governing an award of child custody under section 16 of the ''[[Divorce Act]]'', the court must also take into consideration a child's Aboriginal heritage when making a decision about custody. This is not expressly set out anywhere in the legislation, but past cases have decided that a child's Aboriginal heritage should be considered as part of the general ''best interests of the child'' test.

This principle was established by the Supreme Court of Canada in ''[http://canlii.ca/t/1fqnq D.H. v. D.M.]'', [1999] 1 S.C.R. 761. The court said that "the trial judge had given careful attention to the aboriginal ancestry of [the child], together with all the other factors relevant to [the child's] best interests, and that there was no error in his decision".

In another ruling, ''[http://canlii.ca/t/51z8 Van de Perre v. Edwards]'', 2001 SCC 60, the Supreme Court of Canada concluded that:
* racial identity is but one factor that may be considered in determining someone's personal identity,
* the relevancy of this factor depends on the context, and
* all factors must be considered pragmatically, as different situations and different philosophies require an individual analysis on the basis of reliable evidence.

===Guardianship under the ''Family Law Act''===

In addition to the usual rules dealing with guardianship under the ''[[Family Law Act]]'', members of Canada's First Nations are subject to an additional and unwelcome burden under the federal ''[http://canlii.ca/t/7vhk Indian Act]'', which allows the Minister of Aboriginal Affairs and Northern Development to appoint a person to be the guardian of the child. You should expect that this authority will only be exercised when both parents die without leaving a will that passes guardianship to some other person, or when there are serious concerns about the parents' ability to properly care for the child.

Where there is an application for guardianship of a treaty First Nation child in a family law court proceeding, under sections 208 and 209 of the ''[[Family Law Act]]'':

*the treat First Nation's government must be served with notice of the application,
*the treaty First Nation government has standing in the court proceeding, and
*the court must consider the laws and customs of the treaty First Nation in making its decision.

(To have ''standing'' means, in legal terms, that the court recognizes your right to be heard and bring claims based upon your stake in the outcome of a legal proceeding.)

Section 208 applies to Nisga'a children; section 209 deals with other treaty First Nation children and says this:

<blockquote><tt>(1) If an application for guardianship is made respecting a treaty first nation child and the final agreement of the treaty first nation to which the child belongs provides for it, the treaty first nation</tt></blockquote>
<blockquote><blockquote><tt>(a) must be served with notice of the proceeding, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) has standing in the proceeding.</tt></blockquote></blockquote>
<blockquote><tt>(2) In a proceeding to which subsection (1) applies, the court must consider, in addition to any other matters it is required by law to consider and subject to any limits or conditions set out in the final agreement, any evidence or representations respecting the laws and customs of the treaty first nation.</tt></blockquote>

Section 29.1 of the provincial ''[http://canlii.ca/t/844q Interpretation Act]'' defines the term "treaty first nation". The nations that currently meet this definition are the Tsawwassen First Nation and the Maa-nulth First Nations.

Remember, the only time an application must be made for guardianship is where a person, including a parent:
* does not meet the general conditions for being a child's guardian under section 39 of the ''[[Family Law Act]]'', and
* has not been appointed as a guardian by a guardian's will or a Form 2 Appointment under the [http://canlii.ca/t/8rdx Family Law Act Regulation].

===Access, parenting time and contact===

The concerns around a child's Aboriginal ancestry are the same whether determining ''custody'' under the ''[[Divorce Act]]'' or determining ''access, parenting time and contact'' under the ''[[Family Law Act]]''. This is especially important where one of the parents is not Aboriginal.

Aboriginal children have the right to keep a connection to their culture and heritage. This may influence the parenting time schedule or contact that an Aboriginal parent has, and affect where a non-Aboriginal parent may exercise parenting time or contact. The fact that a child has Aboriginal ancestry may also result in the court extending contact to a third party, such as an elder or another family member who shares the Aboriginal ancestry with the child, and who will keep the child in touch with their culture.

If a non-Aboriginal parent or a non-band member parent tries to exercise access to a child living on a reserve, the band may restrict that parent's ability to go onto the reserve to see the child. While this doesn't happen a great deal, the usual solution is for the parent trying to exercise access to ensure that the access order or agreement requires the other parent to take the child off the reserve for access visits.

==Child support and spousal support==

Exactly the same rules apply to Aboriginal parents as apply to non-Aboriginal parents when it comes to paying child support and spousal support.

There is, however, one significant issue about the calculation of income for the purposes of support calculations. Aboriginal people who qualify as ''status Indians'' under the federal ''Indian Act'' and who work on a reserve may not be required to pay income tax. Because the [[Child Support Guidelines]] are based on the assumption that the payor of child support is also paying income tax, the standard method of calculating income under the Guidelines would give a distorted result for payors who work on a reserve and do not pay income tax.

Under section 19(1)(b) of the Guidelines, a tax-exempt payor may have their income ''grossed up'' to account for this tax advantage. The grossing-up process essentially involves figuring out how much money a taxed payor would have to earn to have the same amount as a tax-exempt person's income, once income taxes are taken off.

Think of it like this:

<blockquote>Say a taxed payor makes a gross income of $40,000 per year. This is the taxed payor's income for the purposes of the Guidelines. Now, the taxed payor also pays taxes on that income, so their net income might really be about $30,000.</blockquote>
<blockquote>A tax-exempt payor making $40,000, on the other hand, would actually keep the whole $40,000 since no income taxes are paid on the $40,000. This, according to the Guidelines, is unfair, and the tax-exempt payor's income should be re-calculated upwards.</blockquote>
<blockquote>Under the Guidelines, the tax-exempt payor must calculate support payments using a higher income figure than they are actually paid. The higher income figure would be whatever a taxed payor would need to earn to have an after-tax income of $40,000. Say a taxed payor would have to earn $55,000 to have a net income of $40,000. In this example, the tax-exempt payor's income is then set at $55,000 for the purposes of calculating child support using the Guidelines.</blockquote>

Grossing-up a payor's income is intended to ensure that the children benefit from the amount of support available based on a gross income equivalent to what a taxed payor would have to earn to have the same net income.

The same sort of grossing-up process will apply when determining how much spousal support a tax-exempt payor should have to pay, particularly if the amount payable is being determined using the Spousal Support Advisory Guidelines. The Advisory Guidelines use the same approach to calculate income as the Child Support Guidelines.

==Family property and family debt==

Dividing property can be a bit of a problem for Aboriginal spouses when real property on a reserve is involved.

In a nutshell, the ''[http://laws-lois.justice.gc.ca/eng/Const/index.html Constitution Act]'' gives the federal government exclusive authority over laws relating to First Nations property and reserve lands. This means the provincial governments cannot pass laws dealing with First Nations property or their lands. Accordingly, in British Columbia, the ''[[Family Law Act]]'' can't be used to divide an interest in real property on reserve lands. Making matters worse, people living on a reserve generally don't own their property the way that off-reserve property can be owned. The only kind of ownership individuals on reserve lands can have is a Certificate of Possession that gives the owner the right to occupy the land, but not the legal title to that land.

If a treaty First Nation has negotiated the right to dispose of reserve lands, the rules are a bit different and the court may be able to make orders about real property on reserve lands under the ''[[Family Law Act]]''. Section 210 of the ''[[Family Law Act]]'' says this:

<blockquote><tt>(1) If provided for by the final agreement of a treaty first nation, the treaty first nation has standing in a proceeding under Part 5, in which</tt></blockquote>
<blockquote><blockquote><tt>(a) the treaty first nation is entitled under its final agreement to make laws restricting alienation of its treaty lands,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) a parcel of its treaty lands is at issue, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) at least one spouse is a treaty first nation member of the treaty first nation.</tt></blockquote></blockquote>
<blockquote><tt>(2) In a proceeding to which subsection (1) applies, the Supreme Court must consider, among other matters, any evidence or representations respecting the applicable treaty first nation's laws restricting alienation of its treaty lands.</tt></blockquote>
<blockquote><tt>(3) The participation of a treaty first nation in a proceeding to which subsection (1) applies must be in accordance with the Supreme Court Family Rules and does not affect the court's ability to control the court's process.</tt></blockquote>

These are the general rules about family property and the court's authority under the ''[[Family Law Act]]'':

*'''Financial Assets:''' Cash, bank accounts, stocks, bonds, and whatnot are called ''moveable property''. The court can deal with these sorts of assets if they are not situated on reserve lands.
*'''Real Property:''' Property and structures on reserve lands are ''immovable property''. The court cannot order the transfer of immovable property, but it can deal with other assets, like moveable property, to compensate a spouse for an interest in property which the court cannot deal with.
*'''Certificates of Possession:''' The court generally cannot deal with real property located on a reserve, however, the bulk of real property located within reserve lands is not "owned" the way a house off-reserve can be. People holding real property on reserve lands are generally only allowed to have and use the land by way of a Certificate of Possession. Since Certificates of Possession are dispensed under the authority of the federal government, the court cannot make an order for the transfer of the Certificate under the ''[[Family Law Act]]''. The spouse who has the Certificate will usually have to compensate the other spouse for their interest in the Certificate, providing that the Certificate can be shown to have a value.
*'''Exclusive Use of Property:''' Section 90 of the ''[[Family Law Act]]'' allows someone to apply for an order giving them exclusive use of the family home, but this section does not apply to family homes located on reserve lands.

===''Family Homes on Reserves and Matrimonial Interests or Rights Act''===

In December 2013, the Federal Government proclaimed a new law, the ''Family Homes on Reserves and Matrimonial Interests or Rights Act''. This act finally provided a process for dealing with family homes on a reserve. It applies:
* during a relationship between "married spouses" or "common-law partners" (as the federal act refers to unmarried spouses),
* after that relationship breaks down, or
* when one of them dies.

The act is divided into two parts. The first part of the act provides a mechanism for First Nations to enact laws respecting homes on a reserve. This part of the act has been in force since December 16, 2013.

The second part of the act came into force a year later on December 16, 2014, and provides rules to deal with homes on a reserve until such time as a First Nation opts to enact its own laws to deal with homes on its reserve.

Generally, this law applies to married couples and common-law spouses living on a reserve, where at least one of them is a First Nation band member or First Nation person entitled to be a band member, or a status Indian whose First Nation has not opted to take over responsibility for the management and control of their reserve lands and resources under the ''[http://canlii.ca/t/7vvx First Nations Land Management Act]'' or manage their lands pursuant to a self-government agreement.

====Division of the value and interests or rights to the family home====

The act sets out that spouses or common-law partners are entitled to one half of the value of the interest or right that either of them holds in the family home in the event of relationship breakdown or death of one of the spouses.

Sections 28 and 34 of the act outline the details on how value of the family home is to be determined. It takes into consideration the appreciation in value that may have occurred during the relationship, contributions made by each spouse, and any debts or liabilities; the value of the family home and is typically based on the amount that a buyer would reasonably be expected to pay for comparable interests.

====Emergency protection orders====

While the act provides that ''designated'' judges have the power to make emergency protection orders, the Province of British Columbia has decided not to designate any judges under the act at this time. Currently, the only protection orders available are those made under section 183 of the ''[[Family Law Act]]'', which are available to people both on and off a reserve. See the chapter on [[Family Violence Overview|Family Violence]] for a discussion of protection orders and other laws to protect people at risk of domestic violence.

====Death of a spouse or common-law partner====

Section 14 of the act provides that a spouse or common-law partner who does not hold a right or interest in the family home on the reserve can stay in the home for a period of 180 days after the day their spouse or common-law partner died. The surviving spouse does not need to be Aboriginal to benefit from this section.

==Getting legal help==

This section is only a brief sketch of some of the special issues that Aboriginal people might have to deal with in the course of a family law dispute. If you have a problem touching on one of these areas, you should get advice from a lawyer.

You may be able to get legal help from the Legal Services Society's Aboriginal band outreach program or an Aboriginal community legal worker. Look for these agencies on [http://www.clicklaw.bc.ca/helpmap/search?k=aboriginal& www.clicklaw.ca] using the HelpMap feature to find help near to where you are.

==Resources and links==
===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* ''[http://canlii.ca/t/7vhk Indian Act]''
* ''[http://canlii.ca/t/844q Interpretation Act]''
* [http://canlii.ca/t/80mh Child Support Guidelines]
* [http://laws-lois.justice.gc.ca/eng/Const/index.html ''Constitution Act, 1867'' and ''Constitution Act, 1982'' (consolidation)]
* ''[http://canlii.ca/t/8rzj Family Homes on Reserves and Matrimonial Interests or Rights Act]''

===Documents===

* [http://www.justice.gc.ca/eng/fl-df/spousal-epoux/ssag-ldfpae.html Spousal Support Advisory Guidelines]

===Links===

* [http://aboriginal.legalaid.bc.ca/ Legal Services Society's website "Aboriginal Legal Aid in BC"]
* [https://www.clicklaw.bc.ca/global/search?so=r&f=Aboriginal Clicklaw Resources and Common Questions on Aboriginal Law]
* [http://www.aadnc-aandc.gc.ca/eng/1100100031292/1100100031293 Nisga'a Final Agreement and Background Information]
* [http://bit.ly/Maa-nulth First Nations of the Maa-Nulth Treaty]
* [http://bit.ly/Tsawwassen-Treaty Tsawwassen First Nation Treaty]
* [http://www.coemrp.ca Centre of Excellence for Matrimonial Real Property]

{{REVIEWED | reviewer = [[Rhaea Bailey]], November 29, 2018}}

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Guardianship, Parenting Arrangements and Contact

2026-06-03T19:06:35Z

Nate Russell:

{{Template:JPBOFLARCHIVE}}{{JP Boyd on Family Law TOC|expanded = children}}{{JPBOFL Editor Badge
|ChapterEditors = [[Mary Mouat|Mary Mouat, QC]] and [[Samantha Rapoport]]
}}

Guardianship is a very old concept that goes back to the law of ancient Rome. Although guardianship can be hard to define, it's probably easiest to think of guardianship as the full bundle of rights and duties involved in caring for and raising a child. Historically, guardianship had two aspects: guardianship of the ''person'' and guardianship of the ''estate.'' Guardianship is still about parental authority. Parents can be, and usually are, the guardians of a child. Other people can be guardians too, including grandparents and stepparents, and the people who are made guardians by a guardian's will.

This section talks about who is presumed to be the guardian of a child, how people can apply to be appointed as the guardian of a child, and how people can become a guardian upon the death of a guardian. It also talks about the rights and obligations involved in being a guardian, parental responsibilities and parenting time, and about contact, which is the time that someone who isn't a guardian may have with a child.

==Introduction==

The provincial ''[[Family Law Act]]'' talks about the care of children in terms of ''guardians'' and the rights and duties they have for the children in their care. Most of the time a child's parents will be the child's guardians, but other people can be guardians too, including people who have a court order appointing them as guardians and people who are made guardians by a guardian's will.

Guardians raise the children in their care by exercising ''parental responsibilities'' in the best interests of the children. Parental responsibilities include deciding where a child goes to school, how a sick child is treated, whether a child is raised in a religion, and what sports the child plays after school. All of a child's guardians can exercise all parental responsibilities, or parental responsibilities can be divided between guardians, so that only one or more guardians have the right to make decisions about a particular issue. The concept ''joint guardianship'' is not incorporated into the ''Family Law Act''; however, many people, including judges, still use that language in error.

The time a guardian has with a child is called ''parenting time''. During parenting time, a guardian is responsible for the care of the child and has decision-making authority about day-to-day issues.

People who are not guardians, including parents who are not guardians, do not have parental responsibilities. Their time with a child is called ''contact''. A person who is not a guardian does not have decision-making authority when the child is in their care.

==Being a guardian and becoming a guardian==

Section 39 of the ''[[Family Law Act]]'' sets out the basic rules about who is presumed to be a guardian:

<blockquote><tt>(1) While a child's parents are living together and after the child's parents separate, each parent of the child is the child's guardian.</tt></blockquote>
<blockquote><tt>(2) Despite subsection (1), an agreement or order made after separation or when the parents are about to separate may provide that a parent is not the child's guardian.</tt></blockquote>
<blockquote><tt>(3) A parent who has never resided with his or her child is not the child's guardian unless one of the following applies:</tt></blockquote>
<blockquote><blockquote><tt>(a) section 30 applies and the person is a parent under that section;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the parent and all of the child's guardians make an agreement providing that the parent is also a guardian;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the parent regularly cares for the child.</tt></blockquote></blockquote>

Putting this another way, under section 39(1), parents who lived together for some period of time after their child was born (birth is when you become a parent) are presumed to be the guardians of their child during their relationship and after they separate.

Parents who didn't live together, on the other hand, aren't guardians unless:
*they are parents because of an assisted reproduction agreement,
*the parent and all of the child's guardians made an agreement that the parent would be a guardian, or
*the parent ''regularly cares'' for the child.

This chapter will discuss what ''regularly cares for'' actually means.

People who aren't guardians by the operation of section 39 of the ''Family Law Act'', including parents who aren't guardians, don't have the right to say how a child is raised or be involved in decision-making about the child. If a guardian plans on moving with the child, people who aren't guardians don't have the right to object. However, a person with an order for contact time must be notified of any proposed relocation (per section 66 of the ''Family Law Act'') and can apply for orders for the purpose of maintaining the relationship if the relocation is permitted (per section 67(2)(b) of the ''Family Law Act'').

Being a guardian means that you, along with any other guardians, have the obligation to make decisions on behalf of a child and the right to determine how the child is raised. Guardians are presumed to be entitled to manage children's property worth less than $10,000. A guardian can object if another guardian wants to move, with the child or without, and a guardian can make another person a guardian of the child in their will.

Most of the time, a parent will want to be a guardian of their child.

===Being a guardian===

People who are guardians by the operation of section 39 of the ''[[Family Law Act]]'', for example, if they are the child's parents who have lived together after the child is born, or a parent who has regularly cared for a child after the child's birth, don't need to obtain a court order or declaration stating that they are guardians. At law, a parent guardian should not need to ask the court for what they already have. This is really important because if you don't need to start a court proceeding to become a guardian, you shouldn't.

That said, it's unlikely that too many people are going to be aware of the presumptions of guardianship that section 39 talks about, and you may have problems dealing with people like doctors, teachers, police, and border guards if after separation, you do not have an order or agreement confirming that you are a guardian of your child (particularly if you do not share the last name of your child, or your name is not on the child's birth certificate).

Parents (generally fathers) who were not living with the other parent (generally the birth mother) at the time the child was born, but who believe that they are a guardian because they regularly care for their child will want some kind of confirmation that they are their child's guardian. This is when an agreement between the parents or a declaration by the court is useful. Obviously, regular care is a matter of opinion, and if there is a disagreement, some kind of decision or declaration will need to be made saying whether or not the parent who claims guardianship is in fact a guardian. See, for example, the decision, ''[http://canlii.ca/t/hqpn1 Doyle v. Handley]'', 2018 BCSC 293. Even though the father did not cohabit with the mother at the time of the child's birth, the court found him to be a guardian since he regularly cared for the child after the child was born.

===Becoming a guardian===

If you are not a guardian of a child and you want to become a guardian, your choices depend on your relationship to the child and the views of the child's other guardians:

*If you are a parent, you can become a guardian by an agreement with the child's guardians.
*If you are not a parent or if the other guardians aren't inclined to agree, you can only become a guardian by making an application to court to be made a guardian.
*You can also become a guardian, whether you're a parent or not, through a guardian's will or signed Form 2 Appointment when the guardian dies or becomes incapacitated.

If you are the new spouse or partner of a guardian of a child, you do ''not'' become a guardian of the child just because of your relationship with the guardian. If you would like to be the guardian of your stepchild, you should consider applying for an order appointing you as one of the child's guardians.

====Agreements====

If you are a parent, you can become a guardian under section 39(3)(b) of the ''[[Family Law Act]]'' by making an agreement with all of the child's other guardians. If one of the child's guardians disagrees, you will have to apply to court to be made a guardian.

Guardians cannot make an agreement appointing anyone other than a parent as a guardian.

====Applying to court====

Parents and other people can apply to be made a guardian under section 51 of the ''[[Family Law Act]]''. This section requires a person applying for guardianship, an ''applicant'', to provide certain information about why the order would be in the best interests of the child.

In the Provincial Court, Rule 18.1 of the [http://canlii.ca/t/85pb Provincial Court (Family) Rules] requires the applicant to provide a special affidavit in Form 34, sworn no more than seven days before it is filed in court, which talks about:

* the applicant's relationship with the child,
* the child's current living arrangements,
*the applicant's plan for the parenting of the child,
*any incidents of family violence that might affect the child, and
*the applicant's involvement with other court proceedings involving children under the ''Family Law Act'', the old ''Family Relations Act'', the ''[http://canlii.ca/t/51znt Child, Family and Community Service Act]'', and the ''[[Divorce Act]]''.

Rule 18.1 also requires that the applicant attach the following to the affidavit:
#a criminal records check,
#a British Columbia Ministry of Children and Family Development records check (''MCFD records check''), and
#a Protection Order Registry protection order records check (''Protection Order Registry records check''.
These records checks are added as exhibits to the affidavit. The records checks need to be dated within 60 days of the filing of the affidavit in Provincial Court.

For Supreme Court, Rule 15-2.1 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules] says much the same thing, and also requires a special affidavit with the same three records checks added as exhibits. [[Form F101 Affidavit - Section 51 | Form F101]] must be sworn not more than 28 days before a hearing where people will present arguments, or not more than seven days before filing if there will not be a hearing. The records checks must be dated no more than 60 days before the date of the hearing.

To obtain a criminal record check the applicant must attend at their local police station.

The forms required to obtain the ''child protection records check'' from the Ministry for Children and Family Development and the ''protection order registry check'' can be found online at https://www2.gov.bc.ca/gov/content/justice/courthouse-services/documents-forms-records/court-forms/prov-family-forms. The forms required are:
#'''Consent for Child Protection Record Check''': This form must be ''sworn'' or ''affirmed'' in front of a ''[https://www.courthouselibrary.ca/how-we-can-help/our-legal-knowledge-base/commissioner-taking-affidavits commissioner for taking affidavits]'' (e.g. a lawyer, notary, Supreme Court registrar). Submit the completed form to the court registry where the application is being made.
#'''Request for Protection Order Registry Search''': This form must also be submitted to the court registry where the application is being made.

You can find links to and examples of forms, including those listed above as well as Form 34 and Form F101, in [[Sample Provincial Court Forms (Family Law)|Provincial Court Forms & Examples]], [[Sample Supreme Court Forms (Family)|Supreme Court Forms & Examples]], and [[Other Forms and Documents (Family Law)]].

====Appointment by will or Form 2 Appointment====

Parents and other people can also be made a guardian if they have been appointed by a guardian as a ''standby guardian'' under section 55 of the ''[[Family Law Act]]'' or as a ''testamentary guardian'' under section 53 of the act. Guardians who have been appointed in this way don't need to make an application under section 51 and don't need to worry about filing the special affidavit or getting records checks done.

Standby guardians are appointed when the appointing guardian completes an Appointment of Standby or Testamentary Guardian in Form 2 of the [http://canlii.ca/t/8rdx Family Law Act Regulation]. Testamentary guardians can be appointed through Form 2 or in the appointing guardian's will. This is discussed in more detail below, in the discussion about the incapacity and death of a guardian.

==Parental responsibilities and parenting time==

People who are the guardians of a child have ''parental responsibilities'' for that child and their time with the child is called ''parenting time''. Together, parental responsibilities and parenting time are known as ''parenting arrangements''. Section 40 of the ''[[Family Law Act]]'' talks about who has parental responsibilities and parenting time and how they are shared:

<blockquote><tt>(1) Only a guardian may have parental responsibilities and parenting time with respect to a child.</tt></blockquote>
<blockquote><tt>(2) Unless an agreement or order allocates parental responsibilities differently, each child's guardian may exercise all parental responsibilities with respect to the child in consultation with the child's other guardians, unless consultation would be unreasonable or inappropriate in the circumstances.</tt></blockquote>
<blockquote><tt>(3) Parental responsibilities may be allocated under an agreement or order such that they may be exercised by</tt></blockquote>
<blockquote><blockquote><tt>(a) one or more guardians only, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) each guardian acting separately or all guardians acting together.</tt></blockquote></blockquote>
<blockquote><tt>(4) In the making of parenting arrangements, no particular arrangement is presumed to be in the best interests of the child and without limiting that, the following must not be presumed:</tt></blockquote>
<blockquote><blockquote><tt>(a) that parental responsibilities should be allocated equally among guardians;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) that parenting time should be shared equally among guardians;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) that decisions among guardians should be made separately or together.</tt></blockquote></blockquote>

This section says a few important things.

First, guardians are presumed to exercise all parental responsibilities until an order or agreement says otherwise, and guardians are required to consult with each other in the exercise of these responsibilities.

Second, if you do have an order or agreement, the order or agreement can require guardians to share certain parental responsibilities or divide them so that a particular responsibility will only be exercised by one or more guardians acting on their own.

Third, the court must not make any assumptions about how parental responsibilities and parenting time are to be divided.

Parental responsibilities are listed at section 41:

<blockquote><tt>(a) making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child;</tt></blockquote>
<blockquote><tt>(b) making decisions respecting where the child will reside;</tt></blockquote>
<blockquote><tt>(c) making decisions respecting with whom the child will live and associate;</tt></blockquote>
<blockquote><tt>(d) making decisions respecting the child's education and participation in extracurricular activities, including the nature, extent and location;</tt></blockquote>
<blockquote><tt>(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;</tt></blockquote>
<blockquote><tt>(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;</tt></blockquote>
<blockquote><tt>(g) applying for a passport, license, permit, benefit, privilege or other thing for the child;</tt></blockquote>
<blockquote><tt>(h) giving, refusing or withdrawing consent for the child, if consent is required;</tt></blockquote>
<blockquote><tt>(i) receiving and responding to any notice that a parent or guardian is entitled or required by law to receive;</tt></blockquote>
<blockquote><tt>(j) requesting and receiving from third parties health, education or other information respecting the child;</tt></blockquote>
<blockquote><tt>(k) subject to any applicable provincial legislation,</tt></blockquote>
<blockquote><blockquote><tt>(i) starting, defending, compromising or settling any proceeding relating to the child, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) identifying, advancing and protecting the child's legal and financial interests;</tt></blockquote></blockquote>
<blockquote><tt>(l) exercising any other responsibilities reasonably necessary to nurture the child's development.</tt></blockquote>

This list is not a closed list. If there's something important to the child that's not listed in (a) to (k), you can probably have the issue addressed under (l). Note also that guardians are required, under section 43(1), to always exercise their parental responsibilities in the best interests of the child.

The above list references the ''Infants Act'', which is a piece of provincial legislation that deals with, among other matters, the consent of a “mature minor” for healthcare decision-making. Parents who are separating and looking to define parental responsibilities in a parenting plan should nevertheless be aware that if their child is considered a mature minor, that child may be able to make his or her own healthcare decisions.

The above list also references the parental responsibility of “requesting and receiving from third parties health, education or other information respecting the child.” Parents who are separating and looking to define parental responsibilities in a parenting plan should also consider the reasonable expectation of privacy of a mature minor over his or her healthcare information.

The ''[[Family Law Act]]'' deals with parenting time very briefly. Section 42 says this:

<blockquote><tt>(1) For the purposes of this Part, parenting time is the time that a child is with a guardian, as allocated under an agreement or order.</tt></blockquote>
<blockquote><tt>(2) During parenting time, a guardian may exercise, subject to an agreement or order that provides otherwise, the parental responsibility of making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child.</tt></blockquote>

Basically, you have a few choices if it becomes important to formalize the parenting arrangements for a child. You can come up with an agreement with the other guardians, by negotiation, mediation, or a collaborative settlement process, or, if you can't agree, you can go to court or you can elect to use family law arbitration to obtain a decision from a third party. Arbitration, like mediation, is an elective process. However, unlike mediation, in arbitration if the parties cannot agree, the arbitrator will make a final and binding decision.

It sometimes takes a while for guardians to get to the point where they feel they must get something formal in place. Sometimes, people are just content with the status quo. In cases like this, where a stable parenting arrangement has managed to gel over time, section 48 of the ''Family Law Act'' says that a guardian shouldn't make unilateral changes to those arrangements without talking to the other guardians first:

<blockquote><tt>(1) If</tt></blockquote>
<blockquote><blockquote><tt>(a) no agreement or order respecting parenting arrangements applies in respect of a child, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the child's guardians have had in place informal parenting arrangements for a period of time sufficient for those parenting arrangements to have been established as a normal part of that child's routine, a child's guardian must not change the informal parenting arrangements without consulting the other guardians who are parties to those arrangements, unless consultation would be unreasonable or inappropriate in the circumstances.</tt></blockquote></blockquote>
<blockquote><tt>(2) Nothing in subsection (1) prevents a child's guardian from seeking</tt></blockquote>
<blockquote><blockquote><tt>(a) an agreement respecting parenting arrangements, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) an order under section 45.</tt></blockquote></blockquote>

When formal arrangements are required, section 44 of the ''Family Law Act'' allows two or more of a child's guardians to make an agreement about the allocation of parental responsibilities and parenting time, as well as how disputes about those parenting arrangements will be resolved. (Agreements like these can't be made until the guardians have separated or are about to separate.) If agreement is impossible, a guardian can apply for a court order about parenting arrangements under section 45 of the Act.

When a child has more than one guardian, the guardians need to work together and cooperate in raising the child. This can sometimes be difficult, particularly when there is a lot of conflict in the guardians' relationship with one another. Before the ''Family Law Act'' came into effect, the rights and obligations involved in raising children were usually addressed through a joint guardianship order under the ''Family Relations Act''. The ''Family Law Act'' doesn't talk about guardianship the way the old law did and can't be used to spell out guardians' rights and obligations.

The court can make orders about which guardian exercises parental responsibilities, so that one parent may have parental responsibilities over medical decisions, and the other over educational decisions. If the agreement or court order does not spell out who exercises which parental responsibility, then it is presumed that the guardians share all of the parental responsibilities and the guardians must therefore cooperate and make their decisions jointly. If no agreement can be reached by the guardians, an application may be made to court under section 40 of the ''Family Law Act'', and the court can make those decisions instead or determine who can make the decision.

==Contact==

The time a person who is not a guardian has with a child is called ''contact''. Where a child's parent is not that child's guardian, the time that the parent spends with the child will be considered contact time. The ''[[Family Law Act]]'' doesn't say much about contact, except to say that anyone can apply for it, including parents and grandparents. This is the definition of contact from section 1 of the Act:

<blockquote><tt>'''contact with a child''' or '''contact with the child''' means contact between a child and a person, other than the child's guardian, the terms of which are set out in an agreement or order</tt></blockquote>

A schedule of contact can be set by agreement between the person seeking contact with a child and the child's guardians under section 58 of the ''[[Family Law Act]]'', or a schedule of contact can be fixed by a court order made under section 59. Agreements for contact are only good if they are signed by all of the child's guardians who have the parental responsibility of determining who can have contact with the child.

==Incapacity and death of a guardian==

When a guardian anticipates being unable to care for a child, either temporarily or permanently, the guardian may appoint a person to act in their place. No matter the age or health of a guardian, it is always a good idea for a guardian to give some thought to the question of who would look after the child in the event of the guardian's unexpected death and to record those arrangements in a Will or in one of the forms described below.

===Temporary authorizations===

Under section 43(2) of the ''[[Family Law Act]]'', a guardian who is temporarily unable to exercise certain parental responsibilities may authorize someone to exercise those responsibilities on their behalf. Such authorizations must be made in writing, and should say exactly what it is that the authorized person can do.

The parental responsibilities that someone can exercise under a written authorization are:

*making day-to-day decisions affecting the child and having day-to-day care, control, and supervision of the child,
*making decisions respecting with whom the child will live and associate,
*making decisions respecting the child's education and participation in extracurricular activities,
*giving, refusing, or withdrawing consent to medical, dental, and other health-related treatments for the child,
*applying for a passport, licence, permit, benefit, privilege or other thing for the child,
*giving, refusing, or withdrawing consent for the child, if consent is required,
*receiving and responding to any notice that a parent or guardian is entitled or required by law to receive,
*requesting and receiving from third-parties health, education, or other information about the child, and
*exercising any other responsibilities reasonably necessary to nurture the child's development.

Authorizations like these are mostly used:
#when the child has to go somewhere else to attend school and the guardian needs to ensure the child is looked after,
#when the guardian is seriously ill but going to recover, and
#when the guardian is going to be out of commission for a while to recover from a surgery or treatment.

===Appointing standby guardians===

Under section 55 of the ''[[Family Law Act]]'', where a guardian is facing a terminal illness or permanent loss of mental capacity, the guardian can appoint someone to become guardian when they become incapable of continuing to act as guardian.

Appointments are made by Form 2, a form set out in the [http://canlii.ca/t/8rdx Family Law Act Regulation]. The guardian must sign the form in the presence of two witnesses, neither of whom is the guardian being appointed. The form must state the conditions that have to be met for the appointment to take effect, such as a doctor's certificate of incapacity. A guardian cannot appoint a guardian to act with any more parental responsibilities than those they had at the time of the appointment.

For the appointment to be effective, a person appointed as a standby guardian must accept the appointment.

A person who is appointed as a standby guardian does not have to apply for appointment under section 51 of the act, and continues to serve as the guardian of the child after the death of the appointing guardian.

===Appointing testamentary guardians===

Under section 53 of the ''[[Family Law Act]]'', a guardian can appoint someone to become guardian when they die.

Appointments are made either by Form 2 or in the guardian's will. For appointments made using Form 2, the guardian must sign the form in the presence of two witnesses, neither of whom is the guardian being appointed. A guardian cannot appoint a guardian to act with any more parental responsibilities than those they had at the time of the appointment.

A person appointed as a testamentary guardian must accept the appointment for the appointment to be effective.


==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* [http://canlii.ca/t/8rdx Family Law Act Regulation]
* ''[http://canlii.ca/t/84dv Child, Family and Community Service Act]''
* ''[[Divorce Act]]''
* [http://canlii.ca/t/85pb Provincial Court (Family) Rules]
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]

===Links===

* [https://www.justiceeducation.ca/pas Justice Education Society: Parenting After Separation program]
* [https://clicklaw.bc.ca/resource/1246 Dial-A-Law Script "Custody and access, guardianship, parenting arrangements and contact"]
* [https://clicklaw.bc.ca/resource/2639 Legal Services Society's fact sheet "How to Become A Child's Guardian"]
* [https://clicklaw.bc.ca/resource/4655 Legal Services Society's Family Law website's information page "Parenting & guardianship"]
** See "Guardianship, parenting time and parental responsibilities"

{{REVIEWED | reviewer = [[Mary Mouat|Mary Mouat, QC]] and [[Samantha Rapoport]], April 15, 2019}}

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Further Topics and Overlapping Legal Issues in Family Law

2026-06-03T19:06:30Z

Nate Russell:

{{Template:JPBOFLARCHIVE}}{{JPBOFL Start Chapter
| Related =
[[Aboriginal Families]]{{·}}[[Immigrants and Family Law]]{{·}}[[Same-Sex Relationships and Issues Affecting Transgendered and Transsexual People]]{{·}}[[Naming and Changes of Name]]{{·}}[[Wills and Estates Issues in Family Law]]{{·}}[[Conflict of Laws]]
}}
{{JP Boyd on Family Law TOC|expanded = further}}{{JPBOFL Editor Badge
|ChapterEditors = [[Rhaea Bailey]], [[Taruna Agrawal]], [[Todd Bell]], [[Bob Mostar]] and [[Mark Norton]]
}}
==Further topics for specific communities==
While family law has evolved to treat many minority groups, such as same-sex couples, in the same way as it treats the majority, this is not always true. People are sometimes subject to different laws in certain circumstances.

The resource you're reading has been updated to explain and recognize some of the ways laws apply differently to specific communities. Parts of this chapter deal with further topics unique to [[Aboriginal Families|Aboriginal families]] and/or those living on reserves, [[Immigrants and Family Law|newcomers to Canada]] and those who support or rely on them, and [[Same-Sex Relationships and Issues Affecting Transgendered and Transsexual People| the LGBTQ community]].

===Aboriginal families===
Aboriginal people exist in a unique legal environment arising from the fact that they are the first peoples of what is now known as Canada. Aboriginal people's longstanding occupancy and use of these lands give rise to ''Aboriginal rights'' which became constitutionally protected when s. 35 of the ''Constitution Act, 1982'' was enacted over 30 years ago. The ''Constitution'' recognizes and affirms aboriginal and treaty rights of First Nations, Inuit and Métis peoples of Canada.

This chapter focuses on issues in family law that affect BC's Aboriginal families. While all of the usual factors apply to Aboriginal families, courts must also pay attention to Aboriginal ancestry, culture and traditions when they make decisions, including determining the best interests of Aboriginal children. This is because Aboriginal children have the right to keep a connection to their culture and heritage, which are the strong foundations of many Aboriginal families. This section briefly reviews particular issues unique to Aboriginal families, including:
*the care of children,
*child support
*spousal support, and
*family property and family debt.

The section on [[Aboriginal Families]] also briefly addresses issues caused by the ''[http://canlii.ca/t/7vhk Indian Act]'', a law which has allowed the government to control most aspects of Aboriginal life since its inception in 1876.

===Newcomers to Canada and their families===
Many Canadian families are the product of Canadian citizens or permanent residents who partner with people from other countries. ''Sponsorship'' by a Canadian citizen or permanent resident of a foreign spouse this creates legal issues that are unique to families with members who are immigrants or refugees.

In 2017, the Canadian government introduced some important changes to the rules surrounding sponsored spouses. The updates in this chapter address those changes and provides information on:

* support obligations of sponsors, and
* agencies that help immigrants and refugees.

===LGBQT issues in family law===
Not too long ago, this resource had an entire chapter about the particular issues affecting those in same-sex relationships. A stand-alone chapter for same-sex relationships, however, is no longer necessary.

For the last 30 years or so, there has been a steady erosion of legislated discrimination between opposite- and same-sex relationships. While gays and lesbians may have to deal with homophobia and intolerance in their day-to-day lives, at least the discrimination that used to exist because of legislation has been on the wane. From the [http://canlii.ca/t/5239 Little Sisters decision] on censorship to ''[http://canlii.ca/t/1frkt Egan v. Canada]'', [1995] 2 SCR 513 on spousal benefits, the courts of Canada have proven increasingly willing to extend the protection of the ''[http://canlii.ca/t/8q7l Charter of Rights and Freedoms]'' to overturn discriminatory legislation and, after some initial resistance, the governments of Canada have followed suit.

Gays and lesbians are just as entitled as straight people to pursue claims relating to:
*the care of children,
*child support,
*spousal support, and
*the division of property

Sexual orientation plays no part in the division of family property, nor is it a factor in determining issues relating to children or support.

This said, legal uncertainty exists for people who are trans or gender non-binary, at least in some contexts. The section on ''[[Same-Sex Relationships and Issues Affecting Transgendered and Transsexual People#Issues affecting transgendered and transsexual people|Issues affecting transgendered and transsexual people]]'' discusses some of the difficulties that the law has in serving people who traverse the gender spectrum.

==Overlapping legal issues==

Problems like children's parenting arrangements, the payment of support, and the division of property are the everyday issues that crop up when a relationship breaks down. There is a whole host of other legal issues that fall under the family law umbrella, and it's a big umbrella.

This chapter takes a look at a selection of relatively common family law problems. It talks about issues affecting:

*the overlap between wills and estates law and family law, and
*what happens when people and property are located in different legal jurisdictions.

{{REVIEWED | reviewer = [[Nate Russell]], July 20, 2017}}

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Conflict of Laws Issues in Family Law

2026-06-03T19:06:20Z

Nate Russell:

{{Template:JPBOFLARCHIVE}}{{JP Boyd on Family Law TOC|expanded = overlapping}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bob Mostar]] and [[Mark Norton]]
}}
The ''conflict of laws'' refers to the problems that arise when the courts and laws of two or more places may apply to the same problem. Problems with the conflict of laws usually arise in a family law context when:

*spouses have property in different provinces or countries,
*the courts of one jurisdiction have made an order and one or both of the parties have moved to a different jurisdiction, or
*the parties made a family agreement in one jurisdiction and have since moved to a new jurisdiction.

The law on this subject can be extremely complex. If you are involved in a family law problem involving the conflict of laws, you should seriously consider retaining a lawyer to help you.

==Children==

Different rules apply when orders about the care of children are made outside of British Columbia under the federal ''[[Divorce Act]]'', outside of British Columbia under the law of another province or territory, and outside of Canada under another law altogether.

===''Divorce Act'' orders===

When a court order about children has been made under the ''[[Divorce Act]]'', a spouse who moves to a different province can apply to change that order in the new province under section 5 of the act. The courts of British Columbia will hear an application for an order different than the original order as long as:

*either spouse normally lives in this province, or
*both spouses agree that our courts should deal with the matter.

Since the ''Divorce Act'' applies to the whole of Canada, ''Divorce Act'' orders have effect throughout Canada. An order made under the ''Divorce Act'' may be registered in any court in Canada under section 20(3) of the act, and will be treated as an order of the court in which it is registered for enforcement purposes.

===Other orders made outside British Columbia===

When a court order about children has been made under a provincial law, such as Alberta's ''[http://canlii.ca/t/81vc Family Law Act]'' or the ''[http://canlii.ca/t/8k Children's Law Reform Act]'' of Ontario, or the laws of another country altogether, the order can be ''recognized'' by the courts of British Columbia under section 75 of our ''[[Family Law Act]]''. A foreign order that has been recognized will be treated as an order of the British Columbia courts for enforcement purposes.

Under Division 7 of Part 4 of the ''[[Family Law Act]]'', the courts of British Columbia can also change orders about children that were made under the laws of a different province or territory, or under the laws of another country. Our courts will usually be very cautious in changing the orders of another court. Our court will usually hear an application for an order different than the original order if:

*the child normally lives in British Columbia, or
*the child is physically present in the province but will be at serious risk unless the original order is changed.

==Child support and spousal support==

Different rules apply when orders about support are made outside of British Columbia under the federal ''[[Divorce Act]]'', outside of British Columbia under the law of another province or territory, and outside of Canada under another law altogether.

===''Divorce Act'' orders===

When a court order about support has been made under the ''[[Divorce Act]]'', a spouse who moves to a different province can apply to change that order in the new province under section 18 of the act. The order that the spouse gets, however, will only be a ''provisional order'' which has no immediate effect. The Attorney General is required to send the provisional order to the court that made the order, and that court will have a ''confirmation hearing'' under section 19. If that court confirms the provisional order, the order will be changed. There's more information about this in the [[Making_Changes_to_Child_Support|Making Changes]] section of the chapter on [[Child Support]], under the heading "[[Making_Changes_to_Child_Support#Orders_made_outside_British_Columbia|Orders made outside British Columbia]]."

An order for child support or spousal support made under the ''[[Divorce Act]]'' may be registered in any court in Canada under section 20(3) of the act, and will be treated as an order of the court in which it is registered for enforcement purposes.

===Other orders made outside British Columbia===

Where a support order was made under the law of another province or territory, the order can be ''registered'' in the courts of British Columbia under the provincial ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''. Once this is done, that newly registered order can be enforced as if it was a BC order by the person to whom the payments are owed, the ''recipient'', under the ''[[Family Law Act]]'', or by the Family Maintenance Enforcement Program under the ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''.

The ''Interjurisdictional Support Orders Act'' also allows for someone in BC to start a process that could result in the order being changed, either by the court that made the original order or by a new court in the jurisdiction where the other parent now lives. See the Ministry of Attorney General's website for Interjurisdictional Support Services ([https://www.isoforms.bc.ca www.isoforms.bc.ca]) for more on this process. In addition to Canada's other provinces and territories, the ''Interjurisdictional Support Orders Act'' also applies to the orders of some other countries, including the United Kingdom, the United States, Hong Kong, Germany, Australia, Zimbabwe, and several others listed in the [http://canlii.ca/t/84vn Interjurisdictional Support Orders Regulation].

==Property and debt==

The ''[[Family Law Act]]'' is currently the only law in British Columbia that deals with the division of family property and family debt between married and unmarried spouses. Division 6 of Part 5 of the act has special provisions for dealing with property located outside the province. These provisions are extraordinarily complicated and very difficult to understand. You will almost certainly need to speak to a lawyer to figure them out.

Under section 106 of the ''Family Law Act'', where another court can make an order about the same parties and the same property, the court here must first decide whether it should make any orders at all. The court may decide to deal with a property claim if:

*the person against whom the claim is made, the ''respondent'', has made a claim for the division of property under the ''[[Family Law Act]]'',
*the parties agree that the court should deal with the claim,
*either party was "habitually resident" in the province when the court proceeding started, or
*there is a "real and substantial connection" between the province and the facts on which the property claim is based, because the property is located in the province, the parties’ most recent common habitual residence was in the province, or a court proceeding under the ''[[Divorce Act]]'' has been started here.

If the court decides to deal with the claim, the court may make orders about property and debt located outside the province by:

*dividing property here to take into account the value of the property outside the province,
*making orders about the care, management, or use of the property outside the province, and
*making orders about ownership of the property outside the province.

More information about how the ''Family Law Act'' deals with property outside of British Columbia is available in the section on [[Dividing Property & Debt in Family Law Matters|Dividing Property & Debt]] under the chapter on [[Property & Debt in Family Law Matters|Property & Debt]], under the heading "[[Dividing_Property_%26_Debt_in_Family_Law_Matters#Determining_jurisdiction|Determining jurisdiction]]".

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''

{{REVIEWED | reviewer = [[Bob Mostar]] and [[Mark Norton]], June 24, 2019}}

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Category:Archived Sections from JP Boyd on Family Law

2026-06-03T18:59:21Z

Nate Russell:

The following pages are archived sections from ''[[JP Boyd on Family Law]]'', and selected to be marked with a [[:Template:JPBOFLARCHIVE | notice template]] indicating they are no longer being updated in the current edition.

Category:Archived Sections from JP Boyd on Family Law

2026-06-03T18:58:56Z

Nate Russell:

The following pages are archived sections from ''[[JP Boyd on Family Law]]'', and selected to be marked with a [[Template:JPBOFLARCHIVE
| notice template]] indicating they are no longer being updated in the current edition.

Category:Archived Sections from JP Boyd on Family Law

2026-06-03T18:58:32Z

Nate Russell:

The following pages are archived sections from ''[[JP Boyd on Family Law]]'', and selected to be marked with a [[:Template:JPBOFLARCHIVE
| notice template]] indicating they are no longer being updated in the current edition.

Template:JPBOFLARCHIVE

2026-06-03T18:56:38Z

Nate Russell: Categorizing for archive

<noinclude>__NOGLOSSARY__</noinclude>
{{Ambox
| name = Ambox
| text = '''This section has been archived and is no longer being updated''' ''This section was removed or incorporated into other sections or chapters of the recent edition of ''[[JP Boyd on Family Law]]''. Information has not been updated and much of it will be out-of-date.
| type = content
| textstyle = color: #000000
}}
<noinclude>
[[Category:Editing Notices]]
[[Category:Exclude in print|!]]
</noinclude>

Category:Archived Sections from JP Boyd on Family Law

2026-06-03T18:52:26Z

Nate Russell: Created page with "The following pages are archived sections from ''JP Boyd on Family Law'', and selected to be marked with a notice template indicating they are no longer being updated in the current edition."

The following pages are archived sections from ''[[JP Boyd on Family Law]]'', and selected to be marked with a notice template indicating they are no longer being updated in the current edition.

Wills and Estates Issues in Family Law

2026-06-03T18:39:50Z

Nate Russell: Categorizing for archive

{{JP Boyd on Family Law TOC|expanded = overlapping}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bob Mostar]] and [[Mark Norton]]
}}
''Wills and estates'' refers to the area of law that deals with the drafting and interpretation of wills, how a deceased person's estate is distributed when there is a valid will, how a deceased person's estate is distributed when there isn't a valid will, and how certain relatives can challenge a deceased person's will. In family law, issues concerning a person's will most often arise when a couple have separated or are getting a divorce.

Making, changing, revoking, and enforcing wills are governed by the provincial ''[http://canlii.ca/t/8mhj Wills, Estates and Succession Act]'' (''WESA''). Section 37 sets out the basic requirements for a valid will:

<blockquote><tt>'''37''' (1) To be valid, a will must be</tt></blockquote>

<blockquote><blockquote><tt>(a) in writing,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) signed at its end by the will-maker, or the signature at the end must be acknowledged by the will-maker as his or hers, in the presence of 2 or more witnesses present at the same time, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) signed by 2 or more witnesses in the presence of the will-maker.</tt></blockquote></blockquote>

British Columbia courts have said that people are presumed to have a moral duty to provide for members of their immediate family. Under ''WESA'', spouses and children who have not been provided for in a will are able to challenge the will and ask the court that they be included and receive a share, or a bigger share, of the dead person's estate. This is often referred to as a variation of a will.

A person who dies without leaving a will is said to die ''intestate''. If a person dies intestate, their assets are dealt with according to the terms of ''WESA''. This law requires a person's estate to be distributed in a certain way, with the surviving spouse receiving a first, fixed share of the estate, which is adjusted if the surviving spouse is not the other parent of the deceased's surviving children, and the remainder being split with any surviving children (sections 20 to 23 of ''WESA'').

If a person dies without a will, only people who qualify as the person's spouse and children can benefit from the provisions of ''WESA''. If the dead person had been married or in a marriage-like relationship which either party had terminated prior to the first person’s death, the former spouse can't make a claim under the act.

If a person dies with a will which gives a benefit to a spouse, but either party had terminated the relationship prior to the will-maker's death, the benefit is cancelled.

==Resources and links==

===Legislation===

* ''[http://canlii.ca/t/8mhj Wills, Estates and Succession Act]''

===Links===
* [http://www.clicklaw.bc.ca/question/commonquestion/1157 Clicklaw Common Question "I want to contest or dispute a will. What can I do?"]
* [http://www.clicklaw.bc.ca/question/commonquestion/1045 Clicklaw Common Question "My common-law partner died. What legal issues do I need to know about?"]

{{REVIEWED | reviewer = [[Bob Mostar]] and [[Mark Norton]], June 24, 2019}}

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Specific Communities and Family Law

2026-06-03T18:37:48Z

Nate Russell: Categorizing for archive

{{JPBOFL Start Chapter
| Related =
[[Aboriginal Families]]{{·}}[[Immigrants and Family Law]]{{·}}[[Same-Sex Relationships and Issues Affecting Transgendered and Transsexual People]]
}}
{{JP Boyd on Family Law TOC|expanded = specific}}{{JPBOFL Editor Badge
|ChapterEditors = [[Rhaea Bailey]], [[Taruna Agrawal]], and [[Todd Bell]]
}}

While family law has evolved to treat many minority groups, such as same-sex couples, in the same way as it treats the majority, this is not always true. People are sometimes subject to different laws in certain circumstances.

The resource you're reading has been updated to explain and recognize some of the ways laws apply differently to specific communities. Parts of this chapter deal with further topics unique to [[Aboriginal Families|Aboriginal families]] and/or those living on reserves, [[Immigrants and Family Law|newcomers to Canada]] and those who support or rely on them, and [[Same-Sex Relationships and Issues Affecting Transgendered and Transsexual People| the LGBTQ community]].

===Aboriginal families===
Aboriginal people exist in a unique legal environment arising from the fact that they are the first peoples of what is now known as Canada. Aboriginal people's longstanding occupancy and use of these lands give rise to ''Aboriginal rights'' which became constitutionally protected when section 35 of the ''Constitution Act, 1982'' was enacted over 35 years ago. The ''Constitution'' recognizes and affirms aboriginal and treaty rights of the First Nations, Inuit, and Métis peoples of Canada.

This chapter focuses on issues in family law that affect BC's Aboriginal families. While all of the usual factors apply to Aboriginal families, courts must also pay attention to Aboriginal ancestry, culture, and traditions when they make decisions, including determining the best interests of Aboriginal children. This is because Aboriginal children have the right to keep a connection to both their culture and heritage, which are the strong foundations of many Aboriginal families. This section briefly reviews particular issues unique to Aboriginal families, including:
*the care of children,
*child support,
*spousal support, and
*family property and family debt.

The section on [[Aboriginal Families]] also briefly addresses issues caused by the ''[http://canlii.ca/t/7vhk Indian Act]'', a law which has allowed the government to control most aspects of Aboriginal life since its inception in 1876.

===Newcomers to Canada and their families===
Many Canadian families are the product of Canadian citizens or permanent residents who partner with people from other countries. ''Sponsorship'' by a Canadian citizen or permanent resident of a foreign spouse creates legal issues that are unique to families with members who are immigrants or refugees.

This chapter talks about how family and immigration law overlap in British Columbia. The chapter discusses the differences in vocabulary in the ''[[Family Law Act]]'' and the federal ''[http://canlii.ca/t/7vwq Immigration and Refugee Protection Act]'', a sponsor's obligations towards their spouse, and options for immigrant spouses who want to leave an abusive relationship.

===LGBTQ issues in family law===
Not too long ago, this resource had an entire chapter about the particular issues affecting those in same-sex relationships. A stand-alone chapter for same-sex relationships, however, is no longer necessary.

For the last 30 years or so, there has been a steady erosion of legislated discrimination between opposite- and same-sex relationships. While gays and lesbians may have to deal with homophobia and intolerance in their day-to-day lives, at least the discrimination that used to exist because of legislation has been on the wane. From the [http://canlii.ca/t/5239 ''Little Sisters'' decision] on censorship to ''[http://canlii.ca/t/1frkt Egan v. Canada]'', [1995] 2 SCR 513 on spousal benefits, the courts of Canada have proven increasingly willing to extend the protection of the ''[http://canlii.ca/t/8q7l Charter of Rights and Freedoms]'' to overturn discriminatory legislation and, after some initial resistance, the governments of Canada have followed suit.

Gays and lesbians are just as entitled as straight people to pursue claims relating to:
*the care of children,
*child support,
*spousal support, and
*the division of property.

Sexual orientation plays no part in the division of family property, nor is it a factor in determining issues relating to children or support.

This said, legal uncertainty exists for people who are trans or gender non-binary, at least in some contexts. The section on ''[[Same Sex Relationships and Issues Affecting Transgender and Transsexual People#Issues affecting transgender and transsexual people|Issues affecting transgender and transsexual people]]'' discusses some of the difficulties that the law has in serving people who traverse the gender spectrum.

{{REVIEWED | reviewer = [[Taruna Agrawal]], June 10, 2019}}

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Same Sex Relationships and Issues Affecting Transgender and Transsexual People

2026-06-03T18:37:30Z

Nate Russell: Categorizing for archive

The law in British Columbia has erased the divide between same-sex and opposite-sex couples. A person’s sexual orientation is rarely a relevant factor in the court’s analysis. The courts’ responses to family law matters involving LGBTQ individuals are outlined below.

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==Same-sex relationships==

Legislated discrimination in British Columbia between opposite- and same sex relationships has steadily been erased in the context of family law. To quote [http://www.barbarafindlay.com/ barbara findlay QC], a tireless advocate for queer rights, from a speech to the [http://www.cba.org/bc/home/main/ Canadian Bar Association British Columbia] a number of years ago:

<blockquote>"Gays and lesbians in British Columbia now have exactly the same rights and obligations towards one another as straight people do. Exactly the same. Full stop."</blockquote>

She is entirely correct. As far as the provincial statutes of British Columbia are concerned, and indeed the vast majority of federal statutes as well, there is equality. The Court of Appeal for British Columbia was among the first of Canada's appellate courts to acknowledge that restricting the right to marry to straight couples alone was an egregious breach of the equality rights of gays and lesbians. BC's ''[http://canlii.ca/t/84g5 Adoption Act]'' is one of the few in Canada that permit adoption by same-sex couples.

Gays and lesbians are just as entitled to pursue claims relating to the care of children, child support, spousal support, and the division of property as straight people are. Sexual orientation plays no part in the division of family property, nor is it a factor in determining issues relating to children or support.

How does modern family law in BC apply to LGBTQ relationships? In all the ways that it applies to straight couples. There is no relief known to family law of which straight couples can avail themselves that same sex couples cannot.

===Marriage===

As a result of the 2005 federal ''[http://canlii.ca/t/7w02 Civil Marriage Act]'', same sex couples can legally marry throughout Canada. Of course, not everyone can marry, such as close relatives or minors under a certain age. See the [[Marriage & Married Spouses]] section of the [[Family Relationships]] chapter for more information about the capacity to marry, valid marriages, and invalid marriages.

It's not just Canadian couples who can marry. Anyone from anywhere can get married in Canada, as long as they meet the Canadian criteria for a valid marriage. However, while a Canadian marriage is certainly legal in Canada, it may not be recognized as a valid marriage at home. If a couple's home country does not recognize same-sex marriages as valid marriages, the Canadian marriage is unlikely to be valid in that country.

===Children===

Whether the battle over a child is between two same-gender parents, two parents of opposite genders, or more than two parents or guardians in a single family, the single concern that parents must keep in mind is the same. Arrangements respecting guardianship, parenting arrangements, or contact with a child, must only be made considering the best interests of the child. That's the court's only concern when making orders dealing with children. The courts have also been crystal clear that the sexual orientation of the child's parents is only one of many factors to be considered, and is often a non-issue. This is what a few judges have had to say:

''[http://canlii.ca/t/1f6rk Anger v. Anger]'', 1998 CanLII 4490 (BCSC):

<blockquote>A mother sought an order that her children live primarily with her. The father opposed the application as he found the mother's sexual orientation "repugnant on religious and moral grounds." The court found the father was doing everything he could to cut the mother out of the children's lives, and accepted a psychologist's recommendation that the children should live with their mother. The mother's application was allowed. No weight was given to the mother's sexual orientation.</blockquote>

''Murphy v. Laurence'', [2002] O.J. No. 1368 (ONSC):

<blockquote>The biological mother of a child and the mother's same-sex partner made competing applications for custody and child support. The two women had a three-year unmarried relationship. Both women acted as parents to the child and, following separation, the partner exercised liberal access to the child. Eventually, by agreement, the child went to live mostly with the partner. The court found the child to have benefited from the care of both women, and ordered joint custody with the primary residence of the child to be with the biological mother of the child. Notably, very little access was given to the biological father in light of a history of disinterest in the child. No weight was given to the mother's sexual orientation.</blockquote>
<blockquote>"The best interests of [the child] are, of course, what will govern any decision relating to custody in this matter. In this fundamental principle, same sex parents seeking custody are no different than opposite sex parents seeking custody."</blockquote>

''[http://canlii.ca/t/1w5d8 Bubis v. Jones]'', 2000 CanLII 22571 (ONSC), at paragraphs 22-23:

<blockquote>"There is no evidence that families with heterosexual parents are better able to meet the physical, psychological, emotional or intellectual needs of children than are families with homosexual parents [...]. Furthermore, lesbian relationships do not break down at a significantly different rate than do heterosexual relationships and the sexual orientation of children is not influenced by the gender preference of their parents. It is true that the children of a lesbian in a same sex relationship may be ostracized by some peers because of the lifestyle of their mother. However, I do not think that a rational decision by this court should be precluded by the possibility that it may provoke an irrational response in others.</blockquote>

<blockquote>"The end result of all of this is that the same sex preference of a parent is merely one of the many factors which a court should consider when determining the best interests of children. A lesbian relationship, conducted with discretion and sensitivity, is no more harmful to children than a heterosexual relationship, conducted with discretion and sensitivity. Heterosexual parenting is not better than lesbian parenting—just different.</blockquote>

''[http://canlii.ca/t/1hl5f J.S.B. v. D.L.S.]'', 2004 CanLII 5031 (ONSC):

<blockquote>The father argued that it was in the children's best interests to reside with him as the mother's new same-sex relationship was deviant. </blockquote>
<blockquote>The court underscored the need for respect and recognition of same sex relationships, and noted with approval the Ontario Court of Appeal's comments in ''[http://canlii.ca/t/6v7k Halpern v. Canada (Attorney general)]]'', 2003 CanLII 26403:
<blockquote>"Intimacy, companionship, societal recognition, economic benefits and the blending of two families, to name a few, are other reasons that couples choose to marry. Denying same-sex couples the right to marry perpetuates the view that they are not capable of forming loving and lasting relationships, and that same-sex relationships are not worthy of the same respect and recognition of opposite-sex relationships." </blockquote></blockquote>

===Child support===

Regardless of your sexual orientation or identity, if you qualify as a ''parent'' for the purposes of the ''[[Family Law Act]]'', or the child qualifies as a ''child of the marriage'' for the purposes of the ''[[Divorce Act]]'', child support will be payable by the person who has the child for the least amount of time to the person who has the child for the most amount of time. Child support will be payable in the amount specified under the [[Child Support Guidelines]] unless the parent paying support, the ''payor'', fits into one of a very narrow range of exceptions:

*payment of support in the usual amount would be too much and cause "undue hardship" (the recipient of support may ask for an increased amount of support if payment of the usual amount would be too little and also cause undue hardship),
*the payor is responsible for the care and control of the child for more than 40% of the child's time,
*the child is 19 or older,
*the payor earns more than $150,000 per year, and payment of the table amount would result in an unfair windfall to the recipient, or
*other persons are also under a legal obligation to care for the child.

The only one of these exceptions that has any special relevance to same-sex couples is the last: where another person is also under an obligation to support the child. Assuming there is another parent in the picture apart from the other party to the relationship, that other parent will also be obliged to contribute to the support of the child. In ''Murphy v. Laurence'', the biological mother of a child was entitled to receive child support from both her former lesbian partner and the child's father.

===Divorce===

The ''[[Divorce Act]]'' no longer requires spouses to be of opposite genders to qualify for a divorce order.

==Issues affecting transgender and transsexual people==

To be brutally frank, the jury is still out on how family law impacts on the trans community. Right now, the laws have slipped into a comfortable understanding of ''the same or opposite genders'' and only accommodates people on the spectrum in between with difficulty. While bisexuality is as close to a non-issue in this context as there can be, transgender and transsexual people may well encounter difficulty in dealing with family law matters. This discussion offers only a gloss on some of the issues affecting this community.

If you have a family law problem and your orientation, gender, or identity becomes an issue, contact a lawyer known to be sympathetic or one who is an activist on the issue, such as barbara findlay QC, or another lawyer she can refer you to.

===Marriage===

As a result of the 2005 federal ''[http://canlii.ca/t/7w02 Civil Marriage Act]'', gender is irrelevant in determining the ability of a couple to marry.

===Children===

Those who have discovered another self-identity during a relationship may find their new identities hotly at issue in the event that the living arrangements for any children must be decided in court. The problem here is that while on-screen entertainment like "Will and Grace," "The Birdcage," "The L Word", or even "Brooklyn Nine-Nine" have made homosexuality something commonly understood and empathized with, few shows have popularized and explained the experience of the transgender community.

It can be very difficult for people, including ex-partners, to understand transgender issues, and this problem is especially acute in courtroom discussions about the care and control of children. Often the most important task is to demystify the person's self-identity and explain why their self-identity has no impact at all on their ability to parent, nor on the expected outcomes for the children.

On the bright side, the first reported case I was able to find in researching transgender and transsexual family law issues dealt fairly positively with the subject. (This research was a few years ago, and some cases have cited it since.) In ''[http://canlii.ca/t/fvzvc Forrester v. Saliba]'', 2000 CanLII 28722 ONCJ, a 2000 decision of the Ontario Court of Justice, the father of the child had begun the process of transitioning to female following the pronouncement of a consent order which provided that the parents would have joint custody of the child. The mother brought an application to vary the order to obtain sole custody of the child based on the stress and depression that affected the parents since the commencement of the transitioning process. Here are some interesting excerpts from the decision:

<blockquote>"I indicated at the beginning of the trial to both parties and their counsel that the [father's] transsexuality, in itself, without further evidence, would not constitute a material change in circumstances [necessary to consider varying a consent order], nor would it be considered a negative factor in a custody determination."</blockquote>
<blockquote>"The entire focus of this trial has been upon the consequences of the [father's] transgendering, the mental health issues that have arisen as a result of the [father's] transgendering process, and the [mother's] mental health issues. The evidence discloses that throughout all these problems suffered by the parties, the child Christine has remained happy and healthy and continues to enjoy a positive relationship with both parties. ... It appears from the evidence that Christine is a very well-adjusted, happy, healthy little girl, who in her own way has been able to accept the changes in her father and continues to enjoy a healthy relationship with her father, now a woman psychologically, as a person and a loving and caring human being."</blockquote>

The mother's application was dismissed.

In a more recent case here in British Columbia, ''[http://canlii.ca/t/gpphw K. (N.) v H. (A.)]'', 2016 BCSC 744, the larger dispute centered around the parents’ disagreement over gender transition therapy involving their 11 year old child. The mother supported the transition whereas the father did not. At issue before Justice Skolrood in that proceeding was whether or not the child was entitled to an independent voice in the litigation. The court held that this was appropriate, saying at paragraphs 39-40:

<blockquote>"I am satisfied that J.K. should be permitted to participate directly in this proceeding. To my mind, this case is different from the many family law cases that come before the courts in which the views of the child are sought on issues relating to guardianship and parenting time, and where those views are typically presented through third party reports.</blockquote>

<blockquote>"I agree with Ms. findlay's characterization that this case is really about J.K. and his role in determining his own future. In my view, these issues cannot be properly considered without J.K.’s direct participation, nor would it be fair to J.K. for the court to attempt to do so."</blockquote>

In ''A.B. v. C.D. and E.F.'', 2019 BCSC 254, the court allowed the 14-year-old child’s application to undergo gender transition treatment. The father, C.D., opposed the application. A major issue was whether the child, A.B., fully understood the implications of his decision.

In allowing the application of the child, A.B., the court stated as follows:

<blockquote>"Having considered the form of consent signed by A.B. and the evidence of [his psychologist, his physician, and his psychiatrist] I am satisfied that A.B.'s health care providers have explained to A.B. the nature and consequences as well as the foreseeable benefits and risks of the treatment recommended by them, that A.B. understands those explanations and the health care providers have concluded that such health care is in A.B.'s best interests."</blockquote>

A.B.'s case has been before the Court of Appeal of BC three times since the 2019 decision by the Supreme Court. In ''A.B. v. C.D.'', [https://www.canlii.org/en/bc/bcca/doc/2020/2020bcca11/2020bcca11.html?resultIndex=1 2020 BCCA 11], the Court of Appeal, in essence, upheld A.B.'s right to consent to gender transition treatment. Of note is that the Court did not take issue with the lower court's ruling regarding family violence. A.B.'s father kept referring to A.B. using female pronouns and using his birth name. The Supreme Court ruled that this behaviour constituted family violence. The Court of Appeal thought so too.

===Child support===

Transgender issues have no impact at all on the determination of child support. If you are a parent or qualify as a stepparent within the meaning of the applicable legislation, child support will be payable or receivable. End of story.

===Spousal support===

The simple fact of financial dependence, which would ordinarily have to be established to support a claim to spousal support, should be sufficient to prove an entitlement to support. If, however, the cause of the dependence or inability to be independent relates to or stems from the transgender issue, be prepared to face some resistance. The problem will lie in establishing the legitimacy of the financial dependency arising from the transgender issue; in other words, the problem will lie in convincing the judge dealing with the matter, if the matter has to go to court, that the issue you are dealing with isn't one of choice or a voluntary financial dependence.

===Divorce===

The ''[[Divorce Act]]'' no longer requires spouses to be of opposite genders, whether at the end of their marriage or at its beginning, to qualify for a divorce order.

==Resources and links==

===Legislation===

* ''[http://canlii.ca/t/8q7l Charter of Rights and Freedoms]''
* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* ''[http://canlii.ca/t/7w02 Civil Marriage Act]''

===Links===

*[http://www.clicklaw.bc.ca/global/search?k=trans Clicklaw resources on trans issues]

{{REVIEWED | reviewer = [[Todd Bell]], January 2020}}

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Talk:Parenting Coordination

2026-06-03T18:34:37Z

Nate Russell: Removing full page draft from a mere discussion page

Overlapping Legal Issues and Family Law

2026-06-03T18:30:36Z

Nate Russell: Categorizing for archive

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[[Naming and Changes of Name]]{{·}}[[Wills and Estates Issues in Family Law]]{{·}}[[Conflict of Laws]]
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{{JP Boyd on Family Law TOC|expanded = overlapping}}{{JPBOFL Editor Badge
|ChapterEditors = [[Nate Russell]], [[Bob Mostar]] and [[Mark Norton]]
}}

Parenting arrangements, support payments, and the division of property are the everyday issues that crop up when a relationship breaks down. A whole host of other legal issues fall under the family law umbrella, however. And it's a big umbrella. For example, many financial, insurance, and tax planning issues arise when new relationships are formed or existing ones end. The ripples of family law unrest are drivers in business and shareholders agreements. Even the textbooks on animal law consider how pets are dealt with when spouses split up. And on it goes, deep into the legal debates and constitutional questions surrounding religious freedom and family law, which illustrate the historical connection between religion, families as a concept, and civil society. Most of this rich variety and overlap is not covered by this resource.

This chapter takes a look at a selection of relatively common legal questions that are also family law problems. It talks about issues affecting:

*your [[Naming and Changes of Name|legal rights relating to your name]], and when you can change your name (or change it back),
*the overlap between [[Wills and Estates Issues in Family Law|wills and estates law and family law]], and
*what happens [[Conflict of Laws Issues in Family Law|when laws from one place conflict with those of another]], such as when people and property are located in different legal jurisdictions.

Again, this is not a comprehensive list of all the overlapping issues someone with a family law problem might encounter.

==Resources and links==
===Resources===
* [https://www.clicklaw.bc.ca/helpmap/service/1009 Courthouse Libraries BC] operates 29 branches in courthouses around BC. All branches have public computers with legal databases essential for researching unique or overlapping legal issues, and the librarians staff a 1-800 number and an email service through which anyone in BC can ask a legal information question.

{{REVIEWED | reviewer = [[Mark Norton and Bob Mostar]], June 24, 2019}}

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How Do I Get Married in British Columbia?

2026-06-03T18:28:26Z

Nate Russell: /* Changing your name */

{{JP Boyd on Family Law How Do I TOC|expanded=marriage}}

==Get a marriage licence==

First, you have to get a marriage licence. Either you or your future spouse must apply in person to the marriage licence issuer in your neighbourhood. (The [https://www2.gov.bc.ca/gov/content/life-events/marriage Vital Statistics Agency] offers a convenient [https://www.health.gov.bc.ca/cgi-bin/vs/marriage_offices.cgi search tool] to help you find a marriage licence issuer near you.) You'll have to provide government-issued photo identification, pay a fee of about $100, and supply the following information:

*Your full name, address, date of birth, and place of birth.
*Your future spouse's full name, date of birth, and place of birth.
*Your present marital status (never married, widowed, divorced).
*Your future spouse's present marital status.

If you or your future spouse were divorced within the last 31 days, you'll also have to provide:

*Proof of your divorce (either the divorce order or a [[How Do I Get my Certificate of Divorce?|certificate of divorce]]).

If you or your future spouse are younger than age 19, you'll also have to have the consent of the parent of the minor. The marriage licence issuer will have the forms you'll need. No one under the age of 16 can be married without a court order.

You don't have to be a resident of British Columbia to get married here. Blood tests are not required.

Remember that a marriage licence is only valid for three months from the date of issue. If your marriage ceremony doesn't happen within those three months, you'll have to reapply for another one.

==Get married==

Next, you need to get married! There are two types of marriage ceremony to choose from, civil and religious. Civil ceremonies are performed by marriage commissioners, officials registered with the Vital Statistics Agency. Religious ceremonies are performed by religious officials such as ministers, rabbis, imams, priests, and so forth; however, the religious official must be registered with the Vital Statistics Agency for the marriage to be valid.

Whichever sort of marriage ceremony you're planning, your marriage must be witnessed by two people who are at least 19 years of age or older.

If you're planning on a civil ceremony, you'll need to book your marriage commissioner right away. It may be extraordinarily difficult to track someone down who's available at the last minute. The fee your commissioner will charge is $75, plus other costs for expenses like parking and transportation. The nice folks at the [http://www.vs.gov.bc.ca Vital Statistics Agency] have a [http://www.vs.gov.bc.ca/cgi-bin/search/marriage_commissioners.cgi search tool] to help you find a marriage commissioner.

==Register your marriage==

The marriage commissioner or religious official who conducts the ceremony will help you complete a Marriage Registration Form. This form must be sent, within 48 hours of the ceremony, to the Vital Statistics Agency for registration. The person who conducts your ceremony will normally take care of this for you.

The Vital Statistics Agency will send you a spectacularly ugly certificate of marriage, which will look something like this:
[[File:Marriage_certificate.jpg|center|British Columbia certificate of marriage]]
This isn't something you're going to want to hang on the wall. It is, however, something you should hang onto, in case you need proof of your marriage or want to apply for a divorce.

The person who conducts your ceremony may provide you with a document confirming your marriage. This can be used to prove that you are married before your marriage is registered with the Vital Statistics Agency and you receive your government-issued marriage certificate.

==Changing your name==

It is not necessary that either you or your spouse change your surnames after marriage, but it is your right to change your surname to your spouse's surname if you wish. There will be no official change of name — or an amendment to your birth certificate, for that matter — but it is perfectly legal to use your spouse's surname without an official name change.

If you want a legal change of name, you must apply to change your name through the Vital Statistics Agency under the ''Name Act''. However, as long as you don't legally change your name, you can revert to your old surname whenever you wish.

If you have decided to have a hyphenated surname following your marriage, you must apply for a legal change of name or you will not be able to obtain ID in the new name.

You can find out more about changing your name on the page [[How Do I Change My Name after Marriage or Divorce?]].

==For more information==

You can find out more about the laws on marriage in the chapter [[Family Relationships]], within the section [[Marriage & Married Spouses]].

{{REVIEWED | reviewer = [[Yun Chen]], 24 October 2023}}

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Newcomers to Canada and Family Law

2026-06-03T18:24:28Z

Nate Russell: Categorizing for archive

{{JP Boyd on Family Law TOC|expanded = specific}}{{JPBOFL Editor Badge
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Family law problems involving immigration law usually happen because a relationship breaks down after a spouse or common-law partner has been sponsored to come to Canada. Below is an overview of some overlapping legal issues that may result. If you are a newcomer to Canada with a family law concern, you should seek a lawyer (or an advocate or duty counsel) who is familiar with both family law and the rights and obligations around immigration and sponsorship. Several organizations specialize in supporting newcomers in this way. [https://www.clicklaw.bc.ca/helpmap/service/1013 MOSAIC] provides information, summary advice, referrals and legal representation to low-income immigrants and refugees. The Legal Services Society also publishes a useful booklet called ''[https://www.clicklaw.bc.ca/resource/1073 Sponsorship Breakdown]''.

Let's look at some differences in concepts and language between ''family law'' and ''immigration law'' to start.

===Use of the term "common-law" or "spouse"===

Generally speaking, the term "common-law spouse" or "common-law partner" is not useful when discussing rights and obligations under provincial legislation. The ''Family Law Act'' in BC does not use the term "common-law." The act defines ''spouse'' under section 3(1), and the definition broadly captures both married people and unmarried people who live in a "marriage-like" relationship—if that relationship has continued for at least ''two years''.

For federal laws, the term and even the criteria are quite different. The [http://canlii.ca/t/7xsp Immigration and Refugee Protection Regulations] defines "common-law partner":
<blockquote><tt>common-law partner means, in relation to a person, an individual who is cohabiting with the person in a conjugal relationship, having so cohabited for a period of at least one year.</tt></blockquote>

Notice the time difference? It's important to remember that qualifying as a common-law spouse under Canadian immigration law does not necessarily mean you qualify as an unmarried spouse for the purposes of ''Family Law Act''. If you have lived together for over one year but less than two, are not married, and your relationship ends, you may be a ''common-law spouse'' under federal law, but not a spouse of any kind under the provincial act.

===Best interests of the child===

Section 37(1) of the ''[[Family Law Act]]'' states that best interests of the child is the only consideration when making decisions about guardianship, parenting arrangements, and contact with the child.

Section 3(1)(d) of the ''[[http://canlii.ca/t/7vwq Immigration and Refugee Protection Act]]'' states that one of the objectives of the act is "to see that families are reunited in Canada." A very important case for immigration law, ''[http://canlii.ca/t/1fqlk Baker v. Canada (Minister of Citizenship and Immigration)]'', [1999] 2 SCR 817 says that "the decision-maker should consider children's best interests as an important factor, give them substantial weight, and be alert, alive and sensitive to them."

===Sponsor's obligations===

Immigration rules state that a sponsor must commit to providing for their spouse's (or common-law partner's) needs and the needs of any dependent children. This commitment is actually made to the government, and is called an ''undertaking''. The undertaking continues even if the relationship between a sponsor and their spouse or other dependent breaks down. If a sponsor and their spouse separate, and the sponsor will not or cannot support the spouse voluntarily, the spouse may apply for welfare or other government benefits to support themselves and any dependent children. If the government (whether provincial or federal) supports the spouse by paying benefits (such as welfare), the government will then turn to the sponsor and require them to pay back the cost of those benefits. Each undertaking lasts for a period of time called a ''length of undertaking'', during which time the sponsor is liable to support the spouse and repay the government for any support it provides the spouse. See [http://www.cic.gc.ca/english/helpcentre/answer.asp?qnum=1355 the CIC website] for a table showing the different lengths of undertaking, depending on who is sponsored.

''Family law'' and ''immigration law'' support obligations are different. Where an undertaking is an obligation between a sponsor and the government, a support obligation in family law is between the spouses as individuals. To get a sponsor to pay spousal or child support under family law, the immigrant spouse must claim it the same way any Canadian resident or citizen would — including applying to court if need be.

One family law case from BC Supreme Court, ''[http://canlii.ca/t/1q1m5 Aujla v. Aujla]'', 2004 BCSC 1566, shows that a sponsor's obligations under a sponsorship agreement and undertaking, are separate from the sponsor's obligation to pay spousal support based on family law legislation. If you were sponsored, have dependents, and your relationship with the sponsor has now ended, talk to a lawyer to discuss your entitlement to spousal or child support, or consult some of the resources mentioned here.

A sponsor's obligations could extend to stepchildren. For stepparents, both family law and immigration law outline obligations to provide for sponsored dependents in some way.

As discussed in the chapter on [[Child Support]], under the heading "Stepparents and child support", section 147(4) of the''[[Family Law Act]]'' imposes a duty on stepparents in some cases to pay child support.

If your spouse sponsored you and your children to come to Canada, and if they helped support that child for at least one year, then you may be able to get a child support order under the ''Family Law Act''. Be aware of the one-year limitation period for making a claim, noted in section 147(4)(b).

===Sponsorship application===

If you leave your sponsoring spouse while the sponsorship application is still in progress, you must inform Immigration, Refugees and Citizenship Canada of this change in your application. Failure to do so constitutes misrepresentation, which is a ground for refusal of your Permanent Residence application. At this point, you may not be able to proceed with your sponsorship application for Permanent Residence, but there may be other options available to you that allow you to stay in Canada. This could include a Permanent Resident application on humanitarian and compassionate grounds. This is especially the case if you leave your partner due to abuse in the relationship. Contact the [https://lss.bc.ca/legal_aid/immigrationProblems Legal Services Society], or other community resources like [https://www.clicklaw.bc.ca/helpmap/service/1013 MOSAIC], to see if you qualify for a free lawyer.

You should also inform IRCC of your change of address, so that they may continue to correspond with you after you leave your spouse’s residence.

===Permanent resident spouses===

In October 2012, the government of Canada introduced a rule that most sponsored spouses were under ''conditional permanent residency status'' for the first two years. This condition was removed on April 28, 2017, when the government introduced [http://www.cic.gc.ca/english/department/media/notices/2017-04-28.asp a rule] that sponsored spouses or common-law partners of Canadian citizens and permanent residents no longer need to live with their sponsor in order to keep their permanent resident status.

If your sponsor is abusive, you no longer need to worry about the threat of deportation or potential loss of status. Your residency status is no longer contingent on the length of the relationship. That being said, the government of Canada will still continue to investigate complaints about marriage fraud (where someone marries a Canadian citizen or permanent resident for the sole purpose of gaining entry into Canada). This means that if you leave your spouse, there is a possibility that he or she may file a complaint of marriage fraud with IRCC. IRCC will then send you a letter with a 30 day deadline to respond to their concerns and tell your side of the story. If that happens, you should seek legal advice. You could also write to the IRCC officer and ask for an extension on the response date. This will buy you some time to find a lawyer. If you do not receive a positive response from the officer, then you must respond by the date listed on the letter to avoid a removal order.

No matter what, your spouse may still remain responsible for supporting you and your children. If you are married or qualify as an unmarried spouse under the ''[[Family Law Act]]'' you may also be entitled to claim a share in the family property. See the chapter on [[Property & Debt in Family Law Matters|Property & Debt]].

So long as your sponsorship is still within the term of undertaking (discussed above), your sponsor's obligation to support you continues. You will not lose your permanent resident status if you have to apply for welfare. If you do apply for welfare, keep in mind that you will be expected to show that you tried to obtain support from your spouse. If your relationship ended because of abuse, you may not have to try to get support from your spouse. The booklet on ''Sponsorship Breakdown'' contains good information on this topic.

===Non-resident spouses===

If you do not have permanent resident status, you must seek legal advice and help right away, since the breakdown of your relationship with your sponsor may affect your ability to remain in Canada (if that is in fact what you would like to do). There are a number of agencies that help immigrants and refugees. See the booklet ''[http://www.clicklaw.bc.ca/resource/1073 Sponsorship Breakdown]'' for a list of community workers and settlement agencies.

===Links===
*[http://www.clicklaw.bc.ca/resource/1073 Legal Services Society's booklet ''Sponsorship Breakdown'']
*[http://www.cic.gc.ca/english/helpcentre/answer.asp?qnum=1355 Immigration, Refugees and Citizenship Canada's Help Centre "How long am I financially responsible for the family member or relative I sponsor?"]
*[https://www.clicklaw.bc.ca/helpmap/service/1013 MOSAIC's Legal Advocacy Program]
*[https://lss.bc.ca/legal_aid/immigrationProblems Legal Services Society's Legal Aid website "Immigration problems"]

{{REVIEWED | reviewer = [[Taruna Agrawal]], May 24, 2019}}

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Indigenous Families

2026-06-03T18:21:28Z

Nate Russell: Categorizing for archive

{{JP Boyd on Family Law TOC|expanded = specific}}{{JPBOFL Editor Badge
|ChapterEditors = [[Rhaea Bailey]]
}}
{{Clicklawbadge
|resourcetype = many resources on
|link = [https://www.clicklaw.bc.ca/global/search?f=Aboriginal Aboriginal law topics]
}}Aboriginal people who are dealing with a family law problem may face some particular issues. Some of them involve cultural concerns while others stem from the federal government's ''[http://canlii.ca/t/7vhk Indian Act]''. This section addresses these issues briefly. However, for more complete information I strongly encourage you to consult with a family law lawyer who has expertise in Aboriginal legal issues.

This section looks at issues specific to Aboriginal people that relate to the care and control of children, calculating the amount of child and spousal support payments, and dividing family property and family debt.

==The care of children==

All of the usual factors that govern the court's consideration of issues involving the care and control of children apply to the care and control of Aboriginal children, whether the child's ancestry comes from one parent or from both. In addition to the usual factors, however, the court will also look at a few other issues related to the child's Aboriginal heritage.

===Custody under the ''Divorce Act''===

In addition to the usual factors governing an award of child custody under section 16 of the ''[[Divorce Act]]'', the court must also take into consideration a child's Aboriginal heritage when making a decision about custody. This is not expressly set out anywhere in the legislation, but past cases have decided that a child's Aboriginal heritage should be considered as part of the general ''best interests of the child'' test.

This principle was established by the Supreme Court of Canada in ''[http://canlii.ca/t/1fqnq D.H. v. D.M.]'', [1999] 1 S.C.R. 761. The court said that "the trial judge had given careful attention to the aboriginal ancestry of [the child], together with all the other factors relevant to [the child's] best interests, and that there was no error in his decision".

In another ruling, ''[http://canlii.ca/t/51z8 Van de Perre v. Edwards]'', 2001 SCC 60, the Supreme Court of Canada concluded that:
* racial identity is but one factor that may be considered in determining someone's personal identity,
* the relevancy of this factor depends on the context, and
* all factors must be considered pragmatically, as different situations and different philosophies require an individual analysis on the basis of reliable evidence.

===Guardianship under the ''Family Law Act''===

In addition to the usual rules dealing with guardianship under the ''[[Family Law Act]]'', members of Canada's First Nations are subject to an additional and unwelcome burden under the federal ''[http://canlii.ca/t/7vhk Indian Act]'', which allows the Minister of Aboriginal Affairs and Northern Development to appoint a person to be the guardian of the child. You should expect that this authority will only be exercised when both parents die without leaving a will that passes guardianship to some other person, or when there are serious concerns about the parents' ability to properly care for the child.

Where there is an application for guardianship of a treaty First Nation child in a family law court proceeding, under sections 208 and 209 of the ''[[Family Law Act]]'':

*the treat First Nation's government must be served with notice of the application,
*the treaty First Nation government has standing in the court proceeding, and
*the court must consider the laws and customs of the treaty First Nation in making its decision.

(To have ''standing'' means, in legal terms, that the court recognizes your right to be heard and bring claims based upon your stake in the outcome of a legal proceeding.)

Section 208 applies to Nisga'a children; section 209 deals with other treaty First Nation children and says this:

<blockquote><tt>(1) If an application for guardianship is made respecting a treaty first nation child and the final agreement of the treaty first nation to which the child belongs provides for it, the treaty first nation</tt></blockquote>
<blockquote><blockquote><tt>(a) must be served with notice of the proceeding, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) has standing in the proceeding.</tt></blockquote></blockquote>
<blockquote><tt>(2) In a proceeding to which subsection (1) applies, the court must consider, in addition to any other matters it is required by law to consider and subject to any limits or conditions set out in the final agreement, any evidence or representations respecting the laws and customs of the treaty first nation.</tt></blockquote>

Section 29.1 of the provincial ''[http://canlii.ca/t/844q Interpretation Act]'' defines the term "treaty first nation". The nations that currently meet this definition are the Tsawwassen First Nation and the Maa-nulth First Nations.

Remember, the only time an application must be made for guardianship is where a person, including a parent:
* does not meet the general conditions for being a child's guardian under section 39 of the ''[[Family Law Act]]'', and
* has not been appointed as a guardian by a guardian's will or a Form 2 Appointment under the [http://canlii.ca/t/8rdx Family Law Act Regulation].

===Access, parenting time and contact===

The concerns around a child's Aboriginal ancestry are the same whether determining ''custody'' under the ''[[Divorce Act]]'' or determining ''access, parenting time and contact'' under the ''[[Family Law Act]]''. This is especially important where one of the parents is not Aboriginal.

Aboriginal children have the right to keep a connection to their culture and heritage. This may influence the parenting time schedule or contact that an Aboriginal parent has, and affect where a non-Aboriginal parent may exercise parenting time or contact. The fact that a child has Aboriginal ancestry may also result in the court extending contact to a third party, such as an elder or another family member who shares the Aboriginal ancestry with the child, and who will keep the child in touch with their culture.

If a non-Aboriginal parent or a non-band member parent tries to exercise access to a child living on a reserve, the band may restrict that parent's ability to go onto the reserve to see the child. While this doesn't happen a great deal, the usual solution is for the parent trying to exercise access to ensure that the access order or agreement requires the other parent to take the child off the reserve for access visits.

==Child support and spousal support==

Exactly the same rules apply to Aboriginal parents as apply to non-Aboriginal parents when it comes to paying child support and spousal support.

There is, however, one significant issue about the calculation of income for the purposes of support calculations. Aboriginal people who qualify as ''status Indians'' under the federal ''Indian Act'' and who work on a reserve may not be required to pay income tax. Because the [[Child Support Guidelines]] are based on the assumption that the payor of child support is also paying income tax, the standard method of calculating income under the Guidelines would give a distorted result for payors who work on a reserve and do not pay income tax.

Under section 19(1)(b) of the Guidelines, a tax-exempt payor may have their income ''grossed up'' to account for this tax advantage. The grossing-up process essentially involves figuring out how much money a taxed payor would have to earn to have the same amount as a tax-exempt person's income, once income taxes are taken off.

Think of it like this:

<blockquote>Say a taxed payor makes a gross income of $40,000 per year. This is the taxed payor's income for the purposes of the Guidelines. Now, the taxed payor also pays taxes on that income, so their net income might really be about $30,000.</blockquote>
<blockquote>A tax-exempt payor making $40,000, on the other hand, would actually keep the whole $40,000 since no income taxes are paid on the $40,000. This, according to the Guidelines, is unfair, and the tax-exempt payor's income should be re-calculated upwards.</blockquote>
<blockquote>Under the Guidelines, the tax-exempt payor must calculate support payments using a higher income figure than they are actually paid. The higher income figure would be whatever a taxed payor would need to earn to have an after-tax income of $40,000. Say a taxed payor would have to earn $55,000 to have a net income of $40,000. In this example, the tax-exempt payor's income is then set at $55,000 for the purposes of calculating child support using the Guidelines.</blockquote>

Grossing-up a payor's income is intended to ensure that the children benefit from the amount of support available based on a gross income equivalent to what a taxed payor would have to earn to have the same net income.

The same sort of grossing-up process will apply when determining how much spousal support a tax-exempt payor should have to pay, particularly if the amount payable is being determined using the Spousal Support Advisory Guidelines. The Advisory Guidelines use the same approach to calculate income as the Child Support Guidelines.

==Family property and family debt==

Dividing property can be a bit of a problem for Aboriginal spouses when real property on a reserve is involved.

In a nutshell, the ''[http://laws-lois.justice.gc.ca/eng/Const/index.html Constitution Act]'' gives the federal government exclusive authority over laws relating to First Nations property and reserve lands. This means the provincial governments cannot pass laws dealing with First Nations property or their lands. Accordingly, in British Columbia, the ''[[Family Law Act]]'' can't be used to divide an interest in real property on reserve lands. Making matters worse, people living on a reserve generally don't own their property the way that off-reserve property can be owned. The only kind of ownership individuals on reserve lands can have is a Certificate of Possession that gives the owner the right to occupy the land, but not the legal title to that land.

If a treaty First Nation has negotiated the right to dispose of reserve lands, the rules are a bit different and the court may be able to make orders about real property on reserve lands under the ''[[Family Law Act]]''. Section 210 of the ''[[Family Law Act]]'' says this:

<blockquote><tt>(1) If provided for by the final agreement of a treaty first nation, the treaty first nation has standing in a proceeding under Part 5, in which</tt></blockquote>
<blockquote><blockquote><tt>(a) the treaty first nation is entitled under its final agreement to make laws restricting alienation of its treaty lands,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) a parcel of its treaty lands is at issue, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) at least one spouse is a treaty first nation member of the treaty first nation.</tt></blockquote></blockquote>
<blockquote><tt>(2) In a proceeding to which subsection (1) applies, the Supreme Court must consider, among other matters, any evidence or representations respecting the applicable treaty first nation's laws restricting alienation of its treaty lands.</tt></blockquote>
<blockquote><tt>(3) The participation of a treaty first nation in a proceeding to which subsection (1) applies must be in accordance with the Supreme Court Family Rules and does not affect the court's ability to control the court's process.</tt></blockquote>

These are the general rules about family property and the court's authority under the ''[[Family Law Act]]'':

*'''Financial Assets:''' Cash, bank accounts, stocks, bonds, and whatnot are called ''moveable property''. The court can deal with these sorts of assets if they are not situated on reserve lands.
*'''Real Property:''' Property and structures on reserve lands are ''immovable property''. The court cannot order the transfer of immovable property, but it can deal with other assets, like moveable property, to compensate a spouse for an interest in property which the court cannot deal with.
*'''Certificates of Possession:''' The court generally cannot deal with real property located on a reserve, however, the bulk of real property located within reserve lands is not "owned" the way a house off-reserve can be. People holding real property on reserve lands are generally only allowed to have and use the land by way of a Certificate of Possession. Since Certificates of Possession are dispensed under the authority of the federal government, the court cannot make an order for the transfer of the Certificate under the ''[[Family Law Act]]''. The spouse who has the Certificate will usually have to compensate the other spouse for their interest in the Certificate, providing that the Certificate can be shown to have a value.
*'''Exclusive Use of Property:''' Section 90 of the ''[[Family Law Act]]'' allows someone to apply for an order giving them exclusive use of the family home, but this section does not apply to family homes located on reserve lands.

===''Family Homes on Reserves and Matrimonial Interests or Rights Act''===

In December 2013, the Federal Government proclaimed a new law, the ''Family Homes on Reserves and Matrimonial Interests or Rights Act''. This act finally provided a process for dealing with family homes on a reserve. It applies:
* during a relationship between "married spouses" or "common-law partners" (as the federal act refers to unmarried spouses),
* after that relationship breaks down, or
* when one of them dies.

The act is divided into two parts. The first part of the act provides a mechanism for First Nations to enact laws respecting homes on a reserve. This part of the act has been in force since December 16, 2013.

The second part of the act came into force a year later on December 16, 2014, and provides rules to deal with homes on a reserve until such time as a First Nation opts to enact its own laws to deal with homes on its reserve.

Generally, this law applies to married couples and common-law spouses living on a reserve, where at least one of them is a First Nation band member or First Nation person entitled to be a band member, or a status Indian whose First Nation has not opted to take over responsibility for the management and control of their reserve lands and resources under the ''[http://canlii.ca/t/7vvx First Nations Land Management Act]'' or manage their lands pursuant to a self-government agreement.

====Division of the value and interests or rights to the family home====

The act sets out that spouses or common-law partners are entitled to one half of the value of the interest or right that either of them holds in the family home in the event of relationship breakdown or death of one of the spouses.

Sections 28 and 34 of the act outline the details on how value of the family home is to be determined. It takes into consideration the appreciation in value that may have occurred during the relationship, contributions made by each spouse, and any debts or liabilities; the value of the family home and is typically based on the amount that a buyer would reasonably be expected to pay for comparable interests.

====Emergency protection orders====

While the act provides that ''designated'' judges have the power to make emergency protection orders, the Province of British Columbia has decided not to designate any judges under the act at this time. Currently, the only protection orders available are those made under section 183 of the ''[[Family Law Act]]'', which are available to people both on and off a reserve. See the chapter on [[Family Violence Overview|Family Violence]] for a discussion of protection orders and other laws to protect people at risk of domestic violence.

====Death of a spouse or common-law partner====

Section 14 of the act provides that a spouse or common-law partner who does not hold a right or interest in the family home on the reserve can stay in the home for a period of 180 days after the day their spouse or common-law partner died. The surviving spouse does not need to be Aboriginal to benefit from this section.

==Getting legal help==

This section is only a brief sketch of some of the special issues that Aboriginal people might have to deal with in the course of a family law dispute. If you have a problem touching on one of these areas, you should get advice from a lawyer.

You may be able to get legal help from the Legal Services Society's Aboriginal band outreach program or an Aboriginal community legal worker. Look for these agencies on [http://www.clicklaw.bc.ca/helpmap/search?k=aboriginal& www.clicklaw.ca] using the HelpMap feature to find help near to where you are.

==Resources and links==
===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* ''[http://canlii.ca/t/7vhk Indian Act]''
* ''[http://canlii.ca/t/844q Interpretation Act]''
* [http://canlii.ca/t/80mh Child Support Guidelines]
* [http://laws-lois.justice.gc.ca/eng/Const/index.html ''Constitution Act, 1867'' and ''Constitution Act, 1982'' (consolidation)]
* ''[http://canlii.ca/t/8rzj Family Homes on Reserves and Matrimonial Interests or Rights Act]''

===Documents===

* [http://www.justice.gc.ca/eng/fl-df/spousal-epoux/ssag-ldfpae.html Spousal Support Advisory Guidelines]

===Links===

* [http://aboriginal.legalaid.bc.ca/ Legal Services Society's website "Aboriginal Legal Aid in BC"]
* [https://www.clicklaw.bc.ca/global/search?so=r&f=Aboriginal Clicklaw Resources and Common Questions on Aboriginal Law]
* [http://www.aadnc-aandc.gc.ca/eng/1100100031292/1100100031293 Nisga'a Final Agreement and Background Information]
* [http://bit.ly/Maa-nulth First Nations of the Maa-Nulth Treaty]
* [http://bit.ly/Tsawwassen-Treaty Tsawwassen First Nation Treaty]
* [http://www.coemrp.ca Centre of Excellence for Matrimonial Real Property]

{{REVIEWED | reviewer = [[Rhaea Bailey]], November 29, 2018}}

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How Do I Find an Order or Another Court Document?

2026-06-03T18:18:40Z

Nate Russell: /* More information */

{{JP Boyd on Family Law How Do I TOC|expanded=other}}

==Introduction==
This information is for people who have already been to court and need to find a copy of a document prepared in that court proceeding, such as a court order or an affidavit.

==Locating court documents==
There is no central registry for court records and documents. To get a copy of a court document you must go to the particular court that dealt with your proceeding, since that's the court registry that will have your file. The BC Government has an [https://bit.ly/3QSrp7y online directory of courthouse locations with contact information].

==Restrictions on accessing family law files==
Overall, the Chief Judge of the Provincial Court and the Chief Justice of the Supreme Court have the primary responsibility for establishing policies on access to court records for their respective courts. The Court Services Branch of the Ministry of Attorney General, which runs the registries, is responsible for maintaining court records and following these policies. In general, these court records access policies aim to strike a balance between sometimes conflicting objectives:

* promoting transparency and the established rule that courts be open to the public,
* ensuring compliance with legislation that restricts disclosure in certain cases, and
* curtailing access as necessary:
** to protect social values of critical importance (for example the privacy of children),
** where the ends of justice would be subverted by disclosure, or
** where documents in the court file might be used for an improper purpose.

Due to their nature, family law proceedings are among the more restricted types of court files. Generally speaking, a family law proceeding is any case that involves:
* the ''[[Divorce Act]]''
* the ''[[Family Law Act]]''
* the ''Family Maintenance Enforcement Act''
* adoption proceedings,
* child protection proceedings, or anything under the ''Child, Family & Community Service Act'' (''CFCSA''), and
* ''Adult Guardianship Act'' proceedings.

For most family law proceedings, with the exception of adoption, child protection, or adult guardianship proceedings which are more tightly restricted, the public can learn basic ''docket information'' about a proceeding. Basic docket information includes the names of the parties, the file number, and where and when it was filed, but nothing more.

To read actual court files in a family law proceeding, you must be a party or a lawyer. And even then, there are limits and exceptions:
* In adoption proceedings, only the Director of Adoptions can search the file without an order of the court.
* For ''CFCSA'' proceedings, only the parties and their lawyers (not just any lawyer) can search the file without a court order.
* For any family law proceeding, only the parties and their lawyers (not just any lawyer) may search for ''court exhibits'' (things entered as evidence at trial or a hearing, but not things attached to an affidavit) without a court order.
* For transcripts of informal hearings (e.g. ''judicial case conferences'', ''case planning conferences'', and ''settlement conferences, as opposed to trials or chambers hearings), no one can get access without a court order.

Be sure to read the relevant records access policy for the court you're in. And make sure you bring some photo ID if you are a party and want to go to the registry to see your court file.

==Requesting copies and costs==
When visiting a court registry to request court documents, please be aware that you can look at the file without charge, but there is a fee for the registry staff to produce copies of documents in the court file. They usually accept payment in cash or debit card only. Credit cards are not typically accepted.

==Authorization for third-party document retrieval==
If you no longer live near the court that dealt with your proceeding, or if it is difficult for you to appear in person at the registry, it may be possible to have someone else pick it up for you. That person will need, at a minimum, a letter from you to show they are a "person authorized in writing by a party" so that they can search the court file and get copies of documents on your behalf. Check with the court registry to find out exactly what the registry staff need to see before they release your file to someone other than you.

==Understanding document availability==
There are a few other things that are good to know:
*the court will not let you take your file out of the courthouse,
*the court will not let you take a document from your file, but you can get photocopies made (be warned, copying is $1 per page in the Supreme Court),
*the court will only have files that are less than three or so years old available at hand,
*files that are three to seven years old may be in on-site storage, and there will be a delay of a few hours before the court can get the file for you, and
*files older than seven or so years are usually stored off-site, and there will be a delay of a few days while the file is retrieved.

Also note that court files older than 15 years are generally destroyed, with the exception of certain materials like court orders which are sent to BC Archives. For information about archived court documents read the handy online information page from Courthouse Libraries BC's ''Our Legal Knowledge Base'': [https://www.courthouselibrary.ca/how-we-can-help/our-legal-knowledge-base/court-documents-provincial-archives Court Documents at the Provincial Archives]

==More information==
For more information refer to:
* BC Supreme Court's [https://perma.cc/R29F-RYSE Policy on Access to the Court Record]
* BC Provincial Court's policy on [https://perma.cc/BRE8-P23X Access to Court Records]
* Courthouse Libraries BC's information pages on:
** [https://www.courthouselibrary.ca/how-we-can-help/our-legal-knowledge-base/can-i-access-court-files Can I Access Court Files?]
** [https://www.courthouselibrary.ca/how-we-can-help/our-legal-knowledge-base/court-documents-provincial-archives Court Documents at the Provincial Archives]

{{REVIEWED | reviewer = [[Negin Saberi]], September 15, 2023}}

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Guardianship, Parenting Arrangements and Contact

2026-06-03T18:09:02Z

Nate Russell: Categorizing for archive

{{JP Boyd on Family Law TOC|expanded = children}}{{JPBOFL Editor Badge
|ChapterEditors = [[Mary Mouat|Mary Mouat, QC]] and [[Samantha Rapoport]]
}}

Guardianship is a very old concept that goes back to the law of ancient Rome. Although guardianship can be hard to define, it's probably easiest to think of guardianship as the full bundle of rights and duties involved in caring for and raising a child. Historically, guardianship had two aspects: guardianship of the ''person'' and guardianship of the ''estate.'' Guardianship is still about parental authority. Parents can be, and usually are, the guardians of a child. Other people can be guardians too, including grandparents and stepparents, and the people who are made guardians by a guardian's will.

This section talks about who is presumed to be the guardian of a child, how people can apply to be appointed as the guardian of a child, and how people can become a guardian upon the death of a guardian. It also talks about the rights and obligations involved in being a guardian, parental responsibilities and parenting time, and about contact, which is the time that someone who isn't a guardian may have with a child.

==Introduction==

The provincial ''[[Family Law Act]]'' talks about the care of children in terms of ''guardians'' and the rights and duties they have for the children in their care. Most of the time a child's parents will be the child's guardians, but other people can be guardians too, including people who have a court order appointing them as guardians and people who are made guardians by a guardian's will.

Guardians raise the children in their care by exercising ''parental responsibilities'' in the best interests of the children. Parental responsibilities include deciding where a child goes to school, how a sick child is treated, whether a child is raised in a religion, and what sports the child plays after school. All of a child's guardians can exercise all parental responsibilities, or parental responsibilities can be divided between guardians, so that only one or more guardians have the right to make decisions about a particular issue. The concept ''joint guardianship'' is not incorporated into the ''Family Law Act''; however, many people, including judges, still use that language in error.

The time a guardian has with a child is called ''parenting time''. During parenting time, a guardian is responsible for the care of the child and has decision-making authority about day-to-day issues.

People who are not guardians, including parents who are not guardians, do not have parental responsibilities. Their time with a child is called ''contact''. A person who is not a guardian does not have decision-making authority when the child is in their care.

==Being a guardian and becoming a guardian==

Section 39 of the ''[[Family Law Act]]'' sets out the basic rules about who is presumed to be a guardian:

<blockquote><tt>(1) While a child's parents are living together and after the child's parents separate, each parent of the child is the child's guardian.</tt></blockquote>
<blockquote><tt>(2) Despite subsection (1), an agreement or order made after separation or when the parents are about to separate may provide that a parent is not the child's guardian.</tt></blockquote>
<blockquote><tt>(3) A parent who has never resided with his or her child is not the child's guardian unless one of the following applies:</tt></blockquote>
<blockquote><blockquote><tt>(a) section 30 applies and the person is a parent under that section;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the parent and all of the child's guardians make an agreement providing that the parent is also a guardian;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the parent regularly cares for the child.</tt></blockquote></blockquote>

Putting this another way, under section 39(1), parents who lived together for some period of time after their child was born (birth is when you become a parent) are presumed to be the guardians of their child during their relationship and after they separate.

Parents who didn't live together, on the other hand, aren't guardians unless:
*they are parents because of an assisted reproduction agreement,
*the parent and all of the child's guardians made an agreement that the parent would be a guardian, or
*the parent ''regularly cares'' for the child.

This chapter will discuss what ''regularly cares for'' actually means.

People who aren't guardians by the operation of section 39 of the ''Family Law Act'', including parents who aren't guardians, don't have the right to say how a child is raised or be involved in decision-making about the child. If a guardian plans on moving with the child, people who aren't guardians don't have the right to object. However, a person with an order for contact time must be notified of any proposed relocation (per section 66 of the ''Family Law Act'') and can apply for orders for the purpose of maintaining the relationship if the relocation is permitted (per section 67(2)(b) of the ''Family Law Act'').

Being a guardian means that you, along with any other guardians, have the obligation to make decisions on behalf of a child and the right to determine how the child is raised. Guardians are presumed to be entitled to manage children's property worth less than $10,000. A guardian can object if another guardian wants to move, with the child or without, and a guardian can make another person a guardian of the child in their will.

Most of the time, a parent will want to be a guardian of their child.

===Being a guardian===

People who are guardians by the operation of section 39 of the ''[[Family Law Act]]'', for example, if they are the child's parents who have lived together after the child is born, or a parent who has regularly cared for a child after the child's birth, don't need to obtain a court order or declaration stating that they are guardians. At law, a parent guardian should not need to ask the court for what they already have. This is really important because if you don't need to start a court proceeding to become a guardian, you shouldn't.

That said, it's unlikely that too many people are going to be aware of the presumptions of guardianship that section 39 talks about, and you may have problems dealing with people like doctors, teachers, police, and border guards if after separation, you do not have an order or agreement confirming that you are a guardian of your child (particularly if you do not share the last name of your child, or your name is not on the child's birth certificate).

Parents (generally fathers) who were not living with the other parent (generally the birth mother) at the time the child was born, but who believe that they are a guardian because they regularly care for their child will want some kind of confirmation that they are their child's guardian. This is when an agreement between the parents or a declaration by the court is useful. Obviously, regular care is a matter of opinion, and if there is a disagreement, some kind of decision or declaration will need to be made saying whether or not the parent who claims guardianship is in fact a guardian. See, for example, the decision, ''[http://canlii.ca/t/hqpn1 Doyle v. Handley]'', 2018 BCSC 293. Even though the father did not cohabit with the mother at the time of the child's birth, the court found him to be a guardian since he regularly cared for the child after the child was born.

===Becoming a guardian===

If you are not a guardian of a child and you want to become a guardian, your choices depend on your relationship to the child and the views of the child's other guardians:

*If you are a parent, you can become a guardian by an agreement with the child's guardians.
*If you are not a parent or if the other guardians aren't inclined to agree, you can only become a guardian by making an application to court to be made a guardian.
*You can also become a guardian, whether you're a parent or not, through a guardian's will or signed Form 2 Appointment when the guardian dies or becomes incapacitated.

If you are the new spouse or partner of a guardian of a child, you do ''not'' become a guardian of the child just because of your relationship with the guardian. If you would like to be the guardian of your stepchild, you should consider applying for an order appointing you as one of the child's guardians.

====Agreements====

If you are a parent, you can become a guardian under section 39(3)(b) of the ''[[Family Law Act]]'' by making an agreement with all of the child's other guardians. If one of the child's guardians disagrees, you will have to apply to court to be made a guardian.

Guardians cannot make an agreement appointing anyone other than a parent as a guardian.

====Applying to court====

Parents and other people can apply to be made a guardian under section 51 of the ''[[Family Law Act]]''. This section requires a person applying for guardianship, an ''applicant'', to provide certain information about why the order would be in the best interests of the child.

In the Provincial Court, Rule 18.1 of the [http://canlii.ca/t/85pb Provincial Court (Family) Rules] requires the applicant to provide a special affidavit in Form 34, sworn no more than seven days before it is filed in court, which talks about:

* the applicant's relationship with the child,
* the child's current living arrangements,
*the applicant's plan for the parenting of the child,
*any incidents of family violence that might affect the child, and
*the applicant's involvement with other court proceedings involving children under the ''Family Law Act'', the old ''Family Relations Act'', the ''[http://canlii.ca/t/51znt Child, Family and Community Service Act]'', and the ''[[Divorce Act]]''.

Rule 18.1 also requires that the applicant attach the following to the affidavit:
#a criminal records check,
#a British Columbia Ministry of Children and Family Development records check (''MCFD records check''), and
#a Protection Order Registry protection order records check (''Protection Order Registry records check''.
These records checks are added as exhibits to the affidavit. The records checks need to be dated within 60 days of the filing of the affidavit in Provincial Court.

For Supreme Court, Rule 15-2.1 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules] says much the same thing, and also requires a special affidavit with the same three records checks added as exhibits. [[Form F101 Affidavit - Section 51 | Form F101]] must be sworn not more than 28 days before a hearing where people will present arguments, or not more than seven days before filing if there will not be a hearing. The records checks must be dated no more than 60 days before the date of the hearing.

To obtain a criminal record check the applicant must attend at their local police station.

The forms required to obtain the ''child protection records check'' from the Ministry for Children and Family Development and the ''protection order registry check'' can be found online at https://www2.gov.bc.ca/gov/content/justice/courthouse-services/documents-forms-records/court-forms/prov-family-forms. The forms required are:
#'''Consent for Child Protection Record Check''': This form must be ''sworn'' or ''affirmed'' in front of a ''[https://www.courthouselibrary.ca/how-we-can-help/our-legal-knowledge-base/commissioner-taking-affidavits commissioner for taking affidavits]'' (e.g. a lawyer, notary, Supreme Court registrar). Submit the completed form to the court registry where the application is being made.
#'''Request for Protection Order Registry Search''': This form must also be submitted to the court registry where the application is being made.

You can find links to and examples of forms, including those listed above as well as Form 34 and Form F101, in [[Sample Provincial Court Forms (Family Law)|Provincial Court Forms & Examples]], [[Sample Supreme Court Forms (Family)|Supreme Court Forms & Examples]], and [[Other Forms and Documents (Family Law)]].

====Appointment by will or Form 2 Appointment====

Parents and other people can also be made a guardian if they have been appointed by a guardian as a ''standby guardian'' under section 55 of the ''[[Family Law Act]]'' or as a ''testamentary guardian'' under section 53 of the act. Guardians who have been appointed in this way don't need to make an application under section 51 and don't need to worry about filing the special affidavit or getting records checks done.

Standby guardians are appointed when the appointing guardian completes an Appointment of Standby or Testamentary Guardian in Form 2 of the [http://canlii.ca/t/8rdx Family Law Act Regulation]. Testamentary guardians can be appointed through Form 2 or in the appointing guardian's will. This is discussed in more detail below, in the discussion about the incapacity and death of a guardian.

==Parental responsibilities and parenting time==

People who are the guardians of a child have ''parental responsibilities'' for that child and their time with the child is called ''parenting time''. Together, parental responsibilities and parenting time are known as ''parenting arrangements''. Section 40 of the ''[[Family Law Act]]'' talks about who has parental responsibilities and parenting time and how they are shared:

<blockquote><tt>(1) Only a guardian may have parental responsibilities and parenting time with respect to a child.</tt></blockquote>
<blockquote><tt>(2) Unless an agreement or order allocates parental responsibilities differently, each child's guardian may exercise all parental responsibilities with respect to the child in consultation with the child's other guardians, unless consultation would be unreasonable or inappropriate in the circumstances.</tt></blockquote>
<blockquote><tt>(3) Parental responsibilities may be allocated under an agreement or order such that they may be exercised by</tt></blockquote>
<blockquote><blockquote><tt>(a) one or more guardians only, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) each guardian acting separately or all guardians acting together.</tt></blockquote></blockquote>
<blockquote><tt>(4) In the making of parenting arrangements, no particular arrangement is presumed to be in the best interests of the child and without limiting that, the following must not be presumed:</tt></blockquote>
<blockquote><blockquote><tt>(a) that parental responsibilities should be allocated equally among guardians;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) that parenting time should be shared equally among guardians;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) that decisions among guardians should be made separately or together.</tt></blockquote></blockquote>

This section says a few important things.

First, guardians are presumed to exercise all parental responsibilities until an order or agreement says otherwise, and guardians are required to consult with each other in the exercise of these responsibilities.

Second, if you do have an order or agreement, the order or agreement can require guardians to share certain parental responsibilities or divide them so that a particular responsibility will only be exercised by one or more guardians acting on their own.

Third, the court must not make any assumptions about how parental responsibilities and parenting time are to be divided.

Parental responsibilities are listed at section 41:

<blockquote><tt>(a) making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child;</tt></blockquote>
<blockquote><tt>(b) making decisions respecting where the child will reside;</tt></blockquote>
<blockquote><tt>(c) making decisions respecting with whom the child will live and associate;</tt></blockquote>
<blockquote><tt>(d) making decisions respecting the child's education and participation in extracurricular activities, including the nature, extent and location;</tt></blockquote>
<blockquote><tt>(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;</tt></blockquote>
<blockquote><tt>(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;</tt></blockquote>
<blockquote><tt>(g) applying for a passport, license, permit, benefit, privilege or other thing for the child;</tt></blockquote>
<blockquote><tt>(h) giving, refusing or withdrawing consent for the child, if consent is required;</tt></blockquote>
<blockquote><tt>(i) receiving and responding to any notice that a parent or guardian is entitled or required by law to receive;</tt></blockquote>
<blockquote><tt>(j) requesting and receiving from third parties health, education or other information respecting the child;</tt></blockquote>
<blockquote><tt>(k) subject to any applicable provincial legislation,</tt></blockquote>
<blockquote><blockquote><tt>(i) starting, defending, compromising or settling any proceeding relating to the child, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) identifying, advancing and protecting the child's legal and financial interests;</tt></blockquote></blockquote>
<blockquote><tt>(l) exercising any other responsibilities reasonably necessary to nurture the child's development.</tt></blockquote>

This list is not a closed list. If there's something important to the child that's not listed in (a) to (k), you can probably have the issue addressed under (l). Note also that guardians are required, under section 43(1), to always exercise their parental responsibilities in the best interests of the child.

The above list references the ''Infants Act'', which is a piece of provincial legislation that deals with, among other matters, the consent of a “mature minor” for healthcare decision-making. Parents who are separating and looking to define parental responsibilities in a parenting plan should nevertheless be aware that if their child is considered a mature minor, that child may be able to make his or her own healthcare decisions.

The above list also references the parental responsibility of “requesting and receiving from third parties health, education or other information respecting the child.” Parents who are separating and looking to define parental responsibilities in a parenting plan should also consider the reasonable expectation of privacy of a mature minor over his or her healthcare information.

The ''[[Family Law Act]]'' deals with parenting time very briefly. Section 42 says this:

<blockquote><tt>(1) For the purposes of this Part, parenting time is the time that a child is with a guardian, as allocated under an agreement or order.</tt></blockquote>
<blockquote><tt>(2) During parenting time, a guardian may exercise, subject to an agreement or order that provides otherwise, the parental responsibility of making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child.</tt></blockquote>

Basically, you have a few choices if it becomes important to formalize the parenting arrangements for a child. You can come up with an agreement with the other guardians, by negotiation, mediation, or a collaborative settlement process, or, if you can't agree, you can go to court or you can elect to use family law arbitration to obtain a decision from a third party. Arbitration, like mediation, is an elective process. However, unlike mediation, in arbitration if the parties cannot agree, the arbitrator will make a final and binding decision.

It sometimes takes a while for guardians to get to the point where they feel they must get something formal in place. Sometimes, people are just content with the status quo. In cases like this, where a stable parenting arrangement has managed to gel over time, section 48 of the ''Family Law Act'' says that a guardian shouldn't make unilateral changes to those arrangements without talking to the other guardians first:

<blockquote><tt>(1) If</tt></blockquote>
<blockquote><blockquote><tt>(a) no agreement or order respecting parenting arrangements applies in respect of a child, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the child's guardians have had in place informal parenting arrangements for a period of time sufficient for those parenting arrangements to have been established as a normal part of that child's routine, a child's guardian must not change the informal parenting arrangements without consulting the other guardians who are parties to those arrangements, unless consultation would be unreasonable or inappropriate in the circumstances.</tt></blockquote></blockquote>
<blockquote><tt>(2) Nothing in subsection (1) prevents a child's guardian from seeking</tt></blockquote>
<blockquote><blockquote><tt>(a) an agreement respecting parenting arrangements, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) an order under section 45.</tt></blockquote></blockquote>

When formal arrangements are required, section 44 of the ''Family Law Act'' allows two or more of a child's guardians to make an agreement about the allocation of parental responsibilities and parenting time, as well as how disputes about those parenting arrangements will be resolved. (Agreements like these can't be made until the guardians have separated or are about to separate.) If agreement is impossible, a guardian can apply for a court order about parenting arrangements under section 45 of the Act.

When a child has more than one guardian, the guardians need to work together and cooperate in raising the child. This can sometimes be difficult, particularly when there is a lot of conflict in the guardians' relationship with one another. Before the ''Family Law Act'' came into effect, the rights and obligations involved in raising children were usually addressed through a joint guardianship order under the ''Family Relations Act''. The ''Family Law Act'' doesn't talk about guardianship the way the old law did and can't be used to spell out guardians' rights and obligations.

The court can make orders about which guardian exercises parental responsibilities, so that one parent may have parental responsibilities over medical decisions, and the other over educational decisions. If the agreement or court order does not spell out who exercises which parental responsibility, then it is presumed that the guardians share all of the parental responsibilities and the guardians must therefore cooperate and make their decisions jointly. If no agreement can be reached by the guardians, an application may be made to court under section 40 of the ''Family Law Act'', and the court can make those decisions instead or determine who can make the decision.

==Contact==

The time a person who is not a guardian has with a child is called ''contact''. Where a child's parent is not that child's guardian, the time that the parent spends with the child will be considered contact time. The ''[[Family Law Act]]'' doesn't say much about contact, except to say that anyone can apply for it, including parents and grandparents. This is the definition of contact from section 1 of the Act:

<blockquote><tt>'''contact with a child''' or '''contact with the child''' means contact between a child and a person, other than the child's guardian, the terms of which are set out in an agreement or order</tt></blockquote>

A schedule of contact can be set by agreement between the person seeking contact with a child and the child's guardians under section 58 of the ''[[Family Law Act]]'', or a schedule of contact can be fixed by a court order made under section 59. Agreements for contact are only good if they are signed by all of the child's guardians who have the parental responsibility of determining who can have contact with the child.

==Incapacity and death of a guardian==

When a guardian anticipates being unable to care for a child, either temporarily or permanently, the guardian may appoint a person to act in their place. No matter the age or health of a guardian, it is always a good idea for a guardian to give some thought to the question of who would look after the child in the event of the guardian's unexpected death and to record those arrangements in a Will or in one of the forms described below.

===Temporary authorizations===

Under section 43(2) of the ''[[Family Law Act]]'', a guardian who is temporarily unable to exercise certain parental responsibilities may authorize someone to exercise those responsibilities on their behalf. Such authorizations must be made in writing, and should say exactly what it is that the authorized person can do.

The parental responsibilities that someone can exercise under a written authorization are:

*making day-to-day decisions affecting the child and having day-to-day care, control, and supervision of the child,
*making decisions respecting with whom the child will live and associate,
*making decisions respecting the child's education and participation in extracurricular activities,
*giving, refusing, or withdrawing consent to medical, dental, and other health-related treatments for the child,
*applying for a passport, licence, permit, benefit, privilege or other thing for the child,
*giving, refusing, or withdrawing consent for the child, if consent is required,
*receiving and responding to any notice that a parent or guardian is entitled or required by law to receive,
*requesting and receiving from third-parties health, education, or other information about the child, and
*exercising any other responsibilities reasonably necessary to nurture the child's development.

Authorizations like these are mostly used:
#when the child has to go somewhere else to attend school and the guardian needs to ensure the child is looked after,
#when the guardian is seriously ill but going to recover, and
#when the guardian is going to be out of commission for a while to recover from a surgery or treatment.

===Appointing standby guardians===

Under section 55 of the ''[[Family Law Act]]'', where a guardian is facing a terminal illness or permanent loss of mental capacity, the guardian can appoint someone to become guardian when they become incapable of continuing to act as guardian.

Appointments are made by Form 2, a form set out in the [http://canlii.ca/t/8rdx Family Law Act Regulation]. The guardian must sign the form in the presence of two witnesses, neither of whom is the guardian being appointed. The form must state the conditions that have to be met for the appointment to take effect, such as a doctor's certificate of incapacity. A guardian cannot appoint a guardian to act with any more parental responsibilities than those they had at the time of the appointment.

For the appointment to be effective, a person appointed as a standby guardian must accept the appointment.

A person who is appointed as a standby guardian does not have to apply for appointment under section 51 of the act, and continues to serve as the guardian of the child after the death of the appointing guardian.

===Appointing testamentary guardians===

Under section 53 of the ''[[Family Law Act]]'', a guardian can appoint someone to become guardian when they die.

Appointments are made either by Form 2 or in the guardian's will. For appointments made using Form 2, the guardian must sign the form in the presence of two witnesses, neither of whom is the guardian being appointed. A guardian cannot appoint a guardian to act with any more parental responsibilities than those they had at the time of the appointment.

A person appointed as a testamentary guardian must accept the appointment for the appointment to be effective.


==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* [http://canlii.ca/t/8rdx Family Law Act Regulation]
* ''[http://canlii.ca/t/84dv Child, Family and Community Service Act]''
* ''[[Divorce Act]]''
* [http://canlii.ca/t/85pb Provincial Court (Family) Rules]
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]

===Links===

* [https://www.justiceeducation.ca/pas Justice Education Society: Parenting After Separation program]
* [https://clicklaw.bc.ca/resource/1246 Dial-A-Law Script "Custody and access, guardianship, parenting arrangements and contact"]
* [https://clicklaw.bc.ca/resource/2639 Legal Services Society's fact sheet "How to Become A Child's Guardian"]
* [https://clicklaw.bc.ca/resource/4655 Legal Services Society's Family Law website's information page "Parenting & guardianship"]
** See "Guardianship, parenting time and parental responsibilities"

{{REVIEWED | reviewer = [[Mary Mouat|Mary Mouat, QC]] and [[Samantha Rapoport]], April 15, 2019}}

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

[[Category:JP Boyd on Family Law]]
[[Category:Archived Sections from JP Boyd on Family Law]]

Parents

2026-06-03T18:08:02Z

Nate Russell: /* Parenting children */

{{JP Boyd on Family Law TOC|expanded = relationships}}{{JPBOFL Editor Badge
|ChapterEditors = [[Stephen Wright]] and [[Michael Sinclair]]
}}
{{LSSbadge
| resourcetype = a publication on ''Family Law Act'' basics titled 
| link = [https://family.legalaid.bc.ca/resources/living-together-or-living-apart Living Together or Living Apart]
}}Your relationship may have been brief, but if you have had a child with someone, you are both responsible for meeting the child's financial needs and you may both be entitled to participate in raising the child. Although the duty to pay child support comes from the simple fact of being a parent, whether you wanted to be a parent or not, being a parent doesn't come with the right to be involved in parenting a child. It is the ''child's'' right to benefit from the payment of child support and the ''child's'' right to be parented properly, to be provided with food, shelter, healthcare and clothing, and to be nurtured toward adulthood in the best way possible.

Children have these rights whether their parents are married, living together in a marriage-like relationship or have no relationship with each other at all. This section is for unmarried parents who have had a child but never lived together, and, as result, don't qualify as "spouses" under the ''Family Law Act''. It talks about the legal issues unmarried parents may have to deal with and those they don't, and discusses the two most common issues parents have to deal with, child support and parenting children.

==Introduction==

The provincial ''[[Family Law Act]]'' applies to anyone who is the parent of a child, regardless of the nature of their relationship with the other parent or parents of their child, and regardless of whether they are the parent of the child as a result of natural reproduction, adoption or assisted reproduction.

The act talks about how to identify who the parents of a child are when the child is born by natural reproduction or assisted reproduction. When a child is adopted, the ''Family Law Act'' says that the child's parents are determined by the provincial [http://canlii.ca/t/84g5 Adoption Act].

The ''Family Law Act'' also talks about how parents can:

*ask for declarations and orders about who the guardians of a child are,
*make agreements or ask for orders about parental responsibilities and parenting time with a child, if the parent is also a guardian of the child,
*make agreements or ask for orders about contact with a child, if the parent is not a guardian of the child,
*make agreements or ask for orders about the payment of child support, and
*ask for orders for the protection of people.

Parents who don't qualify as "spouses" under section 3 of the ''Family Law Act'' — see the first section in this chapter for more information about who qualifies as a spouse under the act — ''cannot'' use the act to ask for orders about:

*the payment of spousal support,
*the division of property and debt, or
*orders for the protection of property.

The federal ''[[Divorce Act]]'' only applies to people who are or were married to each other; it doesn't apply to people in unmarried relationships, including parents who aren't married to each other.

==Who is a "child?"==

For the parts of the ''[[Family Law Act]]'' that talk about guardianship and parenting, a "child" is a person under the age of 19, the age of majority in British Columbia. For the parts of the act that talk about child support, the definition is a bit broader. Section 146 says this:

<blockquote><tt>"child" includes a person who is 19 years of age or older and unable, because of illness, disability or another reason, to obtain the necessaries of life or withdraw from the charge of the person's parents or guardians</tt></blockquote>

The most common "other reason" why an adult child cannot "obtain the necessaries of life or withdraw from the charge of his or her parents" is because the child is going to college or university.

==Who is a "parent?"==

People who are "parents" under the ''[[Family Law Act]]'', including stepparents, are required to help their children by paying ''child support''. People who are parents may also ask for orders about ''parental responsibilities'' and ''parenting time''. People who aren't parents are usually limited to asking for orders giving them ''contact'' with a child.

Part 3 of the provincial ''Family Law Act'' provides a comprehensive scheme for determining the parentage of children that applies for all legal purposes in British Columbia, including for family law disputes and wills and estates matters, except when parentage is determined under the ''[http://canlii.ca/t/84g5 Adoption Act]''. Section 23 says this:

<blockquote><tt>(1) For all purposes of the law of British Columbia,</tt></blockquote>
<blockquote><blockquote><tt>(a) a person is the child of the person's parents,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) a child's parent is the person determined under this Part to be the child's parent, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the relationship of parent and child and kindred relationships flowing from that relationship must be as determined under this Part.</tt></blockquote></blockquote>
<blockquote><tt>(2) For the purposes of an instrument or enactment that refers to a person, described in terms of the person's relationship to another person by birth, blood or marriage, the reference must be read as a reference to, and read to include, a person who comes within the description because of the relationship of parent and child as determined under this Part.</tt></blockquote>

Section 26(1) says who a child's parents are presumed to be:

<blockquote><tt>On the birth of a child not born as a result of assisted reproduction, the child's parents are the birth mother and the child's biological father.</tt></blockquote>

Sections 27, 28, 29 and 30 have other rules about who are the parents of children conceived by assisted reproduction. Under these rules people can agree that a child's parents are or aren't the birth mother and the child's biological father, and that other people will or won't be parents, including someone who donates sperm or eggs and someone who is the spouse of a child's birth mother.

===Natural reproduction===

Under section 26(1) of the ''[[Family Law Act]]'', a child's parents are presumed to be the child's ''birth mother'' and ''biological father''. It's normally pretty easy to tell who the birth mother of a child is. It's not always so easy to tell if a man is the biological father of a child.

Only biological parents and people who are stepparents because they are the married or unmarried spouse of a parent are required to pay child support. When a man denies a responsibility to pay child support on the ground that he is not the child's father, the first thing the court will do is see whether he should be presumed to be the father because of the nature of his relationship with the child's mother.

====The presumptions of paternity====

Under section 26(2) of the ''[[Family Law Act]]'', a man is presumed to be the biological father of a child in one of the following circumstances:

<blockquote><tt>(a) he was married to the child's birth mother on the day of the child's birth;</tt></blockquote>
<blockquote><tt>(b) he was married to the child's birth mother and, within 300 days before the child's birth, the marriage was ended</tt></blockquote>
<blockquote><blockquote><tt>(i) by his death,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) by a judgment of divorce, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(iii) as referred to in section 21;</tt></blockquote></blockquote>
<blockquote><tt>(c) he married the child's birth mother after the child's birth and acknowledges that he is the father;</tt></blockquote>
<blockquote><tt>(d) he was living with the child's birth mother in a marriage-like relationship within 300 days before, or on the day of, the child's birth;</tt></blockquote>
<blockquote><tt>(e) he, along with the child's birth mother, has acknowledged that he is the child's father by having signed a statement under section 3 of the Vital Statistics Act;</tt></blockquote>
<blockquote><tt>(f) he has acknowledged that he is the child's father by having signed an agreement under section 20 of the Child Paternity and Support Act, R.S.B.C. 1979, c. 49.</tt></blockquote>

Presumptions like these were once very important when there was no reliable way to scientifically verify that a particular man was the father of a child. These days, however, we do have the technology and a man who disputes paternity despite these presumptions can ask for an order that a paternity test be conducted.

====Paternity tests====

Under section 33(2) of the ''[[Family Law Act]]'', the court may

<blockquote><tt>order a person, including a child, to have a tissue sample or blood sample, or both, taken by a medical practitioner or other qualified person for the purpose of conducting parentage tests.</tt></blockquote>

Under section 33(1), a "parentage test" can be a human leukocyte antigen test, a DNA test, or "any other test the court considers appropriate." These are your choices:

*'''Human leukocyte antigen tests:''' Human leukocyte antigen tests are a kind of advanced blood test that looks at the genetic markers on white blood cells to determine the likelihood that the child's antigens were inherited from a particular man. Their accuracy is northward of 96% but can be spoofed if the purported father has had a recent transfusion.
*'''Deoxyribonucleic acid tests:''' DNA tests look for overlaps in the child's unique genetic code with the genetic code from the purported father and the child's mother. Today's DNA tests deal with the probability of fatherhood in terms approaching absolute certainty; if a DNA test shows a man is probably the father, the odds that the test is wrong are about 0.0001%. Testing is performed on biological samples, most commonly from mouth swabs, which are painless to obtain.
*'''Chorionic villi sampling:''' This is a prenatal procedure that can be performed during the 10th to 13th week of pregnancy. It consists of a DNA test on a sample of the baby's placenta. It is an unpleasant procedure that must be conducted either through the mother's cervix or her abdominal wall.
*'''Amniocentesis:''' This is a prenatal procedure that can be performed during the 14th to 24th week of pregnancy. It consists of a DNA test on a sample of amniotic fluid drawn through the mother's abdominal wall.

The DNA of a child is a combination of the DNA of the child's mother and father. DNA tests compare the child's DNA to that of the father and mother, and provide a calculation of the odds that the man is the child's father. Because of the accuracy of DNA testing, a positive result will prove extremely convincing to a court. Unless you have a doctorate in genetics or convincing proof that a sample was tampered with, I don't recommend that you challenge the results of a DNA test. Save your money.

A number of companies serving British Columbia, such as [http://www.genetrackcanada.com Genetrack Biolabs], [https://www.thednalab.com The DNALAB], and [http://www.pro-adn.com Orchid PRO-DNA], will perform legally admissible paternity tests at a cost of around $480 to $500, plus taxes, for one child and an alleged father, with additional costs for more children or alleged fathers. For tests usable in a legal proceeding, the labs will require each person contributing samples to attend in person at an authorized sample collection location.

====Arranging for a paternity test====

If the birth mother and the person might be the father agree to have a paternity test conducted, no court order is necessary. You simply contact the appropriate company and arrange to have blood or saliva samples taken and tested. The DNA tests are done with a mouth swab, generally, and legal paternity tests can be done with just samples from the child and the potential father. The results will be delivered to you directly. Some companies even offer home sampling kits that provide legally admissible test results, provided that the test is properly witnessed by someone else. Generally, however, legal paternity tests are conducted in an authorized collection centre where the identities of the sample providers and the integrity of the samples can be confirmed.

Where the parties don't agree to a test, one of them, usually the potential father, must apply to court for an order that samples be taken from the parties and the child and that a paternity test be conducted under section 33(2) of the ''Family Law Act''. Under section 33(3), the court can also make an order about who must pay for the cost of the test.

===Assisted reproduction===

When one or two people need the help of others to have a child, some additional rules apply and some additional people can be a "parent" of a child. Under the rules described in sections 27 to 30 of the ''[[Family Law Act]]'',

*one or two people who want to have the child, the ''intended parents'', can be the parents of the child,
*the donor of sperm or an egg is not usually a parent of the child,
*a surrogate mother is usually a parent of the child, and
*the spouse of a surrogate mother is usually a parent of the child.

However, a written agreement made before the child is conceived can say that a donor of sperm or eggs ''is'' a parent, that a surrogate mother ''is not'' a parent, and that the spouse of a surrogate mother ''is not'' a parent. In theory, at least, a child born of assisted reproduction can have as many as six people who are their parents.

What's especially important about these rules is that a person who is a parent as a result of an assisted reproduction agreement is a parent for ''all'' purposes of the law in British Columbia, including family law and the law about wills and estates.

===Adoption===

People who adopt a child become the parents of that child when the court makes an adoption order under the provincial ''[http://canlii.ca/t/84g5 Adoption Act]''. At the same time, the birth mother and biological father of the child cease to have any parental rights or obligations with respect to the child. Unless the birth mother or biological father are jointly adopting the child with someone else, they become legal strangers to the child. They lose not only their obligation to pay child support, but also their right to ask the court for parental responsibilities or parenting time with the child.

Unlike the parts of the ''[[Family Law Act]]'' that talk about assisted reproduction, section 5(1) of the ''Adoption Act'' limits the number of people who can adopt a child to a maximum of two.

==The rights and responsibilities of parents==

Parents who aren't married and haven't lived together can make agreements or ask for orders about parenting their child and paying child support. The provincial ''[[Family Law Act]]'' is the law that the court will apply when making orders about guardianship, parenting and child support.

===Child support===

Child support is payable by anyone who is the parent of a child, regardless of the nature — or brevity — of the relationship that produced the child. The ''Family Law Act'' says, at section 147, that "each parent" has a duty to provide support for their child. Under section 150(1) of the act, child support is to be paid in the amount determined under the [[Child Support Guidelines]].

Nothing in the ''Family Law Act'' or the Child Support Guidelines allows a parent to escape paying support through some quirk in the circumstances under which the child was conceived, including whether the pregnancy was planned or not, whether it came about as result of a sexual assault, or whether it came about as a result of some deception on the part of the birth mother. The only question that might be left open is whether or not the person being asked to pay child support is the "parent" of the child for whom support is sought. If that's an issue, a paternity test can always be taken under section 33 of the act.

You can find additional information about child support and the Child Support Guidelines in the [[Child Support]] chapter of this resource.

===Parenting children===

Under section 40(1) of the ''[[Family Law Act]]'', only people who are the "guardians" of a child have ''parental responsibilities'' and ''parenting time'' with that child. People who are not the guardians of a child may have ''contact'' with the child, but they do not have the right to participate in making decisions about the raising of the child or the right to get information from the important people involved in the child's life, such as doctors, teachers, counsellors, and coaches.

Under section 39, the people who are presumed to be the ''guardians'' of a child are:

*the child's parents, as long as they lived together,
*a person who is a parent of a child under an assisted reproduction agreement, and
*a parent who "regularly cares" for the child.

In other words, if a couple has had a child but never lived together, the parent who does not live with the child is not presumed to be a guardian of the child unless they ''regularly care'' for the child. (The curious thing about the way section 39 is written, is that ''neither'' parent is presumed to be a guardian if the parents didn't live together! This is not what the BC government meant in drafting that part of the ''Family Law Act'', of course, and so far I'm not aware of any court decisions that have addressed the problem.)

A parent who isn't a guardian can become a guardian if the child's other guardians agree that the parent should be a guardian. If the parents can't agree on this, then the parent who isn't a guardian has three choices. They can:

#settle for having contact with the child and not being able to participate in parenting the child,
#try to prove that they ''regularly care'' for the child, in order to be recognized by the court as a guardian of the child who is entitled to participate in parenting the child, or
#apply to be appointed as the guardian of a child under section 51 of the ''Family Law Act''.

Applications for appointment as a guardian can be a bit difficult, as the applicant — the person who is making the application — must provide a special kind of affidavit that talks about all of the children who are and have been in their care, any civil or criminal court proceedings involving them that might impact on the safety of a child, and any involvement they might have had with the Ministry for Children and Family Development. The applicant must also provide recent Ministry and police records checks.

Applications for appointment as a guardian are discussed in more detail in the [[Basic Principles of Parenting after Separation]] section of the [[Children and Parenting after Separation]] chapter, under the heading "[[Basic_Principles_of_Parenting_after_Separation#Becoming_a_guardian|Becoming a guardian]]."

==Government benefits==

The most important thing to know about government benefits is that most federal legislation defines a ''spouse'' as someone who has been in a cohabiting relationship for at least one year, as opposed to British Columbia's legislation which generally requires a two-year cohabiting relationship to qualify. As a result, someone in a relationship of at least one year may qualify for any federal benefits that depend on a spousal relationship, although they probably won't qualify for provincial benefits. People in a relationship of less than one year won't usually qualify for any spousal benefits at all.

Benefits and tax credits relating to children are available to anyone who is a parent, regardless of the nature of that person's relationship with the other parent. The websites of the [https://www.canada.ca/en/revenue-agency/services/child-family-benefits.html Canada Revenue Agency] and the [https://www2.gov.bc.ca/gov/content/family-social-supports/family-benefits government of British Columbia] have a lot of information about federal and provincial benefits.

The federal government has a helpful online [https://www.canada.ca/en/revenue-agency/services/child-family-benefits/child-family-benefits-calculator.html child benefits calculator] that estimates the amount of benefits available from the different federal and provincial programs.

==Resources and links==

===Legislation===

* ''[https://canlii.ca/t/8q3k Family Law Act]''
* ''[http://canlii.ca/t/843w Income Tax Act]'' (provincial)
* ''[http://canlii.ca/t/7w0s Universal Child Care Benefit Act]''
* ''[http://canlii.ca/t/7wmq Income Tax Act]'' (federal)
* ''[https://canlii.ca/t/54wtd Adoption Act]''

===Links===

*[https://www.canada.ca/en/revenue-agency/services/child-family-benefits/child-family-benefits-calculator.html Canada child benefits calculator]
*[http://www.cra-arc.gc.ca/bnfts/ Overview of child and family benefits] from the Canada Revenue Agency
*[https://www2.gov.bc.ca/gov/content/family-social-supports/family-benefits Family Benefits] from the Government of British Columbia
* [https://dialalaw.peopleslawschool.ca/introduction-to-family-law/ Introduction to Family Law] from Dial-a-Law by the People's Law School
*[https://bit.ly/4fyGVjv Single Parent Employment Initiative] from the BC Ministry of Social Development & Poverty Reduction
*[https://www.mysupportcalculator.ca/ My Support Calculator]
*[https://bit.ly/3AdKX0u Extended Family Program] (Temporary Out-of-Care Arrangements) from the BC Ministry of Children and Family Development
*[https://aboriginal.legalaid.bc.ca/child-family-rights/extended-family-program Extended Family Program] (Aboriginal families) from Legal Aid BC
*[https://dialalaw.peopleslawschool.ca/children-born-outside-marriage/ Children Born Outside Marriage] from Dial-a-Law by the People's Law School
*[https://family.legalaid.bc.ca/finances-support/child-spousal-support Child and Spousal Support] from Legal Aid BC
*[https://www.bcli.org/project/appointing-guardian-and-standby-guardianship/ Appointing a Guardian and Standby Guardianship] from the British Columbia Law Institute
*[https://family.legalaid.bc.ca/children/parenting-guardianship Parenting and Guardianship] from Legal Aid BC
*[https://www.provincialcourt.bc.ca/types-of-cases/family-matters Family Cases] from the Provincial Court of British Columbia's website
*[https://www.bcli.org/project-review-of-parentage-consultation-under-part-3-of-the-family-lawact/ Review of Parentage under Part 3 of the Family Law Act Project] from the British Columbia Law Institute

===Resources===
*[https://family.legalaid.bc.ca/resources/living-together-or-living-apart "Living Together or Living Apart"] from Legal Aid BC
*[https://www2.gov.bc.ca/gov/content/safety/public-safety/protecting-children/collaborative-planning-decision-making-child-welfare Collaborative Planning and Decision-Making in Child Welfare] from the BC Ministry of Children and Family Development
*[https://perma.cc/H7XM-2TVL "Successfully Parenting Apart" (PDF)] a 2017 toolkit from The Canadian Bar Association
*[https://legalaid.bc.ca/publications/pub/parents-legal-centre-brochure "Parents Legal Centre Brochure"] from Legal Aid BC

{{REVIEWED | reviewer = [[JP Boyd]], April 8, 2023}}

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Further Topics and Overlapping Legal Issues in Family Law

2026-06-03T17:48:50Z

Nate Russell: Categorizing for archive

{{JPBOFL Start Chapter
| Related =
[[Aboriginal Families]]{{·}}[[Immigrants and Family Law]]{{·}}[[Same-Sex Relationships and Issues Affecting Transgendered and Transsexual People]]{{·}}[[Naming and Changes of Name]]{{·}}[[Wills and Estates Issues in Family Law]]{{·}}[[Conflict of Laws]]
}}
{{JP Boyd on Family Law TOC|expanded = further}}{{JPBOFL Editor Badge
|ChapterEditors = [[Rhaea Bailey]], [[Taruna Agrawal]], [[Todd Bell]], [[Bob Mostar]] and [[Mark Norton]]
}}
==Further topics for specific communities==
While family law has evolved to treat many minority groups, such as same-sex couples, in the same way as it treats the majority, this is not always true. People are sometimes subject to different laws in certain circumstances.

The resource you're reading has been updated to explain and recognize some of the ways laws apply differently to specific communities. Parts of this chapter deal with further topics unique to [[Aboriginal Families|Aboriginal families]] and/or those living on reserves, [[Immigrants and Family Law|newcomers to Canada]] and those who support or rely on them, and [[Same-Sex Relationships and Issues Affecting Transgendered and Transsexual People| the LGBTQ community]].

===Aboriginal families===
Aboriginal people exist in a unique legal environment arising from the fact that they are the first peoples of what is now known as Canada. Aboriginal people's longstanding occupancy and use of these lands give rise to ''Aboriginal rights'' which became constitutionally protected when s. 35 of the ''Constitution Act, 1982'' was enacted over 30 years ago. The ''Constitution'' recognizes and affirms aboriginal and treaty rights of First Nations, Inuit and Métis peoples of Canada.

This chapter focuses on issues in family law that affect BC's Aboriginal families. While all of the usual factors apply to Aboriginal families, courts must also pay attention to Aboriginal ancestry, culture and traditions when they make decisions, including determining the best interests of Aboriginal children. This is because Aboriginal children have the right to keep a connection to their culture and heritage, which are the strong foundations of many Aboriginal families. This section briefly reviews particular issues unique to Aboriginal families, including:
*the care of children,
*child support
*spousal support, and
*family property and family debt.

The section on [[Aboriginal Families]] also briefly addresses issues caused by the ''[http://canlii.ca/t/7vhk Indian Act]'', a law which has allowed the government to control most aspects of Aboriginal life since its inception in 1876.

===Newcomers to Canada and their families===
Many Canadian families are the product of Canadian citizens or permanent residents who partner with people from other countries. ''Sponsorship'' by a Canadian citizen or permanent resident of a foreign spouse this creates legal issues that are unique to families with members who are immigrants or refugees.

In 2017, the Canadian government introduced some important changes to the rules surrounding sponsored spouses. The updates in this chapter address those changes and provides information on:

* support obligations of sponsors, and
* agencies that help immigrants and refugees.

===LGBQT issues in family law===
Not too long ago, this resource had an entire chapter about the particular issues affecting those in same-sex relationships. A stand-alone chapter for same-sex relationships, however, is no longer necessary.

For the last 30 years or so, there has been a steady erosion of legislated discrimination between opposite- and same-sex relationships. While gays and lesbians may have to deal with homophobia and intolerance in their day-to-day lives, at least the discrimination that used to exist because of legislation has been on the wane. From the [http://canlii.ca/t/5239 Little Sisters decision] on censorship to ''[http://canlii.ca/t/1frkt Egan v. Canada]'', [1995] 2 SCR 513 on spousal benefits, the courts of Canada have proven increasingly willing to extend the protection of the ''[http://canlii.ca/t/8q7l Charter of Rights and Freedoms]'' to overturn discriminatory legislation and, after some initial resistance, the governments of Canada have followed suit.

Gays and lesbians are just as entitled as straight people to pursue claims relating to:
*the care of children,
*child support,
*spousal support, and
*the division of property

Sexual orientation plays no part in the division of family property, nor is it a factor in determining issues relating to children or support.

This said, legal uncertainty exists for people who are trans or gender non-binary, at least in some contexts. The section on ''[[Same-Sex Relationships and Issues Affecting Transgendered and Transsexual People#Issues affecting transgendered and transsexual people|Issues affecting transgendered and transsexual people]]'' discusses some of the difficulties that the law has in serving people who traverse the gender spectrum.

==Overlapping legal issues==

Problems like children's parenting arrangements, the payment of support, and the division of property are the everyday issues that crop up when a relationship breaks down. There is a whole host of other legal issues that fall under the family law umbrella, and it's a big umbrella.

This chapter takes a look at a selection of relatively common family law problems. It talks about issues affecting:

*the overlap between wills and estates law and family law, and
*what happens when people and property are located in different legal jurisdictions.

{{REVIEWED | reviewer = [[Nate Russell]], July 20, 2017}}

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Conflict of Laws Issues in Family Law

2026-06-03T17:46:35Z

Nate Russell: Categorizing for archive

{{JP Boyd on Family Law TOC|expanded = overlapping}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bob Mostar]] and [[Mark Norton]]
}}
The ''conflict of laws'' refers to the problems that arise when the courts and laws of two or more places may apply to the same problem. Problems with the conflict of laws usually arise in a family law context when:

*spouses have property in different provinces or countries,
*the courts of one jurisdiction have made an order and one or both of the parties have moved to a different jurisdiction, or
*the parties made a family agreement in one jurisdiction and have since moved to a new jurisdiction.

The law on this subject can be extremely complex. If you are involved in a family law problem involving the conflict of laws, you should seriously consider retaining a lawyer to help you.

==Children==

Different rules apply when orders about the care of children are made outside of British Columbia under the federal ''[[Divorce Act]]'', outside of British Columbia under the law of another province or territory, and outside of Canada under another law altogether.

===''Divorce Act'' orders===

When a court order about children has been made under the ''[[Divorce Act]]'', a spouse who moves to a different province can apply to change that order in the new province under section 5 of the act. The courts of British Columbia will hear an application for an order different than the original order as long as:

*either spouse normally lives in this province, or
*both spouses agree that our courts should deal with the matter.

Since the ''Divorce Act'' applies to the whole of Canada, ''Divorce Act'' orders have effect throughout Canada. An order made under the ''Divorce Act'' may be registered in any court in Canada under section 20(3) of the act, and will be treated as an order of the court in which it is registered for enforcement purposes.

===Other orders made outside British Columbia===

When a court order about children has been made under a provincial law, such as Alberta's ''[http://canlii.ca/t/81vc Family Law Act]'' or the ''[http://canlii.ca/t/8k Children's Law Reform Act]'' of Ontario, or the laws of another country altogether, the order can be ''recognized'' by the courts of British Columbia under section 75 of our ''[[Family Law Act]]''. A foreign order that has been recognized will be treated as an order of the British Columbia courts for enforcement purposes.

Under Division 7 of Part 4 of the ''[[Family Law Act]]'', the courts of British Columbia can also change orders about children that were made under the laws of a different province or territory, or under the laws of another country. Our courts will usually be very cautious in changing the orders of another court. Our court will usually hear an application for an order different than the original order if:

*the child normally lives in British Columbia, or
*the child is physically present in the province but will be at serious risk unless the original order is changed.

==Child support and spousal support==

Different rules apply when orders about support are made outside of British Columbia under the federal ''[[Divorce Act]]'', outside of British Columbia under the law of another province or territory, and outside of Canada under another law altogether.

===''Divorce Act'' orders===

When a court order about support has been made under the ''[[Divorce Act]]'', a spouse who moves to a different province can apply to change that order in the new province under section 18 of the act. The order that the spouse gets, however, will only be a ''provisional order'' which has no immediate effect. The Attorney General is required to send the provisional order to the court that made the order, and that court will have a ''confirmation hearing'' under section 19. If that court confirms the provisional order, the order will be changed. There's more information about this in the [[Making_Changes_to_Child_Support|Making Changes]] section of the chapter on [[Child Support]], under the heading "[[Making_Changes_to_Child_Support#Orders_made_outside_British_Columbia|Orders made outside British Columbia]]."

An order for child support or spousal support made under the ''[[Divorce Act]]'' may be registered in any court in Canada under section 20(3) of the act, and will be treated as an order of the court in which it is registered for enforcement purposes.

===Other orders made outside British Columbia===

Where a support order was made under the law of another province or territory, the order can be ''registered'' in the courts of British Columbia under the provincial ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''. Once this is done, that newly registered order can be enforced as if it was a BC order by the person to whom the payments are owed, the ''recipient'', under the ''[[Family Law Act]]'', or by the Family Maintenance Enforcement Program under the ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''.

The ''Interjurisdictional Support Orders Act'' also allows for someone in BC to start a process that could result in the order being changed, either by the court that made the original order or by a new court in the jurisdiction where the other parent now lives. See the Ministry of Attorney General's website for Interjurisdictional Support Services ([https://www.isoforms.bc.ca www.isoforms.bc.ca]) for more on this process. In addition to Canada's other provinces and territories, the ''Interjurisdictional Support Orders Act'' also applies to the orders of some other countries, including the United Kingdom, the United States, Hong Kong, Germany, Australia, Zimbabwe, and several others listed in the [http://canlii.ca/t/84vn Interjurisdictional Support Orders Regulation].

==Property and debt==

The ''[[Family Law Act]]'' is currently the only law in British Columbia that deals with the division of family property and family debt between married and unmarried spouses. Division 6 of Part 5 of the act has special provisions for dealing with property located outside the province. These provisions are extraordinarily complicated and very difficult to understand. You will almost certainly need to speak to a lawyer to figure them out.

Under section 106 of the ''Family Law Act'', where another court can make an order about the same parties and the same property, the court here must first decide whether it should make any orders at all. The court may decide to deal with a property claim if:

*the person against whom the claim is made, the ''respondent'', has made a claim for the division of property under the ''[[Family Law Act]]'',
*the parties agree that the court should deal with the claim,
*either party was "habitually resident" in the province when the court proceeding started, or
*there is a "real and substantial connection" between the province and the facts on which the property claim is based, because the property is located in the province, the parties’ most recent common habitual residence was in the province, or a court proceeding under the ''[[Divorce Act]]'' has been started here.

If the court decides to deal with the claim, the court may make orders about property and debt located outside the province by:

*dividing property here to take into account the value of the property outside the province,
*making orders about the care, management, or use of the property outside the province, and
*making orders about ownership of the property outside the province.

More information about how the ''Family Law Act'' deals with property outside of British Columbia is available in the section on [[Dividing Property & Debt in Family Law Matters|Dividing Property & Debt]] under the chapter on [[Property & Debt in Family Law Matters|Property & Debt]], under the heading "[[Dividing_Property_%26_Debt_in_Family_Law_Matters#Determining_jurisdiction|Determining jurisdiction]]".

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''

{{REVIEWED | reviewer = [[Bob Mostar]] and [[Mark Norton]], June 24, 2019}}

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Children Who Resist Seeing a Parent

2026-05-29T17:49:21Z

Nate Russell: /* Views of the child reports */

{{JP Boyd on Family Law TOC|expanded = children}}{{JPBOFL Editor Badge
|ChapterEditors = [[Mary Mouat|Mary Mouat, KC]] and [[Samantha Rapoport]]
}}Children may resist seeing a parent after separation for many reasons. Whatever those reasons may be, it's always hard to be the parent a child doesn't want to spend time with. Because children's resistance to seeing a parent usually doesn't become obvious until the relationship between the parents has ended, it's easy to see how a child's preferences could be interpreted as something new that's been caused by the other parent's malicious behaviour. However, it's important to know that the reasons a child may not want to spend time with a parent range from innocent reasons related to the child's age, gender identity and stage of development, to understandable but more difficult reasons related to parenting styles, parental conflict and family violence, to truly blameworthy reasons stemming from a parent's intentional interference with the relationship between the child and the other parent.

This section provides an introduction to the problem of children who resist seeing a parent after separation and talks about possible solutions to the problem. It also discusses alienated and estranged children, as well as what the experts have to say about a largely discredited theory called Parental Alienation Syndrome. It also looks at the options available for dealing with children who resist seeing a parent after separation, and provides a selection of helpful online and printed resources.

==Introduction==

While parents are together, they usually sort out childrearing and childcare issues together. Sometimes they talk and negotiate how these things will work; for other parents, issues about the kids just seem to sort themselves out. However these issues are resolved, each parent's strengths, skills and interests usually work to offset the other parent's weaknesses. One parent might be better at homework, and take on the lion's share of helping the kids with school. Another parent might be more detail-oriented, and take care of booking parent-teacher conferences and appointments with medical and dental professionals. One parent might enjoy cooking more than the other, and wind up doing most of the meal planning and meal preparation as a result.

After separation, each parent's strengths and weaknesses are no longer buffered by the strengths and weaknesses of the other parent, putting their parenting styles into sharp contrast. A parent who never cooked needs to either master Skip the Dishes or figure out how the kitchen works in short order; a parent who wasn't responsible for discipline and making sure the kids are up on time and go to bed at a reasonable hour, now has to manage these tasks as well. This understandably creates anxiety for the parents — "She never cooked, how are the kids going to stay healthy living on pizza and hotdogs at her place?" — as well as confusion for the children. One parent might make a cozy, warm and welcoming home after separation, while the other might leave the walls blank and take a minimalist approach to furniture and other creature comforts. One parent might be a more rigid disciplinarian and insist that homework gets done right after dinner and impose strict rules about screen time, while the other might take a more relaxed approach to the children and let them free-range. One parent might be interested in the children's social lives, friend groups and conflict with bullies at school, the other parent might not be interested in these things and not talk to the children about them as a result.

It's rare for parents to be so well-matched that the homes they make, the lives they build, and the parenting expectations they set after separation are more or less the same.

These differences, coupled with the fact of separation, often give children choices and perspectives that they never had while their parents were together. There are a few reasons for this. First, while their parents were together, they had no choice about dealing with a parent they liked less than another parent, putting up with a punishment they thought was unfair, or dealing with household routines, like getting ready for school or getting ready for bed, that they didn't like. Second, while their parents were together, they had the benefit of the support both parents provided as well as the different parenting skills and approaches each parent offered, as well as the buffering effect that offsets each parent's weaknesses. After separation, when parents each make a new home for themselves, all of this changes.

Like it or not, it's easy for kids to form preferences for one parent over the other, and for one parent's home over the other. Sometimes this is a response to different approaches to parenting. Sometimes it results from different parenting skills, particularly when a parent is inflexible or intolerant, takes a harsh and erratic approach to discipline, or has problems with drug or alcohol use. Sometimes it's about the home environment, and which parent's home has bicycles, skateboards and scooters, which parent's home has the XBox or PlayStation console, which parent's home has more toys and stuffies, or which parent's home has a better selection of clothes and shoes and a more comfortable bed. It's also about the children, because as children age it's developmentally normal to have a preference for one parent over the other that changes back and forth as they get older and mature and their needs evolve.

This is normal; it happens all the time. It can become problematic when a child's preference for a parent or a parent's home — or, to put it the other way, a child's dislike of a parent or a parent's home — results in the child not wanting to spend time with a parent. Left unchecked, a child's dislike of a parent can grow into a complete, sometimes long-lasting, breakdown in their relationship with that parent.

In this section, we'll talk about the parent a child prefers to spend time with as the ''favoured parent'', as the ''preferred parent'', as the ''alienating parent'', depending on the context, or just as the ''parent the child prefers to spend time with''. We'll talk about the other parent as the ''rejected parent'', or as the ''parent the child resists seeing'' and similar terms.

===When children resist spending time with a parent===

When a child begins to form a preference for one parent over the other, the first sign that this might become a problem often occurs when the child begins to express a reluctance to spend time with the other parent. It's important to distinguish a simple reluctance, that might be appropriate for the child's age and stage of development or result from age-appropriate separation anxiety, from a more serious problem like estrangement or alienation. It's also important to distinguish between a reluctance that stems from the child's own feelings toward a parent and a reluctance that a parent encourages.

Normal reasons why a child might resist parenting time or contact with a parent include:

*a developmentally-appropriate preference for a parent,
*age-appropriate separation anxieties that make it difficult to leave a parent,
*challenges coping with the transition between homes, especially when there is a lot of conflict between the parents and when the two homes are very different in terms of environment, expectations and rules,
*not liking a parent's new partner,
*not wanting to leave an upset, emotionally-vulnerable parent at home alone,
*a dislike of a parent's parenting style,
*seeing or suffering family violence,
*a parent having issues with substance use and abuse, and
*parents who are in high levels of conflict with each other after separation.

Of course, any resistance to seeing one parent is, or at least should be, difficult for both parents. For the parent sending the child to the other parent, it can be heart-wrenching to force the child out the door and into the car against their complaints. For the parent receiving the child, it can be devastating to hear — from the other parent or the child — that the parenting time or contact is unwelcome and unwanted, and experience the profound sense of rejection, grief and loss that results.

It's important to know that each parent has a duty to nurture and encourage the children's relationships with the other parent. In the context of parenting after separation, this means helping the child look forward to seeing the other parent. In a more general context, this means actively fostering the child's relationship with the other parent and refraining from making negative remarks about the other parent.

In high-conflict situations, even parents who understand this basic duty can unconsciously telegraph their feelings about the other parent to the child. Children aren't stupid; they know that something's not right and they'll be painfully aware of the feelings each parent has toward the other. Even young children will pick up on non-verbal clues to a parent's feelings. This sort of unintentional communication includes:

*making faces, grimacing, groaning, cringing or shuddering when the other parent is mentioned,
*arguing with the other parent when the children can see or hear the dispute,
*making negative comments about the other parent when the children are within earshot,
*using an emotionless or negative tone of voice when speaking to the children about the other parent, and
*reacting in a flat or negative manner when the children talk about the other parent or their activities with that parent.

It's far worse when a parent ''intentionally'' expresses their negative feelings about the other parent to the child.

When a child begins to express a reluctance to visit the other parent, both parents must take action to stop the problem from getting worse. For the parent preferred by the children, this means that you must:

*work harder at encouraging the children to look forward to their time with the other parent,
*make sure that you are not a part of the problem by unconsciously broadcasting your feelings about the other parent,
*make a consistent effort to remind the children about the other parent's positive qualities and the fun they have with that parent,
*consider getting the children in to see a counsellor about the separation and their relationship with the other parent, and
*seriously consider taking a parenting after separation course.

For the parent whom the children are resisting seeing, this means that you must:

*work harder at making the children feel welcomed and listened to in your home,
*re-examine your approach to parenting issues, particularly if you were the disciplinarian during your relationship with the other parent,
*make sure that you are not insulting, mocking or belittling the other parent when the children are within earshot,
*consider getting the children in to see a counsellor about the separation and their relationship with you,
*consider seeing a counsellor yourself about your approach to parenting and your relationship with the children, and
*seriously consider taking a parenting after separation course.

None of these solutions may be effective if a child's opinion and emotions are too entrenched, if the parents are simply too angry with one another to cooperate effectively, or if one of the parents is actively working to undermine the child's relationship with the other parent. When things go too far, or when an emerging problem is left unchecked, a child's simple preference for one parent can develop to the point where the child is estranged or alienated from the other parent. We'll talk more about this later.

===Knowing when there's a problem===

An otherwise normal resistance to parenting time or contact can cross the line when the child's opinion of the parent, and their emotional attachment to that parent, begins to change. Temper tantrums about a visit and expressions of rage and hate should send a loud and clear signal that both parents have to work a lot harder to help the child through their experience of the separation. Mild expressions of a change in the child's attachment to a parent include:

*expressing ambivalence about visiting the parent, in other words, not caring one way or the other about seeing the parent,
*grumbling about having to go to see the other parent, and
*stating a preference for particular activities, like playing a game or seeing friends, over seeing the other parent.

More serious expressions of a change in the child's attachment to a parent include the child:

* expressing a preference for one parent over the other, and a general ambivalence about the other parent,
* expressing a stong preference for one home over the other,
* expressing concern about missing the parent the child is leaving,
* being upset that an activity, like playing a game, going on an outing or seeing friends, will be interrupted by their time with the other parent,
* saying that their time with the other parent is boring, and
* being reluctant to speak to the other parent on the telephone.

Much more serious expressions of a change include the child:

* saying that they don't like the other parent,
* occasionally putting the other parent down,
* expressing concern for the well-being of the parent the child is leaving, in the case of older children,
* crying before the visit, in the case of younger children,
* complaining that it's not fair to have to visit, in the case of older children,
* offering promises, like studying harder or doing more chores, in exchange for not having to spend time with the other parent,
* claiming that the other parent doesn't parent properly and does things like providing bad food, imposing unfair discipline and making them do things they don't want to do, and
* refusing to talk to the other parent when they telephone.

The most serious expressions of a change in the child's attachment to a parent include the child:

* throwing temper tantrums before leaving to spend time with the other parent, in the case of younger children,
* becoming enraged about being forced to go to the other parent, in the case of older children,
* saying that they hate the other parent,
* making threats about running away or involving the police, in the case of older children,
* pleading to do anything except go on the visit,
* making bizarre and unlikely claims about the other parent's behaviour, like making claims about abuse, neglect and so forth, and
* constantly making insulting comments about the other parent or putting the other parent down.

Even mild indications that a child is growing emotionally distant from a parent are disturbing and deserve attention by both parents. When a child is clearly heading from feeling ambivalent about a parent to feeling hatred towards that parent, parents should seriously consider getting the child and themselves in to see a mental health professional who specializes in helping children cope with and adjust to the separation of their parents. It's often helpful for parents themselves to find some counselling of their own as well, and get input on how to approach parenting time and contact issues with the child.

===A few notes from John-Paul Boyd===

I am not a psychologist, a psychiatrist, or a counsellor. As a result this section should be read with a grain of salt, as it's based on my observations of my clients' experiences, a bit of research, and some common sense. For the same reason, be cautioned that this section should not be used as an authority for the propositions it sets out.

I also wish to acknowledge that much of this section was drawn from two sources in particular: Dr. Deirdre Rand's 1997 article, "[https://psycnet.apa.org/record/1997-41332-003 The Spectrum of Parental Alienation Syndrome (Part II)]" in the American Journal of Forensic Psychology; and, a 2001 article by Drs. Joan Kelly and Janet Johnston, "[https://psycnet.apa.org/record/2002-11679-001 The Alienated Child: A Reformulation of Parental Alienation Syndrome,]" published in ''Family Court Review''. Both articles are excellent and should be read if you believe that estrangement or alienation is an issue in your family.

==Parental alienation==

The alienation of children from parents in the course of high-conflict family law litigation was first noted by the mental health community in 1976. In 1987, Dr. Richard Gardner gave this problem the label "Parental Alienation Syndrome," which he used to describe a disorder in children that he said occurs in the course of disputes between separated parents about their children's parenting arrangements.

Gardner's take on this problem was not without controversy and the problem and Gardner's theory has continued to be studied, critiqued, and updated by the mental health community. In fact, I think it's fair to say that Parental Alienation Syndrome, as Gardner originally framed it, has largely been discredited. No one doubts that alienation can occur when parents separate; the questions raised by mental health and other professionals largely concern whether Parental Alienation Syndrome is a diagnosable "syndrome" at all, and the fact that more current research shows that there are many reasons why a child can come to resist seeing a parent other than alienation. The current thinking on alienation, and a related problem called estrangement, has become quite nuanced. The most recent significant work on parental alienation comes from Drs. Joan Kelly and Janet Johnston, but since Gardner came up with his formulation of Parental Alienation Syndrome first, that's where we'll start.

===Gardner's Parental Alienation Syndrome===

In 1997, Dr. Deirdre Rand published an article called "[https://psycnet.apa.org/record/1997-41332-003 The Spectrum of Parental Alienation Syndrome (Part II)]" in the ''American Journal of Forensic Psychology'', summarizing and updating Gardner's theory. In that article, Rand describes Parental Alienation Syndrome as the child's formation of an "alignment" with one parent against the other. Think of ''alignment'' as meaning an alliance, or a sense of allegiance, in which a child comes to share the views and emotions of one parent over those of the other parent.

A study by Johnston and Dr. Linda Campbell in 1988 found a measurable degree of alignment between children and one parent in 35 to 40 percent of the high-conflict cases they studied. In a 1993 article entitled "Children of Divorce who Refuse Visitation," Johnston reported finding strong alignments in 28 to 43 percent of 9- to 12-year-olds in high-conflict cases, with another 29 percent showing symptoms of a mild alignment.

According to Rand, children align differently depending on their ages:

*'''2- to 3-year-olds:''' Mostly show age-appropriate separation anxiety from their primary parent. This anxiety worsens when the primary parent is emotionally disturbed.
*'''3- to 6-year-olds:''' Alignments shift depending on which parent the children are with. Children in this age range have not yet learned to understand two different points of view, and cannot understand why one parent says one thing and the other parent says another.
*'''6- to 7-year-olds:''' Children in this age range are sensitive to hurting their parents, and often have conflicting loyalties between one parent and the other.
*'''7- to 9-year-olds:''' Children this old are able to understand each parent's point of view and understand how one perspective can conflict with another.
*'''9- to 12-year-olds:''' Children in this age range are the most vulnerable to Parental Alienation Syndrome, as they are old enough to establish a strong alignment with one parent, and are old enough to try resolving conflicts of loyalty by "picking" one parent over the other.
*'''Teenagers:''' Children's alignments often continue into their mid-teens. Many teens are able to take a more mature and independent, and sometimes critical, view of their parents' fight, but a significant number of teens maintain their alignment and continue to reject one parent in favour of the other.

According to Rand and Gardner, children are about twice as likely to form alignments with their mothers than they are with their fathers, meaning that mothers are twice as likely to engage in alienating behaviour. (In fact, in his original writing about Parental Alienation Syndrome, Gardner claimed to see evidence of alienation in 90 percent of the children he saw in his clinical practice, and that, for these children, their mothers were the alienating parent 90 percent of the time!)

Rand says that Parental Alienation Syndrome is a risk whenever parents must litigate a parenting dispute. This risk increases when one or both parents make claims that attack the integrity, moral fitness, or character of the other parent. (Claims like these are typically hard to defend, and put one parent on the defensive while giving the other parent an often unwarranted sense of moral superiority.) She notes that the statistical risk of Parental Alienation Syndrome increases when: the parent perceived to be responsible for the breakdown of the relationship becomes involved in a new relationship shortly afterwards; or, a parent leaves the relationship suddenly. In my view, a third risk factor occurs when a parent's immediate family members vigorously support the parent's cause and encourage the parent's negative feelings about the other parent.

Rand and Gardner identify five types of behaviour that they say are characteristic of Parental Alienation Syndrome:

*'''Rejecting:''' The parent rejects the child's need for a relationship with both parents. The child fears abandonment and rejection by the alienating parent if positive feelings are expressed about the other parent.
*'''Terrorizing:''' The alienating parent bullies the child into being terrified of the other parent, and punishes the child if the child expresses positive feelings about the other parent.
*'''Ignoring:''' The alienating parent withholds love and attention from the child if the child expresses positive feelings about the other parent.
*'''Isolating:''' The alienating parent prevents the child from participating in normal social activities with the other parent and that parent's friends and family.
*'''Corrupting:''' The alienating parent encourages the child to lie about and be aggressive toward the other parent. In very serious cases, the alienating parent will recruit the child to assist in deceits and manipulative behaviour intended to harm the other parent.

To this list, I would add two more categories:

*'''Distracting:''' The alienating parent sets up oppositional activities, goals, or interests that are highly valued by the child but conflict with the other parent's time with the child.
*'''Resigning:''' The alienating parent ceases to accept responsibility for the child's time with the other parent, and seems to leave it up to the child to decide whether to go or not go. This forces the child to make the choice to see the other parent, knowing that the alienating parent doesn't want the child to go at all, putting the child in a loyalty conflict.

Gardner suggested that, when the courts find that a child is suffering from Parental Alienation Syndrome, the best and maybe only solution is for the court to order that the child be placed into the full-time care of the parent the child rejects, in order to insulate the child from the ongoing malignant influence of the alienating parent.

===Reaction to Gardner's Parental Alienation Syndrome===

As you can imagine, lawyers loved the idea of Parental Alienation Syndrome when Gardner first wrote about it, especially in the United States where it became a rather trendy strategy in high-conflict parenting cases.

While lawyers might have loved the theory, it did raise lots of other problems. Men's rights groups liked it because the majority of parents perpetrating Parental Alienation Syndrome were said to be women, because Gardner's work seemed to give them the credible scientific backing that would turn the tide in courts they perceived to be biased in favour of women, and because Gardner's recommended response to Parental Alienation Syndrome would have the children removed from the other parent and placed in their primary care. Women's groups hated it as a sexist and unscientific piece of claptrap that was often used to sidestep and trivialize serious concerns about family violence and poor parenting skills.

The courts didn't like it because implementing Gardner's recommendations would require them to place the child in the home of the "hated" parent, which was plainly the last thing the alienated child wanted. Here, for example, is what the judge said in [https://canlii.ca/t/1r9wc A.A. v S.N.A.], a 2007 decision of the Supreme Court:

<blockquote>[77] If custody is transferred to [the father], the immediate effect of that change will be extremely traumatic to [the child]. She may or may not adjust in a reasonable length of time. She will have to be forcibly removed from the custody of her mother, either by the authorities arriving at her school and physically apprehending her or by forcibly apprehending her from her mother. Her mother will not cooperate. In my view, [the child] will, with much justification, conclude that she is being forcibly dealt with in a manner that completely ignores her integrity and her wishes. ...</blockquote>

The mental health community has been split on Parental Alienation Syndrome for a number of reasons, including that:

*there is no scientific support to give Parental Alienation Syndrome status as a diagnosable syndrome, and Parental Alienation Syndrome is still not recognized as a "syndrome,"
*the theory focuses almost exclusively on the alienating parent as the cause of the child's rejection, glossing over other important contributing factors, and
*Parental Alienation Syndrome is overly simplistic and frequently misapplied.

===Rethinking Parental Alienation Syndrome===

In their 2001 article "[http://jkseminars.com/pdf/AlienatedChildArt.pdf The Alienated Child]", published in ''Family Court Review'', Kelly and Johnston propose a reformulation of Gardner's theory that focuses primarily on the child rather than on the alienating parent, on the principle that there are many different factors that can cause a child's relationship with a parent to break down other than the actions of a malicious parent who intends to undermine the child's relationship with the other parent. Kelly and Johnston made the important observation that children's relationships with their parents fall on a spectrum that runs from the child wanting a positive relationship with both parents to the child being pathologically detached from one parent:

::{| width="65%" class="wikitable"
|-
|style="width: 25%" align="center"|POSITIVE RELATIONSHIP with both parents||style="width: 40%" align="left"|Child prefers to have time with both parents
|-
|align="center"|AFFINITY with one parent||align="left"|Child prefers to have time with both parents
|-
|align="center"|ALLIANCE with one parent||align="left"|Child prefers one parent, and expresses ambivalent feelings about the other
|-
|align="center"|ESTRANGED from one parent||align="left"|Child rejects one parent and may either be ambivalent about that parent or express a strong dislike for that parent
|-
|align="center"|ALIENATED from one parent||align="left"|Child rejects one parent and expresses a strong dislike for that parent
|}

Central to this reformulation of Gardner's theory are these important ideas:

*children should be the primary focus of any investigation into the breakdown of their relationship with a parent, not just the behaviour of one of their parents,
*children can grow apart from a parent for objectively good and justifiable reasons, which the authors call ''estrangement'', and
*there are many more potential factors that might cause a child's relationship with a parent to break down, including developmentally-normal factors, than just the actions of a parent who is actively trying to harm the child's relationship with the other parent.

Kelly and Johnston do not reject Gardner's suggestion that malicious, alienating parents exist, but they do broaden the scope of things that should be considered when looking into the breakdown of a child's relationship with a parent. Most importantly, they point out that there are many reasons why a child might resist seeing a parent, and that the reasons why a child might resist seeing a parent are complex and nuanced. Part of the key to understanding the important points Kelly and Johnston make is the difference they draw between ''estranged children'' and ''alienated children''.

====Estranged children====

The difference between an estranged child and an alienated child is that an estranged child has grown apart from a parent for reasons that are, to be blunt, reasonable and understandable from the child's perspective. An alienated child, however, is the victim of one parent's efforts to destroy the child's relationship with the other parent.

An estranged child is either absolutely ambivalent about a parent or enraged by that parent, and doesn't want to spend time with them. These feelings are, most importantly, justified by the child's experience of the separation or by the child's experience of that parent. (In fact, some researchers use the term "justified rejection" when talking about estrangement.) These children have usually become estranged from a parent for reasons that a stranger would understand and sympathize with, such as:

*witnessing family violence committed by that parent against the other parent,
*being the victim of family violence at the hands of that parent,
*the parent's persistently immature and self-centered behaviour,
*the parent's unduly rigid and restrictive parenting style, and
*the parent's own psychological or psychiatric issues.

The point here is that the feelings of estranged children have grown from the child's actual, lived experience. In cases of estrangement, the child's rejection of a parent is ''reasonable'', and is an adaptive and self-protecting response to the rejected parent's behaviour and their interactions with the rejected parent. The feelings of alienated children, however, are neither reasonable nor primarily the result of the rejected parent's conduct.

====Alienated children====

Alienated children usually reject a parent without guilt or sadness, and do so without an objectively reasonable cause that stems from the rejected parent's behaviour or the child's interactions with the rejected parent. The children's views of the rejected parent are usually distorted and exaggerated.

Alienation is most easily defined as the breakdown of a child's relationship with a parent as a result of the other parent's efforts to turn the child against the rejected parent. Typically, alienation only becomes a problem when the parents are involved in extremely bitter and heated litigation about the children's parenting arrangements. Not every case of high conflict litigation involves alienation, of course, but alienation can and does happen.

The intentional alienation of a child from a parent is absolutely wrong and strikes me as virtually inexcusable and unforgivable. Some writers even say that alienation amounts to child abuse, a position I tend to agree with. As Dr. Michael Bone and Michael Walsh put it in their article "Parental Alienation Syndrome: How to detect it and what to do about it," published in 1999 in the ''Florida Bar Journal'', 73(3): 44–48:

<blockquote>"Any attempt at alienating the children from the other parent should be seen as a direct and willful violation of one of the prime duties of parenthood."</blockquote>

While the parent most likely to attempt to alienate a child from the other parent is the parent who has most of the child's time, usually because of an interim order or some other sort of temporary arrangement, there are a small number of cases in which the parent with the least of the child's time has attempted to alienate the child from the parent with most of the child's time.

The sorts of behaviours that suggest an intention to alienate a child from the other parent include, among other things:

*persistently making negative comments about the other parent to the child,
*stating or implying that the child is in danger when with the other parent,
*grilling the child about their activities, meals and living conditions when with the other parent,
*stating or implying that the activities, meals and living conditions offered by the other parent are deficient or problematic,
*setting up activities that the child will enjoy during times when the child is with the other parent but cannot do with the other parent,
*telling the child that it's up to them to decide whether to visit the other parent, and
*stating or implying that the child is being abused or maltreated by the other parent.

The consequences of alienation or attempted alienation can be quite profound. Alienation at its best is a form of psychological programming; at worst, it's brainwashing. Alienation may result in the permanent destruction of a child's relationship with the rejected parent and in long-lasting psychological problems for the alienated child. In Dr. Glenn Cartwright's article "[https://psycnet.apa.org/record/1994-13185-001 Expanding the Parameters of Parental Alienation Syndrome]," published in the ''American Journal of Family Therapy'' in 1993, a number of long-term psychological problems were found in children who had been the victims of alienation, including:

*depression, anxiety and stress,
*delayed emotional maturity,
*psychosomatic illnesses, and
*long-term feelings of guilt and loss.

In Dr. Anita Lampel's article "[http://www.canadiancrc.com/Parental_Alienation_Syndrome_Canada/lampel96.pdf Children's Alignment with Parents in Highly Conflicted Custody Cases]," published in the ''Family and Conciliation Courts Review'' in 1996, these psychological problems were found to include:

*being angrier than children who had not been alienated from a parent,
*being less well-adjusted, and
*being less able to conceptualize complex situations.

Other researchers describe other potential impacts of alienation, including higher rates of substance use and abuse as adults, higher rates of separation and divorce as adults, and higher rates of suicide and other self-harming behaviours.

===Contemporary perspectives on alienation and estrangement===

Gardner's Parental Alienation Syndrome continues to live on in popular culture, especially among men's rights groups, often without the dose of tempering wisdom offered by more recent research such as the work of Kelly and Johnston. Claims that a child doesn't want to see a parent because of alienation are commonplace in Canada's courts, but rarely proven. Some lawyers even think that the rate of cases involving alienation claims is on the rise.

Part of the problem understanding children who resist seeing a parent after separation is that it's hard for the rejected parent to engage in a sometimes painful reflection on their past history as a parent. It's difficult to ask whether ''you'' might be the reason why your child doesn't want to see you. On the other hand, what's really easy — and emotionally gratifying as well! — is to avoid that awkward introspection and point the finger at the other parent and claim alienation.

On the other hand, these claims put the parent accused of alienation in a difficult spot too. They can't say that they're even a tiny, little bit responsible for how the child feels about the other parent, for fear of damaging their legal position in the eyes of the judge. Instead, all these parents can reasonably say is that they had nothing at all to do with the child's feelings, and that the problem lies entirely in the poor parenting provided by the rejected parent.

And for their part, judges and lawyers are not mental health professionals. Law school doesn't teach ''anything'' about psychology, family breakdown and children's responses to the separation of their parents. Not a thing! We are ''not'' experts in psychology, let alone in complex issues about estranged children and alienating parents. So, where does the expertise we need come from? Often the only way to get objective information about a claim of alienation comes from a parenting assessment conducted by a psychologist, clinical counsellor or social worker, and these reports can be really, really expensive and take a lot of time to complete. As a result, when alienation claims come to court, quite a few of those claims are presented without the input of an expert, and you can imagine how challenging cases involving a child's resistance to seeing a parent might be.

====Attachment disruption====

One way to crack the problem is to focus on the basic problem — a child's reluctance to spend time with a parent — rather than on concepts like alienation and digging into whose behaviour is responsible for what. One way of looking at the problem of children who resist seeing a parent after separation is from the perspective of ''attachment theory''. Attachment theory was first proposed by Dr. John Bowlby, a psychiatrist, in 1988, drawing on earlier research conducted by Dr. Mary Ainsworth in the 1960s and 1970s. It describes how children bond with their parents, and how the quality of this bond can have life-long implications for the wellbeing of children and wind up impacting their relationships with parents, friends and future partners down the road. Attachment theory has been widely researched and remains a cornerstone of how mental health professionals think about families and family relationships.

Looking at a child's reluctance to see a parent from an attachment point of view, the one thing that claims of estrangement and alienation have in common is the obvious breakdown in the attachment between the child and the rejected parent. The idea that there has been a disruption in the child's attachment to that parent is something that both the favoured parent and the rejected parent can agree on... perhaps the only thing they can agree on. If we get rid of labels like "alienation" and "Parental Alienation Syndrome," neither of which tend to be well understood by lawyers or by litigating parents anyway, and focus on the problem of attachment disruption, we can start looking at the problem without having to worry about which parent did what and we can do that without the usual finger-pointing, rancour, blaming and anger that accompany claims about alienation.

Although the cause of the problem is still important, parents, lawyers and judges still have the same set of tools to deal with a child's resistance to seeing a parent as they do when the child's resistance is said to be caused by the malicious actions of the favoured parent or the incompetent parenting of the rejected parent. Plus, in my experience, I have never had a case of attachment disruption that resulted wholly from "alienation" or from "estrangement." In the cases I've dealt with, a child's reluctance to see a parent usually results from a combination of factors that suggest alienation and factors that suggest estrangement; these cases are rarely one or the other.

====Resist-refuse dynamics====

"Resist-refuse dynamics" is a term that has begun to gain a lot of traction within the legal and mental health communities. It's another way of trying to focus on the basic problem without using the labels of "alienation" and "estrangement," and all the baggage and misunderstandings that come with those terms. Like attachment disruption, this term suggests a child-centred examination into why the child is reluctant to spend time with a parent and proposes that there are many more potential factors at play than just the malicious actions of one parent or the poor parenting of the other.

====The research on alienation and estrangement today====

There's good news and bad news here. The bad news is that we continue to lack long-term, large-population, high-quality research about children who resist contact with a parent after separation. The research currently available uses only small numbers of people, and is often confined to the people that psychologists see in their normal, day-to-day practices. We still don't have a definition of "alienation" that is widely accepted, although to my mind the way that Kelly and Johnston talk about alienation and estrangement seems closest to the mark. We also don't have a lot of good research about the legal and therapeutic responses to children who resist seeing a parent that could tell us which responses work best. While most writers on the subject suggest that courts should assign judges to these cases early on, judges who continue to be involved in these cases as case managers, most courts don't have enough judges or enough court time to make case management a practical solution.

The good news is that there has been lots of research on different aspects of alienation and the problem of children who resist seeing a parent, although this research tends to rely on small numbers of people and tends not to be conducted over the lengthy periods of time necessary to really understand the impact on children and their wellbeing. There are also a lot of very good books, articles and essays about children who resist seeing a parent, some of which are listed below, and there are an increasing number of mental health professionals who have made working with families and children who resist contact their priority and are developing specialized programs to address the issue. We also have some good, creative ideas about the kinds of legal and therapeutic responses that do help, and those that might help, although we don't know nearly enough about how effective these responses are, especially over the long term.

The other bit of good news is that more and more judges and lawyers are familiar with the alienation and the problem of children who resist spending time with a parent, although many of these legal professionals don't have a deep understanding of the issues and may not know much more about them than the basics of what Gardner had to say about his Parental Alienation Syndrome.

==Responding to children who resist spending time with a parent==

It's usually important to take action when a child begins to resist spending time with a parent after separation, and many parents will want to start trying to find out what's going on for the child as soon as possible, perhaps when the child begins to demonstrate some of the more serious behaviours identified above, in the "Knowing when there's a problem" part of this section.

Hopefully, both parents will see the deterioration in the child's relationship with a parent as a problem. If that's the case, then their first steps should probably be to get help from a mental health professional with expertise in working with families and family breakdown. Because the problem isn't just the child's problem, it isn't just the child who will need to see the psychologist or counsellor. The favoured parent might need help supporting the child's relationship with the rejected parent and responding to the child's negative remarks about that parent. The parent the child doesn't want to see might need help coping with the rejection they may feel, rebuilding their relationship with the child and changing their approach to parenting.

If both parents don't see this as a problem, which is most likely to occur when the parents are in court arguing about the children's parenting arrangements, the parent the child doesn't want to see may have to ask for orders to address the problem. It's important to understand, however, that judges don't have a magic wand they can wave and heal the relationship between a child and their parent. Judges simply don't have that power. While there are orders the court can make that can help children overcome a reluctance to see a parent, if a solution to that problem exists anywhere, it lies in the counselling and therapeutic services provided by mental health professionals. You're not going to find a cure in court.

===Legal and therapeutic responses===

There are a number of orders the court can make to deal with the problem of a child's reluctance to see a parent. These are the ''legal responses'' available when a child resists seeing a parent. The ''therapeutic responses'' consist of the different kinds of help available from mental health professionals.

It may be necessary to ask the court for orders when one or both parents won't agree to take steps to support and foster the child's relationship with the rejected parent. These orders might include adjusting the children's parenting plan, limiting how and when the parents interact with each other, and enforcing orders and agreements that say when a child will see their parents. Other orders can require children and parents to participate in one or more of the available therapeutic responses. The kind of orders that are most likely to help will change depending on the circumstances, the age and maturity of the child, and the extent of the breakdown in the child's relationship with the rejected parent.

====Intervene early====

It can be important to get professional help to figure out what's going on as soon as a child begins to demonstrate a continuing reluctance to see a parent or any other sign that problems are developing, or already exist, in the child's relationship with a parent. Involving mental health professionals right off the bat can help stop the problem from getting worse and maybe even suggest ways of fixing the problem. The potential roles mental health professionals can play at this early stage are about diagnosis, figuring out what the problem is, and providing ongoing therapeutic help.

If you need help getting you, the other parent or your child in to see a counsellor or psychologist, section 224(1)(b) of the ''[[Family Law Act]]'' allows the court to make orders that:

<blockquote><tt>require one or more parties or, without the consent of the child's guardian, a child, to attend counselling, specified services or programs.</tt></blockquote>

This sort of early intervention is especially important if the child's time with the rejected parent is already limited. Don't wait, do it now. Find out what's going on.

====Set a schedule of parenting time====

Another good early step is to apply for an order for parenting time, under section 45 of the ''Family Law Act'' or section 16.1 of the ''[[Divorce Act]]'', that provides a specific schedule for the child's time with each parent. These orders can give the rejected parent specific, set periods of time with the child, on a schedule neither parent can control, and ensure that the child continues to see the parent despite their resistance.

Orders about parenting time are relatively easy to enforce, and a failure to follow orders always makes a parent look bad in court. See the section "[[Enforcing Orders, Awards and Agreements Involving Children|Enforcing Orders, Awards and Agreements]]" for more information.

====Address problems with a parent's behaviour====

When the behaviour of the favoured parent is or might be part of the problem, another step is to ask the court to include in the order terms about parenting time that are aimed at managing bad behaviour. Section 218 of the ''Family Law Act'' and section 16.1(5) of the ''Divorce Act'' allow the court to include any terms and conditions it thinks appropriate in parenting orders. Helpful terms might include requirements that a parent:

*not speak badly of the other parent to the children or within the children's hearing,
*not allow others to speak badly of the other parent in front of the children, and
*support and encourage the children's relationship with the other parent.

When the conflict between the parents is contributing to the problem, other terms might talk about the parents' behaviour when the children are being exchanged from one parent to the other, for example by limiting face-to-face contact between the parents at exchanges, or managing how the children are exchanged, such as requiring them to be dropped off and picked up through school.

====Get a parenting assessment====

Section 211 of the ''Family Law Act'' allows the court to order that a mental health professional, including psychologists, clinical counsellors, social workers and Family Justice Counsellors, conduct an assessment of the needs of a child, the views of a child, and the ability and willingness of the parties to meet the child's needs. To prepare these reports, assessors will usually speak to both parents, interview the children, if the children are old enough, watch each parent engage and interact with the children, and interview other people with knowledge of the family, including friends and family members. They will also read any reports about the children that may be available, including medical and psychiatric reports, psych-ed assessments and so on. Assessors who are psychologists will also usually ask the parents to complete psychological tests like the Minnesota Multiphasic Personality Inventory.

When a child is resisting spending time with a parent, a parenting assessment can provide parents and the court with valuable information about the relationships between parents, between siblings, and between the parents and their children. Usually, these reports are sought to get recommendations and information about the parenting arrangements that are likely to be in the best interests of the children. However, they can also be used to look into specific issues, like the reasons why a child is resisting seeing a parent, and get recommendations about the things that can be done to restore the relationship between the child and the rejected parent.

While these reports are often invaluable, and can help parents settle their legal disputes, they're also often very expensive. Family Justice Counsellors are government employees, usually social workers, attached to the Provincial Court who will prepare parenting assessments for free. The demand for their services is huge, as you'd probably expect, and their reports can take many months to start and finish as a result. Reports prepared by other mental health professionals cost money and will be paid for by the parents. While these reports will be available much sooner than the reports of Family Justice Counsellors, the cost can range from $10,000 to $20,000, depending on the circumstances and complexity of the case, the number of children, and whether the assessor must travel to meet the family.

====Ask for case management====

A lot of people, including Kelly and Dr. Matthew Sullivan, strongly recommend that family law cases involving claims of alienation be managed by a single judge, so that all court appearances leading to the trial are dealt with by the same person. The idea behind this sort of case management is that the judge learns about the family, gains an understanding of the family's needs and dynamics, makes sure that the case stays on track, and makes sure that orders are both followed and adapted as needed to better suit the family's changing circumstances.

I think the idea of case management is a great idea for all families who are in court and engaged in higher levels of conflict. However, the courts of British Columbia just don't have the resources to take this kind of an approach as a general rule. Sometimes, a judge may agree or volunteer to "seize" themself of a case, which means that the judge will deal with all of the family's court appearances except for the trial, until the judge "unseizes" themself of the case. Seizing themselves of a case can be very challenging for judges, never mind court administrators, as it adds to the judge's workload and creates huge scheduling problems, usually with the result that appearances are handled before the start of the usual court day or after the end of the court day.

====Look for specialized interventions====

Section 224(1)(b) of the ''Family Law Act'' can also be used to get orders that parents and children get special kinds of counselling specifically to address the problem in the relationship between a child and the parent they don't want to spend time with. This sort of counselling is provided by mental health professionals, usually psychologists and clinical counsellors, who specialize in family breakdown, family relationships and attachment disruptions. In fact, a number of mental health professionals in the province have created programs aimed at helping children restore their relationships with parents they resist spending time with.

The available therapeutic interventions include:

*'''Regular counselling''', the kind of basic, affordable counselling most people are familiar with. This is an easily-accessible option, but it's helpful to make sure that the therapist has experience dealing with attachment issues and family breakdown.
*'''Coordinated counselling''', involving several different therapists working with different family members, all under the management of a team leader. This will be more expensive because of the number of people involved, but it offers a good opportunity for the therapists to coordinate their work. It can also be hard to find therapists who are willing to work together.
*'''Non-residential treatment programs''' specifically aimed at separated families dealing with a child's reluctance to see a parent. These programs usually involve a team approach under the guidance of a team leader and a treatment agreement that outlines how the therapists will talk to each other about the family and coordinate their responses. There are lots of benefits to this kind of program, especially when the therapists involved are specialists in the area of attachment and attachment breakdown, but these programs can be hard to find and cost a lot of money.
*'''Residential treatment programs''' that are also specifically aimed at separated families dealing with a child's reluctance to see a parent but are shorter, far more intense and require the children and one or both parents to live in a camp-style setting. These programs are available primarily in the United States.

What's really important to understand about these interventions is that they're not geared toward helping a parent "prove" alienation; they're about helping the child have a normal relationship with the parent they have rejected. They're not about who's right and who's wrong, they're about trying to restore the child's relationship with the parent they don't want to spend time with, rebuild a healthy attachment between the child and that parent, and support the child's best interests, growth and wellbeing.

====Adjust the children's parenting arrangements====

There are a number of ways that schedules of parenting time may need to be adjusted when a child resists seeing a parent.

Most commonly, parenting arrangements are changed to clarify and reduce ambiguity in parenting schedules, particularly in high-conflict cases. The purposes of changes like this are to eliminate either parent's discretion to avoid complying with the children's parenting arrangements and make sure that the child's time with each parent happens as it is planned to happen.

Sometimes parenting arrangements are changed to reduce a parent's time with the children, particularly when it is suspected that the parent is undermining the child's relationship with the other parent. When the problem is particularly difficult, parenting arrangements may be changed to require that the favoured parent's time with the children be supervised. This will usually only be appropriate as an extreme measure when the parent simply cannot be trusted to refrain from trash-talking the rejected parent to the children and sabotaging the children's relationship with that parent, or just refuses to stop engaging in these behaviours.

In extreme cases, parenting arrangements may be changed to suspend or terminate the favoured parent's time and communication with the children, usually with the result that the children have their primary home with the rejected parent. This is a drastic remedy as it puts the children in the home of the parent they don't want to spend time with, and can be fairly traumatic as a result. Orders like these require the court to be convinced that the long-term benefit to the children outweighs the discomfort they'll feel in the short-term, and are usually only made where the court believes that the favoured parent is trying to alienate the children from the other parent. These orders are rare, but they do get made from time to time.

===Risky responses===

By "risky responses," I mean legal responses to children's resistance to seeing a parent that have a chance of backfiring, and making the situation worse rather than better. These include getting views of the child reports and asking for orders that a parent be found in contempt of court, asking for orders for court costs from the favoured parent, and enforcing orders about parenting time using the peace officer enforcement provisions of the ''[[Family Law Act]]''.

====Views of the child reports====

There are two kinds of reports that are limited to describing the children's views, ''evaluative'' views of the child reports, prepared under section 211(1)(b) of the ''Family Law Act'', and ''non-evaluative'' views of the child reports, prepared under sections 37(2)(b) and 202 of the act. These reports are sometimes also called "hear the child" reports and "voice of the child" reports, but they're both focused on speaking to a child and describing what the child has said. ("Evaluative" reports are prepared only by mental health professionals and include the author's opinion of the child's views, while "non-evaluative" reports can be prepared by anyone with the right training and experience, and contain only a factual statement of what the child has told the author.)

These reports are often used to get a statement of the child's views for the purposes of the best-interests tests in sections 37 and 38 of the ''Family Law Act'' and section 16 of the ''[[Divorce Act]]''. While they're normally very helpful, in cases where a child is estranged or alienated from a parent, their helpfulness is limited. Reports in circumstances like these may only deepen the disruption in the child's attachment to the rejected parent as they give the child the chance to confirm their negative views about that parent, and put those views on the record. In cases like this, views of the child reports may only serve to tell everyone what they already know, and making a permanent record of the child's views may make it impossible for the child's relationship with the rejected parent to ever heal.

====Contempt applications and cost awards====

When someone fails to follow a court order, they are said to have "breached" the order, and breaching an order is called ''contempt of court''. One way of enforcing a court order is to make an application to court asking for an order that the other person be found "in contempt" for breaching a particular term of a particular order in a particular way. When contempt is proven, the court may make orders intended to punish the person who breached the order by issuing fines, sending them to jail, or requiring them to perform community service of some nature. (The court has lots of other choices as well.) Contempt applications are serious business.

Sometimes a contempt application, or the threat of a contempt application, is what's necessary to force someone to comply with a court order. However, where a child is estranged or alienated from a parent, a contempt application could inadvertently wind up reinforcing the child's negative views of the rejected parent by making the favoured parent look like a victim. In cases of alienation in particular, a contempt application may just feed into the idea that the rejected parent is being unfair, mean or nasty to the favoured parent.

"Costs awards" are orders that one party be paid their ''costs'' of an application or a court proceeding by another party to that application or proceeding. "Costs" doesn't mean that one party has to pay the full bill of the other party's lawyer, but they will have to pay for the lawyer's out-of-pocket expenses for things like filing fees and photocopying, plus an additional amount that usually works out to maybe 35 to 40 percent of the lawyer's bill. ("Special costs" require a much larger payment, and "solicitor-client" or "lawyer-client" costs require the payment of an amount equal to the lawyer's bill.) Costs awards aren't often made in family law cases because of their financial impact on the party who has to pay them.

Like contempt orders, an award of costs, special costs or lawyer-client costs may also wind up reinforcing the child's negative views of the rejected parent by making the favoured parent look like a victim. It can be tempting to ask for costs awards when the behaviour of a parent is particularly bad, but be careful about how the award might ultimately undermine the rejected parent's chances of rebuilding a relationship with their child.

====Peace officer enforcement====

Section 231 of the ''Family Law Act'' allows the court to make an order requiring a peace officer, including a police officer, to take a child and deliver the child to a parent if the court believes that parent has been "wrongfully denied" parenting time by the other parent. The court may order that the officer enter any place where the child is being kept, seize the child, and take the child to the other parent.

As you can imagine, this is a pretty serious order. Peace officer enforcement orders are only made in extreme circumstances, when the court is satisfied that nothing else will get a parent to follow an order. Some parents may feel that this is the only way they can get a parent to follow an order for parenting time, and sometimes that's true. In cases where a child is estranged or alienated from a parent, however, the effect of the police showing up at the door to forcibly remove the child from the favoured parent can be devastating. It's easy to see how this sort of thing would feed into the story the favoured parent tells about the rejected parent, and make the rejected parent look like a bully. Be careful of asking for these orders in cases of estrangement and alienation.

===When responses fail===

Sometimes, there's nothing that can done to restore the relationship between an estranged or alienated child and the rejected parent. Counselling and other interventions may not have succeeded; a child's negative views of a parent may have been allowed to sit for so long that they are deeply entrenched and can't be changed; or, steps to enforce a parenting schedule may have failed in the face of a child's threats to run away or hurt themselves if they're made to see a parent. At other times, a parent may have run out of money and not be able to continue fighting for the actions that might revive the child's relationship with them. The emotional toll of the fighting in court may be too much; or, all of the battles in court may be causing more harm to the child than the benefit of restoring the child's relationship with a parent.

In circumstances like these, a rejected parent may decide to give up the fight, or a judge may decide that nothing is ever going to change the child's views about the parent. While these outcomes are tragic and profoundly upsetting, sometimes it's best, and even necessary, to just stop.

It's important to know, however, that reconciliation between the child and the parent can still occur, although this may not happen until later in the child's life, when the child is older and more mature. This sort of "spontaneous reconciliation," as the research calls it, can and does occur. Although no one can count on this sort of thing happening, there are a few steps the rejected parent can take to encourage the chances of reconciliation down the road:

*'''Stay in touch:''' Make a point of sending the child greeting cards for important events such as birthdays and important public holidays, always with a return address on the envelope and providing current contact information. It's important to include personal messages, keeping those messages relatively light and supportive in tone and avoiding intense expressions of emotion that might discourage the child from wanting to read the card.
*'''Create a private social media group:''' Create a private group on social media platforms like Facebook to post personal news and updates in a way that is accessible to the child and lets them keep up to date on life events without having to directly communicate with you if they'd rather not.
*'''Keep your contact information current:''' Sometimes all that can be done is to wait until the child is old enough that they begin to look back on their own childhood with more objectivity, perhaps in their late teens or in their 20s, reexamine their experiences and relationships, and reach out on their own. However, it's important to make sure that the child can contact you, by email or telephone, or can find you on social media.

The common theme among these suggestions is about the importance of finding ways to keep the door open for the possibility of contact by the child in the future. It's usually important to take a consciously passive and restrained approach that doesn't expose the child to the parent's feelings of grief and loss, and makes it as easy as possible for the child to reach out.

==Resources on children who resist spending time with a parent==

The following lists of resources are not, of course, encyclopedic. There are doubtless many valuable studies, articles, and websites that I have overlooked; it's always a good idea to do your own research and consult with a legal or mental health professional whenever possible.

===Academic materials===

The [https://onlinelibrary.wiley.com/toc/17441617/2010/48/1 January 2010] and [https://onlinelibrary.wiley.com/toc/17441617/2020/58/2 April 2020] editions of ''Family Court Review'', published by the Association of Family and Conciliation Courts, are entirely devoted to the issue of alienated and estranged children and other contact problems after separation. If you can get your hands on a copy of these editions, you should. ([https://www.courthouselibrary.ca/ Courthouse Libraries BC] can help you with this.) They offer a fairly up-to-date look at current court practices and the latest literature on the subject, and were edited by two prominent Canadian professionals, Professor Nicholas Bala, a law professor at Queen's University, and Dr. Barbara Jo Fidler, a psychologist and mediator based in Toronto.

Bala, Fidler and Professor Michael Saini, a member of the University of Toronto's Faculty of Social Work, are also the authors of ''[https://academic.oup.com/book/11622 Children Who Resist Postseparation Parental Contact]'', a 2013 book published by Oxford University Press that provides a really good overview of more recent research and therapeutic and legal responses to children who resist contact after separation. Courthouse Libraries BC can probably help you find this book as well.

The Association of Family and Conciliation Courts has also recently published a [https://perma.cc/F2Q6-MYVY joint statement] on parent-child contact problems with the National Council of Juvenile and Family Court Judges, an American organization. The statement is worth reading for the suggestions it directs toward lawyers, judges and mental health professionals dealing with children who resist seeing a parent after separation. Another excellent resource in the "what can we do about this problem" vein is ''[https://academic.oup.com/book/1189 Overcoming Parent-child Contact Problems]'', published by Oxford University Press in 2016, which includes chapters by prominent mental health professionals, researchers and academics including Bala, Fidler, Sullivan, Johnston and Saini, as well as Drs. Robin Deutsch, Abigail Judge and Peggie Ward.

The following articles were among the readings on child alienation and estrangement recommended by Kelly at a seminar in Vancouver and may be helpful, even though they're all more than a few years old.

*Cummings, E. M., Davies, P., & Emery, R. E. (1994). [https://search.worldcat.org/title/29478653 ''Children and marital conflict: The impact of family dispute and resolution.''] New York: Guilford Press.
*Emery, R. E. (2005). [https://bit.ly/3ACxmA0 Parental alienation syndrome: Proponents bear the burden of proof.] ''Family Court Review'', 43(1), 8-13.
*Faller, K. (1998). [https://bit.ly/4dRW9OT The Parental alienation syndrome: What is it and what data support it?.] ''Child Maltreatment'', 3(2), 100-115.
*Freeman, R., Abel, D., Cowper-Smith, M., & Stein, L. (2004) [https://bit.ly/3MhlllZ Reconnecting children with absent parents: A model for intervention.] ''Family Court Review'', 42(3), 439-459.
*Johnston, J.R. (2003). [https://pubmed.ncbi.nlm.nih.gov/12875493/ Parental alignments and rejection: An empirical study of alienation in children of divorce.] ''Journal of the American Academy of Psychiatry and Law'', 31(2), 158-170.
*Johnston, J.R. (1993). [https://psycnet.apa.org/record/1993-97471-005 Children of divorce who refuse visitation]. In C. Depner & J.H. Bray (Eds.), ''Non-Residential Parenting: New Vistas in Family Living'' (109–135). Newbury, Calif.: Sage Publications Inc.
*Johnston, J.R., & Kelly, J. (2004). [https://bit.ly/4dyc4Ck Rejoinder to Gardner’s "Commentary on Kelly and Johnston’s The alienated child: A reformulation of parental alienation syndrome."] ''Family Court Review'', 42(4), 622-628.
*Johnston, J., & Kelly, J. (2004). Commentary on Walker, Brantley, and Rigsbee's [https://psycnet.apa.org/record/2007-03249-003 "A Critical Analysis of Parental Alienation Syndrome and Its Admissibility in Family Court".] ''Journal of Child Custody'', 1(4), 77-89.
*Johnston, J., & Roseby, V. (1998). [https://psycnet.apa.org/record/1997-09171-000 In the name of the child: A developmental approach to understanding and helping children of conflicted and violent divorce.] ''Family Court Review'', 36(2), 317-319.
*Johnston, J. R., Walters, M. G., & Friedlander, S. (2001). [https://bit.ly/3Ml4sXC Therapeutic work with alienated children and their families.] ''Family Court Review'', 39(3), 316-333.
*Kelly, J. B. (2000). [https://www.jaacap.org/article/S0890-8567(09)66294-8/abstract Children's adjustment in conflicted marriage and divorce: A decade review of research.] ''American Academy of Child and Adolescent Psychiatry'', 39, 963-973.
*Kelly, J. B. (2003). [https://psycnet.apa.org/record/2003-05801-006 Parents with enduring child disputes: Multiple pathways to enduring disputes.] ''Journal of Family Studies'', 9, 37-50.
*Kelly, J. B. (2003). [https://bit.ly/4cy9Zow Parents with enduring child disputes: Focused interventions with parents in enduring disputes.] ''Journal of Family Studies'', 9, 51-62.
*Kelly, J. B. (2002). [https://bit.ly/3XjBBbB Psychological and legal interventions for parents and children in custody and access disputes: Current research and practice.] ''Virginia Journal of Social Policy & the Law'', 10, 129-163.
*Kelly, J.B. & Emery. (2003). [https://psycnet.apa.org/record/2003-09485-005 Children's adjustment following divorce: Risk and resilience perspectives.] ''Family Relations'', 52, 352-362.
*Kelly, J. B., & Johnston, J. R. (2001). [https://psycnet.apa.org/record/2002-11679-001 The alienated child: A reformulation of parental alienation syndrome.] ''Family Court Review'', 39(3), 249-266.
*Kline, M. (1991). [https://psycnet.apa.org/record/2001-05387-002 The long shadow of marital conflict: A model of children's postdivorce adjustment.] ''Journal of Marriage and the Family'', 53(2), 297-309.
*Lampel, A. K. (1996). [https://bit.ly/3yRhQja Children’s alignment with parents in highly conflicted custody cases.] ''Family Court Review'', 34(2), 229-239.
*Lee, S. M., & Olesen, N. W. (2001). [https://bit.ly/3X1iiDo Assessing for alienation in child custody and access evaluations.] ''Family Court Review'', 39(3), 282-298.
*Rand, D.C. (1997). [https://psycnet.apa.org/record/1997-06755-002 The spectrum of parent alienation: Part I.] ''American Journal of Forensic Psychology'', 15(3), 23-52.
*Rand, D.C. (1997) [https://psycnet.apa.org/record/1997-41332-003 The spectrum of parent alienation: Part II.] ''American Journal of Forensic Psychology'', 15(4), 39-92.
*Sullivan, M. J., & Kelly, J. B. (2001). [https://bit.ly/3YYftWG Legal and psychological management of cases with an alienated child.] ''Family Court Review'', 39(3), 299-315.
*Turkat, I. D. (1994). [https://psycnet.apa.org/record/1995-19653-001 Child visitation interference in divorce.] ''Clinical Psychology Review'', 14(8), 737-742.
*Waldron, K. H., & Joanis, D. E. (1996). [https://bit.ly/4dAfTGS Understanding and collaboratively treating parental alienation syndrome.] ''American Journal of Family Law'', 10, 121-134.
*Wallerstein, J. S., & Kelly, J. B. (1976). [https://pubmed.ncbi.nlm.nih.gov/1266949/ The effects of parental divorce: Experiences of the child in later latency.] ''American Journal of Orthopsychiatry'', 46(2), 256-269.
*Wallerstein, J. S., & Kelly, J. B. (1980). ''[https://search.worldcat.org/title/6041040 Surviving the breakup: How children and parents cope with divorce]''. New York: Basic Books.
*Warshak, R. A. (2003). [https://www.jstor.org/stable/25740420 Bringing sense to parental alienation: A look at the disputes and the evidence.] ''Family Law Quarterly'', 37(2) 273-301.
*Warshak, R. A. (2003). [https://psycnet.apa.org/record/2003-09485-007 Payoffs and pitfalls of listening to children.] ''Family Relations'', 52(4), 373-384.
*Wood, C. L. (1994). ''[https://digitalcommons.lmu.edu/llr/vol27/iss4/5/ The parental alienation syndrome: A dangerous aura of reliability]'', Loyola of Los Angeles Law Review, 27, 1367-1415.

===Online information===

The web is full of resources about alienation, estrangement and children who resist seeing a parent after separation. Much of the information available online is, however, of limited usefulness. Look about the internet and educate yourself about children who are reluctant to spend time with a parent, but be cautious about the sources of what you're reading. Stick to information published by academics, lawyers, psychiatrists, psychologists, clinical counsellors and researchers, and avoid anonymous websites, websites sponsored by special interest groups that are likely to be biased, sensationalist websites, and websites that don't give a source for their data or their conclusions. The most reliable sort of online information is that which is published in a professional journal, as journal articles are usually peer-reviewed and normally of a very high quality.

A good starting point for online research is the website of the [http://www.spig.clara.net/ Shared Parenting Information Group], a UK organization, which has a good discussion of the subject and plenty of useful links.

A final note of caution. Many of the groups you'll find online that offer information on Parental Alienation Syndrome, such as Fathers Are Capable Too, seem to regard the problem of children who resist seeing a parent after separation as a men's rights or fathers' rights issue. However, some of these sites go too far and identify feminism and mothers, or rather their prejudice against feminism and mothers, with the small number of women who engage in alienating behaviours. Fathers also engage in alienating behaviour. Take care in choosing your sources of information and make sure you're reading between the lines.


==Resources and links==

===Legislation===

* ''[[Divorce Act]]''
* ''[[Family Law Act]]''

===Links===

* [https://psycnet.apa.org/record/1997-41332-003 The Spectrum of Parental Alienation Syndrome (Part II)], by Dr. Deirdre Rand, American Journal of Forensic Psychology.
* [https://psycnet.apa.org/record/2002-11679-001 The Alienated Child: A Reformulation of Parental Alienation Syndrome], by Drs. Joan Kelly and Janet Johnston, Family Court Review.
* [https://psycnet.apa.org/record/1994-13185-001 Expanding the Parameters of Parental Alienation Syndrome], by Dr. Glenn Cartwright, American Journal of Family Therapy.
* [http://www.canadiancrc.com/Parental_Alienation_Syndrome_Canada/lampel96.pdf Children's Alignment with Parents in Highly Conflicted Custody Cases], by Dr. Anita Lampel, Family and Conciliation Courts Review.
* [https://onlinelibrary.wiley.com/toc/17441617/2010/48/1 January 2010 edition of Family Court Review], published by the Association of Family and Conciliation Courts.
* [https://onlinelibrary.wiley.com/toc/17441617/2020/58/2 April 2020 edition of Family Court Review], published by the Association of Family and Conciliation Courts.
* [https://academic.oup.com/book/11622 Children Who Resist Postseparation Parental Contact], by Bala, Fidler, and Saini, Oxford University Press.
* [https://perma.cc/F2Q6-MYVY Joint statement], published by the Association of Family and Conciliation Courts and the National Council of Juvenile and Family Court Judges.
* [https://academic.oup.com/book/1189 Overcoming Parent-child Contact Problems], published by Oxford University Press.
* [http://www.spig.clara.net/ Shared Parenting Information Group], a UK organization.

{{REVIEWED | reviewer = [[JP Boyd]], 28 September 2022}}

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Behaviour, Boundaries and Privacy after Separation

2026-05-19T18:35:29Z

Nate Russell: /* Damages */

Behaviour, Boundaries and Privacy after Separation

2026-05-19T18:34:43Z

Nate Russell:

Civil Claims and Family Violence

2026-05-19T18:26:16Z

Nate Russell:

{{JP Boyd on Family Law TOC|expanded = violence}}{{JPBOFL Editor Badge
|CoAuthor = [[Kim Hawkins]], [[Vandana Sood]], [[Elizabeth Cameron]], and [[Rosanna Adams]]
|ChapterEditors = [[Fiona Beveridge]] and [[Samantha Simpson]]
}}
==Civil claims for family violence==

In British Columbia, "family law" typically refers to the law about divorce, spousal support, children's parenting arrangements, child support, and property division. If these issues are addressed in court, they are addressed through claims brought under the ''[[Divorce Act]]'' or the ''[[Family Law Act]]''.

Family law is a kind of ''civil law''. "Civil law" refers to every kind of law other than criminal law. Other branches of the civil law include the law about contracts, the law about property, and the law about something called ''torts''. Tort law is the law that applies when someone does something, or doesn't do something, that causes harm to someone else. Tort law includes claims about a wide range of misbehaviour, such as negligence, defamation and invasion of privacy. Tort law also includes claims about things that are more directly relating to family violence, such as assault, battery, and infliction of emotional harm. Claims like these aren't covered by the ''Divorce Act'' or the ''Family Law Act''.

Tort claims for family violence can overlap with family law issues. They can be the subject of a lawsuit on their own, or they can be combined with a lawsuit brought under the ''Divorce Act'' or the ''Family Law Act''. While the ''Divorce Act'' or the ''Family Law Act'' do talk about family violence, in the context of children's parenting arrangements, protection orders and conduct orders, neither act provides financial compensation for the effects family violence. That is what tort claims are for.

==Introduction to the law of torts==

The word "tort" comes from the Latin word for "wrong" or "injustice." ''Tort law'' is essentially a set of legal tools that developed to compensate people who have been harmed by someone else’s wrongful act or omission. A tort is a breach of a duty someone owes to someone else, such as a duty not to hit someone, a duty to drive carefully, or a duty not to dig a hole someone might fall into. However, not all actions that cause harm are torts. It's crucial to talk with a lawyer to see if harm done to you is a tort.

Most tort claims come from the ''common law'', which means they developed and evolved over the course of decades, and even centuries, as courts recognized new kinds of legal claims to address different problems in society. As a result, tort claims are not created by legislation the way that family law claims are based on legislation like the ''Family Law Act'', ''Divorce Act'' and the Child Support Guidelines. That said, some torts are "statutory torts" that are written into legislation. One example is claims for violation of privacy under the provincial ''Privacy Act'', which defines specifically what the tort of violation of privacy is.

===Damages===

When a tort claim is proven, the result will be an order for the payment of financial compensation, or ''damages'', to the victim. The precise dollar value of these damages is based on the concept that every injury or harm, and every consequence suffered by the victim, has a dollar value. Some damages are easier for a court to calculate if it has evidence of direct financial loss to the victim, like lost wages or the cost of medical expenses. These direct financial losses are called ''pecuniary damages''. Other damages, such as pain and suffering, are more difficult to measure because they are more subjective. Damages for pain and suffering are called ''general damages'', or ''non-pecuniary damages'', and the courts tend to look to past cases with similar facts in order to calculate a dollar value.

General damages can be awarded for:

* pain and suffering from the family violence,
* emotional trauma,
* impairment to family or social relationships, and
* loss of life enjoyment due to the lasting impacts of the violence.

Pecuniary damages can be calculated for:

* past wages lost due to the family violence,
* future wages lost from an inability, illness, or other impairment from the violence (sometimes referred to as lost earning capacity),
* rehabilitation and job retraining costs, and
* past and future medical care expenses tied to injuries caused by the violence.

General and pecuniary damages are both forms of ''compensatory damages'', as they are awarded to compensate the victim for their harm and losses.

''Aggravated damages'' are awarded by a judge where the circumstances of the harm are especially humiliating or undignified. The court may separately identify aggravated damage amounts, or award them as part of general damages. The purpose of aggravated damages is to compensate the victim when the circumstances of the harm are humiliating, oppressive, or malicious. In the context of family violence, the circumstances of the harm often qualify for aggravated damages. The unique power dynamics in many intimate relationships, the fact that there is often a significant size and strength difference between the parties, and the wide-ranging negative consequences that arise when family violence is part of someone's daily life, increase the likelihood that aggravated damages will be awarded.

''Punitive damages'' are another form of damages. They are different from other kinds of damages and punitive damages are not about compensating the victim, they're about:

* punishing the defendant, and
* send a strong message to the defendant and to other people, to discourage them from doing similar things.

Punitive damages are only awarded if the combined effect awards for general and aggravated damages is insufficient to achieve the goals of punishment and deterrence.

===Specific tort claims===

Canadian law students learn about tort law in their first year of study. It's a major part of the Canadian legal system and can be thought of as a set of legal tools judges have developed to address wrongdoing and compensate people who have suffered harm. Tort claims are divided into distinct torts, each with its own requirements. The most frequent tort claims in family violence cases are the torts of ''assault'', ''battery'', and ''intentional infliction of emotional distress''. In tort law, "assault" means wrongfully threatening someone, and "battery" means wrongfully applying force without the victim's consent. The tort of ''intentional infliction of mental distress'' holds someone legally responsible when their outrageous, deliberate behavior causes another person serious, provable mental harm. Assault and battery can include sexual assault.

Other possible torts in family violence cases include ''public disclosure of private fact'', and ''false imprisonment''. Note that tort law uses specialized language, so your understanding of what "mental distress" is might differ from how tort law defines it.

====New tort of intimate partner violence====
Torts are always developing, although changes tend to be gradual and in response to broader changes within society as a whole. As family violence, and society's concerns about it, has gained more attention, the Canadian courts have been asked to consider expanding tort law to address the harms of family violence in new ways.

In 2022, the Ontario Superior Court recognized a new, stand-alone ''tort of family violence'' in the trial decision of ''[https://canlii.ca/t/jmpnf Ahluwalia v. Ahluwalia]'', 2022 ONSC 1303. The Ontario Court of Appeal overturned that finding in ''[https://canlii.ca/t/jz277 Ahluwalia v. Ahluwalia]'', 2023 ONCA 476, concluding that existing torts (like battery, assault, and intentional infliction of emotional distress) are sufficient to address the problems of family violence. In February 2025, the Supreme Court of Canada heard arguments to determine if such a new tort should be recognized across Canada.

{{ambox
| type = content
| small =
| image =
| smallimage =
| textstyle =
| text = '''''Ahluwalia''''' '''update (general editor's note):''' On 15 May 2026, the Supreme Court of Canada released its landmark decision in ''[https://canlii.ca/t/kkzk1 Ahluwalia v. Ahluwalia]'', 2026 SCC 16. The majority of judges recognized a new tort of ''intimate partner violence'' — overturning the Ontario Court of Appeal's declaration that no new tort should be recognized. The majority held that existing torts such as assault, battery, intentional infliction of emotional distress do not always fully capture the distinct civil wrong of coercive control in an intimate relationship, including the loss of dignity, autonomy, and equality it can cause. At paragraph 184, the majority explains the three elements that a plaintiff must establish under the new tort: (1) the abusive conduct arose in an intimate partnership or its aftermath (2) the defendant intentionally engaged in that conduct (3) the conduct, viewed objectively and in context, constituted ''coercive control'' It is important to seek legal advice before relying on any specific tort, as the law in this area is significantly transformed since the Supreme Court of Canada's ruling.
| smalltext =
}}

===Starting a civil claim===

A tort claim is a ''civil claim'' and must be made by the person who has suffered the harm. A tort claim about an incident or series of events that happened within a domestic relationship can be made alongside a family law claim in a family law proceeding, or as a stand-alone tort claim in a general civil proceeding.

To include a tort claim in a family law proceeding, you must start your case in the Supreme Court of British Columbia by filing a Notice of Family Claim. The family court division of the Provincial Court cannot hear tort claims, so any family violence–related tort claims need to be added to a Supreme Court case.

If you wish to bring a tort claim on its own, you will likely file a Notice of Civil Claim in Supreme Court. Although certain tort claims can be brought in the Provincial Court’s small claims division, that court’s monetary jurisdiction is limited to $35,000. The Civil Resolution Tribunal can also hear some small claims matters, but it is limited to awards of $5,000 or less.

Because different courts or tribunals have different rules, procedures, and monetary limits, it's wise to get legal advice to figure out which court is most appropriate for your tort claim.

Another consideration when starting a tort claim is ''timing''. It is crucial that you bring the claim within the proper limitation period. (We'll talk about limitation periods a bit later.) If you do not file your claim in time, you will miss your opportunity to bring your claim at all. Again, it is important to speak to a lawyer to understand the limitation period that applies to your case.

===The challenges of tort claims===

This discussion is not meant to discourage individuals who have suffered family violence from making tort claims. It is meant to raise some of the difficulties that can accompany tort claims relating to family violence. Despite these challenges, it can be empowering to hold an abusive person accountable for their behaviour. If you have been sexually or physically assaulted, you should talk to a lawyer experienced in handling such claims and seek advice to determine whether your case is likely to succeed.

====Costs====

The first drawback of tort claims is that they are often expensive to bring to trial. You will likely need to hire a lawyer if you want to make a tort claim against your spouse. The law governing tort claims is rarely set out in a statute like the ''[[Family Law Act]]''. Instead, it is mostly based on the common law, also known as the ''case law''.

To succeed in your claim, you will have to prove that the tort occurred, the nature and extent of your injuries, and that your injuries resulted from the wrongful act. Proving injuries, especially when they are mainly psychological or emotional, can be complicated. You may even need to hire experts to assign a financial value to your injuries. For instance, if you are claiming the costs of future medical care, you will likely need a medical expert to tell the court about the type of treatment you will require and for how long.

====Recoverability====

Even if you're successful, your spouse must have some assets from which they can pay the damages you are awarded. It likely doesn't make sense to spend tens of thousands of dollars on legal fees and win, only to discover that your spouse cannot pay your award. This is called a ''dry judgment''.

One potential benefit of bringing your tort claim with your family law claim is that courts have generally factored damages for assault and battery into the division of property. This can make recovering your damages award much easier. In ''[https://canlii.ca/t/1f0tm Megeval v. Megeval]'', 1997 CanLII 3721 (BCSC), a tort claim was made in the same proceeding as a claim for the division of property. The court divided the family property equally between the parties but awarded the wife $139,150 in damages for injuries resulting from battery. This amount was paid from the husband's share of the family property.

====Personal impact====

You will need to testify about the family violence and its effect on you openly, honestly and personally. The opposing party or their lawyer will question you about the tort and its impact on you in open court. Before a trial, you will also need to disclose your medical and counselling records, if any, to the opposing party and their lawyer, and participate in a discovery process that requires sharing relevant information. You might also have to undergo medical and psychological evaluations. These are standard parts of the civil law process, but many individuals find them exceptionally invasive.

==Limitation periods==
A limitation period is a deadline by which a claim must be made and a court action started. If a limitation period applies to a claim, and that period has expired, you cannot make that claim anymore. For many torts, including assaults involving people who are strangers, the limitation period is generally two years after the incident. Where assault involves people in an intimate relationship, or where the victim was in a relationship of dependency with the attacker, there is no limitation period. There is also no limitation period for claims relating to sexual assault, regardless of the relationship between the attacker and the victim.

Under section 3(1) of the provincial ''[https://canlii.ca/t/8qx3 Limitation Act]'', there is no limitation period for:

* claims relating to sexual assault,
* claims relating to assault, battery or misconduct of a sexual nature while the claimant was a minor, or
* claims relating to assault or battery while the claimant was an adult living in an intimate and personal relationship (or had a relationship of financial, emotional, physical, or other dependency) with a person who performed, contributed to, consented to, or acquiesced in the assault or battery.

==Awards==
The amount of damages a court may award for tort claims depends on the circumstances. If you can, get legal advice to help decide whether a claim is worthwhile in your particular circumstances. Outcomes vary widely, and many factors go into a judge's assessment of the appropriate award. Here are some examples of awards that the courts have made for tort claims in a family context:

* In ''[https://canlii.ca/t/jl5wr Schuetze v. Pyper]'', 2021 BCSC 2209, the wife was awarded a total of $795,000 following a violent incident for which the husband faced criminal charges. The majority of damages were for past and future diminished earning capacity, but $100,000 were general damages for pain and suffering. The wife's tort claim of ''battery'' was made in a separate civil action, not a family law proceeding, and she had expert evidence to prove her physical and psychological injuries.
* In ''[https://canlii.ca/t/j3tr8 Olds College v. Huxley]'', 2019 BCSC 2111, the plaintiff received $2,500 in general damages $2,500 in aggravated damages, and $5,000 for punitive damages in a defamation case against his former wife. She made serious and defamatory statements by email, Facebook, and YouTube and tried to reach as many people as possible.
* In ''[https://canlii.ca/t/gr5ld T.K.L. v. T.M.P.]'', 2016 BCSC 789, the step-daughter was awarded a total of $93,850 for breach of privacy and breach of fiduciary duty following her step-father spying on and video recording her in the shower. $85,000 was awarded for general damages, which included a $25,000 aggravated damages component. This case features the tort of breach of privacy under the ''Privacy Act''.
* In [https://canlii.ca/t/g2h5c ''A.M. v. S.O.''], 2014 BCSC 4, physical assault in the form of an open-handed blow to the head resulted in $20,000 for general damages.
* In ''[https://canlii.ca/t/fsxwh Bird v. Kohl]'', 2012 BCSC 1424, the serious shoulder fracture, concussion, lacerations, and scarring that resulted from repeated strikes with a shovel handle amounted to $75,000 for general damages, $15,000 for aggravated damages, $40,000 for lost wages, and $25,000 for lost earning capacity.
* In ''[https://canlii.ca/t/fwktw Constantini v. Constantini,]'' 2013 ONSC 1626, verbal abuse during the relationship and pre-meditated break-in and aggressive assault post-separation did not produce permanent disability, but it did result in post-traumatic stress disorder. $15,000 was awarded for general and aggravated damages.
* In ''[https://canlii.ca/t/fs8l9 D.G. v. R.M.]'', 2012 SKQB 296, the facts involved a single instance of “horrific” sexual assault including striking, kicking, and biting. $35,000 was awarded for general damages.
* In ''[https://canlii.ca/t/1k2jm Gould v. Sandau]'' 2005 BCCA 190, the trial judge awarded $2,500 for an assault that broke a hand.
* In ''[https://canlii.ca/t/1f56v Megeval v. Megeval],'' 1997 CanLII 3721 (BCSC), assault causing permanent disability resulted in $45,000 for general damages, $20,150 for past wage loss, $66,500 for future wage loss, $2,500 for future care, and $5,000 for punitive damages.
* In ''N.C. v. W.R.B.'' [1999] O.J. No. 3633 (Ont. S.C.J.), multiple instances of sexual, physical, verbal, and emotional abuse that caused post-traumatic stress disorder resulted in an award of $65,000 for general damages and $25,000 for aggravated damages.
* In ''[https://canlii.ca/t/fps0x Shaw v. Brunelle]'', 2012 ONSC 590, a serious wrist fracture resulting from physical ejection from the home resulted in $65,000 for general and aggravated damages, $25,000 for lost earning capacity, and a figure for costs of future care (to be assessed by an actuary).

These cases have been included only to give you a general idea of how the courts have treated tort claims based on family violence in the past. Damage awards in family violence cases involving assault and battery have changed and appear to be increasing at a rate higher than inflation. You should not rely on these cases to fix a dollar amount to your claim — seek legal advice from a lawyer with experience in this area if possible.

==Resources and links==
===Legislation===

* ''[https://canlii.ca/t/8qx3 Limitation Act]''
* ''[https://canlii.ca/t/849p Privacy Act]''

{{REVIEWED | reviewer = [[Rise Women's Legal Centre|Kim Hawkins, Vandana Sood, Elizabeth Cameron, and Rosanna Adams]], 16 June 2023}}

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

[[Category:JP Boyd on Family Law]]

Civil Claims and Family Violence

2026-05-15T22:01:29Z

Nate Russell: Ahluwalia update - general editor

{{JP Boyd on Family Law TOC|expanded = violence}}{{JPBOFL Editor Badge
|CoAuthor = [[Kim Hawkins]], [[Vandana Sood]], [[Elizabeth Cameron]], and [[Rosanna Adams]]
|ChapterEditors = [[Fiona Beveridge]] and [[Samantha Simpson]]
}}
==Civil claims for family violence==

In British Columbia, "family law" typically refers to the law about divorce, spousal support, children's parenting arrangements, child support, and property division. If these issues are addressed in court, they are addressed through claims brought under the ''[[Divorce Act]]'' or the ''[[Family Law Act]]''.

Family law is a kind of ''civil law''. "Civil law" refers to every kind of law other than criminal law. Other branches of the civil law include the law about contracts, the law about property, and the law about something called ''torts''. Tort law is the law that applies when someone does something, or doesn't do something, that causes harm to someone else. Tort law includes claims about a wide range of misbehaviour, such as negligence, defamation and invasion of privacy. Tort law also includes claims about things that are more directly relating to family violence, such as assault, battery, and infliction of emotional harm. Claims like these aren't covered by the ''Divorce Act'' or the ''Family Law Act''.

Tort claims for family violence can overlap with family law issues. They can be the subject of a lawsuit on their own, or they can be combined with a lawsuit brought under the ''Divorce Act'' or the ''Family Law Act''. While the ''Divorce Act'' or the ''Family Law Act'' do talk about family violence, in the context of children's parenting arrangements, protection orders and conduct orders, neither act provides financial compensation for the effects family violence. That is what tort claims are for.

==Introduction to the law of torts==

The word "tort" comes from the Latin word for "wrong" or "injustice." ''Tort law'' is essentially a set of legal tools that developed to compensate people who have been harmed by someone else’s wrongful act or omission. A tort is a breach of a duty someone owes to someone else, such as a duty not to hit someone, a duty to drive carefully, or a duty not to dig a hole someone might fall into. However, not all actions that cause harm are torts. It's crucial to talk with a lawyer to see if harm done to you is a tort.

Most tort claims come from the ''common law'', which means they developed and evolved over the course of decades, and even centuries, as courts recognized new kinds of legal claims to address different problems in society. As a result, tort claims are not created by legislation the way that family law claims are based on legislation like the ''Family Law Act'', ''Divorce Act'' and the Child Support Guidelines. That said, some torts are "statutory torts" that are written into legislation. One example is claims for violation of privacy under the provincial ''Privacy Act'', which defines specifically what the tort of violation of privacy is.

===Damages===

When a tort claim is proven, the result will be an order for the payment of financial compensation, or ''damages'', to the victim. The precise dollar value of these damages is based on the concept that every injury or harm, and every consequence suffered by the victim, has a dollar value. Some damages are easier for a court to calculate if it has evidence of direct financial loss to the victim, like lost wages or the cost of medical expenses. These direct financial losses are called ''pecuniary damages''. Other damages, such as pain and suffering, are more difficult to measure because they are more subjective. Damages for pain and suffering are called ''general damages'', or ''non-pecuniary damages'', and the courts tend to look to past cases with similar facts in order to calculate a dollar value.

General damages can be awarded for:

* pain and suffering from the family violence,
* emotional trauma,
* impairment to family or social relationships, and
* loss of life enjoyment due to the lasting impacts of the violence.

Pecuniary damages can be calculated for:

* past wages lost due to the family violence,
* future wages lost from an inability, illness, or other impairment from the violence (sometimes referred to as lost earning capacity),
* rehabilitation and job retraining costs, and
* past and future medical care expenses tied to injuries caused by the violence.

General and pecuniary damages are both forms of ''compensatory damages'', as they are awarded to compensate the victim for their harm and losses.

''Aggravated damages'' are awarded by a judge where the circumstances of the harm are especially humiliating or undignified. The court may separately identify aggravated damage amounts, or award them as part of general damages. The purpose of aggravated damages is to compensate the victim when the circumstances of the harm are humiliating, oppressive, or malicious. In the context of family violence, the circumstances of the harm often qualify for aggravated damages. The unique power dynamics in many intimate relationships, the fact that there is often a significant size and strength difference between the parties, and the wide-ranging negative consequences that arise when family violence is part of someone's daily life, increase the likelihood that aggravated damages will be awarded.

''Punitive damages'' are another form of damages. They are different from other kinds of damages and punitive damages are not about compensating the victim, they're about:

* punishing the defendant, and
* send a strong message to the defendant and to other people, to discourage them from doing similar things.

Punitive damages are only awarded if the combined effect awards for general and aggravated damages is insufficient to achieve the goals of punishment and deterrence.

===Specific tort claims===

Canadian law students learn about tort law in their first year of study. It's a major part of the Canadian legal system and can be thought of as a set of legal tools judges have developed to address wrongdoing and compensate people who have suffered harm. Tort claims are divided into distinct torts, each with its own requirements. The most frequent tort claims in family violence cases are the torts of ''assault'', ''battery'', and ''intentional infliction of emotional distress''. In tort law, "assault" means wrongfully threatening someone, and "battery" means wrongfully applying force without the victim's consent. The tort of ''intentional infliction of mental distress'' holds someone legally responsible when their outrageous, deliberate behavior causes another person serious, provable mental harm. Assault and battery can include sexual assault.

Other possible torts in family violence cases include ''public disclosure of private fact'', and ''false imprisonment''. Note that tort law uses specialized language, so your understanding of what "mental distress" is might differ from how tort law defines it.

====New tort of intimate partner violence====
Torts are always developing, although changes tend to be gradual and in response to broader changes within society as a whole. As family violence, and society's concerns about it, has gained more attention, the Canadian courts have been asked to consider expanding tort law to address the harms of family violence in new ways.

In 2022, the Ontario Superior Court recognized a new, stand-alone ''tort of family violence'' in the trial decision of ''[https://canlii.ca/t/jmpnf Ahluwalia v. Ahluwalia]'', 2022 ONSC 1303. The Ontario Court of Appeal overturned that finding in ''[https://canlii.ca/t/jz277 Ahluwalia v. Ahluwalia]'', 2023 ONCA 476, concluding that existing torts (like battery, assault, and intentional infliction of emotional distress) are sufficient to address the problems of family violence. In February 2025, the Supreme Court of Canada heard arguments to determine if such a new tort should be recognized across Canada.

{{ambox
| type = content
| small =
| image =
| smallimage =
| textstyle =
| text = '''''Ahluwalia''''' '''update (general editor's note):''' On 15 May 2026, the Supreme Court of Canada released its landmark decision in ''[https://canlii.ca/t/kkzk1 Ahluwalia v. Ahluwalia]'', 2026 SCC 16. The majority of judges recognized a new tort of intimate partner violence — overturning the Ontario Court of Appeal declaration that a new tort should not be recognized. The majority of the Supreme Court of Canada found that existing torts (assault, battery, intentional infliction of emotional distress, etc.) did not fully address the harm caused by coercive control in intimate relationships. The Supreme Court of Canada's majority decision in ''Ahluwalia'' is important because it creates a new civil cause of action — the tort of intimate partner violence — for intimate relationships involving patterns of abuse, including non-physical abuse such as isolation, surveillance, financial control, humiliation, and threats. At paragraph 184, the majority explains the three elements that a plaintiff must establish under the new tort: (1) the abusive conduct arose in an intimate partnership or its aftermath (2) the defendant intentionally engaged in that conduct (3) the conduct, on an objective measure, constitutes coercive control It is important to seek legal advice before relying on any specific tort, as the law in this area is significantly transformed since the Supreme Court of Canada's ruling.
| smalltext =
}}

===Starting a civil claim===

A tort claim is a ''civil claim'' and must be made by the person who has suffered the harm. A tort claim about an incident or series of events that happened within a domestic relationship can be made alongside a family law claim in a family law proceeding, or as a stand-alone tort claim in a general civil proceeding.

To include a tort claim in a family law proceeding, you must start your case in the Supreme Court of British Columbia by filing a Notice of Family Claim. The family court division of the Provincial Court cannot hear tort claims, so any family violence–related tort claims need to be added to a Supreme Court case.

If you wish to bring a tort claim on its own, you will likely file a Notice of Civil Claim in Supreme Court. Although certain tort claims can be brought in the Provincial Court’s small claims division, that court’s monetary jurisdiction is limited to $35,000. The Civil Resolution Tribunal can also hear some small claims matters, but it is limited to awards of $5,000 or less.

Because different courts or tribunals have different rules, procedures, and monetary limits, it's wise to get legal advice to figure out which court is most appropriate for your tort claim.

Another consideration when starting a tort claim is ''timing''. It is crucial that you bring the claim within the proper limitation period. (We'll talk about limitation periods a bit later.) If you do not file your claim in time, you will miss your opportunity to bring your claim at all. Again, it is important to speak to a lawyer to understand the limitation period that applies to your case.

===The challenges of tort claims===

This discussion is not meant to discourage individuals who have suffered family violence from making tort claims. It is meant to raise some of the difficulties that can accompany tort claims relating to family violence. Despite these challenges, it can be empowering to hold an abusive person accountable for their behaviour. If you have been sexually or physically assaulted, you should talk to a lawyer experienced in handling such claims and seek advice to determine whether your case is likely to succeed.

====Costs====

The first drawback of tort claims is that they are often expensive to bring to trial. You will likely need to hire a lawyer if you want to make a tort claim against your spouse. The law governing tort claims is rarely set out in a statute like the ''[[Family Law Act]]''. Instead, it is mostly based on the common law, also known as the ''case law''.

To succeed in your claim, you will have to prove that the tort occurred, the nature and extent of your injuries, and that your injuries resulted from the wrongful act. Proving injuries, especially when they are mainly psychological or emotional, can be complicated. You may even need to hire experts to assign a financial value to your injuries. For instance, if you are claiming the costs of future medical care, you will likely need a medical expert to tell the court about the type of treatment you will require and for how long.

====Recoverability====

Even if you're successful, your spouse must have some assets from which they can pay the damages you are awarded. It likely doesn't make sense to spend tens of thousands of dollars on legal fees and win, only to discover that your spouse cannot pay your award. This is called a ''dry judgment''.

One potential benefit of bringing your tort claim with your family law claim is that courts have generally factored damages for assault and battery into the division of property. This can make recovering your damages award much easier. In ''[https://canlii.ca/t/1f0tm Megeval v. Megeval]'', 1997 CanLII 3721 (BCSC), a tort claim was made in the same proceeding as a claim for the division of property. The court divided the family property equally between the parties but awarded the wife $139,150 in damages for injuries resulting from battery. This amount was paid from the husband's share of the family property.

====Personal impact====

You will need to testify about the family violence and its effect on you openly, honestly and personally. The opposing party or their lawyer will question you about the tort and its impact on you in open court. Before a trial, you will also need to disclose your medical and counselling records, if any, to the opposing party and their lawyer, and participate in a discovery process that requires sharing relevant information. You might also have to undergo medical and psychological evaluations. These are standard parts of the civil law process, but many individuals find them exceptionally invasive.

==Limitation periods==
A limitation period is a deadline by which a claim must be made and a court action started. If a limitation period applies to a claim, and that period has expired, you cannot make that claim anymore. For many torts, including assaults involving people who are strangers, the limitation period is generally two years after the incident. Where assault involves people in an intimate relationship, or where the victim was in a relationship of dependency with the attacker, there is no limitation period. There is also no limitation period for claims relating to sexual assault, regardless of the relationship between the attacker and the victim.

Under section 3(1) of the provincial ''[https://canlii.ca/t/8qx3 Limitation Act]'', there is no limitation period for:

* claims relating to sexual assault,
* claims relating to assault, battery or misconduct of a sexual nature while the claimant was a minor, or
* claims relating to assault or battery while the claimant was an adult living in an intimate and personal relationship (or had a relationship of financial, emotional, physical, or other dependency) with a person who performed, contributed to, consented to, or acquiesced in the assault or battery.

==Awards==
The amount of damages a court may award for tort claims depends on the circumstances. If you can, get legal advice to help decide whether a claim is worthwhile in your particular circumstances. Outcomes vary widely, and many factors go into a judge's assessment of the appropriate award. Here are some examples of awards that the courts have made for tort claims in a family context:

* In ''[https://canlii.ca/t/jl5wr Schuetze v. Pyper]'', 2021 BCSC 2209, the wife was awarded a total of $795,000 following a violent incident for which the husband faced criminal charges. The majority of damages were for past and future diminished earning capacity, but $100,000 were general damages for pain and suffering. The wife's tort claim of ''battery'' was made in a separate civil action, not a family law proceeding, and she had expert evidence to prove her physical and psychological injuries.
* In ''[https://canlii.ca/t/j3tr8 Olds College v. Huxley]'', 2019 BCSC 2111, the plaintiff received $2,500 in general damages $2,500 in aggravated damages, and $5,000 for punitive damages in a defamation case against his former wife. She made serious and defamatory statements by email, Facebook, and YouTube and tried to reach as many people as possible.
* In ''[https://canlii.ca/t/gr5ld T.K.L. v. T.M.P.]'', 2016 BCSC 789, the step-daughter was awarded a total of $93,850 for breach of privacy and breach of fiduciary duty following her step-father spying on and video recording her in the shower. $85,000 was awarded for general damages, which included a $25,000 aggravated damages component. This case features the tort of breach of privacy under the ''Privacy Act''.
* In [https://canlii.ca/t/g2h5c ''A.M. v. S.O.''], 2014 BCSC 4, physical assault in the form of an open-handed blow to the head resulted in $20,000 for general damages.
* In ''[https://canlii.ca/t/fsxwh Bird v. Kohl]'', 2012 BCSC 1424, the serious shoulder fracture, concussion, lacerations, and scarring that resulted from repeated strikes with a shovel handle amounted to $75,000 for general damages, $15,000 for aggravated damages, $40,000 for lost wages, and $25,000 for lost earning capacity.
* In ''[https://canlii.ca/t/fwktw Constantini v. Constantini,]'' 2013 ONSC 1626, verbal abuse during the relationship and pre-meditated break-in and aggressive assault post-separation did not produce permanent disability, but it did result in post-traumatic stress disorder. $15,000 was awarded for general and aggravated damages.
* In ''[https://canlii.ca/t/fs8l9 D.G. v. R.M.]'', 2012 SKQB 296, the facts involved a single instance of “horrific” sexual assault including striking, kicking, and biting. $35,000 was awarded for general damages.
* In ''[https://canlii.ca/t/1k2jm Gould v. Sandau]'' 2005 BCCA 190, the trial judge awarded $2,500 for an assault that broke a hand.
* In ''[https://canlii.ca/t/1f56v Megeval v. Megeval],'' 1997 CanLII 3721 (BCSC), assault causing permanent disability resulted in $45,000 for general damages, $20,150 for past wage loss, $66,500 for future wage loss, $2,500 for future care, and $5,000 for punitive damages.
* In ''N.C. v. W.R.B.'' [1999] O.J. No. 3633 (Ont. S.C.J.), multiple instances of sexual, physical, verbal, and emotional abuse that caused post-traumatic stress disorder resulted in an award of $65,000 for general damages and $25,000 for aggravated damages.
* In ''[https://canlii.ca/t/fps0x Shaw v. Brunelle]'', 2012 ONSC 590, a serious wrist fracture resulting from physical ejection from the home resulted in $65,000 for general and aggravated damages, $25,000 for lost earning capacity, and a figure for costs of future care (to be assessed by an actuary).

These cases have been included only to give you a general idea of how the courts have treated tort claims based on family violence in the past. Damage awards in family violence cases involving assault and battery have changed and appear to be increasing at a rate higher than inflation. You should not rely on these cases to fix a dollar amount to your claim — seek legal advice from a lawyer with experience in this area if possible.

==Resources and links==
===Legislation===

* ''[https://canlii.ca/t/8qx3 Limitation Act]''
* ''[https://canlii.ca/t/849p Privacy Act]''

{{REVIEWED | reviewer = [[Rise Women's Legal Centre|Kim Hawkins, Vandana Sood, Elizabeth Cameron, and Rosanna Adams]], 16 June 2023}}

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

[[Category:JP Boyd on Family Law]]

Resolving Family Law Problems out of Court

2026-05-14T23:34:15Z

Nate Russell:

{{JP Boyd on Family Law TOC|expanded = outofcourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Catherine Brink]], [[Deirdre Severide]], [[JP Boyd]], and [[Morag MacLeod|Morag MacLeod QC]]
}}
{{Clicklawbadge
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|link = [https://www.clicklaw.bc.ca/global/search?f=Alternatives+to+court%7cFamily+law&so=v alternatives to court]
}}Family law problems can be resolved in a bunch of different ways. Court is not the only option. In fact, depending on your circumstances, you may never need to darken the doorway of a courtroom.

Almost every issue people face when their relationships breaks down can be handled without going to court, as long as everyone is able to discuss those issues in a cooperative, reasonable and respectful manner, and everyone is flexible enough to compromise. The only reason why people leaving a relationship have to start a court proceeding is to get a divorce order, and that's only important if people are married to each other.

There are many reasons why it is generally better to resolve things out of court. Agreements that people make cooperatively tend to be longer-lasting and are more likely to leave everyone satisfied with the result than if someone else — a judge or an arbitrator — imposes a resolution. As well, resolving family law problems out of court is often far quicker and far less expensive than resolving them in court. This isn't to say out of court processes are cheap. They still require you to make a financial investment.

This chapter talks about how family law problems can be resolved without going to court. It begins with a brief overview of the different out-of-court options and the different ways that settlements and agreements can be recorded. It also reviews what can happen when someone has a change of heart after an agreement has been reached. The other sections in this chapter discuss the different dispute resolution options — [[Collaborative Processes|collaborative negotiation]], [[Family Law Mediation|mediation]], [[Family Law Arbitration|arbitration]], and [[Parenting Coordination|parenting coordination]] — in more detail.

==Introduction==

The fundamental goal shared by all out-of-court dispute resolution processes is to reach a settlement of the legal issues, particularly those issues that people could have fought about in court. As you might expect, reaching a settlement can require a certain amount of flexibility, empathy and maturity. Most importantly, the people involved must understand that none of them is going to get everything they want in a settlement. Whatever a person's wish list might be going into negotiations, the end result ''always'' represents a compromise and some accommodation of someone else's goals, hopes, and expectations.

It's not always possible to avoid court. Sometimes someone is so stubborn that they can't or won't compromise their position, and sometimes urgent court action is necessary to stop something bad from happening, like property being damaged, someone being hurt, or a child being taken out of the country. But out-of-court processes always offer a cheaper, friendlier and faster resolution to the legal problems that come up when a relationship ends than going to court. They're also far less stressful and disruptive to the people involved, and to their children.

It is particularly important to negotiate a settlement when children are involved. Where there are no children, people can walk away from their relationship and have nothing more to do with each another for the rest of their lives. However, where there are children, parents can expect to be involved with each other — whether they like it or not — for the rest of their lives. Each of them will want to be at their children's high school graduation, attend parent-teacher meetings, and go to school concerts and sports days. The children will want their parents to be there too. As a result, maintaining a functioning relationship is an absolute necessity. Resolving family law problems out of court gives parents the best chance of doing just that.

For more information about parenting after a relationship has ended and how to put the children first in your dispute with the other parent, see the section on [[Parenting after Separation]] in the chapter [[Children and Parenting after Separation]]. For more information about the emotional issues that tend to come with the end of a long-term relationship and how to keep those issues from hopelessly complicating your dispute, see the section [[Separating Emotionally]] in the chapter [[Separating and Getting Divorced]].

==The legislation on family law problems and out-of-court options==

Both the federal ''[[Divorce Act]]'' and British Columbia's ''[[Family Law Act]]'' now talk about the importance of resolving legal disputes out of court.

This is a big change from how the law used to be. Before 2020, all the ''Divorce Act'' had to say about this issue was to require lawyers to discuss with their clients "the advisability of negotiating the matters that may be the subject of a support order or a custody order and to inform the spouse of the mediation facilities known to him or her that might be able to assist the spouses in negotiating those matters." The old ''Family Relations Act'', the law in British Columbia before the ''Family Law Act'' came into force in 2013, didn't say a word about mediation or the other alternatives to court.

===The ''Family Law Act''===

According to the Ministry of Justice's [https://www2.gov.bc.ca/gov/content/justice/about-bcs-justice-system/legislation-policy/legislation-updates/family-law-act/the-family-law-act-explained guide] to the ''[[Family Law Act]]'', the legislation was written to encourage people to resolve family law problems without having to go to court. The Ministry has said that the ''Family Law Act'' "emphasizes that out-of-court dispute resolution processes and resolution through agreements are not simply add-ons to litigation but are the preferred option, with court as a valued, but last, resort." The Ministry has also said that:

<blockquote>"This focus on family dispute resolution signals an important shift from the ''Family Relations Act'', which was criticized for being litigation-focused and for assuming that
every dispute would end in a trial."</blockquote>

The act supports the resolution of family law disputes outside of court by:

*requiring lawyers to explain the different dispute resolution processes to their clients, under sections 4 and 8,
*requiring the people involved in a family law dispute to make full disclosure of the information necessary to resolve the dispute, under section 5, even when they're not in court,
*allowing parenting coordinators to be used to resolve disputes about parenting once a final order, award or agreement about children's parenting arrangements has been reached, under sections 15 to 19,
*including mediation and collaborative negotiation as dispute resolution processes to which the court can refer people, under sections 1 and 224,
*changing the rules about arbitration to better accommodate the arbitration of family law disputes, in sections 19.1 to 19.22, and
*allowing the court to delay a proceeding while the parties attempt to resolve a family law dispute out of court, under section 223.

The act also allows the court to require the people involved in a court proceeding to try to resolve their dispute out of court, and to attend counselling if the court thinks that counselling would be helpful. Section 224 says that:

<blockquote><tt>(1) A court may make an order to do one or both of the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) require the parties to participate in family dispute resolution;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) require one or more parties or, without the consent of the child's guardian, a child, to attend counselling, specified services or programs.</tt></blockquote></blockquote>
<blockquote><tt>(2) If the court makes an order under subsection (1), the court may allocate among the parties, or require one party alone to pay, the fees relating to the family dispute resolution, counselling, services or programs.</tt></blockquote>

That's pretty cool, and a huge change from the old ''Family Relations Act'', which didn't talk about out-of-court dispute resolution processes at all, except in terms of how agreements could be enforced or cancelled.

This change in the ''Family Law Act'' has laid the groundwork for changing how families interact with the court system. A pilot project launched in May 2019 at the Provincial Court in Victoria encourages parties to resolve matters by agreement. The [https://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/your-options/early-resolution Victoria Early Resolution & Case Management Model] provides family case management earlier in the court process, and tries to refer people in appropriate cases to either mediation or collaborative negotiation before appearing before a judge in court.

===The ''Divorce Act''===

The ''[[Divorce Act]]'' was changed in March 2021 to address some of the same goals as British Columbia's ''[[Family Law Act]]'' when it comes to resolving family law disputes. Section 7.3 puts a new duty on spouses:

<blockquote><tt>To the extent that it is appropriate to do so, the parties to a proceeding shall try to resolve the matters that may be the subject of an order under this Act through a family dispute resolution process.</tt></blockquote>

while section 7.7 puts a similar duty on lawyers:

<blockquote><tt>(2) It is also the duty of every legal adviser who undertakes to act on a person’s behalf in any proceeding under this Act</tt></blockquote>
<blockquote><blockquote><tt>(a) to encourage the person to attempt to resolve the matters that may be the subject of an order under this Act through a family dispute resolution process, unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) to inform the person of the family justice services known to the legal adviser that might assist the person</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) in resolving the matters that may be the subject of an order under this Act, and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) in complying with any order or decision made under this Act; and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><tt>(c) to inform the person of the parties’ duties under this Act.</tt></blockquote></blockquote>

The [https://www.justice.gc.ca/eng/fl-df/cfl-mdf/dace-clde/index.html guide] published by the Department of Justice says that these provisions are intended to encourage spouses to try to resolve their differences out of court using processes including negotiation, mediation and collaborative negotiation. The guide says that:

<blockquote>"In most cases, family dispute resolution processes tend to be faster, less expensive and more effective than court proceedings. They are also more likely to serve the interests of the child. A greater variety of such processes are available than ever before, including mediation, negotiation and collaborative law. The phrase 'it would clearly not be appropriate' means that legal advisers do not have to encourage family dispute resolution in some situations, such as when family violence poses safety risks."</blockquote>

As well, section 16.1, which talks about parenting orders, allows the court to make an order directing the parties to "attend a family dispute resolution process." The guide says that:

<blockquote>"This amendment aims to encourage parties to attempt to resolve disputes through a 'family dispute resolution process', such as mediation, negotiation or collaborative law. ... The court may, for example, order that for future disputes, the parties attempt some form of family dispute resolution before bringing the matter to court."</blockquote>

However, because only the provincial governments have jurisdiction over contracts, including separation agreements, this is really about as far as the federal government can go in encouraging people to resolve their disputes out of court.

===The fine print under the ''Family Law Act''===

Alright. So we know that the ''[[Family Law Act]]'' is intended to promote and support people to resolve their family law disputes out of court rather than in court. That's important, but there are some important details about how the legislation does this. First, the act talks about the importance of making proper disclosure, and encourages proper disclosure by making sure that everyone knows that information that is disclosed is private and confidential, and can't be used for purposes other than resolving the family law dispute. Section 5 says this:

<blockquote><tt>(1) A party to a family law dispute must provide to the other party full and true information for the purposes of resolving a family law dispute.</tt></blockquote>
<blockquote><tt>(2) A person must not use information obtained under this section except as necessary to resolve a family law dispute.</tt></blockquote>

Since family law disputes that are resolved out of court are usually going to be resolved with a separation agreement — although those family law disputes which are addressed through arbitration will result in an arbitrator's ''award'' — section 6 says this:

<blockquote><tt>(1) Subject to this Act, 2 or more persons may make an agreement</tt></blockquote>
<blockquote><blockquote><tt>(a) to resolve a family law dispute, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) respecting</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) a matter that may be the subject of a family law dispute in the future,</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) the means of resolving a family law dispute or a matter that may be the subject of a family law dispute in the future, including the type of family dispute resolution to be used, or</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(iii) the implementation of an agreement or order.</tt></blockquote></blockquote></blockquote>
<blockquote><tt>(2) A single agreement may be made respecting one or more matters.</tt></blockquote>
<blockquote><tt>(3) Subject to this Act, an agreement respecting a family law dispute is binding on the parties.</tt></blockquote>
<blockquote><tt>(4) Subsection (3) applies whether or not</tt></blockquote>
<blockquote><blockquote><tt>(a) there is consideration,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the agreement has been made with the involvement of a family dispute resolution professional, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the agreement is filed with a court.</tt></blockquote></blockquote>

Subsections (3) and (4) are really important. They say, in a nutshell, that people who make a family law agreement are bound by the agreement — they are legally required to do what it says — and that people are bound by their agreement whether or not the agreement was made with a "family dispute resolution professional." That's kind of cool, because it means that family law agreements are presumed to be binding on the people who make them, regardless of how they make them.

However, section 198(5) says that the time limits within which people must apply for orders for the payment of spousal support and the division of property are suspended "during any period in which persons are engaged in family dispute resolution with a family dispute resolution professional." A ''time limit'' is a period of time, often two years, within which someone must start a court proceeding, or their right to start that court proceeding will be lost forever. All of a sudden, who is and isn't a "family dispute resolution professional" is important.

Section 1 provides this definition:

<blockquote><tt>"'''family dispute resolution professional'''" means any of the following:</tt></blockquote>
<blockquote><blockquote><tt>(b) a parenting coordinator;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) a lawyer advising a party in relation to a family law dispute;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) a mediator conducting a mediation in relation to a family law dispute, if the mediator meets the requirements set out in the regulations;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(e) an arbitrator conducting an arbitration in relation to a family law dispute, if the arbitrator meets the requirements set out in the regulations; ...</tt></blockquote></blockquote>

Let's take a closer look at who these people are. Section 1 defines a ''parenting coordinator'' as "a person who may act as a parenting coordinator under section 14." When you go to section 14, you find out that "a person meeting the requirements set out in the regulations may be a parenting coordinator." And now we need to look at the regulations. Section 6 of the [http://canlii.ca/t/8rdx Family Law Act Regulation] provides the details. A "parenting coordinator" is someone who is a member of the Law Society of British Columbia and is accredited by the Law Society as a parenting coordinator. It also includes someone who:

#is a member of the College of Psychologists of British Columbia, the British Columbia College of Social Workers, the BC Association of Clinical Counsellors, Family Mediation Canada, the Mediate BC Family Roster or the BC Parenting Coordinators Roster Society;
#maintains professional liability insurance; and,
#meets a list of training requirements set out in section 6(1)(b).

Under the ''[http://canlii.ca/t/84jt Legal Professions Act]'', a ''lawyer'' is defined as someone who is as a member of the [https://www.lawsociety.bc.ca Law Society of British Columbia] or a member of another Canadian law society. That's easy enough. And if you want the details about who the members of the Law Society are, you can get those from the Law Society's [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules/ Rules].

The term ''mediator'' isn't defined in the ''Family Law Act'', but section 1 does say that a person who works as a mediator must "meet the requirements set out in the regulations" if they are going to qualify as a "family dispute resolution professional" under the act. Section 4 of the Family Law Act Regulation provides the requirements. A "mediator" is someone who is a member of the Law Society of British Columbia and is accredited by the Law Society as a family law mediator. It also includes someone who:

#is a member of Family Mediation Canada or a member of the Mediate BC Family Roster; or,
#maintains professional liability insurance and meets a list of training requirements set out in section 4(2)(d).

The term ''arbitrator'' is also undefined in the ''Family Law Act''. Section 1 says that a person who works as an arbitrator must "meet the requirements set out in the regulations" if they are going to qualify as a "family dispute resolution professional." Section 5 of the Family Law Act Regulation provides the requirements. An "arbitrator" is someone who is a member of the Law Society of British Columbia and is accredited by the Law Society as a family law arbitrator. It also includes someone who is a member of:

#the College of Psychologists of British Columbia or the British Columbia College of Social Workers,
#maintains professional liability insurance; and,
#meets a list of training requirements set out in section 5(2)(b).

Although parenting coordinators, mediators and arbitrators are required to provide "written confirmation" that they meet the requirements set out in the Family Law Act Regulation to qualify as a "family dispute resolution professional," this is something you may want to investigate for yourself, before you hire anyone as your parenting coordinator, mediator or arbitrator. If it turns out that your family dispute resolution professional doesn't qualify as a "family dispute resolution professional" under the act and the regulations, you will ''not'' be able to take advantage of section 198(5) to claim a delay in the running of the time limits!

For family dispute resolution professionals who are lawyers, you can get this information from the [https://www.lawsociety.bc.ca/lsbc/apps/lkup/mbr-search.cfm Lawyer Directory] on the Law Society's website. The profile of each lawyer shows how long the lawyer has been practicing law, their contact information, and their discipline history, as well as their accreditations. Here's my listing, for example:

[[File:Sample lawyer profile new.png|600px|frameless|center|Sample lawyer profile from the website of the Law Society of British Columbia]]

The sections [[Family Law Mediation|Mediation]], [[Family Law Arbitration|Arbitration]], and [[Parenting Coordination]] which follow later in this chapter provide more information about the training and other requirements mediators, arbitrators, and parenting coordinators must have under the ''Family Law Act''.

==The out-of-court options==

There really are only two ways to resolve a legal problem. You can work out a settlement and create your own resolution to the legal problem. Or, you can ask someone to resolve the legal problem for you.

Going to court means that you're asking a judge to resolve your legal problem. If you decide to stay out of court but still want someone to resolve your legal problem for you, you'll be resolving your dispute through ''arbitration''. If you want to work out a settlement, you'll be resolving your dispute through ''negotiation'', ''mediation'' or ''collaborative negotiation''. ''Parenting coordination'' is a hybrid process that uses elements of mediation and arbitration to resolve disputes about parenting arrangements set out in a final order, award or agreement.

One of the criticisms that people often make about lawyers is that we are greedy and provoke conflict to make money. While that may be true of some lawyers, and certainly the advertising you see from lawyers in the United States tends to support this impression, the majority of Canadian family law lawyers would rather resolve family law disputes in any way other than court. In 2017, the Canadian Research Institute for Law and the Family published the results of a [https://prism.ucalgary.ca/bitstream/handle/1880/107586/Cost_of_Dispute_Resolution_-_Mar_2018.pdf?sequence=3&isAllowed=y study] of family law lawyers and their views of the different dispute resolution options. The research institute found that:

*Mediation and collaborative negotiation are viewed as the most useful dispute resolution processes for low-conflict disputes as well as disputes about the care of children and parenting, child support or spousal support, and the division of property and debt.
*Mediation and collaborative negotiation tend to result in longer-lasting resolutions than litigation.
*Cases resolved through mediation, collaborative negotiation, and arbitration take the least amount of time to conclude, while cases that are litigated take the most amount of time to resolve.
*Over 90% of the lawyers using collaborative negotiation or mediation agreed that the results they achieve are in the client’s interest, compared to only about one-third of lawyers using litigation.
*Almost all lawyers using collaborative negotiation and mediation agreed that the results they achieve are in the interest of the client’s children, compared to less than one-third of lawyers using litigation.
*When comparing the extent to which lawyers agree that their clients are satisfied with the results they achieve using the various dispute resolution processes, more lawyers agreed their clients are satisfied when they use collaborative negotiation or mediation than when they use litigation.

In other words, the majority of family law lawyers think that collaborative negotiation, mediation and arbitration are cheaper and faster than litigation, and are more likely to produce results that are in the interests of their clients and their clients' children.

===Negotiation===

Negotiation is a cooperative effort to resolve a dispute through discussion. Mediation and collaborative negotiation are structured ways of handling this discussion; they're both processes of negotiation.

People can negotiate the resolution of a dispute between themselves, with the help of a lawyer, or with the help of a judge at a case conference or a settlement conference if a court proceeding has started. Negotiation boils down to this:

<blockquote>'''Pat''': "I'll give you 60% of the money from the sale of the house if you'll let me keep my Porsche Boxster."</blockquote>
<blockquote>'''Sandy''': "Look, 60% is great, but I need more compensation for my interest in the Porsche. Why not give me 65% of the house and half of your hockey card collection instead?"</blockquote>
<blockquote>'''Pat''': "You know how important my hockey card collection is to me. Let me keep my hockey cards; I'll give you 60% of the house, and I'll sell the Porsche and give you half of what I get for it. Plus, I'll let you keep your Ford Pinto."</blockquote>

In a process of negotiation, each person gives a little and takes a little, all in the hope that at the end of the day they'll be able to come to an agreement on all of the issues that have cropped up because of the end of their relationship.

If you do reach a settlement, you'll want to record the terms of your settlement in some way. This is really important because, without some record of the deal that was reached, there's no way to confirm what the exact terms of the deal were if people start remembering things differently. While most people record their settlement by printing out a summary of the deal and signing it, really almost ''any'' record of the terms of the settlement will do.

For a quick introduction to starting negotiations, see [[How Do I Start Negotiations with My Spouse?]]. It's located in the Helpful Guides & Common Questions part of this resource, in the section, ''Alternatives to Court''.

===Collaborative negotiation===

The collaborative process is a kind of structured negotiation in which the parties and their lawyers sign an agreement not to go to court and to work together as a team to reach a settlement. The team can include clinical counsellors or psychologists who work with each of the parties to address any emotional issues related to the separation and provide their expertise on parenting plans. Other specialists can be recruited to help with particular subjects, such as issues about the children or complicated financial problems, as the need arises. The goal of collaborative negotiation is to arrive at a long-lasting settlement of the parties' legal problems that, as much as possible, meets each party’s most important needs and goals, and leaves them healthy and well and able to work together in the future.

There are collaborative "practice groups" all over British Columbia. These multidisciplinary groups consist of legal professionals, mental health professionals and financial experts whose main focus is using the collaborative process to help their clients.

* [http://www.bccollaborativerostersociety.com BC Collaborative Roster Society] (province-wide)
* [http://www.collaborativedivorcebc.com Collaborative Divorce Vancouver] (Vancouver and the lower mainland)
* [http://www.collaborativefamilylawgroup.com Victoria's Collaborative Family Separation Professionals] (Victoria)
* [http://www.collaborativefamilylaw.ca Okanagan Collaborative Family Law Group] (the interior)
* [http://www.nocourt.ca Collaborative Law Group of Nelson] (Nelson)
* [http://nocourt.net Collaborative Association in Metro Vancouver] (Surrey, New Westminster and the Fraser Valley)

More information about the collaborative process is discussed in this chapter's section on [[Collaborative Processes]]. For a quick introduction on how to start the collaborative negotiation process, see [[How Do I Start a Collaborative Process with My Spouse?]] located in the Helpful Guides & Common Questions part of this resource.

===Mediation===

Mediation is another kind of structured negotiation. In this process, the parties attempt to reach an agreement with the help of a mediator. A mediator is a neutral third party who guides the parties through their negotiations, helps to identify the parties' interests, and helps them to find a settlement that will work for both of them. The goal of mediation is to arrive at a settlement of some or all of the legal issues which both parties are as happy with as possible.

Mediation may be used by parties who never plan to set foot in a courtroom. It is also useful for parties who have started a court proceeding but would rather settle out of court than go through trial. The general rule is that mediation is a ''voluntary'' process. There is one exception to that rule. If you and your spouse are already parties to an action in the Supreme Court, the ''[https://canlii.ca/t/85bd Notice to Mediate (Family) Regulation]'' provides a mechanism for requiring the other side to try mediation before getting into the courtroom. To find out how to use this regulation, see [https://bcfamilylawresource.blogspot.ca/2014/01/lets-mediate-primer-on-notice-to.html JP Boyd on Family Law: The Blog].

If the parties reach a settlement, the terms of the deal can be set out in a ''separation agreement'', in ''minutes of settlement'', in a ''memorandum of agreement'', or in a ''consent order'', depending on the circumstances and the preferences of the parties. These are all ways of recording the terms of settlement. This is really important because, without some record of the deal that was reached, there's no way to confirm what the exact terms of the deal were if people start remembering things differently.

Many lawyers also work as mediators. Lawyers who work as mediators are called ''family law mediators''. They have to have additional training in mediation, family violence, and the power dynamics involved in dispute resolution processes. Lawyers who are family law mediators will usually advertise that they are both lawyers and mediators. More information about the training requirements for family law mediators is available from the Law Society of British Columbia's page on [https://www.lawsociety.bc.ca/for-lawyers/practice-resources/resources-by-area-of-practice/family-law-alternate-dispute-resolution-accreditation/ Family Law Alternate Dispute Resolution Accreditation], which also covers family law mediators.

For a quick introduction on starting mediation, see [[How Do I Start Mediation with My Spouse?]]. It's located in the Helpful Guides & Common Questions part of this resource, in the section ''Alternatives to Court''. For more detailed information about the mediation process, see the [[Family Law Mediation|Mediation]] section of this chapter.

===Arbitration===

Arbitration is ''not'' a form of negotiation. It is a decision-making process that can look a lot like court.

In arbitration, the parties hire a neutral third party called an ''arbitrator'' to act as their personal judge. They agree that their arbitrator can make decisions about their legal dispute that they will be bound by, as if those decisions had been made by a judge in court. However, unlike court, arbitration is a completely private process and the people involved can go through the process as quickly or as slowly as they'd like.

Arbitration is a lot more formal than mediation because the arbitration process results in a decision that is imposed on the parties, rather than an agreement which they reach themselves. Although the process includes a lot of flexibility and different procedural options, in general, in arbitration each party presents their evidence and their arguments, and tries to persuade the arbitrator that their position is the right one. Mediation, on the other hand, is often more like a conversation, with no formal rules of procedure and no evidence, apart from helpful things like financial statements.

The arbitration of family law problems is governed by sections 19.1 to 19.22 of the ''[[Family Law Act]]''. It is ''not'' governed by the provincial ''[http://canlii.ca/t/84gc Arbitration Act]''; that legislation mainly covers corporate and commercial disputes. Arbitration is, like mediation and collaborative negotiation, one of the dispute resolution processes that the court can refer people to under section 224 of the ''Family Law Act''.

Some lawyers also work as arbitrators. Lawyers who work as arbitrators are called ''family law arbitrators''. They have to have practised as a lawyer for at least ten years and have additional training in arbitration, family violence, and the power dynamics involved in dispute resolution processes. Lawyers who are family law arbitrators will usually advertise that they provide arbitration services. More information about the training requirements for family law arbitrators is set out in the Law Society's [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/code-of-professional-conduct-for-british-columbia/appendix-b-%E2%80%93-family-law-mediation,-arbitration-and/ Code of Professional Conduct] in Appendix B, and in the Law Society's [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules/part-3-%E2%80%93-protection-of-the-public/#d3 Rules] at Part 3, Division 3.

For a quick introduction on how to start arbitration, see [[How Do I Start Arbitration with My Spouse?]]. It's located in the Helpful Guides & Common Questions part of this resource, in the section, Alternatives to Court. For more detailed information about the arbitration process, see the [[Family Law Arbitration| Arbitration]] section of this chapter.

===Using mediation and arbitration together===

Mediation has lots to recommend it. It's cooperative, it's based on discussion and compromise, and its goal is to reach a settlement by consensus. However, without that last ingredient, ''consensus'', mediation will always fail. It sometimes makes sense to use a dispute resolution process that includes a way of resolving any issues that can't be agreed to, and that might mean a process that gives the mediator the power to resolve a stalemate by imposing a decision like an arbitrator. This hybrid approach to mediation and arbitration is called ''mediation-arbitration'', sometimes shortened to ''med-arb''.

In med-arb processes, the parties will sign an agreement that commits them to the mediation process and describes what will happen if agreement can't be reached on particular issues. The agreement should say whether the mediator will use information from the mediation phase to make decisions in the arbitration phase, and how any other evidence will be presented in the arbitration phase. It's really important to understand what will trigger the end of mediation and the beginning of arbitration, and whether the mediator will have the power to make decisions as an arbitrator on all of the issues or just some of them.

===Parenting coordination===

Parenting coordination is a hybrid dispute resolution process that relies on elements of both mediation and arbitration. It is only used to deal with problems about the care of children after a final parenting plan has been made by a court order, an arbitrator's award or a separation agreement. Parenting coordination is a child-focused process in which a neutral third party, a ''parenting coordinator'', helps parents implement the terms of their parenting plan. Parenting coordination is really only useful for parents who always seem to find themselves in conflict about parenting issues, despite their order, award or agreement. If you and your ex don't argue about your parenting plan a lot, you don't need parenting coordination.

In the parenting coordination process, the parents hire a parenting coordinator and sign a parenting coordination agreement that outlines their rights and responsibilities to each other and the scope of the parenting coordinator's services and authority. When a problem implementing the parenting plan comes up, one of the parents will contact the parenting coordinator and the parenting coordinator will get to work. First, the parenting coordinator will try to work out a solution by finding consensus, like a mediator. However, if the parents can't reach an agreement resolving the problem, the parenting coordinator will make a decision resolving the dispute, like an arbitrator.

Parenting coordination is governed by sections 14 to 19 of the ''[[Family Law Act]]'', and section 6 of the [http://canlii.ca/t/8rdx Family Law Act Regulation]. The court can make an order requiring people to start parenting coordination under section 15 of the act.

Parenting coordinators are family law lawyers and mental health professionals who are hired for lengthy terms of between six to 24 months. Lawyers who work as parenting coordinators have to have practised as a lawyer for ten years and have additional training in parenting coordination, arbitration, mediation, family violence, and the power dynamics involved in dispute resolution processes. Lawyers who are parenting coordinators will usually advertise that they also provide those services. More information about the training requirements for parenting coordinators is set out in the [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules/ ''Law Society Rules''], Part 3, Division 4. More information about parenting coordination is available at the website of the [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society].

To find out more about parenting coordinators, see [[How Do I Hire a Parenting Coordinator?]]. It's located in the Helpful Guides & Common Questions part of this resource, in the section, Alternatives to Court. For more detailed information about the parenting coordination process, see the [[Parenting_Coordination|Parenting Coordination]] section of this chapter.

==Free and lower-cost options==

Generally, people have to pay for their mediator, collaborative lawyer, arbitrator, or parenting coordinator. Sometimes these specialists charge on a sliding scale, but often the fees they charge will be in the neighbourhood of $200 to $400 per hour and up. They will also usually require the parties to pay significant retainers in advance. (A ''retainer'' is money paid to a lawyer as a deposit against the fees they will charge in the future.) These costs are the major challenge involved in getting access to legal assistance. The reality is that many people do not have the money to pay these fees or have a limited budget in which to work. Here is a list of services that may be able to assist:

*some mediation services about issues involving children and support are provided at no cost by [https://www.gov.bc.ca/FamilyJusticeCounsellors family justice counsellors],
*pro bono assistance from a collaborative negotiation team may be available through the Pro Bono Collaborative Divorce Project run by the [http://www.bccollaborativerostersociety.com/ BC Collaborative Roster Society], as long as you meet certain eligibility requirements,
*pro bono mediation may be available through the Pro Bono Family Mediation Clinic run by the [https://northshoreprobono.ca/ North Shore Pro Bono Society], again, if you meet certain eligibility requirements,
*Legal Aid will pay for a limited amount of mediation in certain circumstances, and
*you may be able to hire one of these specialists to work on an ''unbundled'', or ''limited scope'', basis, and they will charge for their services on an as-needed basis rather than requiring that a large retainer be paid up front.

For more information on unbundled legal services, see the website of the [https://unbundlinglaw.peopleslawschool.ca/ People's Law School]. For more information about retainers and how lawyers usually charge for their services, see the [[You and Your Lawyer]] section in the chapter on [[Understanding the Legal System for Family Law Matters]].

==Resolving disputes and thinking outside the box==

The end of a relationship can be a messy business at times. In addition to the legal issues that sometimes come up, there are always emotional issues, and the emotional issues can sometimes cloud people's judgment. (This is one of the reasons why hiring a lawyer can be a good idea; the lawyer's job is to help you see the forest when all you can see is the tree in front of you.) Over time, the intensity of the emotional issues changes and, hopefully, mellows. This can have an effect on how the legal issues are managed; things that once seemed terribly urgent or incapable of compromise become less urgent and more susceptible to alternatives.

At the same time, the people who used to be in a romantic partnership are also moving forward with their lives and learning how to live independently and apart. They're setting up separate homes, establishing separate bank accounts and building new daily routines. Temporary parenting arrangements get sorted out, whether by habit, by agreement, by order, or by award, and temporary arrangements also get worked out about how the family's income will be distributed to support two homes. This too has an effect on how the legal issues are managed.

As your circumstances and attitudes evolve, so should the approach you're taking to the resolution of your disputes.

It seems to me that no single dispute resolution process is going to be appropriate throughout the life of a dispute, except perhaps litigation when the conflict between the parties is extreme or there are mental health or violence issues that cannot be addressed otherwise. Apart from unhappy situations like those, different dispute resolution processes will likely be appropriate for different issues at different times over the course of a dispute. Being sensitive to this can really pay off.

Say, for example, that mediation has got you to the point where you agree on everything except for a technical issue, like someone's income or the best way to divide a family business. Rather than getting hung up on the issue that you're stuck on, why not try something different? Agree that the issue will be dealt with through arbitration. Agree that the issue will be referred to a senior family law lawyer with special expertise in the area for an opinion, and agree to be bound by the lawyer's recommended solution. (I've been asked to do this, and it's a lot of fun.) Agree to seek the opinion of a non-lawyer expert. Or, if you must, agree to take that one issue to trial or ask a judge to provide an opinion on the issue at a settlement conference.

There is a whole spectrum of processes that can be used to resolve some or all aspects of a family law dispute. Litigation, arbitration, mediation, and collaborative negotiation are all important ways of resolving disputes, and more than one process can be best suited for any given problem at any point over the course of a dispute. However, a willingness to be creative can suggest further options, like agreeing to be bound by the opinion of a respected lawyer or agreeing to take just one issue to a settlement conference. Don't get locked into the idea that only litigation or only mediation will work. Be willing to think outside the box.

==Formalizing settlements==

It is always best to write out the terms of a deal when the deal is done. Writing the agreement out gives everyone a record of their settlement which they can refer to if there's a dispute about what they agreed to down the road. This does happen.

Although it's true that oral agreements are just as binding as written agreements, it can be very difficult to prove the terms of an oral agreement, especially when a lot of time has passed since the agreement was originally made. On the other hand, when an agreement is written down, that written record is usually all the court will need to determine the terms of the agreement. Notes scribbled on a napkin, for example, might be a written agreement that the court will uphold. Letters and emails exchanged in the negotiation process have also been found to record the terms of an agreement.

Lawyers and mediators always make a tremendous effort to record the terms of a settlement as clearly and comprehensively as possible, and will usually put the settlement into a formal document like a separation agreement, a memorandum of understanding, minutes of settlement, or a consent order.

===Separation agreements===

A separation agreement is a written contract entered into after a relationship has broken down and the legal issues arising from the breakdown have been settled. The contract is written to reflect the terms of the settlement the parties have reached, and includes a lot of extra language that:

#describes the basic background of the parties' relationship,
#summarizes the circumstances of the settlement discussions,
#confirms that each party has had legal advice about the agreement,
#confirms that the parties intend to be bound by the agreement, and
#explains the consequences if a party decides not to follow the agreement.

Separation agreements are the product of negotiation, collaborative negotiation, or mediation, and may deal with all or just some of the legal issues between the parties. A separation agreement can also be used to record a settlement reached after litigation has started, instead of or in addition to a consent order.

Separation agreements are discussed in more detail in the chapter [[Family Law Agreements]], in the section [[Agreements after Separation]].

===Minutes of settlement===

Minutes of settlement are used to create a quick record of an agreement and are not nearly as comprehensive and detailed as separation agreements. Minutes are sometimes drafted by a mediator when the mediator isn't a lawyer or expects the lawyer for one of the parties to write a proper separation agreement describing the parties' settlement at some point in the near future. Sometimes minutes are used when a settlement has been reached on the brink of trial and there isn't enough time, or maybe enough emotional energy, to draft a proper consent order.

Typically, minutes of settlement are little more than an outline of the essential points agreed to, and are signed on the understanding that the terms will be elaborated and put into proper legal language later.

Minutes of settlement are the product of negotiation or mediation, and they usually deal with all of the issues between the parties. The terms of the minutes are usually used to draft a consent order or a separation agreement. When minutes are used as the basis for a consent order, they are often attached to the back of the order.

Minutes of settlement are signed by the parties and their lawyers. Minutes of settlement can be enforced by the courts as a binding agreement between the parties, even without a judge approving the consent order and without the parties signing a separation agreement.

===Memoranda of understanding===

A memorandum of understanding describes the terms on which all or part of a dispute has been settled. Memoranda are even less formal than minutes of settlement, and may not even be signed by both parties or both lawyers. A memorandum may even take the form of a letter sent by one of the lawyers:

<blockquote>"I confirm that in our telephone conversation of earlier this afternoon, we agreed that the children would live mostly with Suman and that Harjit would have parenting time with the children on weekends and every other Wednesday night, and that Harjit would pay child support to Suman in the amount of $326.00 per month."</blockquote>

While memoranda of understanding can be enforced by the courts on their own, they are almost always put into a more formal document later on, either as a consent order or as a separation agreement.

===Consent orders===

Consent orders are orders that parties have agreed the court should make — they're orders that the parties ''consent'' to the court making. Consent orders are meant to reflect the terms of a temporary or a permanent agreement between the parties, on some or all of the legal issues, after litigation has started.

Sometimes, parties will come to an agreement before a court proceeding has started and want to put the agreement in the form of a court order rather than in the form of a separation agreement. This would really only make sense if there was some important legal reason to have the agreement put in the form of a court order, or if the court would be asked to make an order about something anyway, like a divorce order.

When a judge makes a consent order, the order is just as important and is just as binding as if it was an order made after a trial. Consent orders are notoriously difficult to appeal or change without proof of some sort of deception by the other side or a change of circumstances since the order was made.

===Consent awards===

Consent awards are awards that parties have agreed an arbitrator should make. Consent awards are meant to reflect the terms of a temporary or a permanent agreement between the parties reached after they have started arbitration.

When an arbitrator makes a consent award, the award is just as important and is just as binding as if it was an award made after the arbitration hearing. Consent awards are difficult, if not impossible, to appeal or change without proof of some sort of deception by the other side or a significant change of circumstances since the award was made.

==Wait, I've changed my mind!==

Generally speaking, it is ''not'' okay to change your mind after you've come to a settlement, especially right after you've reached the settlement. What you can do about it, ''if'' you can do anything about it, depends on the circumstances in which the settlement was reached and whether the agreement has already been reduced to writing and signed.

===After the agreement has been formalized===

If you have a change of heart after a ''separation agreement'' has been signed, you can attempt to negotiate an amendment to the terms of the agreement. An amendment is another agreement, put into writing and executed just like the original separation agreement, and is usually described as an ''amending agreement'' or an ''addendum agreement'', or something similar. However, if the other side isn't prepared to change the agreement, you'll have little choice except to go to court and ask the judge to make an order different than the terms of the agreement. Be warned! This may be very difficult unless you can show that there was a significant flaw in how the agreement was reached or that there has been a serious and unexpected change in circumstances since the agreement was executed. You can't ask the court to make an order different from the agreement just because you've decided you don't like it. There must be an awfully good reason why the court should do anything different than what you had agreed to.

If you have a change of heart after a ''consent order'' has been made by the court, you'll face exactly the same problem. You can try to negotiate the terms of a new order changing the consent order, which will be presented to the court by consent in the same manner as the original consent order. Failing that, you'll have to apply to court to change the original consent order. You will have to prove that there has been a meaningful and unexpected change in circumstances since the order was made or that there was a significant flaw in how the agreement leading to the consent order was reached.

Amending separation agreements and asking the court to set them aside are discussed in more detail in the chapter [[Family Law Agreements]], in the section [[Changing Family Law Agreements]]. Changing orders is discussed in more detail in the chapter [[Resolving Family Law Problems in Court]], in the section [[Changing Orders in Family Matters]].

It's important to know that if you disagree with an order or an agreement and simply decide not to comply with the order or agreement, the other side can go to court to enforce the order or agreement. In the case of a court order, you could also be faced with an application for an order that you be found in contempt of court. Contempt is punishable by jail time, a fine, or both jail time and a fine. Note also that minutes of settlement and memoranda of understanding may be enforceable as binding agreements in the same way that separation agreements are enforceable.

The enforcement of orders is discussed in more detail in the chapter [[Resolving Problems in Court]], in the section [[Enforcing Orders in Family Matters]]. The enforcement of agreements is discussed in the chapter [[Family Law Agreements]], in the section [[Enforcing Family Law Agreements]].

===Before the agreement has been formalized===

People sometimes have a change of heart between the time the deal is struck and the time the agreement is put into the form of a consent order or a separation agreement. (Lawyers often think of this as a form of buyer's remorse.) If this happens, you have two options: you can either live with the agreement, or you can try to get the other side to agree to change the agreement.

You must really think hard before bringing your complaint to the other side, because any attempt to renegotiate the deal can upset not only the terms that you want to change, but also the terms that you're really quite happy with. As well, depending on the circumstances, the agreement that you struck may be enforceable even ''before'' it is put into the form of a separation agreement or court order. Here are some things to think about.

*Is the thing you want to change something you can actually live with? Is changing that one thing worth the risk of losing the settlement altogether?
*Is it worth the additional legal fees it will cost to go back into the negotiation process and to draft a new agreement?
*Is it worth the chance of losing other parts of the settlement that you're happy with but that the other side isn't too keen on?
*Is it worth the risk that the other side will start a court proceeding to enforce the unsigned agreement? Is it worth the legal fees it will cost to defend a court proceeding to enforce the agreement?

Remember that the negotiation process is a process of give and take. It is almost a certainty that you are going to be unhappy with some aspects of the agreement, just as the other side is going to be unhappy with other aspects of the agreement. Each of you gave things up and compromised your positions in order to reach a settlement. After all of the anxiety of the negotiation process and the pain of giving up on a hard-fought point, it is also almost a certainty that if one side wants to re-open an issue, the other side will want to re-open another issue.

==Resources and links==

===Legislation===

* ''[https://canlii.ca/t/8q3k Family Law Act]''
* ''[https://canlii.ca/t/551f9 Divorce act]''
* ''[https://canlii.ca/t/840n Family Relations Act]''
*''[https://canlii.ca/t/84jt Legal Professions Act]''
*[https://canlii.ca/t/8rdx Family Law Act Regulation]
*[https://canlii.ca/t/85bd Notice to Mediate (Family) Regulation]

===Links===

*[https://www.justice.gc.ca/eng/fl-df/cfl-mdf/dace-clde/index.html Divorce Act Changes Explained] from the Government of Canada
*[https://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/your-options/early-resolution Early Resolution Process] from the Government of British Columbia
*[https://www.gov.bc.ca/FamilyJusticeCounsellors Family Justice Counsellors] from the Government of British Columbia
*[https://unbundlinglaw.peopleslawschool.ca/ Unbundled Legal Services] from the People's Law School
*[https://mediatebc.com/our-services/ Mediate BC] website with resources and a roster of qualified mediators
*[https://dialalaw.peopleslawschool.ca/resolving-disputes-without-going-to-court/ Resolving Disputes Without Going to Court] from Dial-a-Law by the People's Law School
*[https://www.clicklaw.bc.ca/resources/dial-law-mediation-collaborative-negotiation-and-arbitration Mediation, Collaborative Negotiation, and Arbitration] from Dial-a-Law by the People's Law School
*[https://www.youtube.com/watch?v=p89vyvgWQ9s "An Inside Look at Family Mediation"] video from Legal Aid BC and CLEBC
*[https://aboriginal.legalaid.bc.ca/child-family-rights/mediation Mediation - Child protection and Aboriginal Families] from Legal Aid BC
*[https://www.accessprobono.ca/program/virtual-family-mediation-program Virtual Family Mediation Program] from Access Pro Bono
*[https://www.lawsociety.bc.ca/lsbc/apps/lkup/directory/mbr-search.cfm Lawyer Directory] from the Law Society of BC
*[https://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society]
*[https://www.collaborativedivorcebc.com/ Collaborative Divorce Vancouver] (Vancouver and the lower mainland)
*[https://collaborativefamilylaw.ca/ Okanagan Collaborative Family Law Group] (the interior)
*[https://www.nocourt.net/ The Collaborative Association] (Surrey and the Fraser Valley)
*[https://www.bccollaborativerostersociety.com/ BC Collaborative Roster Society] (province-wide)
*[https://www.collaborativefamilylawgroup.com/ Collaborative Family Separation Professionals] (Victoria)

===Resources===

*[https://bit.ly/3LP3xi0 “Family Law Basics” video] from JP Boyd
*[https://perma.cc/WFB7-2F4R “A Case for Mediation: The Cost-Effectiveness of Civil, Family, and Workplace Mediation” (PDF)] from Mediate BC Society
*[https://www.youtube.com/watch?v=p89vyvgWQ9s "An Inside Look at Family Mediation"] video from Legal Aid BC and CLEBC
*[https://perma.cc/M6NT-JAHC "How Can We Resolve Our Family Law Issues?" (PDF)] from Legal Aid BC
*[https://canlii.ca/t/286m "An Evaluation of the Cost of Family Law Disputes: Measuring the Cost Implication of Various Dispute Resolution Methods"] from the Canadian Research Institute for Law and the Family

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

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[[Category:JP Boyd on Family Law]]

Separation and the Law

2026-05-14T23:33:44Z

Nate Russell:

{{JP Boyd on Family Law TOC|expanded = separation}}{{JPBOFL Editor Badge
|ChapterEditors = [[Vanessa Van Sickle]]
}}
{{LSSbadge
| resourcetype = more information on
| link = [*[https://family.legalaid.bc.ca/separation-divorce common questions on Separation & Divorce]
}}Separation usually signals the breakdown of a serious relationship. It can be one of the most traumatic stages in the conclusion of a relationship, but a brief period of separation can also lead to reconciliation and the resumption of life.

This section discusses the legal aspects of separation, the rules about reconciliation, and some of the other things you may want to think about once you have separated or have decided to separate. The information in this section applies to ''married spouses'' and ''unmarried spouses'' — people who are legally married to each other, people who have lived together for two years or more in a "marriage-like relationship," and people who have lived together for less than two years and have had a child together.

This section also addresses some common questions about sex and new relationships after separation. The first section in this chapter, [[Separating Emotionally]], talks about the emotional dimensions of separation and how those emotional issues can influence the resolution of the legal issues.

==Introduction==

Separation is a turning point in a relationship in more ways than one. Apart from the obvious change to what was once a romantic relationship, separation also triggers a number of important legal consequences.

*Guardians must have separated before they can ask for an order about parenting children under section 45 of the ''[[Family Law Act]]''. Also, an agreement between guardians about parenting children is only binding if the agreement is made after they have separated, under section 44 of the act.
*The date of separation is the date when each spouse gets a one-half interest in all family property and becomes responsible for one-half of all family debt, under section 81 of the ''Family Law Act''.
*The date of separation marks the end of the period during which family property and family debt accumulates, under sections 84(1) and 86.
*An agreement about child support is only binding if the agreement is made after the date of separation, under section 148(1) of the ''Family Law Act''.
*The date of separation marks the beginning of the two-year period during which unmarried spouses must begin a claim for the division of property and debt or for spousal support, under section 198(2) of the act.
*The date of separation marks the beginning of the one-year period during which married spouses must live "separate and apart" to ask for a divorce on the basis of separation, under section 8(2)(a) of the ''[[Divorce Act]]''.

Because so many legal issues hinge on the date of separation, it won't be a surprise that people sometimes wind up arguing about when separation occurred. As a result, there's a good bit of case law about what constitutes "separation" and how to figure out what date is the date of separation. Making things a bit more complicated, while the decision to separate is often made by everyone involved in a relationship, it only takes one person to decide to end a relationship, and a decision to end a relationship doesn't require the consent or agreement of anyone else.

===Getting a "legal separation"===

Some people go to family law lawyers to get a "legal separation." Separation is accomplished, in most cases, by simply leaving the family home with the intention of living separate lives, although technically speaking it isn't necessary to move out at all. Once you or your spouse has announced that the relationship is at an end, boom: you're separated. That's it. There are no special legal documents to sign or file in court to become separated, and there is no such thing as a legal separation in British Columbia.

Now, to be fair, what people often mean by "legal separation" is a ''separation agreement''. That's something else altogether. A separation agreement is a contract that people use to record their agreement about things like how the children will be cared for, how their property will be shared, and how child support and spousal support will be paid. Separation agreements aren't always useful, they're not required by the law, and you can't be forced to sign a separation agreement.

You can find more information about separation agreements in the chapter [[Family Law Agreements]], in the section [[Agreements after Separation]]. You can find out more about preparing to separate in [[How Do I Prepare for Separation?]], located in the Helpful Guides & Common Questions part of this resource.

===The date of separation===

Under the old ''[[Family Relations Act]]'', married people rarely argued about when they separated. The issue was sometimes important for unmarried spouses because their ability to ask for spousal support depended on whether they started a court proceeding within one year of the date of separation. Under the new ''[[Family Law Act]]'', however, the date of separation has become very important for both kinds of spouses.

In general, the date of separation has the following effects:

*each spouse becomes entitled to a half-interest in all family property, whether that property is owned jointly or in the name of the other spouse only,
*the spouses each become responsible for one-half of family debts,
*any property a spouse gets after the date of separation is their own separate property, not family property,
*any debt a spouse incurs after the date of separation is that spouse's sole responsibility, and
*unmarried spouses have two years from the date of separation to start a claim in court for the division of family property, the sharing of family debt, or the payment of spousal support.

Spouses do not need to move out in order to be separated. All that's needed is for at least one spouse to reach the conclusion that the relationship is over, say so, and then begin behaving as if the relationship really is over. That usually means stopping sleeping together, stopping doing chores for each other, stopping going out together and so on. Section 3(4) of the ''Family Law Act'' talks about separating while continuing to live together:

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

This is helpful, because the old ''Family Relations Act'' didn't talk about separation in any detail. However, the phrase in section 3(4)(b), "the court may consider," suggests that this section isn't a complete list of things the court should consider when deciding when separation happened, and the cases about separation are still very helpful. Here are some of the highlights:

<blockquote>''[http://canlii.ca/t/gwfq9 Herman v Herman]'', Nova Scotia Supreme Court, 1969:</blockquote>

<blockquote><blockquote>"[A]s long as the spouses treat the parting or absence, be it long or short, as temporary and not permanent, the couple is not living separately even though physically it is living apart. In order to come within the clear meaning of the words 'separate and apart' in the statute, there must need be not only a physical absence one from the other, but also a destruction of the consortium vitae or as the act terms it, marriage breakdown."</blockquote></blockquote>

<blockquote>''[http://canlii.ca/t/g1493 Rowland v Rowland]'', Ontario Supreme Court, 1969:</blockquote>

<blockquote><blockquote>"[T]he words 'living separate' connote an attitude of mind in the spouses in which they regard themselves as withdrawn from each other."</blockquote></blockquote>

<blockquote>''[https://canlii.ca/t/j7cf0 McDorman v McDorman]'', New Brunswick Supreme Court, 1972:</blockquote>

<blockquote><blockquote>"While the mere living separate and apart of the spouses may not be conclusive of the fact that there has been a permanent breakdown of the marriage, especially in cases where the separation may have been brought about ... by enforced hospitalization ... all of the circumstances accompanying such separation must be considered in determining whether or not it has in fact led to a permanent marriage breakdown."</blockquote></blockquote>

<blockquote>''[http://canlii.ca/t/g161p Lachman v Lachman]'', Ontario Court of Appeal, 1970:</blockquote>

<blockquote><blockquote>"A marital relationship is broken down when one only of the spouses is without the intent for it to subsist."</blockquote></blockquote>

It's important to know that the Canada Revenue Agency has its own definition of separation, and requires people to have lived separate and apart for 90 days before it considers them to be separated. Once that 90-day period is over, the date of separation is the date the couple first began to live separate and apart.

===Separation and divorce===

Under section 8(1) of the ''[[Divorce Act]]'', there is only one reason, or ''ground'', why the court can make a divorce order: marriage breakdown. Under section 8(2), there are three ways to prove that a marriage has in fact broken down:

*the spouses have "lived separate and apart for at least one year,"
*one of the spouses has committed adultery, and
*one of the spouses has treated the other with such mental or physical cruelty that the spouses can't continue to live together.

Almost all claims for divorce in Canada are based on separation. It doesn't imply that one spouse did anything bad or was more responsible for the end of the relationship than the other spouse. Claims for divorce based on adultery or cruelty, on the other hand, do exactly that. As a result, if it winds up taking a year or more from the date of separation for the court to hear and decide a claim for divorce based on adultery or cruelty, the court will often grant the divorce on the basis of separation instead.

===Separation and children===

Under section 39(1) of the ''[[Family Law Act]]'', a parent is a guardian of their child while the parents live together, and the parents remain guardians after separation.

Separation can be extraordinarily difficult for children. In most registries of the Provincial Court, parents are required to attend the [https://www.gov.bc.ca/ParentingAfterSeparation Parenting After Separation Course]. This program, which is brief and free, teaches parents how to communicate with one another after separation and how to talk to their children about separation. It is an extremely useful course, and one that I think all separating parents should take. You can find more information about this program and other issues relating to children and separation in the chapter entitled [[Children and Parenting after Separation]], in the section [[Parenting after Separation]].

Separation is, of course, also difficult for the adults who are separating. You can find more information about the emotional dimensions of separation in the [[Separating Emotionally]] section of this chapter.

==Reconciliation==

For some people, separation is it. Their relationship is irrevocably over. For others, a period of separation is a time for renewing trust and rebuilding intimacy, and can be a healthy break that rejuvenates and revitalizes a relationship.

===The ''Divorce Act''===

The ''[[Divorce Act]]'' actually tries to discourage divorce, believe it or not. There are a few parts of the act that promote reconciliation to help married spouses stay together. Section 7.7 requires lawyers to talk to their clients about getting back together and says this:

<blockquote><tt>(1) Unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so, it is the duty of every legal adviser who undertakes to act on a spouse’s behalf in a divorce proceeding</tt></blockquote>
<blockquote><blockquote><tt>(a) to draw to the attention of the spouse the provisions of this Act that have as their object the reconciliation of spouses; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) to discuss with the spouse the possibility of the reconciliation of the spouses and to inform the spouse of the marriage counselling or guidance facilities known to the legal adviser that might be able to assist the spouses to achieve a reconciliation.</tt></blockquote></blockquote>

Under section 10, the court is required to pump the brakes on a divorce claim if it thinks reconciliation is a possibility:

<blockquote><tt>(2) 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 the reconciliation of the spouses, the court shall</tt></blockquote>
<blockquote><blockquote><tt>(a) adjourn the proceeding to afford the spouses an opportunity to achieve a reconciliation; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) with the consent of the spouses or in the discretion of the court, nominate</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) a person with experience or training in marriage counselling or guidance, or</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) in special circumstances, some other suitable person,</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><tt>to assist the spouses to achieve a reconciliation.</tt></blockquote></blockquote>

Other parts of the ''Divorce Act'' talk about the effect of trying to reconcile on the calculation of the one-year period that spouses must live apart to get a divorce on the basis of separation. Section 8(3) says that:

<blockquote><blockquote><tt>(b) A period during which spouses have lived separate and apart shall not be considered to have been interrupted or terminated</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) by reason only that either spouse has become incapable of forming or having an intention to continue to live separate and apart or of continuing to live separate and apart of the spouse's own volition, if it appears to the court that the separation would probably have continued if the spouse had not become so incapable, or</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) by reason only that the spouses have resumed cohabitation during a period of, or periods totalling, not more than ninety days with reconciliation as its primary purpose.</tt></blockquote></blockquote></blockquote>

In other words, a married couple may attempt to reconcile and can resume a cohabiting relationship for a maximum of 90 days without stopping the clock on separation as a reason for a divorce order. If a couple have lived together for more than 90 days since the first separation, the one-year clock will start again at the end of the last period in which they lived together as married spouses.

The 90 days needn't be consecutive in order to stop the clock. If you are claiming separation as the reason for your divorce, you cannot have resumed your relationship with your spouse for a ''total'' of 90 days within the one-year period of separation.

===The ''Family Law Act''===

Because the ''[[Family Law Act]]'' doesn't talk about divorce, it also doesn't talk about separation and attempts to reconcile. The one exception to this general rule has to do with the division of property and debt under Part 5 of the act. Section 83 says this:

<blockquote><tt>(1) For the purposes of this Part, spouses are not considered to have separated if, within one year after separation,</tt></blockquote>
<blockquote><blockquote><tt>(a) they begin to live together again and the primary purpose for doing so is to reconcile, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) they continue to live together for one or more periods, totalling at least 90 days. </tt></blockquote></blockquote>
<blockquote><tt>(2) Nothing in this Part affects a division of property under an agreement or order in a circumstance where, after the agreement or order was made, spouses live together and then separate again.</tt></blockquote>

These provisions are important because the date of separation is the date when new property and new debt stop being shared family property and family debt and start being each spouse's separate property and debt. The general effect of this section is to reset the date of separation when spouses have resumed living together, so that the date that family property and family debt stop accumulating is moved to the next time the spouses separate. However, if the spouses have made an agreement or got an order about the division of property between the date they first separated and the date they reconciled, that agreement or order is still good.

==Things to think about after separation==

Once you've separated, there a number of things you may want to do, change, or adjust to reflect your new relationship with your spouse. In general, you need to protect your privacy and safeguard your financial interests.

===Bank accounts and credit cards===

You should remove your name from any joint bank accounts or credit cards. If your spouse has signing authority or debiting authority on any of your accounts or credit cards, you should consider cancelling their authority.

Credit cards, loans, and lines of credit can often be capped by telling the bank to make the accounts ''deposit only''. This will mean that no more withdrawals can be made and the only transactions that can take place are deposits. You could also tell the bank to reduce the credit limit on any joint debts to the current balance on those accounts.

===Insurance policies, pensions and RRSPs===

You may wish to change the beneficiary of your insurance policies, pensions, and RRSP accounts if your spouse is the present beneficiary. If your spouse is the irrevocable beneficiary on such an account, your bank or insurance company may require your spouse's consent to remove their name as a beneficiary.

===Jointly-owned real estate===

Most spouses own real estate as “joint tenants." The really important aspect of this type of joint ownership is that if one of the joint owners dies, the surviving owners continue to own the entire property. This is different from the other type of joint ownership, a "tenancy in common." When a joint owner who is a tenant in common dies, their share of the property goes to their estate to be distributed according to their Will.

The ''[[Family Law Act]]'' says that on the date of separation each spouse is entitled to their share of the family property and responsible for their share of the family debt, and that the spouses take their the shares of the family property as ''tenants in common''. Of course, the Land Title and Survey Authority doesn't know you've separated. How your title is legally registered will not automatically change because of your separation.

There are reasons both for and against keeping the ownership of any jointly-owned property registered as joint tenants. You should get advice from a family law lawyer if you have jointly-owned property. You should see a real estate lawyer for help in changing the way that you own the real estate.

===Wills===

Spouses have certain rights under the ''[http://canlii.ca/t/8mhj Wills, Estates and Succession Act]'' that change following separation. Among other things, they stop being "spouses" for the parts of the act that talk about how someone's property is distributed if they die without a will and any gifts that are made to a spouse in a will are cancelled.

If you want to make a claim to property owned by your spouse's estate, or ask for child support or spousal support from your spouse's estate, you'll have to sue your spouse's estate under the ''[[Family Law Act]]''.

If you've separated but you still want your spouse to receive a gift in your Will, you must update your Will and specify that the gift or appointment should be made even though you've separated. You should see a wills and estates lawyer for help in making or changing a Will.

===Powers of attorney and other authorizations===

Unless a power of attorney was written to say otherwise, under the ''[http://canlii.ca/t/849l Power of Attorney Act]'', any power of attorney made by you and your spouse terminates on the date of your separation. However, if you want to be sure that your power of attorney has been terminated, you should:

#revoke the power of attorney in writing;
#deliver a copy of the revocation to all financial institutions where you have an account, and
#deliver a copy of the revocation to your spouse and to anybody else you have appointed as your attorney.

(Always keep records of your revocation, and how and when you delivered the revocation!) If you still want your spouse to act as your attorney after you separate, however, you must prepare a new power of attorney.

You should speak with a wills and estates lawyer if you wish to revoke an existing power of attorney or create a new one.

===Medical and dental insurance===

Normally, spouses and children are still covered by the other spouse's health insurance for a period of time after separation. Coverage for children usually ends once the children turn 19; coverage for married spouses almost always ends on divorce, but coverage for unmarried spouses may end when the parties stop living together. You should contact the people who administer your insurance plan for more information, as different plans have different rules about the eligibility of spouses as beneficiaries following separation.

For most people, maintaining spousal benefits costs little or nothing. If that's the case, consider leaving your spouse's coverage in place for as long as your plan allows; it'll appear rather mean-spirited if you cancel your spouse's benefits. Whatever you do, don't cancel the children's benefits!

===Finances and assets===

When you separate, make sure you take or make copies of the following items:

*your financial information, including your credit card statements, bank statements, RRSP and investment account statements, and so forth,
*your MSP card and your private medical insurance card, if you have one,
*your immigration or citizenship documents, if you are new to Canada, and
*your passport.

If you have children, consider taking or making copies of their birth certificates and passports too.

You may also wish to take a fair share — half or less than half — of common household property such as the children's clothing, the furniture, and your personal effects. However, it's really important that you proceed with caution. Yes, the odds are quite good that half the household property is yours, but the last thing you want to do after separation is to ramp up the tension with your ex any further. If you absolutely cannot live without the dish set, then take the dish set, but otherwise it may be best to leave the dish set at home. Nothing looks worse than the spouse who takes half the glasses, half the cutlery, half of a dining room suite, and half of the living room furniture.

Now, the following may seem a bit pessimistic, but you should also make a list of all of the property your spouse owns in their own name and of all the things you own jointly. A detailed list, including balances and account numbers and serial numbers, would be ideal, but even something as simple as a list of the financial and other institutions you and your spouse deal with will do. You can collect that information by writing down the names and addresses of the people who are sending your spouse statements; you don't even have to open the envelopes, which is something you should probably avoid in any event. This information could prove invaluable if you wind up in an argument about who owns what or about the extent of the family property and family debt.

===Personal privacy===

You should also change the passwords or access privileges for your:

*smartphone, smartwatch, tablets, computers and other devices,
*home wifi router and personal hotspots,
*home security and surveillance systems, especially security cameras, electronic doorbells and electronic locks,
*wifi-enabled appliances, fixtures and outlets,
*internet, cable and telecommunication service providers,
*email accounts, social media accounts and gaming accounts,
*subscription-based accounts, like Netflix, Spotify and Crave, and
*business accounts and services, including electronic banking, credit card and money transfer services, accounting and bookkeeping software, and communication and conferencing services.

You may also want to disable any location-sharing options or services that may be available for your smartphone, smartwatch and car, or be built-in to your social media accounts.

==Sex and new relationships after separation==

A lot of people have questions about the consequences of sex after separation. The discussion that follows is about sex with spouses, sex with people other than spouses, new relationships, and how a married person can find themself in an unmarried spousal relationship while still being married.

===Sex with spouses===

There are, generally speaking, no legal consequences to having sex with your spouse after you've separated. While it might cause some emotional difficulties — such as prolonging the amount of time it takes to recover from a relationship that's broken down — there's nothing legally wrong with having sex with your spouse. Most people would say that there's nothing morally wrong with it either.

Having sex with your spouse after separation will not have an impact on how the care of the children is managed, the amount of child support that is paid, whether spousal support should be paid, or how your property and debt should be divided. The court does not look into this sort of conduct in determining these issues.

However, two things that married spouses probably need to think about are these:

*'''Reconciliation:''' While simply having sex with your spouse won't count toward the 90-day period of reconciliation described above, it may if you begin to live with each other while you're doing it.
*'''Divorces based on adultery:''' If you are making a claim for a divorce based on your spouse's adultery, and you have sex with your spouse after you start the claim, you could be considered to have forgiven your spouse for the adulterous conduct. If you have forgiven your spouse, you will not be able to obtain a divorce based on their adultery. The same principle would probably also apply to divorce claims based on cruelty.

===Sex with other people===

Just like having sex with your spouse after you've separated, there's nothing wrong with having sex with someone ''else'' after you've separated. (In fact, that may be a much better idea than having sex with your ex.) Separation is partly defined as leaving a spouse with the intention of ending the relationship. Once you've separated, the court will consider the romantic, marriage-like aspect of the relationship to have concluded, and your obligation to remain faithful along with it. Married spouses aren't divorced until they get a court order, of course, but, after separation, the marital aspects of their relationships, and the attendant expectations of monogamy, will be considered to be at an end.

Having sex with someone else will not have an impact on how the care of the children should be managed, the amount of child support that is paid, whether spousal support should be paid, or how your property and debt should be divided. The court does not consider this sort of conduct in determining these issues.

====Is it adultery?====

Adultery is a problem only for married spouses. Technically speaking, it is in fact adultery to have sex with anyone other than your spouse for so long as you are married, even if you're separated, and you'll remain married until you have obtained an order for your divorce.

However, while having sex with someone else might constitute adultery, the court won't care whether you've committed adultery after you've separated or not. As far as the courts are concerned, if your relationship is over, go ahead and do what you like. No one apart from your ex or your in-laws is likely to criticize you for it.

====Can it be a ground of divorce?====

You cannot sue for divorce based on your own adultery. Now, if it's ''your spouse'' who has had sex with someone other than you following separation, you can use their adultery to ask for a divorce order as long as you haven't already claimed for divorce for another reason like separation.

===New relationships===

New romantic relationships are treated in exactly the same way as new sexual relationships: the courts will not normally be concerned with a new relationship unless your new partner is somehow a risk to the children.

Entering into a new relationship will not usually have an impact on how the care of the children should be managed or on how much child support should be paid, it may or may not have an impact on whether spousal support should be paid, and it will never change how your property and debt should be divided. The court does not look at this sort of conduct in determining these issues. Besides, most separated spouses find themselves in new relationships before they are legally divorced.

====What about the kids?====

As a general rule, you should be a bit careful about exposing the children to new relationships. It can be very confusing for kids to deal with the idea of their parents separating and then see a parent involved with some stranger who appears to be stepping into the shoes of the other parent.

You should take a lot of care in deciding how and when the children are introduced to your new relationships. In general, older children are more likely to understand new relationships, while younger children are more apt to be confused by the new relationship, especially when the new person tries to "parent" the children themselves. Whether we like it or not, society teaches children a very stereotypical view of family life: there are two parents, those parents love each other very much, and those parents are supposed to be together always. You should ask any new partner to be sensitive to these issues and to avoid presenting themselves to the children as an alternate parent.

====What if there are a lot of new relationships?====

Sometimes a newly separated spouse feels the need to go out and explore their options, so to speak, and will engage in a series of short-term relationships. This will be very difficult for children of all ages to deal with, if they're aware it's going on. It's one thing to have your parents' relationship break up, which is difficult enough to manage, but it's something else entirely to then be introduced to a parade of new people that a parent appears to be romantically involved with. This can lead to resentment and can encourage the children to align with the other parent.

In general, you shouldn't introduce your children to a new partner unless you are sure of the new relationship and expect to be in it for a good long while. If you're not sure about the longevity of the new relationship, be safe rather than sorry and don't introduce your children to your new partner until you're positive that the relationship will last.

If you're on the other side of the table and are worried about your ex's dating habits, you may want to ask for an order or an agreement requiring your ex to be involved in any new relationship for a minimum period of time — say five or six months — before they introduce the children to the new person. That being said, while it is entirely reasonable to be concerned about the impact of the new relationship on the children, some caution is warranted. Before you interfere with things, make sure that your concerns about the children are well-founded and are based on their interests rather than on your own emotional reaction to your ex's new relationship.

===New spousal relationships===

It's possible that a married person who is separated but still married can become someone else's spouse in an unmarried relationship. Not everyone is in a rush to get divorced once a marriage breaks down, and some people don't get around to getting a divorce until many years after separation.

If you are separated from your married spouse, you are still married and will continue to be married to that person until you get divorced. If you start a new romantic relationship while separated from your married spouse, your new partner can become your ''unmarried'' spouse if:

*you live with the new person in a "marriage-like relationship" for at least two years, or
*you live with the new person for less than two years but have a child with the person.

This carries some important consequences. If you find that you're married but in a new relationship that qualifies as a spousal relationship:

*you may have an obligation to pay child support for your new partner's children as a stepparent,
*you will have an obligation to support any children you and your new partner have together,
*you may have an obligation to pay spousal support to your new partner, should you separate, and
*you will have to share family property and family debt with your new partner, should you separate.

These obligations are, of course, in addition to whatever obligations you have to your married spouse and any children from your marriage.

==Resources and links==

===Legislation===

* ''[https://canlii.ca/t/8q3k Family Law Act]''
* ''[https://canlii.ca/t/551f9 Divorce Act]''
* ''[https://canlii.ca/t/840g Estate Administration Act]''
* ''[https://canlii.ca/t/84g0 Wills Variation Act]''
* ''[https://canlii.ca/t/8mhj Wills, Estates and Succession Act]''
* ''[https://canlii.ca/t/849l Power of Attorney Act]''

===Links===

*[https://www.clicklaw.bc.ca/resource/4639 Separation & Divorce] from the Legal Aid BC’s Family Law website
*[https://www.gov.bc.ca/ParentingAfterSeparation Parenting After Separation] course from the BC Ministry of Attorney General's Family Justice Services Division
*[https://bc.familieschange.ca/en Families Change] website from the Justice Education Society of BC and BC Ministry of Attorney General
*[https://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help Support and Resources for Dealing with Separation and Divorce] website from the BC Ministry of Attorney General

===Resources===

*[https://family.legalaid.bc.ca/resources/living-together-or-living-apart ''Living Together or Living Apart'']
*[https://dialalaw.peopleslawschool.ca/separation-agreements/ Separation and Separation Agreements] from Dial-a-Law by the People's Law School
*[https://dialalaw.peopleslawschool.ca/separation-deciding-who-will-move-out/ Deciding Who Will Move Out When You Separate] from Dial-a-Law by the People's Law School
*[https://pas-finances.familieschange.ca/ Parenting After Separation: Finances] online course from the Justice Education Society of BC
*[https://family.legalaid.bc.ca/resources/coping-separation-handbook ''Coping with Separation Handbook''] from Legal Aid BC
*[https://westcoastleaf.org/work/separation-agreements/ Separation Agreements: Your Rights and Options] from Legal Aid BC and West Coast LEAF
* [https://family.legalaid.bc.ca/separation-divorce/going-through-separation Going Through Separation] from Legal Aid BC
* [https://www.howtoseparate.ca/ How to Separate] online course from Justice Education Society
*[https://bit.ly/3AoGrfy "Ending Relationships" video] from John-Paul Boyd, KC

{{REVIEWED | reviewer = [[JP Boyd]], 26 March 2020}}

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[[Category:Marriage, Separation & Divorce]]
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[[Category:JP Boyd on Family Law]]

Access to Family Justice

2026-05-14T23:33:06Z

Nate Russell:

{{JP Boyd on Family Law TOC|expanded = intro}}{{JPBOFL Editor Badge
|CoAuthor= [[JP Boyd]]
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{{LSSbadge
|resourcetype = a fact sheet on
|link = [http://www.familylaw.lss.bc.ca/resources/fact_sheets/expect_from_lawyer.php what to expect from a lawyer]
}}At some point in our high school civics class we learn that we live in a ''nomocracy'', which means ''a society governed by the rule of law''. Living in a society governed by the rule of law means a whole lot more than just having police who arrest shoplifters and drunk drivers. Among other things, it means we have laws that are:
* written,
* published,
* understandable, and
* apply equally to everyone.

The rule of law also means that we have an accessible justice system that resolves legal disputes — whether between corporations, between an individual and the state, or between people leaving a family relationship — quickly, efficiently, affordably, and fairly. Unfortunately, in many parts of Canada, aspects of "living in a society governed by the rule of law" are more of an ideal than a reality.

This section talks about:
* common barriers people face when accessing family justice in British Columbia,
* a short history of the access to family justice crisis in Canada,
* ways that the courts, government, non-profit organizations, the Law Society, lawyers, mediators, paralegals, law students, and other legal advocates have responded to the problem,
* future developments and ideas about other steps that might make family justice more accessible, and
* where you can find legal help for a family law matter.

==Barriers to justice==

Is access to justice just about access to lawyers and courts? No, and especially not for family law matters. For people going through separation and divorce, one of the first barriers to confront is the misguided perception that court is where they need to go, or where they have to go. Popular media would have us believe that lawyers arguing before a judge is somehow the proper way to settle relationship breakdowns. That's wrong. The fact is, unless family violence is a factor or urgent intervention is needed to protect children, people, or property, most families don't need the court's help to fairly resolve their separation.

What people do need is accurate information about legal rights — their own rights, the other person's rights, and their children's rights — finances, and the risks and benefits of the choices they want to make. This information can empower people to resolve their legal issues on their own, and make appropriate and acceptable compromises as necessary. People then need certainty that the decisions they've made resolving their issues will be respected, followed, and enforced if necessary. Many efficient, sensible, and effective alternatives to court exist that can meet these core needs. And many of them are less costly, less stressful, and less time-consuming than going to court. Court is generally only better for highly contentious family law problems.

''JP Boyd on Family Law'' is filled with chapters designed to reduce the barrier to justice that arises from our perception that court is the only or the best option:
* [[Resolving Family Law Problems out of Court]], includes sections about non-court processes and the legal professionals who provide them, such as [[Collaborative Negotiation]], [[Family Law Mediation]], [[Family Law Arbitration]], and [[Parenting Coordination]], and
* [[Family Law Agreements]], provides information on how people can settle their own ongoing or future disputes with minimal involvement by lawyers or courts.

There are other barriers to family justice as well, of course. The law is complex, often hard to find and often hard to understand. The rules that govern the court system, and the forms the rules require, are also complicated. (These are things ''JP Boyd on Family Law'' tries to address as well.) If you decide that you'd like to hire a lawyer to help guide you through the law and the rules, lawyers' fees can be very expensive and are sometimes out of reach. Even if you can afford a lawyer, there may not be a lawyer near you who specializes in family law.

===Cost barriers===
For those who do end up in court, the stakes can be high, the process can feel intimidating, and having a lawyer by your side can feel like a priority. The cost of this can be a significant barrier, however. Based on a [https://www.canadianlawyermag.com/news/features/2021-legal-fees-survey-results/362970 2021 legal fees survey], British Columbians can expect to pay on average more than $6,000 per day for a lawyer's time in trial. Many people simply cannot afford to pay for full legal representation.

You might [https://legalaid.bc.ca/legal_aid/howToApply apply to Legal Aid BC] to see if you qualify for free legal representation, but finite public funding for these services is another barrier. Universal legal aid is not a reality in BC. You probably won't qualify for help, unless your annual income is below the poverty line and your legal problem is one of the few problems legal aid will help with. Even if you do qualify, you won't get a legal aid lawyer to help you with all of your case, just some of it, and only for a limited amount of time.

Apart from legal aid lawyers, Legal Aid BC also runs several services to connect people to [https://legalaid.bc.ca/legal_aid/familyLegalAdvice family law legal advice]. Although these services are even more limited in terms of the number of hours of advice one can get, and while most are still for low income individuals, you may qualify for these even if you don't qualify for a legal aid lawyer. These programs include:
* ''Family Duty Counsel'',
* ''Family Advice Lawyers'', and
* ''FamilyLawLINE''

===Service confusion barriers===
There is a vast array of legal information resources, legal clinics, support organizations, online tools and guides, and lower-cost options for hiring legal professionals. But what are they? Where and when do they operate? Whom do they help? The legal assistance landscape is badly fragmented. The relative obscurity of some of these services, geographical limitations for certain services, confusion about eligibility criteria, the lack of an integrated referral process, and the exhaustion many experience from having to retell one's story again and again to different intake workers, all raise barriers to accessing justice.

Websites like [https://www.clicklaw.bc.ca Clicklaw], and services like [https://www.povnet.org/find-an-advocate PovNet's Find an Advocate Tool] can help people sort through the confusion, and reveal options like [https://womenslegalcentre.ca Rise Women’s Legal Centre], and other advocates and clinics who can help in family law matters.

===Time barriers===
It's not unusual to have to represent oneself in court. The rates of people without lawyers are as high as 80% in some courts. But being in that position means having to learn about the law and court processes. The laws of British Columbia and Canada are published in print and online, and can be found through the provincial government's [https://www.bclaws.gov.bc.ca/ BC Laws website], from the Canadian [https://laws-lois.justice.gc.ca/eng/acts/ Department of Justice], or, even better, through the awesome website provided by the [https://canlii.org Canadian Legal Information Institute]. Courthouse Libraries BC also operates library branches in courthouses throughout the province, and the librarians who work there are skilled at helping members of the public locate legislation and other forms of legal information.

This wide availability of legal information is a good thing, but it takes time to educate yourself. Did you do a poor job filling out a legal form because you couldn't make the time to research how to do it well? Did you get a bad outcome as a result? You may have non-negotiable time commitments like kids, a dependent relative, a critical healthcare appointment, or a job that you cannot afford to lose. It takes time to be an informed self-represented litigant, and people sometimes resign themselves to unfair outcomes because they don't have the time to do anything else. The time needed to self-educate and digest information is one of the biggest barriers to justice.

===Complexity barriers===
While public legal information can help explain court procedures, case law and legislation, ultimately the primary materials that must be understood are the legal authorities. Unfortunately, statutes and reasons for judgement are not written for the average person; they're written by lawyers (or by judges who used to be lawyers) for lawyers. For many, the complexity of intricate court rules and the dense legal language in statutes and case law leads to confusion and misunderstanding. The complexity of the law undermines people's ability to understand it, and this complexity is another barrier to justice.

Some of the complexity can be minimized by trustworthy plain language resources that are written for the public. Going to the [https://www.clicklaw.bc.ca Clicklaw website] is a good place to start. That website is a clearing house of reliable public legal education and information about family law in British Columbia. There's also:
*Legal Aid BC's [https://family.legalaid.bc.ca/ Family Law website],
*the Justice Education Society's [https://supremecourtbc.ca/family-law Online Help Guide for Supreme Court family law matters],
*the People's Law School's [https://dialalaw.peopleslawschool.ca/category/families/ Dial-A-Law website for families and children], and
*the Ministry of Attorney General's [https://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice Family Justice website].

If you go to court, you'll want to learn about the British Columbia Supreme Court or the Provincial Court, and their rules as well.

The Provincial Court, has relatively easy-to-understand rules that can be printed into a thick brochure, doesn't charge any filing fees, and has forms that are easy to fill out. The Provincial Court website has a [https://www.provincialcourt.bc.ca/GoingToCourt Going to Court webpage] with helpful materials for self-represented litigants.

If you need to divide property upon separation or get a divorce, you have to go to the Supreme Court. This court has rules the width of the Kelowna phone book, charges fees for almost every step of the process, and uses more complicated forms. The Supreme Court also has some [https://www.bccourts.ca/supreme_court/self-represented_litigants/ information for self-represented litigants on its website].

===Equity and inclusion barriers===
Barriers have a tendency to add up. Statistically speaking, being part of certain marginalized or vulnerable groups can — for a variety of reasons outside that person's direct control — increase the risk that they will experience a family law problem. And once they do, being a member of a marginalized or vulnerable group can mean they face further barriers trying to access to family justice. Disability, language, financial status, mental health capacity, geographical remoteness, gender, class, religion, sexual orientation, immigration status, and Indigenous status are all factors that can increase the prejudice individuals face, increase the complexity of the problems they face, limit their access to comprehensible information, and more. Not all of these barriers are unique to family justice, but they are most certainly present.

Efforts within the justice system to ease these barriers should focus on law reforms, supportive services, cultural competency in the legal profession, and more accessible, inclusive legal information.

The point is that there are a lot of barriers to accessing justice in this province — and everywhere else in Canada, really — which include common perceptions about court being the best place to solve problems and challenges accessing out-of-court-options, the complexity of the governing legislation and the common law, the complexity of the rules of court, the difficulty of navigating the free or low-cost options that do exist, the cumulative impacts of being marginalized, and, of course, the cost of accessing professionals when needed, whether that's a lawyer or a mediator, parenting coordinator, collaborative family law practitioner, or someone else altogether.

If we do live in a society governed by the rule of law, and I believe we do, it seems important to advocate for better access to justice for everyone, including the children of separation and divorce.

==An impressive pile of reports...==

Beginning in the 1960s and early 70s, lawyers and judges began to be concerned about the justice system, partly because litigation associated with the civil rights struggle revealed gross inequalities in people's ability to access justice as a result of their income, their sexual orientation, their gender, their religious inclinations, their ethnicity and the colour of their skin. People protested, wrote lots of important papers about access to justice, and lobbied government for change. As impotent as protests and lobbying can seem today, things did in fact change.

First, we saw the creation of provincial courts throughout the west. (The Provincial Court of British Columbia was founded in 1969.) Second, law schools across Canada began to develop student legal advice programs, through which law students provided legal services for free while learning more about the law and their future careers, including the [https://www.lslap.bc.ca Law Students' Legal Advice Program] at the University of British Columbia. We also saw human and civil rights legislation being introduced across Canada, including the [https://laws-lois.justice.gc.ca/eng/acts/C-12.3/FullText.html Canadian Bill of Rights] in 1960, the British Columbia ''Human Rights Code'' in 1973, and the ''Canadian Human Rights Act'' in 1977.

These were all important steps, but none of them was the silver bullet that solved the access to justice problem, and the problem continued. And got worse. In hindsight, it seems as if every 15 to 20 years after that point, concern about access to justice would build and build and then crest with a flurry of academic reports, government commissions and law society task forces. A few initiatives would be launched, some with lasting effect, like Canada's pro bono legal advice programs, and concerns about access to justice would again subside.

The most recent flurry happened in 2013. In that year, we had four very important national reports on the problems affecting Canadians' ability to access justice, and it seemed as though a moment of significant change was at hand. These papers are all very good and are all worth reading:

#Professor Julie Macfarlane's landmark study on the experiences of litigants without lawyers, "[https://perma.cc/PV9C-UE4X The National Self-Represented Litigants Project: Identifying and Meeting the Needs of Self-Represented Litigants]",
#the report of the Canadian Bar Association's Access to Justice Committee, "[https://perma.cc/7Q94-VTML Equal Justice: Balancing the Scales]",
#the final report of the Family Justice Working Group of the Canada-wide Action Committee on Access to Justice in Civil and Family Matters, "[https://perma.cc/4YKG-TQGF Meaningful Change for Family Justice: Beyond Wise Words]," which provided a particularly powerful call to action, and is really worthwhile reading, and
#the final summary report of the Action Committee on Access to Justice in Civil and Family Matters, "[https://perma.cc/4574-YC3D Access to Civil and Family Justice: A Roadmap for Change]."

The report of the national committee's Family Justice Working Group was especially important. The authors observed that:

<blockquote>"Canadians do not have adequate access to family justice. For many years now reports have been telling us that cost, delay, complexity and other barriers are making it impossible for many Canadians to exercise their legal rights. More recently, a growing body of research has begun to quantify the extent of unmet legal need in our communities and to describe the disquieting individual and social consequences of failing to respond adequately to family legal problems."</blockquote>

But, commenting on that "growing body of research," they further observed that the pile of reports which had already been generated on the access to justice problem were remarkably consistent in both their diagnosis of the problem and their recommendations for its cure:

<blockquote>"The [working group] is very mindful of the many family justice reform reports that precede this one. These reports are remarkably consistent in their diagnosis of the problems and their prescriptions for change. A key theme of all reports is the place of adversarial (rights-based) and non-adversarial (interest-based) dispute resolution processes in the family justice system and the still untapped potential for non-adversarial values and consensual dispute resolution processes to enhance access to the family justice system.</blockquote>
<blockquote>"Steps have been taken to respond to these reports across Canada and the Commonwealth and, in many respects, the practice of family law looks very different today than it did 25 years ago. Changes to court rules and forms have made courts more accessible and judges have become increasingly involved in case management and settlement facilitation. Legal information programs, subsidized mediation and post-separation parenting programs are widespread. The legal profession has adopted non-adversarial approaches to family law disputes and processes like mediation and collaborative law are now widely used across Canada.</blockquote>
<blockquote>"Despite these changes, reports and inquiries continue to call for further reform, saying that the changes to date, while welcome, are simply not enough. The reports continue to advocate for a more dramatic shift to non-adversarial approaches, calling for 'drastic change', a 'fundamental overhaul' and a 'paradigm shift'."</blockquote>

Now, more than sixty years after the access to justice revolution first began, the problem continues and persists. In fact, it is arguably worsening. The number of people without lawyers continues to climb in all areas of the court system, but especially in our provincial courts and especially in family law cases. The availability of out-of-court options for resolving family matters has increased, which is a positive development for families. However, court processes continue to be affected by under-resourcing and delays, which increases stress on families.

==...and some partial progress==

This is not, of course, to say that nothing is being done. After that flurry of reports in 2013, groups were established in many provinces to pursue the access to justice problem and potential solutions to the problem. Some of these efforts have floundered, while others have produced notable successes. We are lucky to live in British Columbia, which seems to be leading the country in experimenting with new programs and different initiatives. The changes that have been made in just the last ten or fifteen years in British Columbia are impressive and inspiring.

===Progress by the courts===
Here are a few of the steps the courts have taken:

*The Supreme Court deserves credit for implementing specific family rules and forms in 2010. While they remain more complex than those in Provincial Court, the Supreme Court's forms are now closer to a "fill in the blanks" approach. The Supreme Court also expanded its use of ''conferences'' (there are several versions of these, but they are all generally more informal opportunities for the parties to meet with a judge who can often work out a settlement to some of the issues in dispute, and in some cases full settlement). Anyone can schedule a judicial case conference at any time, and in 2023 the court introduced a new case planning conference to give parties greater access to a judge who can help streamline and simplify their litigation.
*For its part, the Provincial Court has been extraordinarily active, experimenting with an ongoing and vast redesign of its approach to handling family law cases. The ''early resolution'' process at some registries has involved a major redesign of the court experience. And new Provincial Court Family Rules and forms were launched in 2021. The new rules are focused on the experience of participants, not just the needs of the court, and aim to change how court appearances work to ensure that each court appearance has a more meaningful outcome. The court has embraced the recommendations of the Action Committee on Access to Justice in Civil and Family Matters. For those whose goal is to keep a family law resource like this wikibook up-to-date, it's been hard to keep up with the Provincial Court!
*Both courts deserve credit for their efforts towards ensuring transparency by explaining the specific legal wording common in family law orders that they issue, including the [https://bit.ly/46NqDzr Provincial Court's Family Law Orders Picklist] and the [https://www.bccourts.ca/supreme_court/practice_and_procedure/sc_family_law_orders.aspx Supreme Court's Family Law Orders Picklist].
*The courts and the judges that lead them are also working more in conjunction with other policy leaders to make high-level plans for change. An initiative called the [https://transformfamilyjusticebc.ca/about/ Transform the Family Justice System Collaborative], led by Access to Justice BC (itself a collaboration among leaders from basically all the province's justice-related organizations), was launched in 2022 with the aim of transforming the family justice system in BC by focusing it on achieving family well-being. This represents a shift to focus on better outcomes for children of separated parents.
*The pandemic all but forced the courts to embrace video conferencing and other remote methods for attendance. For many people, this is clearly an improvement for access to justice. Changes to both courts' rules and forms have also acknowledged that exchanging court materials by email is routine, and should be the default.

===Progress by the government===
Here are some of the steps the government in BC has taken:

*The introduction of Justice Access Centres and [https://bit.ly/4u5wM4C Family Justice Centres] has been very important. These centres are staffed by Family Justice Counsellors specially trained to help families with parenting arrangements, contact with children, guardianship, support issues, and ownership of companion animals (when family pets are involved). They can help parents resolve disagreements without going to court and provide short-term counselling, mediation, emergency and community referrals, along with other free services. There are 24 of these centres across the province, and virtual appointment options are available.
* In 2024, the Government of British Columbia [https://news.gov.bc.ca/releases/2024AG0010-000203 announced a $29 million expansion in legal aid for individuals experiencing family violence]. A multidisciplinary, trauma-informed family law clinic model will assist people fleeing family violence. Eligibility criteria will be broader, effective 1 April 2024. This change was planned with Legal Aid BC and the Centre for Family Equity to resolve constitutional challenges to secure more responsive legal supports for single mothers experiencing family violence.
*The new [https://bcfnjc.com/indigenous-justice-centres-in-british-columbia/ Indigenous Justice Centres] (IJCs) are the product of collaboration between the provincial government and the BC First Nations Justice Council. The plan is for 15 IJCs by the end of 2024, plus a Virtual Indigenous Justice Centre. This commitment to providing Indigenous families with accessible, culturally attuned legal assistance, supports the broader goal of fostering family well-being within Indigenous communities.
*Another noteworthy new service is the [https://justice.gov.bc.ca/apply-for-family-order/ Online FLA Assistant], which helps anyone apply for a Family Law Act order in Provincial Court. This is more than an information website. The Online FLA Assistant will ask questions and take information from self-represented litigants to assemble completed forms that can then be filed in the Provincial Court.
*Similar to the Online FLA Assistant, but for uncontested divorce applications, the Ministry of Attorney General's [https://justice.gov.bc.ca/divorce Online Divorce Assistant] lets people jointly apply for a divorce. It's free, takes in information through an online questionnaire, and then prepares forms that can be filed jointly by people seeking a divorce.
*Ongoing reforms to the ''[[Family Law Act]]'' in recent years encourage arbitration, clarify areas of the law that were confusing, like the [[Dividing Property and Debt in Family Law Matters|division of property]], and introduced new laws for dealing with pet ownership after separation.
*Before the pandemic, the provincial government had been planning changes to how the Family Maintenance Enforcement Program was managed. (FMEP is a free program has helped enforce child and spousal support orders since 1988.) A new agency was formed, called the BC Family Maintenance Agency, but the pandemic resulted in delays. In late September 2023, government announced that they are going ahead with the changes. It's clear a primary goal is to make the system easier to use online through apps and modern websites, with less paperwork, printing, and faxing.

===Progress by the legal profession and its regulator===
The Law Society of BC's Innovation Sandbox initiative aims to improve access to justice by improving access to legal advice and assistance from less conventional sources. The Law Society describes their "sandbox" as a "safe space" for people and organizations that are not otherwise authorized to offer legal services to experiment with new ways to do so that could benefit the public. It's a response to the fact that 85% of people in British Columbia who have a serious legal problem get no help from a lawyer, and often go to someone other than a lawyer for assistance. Basically, the regulator is allowing groups to experiment, so long as they make a proposal to the Law Society, without fear of the regulator coming down on them. For a regulatory system that's premised on protecting the public by ensuring lawyers maintain a monopoly over the practice of law, this is a significant step.

We have also seen family law lawyers and other family law professionals take on the access to justice issue by participating in a range of different initiatives:
* the [https://www.bccollaborativerostersociety.com/pro-bono-collaborative-family-law-project/about/ Pro Bono Collaborative Family Law Project] offers free collaborative lawyers for each party, plus other collaborative professionals as needed, and is for people who could not afford a collaborative team ordinarily,
* Access Pro Bono, an important organization where lawyers and legal professionals donate their time and advocacy, has assumed responsibility for or pioneered a number of innovative services, including
** a free online family mediation service for people of modest means, called the [https://www.accessprobono.ca/program/virtual-family-mediation-program Virtual Family Mediation Project],
** the [https://www.accessprobono.ca/our-programs/lawyer-referral-service Lawyer Referral Service], which connects lawyers and clients with a free 15-minute consultation, and
** the [https://everyonelegal.ca/ Everyone Legal Clinic], which is relatively new and offers affordable legal services, including transparent pricing for family law agreements, uncontested divorce applications, and dispute resolution assistance.
*Mediate BC offers https://www.mediatebc.com/learn/pro-bono-clinics online pro bono mediation clinics] where people can ask a Registered Roster Mediator questions about family law mediation, discuss specific circumstances with them, for free, and
* different groups of lawyers and mental health professionals deserve credit for their work in promoting a family law system that is kinder on children including,
** The [https://hearthechild.ca/ BC Hear the Child Society], which aims to give children the opportunity to share their views with the courts when their best interests are decided in the family justice system. It hosts a roster of lawyers who can prepare ''hear the child reports''.
** The [https://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society], which hosts a roster of qualified parenting coordinators, and promotes ''parenting coordination'' as a mechanism for dealing with issues in high-conflict relationships between parents.

Many more lawyers are now also willing to try to resolve cases using mediation, collaborative negotiation, and arbitration than ever before.

''Unbundling'' is something else lawyers are exploring, and a number of family law lawyers are offering ''Unbundled legal services'', or ''limited scope retainers'', as a part of their ordinary practice.

To work on an "unbundled" or "limited scope" basis means that, instead of the usual sort of retainer where a lawyer expects to handle all aspects of a file from start to finish, the lawyer will work with their client to identify the specific services they will offer while the client does the rest. The sort of legal services that are best suited to a limited scope approach include:

#drafting affidavits and applications,
#preparing legal opinions,
#completing court forms, including financial statements,
#evaluating or drafting settlement proposals, and
#coaching the client through the litigation process.

A directory of lawyers offering unbundled legal services is available online at [https://unbundlinglaw.peopleslawschool.ca unbundlinglaw.peopleslawschool.ca].

===Progress by libraries===
[https://www.courthouselibrary.ca/ Courthouse Libraries BC] has produced this wikibook since 2013 when ''JP Boyd on Family Law'' first appeared, not just online, but in a full-size book, printed and distributed to public libraries and courthouse libraries and across the province. CLBC operates many access to justice services:
* each of its 30 branches, in courthouses throughout the province, are open to the public whenever they are staffed and provide access to:
** law librarians who can answer questions about legal reference and finding legal information in person, by email, or by telephone,
** a vast collection of printed legal information, including law books, journals, practice manuals, historical and contemporary print volumes of legislation and regulation, and legislative debates,
** [https://www.courthouselibrary.ca/how-we-can-help/legislation-case-law/subscription-databases special databases], accessible within the branches, used for legal research, and
** a website with many custom and helpful tools specific to British Columbia law, including guides and the ''[https://www.courthouselibrary.ca/how-we-can-help/our-legal-knowledge-base Our Legal Knowledge Base]'',
* the Clicklaw website, which is referenced throughout this wikibook and provides an authoritative listing of vetted sources for legal information by topic, and
* LawMatters, a program that supports people's access to legal information in public libraries throughout hundreds of communities in the province by training public librarians on how to make better legal referrals and handle legal reference questions, providing grants to support public libraries' collections of legal information, and finding ways to turn public libraries into places people can come to for more support with their legal questions — when you hold a print copy of ''JP Boyd on Family Law'' in your hand, it's because the LawMatters program funded its printing!

CLBC is a very old organization, and its work supporting self-represented litigants and members of the public seeking legal information has grown significantly over the years. CLBC's librarians routinely help members of the public find and get copies of information from law books and databases that are designed and written primarily for lawyers. These include important books published by the Continuing Legal Education Society of British Columbia that nearly every family lawyer in the province relies upon to practice family law:
* ''British Columbia Family Practice Manual'',
* ''Family Law Agreements: Annotated Precedents'',
* ''Family Law Deskbook'', and
* ''Family Law Sourcebook for British Columbia''

CLBC can also help people find relevant course materials from CLEBC on specific topics within family law, as well as precedents and how to tips on court procedure from other legal publishers.

===Progress by other groups===

Law students, paralegals, and others also deserve major credit for their efforts to improve access to family justice in British Columbia.

[https://www.legalformsbc.ca Amicus Curiae] is a volunteer-driven program that offers workshops on filling forms and completing paperwork for court. It involves paralegals, new lawyers, law students, law librarians and accountants, all supervised by lawyers.

The [https://www.lslap.bc.ca Law Students Legal Advice Program] at UBC's law school has been providing assistance through supervised law student clinicians for decades, while the [https://thelawcentre.ca Law Centre] clinic at the University of Victoria, and the [https://www.tru.ca/law/students/outreach/legal-clinic.html Community Legal Clinic] at Thompson Rivers University do the same. The degree of family law assistance may be limited, but some assistance is offered.

There are many other organizations and services I haven't mentioned, of course. Go to the [https://www.clicklaw.bc.ca/ Clicklaw website] to explore other options for help with family law.

==What else needs to be done?==

The practice of family law in British Columbia is, from a lawyer's point of view, very different today than it was just twenty years ago. As a young lawyer just starting out, I remember treating every new case that came in the door as if it was going to be resolved at trial. That was just the assumption we made then. We didn't think about mediation or arbitration, and collaborative negotiation had yet to be introduced in the province. Parenting coordination hadn't been established, and unbundled legal services were just starting to be discussed.

Very few lawyers make the same assumption today. Most of us assess new cases for certain factors that might make litigation inevitable — including the presence of family violence, the need for orders protecting people or orders protecting property, and applications to move away with children — and our first inclination is often to pick up the phone and call the lawyer on the other side to talk about what's going on rather than filing a claim in court. We have more tools to settle cases these days than ever before, and the fact that less than 5% of family law court cases are resolved by trial seems to reflect the growth of these options.

The bigger problems — the cost of legal services, the complexity of the legislation and case law, the difficult and adversarial nature of court processes, the chronic delays affecting the court system, and our failure to properly fund alternatives to court — have barely been touched, and I'm not sure that any government is really prepared to tackle these problems head-on.

British Columbians deserve a system that is focused on the short- and long-term wellbeing of children, that is built to minimize the impact of parental conflict on children, that provides the social and economic supports families in crisis need, that includes social and psychological services as well as legal services, and that is fundamentally designed to promote the future functioning of families living apart. We deserve a system in which court is the last resort and collaborative negotiation is the first, and a system in which people don't necessarily have to hire a lawyer to move forward with their lives.

If the justice system is going to change, it's going to change because a lot of people realize that business-as-usual hasn't worked for the last sixty years and that the status quo is not only unacceptable, it's harmful.

If this wikibook is being used to help you through a family law matter, and if you learn things through your process that should be heard by law and policy makers, please consider writing to your MP and your MLA, the federal Minister of Justice, and the provincial Attorney General. Write letters to your local media, and press for continuing coverage of justice system issues rather than the usual one-and-done article published when something scandalous happens. Get on your local Provincial Court family law committee. Run for election. Become a lawyer, a paralegal, or a mediator. Start community groups and Facebook groups. Volunteer with local advocacy centres, and if there isn't one, create one.

Change can happen, but it's not going to happen until enough people begin to put pressure on the system and demand change. What we've got is simply not good enough. Help make a difference!

==Resources and links==
In ''JP Boyd on Family Law,'' we emphasize the importance of accessible legal information and resources to support self-represented litigants and those seeking a deeper understanding of family law. This section reflects our commitment to providing comprehensive and reliable resources. We categorize these resources to help you easily navigate through them, prioritizing those that offer direct support or valuable information to self-represented litigants.

===Legal representation, advice, or support===
* [https://legalaid.bc.ca/legal_aid/howToApply Apply to Legal Aid BC] - Check eligibility for free legal representation.
* [https://legalaid.bc.ca/services/family-law-legal-advice Legal Aid BC's family law legal advice offerings] - Family Duty Counsel, Family Advice Lawyers, and Family LawLINE.
* [https://www.gov.bc.ca/FamilyJusticeLocations Family Justice Centres and Justice Access Centres] - Offering mediation, counselling, and referral services from Family Justice Counsellors.
* [https://www.accessprobono.ca/program/virtual-family-mediation-program Virtual Family Mediation Project] - Free online family mediation service.
* [https://www.bccollaborativerostersociety.com/pro-bono-collaborative-family-law-project/about/ Pro Bono Collaborative Family Law Project] - Free collaborative law services for eligible individuals.
* [https://www.accessprobono.ca/our-programs/lawyer-referral-service Lawyer Referral Service] - Connects lawyers and clients for a free initial consultation.
* [https://everyonelegal.ca/ Everyone Legal Clinic] - Affordable legal services with transparent pricing.
* [https://www.unbundlinglaw.ca Directory of lawyers offering unbundled legal services] - Find lawyers for limited scope legal assistance.
* [https://womenslegalcentre.ca Rise Women’s Legal Centre] - Pro bono community legal clinic and teaching facility serving women and gender diverse people.
* [https://www.povnet.org/find-an-advocate PovNet's Find an Advocate Tool] - Search online for other advocates and clinics who can help in family law matters.
* [https://www.lslap.bc.ca Law Students' Legal Advice Program] - Legal services provided by law students.
* [https://www.legalformsbc.ca Amicus Curiae] - Workshops on court form completion and paperwork, but no legal advice.

===Educational and informational resources===
* [https://www.clicklaw.bc.ca Clicklaw] - Clearing house of public legal education and information in BC.
* [https://family.legalaid.bc.ca/ Legal Aid BC's Family Law website] - An essential resource for information and resources on family law.
* [https://supremecourtbc.ca/family-law Online Help Guide for Supreme Court family law matters] by Justice Education Society - Guidance for navigating Supreme Court family law matters.
* [https://dialalaw.peopleslawschool.ca/category/families/ Dial-A-Law website for families and children] by People's Law School - Plain language legal information on family law topics.
* [https://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice BC Ministry of Attorney General's Family Justice website] - More essential information about how family law works in BC.

===Court information and forms support===
* [https://provincialcourt.bc.ca/navigating-court-case/family Navigating a Family Court Case webpage] by BC Provincial Court - Resources for self-represented litigants in Provincial Court.
* [https://www.bccourts.ca/supreme_court/self-represented_litigants/ BC Supreme Court's information for self-represented litigants] - Guidance for navigating the BC Supreme Court.
* [https://canlii.ca/t/tcmq Family Law Handbook for Self-Represented Litigants] - A 175-page guide commissioned by the Canadian Judicial Council and prepared by the Justice Education Society.
* [https://justice.gov.bc.ca/apply-for-family-order/ Online FLA Assistant] - A tool for applying for Family Law Act orders in the BC Provincial Court, assisting with the completion of necessary forms.
* [https://justice.gov.bc.ca/divorce Online Divorce Assistant] - Facilitates the process of filing for an uncontested divorce in BC, allowing joint applicants to prepare required forms.
* [https://bit.ly/46NqDzr Provincial Court's Family Law Orders Picklist] - A comprehensive list of standardized terms for common orders in family law cases.
* [https://www.bccourts.ca/supreme_court/practice_and_procedure/sc_family_law_orders.aspx Supreme Court's Family Law Orders Picklist] - Standard terms for most of the usual orders made in family cases.

===Primary legislation and caselaw sources===
* [https://canlii.org Canadian Legal Information Institute] - Comprehensive database of Canadian statutes and case law.
* [https://www.bclaws.gov.bc.ca/ BC Laws website] - Official source for BC statutes and regulations.
* [https://laws-lois.justice.gc.ca/eng/acts/ Department of Justice Canada] - Access to federal statutes and regulations.

===Libraries and publishers===
* [https://www.courthouselibrary.ca/ Courthouse Libraries BC (CLBC)] - Offers access to a wide range of legal information resources, including specialized databases and knowledgeable law librarians.
* [https://www.courthouselibrary.ca/how-we-can-help/legislation-case-law/subscription-databases CLBC Subscription Databases] - Specialized legal research databases accessible within CLBC branches.
* [https://www.courthouselibrary.ca/how-we-can-help/our-legal-knowledge-base CLBC's Legal Knowledge Base].
* [https://www.cle.bc.ca/ The Continuing Legal Education Society of British Columbia (CLEBC)] - Publisher of essential legal resources for family law practitioners in BC (available through CLBC):
**''British Columbia Family Practice Manual'' - A comprehensive resource for family law issues in BC.
**''Family Law Agreements: Annotated Precedents'' - Provides precedents for various family law agreements.
**''Family Law Deskbook'' - A quick-reference tool for family law practitioners.
**''Family Law Sourcebook for British Columbia'' - An essential guide to family law legislation and case law.
* [https://www.canlii.org/en/commentary/ CanLII Commentaries] - Free access to secondary law materials, from law reviews and treatises to reports and articles, from the same website that aggregates Canadian legislation and caselaw.

===Progressive initiatives led by legal professionals===
* [https://www.mediatebc.com/learn/pro-bono-clinics Mediate BC] - Offers online pro bono mediation workshops to discuss specific circumstances with Registered Roster Mediators (RRMs) specializing in family law mediation.
* [https://hearthechild.ca/ BC Hear the Child Society] - Provides children a voice in the family justice system and hosts a roster of lawyers who prepare ''hear the child reports''.
* [https://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society] - Features a roster of qualified parenting coordinators for handling high-conflict parental relationships and promoting children's well-being.

===Collaborative initiatives and reports===
* [https://perma.cc/PV9C-UE4X The National Self-Represented Litigants Project: Identifying and Meeting the Needs of Self-Represented Litigants] by Professor Julie Macfarlane - A landmark study on the experiences of self-represented litigants.
* [https://perma.cc/7Q94-VTML Equal Justice: Balancing the Scales] - A report by the Canadian Bar Association’s Access to Justice Committee.
* [https://perma.cc/4YKG-TQGF Meaningful Change for Family Justice: Beyond Wise Words] - The final report of the Family Justice Working Group of the Action Committee on Access to Justice in Civil and Family Matters.
* [https://perma.cc/4574-YC3D Access to Civil and Family Justice: A Roadmap for Change] - A summary report by the Action Committee on Access to Justice in Civil and Family Matters.
* [https://transformfamilyjusticebc.ca/about/ Transform the Family Justice System (TFJS) Collaborative] - Initiative to transform the family justice system in BC.

{{REVIEWED | reviewer = [[JP Boyd]], 28 November 2023}}

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

{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

How Do I Get a Needs of the Child Assessment?

2026-05-14T23:00:08Z

Nate Russell: Review via FJSD comments

{{JP Boyd on Family Law How Do I TOC|expanded=other}}

==Needs of the child assessments==

Under section 37(1) of the ''[[Family Law Act]]'', when the court or the parties are making orders or agreements about guardianship, parenting arrangements, or contact with a child, the parties and the court must consider the best interests of the child only. Disagreements often arise around what's ''best'' when it comes to these decisions. In some cases, it can help to get the opinion of a neutral third party. Under section 211 of the act, the court can appoint a person, typically a psychologist, clinical counsellor, or social worker, to assess one or more of:

* the needs of a child in relation to a family law dispute,
* the views of a child in relation to a family law dispute, or
* the ability and willingness of a party to a family law dispute to satisfy the needs of a child.

The report itself is called a ''needs of the child assessment''. You might also hear the report called a ''section 211 report''. It will provide a summary of what the professional has learned about the family, as well as the professional's opinion about what is in the best interests of the children. (Under the old ''[http://canlii.ca/t/ldg3 Family Relations Act]'', these reports were called ''section 15 reports'' or ''custody and access reports''.)

The professional appointed to prepare the report will usually:
* interview the child's parents or guardians
* interview the children, depending on their age and maturity,
* observe each parent or guardian interacting with and parenting the children;
* administer personality and parenting tests to the parents,
* read any reports that are available about the children's medical and mental health, and
* interview a few people who know the family and the children.

Needs of the child assessments are intended to be neutral and are generally done by a professional who has no previous connection with the parties. They are ''evaluative'' because the professional is providing their expert opinion about the parents or guardians, the children, and the arrangements that are best for the children.

What the professional does in each individual case will depend on the circumstances and the sort of report they have been asked to write. There is no fixed protocol or explicit checklist that must be followed, and the author is expected to use their education and experience when deciding what tests, interviews, or studies to conduct. These reports are not expected to be exhaustive. Whatever conclusions the author arrives at are for the purpose of helping the court decide what is in a child's best interests.

Needs of the child assessments can be very helpful in resolving a dispute about the care of children. The court will usually give a great deal of weight to the assessor's opinion and recommendations.

==Picking the assessor==

Needs of the child assessments are routinely prepared by family justice counsellors, social workers, registered clinical counsellors, and psychologists.

===Family justice counsellor reports===

Family justice counsellors are public employees. Their reports are free as part of the Family Justice Report Service, but they are in very high demand and there is usually a long delay. The only way to be referred to the service is by court order. Once the Family Justice Report Service receives both a copy of the court order and the referral form from the court registry, the report will be placed on a list for assignment to a qualified family justice counsellor. FYou cannot pick the family justice counsellor who will prepare your report.

Not all family justice counsellors are trained to prepare full ''needs of the child assessments'', so the delay between requesting a report to getting it done might be up to a year. You can call the Family Justice Report Service at 778-360-2052 or find a [https://www.gov.bc.ca/FamilyJusticeLocations Family Justice Centre] near you to learn more about the service. Typically, it takes anywhere from 5-9 months to have a report writer assigned, and this is from the time the office receives the court ordered request for a needs of the child assessment. It can take another two or three months after that for the report writer to conduct the report.

===Private reports===

As an alternative, you can pay for a report to be prepared by a social worker, clinical counsellor, or psychologist. These can generally be done much faster, but they come at a higher cost. The fees for a full report prepared by a psychologist typically costs $15,000 or even $30,000, depending on the number of children involved, where the children and the parents or guardians live, and the amount of work that needs to be done (including whether the writer needs to come to court).

To find a professional to prepare a needs of the child assessment, you can:
* ask for a referral from a psychologist or counsellor you know,
* get a recommendation from your lawyer,
* read through some of these cases on [http://bit.ly/s211reports CanLII] which contain the names of professionals who have prepared these reports for court, or
* contact the [https://www.crhsp.ca/public-profile/ Canadian Register of Health Service Psychologists] for a referral.

The private assessor either needs to be agreed upon by all parties or appointed by court order if the parties cannot agree.

==Arranging for the assessment==

The parties can agree that a needs of the child assessment will be prepared. They then need to pick someone to prepare it.

If they can't agree, either party can apply to court for an order that an assessment be prepared. If you have to apply to court for such an order, make sure that you do your homework before going to court so that you can tell the judge what kind of assessment you want, who you think should prepare it, how much the cost will be, and when it can be completed. The order will usually specify who is being retained to prepare the assessment as well as how the assessment will be paid for.

Once an assessment is ordered or agreed to, you should get in touch with the person who will be performing the assessment. The assessor will tell you what happens next, when the interviewing process will begin, and when the completed assessment will likely be ready.

==More information==
You can find more information about needs of the child assessments in the chapter [[Children in Family Law Matters]]. For more information about family justice counsellors and the Family Justice Report Service, contact a [https://www.gov.bc.ca/FamilyJusticeLocations Family Justice Centre] close to you.

Rise Women's Legal Centre publishes informative resources about s. 211 reports:
* See their [https://www.clicklaw.bc.ca/resource/4878 Section 211 Toolkit] for an overview of issues around requesting or responding to psychological reports under s. 211 of the ''Family Law Act''.
* See "[https://www.clicklaw.bc.ca/resource/4979 Understanding Section 211 Reports: A Guide for Women]" for very helpful information (in multiple languages) on how to prepare yourself for dealing with the section 211 report process.

{{REVIEWED | reviewer = [[Julie Brown]], September 21, 2023}}

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Parenting Apart

2026-05-14T22:57:38Z

Nate Russell:

{{JP Boyd on Family Law TOC|expanded = children}}{{JPBOFL Editor Badge
|ChapterEditors = [[Mary Mouat|Mary Mouat, KC]] and [[Samantha Rapoport]]
}}
{{LSSbadge
| resourcetype = resources for parents who are separating, including information about the
| link = [https://family.legalaid.bc.ca/children/parenting-guardianship/parenting-after-separation-class Parenting After Separation course]
}}
This section is all about putting your children first and building good parenting arrangements — arrangments that work for the children and for you. It provides a brief introduction to parenting after separation and talks about a few of the things that you probably want to think about when figuring out the arrangements for parenting after separation that are most likely to be in your children's best interests. It also provides examples of different kinds of parenting arrangements that might help you develop your own.

While the other parts of this chapter, especially the section [[Basic Principles of Parenting after Separation]], discuss the legal issues involved in deciding how children will be cared for after a couple separate, they don't say much about the practical day-to-day issues involved in parenting after separation and options for dividing children's time between their parents' homes. This section will briefly discuss what it means to parent after separation and how separation affects children, but mostly focuses on building good parenting arrangements. It might help to read the section on [[Separating Emotionally]], in the [[Separating and Getting Divorced]] chapter, when you're done here.

==Introduction==

If you've got children and you've separated from your partner, you have three things to consider. First, you've got to get a grip on all the emotional baggage that comes along with the end of a relationship. Second, you've got a pile of legal issues you have to sort through. Finally, but most importantly, you and your former partner have to develop a strategy for parenting your children after the relationship ends.

No matter how pressing the first two issues are, you must remember that the parenting of your children after separation takes priority over everything else. If you think the end of your relationship is difficult for you, imagine how confusing and unsettling it must be for your children. Their needs and best interests must come ahead of your own, and ahead of those of your former partner. This is certainly the view that a judge will take.

You may have found that, during your relationship, issues involving the care of your children just sort of worked themselves out, perhaps smoothly, perhaps not. In general, you will have developed a routine, a routine that you and your partner were comfortable with and one that your children became accustomed to. After separation, that routine just may not be possible anymore, especially if you and your former partner are living in separate homes. Suddenly, the children can't rely on both of you being around the house, or on the day-to-day schedules you used to keep. They can't count on all the little things still happening, like bedtime stories, special breakfasts, and playing catch after school. On top of all that change and uncertainty, the children will be fully aware that something isn't right between their parents, even if they don't quite grasp exactly what's going on.

Separation can also see changes in the roles played by parents. A parent who hasn't been particularly involved with the children may become more involved; a parent who used to be very involved may step back a bit. This can be challenging for some parents, and what needs to be kept in mind is that children need all of the adults in their lives to do their best. A parent becoming more involved is almost always something that is good for children. What harms children is conflict, and sometimes stepping back, at least for a little while, can reduce conflict.

While this may sound a little preachy, the fact is that no matter how adults are able to rationalize the consequences of the end of their relationship, their children can't. Your job, regardless of your emotional and legal entanglements with the other parent, is to protect your children from your conflict as much as possible, and to develop parenting arrangements that will be in the best interests of your children.

===Language===

The words we use often shape how we see the world around us. There's a big difference, for example, between saying "Pat lied to me about ..." and saying "Pat was mistaken when he told me that...." In the same way, there's a difference between saying "Tuesday is my access day" and "Tuesday is when I have parenting time with Moesha."

Over the past ten years or so, the courts and policymakers have become increasingly sensitive to how the words used to describe a parent's involvement with their child can impact on both the child's and the parent's perception of their relationship. As a result, shared parenting — an arrangement in which the parents share their children's time equally or almost equally — is becoming increasingly commonplace, even in situations where, twenty years ago, Parent A would be described as the "access parent" and Parent B would be described as the "custodial parent." The phrase "access parent" can often lead to a sense, shared by everyone, including the children, that this parent is somehow a lesser parent, has less of a role to play, or is less important to their child's life. It also encourages the idea that there are winning parents and losing parents when it comes time to determine the best parenting arrangements for a child.

Words like "custody" and "access" are still used in some provinces. These are loaded terms with a lot of extra meanings that aren't particularly helpful to children, or to each parent's view of their roles and responsibilities in the children's lives. This, and a wish to refocus the "rights" involved in parenting on children rather than on parents, are two of the big reasons why the provincial ''[[Family Law Act]]'' talks about the care of children in terms of guardians who exercise ''parental responsibilities'' and have ''parenting time'' with their children, and people who are not guardians who have ''contact'' with a child. They're also why the federal ''[[Divorce Act]]'' was overhauled on 1 March 2021 to get rid of "custody" and "access" and instead talk about spouses who exercise ''decision-making responsibilities'' for their children and have ''parenting time'' with them, and people who aren't spouses who may have ''contact'' with a child. These changes are huge improvements in the legislation about parenting after separation.

===A few notes from JP Boyd===

I am not a psychologist, a psychiatrist, or a counsellor. As a result, this section should be read with a grain of salt, as it's based largely on my observations of my clients' experiences and a healthy dose of common sense. For the same reason, you are cautioned that this section shouldn't be used as an authority on parenting. The goal of this section is simply to provide some information that may be helpful for parents to consider as they make decisions about parenting after separation.

There are lots of [https://family.legalaid.bc.ca/children/parenting-guardianship/parenting-after-separation-class parenting after separation programs] offered by trained psychologists and counsellors available throughout British Columbia, as well as some very good [https://parenting-after-separation.jibc.ca online programs] developed by the Justice Institute of British Columbia. Other good programs are available from other provinces, including Alberta's [https://www.alberta.ca/pashc Parenting After Separation for Families in High Conflict] program. If you are separating or have separated, I highly recommend that you take one of these programs. No matter how good — or bad! — you think your relationship is with your ex-partner, these programs are usually very helpful. Also, in some cases, you may find yourself being ordered to attend a parenting after separation program by the court.

==Children and parenting apart==

As we discussed in the section "[[Separating Emotionally]]," under the [[Separating and Getting Divorced]] chapter, separation stirs up a turbulent stew of powerful emotions that can take a surprisingly long time to work through, and often winds up clouding parents' judgment. You can find yourself doing things and saying things you never thought you would, or doing things you promised you'd never do again. In the midst of all of this, you may also find yourself having to resolve critical legal issues that will have a profound effect on your future and the futures of your children.

When a couple have children, they have to accept that they'll remain a part of each other's lives unless their children predecease them, whether they like it or not. They may no longer be partners, but they will ''always'' be parents. Parental relationships don't end along with romantic relationships. If you've had children together, you're stuck with each other.

It's impossible to emphasize enough how important it is to always put the children first. Having said that, putting the children's needs and interests ahead of your own can be extremely challenging when you're also trying to cope with the intense emotions involved in separation. It can be tremendously difficult to refrain from badmouthing your former partner to the children, never mind putting energy into supporting their relationships with your former partner. However, if you care about your children, you don't really have a choice.

The reality is that it's not separation that messes kids up, it's conflict. Children can be incredibly resilient. But conflict between parents, whether they're still together or have separated, can have serious short- and long-term consequences for children. These consequences can affect their relationship with one or both of their parents, their performance in school and how long they stay in school, their choices about the other kids they hang out with, and their relationships with other people as teenagers and adults. It can also affect how children perceive conflict and how they resolve conflicts of their own.

Community Mediation Ottawa, formerly the Ottawa Center for Family and Community Mediation, has some helpful suggestions about parenting apart:

<blockquote>'''Things to think about:'''

*Children can best deal with their feelings surrounding the separation experience in a climate of cooperation.
*Working together as parents means cooperating with the other parent about raising the children. If you can't do this in person, try communicating by phone or by using notes that are exchanged with the child.
*It is a myth that parents who did not get along as a couple cannot work together as parents. They can. It takes time and effort, but parents can redefine their relationship from being a couple to a more business-like relationship of being partners in the parenting of their children.
*Go directly to the other parent for information, an answer, or a solution to a problem. Do not allow the child to be in the middle, to act as a messenger, or act as a spy. If you cannot deal directly with the other parent, use another adult.
*Give the benefit of the doubt to the other parent’s motives.
*Don't let yourself get caught in any angry feelings the child may have towards the other parent. Encourage the child to speak about their problems with the other parent to the other parent; don't get caught in the middle.

'''Children may be harmed if they:'''

*are restricted or prevented from spending sufficient time with both parents,
*are told that one parent is good and the other is bad,
*are encouraged to take sides, or
*don't feel free to love both parents and also stepparents.

'''Parents may harm their children if they:'''

*don’t prepare children for changes that will occur,
*burden children with adult problems, such as their legal issues or financial woes,
*compete with or criticize the other parent in front of the children,
*badmouth or blame the other parent in the children’s presence or earshot, or
*expect children to comfort them.</blockquote>

In short, you are the parent, and your children have the right to expect you to do the job of parenting them.

===Managing conflict===

It's easier to say that you'll manage your conflict with the other parent than it is to do. A lot easier. And yet the research about parenting apart and how children adapt to the separation of their parents is full of grim warnings about the serious effects conflict can have on children. No matter how hard it is to manage your conflict, you've ''got'' to try your best.

Sometimes, a little bit of work on your communication skills helps. Partly, good communication after separation is about leaving the past behind you, at least as far as the end your relationship is concerned, and choosing your words carefully; think not just about ''what'' you're saying but about how the other parent is likely to ''hear'' what you're saying. There are also some really effective communication techniques that can improve how you have difficult conversations with the other parent, such as [https://en.wikipedia.org/wiki/Active_listening active listening], being alert to the assumptions you're making, and being aware of your body language and how it influences what other people think you're saying. Bill Eddy, a lawyer and social worker known for his work with high-conflict families, talks about how poor communication can put people into a defensive "react" mode rather than a constructive "respond" mode. Mr. Eddy says that communications after separation should be brief, informative, friendly and firm, and I recommend his book on the subject, ''[https://www.goodreads.com/book/show/12019658-biff BIFF: Quick Responses to High-Conflict People, Their Personal Attacks, Hostile Email and Social Media Meltdowns]''.

Another thing that might help is establishing good boundaries, boundaries that reflect the new relationship you have with the other parent. Robert Emery, a therapist and professor of psychology, says that you should first draw clear boundaries around your relationship with the other parent. Let them know what you're prepared to talk about, what information you're prepared to share, and how and when you're not prepared to communicate. Second, use those boundaries to form a more business-like relationship with your former partner. The two of you may not be friends, but together you are engaged in the "business" of parenting your children. Keep your emotional distance from your former partner and focus on the work you must do together. Finally, he says, you've got to respect the new rules. Don't intrude past those boundaries; keep your discussions focused on parenting. It may be hard not to react when your former partner pushes your buttons, but it's important to try. I also recommend Dr. Emery's book about parenting apart, ''[https://www.goodreads.com/book/show/559986 The Truth About Children and Divorce: Dealing with the Emotions So You and Your Children Can Thrive]''.

Something else that might help is limiting how and when you and the other parent come into contact with each other. You might think about whether it would help to reduce the number of transitions that the children have to make between your homes, or whether you can avoid in-person contact with the other parent altogether by exchanging the children through their school — on transition days, one of you drops the kids off at school at the start of the school day, and the other picks them up at the end of the school day — or through a relative, a family friend, or an exchange service. You might think about signing up for an online service like [https://www.ourfamilywizard.com Our Family Wizard] that provides a message board, a calendar, and a journal for sharing events in the children's lives.

Once you've got the children's parenting arrangements sorted out, you might also think about hiring a parenting coordinator to help you implement those arrangements. Parenting coordinators work with parents to resolve parenting problems as they arise, help parents put the needs and interests of children first, and improve parents' communication and dispute resolution skills. [[Parenting_Coordination|Parenting coordination]] is a child-focussed process that is aimed at reducing conflict between parents and the children's exposure to their parents' conflict.

I also encourage you to consider counselling to help you work through the enormous changes in your life that came with the breakdown of your relationship with the other parent, and the difficult mess of emotions those changes are causing. Be sure to look for someone, a social worker, a registered clinical counsellor or a psychologist, who has specific experience helping people deal with issues about separation, parenting and conflict. Counselling is often completely or partially funded through workplace extended health insurance programs, and free public and community counselling services may also be available. Be sure to look for those too.

===Parenting resources===

There are quite a lot of public and community resources available to help parents deal with parenting issues, including issues arising while the parents are together. No matter what your circumstances are, if you are having problems, get help. Whether that help involves reading a book or a pamphlet, or going to a seminar, or meeting with a support group, your children are worth it.

====Public programs and services====

[https://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help/pas Parenting After Separation courses] are run by the provincial government. Although these courses are part of a mandatory program for parents involved in family law court proceedings in some Provincial Court locations, these courses are open to anyone. The courses are offered in English and Punjabi, and there is a special version for Indigenous families. You can download the [https://bc.familieschange.ca/sites/all/themes/opas2/assets/docs/pashandbook.pdf Parenting After Separation Handbook] online.

[https://www.informationchildren.com/ Information Children] is a not for profit organization that started at Simon Fraser University. It offers a fairly broad and extremely useful program that deals with parenting issues. This program offers parenting workshops in New Westminster and Burnaby, and has a handy parenting helpline. Contact Information Children through their [https://www.informationchildren.com/ website] or at:

<blockquote>778-782-3548 phone 
778-782-5846 fax</blockquote>

The provincial [https://www2.gov.bc.ca/gov/content/justice/about-bcs-justice-system/justice-access-centres Justice Access Centres] may be able to direct you to other helpful parenting resources, and are located in Abbotsford, Nanaimo, Surrey, Vancouver and Victoria. To access virtual services outside of these locations you can contact Family Justice Services Division toll-free at 1-844-747-3963 for more information.

====Recommended reading for parents====

The federal Department of Justice has a number of excellent resources in the [https://canada.justice.gc.ca/eng/fl-df/index.html family law section of its website] that you may find helpful. You'll find publications and research papers about parenting after separation and on other topics important to children's well-being after their parents separate. These papers are of a uniformly high quality and are well worth the read.

The federal government website has a section on [http://canada.justice.gc.ca/eng/fl-df/parent/plan.html creating parenting arrangements] that links to three useful resources:
*[https://canada.justice.gc.ca/eng/fl-df/parent/mp-fdp/index.html Making Parenting Plans],
*[https://canada.justice.gc.ca/eng/fl-df/parent/ppc-lvppp/index.htmlParenting Plan Checklist], and
*[https://canada.justice.gc.ca/eng/fl-df/parent/ppt-ecppp/form/form.html Parenting Plan Tool].

The federal Department of Justice's website also has information on [https://canada.justice.gc.ca/eng/fl-df/parent/kh-ae.html helping your kids cope] with separation and divorce.

There are lots of good books about parenting apart that will be available at your local bookstore or through online shopping services like Amazon, including these (my favourites are in bold):

*''The Good Divorce: Keeping your family together when your marriage comes apart'', by D. Ahrons
*''Helping your Child through your Divorce'', by F. Bienenfeld
*'''''The Truth about Children and Divorce''''', by R.E. Emery
*''Healing Hearts: Helping Children and Adults Recover from Divorce'', by E. Hickey and E. Dalton
*'''''Helping your Kids Cope with Divorce the Sandcastles Way''''', by M.G. Neuman
*''Mom's House, Dad's House: Making Two Homes for Your Child'', by I. Ricci
*''Joint Custody with a Jerk: Raising your Child with an Uncooperative Ex'', by J.A. Ross
*''Helping Children Cope with Divorce'', by A. Teyber

====Recommended reading for children====

The books that follow are drawn from the suggestions provided by the Vancouver family law firm Henderson Heinrichs and are reproduced with permission.

*''At Daddy’s on Saturdays'', by L. Walvoord and J. Friedman (ages 5+)
*''Dinosaurs Divorce: A Guide for Changing Families'', by L. Krasny Brown and M. Brown (ages 4+)
*''Divorce is a Grown Up Problem'', by J. Sinberg (ages 4+)
*''Let’s Talk About It: Divorce'', by F. Rogers (ages 5+)
*''On Divorce'', by S. Bennett Stein and E. Stone (ages 3+)
*''What’s Going to Happen to Me?'', by E. Leshan (ages 9+)
*''Why Are We Getting a Divorce?'', by P. Mayle and A. Robins (ages 6+)

The website [https://bc.familieschange.ca/en www.familieschange.ca] is designed to help children understand and cope with the issues that arise when their parents separate or divorce. The website presents differently for younger children versus teens; both versions are very well put together.

==Developing parenting arrangements==

The terms the legislation uses to describe the plans that parents and judges make about children are a bit of a mess. Under the provincial ''[[Family Law Act]]'', "parenting arrangements" are arrangements about parental responsibilities and parenting time made after separation, whether those arrangements are in an agreement or in an order. "Parenting arrangements" doesn't include agreements and orders about contact. I suppose those would be called ''contact agreements'' and ''contact orders'', although the legislation doesn't say so. Under the federal ''[[Divorce Act]]'', a "parenting order" is an order about decision-making responsibility and parenting time, and a "contact order" is an order about contact just like you'd expect. A "parenting plan," on the other hand, is the part of a written agreement about decision-making responsibility, parenting time, or contact. "Parenting plan" doesn't include arbitrators' awards or judges' orders.

What's important, really, is that everyone understands what you're talking about. Although there are important differences between agreements and orders, call the plans for the care of your children after separation whatever you'd like. No one's going to get hung up on the fact that you talked about a parenting plan rather than parenting arrangements or a parenting order as long as you're clear about whether you're talking about an agreement you've made with your former partner, an award made by an arbitrator or an order made by a judge.

In this section, we'll use ''parenting schedules'' to talk about the allocation of parenting time between guardians, and ''parenting arrangements'' to talk about the distribution of both parental responsibilities and parenting time between guardians, following the approach taken in the ''Family Law Act''.

===Parenting schedules===

Some mental health professionals and many separating parents believe that the best parenting schedule after separation is for parents to share their children's time equally or almost equally. While that may be true for some children, the federal ''[[Divorce Act]]'' doesn't say that any particular distribution of time is presumed to be in children's best interests, and the provincial ''[[Family Law Act]]'' specifically says that ''no'' particular parenting schedule should be presumed to be in children's best interests. Section 40(4) of the ''Family Law Act'' says:

<blockquote><tt>In the making of parenting arrangements, no particular arrangement is presumed to be in the best interests of the child and without limiting that, the following must not be presumed:</tt></blockquote>
<blockquote><blockquote><tt>(a) that parental responsibilities should be allocated equally among guardians;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) that parenting time should be shared equally among guardians;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) that decisions among guardians should be made separately or together.</tt></blockquote></blockquote>

The absence of any presumptions about parenting schedules in the legislation, whether for shared parenting time or something else, is intentional. Both the ''Divorce Act'' and the ''Family Law Act'' say that decisions about children are to be made considering only their best interests. As a result, parents, arbitrators and judges have to think about is what is best for the particular child in the particular circumstances of their particular family, not what is generally best for children. This is what Justice McLachlan said in [https://canlii.ca/t/1fr99 Gordon v. Goertz], an important 1996 decision of the Supreme Court of Canada:

<blockquote>"The argument that a presumption would render the law more predictable in a way which would do justice in the majority of cases and reduce conflict damaging to the child between the former spouses also founders on the rock of the ''Divorce Act''. The Act contemplates individual justice. The judge is obliged to consider the best interests of the particular child in the particular circumstances of the case. Had Parliament wished to impose general rules at the expense of individual justice, it could have done so. It did not. The manner in which Parliament has chosen to resolve situations which may not be in the child's best interests should not be lightly abjured. Even if it could be shown that a presumption in favour of the custodial parent would reduce litigation, that would not imply a reduction in conflict. The short-term pain of litigation may be preferable to the long-term pain of unresolved conflict. Foreclosing an avenue of legal redress exacts a price; it may, in extreme cases, even impel desperate parents to desperate measures in contravention of the law. A presumption would do little to reduce the underlying conflict endemic in custody disputes."</blockquote>

When it comes to parenting schedules, what parents, arbitrators and judges have to decide is what is best for the children in light of the best-interests factors set out at section 16 of the ''Divorce Act'' or at sections 37 and 38 of the ''Family Law Act''. Sometimes this winds up being a shared parenting schedule, sometimes it doesn't. Among those best-interests factors, some of the more important are:

*the age and maturity of the child, and their ability to be away from a parent, especially for younger children and children who are being breastfed,
*the child's need for stability, especially for younger children and children with special needs,
*the views and preferences of the child, especially for children who are old enough to have an opinion and understand how their parents' separation, and their own preferences, might impact their lives,
*the pattern of the parents' usual time with the child when they were still together,
*each parent's ability to care for the child, including the presence of any family violence,
*the nature of the child's relationship with each parent, and
*the social needs of the child and their involvement with school, extracurricular activities and friends.

Parents, of course, will have additional considerations of their own. Among other things, parents will want to think about:

*how far away they live from each other and how much driving will be involved, especially the length of time the children will be able to handle being stuck in a car,
*how their work schedules can and can't be fitted around the child's parenting needs, including how they'll manage caring for the child on non-instructional school days and on days when the child is sick and has to stay home,
*whether the schedule will regularly require them to pay for other people to look after the child and if so, the amount of time that the child will be in the care of someone other than a parent,
*how they express conflict and the extent to which the child will be exposed to their conflict, especially if the schedule requires frequent exchanges of the child between homes,
*how they'll manage moving the child's belongings between homes, especially bulky things like hockey equipment, and
*whether each of them is flexible enough to accommodate unexpected events in the other parent's life that might require a temporary change in the schedule.

There's nothing wrong with taking things like this into account when you're planning a parenting schedule. It's important to think about how the schedule will work in real life and whether it's actually doable. You probably don't want a schedule that requires you to make a round trip drive from Surrey to North Vancouver, or from Kamloops to Kelowna, four times a week — and the children probably wouldn't like it either — or a schedule that will see the children in daycare when the other parent is a good parent and otherwise available to care for them.

====Creating a parenting schedule====

There's really no limit to the ways that children's parenting schedules can be arranged, as long as the schedule is in the children's best interests and practical from the parents' perspective. A search online will give you dozens of parenting schedule templates that you might want to think about. What's important is that the schedule works for the children and for their parents.

A lot of the templates you'll see will offer variants based on the parenting skills of each parent. This is an important consideration when you're thinking about the schedule that is most likely to be in the children's interests. While there are many families in which the parents split the task of parenting fairly evenly and both have excellent parenting skills, there are others in which one parent takes on most of the work involved in raising the children, and there are many perfectly good reasons why this might be the case. However, it's not always fair to measure parenting skills based on how the work involved in parenting was split during the relationship. The parent who did the least parenting might, for example, have had a job that supported the family and occupied most of their time, but might otherwise be or want to be an engaged and committed parent. It's important to think about the actual parenting skills of each parent, not just how they divided up parenting responsibilities before separation.

Parenting schedule templates will offer additional variants based on the age of the children. There are many good reasons for this too. A child who is being breastfed won't be able to be away from their mother for very long, and the sort of parenting time the other parent will have will usually need to be short but frequent. A toddler is better able to handle being away from a parent for an extended period of time, say one or two days, but will need to see both parents frequently. A child who is starting school suddenly has a schedule that's got nothing to do with their parents, and a child who is leaving elementary school will not only have homework and extracurricular activities that need to be taken into account, but the beginnings of a social life that is going to become increasingly important to them as they get older. A teenager's social life will be in full bloom and it may be more important to teenagers that they spend time with their friends and in their extracurricular activities than with their parents. The reality is that parenting schedules ''have'' to change based on the age of the child and, eventually as teenagers, on their wishes as well. The schedule that works for a toddler won't work for a kid in Grade Two, and the schedule that works for a kid in Grade Two won't work for a kid in Grade Eight. That's just how it is.

====Schedules for children without shared parenting====

Children who don't have a shared parenting schedule — a schedule in which they have an equal or almost equal amount of parenting time with each parent — will have one home where they live most of the time, sometimes called their ''primary residence''. They'll spend most of the time with the parent who has their primary residence and spend less of their time with the other parent. This used to be the sort of schedule that almost all children had. For kids who were, say, six years old and older, they would usually have spent every other weekend with the other parent, and maybe also every Wednesday for dinner or an overnight visit. However, there are lots more ways that parenting time can be scheduled for children who have a primary residence.

The Langley Family Justice Center published an excellent (but now discontinued) pamphlet called "Suggested Visitation/Time-Sharing Skills" that they gave to their clients, drawn from Gary Neuman's equally excellent book, ''[http://www.worldcat.org/title/helping-your-kids-cope-with-divorce-the-sandcastles-way/oclc/42193621 Helping your Kids Cope with Divorce the Sandcastles Way]''. The following parenting schedule template is adapted from their pamphlet, and is intended for parents who do not intend to establish a shared parenting arrangement. The schedule varies by the age of the child and by the parenting skills of the parent who doesn't have the children's primary residence.

::{| width="65%" class="wikitable"

!style="width: 11%" align="center"|Age

!style="width: 18%" align="center"|Basic Recommended Time

!style="width: 18%" align="center"|Limited Parenting Skills

!style="width: 18%" align="center"|Good Parenting Skills

|-

|align="center"|'''Birth to 8 months'''||valign="top"|2 or 3 weekly visits for 2 to 3 hours each||valign="top"|supervised visits in the primary parent's home||valign="top"|2 weekly visits for 6 to 8 hours each, plus one shorter visit

|-

|align="center"|'''9 to 12 months'''||valign="top"|2 or 3 weekly visits for 4 to 8 hours each, plus one longer weekend visit||valign="top"|2 to 4 weekly visits for 3 hours each||valign="top"|2 or 3 weekly visits for 6 to 8 hours each, plus one weekly 24-hour overnight visit

|-

|align="center"|'''13 months to 3 years'''||valign="top"|1 or 2 weekly visits for 6 to 8 hours each, plus one weekly 24-hour overnight visit||valign="top"|1 or 2 weekly visits for 4 to 6 hours each, and possibly one weekly short overnight visit||valign="top"|2 weekly 24-hour overnight visits that are not consecutive, plus one weekly visit for 6 to 8 hours, and a less than equal sharing of holidays

|-

|align="center"|'''4 to 5 years'''||valign="top"|1 or 2 weekly visits for 6 to 8 hours each, plus one weekly 24-hour overnight visit||valign="top"|1 or 2 weekly visits for 4 to 6 hours each, and possibly one weekly short overnight visit||valign="top"|2 weekly 24-hour overnight visits that are not consecutive, plus one weekly visit for 6 to 8 hours, and a greater sharing of holidays

|-

|align="center"|'''6 to 8 years'''||valign="top"|every other weekend, from Friday after school until Sunday evening, plus one weeknight after school until one hour before bedtime, plus 3 consecutive weeks during the summer holiday, and half of all other holidays||valign="top"|one weekly 24-hour overnight visit, plus one weeknight after school until one hour before bedtime, plus 3 two-day visits during the summer||valign="top"|every other weekend, from Friday after school until Sunday evening, plus one weeknight after school until one hour before bedtime, plus 3 consecutive weeks during the summer holiday, and half of all other holidays

|-

|align="center"|'''9 to 12 years'''||valign="top"|every other weekend, from Friday after school until Sunday evening, plus one weeknight after school until one hour before bedtime, plus 3 consecutive weeks during the summer holiday, and half of all other holidays||valign="top"|every other weekend, Saturday morning until Sunday evening, plus one weeknight after school until one hour before bedtime, plus 3 three-day visits during the summer||valign="top"|every other weekend, from Thursday after school until Monday morning before school, plus one weeknight after school until one hour before bedtime, plus half of all holidays

|-

|align="center"|'''13 to 18 years'''||valign="top"|every other weekend, from Friday after school until Sunday evening, plus one weeknight after school until one hour before bedtime, plus 3 consecutive weeks during the summer holiday, and half of all other holidays||valign="top"|every other weekend, Saturday morning until Sunday evening, plus one weeknight after school until one hour before bedtime, plus summer visits set in consultation with the child||valign="top"|every other weekend, from Thursday after school until Monday morning before school, plus half of all holidays

|}

====Schedules for children with shared parenting====

In a shared parenting schedule, the children will have an equal or almost equal amount of parenting time with each parent. Shared parenting schedules aren't always practical for young children. Some children may be able to start spending a similar amount of time with each parent by the time they enter kindergarten, although each week should be divided so that the child sees each parent frequently. By Grade Two or Grade Three, many children may be able to do a whole week with one parent, followed by a whole week with the other parent. Many parents exchange the child on Mondays or Fridays after school to minimize disruption to the child's school schedule and ensure that the children are able to spend an uninterrupted weekend with each of them. By the time the child is in their early teens, every-other-week schedules can be extended to two weeks with each parent. This will change as the teenager gets older, and their views and preferences will need be taken into account.

There are lots of creative ways to structure a shared parenting schedule. Here are a few examples. Remember to take into account the child's age, the child's schedule of activities outside the home, and the practical doability of a schedule from the parents' perspective.

This is a simple template where the children move between Home A and Home B after two days, move again two days later, and move again three days later, sometimes called a ''2-2-3 schedule''. From the point of view of the parents, they have the kids on Monday and Tuesday as well as Friday through Sunday in the first week, and on Wednesday and Thursday in the second week. This makes sure that the children are with each parent every other weekend, but requires them to transition between homes three times each week. On the other hand, the longest period of time they are away from a parent is three days. That's not bad.

::{| width="63%" class="wikitable"

!style="width: 9%" align="center"|Sunday

!style="width: 9%" align="center"|Monday

!style="width: 9%" align="center"|Tuesday

!style="width: 9%" align="center"|Wednesday

!style="width: 9%" align="center"|Thursday

!style="width: 9%" align="center"|Friday

!style="width: 9%" align="center"|Saturday

|-

|style='background: #ffffff;'| ||align="center"|'''A''' - 1||align="center"|'''A''' - 2||style='background: #ffffff;' align="center"|B - 1||style='background: #ffffff;' align="center"|B - 2||align="center"|'''A''' - 1||align="center"|'''A''' - 2

|-

|align="center"|'''A''' - 3||style='background: #ffffff;' align="center"|B - 1||style='background: #ffffff;' align="center"|B - 2||align="center"|'''A''' - 1||align="center"|'''A''' - 2||style='background: #ffffff;' align="center"|B - 1||style='background: #ffffff;' align="center"|B - 2

|-

|style='background: #ffffff;' align="center"|B - 3||align="center"|'''A''' - 1||align="center"|'''A''' - 2||style='background: #ffffff;' align="center"|B - 1||style='background: #ffffff;' align="center"|B - 2||align="center"|'''A''' - 1||align="center"|'''A''' - 2

|-

|align="center"|'''A''' - 3||style='background: #ffffff;' align="center"|B - 1||style='background: #ffffff;' align="center"|B - 2||align="center"|'''A''' - 1||align="center"|'''A''' - 2||style='background: #ffffff;' align="center"| ||style='background: #ffffff;' align="center"|

|}

This next template borrows the basic idea of the 2-2-3 schedule, except that the weekdays the children have with their parents don't change. This schedule, sometimes called a ''2-2-5-5 schedule'', makes it easier for kids to know whose home they're going to be at and reduces the number of transitions to one in one week and three in the next week. It also gives the children long stretches of five days with each parent every other week.

::{| width="63%" class="wikitable"

!style="width: 9%" align="center"|Sunday

!style="width: 9%" align="center"|Monday

!style="width: 9%" align="center"|Tuesday

!style="width: 9%" align="center"|Wednesday

!style="width: 9%" align="center"|Thursday

!style="width: 9%" align="center"|Friday

!style="width: 9%" align="center"|Saturday

|-

|style='background: #ffffff;'| ||align="center"|'''A''' - 1||align="center"|'''A''' - 2||style='background: #ffffff;' align="center"|B - 1||style='background: #ffffff;' align="center"|B - 2||align="center"|'''A''' - 1||align="center"|'''A''' - 2

|-

|align="center"|'''A''' - 3||align="center"|'''A''' - 4||align="center"|'''A''' - 5||style='background: #ffffff;' align="center"|B -1||style='background: #ffffff;' align="center"|B - 2||style='background: #ffffff;' align="center"|B - 3||style='background: #ffffff;' align="center"|B - 4

|-

|style='background: #ffffff;' align="center"|B - 5||align="center"|'''A''' - 1||align="center"|'''A''' - 2||style='background: #ffffff;' align="center"|B - 1||style='background: #ffffff;' align="center"|B - 2||align="center"|'''A''' - 1||align="center"|'''A''' - 2

|-

|align="center"|'''A''' - 3||align="center"|'''A''' - 4||align="center"|'''A''' - 5||style='background: #ffffff;' align="center"|B -1||style='background: #ffffff;' align="center"|B - 2||style='background: #ffffff;' align="center"|B - 3||style='background: #ffffff;' align="center"|B - 4

|-

|style='background: #ffffff;' align="center"|B - 5||align="center"|'''A''' - 1||align="center"|'''A''' - 2||style='background: #ffffff;' align="center"|B - 1||style='background: #ffffff;' align="center"|B - 2||align="center"| ||align="center"|

|}

This template extends the time that the children are with each parent, and involves two transitions each week. In this template, the transitions happen on Tuesdays and Wednesdays, with the result that each weekend is divided between the parents, with the children spending every Saturday with one parent and every Sunday with the other. The alternating Tuesdays and Wednesdays can make things a little complicated, but the children will always know which home they're going to be at for every other day of the week. This schedule also makes it easier for parents to schedule activities for the children on their own time with the kids.

::{| width="63%" class="wikitable"

!style="width: 9%" align="center"|Sunday

!style="width: 9%" align="center"|Monday

!style="width: 9%" align="center"|Tuesday

!style="width: 9%" align="center"|Wednesday

!style="width: 9%" align="center"|Thursday

!style="width: 9%" align="center"|Friday

!style="width: 9%" align="center"|Saturday

|-

|align="center"|'''A''' - 1||align="center"|'''A''' - 2||align="center"|'''A''' - 3||align="center"|'''A''' - 4||style='background: #ffffff;' align="center"|B - 1||style='background: #ffffff;' align="center"|B - 2||style='background: #ffffff;' align="center"|B - 3

|-

|align="center"|'''A''' - 1||align="center"|'''A''' - 2||align="center"|'''A''' - 3||style='background: #ffffff;' align="center"|B - 1||style='background: #ffffff;' align="center"|B - 2||style='background: #ffffff;' align="center"|B - 3||style='background: #ffffff;' align="center"|B - 4

|-

|align="center"|'''A''' - 1||align="center"|'''A''' - 2||align="center"|'''A''' - 3||align="center"|'''A''' - 4||style='background: #ffffff;' align="center"|B - 1||style='background: #ffffff;' align="center"|B - 2||style='background: #ffffff;' align="center"|B - 3

|-

|align="center"|'''A''' - 1||align="center"|'''A''' - 2||align="center"|'''A''' - 3||style='background: #ffffff;' align="center"|B - 1||style='background: #ffffff;' align="center"|B - 2||style='background: #ffffff;' align="center"|B - 3||style='background: #ffffff;' align="center"|B - 4

|}

This last template has the children with each parent every other week, and is sometimes called a ''week on, week off schedule''. The children only move between home A and home B once per week, and the transition day can be moved anywhere in the week. Moving between homes on Mondays or Fridays after school will usually cause the least disruption from the point of view of the kids and their teachers.

::{| width="63%" class="wikitable"

!style="width: 9%" align="center"|Sunday

!style="width: 9%" align="center"|Monday

!style="width: 9%" align="center"|Tuesday

!style="width: 9%" align="center"|Wednesday

!style="width: 9%" align="center"|Thursday

!style="width: 9%" align="center"|Friday

!style="width: 9%" align="center"|Saturday

|-

|style='background: #ffffff;'| ||align="center"|'''A''' - 1||align="center"|'''A''' - 2||align="center"|'''A''' - 3||align="center"|'''A''' - 4||align="center"|'''A''' - 5||align="center"|'''A''' - 6

|-

|align="center"|'''A''' - 7||style='background: #ffffff;' align="center"|B - 1||style='background: #ffffff;' align="center"|B - 2||style='background: #ffffff;' align="center"|B - 3||style='background: #ffffff;' align="center"|B - 4||style='background: #ffffff;' align="center"|B - 5||style='background: #ffffff;' align="center"|B - 6

|-

|style='background: #ffffff;' align="center"|B - 7||align="center"|'''A''' - 1||align="center"|'''A''' - 2||align="center"|'''A''' - 3||align="center"|'''A''' - 4||align="center"|'''A''' - 5||align="center"|'''A''' - 6

|-

|align="center"|'''A''' - 7||style='background: #ffffff;' align="center"|B - 1||style='background: #ffffff;' align="center"|B - 2||style='background: #ffffff;' align="center"|B - 3||style='background: #ffffff;' align="center"|B - 4||style='background: #ffffff;' align="center"|B - 5||style='background: #ffffff;' align="center"|B - 6

|-

|style='background: #ffffff;' align="center"|B - 7||align="center"| ||align="center"| ||align="center"| ||align="center"| ||align="center"| ||align="center"|

|}

Of course, a shared parenting schedule doesn't need to see the children's time shared exactly equally between their parents. Another kind of shared parenting schedule might see the kids with one parent three days each week, and with the other parent for the remaining four days, for example.

===Parental responsibilities===

We've just finished talking about parenting schedules, which concern the distribution of the children's time between their parents. Now let's talk about the other big part of children's parenting arrangements, parental responsibilities.

Whether we're talking about "parental responsibilities," the term used by the ''Family Law Act'', or "decision-making responsibilities," the term used by the ''Divorce Act'', we're talking about how parents make important decisions about their children. Just like parenting schedules, there are a lot of different ways that parental responsibilities can be shared by parents:

*both parents could share all parental responsibilities, which will require them to talk to each other when bigger decisions about the kids need to be made,
*one parent could have all parental responsibilities, which will allow that parent to make decisions about the kids without having to consult the other parent,
*both parents could share all parental responsibilities, but one of them will have the final say in case the parents don't agree about a decision,
*parental responsibilities could be divided between parents, so that each parent has the final say about decisions relating to one of their responsibilities in case the parents don't agree about the decision, or
*parental responsibilities could be divided between parents, so that neither parent has to consult the other about decisions relating to one of their responsibilities.

Neither the ''Family Law Act'' nor the ''Divorce Act'' say that all parental responsibilities have to be shared equally by both parents or distributed in some other way. While both parents usually wind up sharing all parental responsibilities, remember what section 40(4) of the ''Family Law Act'' says:

<blockquote><tt>In the making of parenting arrangements, no particular arrangement is presumed to be in the best interests of the child and without limiting that, the following must not be presumed:</tt></blockquote>
<blockquote><blockquote><tt>(a) that parental responsibilities should be allocated equally among guardians;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) that parenting time should be shared equally among guardians;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) that decisions among guardians should be made separately or together.</tt></blockquote></blockquote>

The big factor that tends to determine how parental responsibilities are managed is the level of conflict between parents. Parents who tend to get along relatively well after separation and tend to agree about the bigger decisions in the children's lives will almost certainly share all parental responsibilities, likely with neither parent having the final say about decisions. When parents don't get along at all, and can't talk about anything without getting into a yelling match, that's when you're likely to see parental responsibilities being divided up with one parent having sole responsibility for some or all decisions.

===Special issues in planning parenting time===

There are lots of stumbling blocks that can crop up in preparing a parenting schedule, and it can be difficult to anticipate all the special days, events and occasions that you might need to address on top of the children's basic week-to-week schedule. Most often, these special days are things like Mothers' Day or Fathers' Day, the children's birthdays, religious holidays, school breaks, and statutory holidays. Other problems can come up when the parenting schedule is ignored by a parent or refused by a child. Some solutions to issues like this are discussed below. More information can be found in other sections in this chapter, especially the [[Children Who Resist Seeing a Parent]] section.

====Shift work====

I'm not going to lie. Figuring out parenting schedules with parents who work shift work is really difficult, especially for parents whose shifts change all the time and parents who get only one or two days' notice of their upcoming shifts.

The point of a parenting schedule is to give everyone, including the kids, a degree of predictability and stability in their lives. A good parenting schedule should be something that each parent can map out on a calendar. You should know, today, at whose house the kids are going to be next October 12th. The kids should know, today, when they're going to change homes next and what they need to take from one parent's home to the other's for their school and extracurricular activities. Shift work rarely lets you do this.

There are no good options for planning a parenting schedule around shift work. At a minimum, the parent with the shift work will need to tell the other parent about their work schedule as soon as they find out about it — the more notice that can be provided the better! — and the other parent must be prepared to be as flexible as possible in accommodating the children's time with the parent. The parent with the shift work must accept that the children and the other parent have schedules of their own that may limit the time the children can spend with them. Both parents need to think about how care for the kids can be arranged when neither of them can do it, since few daycare providers work on a drop-in basis. And both parents must learn to be patient, tolerant and forgiving toward each other.

====Weekends====

Weekends can be especially important to schedule carefully, and it's usually important that the children's weekends be shared between parents, particularly if the children are going to school. Often a parent who only has the children during the workweek becomes the disciplinarian, since that parent has the burden of telling the kids to go to sleep on time, brush their teeth, do their homework, and so forth. The other parent, on the other hand, becomes the fun parent, since that parent has the kids when they're not in school and can take them to the park, to the movies, and to the beach. The children should be able to spend weekend time with both of their parents.

It's rarely a good idea to plan a schedule that allocates all weekends to one parent, unless the other parent works on weekends or there's some other very good reason why an arrangement like this works for your family and is in your children's best interests.

====Statutory holidays and non-instructional days====

Make sure that statutory holidays and other non-instructional school days are taken into account when you work out a parenting schedule. Like weekends, these too are special days when the kids don't have to go to school.

Statutory holidays, like Family Day, Labour Day and Canada Day, are easy to plan for. Most of them happen at a fixed time in the year, and you can look up those that don't online. There are a lot of ways of dealing with statutory holidays. Some parents don't worry about them at all, and just follow the ordinary week-to-week schedule throughout the year, except for the main school holidays, like the spring, summer and winter breaks. Other parents share them so that one parent has a particular holiday in one year, and the other parent has the holiday in the following year. For holidays that fall on Mondays and Fridays, you could also decide that whichever parent has the kids for that weekend will also have them for the Monday or the Friday too. This is a good approach, just be aware that in some years one parent will have more statutory holidays with the kids than the other. Don't worry about it, however, because over the long run things will usually work out to a relatively even sharing of statutory holidays.

Non-instructional days, like professional development days and parent-teacher interview days, are a bit more difficult to plan for. Quite often you won't get the details about what the school's calendar looks like until a month or two before the start of school in September. However, non-instructional days magically tend to fall on Mondays and Fridays, and parents who work outside the home can't always count on being available for the children. Non-instructional days, then, raise two kinds of problems: who will have the kids for a day off school; and, how will the kids be cared for if one or both parents have to be at work.

====Special non-holiday days====

Don't forget about other special days that aren't public holidays when you're working out your parenting schedule. These include the children's birthdays, the parents' birthdays. Fathers' Day, Mothers' Day, Halloween and some religious holidays. Creating exceptions to the parenting schedule after the fact, to deal with special days you've forgotten about, can create an awful lot of conflict.

*'''Fathers' Day and Mothers' Day:''' The easiest way of handling Fathers' Day and Mothers' Day is to agree that if Father's Day falls on a Sunday when the children are not with their father, their father will be able to have them for a few hours or the whole day. The same approach works just as well with Mothers' Day, but won't work at all for kids with two fathers or two mothers. In a case like that, the obvious solutions are for everyone to celebrate the day together, if that's possible, to just divide the day in half, or to alternate the day so that each parent has them every other year.
*'''Children's birthdays:''' There are four basic choices for managing the kids' birthdays. You could just follow the ordinary week-to-week calendar, so that whichever parent the kids are with on their birthday has them for that day, and the other parent makes special plans to celebrate the next time they have the kids. Or, you could decide that you'll each have a couple of hours or a half-day with the kids on their birthdays. You could also decide to rotate the children's birthdays so that they're with one parent one year and with the other parent the next. Or, you could all spend the day with the birthday child together. Whatever you do, don't forget about deciding who is going to be responsible for planning birthday parties!
*'''Parents' birthdays:''' While some parents don't worry about making sure their kids see them on their birthdays, others do. The easiest way to handle that is to either agree that if a parent's birthday falls on a day when the kids are with the other parent, the birthday parent will be able to have them for a few hours, perhaps for the whole day or perhaps just for dinner. If the birthday falls on a weekend, maybe the birthday parent can spend the entire day and an overnight with the kids.
*'''Halloween:''' Do ''not'' forget to address Halloween in your parenting schedule if you have kids who are ten or younger! The easiest way of dealing with Halloween is to share trick-or-treating duties so that one parent has the kids in even-numbered years and the other parent has the kids in odd-numbered years. In general, the parent who has the kids will take them for two or three hours, just long enough to walk them around the neighbourhood. Don't forget to talk about who will be responsible for costumes!
*'''Religious holidays:''' Most parents agree to rotate one-day religious holidays, so that one parent has the kids in one year and the other parent has the kids the next. For two-day holidays, like Rosh Hashanah, parents will usually each take one day. For holidays that are a bit longer, parents often split the holiday down the middle. Christmas, for example, is often handled with the parents rotating Christmas Eve to the early afternoon on Christmas Day, and early afternoon on Christmas Day to Boxing Day.

====School holidays====

The main school holidays are the winter break (usually about two to two-and-a-half weeks), the spring break (a week or two weeks, depending on the school system) and the summer holiday (slightly more than two months). Here are some of the basic options for winter break and spring break:

*the breaks can be divided, so that one parent has the first half of the breaks in one year and the second half of the breaks the next year,
*the parents could decide that one of them will have the kids for all of one break in one year and that the other will have them for all of that break the following year, which is easiest if either of them want to travel with the kids, or
*the parents could just keep following the same week-to-week schedule that would normally apply, without adjusting that schedule for the breaks.

Just like non-instructional school days, however, the problem isn't just dividing up the time the kids will be with each parent, it's also deciding how the kids will be cared for if one or both parents have to be at work. It's great to say that you should have the kids for half their spring break, but if you're going to be at work, how much fun will it be for them?

The summer holiday can be handled the same way as the winter break and the spring break, except we're talking about a much longer period of time. Parents also usually need to cooperate to make decisions about travel and vacations, the children's time with relatives, the children's participation in day camps and overnight camps, and the children's participation in sports during the summer holiday. While parents also need to figure out how the kids will be cared for if one or both of them have to work, remember that there's no rule at all that summers have to be split equally. Other common reasons that summer holidays might not be divided equally include a parent's poor parenting skills or disengaged parenting style, a child who has trouble being away from a parent for extended periods of time, and a parent who usually spends a minimal amount of time with the kids the rest of the year.

If the children will be spending their time equally with each parent during the summer holiday, the easiest way to start planning the holiday is either: to agree that the ordinary week-to-week parenting schedule will run until the end of June and start again on the first of September, so that the time you'll be making special arrangements for are the months of July and August; or, to treat the summer holiday as a 10-week period, starting toward the end of June when school finishes and ending in early September when school starts. (That's the inconvenience that comes from having months that don't come in tidy four-week blocks.) The basic options for dividing the children's time are:

*the parents rotate having the children for a whole week every other week,
*the parents each have the children for a whole week every other week, except that each parent gets a special two- or three-week block with the kids, which is great for road trips and vacations,
*the parents rotate having the children in two-week blocks, depending on the children's ability to be away from each parent for so long,
*the parents split the first and second halves of July and August, with one parent getting the first halves in one year and the second halves the following year, again depending on the children's ability to be away from each parent for so long,
*the children are with one parent for all of July and with the other for all of August, also depending on the children's ability to be away from each parent, or
*the parents could just keep following the same week-to-week schedule that would normally apply, without adjusting that schedule for the holiday.

Really, there are no limits about how the children's time during their summer holiday can be managed other than each parent's work schedule and the children's ability to tolerate not being with a parent for extended periods of time.

====Travel outside of Canada====

If either parent is likely to take the kids out of the country for any period of time, the children's parenting arrangements should talk about: how long trips like these can last; whether there should be any limits on the places the kids can go; the sort of information that the travelling parent must give to the other parent about the children's itinerary, contact information, and where they will be staying while out of the country; and, whether any health precautions, like vaccinations or buying travel health insurance, must be organized before the trip. The parenting arrangements should also talk about the things that might be necessary for the children to enter another country, including:

*signing travel permission letters,
*applying for passports for the children, and
*storing the children's passports between trips.

Border officials usually want to see proof that the parent travelling with the children has the consent of the other parent to take them into the country. If they're not satisfied that the parent has the other parent's permission, they may send the parent and the kids back to Canada on the very next flight. For their part, airlines often check to see whether the parent travelling with the children has permission to do so, not because this is a legal requirement but because they don't want to be stuck with bringing the parent and the kids back to Canada!

===Special challenges in parenting time===

Parenting time doesn't always go as smoothly as it could. Some problems come from conflict between parents, others come from problems with a parent's health or behavioural patterns. Others come from the children themselves, like when children resist seeing a parent after separation or refuse to spend time with a parent after separation. These challenges can usually be handled, but they require special arrangments and sometimes support from mental health professionals.

====Conditional and supervised parenting time====

Children's parenting time with a parent can be ''conditional'' upon the parent doing something, like buckling the kids into car seats when driving, or not doing something, like not smoking around the kids. If the parent fails to meet any of the conditions of their parenting time, they may not be able to spend time with their children until they do meet those conditions.

In general, there needs to be some fairly serious concerns about a parent's lifestyle or behaviour, and the risk their lifestyle or behaviour poses to the children, before their parenting time will be conditional. As well, the conditions of a parent's parenting time should be no broader and no more difficult than is what is actually needed to address the concerns about that parent and the children's health and wellbeing.

A parenting schedule could also require that a parent's parenting time be ''supervised'' by someone, including the other parent, a grandparent, another relative or a friend, or even by a person who specializes in supervising parenting time. (There are a number of organizations that provide professional supervision services for a fee.) Just like conditional parenting time, supervised parenting time should be limited to circumstances where the parent or their behaviour poses a risk to the children. Supervised parenting time is usually intended to be a temporary response to a short-term problem, not a permanent condition of the children's time with a parent.

====Children's reluctance or refusal to see a parent====

Children can sometimes have difficulty coping with change, whether a change between homes or the change resulting from the breakdown of the relationship between their parents, and may feel anxious when transitioning between homes. Other children may have a stronger relationship with one parent than the other as a result of their experiences growing up, or have a normal preference for one parent over the other for reasons including their age, stage of development and gender identity.

There are many reasons why children may resist spending time with a parent after separation. Some of these reasons, like I've suggested, are fairly commonplace and are experienced to a greater or lesser degree by all children. Other reasons include the special vulnerability of a parent after separation and the children's exposure to family violence. Still other reasons include a parent's interference with the children's relationship with the other parent. (These problems are discussed in more detail in the [[Children Who Resist Seeing a Parent]] section.) Regardless of how the parents feel about each other, however, they are both responsible for supporting the children's relationship with each other, including helping the children look forward to their time with the other parent.

It's important to know that there is no age at which children are entitled to decide their parenting schedule or whether they will or won't see a parent, although their views and preferences usually become more important and more influential as they get older. Children and youth should not be responsible for making their own parenting arrangements; that's their parents' responsibility. While a child’s views and preferences should usually be heard, there's a difference between a child having a ''voice'' and a child being entitled to make a ''choice''.

If a child is reluctant to see a parent, it's important to know why the child is reluctant to see that parent and then to take steps to address whatever has caused the reluctance. Social workers, registered clinical counsellors, and psychologists who provide services to children and youth will often be able to identify the issues that have resulted in the child's reluctance and suggest ways that the child's relationship with the parent can be better supported, potentially including that each parent and the child receive counselling on an ongoing basis. Counselling is often completely or partially funded through workplace extended health insurance programs, and free public and community counselling services may also be available.

====Parents' failure to see a child====

Children benefit from stability and predictability; children with special needs especially benefit from stability and predictability. It is disruptive to them and to the other parent when a parent cancels their parenting time at the last minute, or just fails to show up at all. This is an absolute no-no. It sends a message to the children that they don't matter to the parent or that other things, like work, are more important to the parent than they are. As well, both parents need to be able to rely on their parenting schedule; this benefits children by giving them a reliable routine, and it benefits parents by allowing them to plan their lives when they're apart from their children.

Some flexibility from both parents is a wonderful thing, but a situation where a parent is always backing out, cancelling, or changing dates is no good for anyone. Both parents have an obligation to stick to their parenting schedule as much as possible. Sure, things sometimes happen that make it impossible to meet an obligation in a parenting schedule, but being late or cancelling a visit has to be a solution of last resort and can't become a constant feature of the children's time with a parent.

It might be helpful to know that, under section 63 of the ''[[Family Law Act]]'', if a parent routinely fails to exercise parenting time, the other parent can apply to court to be reimbursed for any expenses they incurred as a result of the parent's failure to exercise their parenting time. The court may also order that: one or both parents participate in a dispute resolution process; one or both parents attend counselling or other services and programs, with or without the children; exchanges of the child be supervised; or, the parent repay the other parent for travel expenses, lost wages or childcare expenses incurred as a result of the missed parenting time.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''

===Resources===
* [https://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help/pas Parenting After Separation (PAS) Courses] from BC Ministry of Attorney General
* [https://bit.ly/3yEOBAh A Summary of Evaluation Feedback from Participants in Parenting After Separation Sessions (2003)], report (PDF) from BC Ministry of Attorney General

===Links===
* [https://family.legalaid.bc.ca/children/parenting-guardianship Parenting and Guardianship] from Legal Aid BC
* [https://www.in.gov/judiciary/rules/parenting/ Indiana Parenting Time Guidelines]
* [https://bc.familieschange.ca/en/parents/parent-guide Parent Guide] from Justice Education Society's Families Change website
* [https://www.informationchildren.com/ Information Children] (a non-profit supporting parents with family life challenges)
* [https://www.justice.gc.ca/eng/fl-df/parent/mp-fdp/index.html Making plans: A guide to parenting arrangements after separation or divorce], guide from the Department of Justice
* [https://hearthechild.ca Hear the Child Society]

{{REVIEWED | reviewer = [[JP Boyd]] 14 Aug 2022}}

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Family Law Mediation

2026-05-14T22:55:08Z

Nate Russell: Review via FJSD comments

{{JP Boyd on Family Law TOC|expanded = outofcourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Catherine Brink]]
}}
{{LSSbadge
|resourcetype = more information about
|link = [https://family.legalaid.bc.ca/visit/mediators Mediators]
}}Mediation is a process in which the parties to a dispute work with a neutral third party, a ''mediator'', to reach a settlement of some or all of the legal issues in their dispute. It's important to know that ''mediation is not couples' counselling.'' It's not a process designed to help people reconcile and resume their relationship, although it has at times had that effect. It's a dispute resolution process intended to help people settle legal problems without going to court.

People who work as mediators are usually trained professionals who qualify as "family law dispute resolution professionals" under the ''[[Family Law Act]]'', meaning that they have the experience and education required by the Family Law Act Regulation. Lawyers who are "family law mediators" are specially accredited to mediate family law disputes by the [http://www.lawsociety.bc.ca Law Society of British Columbia].

This section provides a brief overview of mediation, a description of the mediation process, some tips for making the most of mediation, and an introduction to the mediation services offered through the provincial government.

==Introduction==

At its heart, mediation is a cooperative, managed process of negotiation. All parties must be willing to work together, and each person must be prepared to give a little if they expect to get a little. Because the mediation process is based on a cooperative effort to achieve a common goal — a settlement of the legal issues — there is usually a lot less of the bitterness and acrimony that can accompany litigation. Mediation is also much cheaper and much faster than going to court, and more likely to produce results that are in the interests of the parties and their children.

In mediation, the parties work with a neutral professional, a ''mediator'', to settle their legal issues. The mediator helps the parties talk to each other and recognize their interests, and tries to identify options for settlement. The mediator provides a useful third-party perspective and helps to ensure that any settlement is reasonably fair to all concerned, including the parties' children. The mediator will take one of two different approaches to their role:

*'''Evaluative mediation:''' in this approach, also called ''directive mediation'', the mediator will also make comments and observations about the strengths and weaknesses of each party's position, often from the perspective of the likely result if the dispute were to be resolved in court.
*'''Non-evaluative mediation:''' in this approach, also called ''interest-based mediation'', the mediator does not comment on the strengths and weaknesses of each party's position and, rather than looking at the law and the probable result if the dispute were to be resolved in court, tries to focus the parties on their separate and shared interests.

People can start mediation right off the bat, as soon as a legal problem has come up, or they can use it as a settlement process after a court proceeding has started. The result of a successful process of mediation is usually a ''separation agreement''. If litigation has already started, a settlement can be recorded as a separation agreement or as an order that the parties agree the court will make, called a ''consent order''. If the parties are married, a consent order may make more sense since they'll usually want an order for their divorce at the same time as they're wrapping everything else up.

The parties can meet with their mediator on their own or with their lawyers. As a mediator, I usually appreciate having the parties' lawyers present, especially when I'm asked to take an evaluative approach to resolving the dispute. I recognize that having the lawyers at the mediation meeting costs the parties a bit more money, but it makes my job easier and increases the likelihood of settlement if I can rely on the lawyers to explain the law or to point out why a particular position is ill-advised.

The mediator has no stake in how the mediation turns out, should have no bias in favour of either party and should have no special connection, business or otherwise, with either party. The mediator's position as a neutral, objective stranger is probably the mediator's most important contribution to the resolution of the parties' dispute. It allows the mediator to be absolutely frank with each of the parties, and to point out when a party's expectations on an issue are unfair, unrealistic or problematic for some other reason. Someone involved in a mediation process is much more likely to accept the advice that their position is unreasonable if that opinion comes from the mediator rather than another party.

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

A mediator who qualifies as a "family dispute resolution professional" under the ''[[Family Law Act]]'' must meet the requirements set out in the [http://canlii.ca/t/8rdx Family Law Act Regulation]. Section 4 of the regulation says that:

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

Lawyers who qualify as ''family law mediators'' meet the training requirements of, and are accredited by, the Law Society of British Columbia. You can find out if a lawyer is a "family law mediator" by looking the lawyer up in the [https://www.lawsociety.bc.ca/lsbc/apps/lkup/mbr-search.cfm Lawyer Directory] on the Law Society's website. The training requirements that professionals other than lawyers must meet to qualify as "family dispute resolution professionals" are set out in section 4(2) of the Family Law Act Regulation, and include:

#being a member in good standing with specific organizations,
#meeting specific educational and experiential requirements,
#taking continuing family dispute resolution training, and
#carrying professional liability insurance.

Section 4 of the regulation imposes two extra duties on mediators who are family dispute resolution professionals: they must use written participation agreements; and, they must provide the parties with confirmation that they qualify as family dispute resolution professionals. Section 4(3) says this:

<blockquote><tt>(3) The following practice standards apply to a family dispute resolution professional who wishes to engage in mediation in relation to a family law dispute:</tt></blockquote>
<blockquote><blockquote><tt>(a) before initiating mediation, the mediator must enter into a written agreement to mediate with the parties to the family law dispute;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) before initiating mediation, the mediator must provide written confirmation to the parties to the family law dispute that the mediator meets the professional requirements set out in subsection (2).</tt></blockquote></blockquote>

==The mediation process==

The first step is for each party to meet with a lawyer, hopefully a family law lawyer. Even if you don't intend on hiring the lawyer for the whole mediation process, or having the lawyer with you at the mediation, it can be really helpful to meet with a lawyer before the process begins to get some proper legal advice about the law that applies to your situation, and a sense of the general range of likely outcomes and the options available to you.

If you plan on retaining the lawyer for the mediation process, the lawyer will have the names of three or four mediators with whom they prefer to work. [https://www.mediatebc.com/ Mediate BC], formerly the BC Mediation Roster Society, maintains a list of many, but not all, of the people who are trained as mediators in this province. Their website can help you find a mediator and offers more information about the mediation process, and you can also do a google search for "family law mediator British Columbia" to get more names. Many family law lawyers — who may or may not be members of Mediate BC — are also accredited family law mediators; lawyers who work as mediators will usually say so in their advertising.

Once you've picked a mediator, the mediator will usually provide you or your lawyer with an intake sheet to get some basic information about you, your family and your legal dispute, as well as their usual participation agreement. Mediation participation agreements, just like the participation agreements used in collaborative negotiation, arbitration and parenting coordination, describe your rights and responsibilities during the mediation process, the process itself and the terms of the mediator's services. The mediator may want you to get independent legal advice about the meaning and effect of their mediation participation agreement if you have not hired a lawyer already.

===Getting organized===

The mediator will sometimes meet with the parties separately before the actual mediation begins. This is because mediators, like arbitrators and parenting coordinators, have a duty to assess for the presence of family violence under section 8(1) of the ''[[Family Law Act]]'' and, if it is present, the extent to which the family violence may affect:

#the safety of a party; and,
#the ability of a party to negotiate a fair agreement.

The mediator may not conduct this assessment for parties who are represented by a lawyer, because their lawyer will already have been required to assess for the presence of family violence. In addition to assessing for the presence of family violence, this meeting also gives the mediator a chance to get to know each of the parties a bit, and for the parties to discuss with the mediator any concerns or questions they might have about the mediation process.

Next, the parties and the mediator will agree to:

#a meeting, or schedule of meetings,
#the ground rules for any meetings, and
#the legal issues that are to be addressed.

Sometimes decisions about ground rules and goals are left to the parties themselves; it is their process, after all, not that of the mediator. If the parties are using lawyers, this step may be left out either because ground rules aren't required or because the lawyers will negotiate the ground rules between themselves. Whether there are multiple meetings or not depends largely on the parties and the number and complexity of the legal issues. Often a single half- or full-day meeting will produce an agreement.

===Exchanging documents and information===
{{LSSbadge
|resourcetype = guides on preparing Financial Statements
|link = [https://family.legalaid.bc.ca/bc-legal-system/legal-forms-documents/filling-out-court-forms/complete-supreme-court-financial#0 for Supreme Court] and [https://family.legalaid.bc.ca/bc-legal-system/legal-forms-documents/filling-out-court-forms/complete-provincial-court-financial#0 Provincial Court]
}}The parties will then begin to assemble the documents and information necessary to help everyone understand the facts and the position each party is taking. Sometimes this information is purely financial in nature. Depending on the circumstances and the issues, the parties may also want to gather parenting assessments, educational assessments, psychological assessments, medical assessments and so on.

Financial information is often provided in the form of a ''financial statement''. Financial statements provide the details of someone's income and expenses, and assets and liabilities, and may be prepared using a form supplied by the mediator or one of the court forms designed for this purpose. Supporting documents will need to be provided, usually consisting of things like:

*personal income tax returns, notices of assessment and any notices of reassessments,
*paystubs or other proof of income,
*property assessments or appraisals,
*bank and credit card account statements, and
*corporate financial statements and income tax returns.

It is critical that both parties are honest and forthcoming about their finances. Nothing will damage the mediation process and the chances of reaching settlement more than the discovery that someone is hiding information or acting in bad faith.

These documents will be exchanged between the parties before the first mediation meeting. Based on the documents disclosed and the issues on the table, it may be necessary to gather and exchange more information and documents. The nature and extent of any additional materials will depend entirely on the circumstances of each couple and their children.

===Confidentiality===

Mediation processes are private and confidential. This includes both the discussions at mediation meetings as well as the documents and information that the parties exchange for the purpose of those discussions. The reason why these discussions and documents are private is to allow everyone to be as honest and as creative as possible in exploring options for settlement. Each party needs to be able to make settlement proposals and admissions without worrying that their statements will be held against them in the event the process goes off the rails and winds up being resolved in court.

The ''[[Family Law Act]]'' helps support mediation by talking about the importance of making proper disclosure, and it encourages making proper disclosure by making sure that everyone knows that information that is disclosed is private and confidential, and can't be used for purposes other than resolving the family law dispute. Section 5 of the act says this:

<blockquote><tt>(1) A party to a family law dispute must provide to the other party full and true information for the purposes of resolving a family law dispute.</tt></blockquote>
<blockquote><tt>(2) A person must not use information obtained under this section except as necessary to resolve a family law dispute.</tt></blockquote>

===Exchanging briefs===

Where the parties are represented by lawyers, the mediator may ask the lawyers to prepare ''mediation briefs''. Mediation briefs are summaries of the parties' relationship, the legal issues, any progress made on those issues to date, and each party's position on the legal issues which remain unresolved. When a party's position is legally complex or the issues are more technical than usual, mediation briefs may also provide an explanation of the law or facts supporting that position. The lawyers will give copies of their briefs to each other and to the mediator ahead of the first mediation meeting.

===Mediating the dispute===

Once all the information, reports, and briefs have been gathered and exchanged, and everybody has had a chance to digest everything, the parties, their lawyers, and the mediator will meet at one or more mediation meetings. The mediator will first welcome everyone to the table, and ask the parties to sign the participation agreement if that hasn't already happened.

After the participation agreement has been signed, every mediator will have their own preferred way of doing things. Most will ask someone to provide a general overview of the relationship and describe what exactly is at issue, or describe their own preliminary understanding of the facts and the legal dispute, or break the ice by asking their own questions to flesh out their understanding of the background facts. Each party will have the opportunity to share their thoughts on things. If lawyers are being used, they may want to do a lot of the talking, but the mediator will ensure that the parties themselves have plenty of opportunities to speak their minds... and you really should, it's your dispute! In fact, I prefer that the parties do most of the talking.

Once this initial exchange of positions is complete, the mediator may keep everyone in the same room or may split the parties into separate rooms. If the parties are kept together, the mediator will press on and work on the legal problems, issue by issue. The mediator will keep some control over how the discussion flows, help the parties express their emotions in a productive way when things get heated, and keep everyone focused on their interests and the law rather than grievances best left in the past. If the parties are split into separate rooms, the mediator will alternate working with each party. You may hear this style of mediation described as ''shuttle mediation''.

Assuming the mediation process is successful, the mediator will sometimes prepare a list describing how each issue has been resolved, called ''minutes of settlement'' or a ''memorandum of agreement'', before anyone leaves. Memoranda are usually rather informal and are meant to record the bare bones of the settlement in the expectation that a more complete document, like a separation agreement or a consent order, will be prepared in the future. The parties and sometimes their lawyers will be asked to sign the memorandum to acknowledge the settlement that was reached.

===Formalizing the settlement===

The final stage involves putting the terms of the agreement into more formal language in a written document that the parties, or, depending on the type of document, their lawyers, will sign. Typically, a settlement will be recorded as a separation agreement or, if there is an existing court proceeding, an order that the parties agree the court should make. Sometimes, a mediator who is also a lawyer will prepare the separation agreement. ''Mediators who are not lawyers may not prepare agreements.''

If someone changes their mind before the separation agreement or consent order is filed, the minutes of settlement or memorandum of agreement can usually be presented to the judge as evidence of the deal that was reached between the parties. In fact, in certain circumstances the mediator's notes alone may stand as proof of the parties' agreement! As long as it is plain what has been agreed to and that the intentions of the parties were finally settled, the minutes, memorandum or the mediator's notes can be used as evidence of a binding agreement.

Note that if you are relying on a mediated settlement in court, it is important that the settlement be conclusive and leave nothing else for further negotiation, agreement or confirmation. In the 2005 British Columbia Supreme Court case of ''[http://canlii.ca/t/1q34b S.A.A. v P.W.J.A.]'', the court held that the parties couldn't rely on an agreement that was "subject to confirmation" as a final, binding agreement. In that case, the agreement was subject to the wife producing financial information which, when produced, did not substantiate the information provided at mediation.

==Tips for successful mediation==

In mediation, as in all other forms of negotiation, the goal is to produce a fair agreement in an efficient and cooperative way. There are lots of things you can do that will hinder this process, and other things you can do that will help. The following are a few tips on how to make mediation work for you.

Remember that the more you argue about a particular position of yours, the more you wind up being stuck with that position. Many people find that after they've argued a particular point to death, they're stuck with it because they can't back down without losing face. Try to focus on interests — your underlying needs — rather than on specific outcomes, and to always ask yourself "Why not?" when you hear what the other side has to say.

One of the most important skills you can bring to your mediation is the ability to really listen to what the other side is saying. Active listening involves paying close attention to what the other side is saying, and restating their position to ensure that you know what the other side means and to ensure that the other side recognizes that you're hearing what they are saying. Phrases like "What I hear you saying is..." and "If I understand you correctly, what you're saying is..." can be extremely helpful. At the same time, you must also take some care in how you choose to express yourself. Instead of saying "You did..." or "You're a...," try something like "When you did that I felt..." or "I feel that...." This may all seem a bit flaky, but, believe it or not, it works.

You must be able to talk directly about a problem in an assertive, direct manner. Talk about the issues; don't skirt around them, no matter how uncomfortable or awkward you might feel. Take care in how you express yourself, but when you're in a private session with the mediator, don't mince words.

===Things to do===

The following points boil down to just a few central ideas: respect yourself and the other side; be flexible and avoid taking absolute positions; and, be honest and open. When you go into the mediation session, try to have a few options prepared, a few other alternatives that you might be happy with, rather than a single fixed, rigid goal. Think not just about what specific outcomes you would like, but why those outcomes are important to you. Think about what you hope for as it relates to your future finances and your future parenting relationship, and also what your biggest worries are as you transition into a two-home family. There may be a creative option that you and your ex have not thought about that meets both of your underlying goals.

* Be honest. Trust is essential to the mediation process.
* Be empathetic. Use phrases that indicate you understand and respect how the other party is feeling and thinking, like "I understand how you're feeling..." or "I appreciate the effort you've put into this..."
* Ask for a break when you're feeling too wound up or upset to continue, rather than abandoning a meeting.
* Dress comfortably and be prompt.
* If you disagree with something, say so. You must respect, and express, your own thoughts, opinions, and feelings. Agreeing simply to keep the peace on matters that are important to you can sometimes result in either hitting a wall later on in the mediation or ending up with a deal you later regret.
* Bring the documents you were asked to bring with you. If you don't, matters will only be delayed and the other side may be irritated by the inconvenience.
* Watch your body language! Making disgusted grunts, rolling your eyes, or slamming your fist on the table won't help anything.

===Things not to do===

Suspicion and dishonesty will damage the mediation process, sometimes beyond repair. If the mediator doesn't believe you and the other party doesn't believe you, it might be impossible to arrive at a negotiated settlement. Likewise, bitterness, jealousy, and resentment can also be triggers that undermine each party's faith in the other and make resolution by a judge at a trial inevitable.

*Try to avoid letting your emotions get tangled up with your analysis of the problem at hand. Mediation is tough work, and it's normal for strong emotions to bubble up to the surface. Try to express your feelings in a productive way so that they can actually move you forward rather than keep you stuck.
* Don't hide information, financial or otherwise, on the assumption that the other party won't find out. They usually do; and if they do, the process is likely at an end.
* Don't raise your voice or make comments that are hurtful.
* Don't interrupt. Wait until each person has stopped speaking before you interject, no matter how upset you might feel with what they are saying. If you want, you can raise your hand to let the mediator know you've got something to say.
* Negotiations are stressful, but don't use drugs or alcohol to calm your nerves. Drugs and alcohol will impair your judgment and reduce your ability to be objective and bargain in your own best interests.
* Don't feel that you must give an instant answer when you can't. Take a few moments or a few minutes to compose your reply; no one will begrudge a considered response.
* Don't make personal attacks or threats.
* Don't play on the other person's sense of guilt or otherwise be emotionally manipulative.

==Government mediation services==

Mediation is available at no charge from [https://www.gov.bc.ca/FamilyJusticeCounsellors family justice counsellors] through Family Justice Services Division. Family justice counsellors are fully trained mediators, certified by [http://www.fmc.ca/ Family Mediation Canada], who work with separated parents to assist in resolving disputes over the care of children, child support, and spousal support. Family justice counsellors can't deal with property issues — other than ownership of companion animals — and they usually can't help with support when someone's income is not straightforward.

Other agencies and organizations may provide mediation services or guidance and advice on accessing mediation services. For instance, an organization called Access Pro Bono has been offering free online family mediation and advice services to low and modest income families through the [https://www.accessprobono.ca/program/virtual-family-mediation-program Virtual Family Mediation Program]. Mediate BC is also very active, providing professional support for mediators, but also supporting individuals who are seeking a productive alternative to conflict in all sorts of relationships (including but not limited to family law conflicts). Mediate BC runs the free [https://mediatebc.com/our-services/public-education/ask-a-mediator/ Ask a Mediator] service, which lets you meet one-on-one with a trained mediator for approximately 30 minutes to discuss your situation and help you understand how mediation can help. You can choose to drop-in during Mediate BC's online clinic hours, or make an appointment using their [https://calendly.com/mediatebc online calendar] to speak with a mediator by video conference.

Make sure whatever service you learn about can help with family law disputes before trying to get help.

==Resources and links==

===Legislation===

* ''[https://canlii.ca/t/8q3k Family Law Act]''
* ''[https://canlii.ca/t/551f9 Divorce act]''
* [http://canlii.ca/t/8rdx#sec4subsec1 Family Law Act Regulation]
* [http://canlii.ca/t/85bd Notice to Mediate Regulation]

===Links===

* [https://www.gov.bc.ca/FamilyJusticeCounsellors family justice counsellors]
* [https://www.gov.bc.ca/FamilyJusticeServices Family Justice Centres and Justice Access Centres]
* [https://aboriginal.legalaid.bc.ca/child-family-rights/mediation Mediation - Child protection and Aboriginal Families] from Legal Aid BC
*[https://mediatebc.com/our-services/ Mediate BC] website with resources and a roster of qualified mediators
* [https://dialalaw.peopleslawschool.ca/resolving-disputes-without-going-to-court/ Resolving Disputes Without Going to Court] from Dial-a-Law by the People's Law School
*[https://www.clicklaw.bc.ca/resources/dial-law-mediation-collaborative-negotiation-and-arbitration Mediation, Collaborative Negotiation, and Arbitration] from Dial-a-Law by the People's Law School
*[https://www.youtube.com/watch?v=p89vyvgWQ9s "An Inside Look at Family Mediation"] video from Legal Aid BC and CLEBC
*[https://www.accessprobono.ca/program/virtual-family-mediation-program Virtual Family Mediation Program] from Access Pro Bono

===Resources===

*[https://mediatebc.com/our-services/public-education/ask-a-mediator/ Ask a Mediator] from Mediate BC, offers free online appointments with trained mediators
**You can view Mediate BC's [https://calendly.com/mediatebc calendar of clinics and book an appointment online]
*[https://bit.ly/3LP3xi0 “Family Law Basics” video] from JP Boyd
*[https://www.clicklaw.bc.ca/resource/1497 “Alternatives to Going to Court” PDF] from Justice Education Society of BC
*[https://perma.cc/WFB7-2F4R “A Case for Mediation: The Cost-Effectiveness of Civil, Family, and Workplace Mediation” (PDF)] from Mediate BC Society
*[https://www.youtube.com/watch?v=p89vyvgWQ9s "An Inside Look at Family Mediation"] video from Legal Aid BC and CLEBC
*[https://perma.cc/M6NT-JAHC "How Can We Resolve Our Family Law Issues?" (PDF)] from Legal Aid BC
*Sample mediation [[Media:Mediation Agreement - PDF.pdf|participation agreement]] (PDF) in cases where the parties are represented by lawyers
*Sample mediation [[Media:Mediation Agreement - Self-Rep - PDF.pdf|participation agreement]] (PDF) in cases where the parties are not represented by lawyers

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

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

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

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Resolving Family Law Problems out of Court

2026-05-14T22:48:38Z

Nate Russell: Review via FJSD comments

{{JP Boyd on Family Law TOC|expanded = outofcourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Catherine Brink]], [[Deirdre Severide]], [[JP Boyd]], and [[Morag MacLeod|Morag MacLeod QC]]
}}
{{Clicklawbadge
|resourcetype = many links to information on
|link = [https://www.clicklaw.bc.ca/global/search?f=Alternatives+to+court%7cFamily+law&so=v alternatives to court]
}}Family law problems can be resolved in a bunch of different ways. Court is not the only option. In fact, depending on your circumstances, you may never need to darken the doorway of a courtroom.

Almost every issue people face when their relationships breaks down can be handled without going to court, as long as everyone is able to discuss those issues in a cooperative, reasonable and respectful manner, and everyone is flexible enough to compromise. The only reason why people leaving a relationship have to start a court proceeding is to get a divorce order, and that's only important if people are married to each other.

There are many reasons why it is generally better to resolve things out of court. Agreements that people make cooperatively tend to be longer-lasting and are more likely to leave everyone satisfied with the result than if someone else — a judge or an arbitrator — imposes a resolution. As well, resolving family law problems out of court is often far quicker and far less expensive than resolving them in court. This isn't to say out of court processes are cheap. They still require you to make a financial investment.

This chapter talks about how family law problems can be resolved without going to court. It begins with a brief overview of the different out-of-court options and the different ways that settlements and agreements can be recorded. It also reviews what can happen when someone has a change of heart after an agreement has been reached. The other sections in this chapter discuss the different dispute resolution options — [[Collaborative Processes|collaborative negotiation]], [[Family Law Mediation|mediation]], [[Family Law Arbitration|arbitration]], and [[Parenting Coordination|parenting coordination]] — in more detail.

==Introduction==

The fundamental goal shared by all out-of-court dispute resolution processes is to reach a settlement of the legal issues, particularly those issues that people could have fought about in court. As you might expect, reaching a settlement can require a certain amount of flexibility, empathy and maturity. Most importantly, the people involved must understand that none of them is going to get everything they want in a settlement. Whatever a person's wish list might be going into negotiations, the end result ''always'' represents a compromise and some accommodation of someone else's goals, hopes, and expectations.

It's not always possible to avoid court. Sometimes someone is so stubborn that they can't or won't compromise their position, and sometimes urgent court action is necessary to stop something bad from happening, like property being damaged, someone being hurt, or a child being taken out of the country. But out-of-court processes always offer a cheaper, friendlier and faster resolution to the legal problems that come up when a relationship ends than going to court. They're also far less stressful and disruptive to the people involved, and to their children.

It is particularly important to negotiate a settlement when children are involved. Where there are no children, people can walk away from their relationship and have nothing more to do with each another for the rest of their lives. However, where there are children, parents can expect to be involved with each other — whether they like it or not — for the rest of their lives. Each of them will want to be at their children's high school graduation, attend parent-teacher meetings, and go to school concerts and sports days. The children will want their parents to be there too. As a result, maintaining a functioning relationship is an absolute necessity. Resolving family law problems out of court gives parents the best chance of doing just that.

For more information about parenting after a relationship has ended and how to put the children first in your dispute with the other parent, see the section on [[Parenting after Separation]] in the chapter [[Children and Parenting after Separation]]. For more information about the emotional issues that tend to come with the end of a long-term relationship and how to keep those issues from hopelessly complicating your dispute, see the section [[Separating Emotionally]] in the chapter [[Separating and Getting Divorced]].

==The legislation on family law problems and out-of-court options==

Both the federal ''[[Divorce Act]]'' and British Columbia's ''[[Family Law Act]]'' now talk about the importance of resolving legal disputes out of court.

This is a big change from how the law used to be. Before 2020, all the ''Divorce Act'' had to say about this issue was to require lawyers to discuss with their clients "the advisability of negotiating the matters that may be the subject of a support order or a custody order and to inform the spouse of the mediation facilities known to him or her that might be able to assist the spouses in negotiating those matters." The old ''Family Relations Act'', the law in British Columbia before the ''Family Law Act'' came into force in 2013, didn't say a word about mediation or the other alternatives to court.

===The ''Family Law Act''===

According to the Ministry of Justice's [https://www2.gov.bc.ca/gov/content/justice/about-bcs-justice-system/legislation-policy/legislation-updates/family-law-act/the-family-law-act-explained guide] to the ''[[Family Law Act]]'', the legislation was written to encourage people to resolve family law problems without having to go to court. The Ministry has said that the ''Family Law Act'' "emphasizes that out-of-court dispute resolution processes and resolution through agreements are not simply add-ons to litigation but are the preferred option, with court as a valued, but last, resort." The Ministry has also said that:

<blockquote>"This focus on family dispute resolution signals an important shift from the ''Family Relations Act'', which was criticized for being litigation-focused and for assuming that
every dispute would end in a trial."</blockquote>

The act supports the resolution of family law disputes outside of court by:

*requiring lawyers to explain the different dispute resolution processes to their clients, under sections 4 and 8,
*requiring the people involved in a family law dispute to make full disclosure of the information necessary to resolve the dispute, under section 5, even when they're not in court,
*allowing parenting coordinators to be used to resolve disputes about parenting once a final order, award or agreement about children's parenting arrangements has been reached, under sections 15 to 19,
*including mediation and collaborative negotiation as dispute resolution processes to which the court can refer people, under sections 1 and 224,
*changing the rules about arbitration to better accommodate the arbitration of family law disputes, in sections 19.1 to 19.22, and
*allowing the court to delay a proceeding while the parties attempt to resolve a family law dispute out of court, under section 223.

The act also allows the court to require the people involved in a court proceeding to try to resolve their dispute out of court, and to attend counselling if the court thinks that counselling would be helpful. Section 224 says that:

<blockquote><tt>(1) A court may make an order to do one or both of the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) require the parties to participate in family dispute resolution;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) require one or more parties or, without the consent of the child's guardian, a child, to attend counselling, specified services or programs.</tt></blockquote></blockquote>
<blockquote><tt>(2) If the court makes an order under subsection (1), the court may allocate among the parties, or require one party alone to pay, the fees relating to the family dispute resolution, counselling, services or programs.</tt></blockquote>

That's pretty cool, and a huge change from the old ''Family Relations Act'', which didn't talk about out-of-court dispute resolution processes at all, except in terms of how agreements could be enforced or cancelled.

This change in the ''Family Law Act'' has laid the groundwork for changing how families interact with the court system. A pilot project launched in May 2019 at the Provincial Court in Victoria encourages parties to resolve matters by agreement. The [https://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/your-options/early-resolution Victoria Early Resolution & Case Management Model] provides family case management earlier in the court process, and tries to refer people in appropriate cases to either mediation or collaborative negotiation before appearing before a judge in court.

===The ''Divorce Act''===

The ''[[Divorce Act]]'' was changed in March 2021 to address some of the same goals as British Columbia's ''[[Family Law Act]]'' when it comes to resolving family law disputes. Section 7.3 puts a new duty on spouses:

<blockquote><tt>To the extent that it is appropriate to do so, the parties to a proceeding shall try to resolve the matters that may be the subject of an order under this Act through a family dispute resolution process.</tt></blockquote>

while section 7.7 puts a similar duty on lawyers:

<blockquote><tt>(2) It is also the duty of every legal adviser who undertakes to act on a person’s behalf in any proceeding under this Act</tt></blockquote>
<blockquote><blockquote><tt>(a) to encourage the person to attempt to resolve the matters that may be the subject of an order under this Act through a family dispute resolution process, unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) to inform the person of the family justice services known to the legal adviser that might assist the person</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) in resolving the matters that may be the subject of an order under this Act, and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) in complying with any order or decision made under this Act; and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><tt>(c) to inform the person of the parties’ duties under this Act.</tt></blockquote></blockquote>

The [https://www.justice.gc.ca/eng/fl-df/cfl-mdf/dace-clde/index.html guide] published by the Department of Justice says that these provisions are intended to encourage spouses to try to resolve their differences out of court using processes including negotiation, mediation and collaborative negotiation. The guide says that:

<blockquote>"In most cases, family dispute resolution processes tend to be faster, less expensive and more effective than court proceedings. They are also more likely to serve the interests of the child. A greater variety of such processes are available than ever before, including mediation, negotiation and collaborative law. The phrase 'it would clearly not be appropriate' means that legal advisers do not have to encourage family dispute resolution in some situations, such as when family violence poses safety risks."</blockquote>

As well, section 16.1, which talks about parenting orders, allows the court to make an order directing the parties to "attend a family dispute resolution process." The guide says that:

<blockquote>"This amendment aims to encourage parties to attempt to resolve disputes through a 'family dispute resolution process', such as mediation, negotiation or collaborative law. ... The court may, for example, order that for future disputes, the parties attempt some form of family dispute resolution before bringing the matter to court."</blockquote>

However, because only the provincial governments have jurisdiction over contracts, including separation agreements, this is really about as far as the federal government can go in encouraging people to resolve their disputes out of court.

===The fine print under the ''Family Law Act''===

Alright. So we know that the ''[[Family Law Act]]'' is intended to promote and support people to resolve their family law disputes out of court rather than in court. That's important, but there are some important details about how the legislation does this. First, the act talks about the importance of making proper disclosure, and encourages proper disclosure by making sure that everyone knows that information that is disclosed is private and confidential, and can't be used for purposes other than resolving the family law dispute. Section 5 says this:

<blockquote><tt>(1) A party to a family law dispute must provide to the other party full and true information for the purposes of resolving a family law dispute.</tt></blockquote>
<blockquote><tt>(2) A person must not use information obtained under this section except as necessary to resolve a family law dispute.</tt></blockquote>

Since family law disputes that are resolved out of court are usually going to be resolved with a separation agreement — although those family law disputes which are addressed through arbitration will result in an arbitrator's ''award'' — section 6 says this:

<blockquote><tt>(1) Subject to this Act, 2 or more persons may make an agreement</tt></blockquote>
<blockquote><blockquote><tt>(a) to resolve a family law dispute, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) respecting</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) a matter that may be the subject of a family law dispute in the future,</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) the means of resolving a family law dispute or a matter that may be the subject of a family law dispute in the future, including the type of family dispute resolution to be used, or</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(iii) the implementation of an agreement or order.</tt></blockquote></blockquote></blockquote>
<blockquote><tt>(2) A single agreement may be made respecting one or more matters.</tt></blockquote>
<blockquote><tt>(3) Subject to this Act, an agreement respecting a family law dispute is binding on the parties.</tt></blockquote>
<blockquote><tt>(4) Subsection (3) applies whether or not</tt></blockquote>
<blockquote><blockquote><tt>(a) there is consideration,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the agreement has been made with the involvement of a family dispute resolution professional, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the agreement is filed with a court.</tt></blockquote></blockquote>

Subsections (3) and (4) are really important. They say, in a nutshell, that people who make a family law agreement are bound by the agreement — they are legally required to do what it says — and that people are bound by their agreement whether or not the agreement was made with a "family dispute resolution professional." That's kind of cool, because it means that family law agreements are presumed to be binding on the people who make them, regardless of how they make them.

However, section 198(5) says that the time limits within which people must apply for orders for the payment of spousal support and the division of property are suspended "during any period in which persons are engaged in family dispute resolution with a family dispute resolution professional." A ''time limit'' is a period of time, often two years, within which someone must start a court proceeding, or their right to start that court proceeding will be lost forever. All of a sudden, who is and isn't a "family dispute resolution professional" is important.

Section 1 provides this definition:

<blockquote><tt>"'''family dispute resolution professional'''" means any of the following:</tt></blockquote>
<blockquote><blockquote><tt>(b) a parenting coordinator;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) a lawyer advising a party in relation to a family law dispute;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) a mediator conducting a mediation in relation to a family law dispute, if the mediator meets the requirements set out in the regulations;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(e) an arbitrator conducting an arbitration in relation to a family law dispute, if the arbitrator meets the requirements set out in the regulations; ...</tt></blockquote></blockquote>

Let's take a closer look at who these people are. Section 1 defines a ''parenting coordinator'' as "a person who may act as a parenting coordinator under section 14." When you go to section 14, you find out that "a person meeting the requirements set out in the regulations may be a parenting coordinator." And now we need to look at the regulations. Section 6 of the [http://canlii.ca/t/8rdx Family Law Act Regulation] provides the details. A "parenting coordinator" is someone who is a member of the Law Society of British Columbia and is accredited by the Law Society as a parenting coordinator. It also includes someone who:

#is a member of the College of Psychologists of British Columbia, the British Columbia College of Social Workers, the BC Association of Clinical Counsellors, Family Mediation Canada, the Mediate BC Family Roster or the BC Parenting Coordinators Roster Society;
#maintains professional liability insurance; and,
#meets a list of training requirements set out in section 6(1)(b).

Under the ''[http://canlii.ca/t/84jt Legal Professions Act]'', a ''lawyer'' is defined as someone who is as a member of the [https://www.lawsociety.bc.ca Law Society of British Columbia] or a member of another Canadian law society. That's easy enough. And if you want the details about who the members of the Law Society are, you can get those from the Law Society's [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules/ Rules].

The term ''mediator'' isn't defined in the ''Family Law Act'', but section 1 does say that a person who works as a mediator must "meet the requirements set out in the regulations" if they are going to qualify as a "family dispute resolution professional" under the act. Section 4 of the Family Law Act Regulation provides the requirements. A "mediator" is someone who is a member of the Law Society of British Columbia and is accredited by the Law Society as a family law mediator. It also includes someone who:

#is a member of Family Mediation Canada or a member of the Mediate BC Family Roster; or,
#maintains professional liability insurance and meets a list of training requirements set out in section 4(2)(d).

The term ''arbitrator'' is also undefined in the ''Family Law Act''. Section 1 says that a person who works as an arbitrator must "meet the requirements set out in the regulations" if they are going to qualify as a "family dispute resolution professional." Section 5 of the Family Law Act Regulation provides the requirements. An "arbitrator" is someone who is a member of the Law Society of British Columbia and is accredited by the Law Society as a family law arbitrator. It also includes someone who is a member of:

#the College of Psychologists of British Columbia or the British Columbia College of Social Workers,
#maintains professional liability insurance; and,
#meets a list of training requirements set out in section 5(2)(b).

Although parenting coordinators, mediators and arbitrators are required to provide "written confirmation" that they meet the requirements set out in the Family Law Act Regulation to qualify as a "family dispute resolution professional," this is something you may want to investigate for yourself, before you hire anyone as your parenting coordinator, mediator or arbitrator. If it turns out that your family dispute resolution professional doesn't qualify as a "family dispute resolution professional" under the act and the regulations, you will ''not'' be able to take advantage of section 198(5) to claim a delay in the running of the time limits!

For family dispute resolution professionals who are lawyers, you can get this information from the [https://www.lawsociety.bc.ca/lsbc/apps/lkup/mbr-search.cfm Lawyer Directory] on the Law Society's website. The profile of each lawyer shows how long the lawyer has been practicing law, their contact information, and their discipline history, as well as their accreditations. Here's my listing, for example:

[[File:Sample lawyer profile new.png|600px|frameless|center|Sample lawyer profile from the website of the Law Society of British Columbia]]

The sections [[Family Law Mediation|Mediation]], [[Family Law Arbitration|Arbitration]], and [[Parenting Coordination]] which follow later in this chapter provide more information about the training and other requirements mediators, arbitrators, and parenting coordinators must have under the ''Family Law Act''.

==The out-of-court options==

There really are only two ways to resolve a legal problem. You can work out a settlement and create your own resolution to the legal problem. Or, you can ask someone to resolve the legal problem for you.

Going to court means that you're asking a judge to resolve your legal problem. If you decide to stay out of court but still want someone to resolve your legal problem for you, you'll be resolving your dispute through ''arbitration''. If you want to work out a settlement, you'll be resolving your dispute through ''negotiation'', ''mediation'' or ''collaborative negotiation''. ''Parenting coordination'' is a hybrid process that uses elements of mediation and arbitration to resolve disputes about parenting arrangements set out in a final order, award or agreement.

One of the criticisms that people often make about lawyers is that we are greedy and provoke conflict to make money. While that may be true of some lawyers, and certainly the advertising you see from lawyers in the United States tends to support this impression, the majority of Canadian family law lawyers would rather resolve family law disputes in any way other than court. In 2017, the Canadian Research Institute for Law and the Family published the results of a [https://prism.ucalgary.ca/bitstream/handle/1880/107586/Cost_of_Dispute_Resolution_-_Mar_2018.pdf?sequence=3&isAllowed=y study] of family law lawyers and their views of the different dispute resolution options. The research institute found that:

*Mediation and collaborative negotiation are viewed as the most useful dispute resolution processes for low-conflict disputes as well as disputes about the care of children and parenting, child support or spousal support, and the division of property and debt.
*Mediation and collaborative negotiation tend to result in longer-lasting resolutions than litigation.
*Cases resolved through mediation, collaborative negotiation, and arbitration take the least amount of time to conclude, while cases that are litigated take the most amount of time to resolve.
*Over 90% of the lawyers using collaborative negotiation or mediation agreed that the results they achieve are in the client’s interest, compared to only about one-third of lawyers using litigation.
*Almost all lawyers using collaborative negotiation and mediation agreed that the results they achieve are in the interest of the client’s children, compared to less than one-third of lawyers using litigation.
*When comparing the extent to which lawyers agree that their clients are satisfied with the results they achieve using the various dispute resolution processes, more lawyers agreed their clients are satisfied when they use collaborative negotiation or mediation than when they use litigation.

In other words, the majority of family law lawyers think that collaborative negotiation, mediation and arbitration are cheaper and faster than litigation, and are more likely to produce results that are in the interests of their clients and their clients' children.

===Negotiation===

Negotiation is a cooperative effort to resolve a dispute through discussion. Mediation and collaborative negotiation are structured ways of handling this discussion; they're both processes of negotiation.

People can negotiate the resolution of a dispute between themselves, with the help of a lawyer, or with the help of a judge at a case conference or a settlement conference if a court proceeding has started. Negotiation boils down to this:

<blockquote>'''Pat''': "I'll give you 60% of the money from the sale of the house if you'll let me keep my Porsche Boxster."</blockquote>
<blockquote>'''Sandy''': "Look, 60% is great, but I need more compensation for my interest in the Porsche. Why not give me 65% of the house and half of your hockey card collection instead?"</blockquote>
<blockquote>'''Pat''': "You know how important my hockey card collection is to me. Let me keep my hockey cards; I'll give you 60% of the house, and I'll sell the Porsche and give you half of what I get for it. Plus, I'll let you keep your Ford Pinto."</blockquote>

In a process of negotiation, each person gives a little and takes a little, all in the hope that at the end of the day they'll be able to come to an agreement on all of the issues that have cropped up because of the end of their relationship.

If you do reach a settlement, you'll want to record the terms of your settlement in some way. This is really important because, without some record of the deal that was reached, there's no way to confirm what the exact terms of the deal were if people start remembering things differently. While most people record their settlement by printing out a summary of the deal and signing it, really almost ''any'' record of the terms of the settlement will do.

For a quick introduction to starting negotiations, see [[How Do I Start Negotiations with My Spouse?]]. It's located in the Helpful Guides & Common Questions part of this resource, in the section, ''Alternatives to Court''.

===Collaborative negotiation===

The collaborative process is a kind of structured negotiation in which the parties and their lawyers sign an agreement not to go to court and to work together as a team to reach a settlement. The team can include clinical counsellors or psychologists who work with each of the parties to address any emotional issues related to the separation and provide their expertise on parenting plans. Other specialists can be recruited to help with particular subjects, such as issues about the children or complicated financial problems, as the need arises. The goal of collaborative negotiation is to arrive at a long-lasting settlement of the parties' legal problems that, as much as possible, meets each party’s most important needs and goals, and leaves them healthy and well and able to work together in the future.

There are collaborative "practice groups" all over British Columbia. These multidisciplinary groups consist of legal professionals, mental health professionals and financial experts whose main focus is using the collaborative process to help their clients.

* [http://www.bccollaborativerostersociety.com BC Collaborative Roster Society] (province-wide)
* [http://www.collaborativedivorcebc.com Collaborative Divorce Vancouver] (Vancouver and the lower mainland)
* [http://www.collaborativefamilylawgroup.com Victoria's Collaborative Family Separation Professionals] (Victoria)
* [http://www.collaborativefamilylaw.ca Okanagan Collaborative Family Law Group] (the interior)
* [http://www.nocourt.ca Collaborative Law Group of Nelson] (Nelson)
* [http://nocourt.net Collaborative Association in Metro Vancouver] (Surrey, New Westminster and the Fraser Valley)

More information about the collaborative process is discussed in this chapter's section on [[Collaborative Processes]]. For a quick introduction on how to start the collaborative negotiation process, see [[How Do I Start a Collaborative Process with My Spouse?]] located in the Helpful Guides & Common Questions part of this resource.

===Mediation===

Mediation is another kind of structured negotiation. In this process, the parties attempt to reach an agreement with the help of a mediator. A mediator is a neutral third party who guides the parties through their negotiations, helps to identify the parties' interests, and helps them to find a settlement that will work for both of them. The goal of mediation is to arrive at a settlement of some or all of the legal issues which both parties are as happy with as possible.

Mediation may be used by parties who never plan to set foot in a courtroom. It is also useful for parties who have started a court proceeding but would rather settle out of court than go through trial. The general rule is that mediation is a ''voluntary'' process. There is one exception to that rule. If you and your spouse are already parties to an action in the Supreme Court, the ''[https://canlii.ca/t/85bd Notice to Mediate (Family) Regulation]'' provides a mechanism for requiring the other side to try mediation before getting into the courtroom. To find out how to use this regulation, see [https://bcfamilylawresource.blogspot.ca/2014/01/lets-mediate-primer-on-notice-to.html JP Boyd on Family Law: The Blog].

If the parties reach a settlement, the terms of the deal can be set out in a ''separation agreement'', in ''minutes of settlement'', in a ''memorandum of agreement'', or in a ''consent order'', depending on the circumstances and the preferences of the parties. These are all ways of recording the terms of settlement. This is really important because, without some record of the deal that was reached, there's no way to confirm what the exact terms of the deal were if people start remembering things differently.

Many lawyers also work as mediators. Lawyers who work as mediators are called ''family law mediators''. They have to have additional training in mediation, family violence, and the power dynamics involved in dispute resolution processes. Lawyers who are family law mediators will usually advertise that they are both lawyers and mediators. More information about the training requirements for family law mediators is available from the Law Society of British Columbia's page on [https://www.lawsociety.bc.ca/for-lawyers/practice-resources/resources-by-area-of-practice/family-law-alternate-dispute-resolution-accreditation/ Family Law Alternate Dispute Resolution Accreditation], which also covers family law mediators.

For a quick introduction on starting mediation, see [[How Do I Start Mediation with My Spouse?]]. It's located in the Helpful Guides & Common Questions part of this resource, in the section ''Alternatives to Court''. For more detailed information about the mediation process, see the [[Family Law Mediation|Mediation]] section of this chapter.

===Arbitration===

Arbitration is ''not'' a form of negotiation. It is a decision-making process that can look a lot like court.

In arbitration, the parties hire a neutral third party called an ''arbitrator'' to act as their personal judge. They agree that their arbitrator can make decisions about their legal dispute that they will be bound by, as if those decisions had been made by a judge in court. However, unlike court, arbitration is a completely private process and the people involved can go through the process as quickly or as slowly as they'd like.

Arbitration is a lot more formal than mediation because the arbitration process results in a decision that is imposed on the parties, rather than an agreement which they reach themselves. Although the process includes a lot of flexibility and different procedural options, in general, in arbitration each party presents their evidence and their arguments, and tries to persuade the arbitrator that their position is the right one. Mediation, on the other hand, is often more like a conversation, with no formal rules of procedure and no evidence, apart from helpful things like financial statements.

The arbitration of family law problems is governed by sections 19.1 to 19.22 of the ''[[Family Law Act]]''. It is ''not'' governed by the provincial ''[http://canlii.ca/t/84gc Arbitration Act]''; that legislation mainly covers corporate and commercial disputes. Arbitration is, like mediation and collaborative negotiation, one of the dispute resolution processes that the court can refer people to under section 224 of the ''Family Law Act''.

Some lawyers also work as arbitrators. Lawyers who work as arbitrators are called ''family law arbitrators''. They have to have practised as a lawyer for at least ten years and have additional training in arbitration, family violence, and the power dynamics involved in dispute resolution processes. Lawyers who are family law arbitrators will usually advertise that they provide arbitration services. More information about the training requirements for family law arbitrators is set out in the Law Society's [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/code-of-professional-conduct-for-british-columbia/appendix-b-%E2%80%93-family-law-mediation,-arbitration-and/ Code of Professional Conduct] in Appendix B, and in the Law Society's [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules/part-3-%E2%80%93-protection-of-the-public/#d3 Rules] at Part 3, Division 3.

For a quick introduction on how to start arbitration, see [[How Do I Start Arbitration with My Spouse?]]. It's located in the Helpful Guides & Common Questions part of this resource, in the section, Alternatives to Court. For more detailed information about the arbitration process, see the [[Family Law Arbitration| Arbitration]] section of this chapter.

===Using mediation and arbitration together===

Mediation has lots to recommend it. It's cooperative, it's based on discussion and compromise, and its goal is to reach a settlement by consensus. However, without that last ingredient, ''consensus'', mediation will always fail. It sometimes makes sense to use a dispute resolution process that includes a way of resolving any issues that can't be agreed to, and that might mean a process that gives the mediator the power to resolve a stalemate by imposing a decision like an arbitrator. This hybrid approach to mediation and arbitration is called ''mediation-arbitration'', sometimes shortened to ''med-arb''.

In med-arb processes, the parties will sign an agreement that commits them to the mediation process and describes what will happen if agreement can't be reached on particular issues. The agreement should say whether the mediator will use information from the mediation phase to make decisions in the arbitration phase, and how any other evidence will be presented in the arbitration phase. It's really important to understand what will trigger the end of mediation and the beginning of arbitration, and whether the mediator will have the power to make decisions as an arbitrator on all of the issues or just some of them.

===Parenting coordination===

Parenting coordination is a hybrid dispute resolution process that relies on elements of both mediation and arbitration. It is only used to deal with problems about the care of children after a final parenting plan has been made by a court order, an arbitrator's award or a separation agreement. Parenting coordination is a child-focused process in which a neutral third party, a ''parenting coordinator'', helps parents implement the terms of their parenting plan. Parenting coordination is really only useful for parents who always seem to find themselves in conflict about parenting issues, despite their order, award or agreement. If you and your ex don't argue about your parenting plan a lot, you don't need parenting coordination.

In the parenting coordination process, the parents hire a parenting coordinator and sign a parenting coordination agreement that outlines their rights and responsibilities to each other and the scope of the parenting coordinator's services and authority. When a problem implementing the parenting plan comes up, one of the parents will contact the parenting coordinator and the parenting coordinator will get to work. First, the parenting coordinator will try to work out a solution by finding consensus, like a mediator. However, if the parents can't reach an agreement resolving the problem, the parenting coordinator will make a decision resolving the dispute, like an arbitrator.

Parenting coordination is governed by sections 14 to 19 of the ''[[Family Law Act]]'', and section 6 of the [http://canlii.ca/t/8rdx Family Law Act Regulation]. The court can make an order requiring people to start parenting coordination under section 15 of the act.

Parenting coordinators are family law lawyers and mental health professionals who are hired for lengthy terms of between six to 24 months. Lawyers who work as parenting coordinators have to have practised as a lawyer for ten years and have additional training in parenting coordination, arbitration, mediation, family violence, and the power dynamics involved in dispute resolution processes. Lawyers who are parenting coordinators will usually advertise that they also provide those services. More information about the training requirements for parenting coordinators is set out in the [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules/ ''Law Society Rules''], Part 3, Division 4. More information about parenting coordination is available at the website of the [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society].

To find out more about parenting coordinators, see [[How Do I Hire a Parenting Coordinator?]]. It's located in the Helpful Guides & Common Questions part of this resource, in the section, Alternatives to Court. For more detailed information about the parenting coordination process, see the [[Parenting_Coordination|Parenting Coordination]] section of this chapter.

==Free and lower-cost options==

Generally, people have to pay for their mediator, collaborative lawyer, arbitrator, or parenting coordinator. Sometimes these specialists charge on a sliding scale, but often the fees they charge will be in the neighbourhood of $200 to $400 per hour and up. They will also usually require the parties to pay significant retainers in advance. (A ''retainer'' is money paid to a lawyer as a deposit against the fees they will charge in the future.) These costs are the major challenge involved in getting access to legal assistance. The reality is that many people do not have the money to pay these fees or have a limited budget in which to work. Here is a list of services that may be able to assist:

*some mediation services about issues involving children and support are provided at no cost by [www.gov.bc.ca/FamilyJusticeCounsellors family justice counsellors],
*pro bono assistance from a collaborative negotiation team may be available through the Pro Bono Collaborative Divorce Project run by the [http://www.bccollaborativerostersociety.com/ BC Collaborative Roster Society], as long as you meet certain eligibility requirements,
*pro bono mediation may be available through the Pro Bono Family Mediation Clinic run by the [https://northshoreprobono.ca/ North Shore Pro Bono Society], again, if you meet certain eligibility requirements,
*Legal Aid will pay for a limited amount of mediation in certain circumstances, and
*you may be able to hire one of these specialists to work on an ''unbundled'', or ''limited scope'', basis, and they will charge for their services on an as-needed basis rather than requiring that a large retainer be paid up front.

For more information on unbundled legal services, see the website of the [https://unbundlinglaw.peopleslawschool.ca/ People's Law School]. For more information about retainers and how lawyers usually charge for their services, see the [[You and Your Lawyer]] section in the chapter on [[Understanding the Legal System for Family Law Matters]].

==Resolving disputes and thinking outside the box==

The end of a relationship can be a messy business at times. In addition to the legal issues that sometimes come up, there are always emotional issues, and the emotional issues can sometimes cloud people's judgment. (This is one of the reasons why hiring a lawyer can be a good idea; the lawyer's job is to help you see the forest when all you can see is the tree in front of you.) Over time, the intensity of the emotional issues changes and, hopefully, mellows. This can have an effect on how the legal issues are managed; things that once seemed terribly urgent or incapable of compromise become less urgent and more susceptible to alternatives.

At the same time, the people who used to be in a romantic partnership are also moving forward with their lives and learning how to live independently and apart. They're setting up separate homes, establishing separate bank accounts and building new daily routines. Temporary parenting arrangements get sorted out, whether by habit, by agreement, by order, or by award, and temporary arrangements also get worked out about how the family's income will be distributed to support two homes. This too has an effect on how the legal issues are managed.

As your circumstances and attitudes evolve, so should the approach you're taking to the resolution of your disputes.

It seems to me that no single dispute resolution process is going to be appropriate throughout the life of a dispute, except perhaps litigation when the conflict between the parties is extreme or there are mental health or violence issues that cannot be addressed otherwise. Apart from unhappy situations like those, different dispute resolution processes will likely be appropriate for different issues at different times over the course of a dispute. Being sensitive to this can really pay off.

Say, for example, that mediation has got you to the point where you agree on everything except for a technical issue, like someone's income or the best way to divide a family business. Rather than getting hung up on the issue that you're stuck on, why not try something different? Agree that the issue will be dealt with through arbitration. Agree that the issue will be referred to a senior family law lawyer with special expertise in the area for an opinion, and agree to be bound by the lawyer's recommended solution. (I've been asked to do this, and it's a lot of fun.) Agree to seek the opinion of a non-lawyer expert. Or, if you must, agree to take that one issue to trial or ask a judge to provide an opinion on the issue at a settlement conference.

There is a whole spectrum of processes that can be used to resolve some or all aspects of a family law dispute. Litigation, arbitration, mediation, and collaborative negotiation are all important ways of resolving disputes, and more than one process can be best suited for any given problem at any point over the course of a dispute. However, a willingness to be creative can suggest further options, like agreeing to be bound by the opinion of a respected lawyer or agreeing to take just one issue to a settlement conference. Don't get locked into the idea that only litigation or only mediation will work. Be willing to think outside the box.

==Formalizing settlements==

It is always best to write out the terms of a deal when the deal is done. Writing the agreement out gives everyone a record of their settlement which they can refer to if there's a dispute about what they agreed to down the road. This does happen.

Although it's true that oral agreements are just as binding as written agreements, it can be very difficult to prove the terms of an oral agreement, especially when a lot of time has passed since the agreement was originally made. On the other hand, when an agreement is written down, that written record is usually all the court will need to determine the terms of the agreement. Notes scribbled on a napkin, for example, might be a written agreement that the court will uphold. Letters and emails exchanged in the negotiation process have also been found to record the terms of an agreement.

Lawyers and mediators always make a tremendous effort to record the terms of a settlement as clearly and comprehensively as possible, and will usually put the settlement into a formal document like a separation agreement, a memorandum of understanding, minutes of settlement, or a consent order.

===Separation agreements===

A separation agreement is a written contract entered into after a relationship has broken down and the legal issues arising from the breakdown have been settled. The contract is written to reflect the terms of the settlement the parties have reached, and includes a lot of extra language that:

#describes the basic background of the parties' relationship,
#summarizes the circumstances of the settlement discussions,
#confirms that each party has had legal advice about the agreement,
#confirms that the parties intend to be bound by the agreement, and
#explains the consequences if a party decides not to follow the agreement.

Separation agreements are the product of negotiation, collaborative negotiation, or mediation, and may deal with all or just some of the legal issues between the parties. A separation agreement can also be used to record a settlement reached after litigation has started, instead of or in addition to a consent order.

Separation agreements are discussed in more detail in the chapter [[Family Law Agreements]], in the section [[Agreements after Separation]].

===Minutes of settlement===

Minutes of settlement are used to create a quick record of an agreement and are not nearly as comprehensive and detailed as separation agreements. Minutes are sometimes drafted by a mediator when the mediator isn't a lawyer or expects the lawyer for one of the parties to write a proper separation agreement describing the parties' settlement at some point in the near future. Sometimes minutes are used when a settlement has been reached on the brink of trial and there isn't enough time, or maybe enough emotional energy, to draft a proper consent order.

Typically, minutes of settlement are little more than an outline of the essential points agreed to, and are signed on the understanding that the terms will be elaborated and put into proper legal language later.

Minutes of settlement are the product of negotiation or mediation, and they usually deal with all of the issues between the parties. The terms of the minutes are usually used to draft a consent order or a separation agreement. When minutes are used as the basis for a consent order, they are often attached to the back of the order.

Minutes of settlement are signed by the parties and their lawyers. Minutes of settlement can be enforced by the courts as a binding agreement between the parties, even without a judge approving the consent order and without the parties signing a separation agreement.

===Memoranda of understanding===

A memorandum of understanding describes the terms on which all or part of a dispute has been settled. Memoranda are even less formal than minutes of settlement, and may not even be signed by both parties or both lawyers. A memorandum may even take the form of a letter sent by one of the lawyers:

<blockquote>"I confirm that in our telephone conversation of earlier this afternoon, we agreed that the children would live mostly with Suman and that Harjit would have parenting time with the children on weekends and every other Wednesday night, and that Harjit would pay child support to Suman in the amount of $326.00 per month."</blockquote>

While memoranda of understanding can be enforced by the courts on their own, they are almost always put into a more formal document later on, either as a consent order or as a separation agreement.

===Consent orders===

Consent orders are orders that parties have agreed the court should make — they're orders that the parties ''consent'' to the court making. Consent orders are meant to reflect the terms of a temporary or a permanent agreement between the parties, on some or all of the legal issues, after litigation has started.

Sometimes, parties will come to an agreement before a court proceeding has started and want to put the agreement in the form of a court order rather than in the form of a separation agreement. This would really only make sense if there was some important legal reason to have the agreement put in the form of a court order, or if the court would be asked to make an order about something anyway, like a divorce order.

When a judge makes a consent order, the order is just as important and is just as binding as if it was an order made after a trial. Consent orders are notoriously difficult to appeal or change without proof of some sort of deception by the other side or a change of circumstances since the order was made.

===Consent awards===

Consent awards are awards that parties have agreed an arbitrator should make. Consent awards are meant to reflect the terms of a temporary or a permanent agreement between the parties reached after they have started arbitration.

When an arbitrator makes a consent award, the award is just as important and is just as binding as if it was an award made after the arbitration hearing. Consent awards are difficult, if not impossible, to appeal or change without proof of some sort of deception by the other side or a significant change of circumstances since the award was made.

==Wait, I've changed my mind!==

Generally speaking, it is ''not'' okay to change your mind after you've come to a settlement, especially right after you've reached the settlement. What you can do about it, ''if'' you can do anything about it, depends on the circumstances in which the settlement was reached and whether the agreement has already been reduced to writing and signed.

===After the agreement has been formalized===

If you have a change of heart after a ''separation agreement'' has been signed, you can attempt to negotiate an amendment to the terms of the agreement. An amendment is another agreement, put into writing and executed just like the original separation agreement, and is usually described as an ''amending agreement'' or an ''addendum agreement'', or something similar. However, if the other side isn't prepared to change the agreement, you'll have little choice except to go to court and ask the judge to make an order different than the terms of the agreement. Be warned! This may be very difficult unless you can show that there was a significant flaw in how the agreement was reached or that there has been a serious and unexpected change in circumstances since the agreement was executed. You can't ask the court to make an order different from the agreement just because you've decided you don't like it. There must be an awfully good reason why the court should do anything different than what you had agreed to.

If you have a change of heart after a ''consent order'' has been made by the court, you'll face exactly the same problem. You can try to negotiate the terms of a new order changing the consent order, which will be presented to the court by consent in the same manner as the original consent order. Failing that, you'll have to apply to court to change the original consent order. You will have to prove that there has been a meaningful and unexpected change in circumstances since the order was made or that there was a significant flaw in how the agreement leading to the consent order was reached.

Amending separation agreements and asking the court to set them aside are discussed in more detail in the chapter [[Family Law Agreements]], in the section [[Changing Family Law Agreements]]. Changing orders is discussed in more detail in the chapter [[Resolving Family Law Problems in Court]], in the section [[Changing Orders in Family Matters]].

It's important to know that if you disagree with an order or an agreement and simply decide not to comply with the order or agreement, the other side can go to court to enforce the order or agreement. In the case of a court order, you could also be faced with an application for an order that you be found in contempt of court. Contempt is punishable by jail time, a fine, or both jail time and a fine. Note also that minutes of settlement and memoranda of understanding may be enforceable as binding agreements in the same way that separation agreements are enforceable.

The enforcement of orders is discussed in more detail in the chapter [[Resolving Problems in Court]], in the section [[Enforcing Orders in Family Matters]]. The enforcement of agreements is discussed in the chapter [[Family Law Agreements]], in the section [[Enforcing Family Law Agreements]].

===Before the agreement has been formalized===

People sometimes have a change of heart between the time the deal is struck and the time the agreement is put into the form of a consent order or a separation agreement. (Lawyers often think of this as a form of buyer's remorse.) If this happens, you have two options: you can either live with the agreement, or you can try to get the other side to agree to change the agreement.

You must really think hard before bringing your complaint to the other side, because any attempt to renegotiate the deal can upset not only the terms that you want to change, but also the terms that you're really quite happy with. As well, depending on the circumstances, the agreement that you struck may be enforceable even ''before'' it is put into the form of a separation agreement or court order. Here are some things to think about.

*Is the thing you want to change something you can actually live with? Is changing that one thing worth the risk of losing the settlement altogether?
*Is it worth the additional legal fees it will cost to go back into the negotiation process and to draft a new agreement?
*Is it worth the chance of losing other parts of the settlement that you're happy with but that the other side isn't too keen on?
*Is it worth the risk that the other side will start a court proceeding to enforce the unsigned agreement? Is it worth the legal fees it will cost to defend a court proceeding to enforce the agreement?

Remember that the negotiation process is a process of give and take. It is almost a certainty that you are going to be unhappy with some aspects of the agreement, just as the other side is going to be unhappy with other aspects of the agreement. Each of you gave things up and compromised your positions in order to reach a settlement. After all of the anxiety of the negotiation process and the pain of giving up on a hard-fought point, it is also almost a certainty that if one side wants to re-open an issue, the other side will want to re-open another issue.

==Resources and links==

===Legislation===

* ''[https://canlii.ca/t/8q3k Family Law Act]''
* ''[https://canlii.ca/t/551f9 Divorce act]''
* ''[https://canlii.ca/t/840n Family Relations Act]''
*''[https://canlii.ca/t/84jt Legal Professions Act]''
*[https://canlii.ca/t/8rdx Family Law Act Regulation]
*[https://canlii.ca/t/85bd Notice to Mediate (Family) Regulation]

===Links===

*[https://www.justice.gc.ca/eng/fl-df/cfl-mdf/dace-clde/index.html Divorce Act Changes Explained] from the Government of Canada
*[https://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/your-options/early-resolution Early Resolution Process] from the Government of British Columbia
*[https://www.gov.bc.ca/FamilyJusticeCounsellors Family Justice Counsellors] from the Government of British Columbia
*[https://unbundlinglaw.peopleslawschool.ca/ Unbundled Legal Services] from the People's Law School
*[https://mediatebc.com/our-services/ Mediate BC] website with resources and a roster of qualified mediators
*[https://dialalaw.peopleslawschool.ca/resolving-disputes-without-going-to-court/ Resolving Disputes Without Going to Court] from Dial-a-Law by the People's Law School
*[https://www.clicklaw.bc.ca/resources/dial-law-mediation-collaborative-negotiation-and-arbitration Mediation, Collaborative Negotiation, and Arbitration] from Dial-a-Law by the People's Law School
*[https://www.youtube.com/watch?v=p89vyvgWQ9s "An Inside Look at Family Mediation"] video from Legal Aid BC and CLEBC
*[https://aboriginal.legalaid.bc.ca/child-family-rights/mediation Mediation - Child protection and Aboriginal Families] from Legal Aid BC
*[https://www.accessprobono.ca/program/virtual-family-mediation-program Virtual Family Mediation Program] from Access Pro Bono
*[https://www.lawsociety.bc.ca/lsbc/apps/lkup/directory/mbr-search.cfm Lawyer Directory] from the Law Society of BC
*[https://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society]
*[https://www.collaborativedivorcebc.com/ Collaborative Divorce Vancouver] (Vancouver and the lower mainland)
*[https://collaborativefamilylaw.ca/ Okanagan Collaborative Family Law Group] (the interior)
*[https://www.nocourt.net/ The Collaborative Association] (Surrey and the Fraser Valley)
*[https://www.bccollaborativerostersociety.com/ BC Collaborative Roster Society] (province-wide)
*[https://www.collaborativefamilylawgroup.com/ Collaborative Family Separation Professionals] (Victoria)

===Resources===

*[https://bit.ly/3LP3xi0 “Family Law Basics” video] from JP Boyd
*[https://perma.cc/WFB7-2F4R “A Case for Mediation: The Cost-Effectiveness of Civil, Family, and Workplace Mediation” (PDF)] from Mediate BC Society
*[https://www.youtube.com/watch?v=p89vyvgWQ9s "An Inside Look at Family Mediation"] video from Legal Aid BC and CLEBC
*[https://perma.cc/M6NT-JAHC "How Can We Resolve Our Family Law Issues?" (PDF)] from Legal Aid BC
*[https://canlii.ca/t/286m "An Evaluation of the Cost of Family Law Disputes: Measuring the Cost Implication of Various Dispute Resolution Methods"] from the Canadian Research Institute for Law and the Family

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

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[[Category:JP Boyd on Family Law]]

Separation and the Law

2026-05-14T22:46:20Z

Nate Russell: Review via FJSD comments

{{JP Boyd on Family Law TOC|expanded = separation}}{{JPBOFL Editor Badge
|ChapterEditors = [[Vanessa Van Sickle]]
}}
{{LSSbadge
| resourcetype = more information on
| link = [*[https://family.legalaid.bc.ca/separation-divorce common questions on Separation & Divorce]
}}Separation usually signals the breakdown of a serious relationship. It can be one of the most traumatic stages in the conclusion of a relationship, but a brief period of separation can also lead to reconciliation and the resumption of life.

This section discusses the legal aspects of separation, the rules about reconciliation, and some of the other things you may want to think about once you have separated or have decided to separate. The information in this section applies to ''married spouses'' and ''unmarried spouses'' — people who are legally married to each other, people who have lived together for two years or more in a "marriage-like relationship," and people who have lived together for less than two years and have had a child together.

This section also addresses some common questions about sex and new relationships after separation. The first section in this chapter, [[Separating Emotionally]], talks about the emotional dimensions of separation and how those emotional issues can influence the resolution of the legal issues.

==Introduction==

Separation is a turning point in a relationship in more ways than one. Apart from the obvious change to what was once a romantic relationship, separation also triggers a number of important legal consequences.

*Guardians must have separated before they can ask for an order about parenting children under section 45 of the ''[[Family Law Act]]''. Also, an agreement between guardians about parenting children is only binding if the agreement is made after they have separated, under section 44 of the act.
*The date of separation is the date when each spouse gets a one-half interest in all family property and becomes responsible for one-half of all family debt, under section 81 of the ''Family Law Act''.
*The date of separation marks the end of the period during which family property and family debt accumulates, under sections 84(1) and 86.
*An agreement about child support is only binding if the agreement is made after the date of separation, under section 148(1) of the ''Family Law Act''.
*The date of separation marks the beginning of the two-year period during which unmarried spouses must begin a claim for the division of property and debt or for spousal support, under section 198(2) of the act.
*The date of separation marks the beginning of the one-year period during which married spouses must live "separate and apart" to ask for a divorce on the basis of separation, under section 8(2)(a) of the ''[[Divorce Act]]''.

Because so many legal issues hinge on the date of separation, it won't be a surprise that people sometimes wind up arguing about when separation occurred. As a result, there's a good bit of case law about what constitutes "separation" and how to figure out what date is the date of separation. Making things a bit more complicated, while the decision to separate is often made by everyone involved in a relationship, it only takes one person to decide to end a relationship, and a decision to end a relationship doesn't require the consent or agreement of anyone else.

===Getting a "legal separation"===

Some people go to family law lawyers to get a "legal separation." Separation is accomplished, in most cases, by simply leaving the family home with the intention of living separate lives, although technically speaking it isn't necessary to move out at all. Once you or your spouse has announced that the relationship is at an end, boom: you're separated. That's it. There are no special legal documents to sign or file in court to become separated, and there is no such thing as a legal separation in British Columbia.

Now, to be fair, what people often mean by "legal separation" is a ''separation agreement''. That's something else altogether. A separation agreement is a contract that people use to record their agreement about things like how the children will be cared for, how their property will be shared, and how child support and spousal support will be paid. Separation agreements aren't always useful, they're not required by the law, and you can't be forced to sign a separation agreement.

You can find more information about separation agreements in the chapter [[Family Law Agreements]], in the section [[Agreements after Separation]]. You can find out more about preparing to separate in [[How Do I Prepare for Separation?]], located in the Helpful Guides & Common Questions part of this resource.

===The date of separation===

Under the old ''[[Family Relations Act]]'', married people rarely argued about when they separated. The issue was sometimes important for unmarried spouses because their ability to ask for spousal support depended on whether they started a court proceeding within one year of the date of separation. Under the new ''[[Family Law Act]]'', however, the date of separation has become very important for both kinds of spouses.

In general, the date of separation has the following effects:

*each spouse becomes entitled to a half-interest in all family property, whether that property is owned jointly or in the name of the other spouse only,
*the spouses each become responsible for one-half of family debts,
*any property a spouse gets after the date of separation is their own separate property, not family property,
*any debt a spouse incurs after the date of separation is that spouse's sole responsibility, and
*unmarried spouses have two years from the date of separation to start a claim in court for the division of family property, the sharing of family debt, or the payment of spousal support.

Spouses do not need to move out in order to be separated. All that's needed is for at least one spouse to reach the conclusion that the relationship is over, say so, and then begin behaving as if the relationship really is over. That usually means stopping sleeping together, stopping doing chores for each other, stopping going out together and so on. Section 3(4) of the ''Family Law Act'' talks about separating while continuing to live together:

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

This is helpful, because the old ''Family Relations Act'' didn't talk about separation in any detail. However, the phrase in section 3(4)(b), "the court may consider," suggests that this section isn't a complete list of things the court should consider when deciding when separation happened, and the cases about separation are still very helpful. Here are some of the highlights:

<blockquote>''[http://canlii.ca/t/gwfq9 Herman v Herman]'', Nova Scotia Supreme Court, 1969:</blockquote>

<blockquote><blockquote>"[A]s long as the spouses treat the parting or absence, be it long or short, as temporary and not permanent, the couple is not living separately even though physically it is living apart. In order to come within the clear meaning of the words 'separate and apart' in the statute, there must need be not only a physical absence one from the other, but also a destruction of the consortium vitae or as the act terms it, marriage breakdown."</blockquote></blockquote>

<blockquote>''[http://canlii.ca/t/g1493 Rowland v Rowland]'', Ontario Supreme Court, 1969:</blockquote>

<blockquote><blockquote>"[T]he words 'living separate' connote an attitude of mind in the spouses in which they regard themselves as withdrawn from each other."</blockquote></blockquote>

<blockquote>''[https://canlii.ca/t/j7cf0 McDorman v McDorman]'', New Brunswick Supreme Court, 1972:</blockquote>

<blockquote><blockquote>"While the mere living separate and apart of the spouses may not be conclusive of the fact that there has been a permanent breakdown of the marriage, especially in cases where the separation may have been brought about ... by enforced hospitalization ... all of the circumstances accompanying such separation must be considered in determining whether or not it has in fact led to a permanent marriage breakdown."</blockquote></blockquote>

<blockquote>''[http://canlii.ca/t/g161p Lachman v Lachman]'', Ontario Court of Appeal, 1970:</blockquote>

<blockquote><blockquote>"A marital relationship is broken down when one only of the spouses is without the intent for it to subsist."</blockquote></blockquote>

It's important to know that the Canada Revenue Agency has its own definition of separation, and requires people to have lived separate and apart for 90 days before it considers them to be separated. Once that 90-day period is over, the date of separation is the date the couple first began to live separate and apart.

===Separation and divorce===

Under section 8(1) of the ''[[Divorce Act]]'', there is only one reason, or ''ground'', why the court can make a divorce order: marriage breakdown. Under section 8(2), there are three ways to prove that a marriage has in fact broken down:

*the spouses have "lived separate and apart for at least one year,"
*one of the spouses has committed adultery, and
*one of the spouses has treated the other with such mental or physical cruelty that the spouses can't continue to live together.

Almost all claims for divorce in Canada are based on separation. It doesn't imply that one spouse did anything bad or was more responsible for the end of the relationship than the other spouse. Claims for divorce based on adultery or cruelty, on the other hand, do exactly that. As a result, if it winds up taking a year or more from the date of separation for the court to hear and decide a claim for divorce based on adultery or cruelty, the court will often grant the divorce on the basis of separation instead.

===Separation and children===

Under section 39(1) of the ''[[Family Law Act]]'', a parent is a guardian of their child while the parents live together, and the parents remain guardians after separation.

Separation can be extraordinarily difficult for children. In most registries of the Provincial Court, parents are required to attend the [www.gov.bc.ca/ParentingAfterSeparation Parenting After Separation Course]. This program, which is brief and free, teaches parents how to communicate with one another after separation and how to talk to their children about separation. It is an extremely useful course, and one that I think all separating parents should take. You can find more information about this program and other issues relating to children and separation in the chapter entitled [[Children and Parenting after Separation]], in the section [[Parenting after Separation]].

Separation is, of course, also difficult for the adults who are separating. You can find more information about the emotional dimensions of separation in the [[Separating Emotionally]] section of this chapter.

==Reconciliation==

For some people, separation is it. Their relationship is irrevocably over. For others, a period of separation is a time for renewing trust and rebuilding intimacy, and can be a healthy break that rejuvenates and revitalizes a relationship.

===The ''Divorce Act''===

The ''[[Divorce Act]]'' actually tries to discourage divorce, believe it or not. There are a few parts of the act that promote reconciliation to help married spouses stay together. Section 7.7 requires lawyers to talk to their clients about getting back together and says this:

<blockquote><tt>(1) Unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so, it is the duty of every legal adviser who undertakes to act on a spouse’s behalf in a divorce proceeding</tt></blockquote>
<blockquote><blockquote><tt>(a) to draw to the attention of the spouse the provisions of this Act that have as their object the reconciliation of spouses; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) to discuss with the spouse the possibility of the reconciliation of the spouses and to inform the spouse of the marriage counselling or guidance facilities known to the legal adviser that might be able to assist the spouses to achieve a reconciliation.</tt></blockquote></blockquote>

Under section 10, the court is required to pump the brakes on a divorce claim if it thinks reconciliation is a possibility:

<blockquote><tt>(2) 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 the reconciliation of the spouses, the court shall</tt></blockquote>
<blockquote><blockquote><tt>(a) adjourn the proceeding to afford the spouses an opportunity to achieve a reconciliation; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) with the consent of the spouses or in the discretion of the court, nominate</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) a person with experience or training in marriage counselling or guidance, or</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) in special circumstances, some other suitable person,</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><tt>to assist the spouses to achieve a reconciliation.</tt></blockquote></blockquote>

Other parts of the ''Divorce Act'' talk about the effect of trying to reconcile on the calculation of the one-year period that spouses must live apart to get a divorce on the basis of separation. Section 8(3) says that:

<blockquote><blockquote><tt>(b) A period during which spouses have lived separate and apart shall not be considered to have been interrupted or terminated</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) by reason only that either spouse has become incapable of forming or having an intention to continue to live separate and apart or of continuing to live separate and apart of the spouse's own volition, if it appears to the court that the separation would probably have continued if the spouse had not become so incapable, or</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) by reason only that the spouses have resumed cohabitation during a period of, or periods totalling, not more than ninety days with reconciliation as its primary purpose.</tt></blockquote></blockquote></blockquote>

In other words, a married couple may attempt to reconcile and can resume a cohabiting relationship for a maximum of 90 days without stopping the clock on separation as a reason for a divorce order. If a couple have lived together for more than 90 days since the first separation, the one-year clock will start again at the end of the last period in which they lived together as married spouses.

The 90 days needn't be consecutive in order to stop the clock. If you are claiming separation as the reason for your divorce, you cannot have resumed your relationship with your spouse for a ''total'' of 90 days within the one-year period of separation.

===The ''Family Law Act''===

Because the ''[[Family Law Act]]'' doesn't talk about divorce, it also doesn't talk about separation and attempts to reconcile. The one exception to this general rule has to do with the division of property and debt under Part 5 of the act. Section 83 says this:

<blockquote><tt>(1) For the purposes of this Part, spouses are not considered to have separated if, within one year after separation,</tt></blockquote>
<blockquote><blockquote><tt>(a) they begin to live together again and the primary purpose for doing so is to reconcile, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) they continue to live together for one or more periods, totalling at least 90 days. </tt></blockquote></blockquote>
<blockquote><tt>(2) Nothing in this Part affects a division of property under an agreement or order in a circumstance where, after the agreement or order was made, spouses live together and then separate again.</tt></blockquote>

These provisions are important because the date of separation is the date when new property and new debt stop being shared family property and family debt and start being each spouse's separate property and debt. The general effect of this section is to reset the date of separation when spouses have resumed living together, so that the date that family property and family debt stop accumulating is moved to the next time the spouses separate. However, if the spouses have made an agreement or got an order about the division of property between the date they first separated and the date they reconciled, that agreement or order is still good.

==Things to think about after separation==

Once you've separated, there a number of things you may want to do, change, or adjust to reflect your new relationship with your spouse. In general, you need to protect your privacy and safeguard your financial interests.

===Bank accounts and credit cards===

You should remove your name from any joint bank accounts or credit cards. If your spouse has signing authority or debiting authority on any of your accounts or credit cards, you should consider cancelling their authority.

Credit cards, loans, and lines of credit can often be capped by telling the bank to make the accounts ''deposit only''. This will mean that no more withdrawals can be made and the only transactions that can take place are deposits. You could also tell the bank to reduce the credit limit on any joint debts to the current balance on those accounts.

===Insurance policies, pensions and RRSPs===

You may wish to change the beneficiary of your insurance policies, pensions, and RRSP accounts if your spouse is the present beneficiary. If your spouse is the irrevocable beneficiary on such an account, your bank or insurance company may require your spouse's consent to remove their name as a beneficiary.

===Jointly-owned real estate===

Most spouses own real estate as “joint tenants." The really important aspect of this type of joint ownership is that if one of the joint owners dies, the surviving owners continue to own the entire property. This is different from the other type of joint ownership, a "tenancy in common." When a joint owner who is a tenant in common dies, their share of the property goes to their estate to be distributed according to their Will.

The ''[[Family Law Act]]'' says that on the date of separation each spouse is entitled to their share of the family property and responsible for their share of the family debt, and that the spouses take their the shares of the family property as ''tenants in common''. Of course, the Land Title and Survey Authority doesn't know you've separated. How your title is legally registered will not automatically change because of your separation.

There are reasons both for and against keeping the ownership of any jointly-owned property registered as joint tenants. You should get advice from a family law lawyer if you have jointly-owned property. You should see a real estate lawyer for help in changing the way that you own the real estate.

===Wills===

Spouses have certain rights under the ''[http://canlii.ca/t/8mhj Wills, Estates and Succession Act]'' that change following separation. Among other things, they stop being "spouses" for the parts of the act that talk about how someone's property is distributed if they die without a will and any gifts that are made to a spouse in a will are cancelled.

If you want to make a claim to property owned by your spouse's estate, or ask for child support or spousal support from your spouse's estate, you'll have to sue your spouse's estate under the ''[[Family Law Act]]''.

If you've separated but you still want your spouse to receive a gift in your Will, you must update your Will and specify that the gift or appointment should be made even though you've separated. You should see a wills and estates lawyer for help in making or changing a Will.

===Powers of attorney and other authorizations===

Unless a power of attorney was written to say otherwise, under the ''[http://canlii.ca/t/849l Power of Attorney Act]'', any power of attorney made by you and your spouse terminates on the date of your separation. However, if you want to be sure that your power of attorney has been terminated, you should:

#revoke the power of attorney in writing;
#deliver a copy of the revocation to all financial institutions where you have an account, and
#deliver a copy of the revocation to your spouse and to anybody else you have appointed as your attorney.

(Always keep records of your revocation, and how and when you delivered the revocation!) If you still want your spouse to act as your attorney after you separate, however, you must prepare a new power of attorney.

You should speak with a wills and estates lawyer if you wish to revoke an existing power of attorney or create a new one.

===Medical and dental insurance===

Normally, spouses and children are still covered by the other spouse's health insurance for a period of time after separation. Coverage for children usually ends once the children turn 19; coverage for married spouses almost always ends on divorce, but coverage for unmarried spouses may end when the parties stop living together. You should contact the people who administer your insurance plan for more information, as different plans have different rules about the eligibility of spouses as beneficiaries following separation.

For most people, maintaining spousal benefits costs little or nothing. If that's the case, consider leaving your spouse's coverage in place for as long as your plan allows; it'll appear rather mean-spirited if you cancel your spouse's benefits. Whatever you do, don't cancel the children's benefits!

===Finances and assets===

When you separate, make sure you take or make copies of the following items:

*your financial information, including your credit card statements, bank statements, RRSP and investment account statements, and so forth,
*your MSP card and your private medical insurance card, if you have one,
*your immigration or citizenship documents, if you are new to Canada, and
*your passport.

If you have children, consider taking or making copies of their birth certificates and passports too.

You may also wish to take a fair share — half or less than half — of common household property such as the children's clothing, the furniture, and your personal effects. However, it's really important that you proceed with caution. Yes, the odds are quite good that half the household property is yours, but the last thing you want to do after separation is to ramp up the tension with your ex any further. If you absolutely cannot live without the dish set, then take the dish set, but otherwise it may be best to leave the dish set at home. Nothing looks worse than the spouse who takes half the glasses, half the cutlery, half of a dining room suite, and half of the living room furniture.

Now, the following may seem a bit pessimistic, but you should also make a list of all of the property your spouse owns in their own name and of all the things you own jointly. A detailed list, including balances and account numbers and serial numbers, would be ideal, but even something as simple as a list of the financial and other institutions you and your spouse deal with will do. You can collect that information by writing down the names and addresses of the people who are sending your spouse statements; you don't even have to open the envelopes, which is something you should probably avoid in any event. This information could prove invaluable if you wind up in an argument about who owns what or about the extent of the family property and family debt.

===Personal privacy===

You should also change the passwords or access privileges for your:

*smartphone, smartwatch, tablets, computers and other devices,
*home wifi router and personal hotspots,
*home security and surveillance systems, especially security cameras, electronic doorbells and electronic locks,
*wifi-enabled appliances, fixtures and outlets,
*internet, cable and telecommunication service providers,
*email accounts, social media accounts and gaming accounts,
*subscription-based accounts, like Netflix, Spotify and Crave, and
*business accounts and services, including electronic banking, credit card and money transfer services, accounting and bookkeeping software, and communication and conferencing services.

You may also want to disable any location-sharing options or services that may be available for your smartphone, smartwatch and car, or be built-in to your social media accounts.

==Sex and new relationships after separation==

A lot of people have questions about the consequences of sex after separation. The discussion that follows is about sex with spouses, sex with people other than spouses, new relationships, and how a married person can find themself in an unmarried spousal relationship while still being married.

===Sex with spouses===

There are, generally speaking, no legal consequences to having sex with your spouse after you've separated. While it might cause some emotional difficulties — such as prolonging the amount of time it takes to recover from a relationship that's broken down — there's nothing legally wrong with having sex with your spouse. Most people would say that there's nothing morally wrong with it either.

Having sex with your spouse after separation will not have an impact on how the care of the children is managed, the amount of child support that is paid, whether spousal support should be paid, or how your property and debt should be divided. The court does not look into this sort of conduct in determining these issues.

However, two things that married spouses probably need to think about are these:

*'''Reconciliation:''' While simply having sex with your spouse won't count toward the 90-day period of reconciliation described above, it may if you begin to live with each other while you're doing it.
*'''Divorces based on adultery:''' If you are making a claim for a divorce based on your spouse's adultery, and you have sex with your spouse after you start the claim, you could be considered to have forgiven your spouse for the adulterous conduct. If you have forgiven your spouse, you will not be able to obtain a divorce based on their adultery. The same principle would probably also apply to divorce claims based on cruelty.

===Sex with other people===

Just like having sex with your spouse after you've separated, there's nothing wrong with having sex with someone ''else'' after you've separated. (In fact, that may be a much better idea than having sex with your ex.) Separation is partly defined as leaving a spouse with the intention of ending the relationship. Once you've separated, the court will consider the romantic, marriage-like aspect of the relationship to have concluded, and your obligation to remain faithful along with it. Married spouses aren't divorced until they get a court order, of course, but, after separation, the marital aspects of their relationships, and the attendant expectations of monogamy, will be considered to be at an end.

Having sex with someone else will not have an impact on how the care of the children should be managed, the amount of child support that is paid, whether spousal support should be paid, or how your property and debt should be divided. The court does not consider this sort of conduct in determining these issues.

====Is it adultery?====

Adultery is a problem only for married spouses. Technically speaking, it is in fact adultery to have sex with anyone other than your spouse for so long as you are married, even if you're separated, and you'll remain married until you have obtained an order for your divorce.

However, while having sex with someone else might constitute adultery, the court won't care whether you've committed adultery after you've separated or not. As far as the courts are concerned, if your relationship is over, go ahead and do what you like. No one apart from your ex or your in-laws is likely to criticize you for it.

====Can it be a ground of divorce?====

You cannot sue for divorce based on your own adultery. Now, if it's ''your spouse'' who has had sex with someone other than you following separation, you can use their adultery to ask for a divorce order as long as you haven't already claimed for divorce for another reason like separation.

===New relationships===

New romantic relationships are treated in exactly the same way as new sexual relationships: the courts will not normally be concerned with a new relationship unless your new partner is somehow a risk to the children.

Entering into a new relationship will not usually have an impact on how the care of the children should be managed or on how much child support should be paid, it may or may not have an impact on whether spousal support should be paid, and it will never change how your property and debt should be divided. The court does not look at this sort of conduct in determining these issues. Besides, most separated spouses find themselves in new relationships before they are legally divorced.

====What about the kids?====

As a general rule, you should be a bit careful about exposing the children to new relationships. It can be very confusing for kids to deal with the idea of their parents separating and then see a parent involved with some stranger who appears to be stepping into the shoes of the other parent.

You should take a lot of care in deciding how and when the children are introduced to your new relationships. In general, older children are more likely to understand new relationships, while younger children are more apt to be confused by the new relationship, especially when the new person tries to "parent" the children themselves. Whether we like it or not, society teaches children a very stereotypical view of family life: there are two parents, those parents love each other very much, and those parents are supposed to be together always. You should ask any new partner to be sensitive to these issues and to avoid presenting themselves to the children as an alternate parent.

====What if there are a lot of new relationships?====

Sometimes a newly separated spouse feels the need to go out and explore their options, so to speak, and will engage in a series of short-term relationships. This will be very difficult for children of all ages to deal with, if they're aware it's going on. It's one thing to have your parents' relationship break up, which is difficult enough to manage, but it's something else entirely to then be introduced to a parade of new people that a parent appears to be romantically involved with. This can lead to resentment and can encourage the children to align with the other parent.

In general, you shouldn't introduce your children to a new partner unless you are sure of the new relationship and expect to be in it for a good long while. If you're not sure about the longevity of the new relationship, be safe rather than sorry and don't introduce your children to your new partner until you're positive that the relationship will last.

If you're on the other side of the table and are worried about your ex's dating habits, you may want to ask for an order or an agreement requiring your ex to be involved in any new relationship for a minimum period of time — say five or six months — before they introduce the children to the new person. That being said, while it is entirely reasonable to be concerned about the impact of the new relationship on the children, some caution is warranted. Before you interfere with things, make sure that your concerns about the children are well-founded and are based on their interests rather than on your own emotional reaction to your ex's new relationship.

===New spousal relationships===

It's possible that a married person who is separated but still married can become someone else's spouse in an unmarried relationship. Not everyone is in a rush to get divorced once a marriage breaks down, and some people don't get around to getting a divorce until many years after separation.

If you are separated from your married spouse, you are still married and will continue to be married to that person until you get divorced. If you start a new romantic relationship while separated from your married spouse, your new partner can become your ''unmarried'' spouse if:

*you live with the new person in a "marriage-like relationship" for at least two years, or
*you live with the new person for less than two years but have a child with the person.

This carries some important consequences. If you find that you're married but in a new relationship that qualifies as a spousal relationship:

*you may have an obligation to pay child support for your new partner's children as a stepparent,
*you will have an obligation to support any children you and your new partner have together,
*you may have an obligation to pay spousal support to your new partner, should you separate, and
*you will have to share family property and family debt with your new partner, should you separate.

These obligations are, of course, in addition to whatever obligations you have to your married spouse and any children from your marriage.

==Resources and links==

===Legislation===

* ''[https://canlii.ca/t/8q3k Family Law Act]''
* ''[https://canlii.ca/t/551f9 Divorce Act]''
* ''[https://canlii.ca/t/840g Estate Administration Act]''
* ''[https://canlii.ca/t/84g0 Wills Variation Act]''
* ''[https://canlii.ca/t/8mhj Wills, Estates and Succession Act]''
* ''[https://canlii.ca/t/849l Power of Attorney Act]''

===Links===

*[https://www.clicklaw.bc.ca/resource/4639 Separation & Divorce] from the Legal Aid BC’s Family Law website
*[https://www.gov.bc.ca/ParentingAfterSeparation Parenting After Separation] course from the BC Ministry of Attorney General's Family Justice Services Division
*[https://bc.familieschange.ca/en Families Change] website from the Justice Education Society of BC and BC Ministry of Attorney General
*[https://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help Support and Resources for Dealing with Separation and Divorce] website from the BC Ministry of Attorney General

===Resources===

*[https://family.legalaid.bc.ca/resources/living-together-or-living-apart ''Living Together or Living Apart'']
*[https://dialalaw.peopleslawschool.ca/separation-agreements/ Separation and Separation Agreements] from Dial-a-Law by the People's Law School
*[https://dialalaw.peopleslawschool.ca/separation-deciding-who-will-move-out/ Deciding Who Will Move Out When You Separate] from Dial-a-Law by the People's Law School
*[https://pas-finances.familieschange.ca/ Parenting After Separation: Finances] online course from the Justice Education Society of BC
*[https://family.legalaid.bc.ca/resources/coping-separation-handbook ''Coping with Separation Handbook''] from Legal Aid BC
*[https://westcoastleaf.org/work/separation-agreements/ Separation Agreements: Your Rights and Options] from Legal Aid BC and West Coast LEAF
* [https://family.legalaid.bc.ca/separation-divorce/going-through-separation Going Through Separation] from Legal Aid BC
* [https://www.howtoseparate.ca/ How to Separate] online course from Justice Education Society
*[https://bit.ly/3AoGrfy "Ending Relationships" video] from John-Paul Boyd, KC

{{REVIEWED | reviewer = [[JP Boyd]], 26 March 2020}}

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[[Category:JP Boyd on Family Law]]

Behaviour, Boundaries and Privacy after Separation

2026-05-14T22:43:50Z

Nate Russell: Review via FJSD comments

Separating Emotionally

2026-05-14T22:43:22Z

Nate Russell: Review via FJSD comments

{{JP Boyd on Family Law TOC|expanded = separation}}{{JPBOFL Editor Badge
|ChapterEditors = [[Vanessa Van Sickle]]
}}
{{LSSbadge
| resourcetype = more information on
| link = [https://family.legalaid.bc.ca/resources/coping-separation-handbook Coping with Separation Handbook]
}}This section talks about the emotional dimensions of separation. Although the section [[Separation and the Law]] goes into the legal dimensions of separation in a lot of detail, the law and the courts only deal with a narrow slice of all the things that go on when a relationship ends and often ignore, because they must, many of the larger emotional and psychological issues. Even though the law doesn't talk about them, these issues sometimes have a huge influence on people's ability to work together after separation and often play an important role in determining how separating adults will go about resolving their legal problem, the length of time it takes to find that resolution, and whether they will be able to work together to solve future problems after that resolution. An understanding of the emotions involved in separation can help to reduce conflict and the cost of resolving the legal issues arising from separation.

This section applies to people in both married and unmarried relationships. It provides an introduction to the emotional aspects of separation, looks at the grieving process that accompanies the end of a long-term relationship, and discusses how the emotions involved in separation can impact on wrapping up the legal issues you may need to deal with.

==Introduction==

Ending a long-term relationship, whether married or unmarried, is not just a matter of packing your bags and walking out the front door. Separation stirs up incredibly powerful emotions that can take a surprisingly long time to work through; many counsellors liken these emotions to the grieving process that follows the death of a loved one. Chief among these emotions are love, anger, remorse, and sadness, and separating couples often find themselves experiencing these emotions in a very intense manner and cycling through them over and over.

These emotions often wind up clouding a person's judgment. You can find yourself doing things and saying things you never thought you would, or doing things you promised you'd never do again. (In fact, there's a rather cynical saying that you never really know someone until you break up with them.) You can find yourself looking at your partner and wondering who the hell this person really is, and how can they possibly be so different from the person you were with for so long. Unrecognized and unmanaged emotions can take over the emotional and legal processes of separation like a runaway train and take you down tracks you never anticipated.

The turbulent stew of emotions involved in separation are normal. Everyone experiences these emotions, although we each process them in our own way. From a lawyer's perspective, the key problems that need to be sorted out in the midst of these distorted and confused feelings include:

*settling the legal issues that crop up at the end of a relationship, about things like parenting, paying support and dividing property,
*getting sensible, reasonable and rational instructions from the client,
*separating anger from the negotiation or mediation process,
*separating anger from the arbitration or litigation process, and
*making sure that as little conflict as possible spills onto the children.

The vast majority of people can resolve their issues through negotiation or mediation, no matter how angry they are with one another. When people simply cannot separate the emotional baggage of separation from the resolution of the legal issues that come at the end of their relationship, arbitration or litigation may be inevitable.

A number of studies have shown that mediation and collaborative negotiation processes produce agreements that are better for both parties and better for their children, and last longer than the results of litigation. Parents tend to deal with each other, and with their children, with a lot less rancour following a mediated or collaborative resolution of their problems rather than a litigated resolution.

Litigation is sometimes necessary, even when people are capable of engaging in a less antagonistic dispute resolution process, including when:

*someone threatens to flee with a child,
*there's a history of family violence, or where family violence seems imminent, and
*someone is threatening to do something rash with family property.

However, when litigation is provoked by the emotions arising from the end of the relationship and isn't necessary to resolve an urgent issue, you can run into some serious and expensive problems you may not expect:

*One or both people may adopt entrenched and unreasonable positions about things like parenting after separation or support. It's never good when people adopt positions out of spite or vindictiveness.
*Emotional tensions will escalate, particularly when you see things you thought were buried in the past put into an affidavit. There will be backstabbing, accusations, recriminations, and a whole pile of wounded feelings.
*There is an increased chance that the children will be used to goad the other parent, although this can happen unintentionally.
*There is an increased risk that the children will become alienated or estranged from a parent, potentially with a permanent impact on the quality of the child's relationship with that parent.
*There will likely be an unusually large number of applications brought before and after trial. In cases like this, the litigation may not end until the children are independent adults.
*The litigation will cost an enormous amount of money. Some people have lost all they own paying for court fees, experts' fees and lawyers' fees.
*At the end of the day, the parties risk losing their ability to effectively communicate with each other. This can be a serious problem when there are children and the parties need to maintain a functioning relationship with each other as parents.

As a result of all of this, it can be critical to get a grip on your emotions — or to at least ''start'' getting a grip on your emotions — right out of the starting gate. While all of these feelings are common, natural, and entirely understandable, failing to recognize and manage them can lead to disastrous short- and long-term consequences to your emotional wellbeing, your relationships with your children, your children's emotional wellbeing, and your financial situation. If you are having trouble managing your feelings, see a counsellor as soon as possible... especially if you have children.

===Parenting after separation===

When people have children, they must accept that they'll remain a part of each other's lives until their children predecease them, whether they like it or not. They may no longer be partners, but they will always be parents. Parental relationships don't end along with romantic relationships.

It's impossible to emphasize enough how important it is to always put the children first. This may sound a bit trite, but putting the children ahead of yourself can be an extremely challenging task when you are also trying to cope with the intense emotions involved in separation. It can be tremendously difficult to refrain from badmouthing your former partner to the children, "forgetting" to drop them off on time, or using them as a weapon in your dispute.

The [https://parenting-after-separation.jibc.ca/ Parenting After Separation Program] is available throughout British Columbia. In my view, all couples with children can benefit from this program, no matter how well or poorly you think you and your former partner get along. The program is free and available online. It offers important advice about talking to your children about the separation, talking about your ex with the children, and talking with your ex in ways that avoid hurting and wounding each other and are focused on the children.

Information about parenting after separation, including contact information for the different agencies that offer the Parenting After Separation Program, is available in the [[Children and Parenting after Separation]] chapter, in the section [[Basic Principles of Parenting after Separation]]. As well, some very good studies about parenting after separation, the cost of high-conflict family law disputes, and other topics relating to children's wellbeing and outcomes after separation can be found on the website of the [https://www.justice.gc.ca/eng/fl-df/pub.html Department of Justice]. These papers are of a uniformly high quality and are well worth the read.

===A few notes from John-Paul Boyd===

I am not a psychologist, a psychiatrist, or a counsellor, nor are the other lawyers who help maintain this resource. As a result, this section should be read with a grain of salt as it's largely based on my observations of my clients' experiences, my understanding of the social science on separation, divorce and parenting, and a healthy dose of common sense.

There are a ton of resources available to help you cope with the separation process and keep the emotionally harmful aspects of that process away from your children. In addition to public programs, many private counsellors specialize in helping people work through the emotional turmoil that follows the end of a long-term relationship. Since counsellors are unregulated, anyone can hang out a shingle saying that they offer counselling services. What you should be looking for are people with the designations ''Registered Clinical Counsellor'' (RCC), ''Certified Canadian Counsellor'' (CCC) or ''Registered Psychologist'' (RPsych). Make sure that the person you're talking to is properly trained and licensed to provide quality help.

*The website [http://www.counsellingbc.com/ counsellingbc.com] offers a list of subscribing counsellors by area of practice.
*The [http://bc-counsellors.org/ BC Association of Clinical Counsellors] also maintains a referral list of its members.
*The [https://bcamft.bc.ca/ BC Association for Marriage and Family Therapy] has a referral list and helpful information about how to choose a counsellor.

==Separation and the grieving process==

Many counsellors liken the process of emotionally separating from a long-term relationship to the grieving process that happens when a loved one dies. In general, this process can be expected to take one to two years to complete. Dr. Elizabeth Kübler-Ross, in her book ''[http://www.worldcat.org/title/on-death-and-dying/oclc/4238 On Death and Dying]'', describes a five-stage model of grief, and how grief affects our ability to make decisions in each stage.

*'''Shock and denial:''' "This isn't happening to me!" An initial paralysis at hearing the bad news; trying to avoid the inevitable. People usually avoid making decisions or taking action at this point.
*'''Anger:''' "Why is this happening to me?" A frustrated outpouring of bottled-up emotions. Making decisions at this point is difficult because all of one's energy gets put into emotions rather than problem-solving, and the other partner is usually and often unfairly demonized.
*'''Dialogue and bargaining:''' "I promise I'll be a better person if..." Seeking in vain for a way out; seeking paths that might offer a solution and go back to the way things were. People at this stage are generally more willing to explore alternatives and discuss compromise.
*'''Depression and detachment:''' "I just don't care anymore." A final realization of the inevitable. It's hard to make reasonable decisions at this stage because of an overwhelming, fatalistic sense of resignation.
*'''Acceptance:''' "I'm ready for whatever comes." Finally finding the way forward. Decisions are much easier to make because people have often found new purpose, finally having begun to accept their loss.

Dr. Robert Emery agrees that the Kübler-Ross model applies to the end of long-term relationships, but he looks at grief in a slightly different way. In his book ''[http://www.worldcat.org/title/renegotiating-family-relationships-divorce-child-custody-and-mediation/oclc/30474579 Renegotiating Family Relationships]'', Dr. Emery describes the grieving process as a cycle of love, anger, and sadness, which gets repeated in varying degrees of intensity as a person works their way through the Kübler-Ross stages, from shock and denial at the end of the relationship through to acceptance of the end of the relationship.

In his excellent book ''[http://www.worldcat.org/title/truth-about-children-and-divorce-dealing-with-the-emotions-so-you-and-your-children-can-thrive/oclc/53485317 The Truth about Children and Divorce]'', Dr. Emery says this:

<blockquote>"Over time the intensity of the emotions diminishes and people usually find that the feelings begin to blend. Early on, the grief of divorce is experienced as an intense period of feeling nothing but love, followed by an equally intense period of feeling nothing but anger, followed by an equally intense period of feeling nothing but sadness. ... Over time, however, the intensity of the feelings begins to wane, and the cycles of each emotion begin to blur and run into the other two. This overlapping of emotion results in a realistic, less emotionally painful view of the divorce.</blockquote>
<blockquote>"When the blending does not occur, people get stuck in one emotional cycle or another. Someone who gets stuck on love may deny the reality of the breakup and pine for reconciliation; someone caught up in anger will act out of vindictiveness and a need for revenge; those mired in sadness will assume an exaggerated and unrealistic sense of responsibility for what has occurred."</blockquote>

For most people, the difficult thing is that knowing about the stages of divorce and the grief cycle does precious little to actually solve the problem. You can intellectually know what's going on, but knowing what's going on doesn't mean that the emotions go away; there's no magic light switch that you can flip to turn your emotions off. Knowing about the emotional roller coaster can, however, keep you aware of what may be motivating your reactions to your former partner and help you contain your emotions while you are negotiating the fallout from the end of that relationship.

It's important to remember that you and your former partner are probably not going to be at the same stage of the grieving process at the same time. One person can come to the conclusion the relationship is over long before separation and reach acceptance, while the other person is still in shock and denial that the relationship has ended at all. This is another factor that can aggravate feelings between you and your former partner.

Each person's goal at the end of the day is to find acceptance and be at peace with the fact that the relationship has ended. As Dr. Emery has observed, the opposite of love isn't hate; it's ''indifference''.

===A warning about allies===

All of us seek allies as we cope with the end of a relationship. It's human nature. Allies can be found in family members, friends, co-workers, or a new boyfriend or girlfriend. While we all appreciate the support that allies offer, allies also tend to polarize your feelings about your former partner, and sometimes encourage you to adopt an unreasonable and entrenched position when what you really need is more flexiblity.

Allies take sides. That's just what they do. Imagine going to your mom or dad in tears, complaining about your former partner. Your parent's job isn't to say "Well, really, Bob is a fine person and a great father, you really should lighten up a little and remember his good qualities." Their job is to comfort you, and that usually means saying something like "Yeah, you're right, I can't believe what a complete asshole Bob is being! Whatever did you see in him anyway?"

You shouldn't stop seeking reassurance and comfort from your allies, but you should try to be alert to the influence allies can have, even though they're not intentionally trying to worsen the problems you and your former partner are dealing with.

===A warning about parenting===

Some people best manage a breakup by walking out the door and never looking back, and doing their grieving alone. This just isn't possible where there is property to manage and divide, and it's especially not possible when people have children. You can't change your phone number, you can't stop answering the phone or replying to texts, and you can't refuse to see your former partner if you have children. You are still mom or dad, and you'll always be mom or dad and have a relationship with the other parent .

As a result, it's even more important that you properly manage your emotions after separation when you have children. You may be caught up in a whirlwind of anger and remorse at the present, but you have to think of the long-term effect of any rash behaviour. Do you want to be able to attend your child's graduation ceremony? Do you want to go to your child's wedding, or be there when their own child is born? How do you want your child to think of you in five years, or look back on your separation when they're young adults?

It is enormously difficult, but you simply must keep a lid on your emotions while you grieve. Dr. Emery offers these suggestions in ''The Truth about Children and Divorce'':

#First, draw clear boundaries around your relationship with your former partner. Let your partner know what you're prepared to talk to them about, what information you're prepared to share, and what if anything you're prepared to do with the children together.
#Second, use those boundaries to form a more business-like relationship with your former partner. The two of you may not be friends, but together you are engaged in the "business" of parenting your children. Keep your emotional distance from your former partner and focus on the work you must do together.
#Third, respect these new rules. Don't intrude past those boundaries; keep your discussions focused on parenting. It may be hard not to react when your former partner pushes your buttons, but you're best off following this old saying: if you don't have anything nice to say, don't say anything at all.

===A warning about children===

It can be extremely tempting to rely on your children for support and comfort as you go through the grieving process, especially children in their teens. One word: ''don't''. Whatever else you may do, ''don't do this''.

Children will be well aware when something's wrong. They will know when you're upset, when you're withdrawn, and when you're crying. Younger children will react with confusion and possibly fear. Older children who are more emotionally sophisticated will want to comfort you. There's nothing wrong with this either, but you do need to control your emotions.

When a child becomes too involved in soothing a parent, there are two main risks: you may develop an overly adult relationship with the child and burden the child with too much information about what's going on, information that is usually age-inappropriate; or, the child may turn into a caretaker, handling your emotions, picking up the housework that's falling behind, and assuming a parenting role towards any younger children.

According to Dr. Emery, "extreme emotional care taking is developmentally inappropriate and can have long-term consequences on children's mental health;" this view is shared by other researchers as well. Children who grow up too soon are robbed of their right to be children. In the long-term they may have trouble forming meaningful relationships, they may be emotionally distant, and they may be compulsively over-responsible.

==Resolving the issues==

There are lots of ways to resolve the issues that arise when a relationship ends, the most common of which are negotiation, mediation, arbitration, and litigation. Collaborative negotiation, which this resource also talks about, blends negotiation with a lot of the skills that are usually used in mediation. It's like negotiation on steriods.

Litigation is a contest between two parties, at the end of which there will be one winner and one loser. That's a gloss on how it all works, of course, but litigation is a fundamentally adversarial process, pitting one litigant against the other in a battle about credibility, reliability, and history. If the parties can't come to an agreement between themselves, a trial will eventually be held and a judge will impose a resolution on the parties. Arbitration is like litigation, except that it has fewer rules, it's faster, and you get to pick the person who will decide the legal issues. Arbitration is also an adversarial process.

With mediation and negotiation, it's the people at the centre of the dispute who come up with the resolution of their legal issues. Both processes are cooperative since settlement is only possible with everyone's agreement. The parties must commit themselves to calmly discussing their issues in the hopes of reaching a compromise that settles those issues, knowing that neither of them will get everything they want. There is no winner and no loser.

Unless there is a pressing and desperate urgency, in my opinion, negotiation, mediation, and arbitration are generally to be preferred over litigation. Curiously, this view is shared by a lot of other family law lawyers. The Canadian Research Institute for Law and the Family published [https://prism.ucalgary.ca/bitstream/handle/1880/107586/Cost_of_Dispute_Resolution_-_Mar_2018.pdf?sequence=3&isAllowed=y a study] in 2017 examining the views of 166 lawyers from across Canada on the use of mediation, collaborative negotiation, arbitration, and litigation in family law disputes. These lawyers said that mediation, collaborative negotiation, and arbitration were all faster, more efficient and cheaper than litigation, and that mediation, collaborative negotiation, and arbitration were all more likely to produce results that were in the interests of their clients, and in the interests of their clients' children, than litigation.

===Emotions and dispute resolution alternatives===

In ''The Truth about Children and Divorce'', Dr. Emery describes three general categories of divorcing couples: the ''angry divorce'', the ''distant divorce'', and the ''cooperative divorce''. While these categories aren't exactly exhaustive and are drawn from an American legal context, they are useful in discussing the impact of a highly emotional separation on the usefulness of negotiation, mediation, collaborative negotiation, arbitration and litigation.

====The "cooperative separation"====

People engaged in a cooperative separation have usually worked out a lot of their emotions and resolved much of their grief. They recognize their emotions for what they are, and avoid acting out of spite or tearfully reminiscing about the lost relationship. These people attempt to work things out between themselves, with or without help from lawyers, mediators and arbitrators.

For people involved in this sort of separation, negotiation may be all that's required to resolve their legal disputes. Mediation or collaborative negotiation may be necessary when there's a genuine difference of opinion. Cooperative separations usually result in a separation agreement or an order that they agree the court should make, called a ''consent order''. Often, whatever litigation occurs is limited to the court processes that are required to get a divorce order.

====The "distant separation"====

People involved in a distant separation are able to keep their conflict from their children, but are still dealing with feelings of hurt, resentment, anger, and pain. While there is plenty of intense anger, this emotion usually fades over time to dislike or simple indifference. These people have done a lot less work on their feelings, and their recollections of the relationship are characterized by bitterness rather than sadness.

These people are not friends with each other but know better than to become enemies, perhaps because of the children or past experiences with the court system. They deal with each other minimally, without a great deal of either warmth or demonstrated anger.

For people involved in this sort of separation, collaborative negotiation may be the best option. First, the process requires a fair bit of commitment, and that commitment can help encourage people to continue trying to find compromise even when emotions run high. Second, the process allows other people to be brought in to help, including counsellors who work with each party to process the difficult emotions resulting from the end of the relationship and from the dispute resolution process itself. However, when one or more issues simply cannot be resolved despite everyone's best efforts, arbitration can be used as a less-adversarial alternative to litigation.

====The "angry separation"====

This, of course, is the type of separation to be wary of. Separations like this involve an enormous amount of conflict. People in elevated levels of conflict are estimated to make up between 5 and 20% of people going to court to resolve family law problems, depending on which study you read. People in an angry separation have trouble letting go of their relationship, and feel intense pain and anger about both the relationship itself and its end. Their emotions are usually quite raw, as neither person will usually have done a great deal to manage their feelings.

These people have the hardest time dealing with each other and the legal issues they have to resolve, as they tend to focus on ''fault'' and ''blame'', and are often unable to stop themselves from lashing out hurtfully. Resolving the issues arising from the end of a long-term relationship is most difficult for these individuals, and they are the most likely to get involved in protracted, ugly litigation.

People in an angry separation, particularly those with children, generally need help dealing with the emotional fallout from the end of their relationship if they are to avoid court and learn to cope with each other and their feelings in the months and years to come.

Angry separations are the sort that lawyers most often wind up dealing with. The epic nature of the battles between people engaged in angry separation can barely be described. They usually and involve repeated trips to court, hiring expensive experts, and trials that often take longer than ten days to wrap up. The legal issues arising from separations like this are rarely concluded in less than three years, and, when there are children, can run for much, much longer. Making things worse, trials rarely provide a meaningful conclusion to the hostilities, as high-conflict people often find themselves back in court over and over again afterward.

Arbitration and litigation are the dispute resolution processes most likely to be used by people engaged in an angry separation. While the highly structured, adversarial nature of litigation will be most appealing to people who are more interested in vengeance and vindication, there are a number of reasons why arbitration is also well-suited to high-conflict disputes. First, arbitrators usually adopt a strong case management role and are heavily involved in processes before the hearing to keep everything on track and limit disputes. Second, the flexibility of arbitration allows creative procedures to be developed to handle evidence, hear from experts, and manage multiple expert opinions. Third, people can agree to hire their arbitrator for a term that extends beyond the end of the hearing, so that the same decision-maker will resolve new disagreements between the same parties on the same issues.

===Anger and its consequences===

By now, you will have guessed that the irrational thinking anger triggers can be the most significant roadblock to resolving family law issues in a reasonable, cooperative manner. Anger is an incredibly powerful emotion, characterized by Dr. Emery as "the toxic residue of unresolved grief."

Anger also does a lot of very odd things that not many people are aware of. If you're not careful, anger can slow the grieving process, entrench extreme and unreasonable positions, and delay the resolution of the legal issues following the end of a relationship.

*'''Anger avoids other emotions:''' Anger can be used to divert blame from yourself and avoid feelings of guilt. Anger is easily used as a shield to avoid accepting responsibility for, perhaps, an affair, being the one who announced the end of the relationship, not being an involved parent, or not being a particularly caring partner. It can also stop you from experiencing the other primary emotions involved in the grieving process, ''sadness'' and ''love''.
*'''Anger prolongs the relationship:''' Intense anger can also signal that you are not yet done with the relationship. Conflict can be a way of drawing a former partner closer, or maintaining a relationship with a former partner, by getting their attention and maintaining the emotional relationship. Underneath this kind of anger remains love and a continuing attachment to a former partner, as illogical as this sounds. Affection and anger are both very intense emotions, and are about as far away from the ''detachment'' and ''disinterest'' promised by the end of the grieving process as you can get.
*'''Anger hides fear:''' The end of a long-term relationship is difficult for everyone. The emotions involved in separation often include a lot of fear and anxiety about the future, usually fears that go right to the heart of our financial and emotional wellbeing. A lot of my clients worried about things like whether they'd be able to keep a roof over their heads, keep the kids enrolled in the same school, stay living in the same neighbourhood, or continue to be actively involved in their children's lives. Fears like these can trigger a fight-or-flight response, and anger is often evidence that you're more on the fight side of things than the flight side. The problem with anger is that fears and anxieties about issues like these are fundamentally reasonable. These issues need to be put on the table and talked about if they are to be resolved, not hidden behind anger's righteous bluster. They are the non-legal "interests" that mediators are trained to identify and address.
*'''Anger blinds:''' Anger can stop you from recognizing the positive steps your former partner is taking for what they are. It can lead you to assume that your partner is acting on false pretenses or pursuing a hidden agenda. This kind of anger breeds suspicion that is often unwarranted, often along the lines of "she wants to get a counsellor to help the kids through our separation; she must be trying to gather evidence against me!" Anger can also stop you from acknowledging your former partner's good qualities, especially around parenting issues, making it easier to hold onto an objectively unreasonable position.
*'''Anger is easy:''' For people who are emotionally bottled up, the emotions involved in the grieving process can be extremely challenging to process. Both sadness and love can be difficult to acknowledge and deal with, particularly when feeling those emotions is associated with a sense of vulnerability or a loss of face. As a result, anger can be the easiest emotion to deal with. It's certainly a lot less painful to experience.

Apart from slowing down the grieving process, anger inevitably delays the resolution of the legal issues that come from the end of a relationship. An enraged person isn't going to be able to negotiate since negotiation involves making concessions; an enraged person is mostly going to want to litigate. People in this state of mind make threats like "I'm going to take you for everything you've got," or "you'll never see the children again." They'll also tell their lawyers that "it doesn't matter what it costs or whether I'm likely to lose, it's the principle of the thing!"

Sometimes these threats come true, and the consequences to both parties can be enormous.

*Someone who takes an unreasonable position out of anger will almost certainly lose, but in carrying out their crusade they risk draining all of the family's assets to fund the litigation.
*Rage can permanently impair a couple's relationship with one another. Where there are no children, this may not be a problem, but where there are children this can be disastrous. If you are both going to remain meaningfully involved in your children's lives, you ''must'' be able to develop a civil relationship with each other!
*People can jump to ridiculous conclusions by expecting the worst from their former partner, leading to conflict after conflict, and court application after court application. Redness on the buttocks of a toddler becomes evidence of molestation, rather than simple diaper rash.
*Rage can trigger "affidavit wars," in which each person makes overly-inflated claims about the purported evils of the other. Minor events are exaggerated beyond all proportion. The costly "war" is triggered because the other party is put to the burden of addressing each bizarre claim. Making things worse, people are rarely able to refrain from making reciprocal claims about the misconduct of the other in retaliation. "You said I drink all the time? Actually, I only drink socially, but you smoked pot when you were pregnant." What's a judge to make of claims like these?
*Anger can strip you of your ability to see common sense and lead you to adopt positions that are objectively unreasonable and doomed to fail. In the process of failing, however, you can expect to spend a lot of money and further worsen your relationship with your former partner.

Rage, as Dr. Emery and others observe, is a symptom of unresolved grief. Whatever the cause, failing to move beyond anger can be poisonous to you, to your former partner, to your children, and to your relationship with your children. Some counselling, whether by yourself or with your former partner, can be critical in moving forward and out of anger.

===Choosing your lawyer===

Your choice of lawyer can play an important part in determining how your separation unfolds. Most lawyers are quite open to negotiation, mediation, collaborative negotiation and arbitration, and see them as the preferred ways of resolving family law problems. A few others see litigation as the only sensible means of resolving a dispute, particularly lawyers who have a reputation as being "bulldogs" or "sharks." Other lawyers tend not to take their duty to respond promptly to correspondence particularly seriously, which will delay things and may result in an unnecessarily large number of interim applications in the absence of responses. Still other lawyers see their duty in family law cases as militantly carrying out their clients' instructions, without supplying much in the way of options or sensible advice about the likely effect of those instructions.

The best family law lawyers give their clients a common-sense analysis of their situation, based on their expert knowledge of the law and the outcomes that are probable outcomes in the client's circumstances, and encourage their clients to take positions that are objectively reasonable. These lawyers will usually pursue settlement, both before and after litigation has started, and often see litigation as a last resort or as a way of dragging the other side to the settlement table. They are open to negotiation and mediation and other out-of-court processes, although they may prefer a results-oriented, evaluative mediation process rather than one in which the mediator is strictly neutral and expresses no opinion on the strengths and weaknesses of the parties' positions.

While some people, particularly those in angry separations, feel an almost irresistible urge to go out and hire the toughest lawyer around to exact revenge from their former partner, bulldog lawyers usually see only two options for resolving a legal dispute: a settlement on exactly the unreasonable, extortionate terms their client demands; or, a knock-down, drag-'em-out fight over the course of a twenty-day trial. These lawyers cost the most, and you can expect the litigation process to drag out for an ungodly amount of time, with absolutely no guarantee of a better result than what you would have had if you'd taken a different, less antagonistic approach.

Even if you are in an angry separation, step back and take a deep breath. Take several breaths. Remember that even though you may hate your former partner at present, you'll have to live with the consequences of a hasty decision to litigate, and the unreasonable positions you take now may haunt you well into the future. You might also lose your house to pay your lawyer's fees.

How do you find a reasonable lawyer? By reputation. Ask around; talk to friends who have had to deal with family lawyers before; ask for referrals from the other professionals in your life. You can also window-shop. You don't have to hire the first lawyer you have a consultation with; go ahead and set up meetings with a bunch of different lawyers until you find one you like, but remember that the best advice isn't necessarily the advice you like. You can find additional information about hiring a lawyer in the [[Understanding the Legal System for Family Law Matters]] chapter, in the section [[You and Your Lawyer]].

You should also know that many lawyers who litigate are also accredited family law mediators and arbitrators. If the lawyer you're speaking to is also a family law mediator or a family law arbitrator, you may want to enquire about the possibility of using their services to resolve your dispute before you say much more about your case. If you give the lawyer too much information about your situation, they may not be able to assume the impartial role demanded of mediators and arbitrators.

===Required reading===

*''[http://www.worldcat.org/title/renegotiating-family-relationships-divorce-child-custody-and-mediation/oclc/30474579 Renegotiating Family Relationships]'', by R.E. Emery
*''[http://www.worldcat.org/title/truth-about-children-and-divorce-dealing-with-the-emotions-so-you-and-your-children-can-thrive/oclc/53485317 The Truth about Children and Divorce]'', by R.E. Emery (Read this book!)
*''[http://www.worldcat.org/title/rebuilding-when-your-relationship-ends/oclc/5707044 Rebuilding: When Your Relationship Ends]'', by B. Fisher and R.E. Alberti
*''[http://www.worldcat.org/title/healing-hearts-helping-children-and-adults-recover-from-divorce/oclc/30739454 Healing Hearts: Helping Children and Adults Recover from Divorce]'', by E. Hickey and E. Dalton
*''[http://www.worldcat.org/title/helping-your-kids-cope-with-divorce-the-sandcastles-way/oclc/37300625 Helping your Kids Cope with Divorce the Sandcastles Way]'', by M.G. Neuman
*''[http://www.worldcat.org/title/joint-custody-with-a-jerk-raising-a-child-with-an-uncooperative-ex-a-hands-on-practical-guide-to-communicating-with-a-difficult-ex-spouse/oclc/682894488 Joint Custody with a Jerk: Raising your Child with an Uncooperative Ex]'', by J.A. Ross

==Resources and links==

===Legislation===

*''[https://canlii.ca/t/8q3k Family Law Act]''
*''[https://canlii.ca/t/551f9 Divorce act]''

===Links===

*[https://www.justice.gc.ca/eng/fl-df/divorce/index.html "Divorce and Separation"] from the Department of Justice
*[https://www.counsellingbc.com BC Counsellors by Practice Area]
*[https://bcacc.ca/counsellors/ BC Association of Clinical Counsellors] search tool for counsellors
*[https://camft.ca/ Canadian Association for Marriage and Family Therapy]
*[https://www.familieschange.ca/ Families Change] website from the Justice Education Society of BC
*[https://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help/mediators Mediators] from the website of the BC Ministry of Attorney General
*[https://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/family-law/parenting-apart Parenting Apart] from the website of the BC Ministry of Attorney General
*[https://justice.gc.ca/eng/fl-df/fact-fiches.html Parenting Arrangements After Separation or Divorce] from the website of the Department of Justice

===Resources===

*[https://family.legalaid.bc.ca/separation-divorce common questions on Separation & Divorce] from Legal Aid BC's Family Law website
*[https://family.legalaid.bc.ca/resources/living-together-or-living-apart ''Living Together or Living Apart'']
*[https://dialalaw.peopleslawschool.ca/custody-guardianship-parenting/ Guardianship, Parenting Arrangements, and Contact] from Dial-a-Law by the People's Law School
*[https://mediatebc.com/explore/cr-options/ Conflict Resolution Options] from Mediate BC Society
*[https://www.clicklaw.bc.ca/resources/dial-law-mediation-collaborative-negotiation-and-arbitration Mediation, Collaborative Negotiation, and Arbitration] from Dial-a-Law by the People's Law School
*[https://family.legalaid.bc.ca/resources/coping-separation-handbook ''Coping with Separation Handbook''] from Legal Aid BC
*[https://perma.cc/H7XM-2TVL "Successfully Parenting Apart: A Toolkit"] from the Canadian Bar Association
*[https://www.youtube.com/watch?v=p89vyvgWQ9s "An Inside Look at Family Mediation"] video from Legal Aid BC and CLEBC
*[https://canlii.ca/t/286m "An Evaluation of the Cost of Family Law Disputes: Measuring the Cost Implication of Various Dispute Resolution Methods"] from the Canadian Research Institute for Law and the Family
*[https://www.gov.bc.ca/ParentingAfterSeparation Parenting After Separation] course from the BC Ministry of Attorney General's Family Justice Services Division

{{REVIEWED | reviewer = [[JP Boyd]], April 7, 2021}}

{{JP Boyd on Family Law Navbox|type=chapters}}
[[Category:Marriage, Separation & Divorce]]
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[[Category:JP Boyd on Family Law]]

Access to Family Justice

2026-05-14T22:41:10Z

Nate Russell: Review via FJSD comments

{{JP Boyd on Family Law TOC|expanded = intro}}{{JPBOFL Editor Badge
|CoAuthor= [[JP Boyd]]
}}
{{LSSbadge
|resourcetype = a fact sheet on
|link = [http://www.familylaw.lss.bc.ca/resources/fact_sheets/expect_from_lawyer.php what to expect from a lawyer]
}}At some point in our high school civics class we learn that we live in a ''nomocracy'', which means ''a society governed by the rule of law''. Living in a society governed by the rule of law means a whole lot more than just having police who arrest shoplifters and drunk drivers. Among other things, it means we have laws that are:
* written,
* published,
* understandable, and
* apply equally to everyone.

The rule of law also means that we have an accessible justice system that resolves legal disputes — whether between corporations, between an individual and the state, or between people leaving a family relationship — quickly, efficiently, affordably, and fairly. Unfortunately, in many parts of Canada, aspects of "living in a society governed by the rule of law" are more of an ideal than a reality.

This section talks about:
* common barriers people face when accessing family justice in British Columbia,
* a short history of the access to family justice crisis in Canada,
* ways that the courts, government, non-profit organizations, the Law Society, lawyers, mediators, paralegals, law students, and other legal advocates have responded to the problem,
* future developments and ideas about other steps that might make family justice more accessible, and
* where you can find legal help for a family law matter.

==Barriers to justice==

Is access to justice just about access to lawyers and courts? No, and especially not for family law matters. For people going through separation and divorce, one of the first barriers to confront is the misguided perception that court is where they need to go, or where they have to go. Popular media would have us believe that lawyers arguing before a judge is somehow the proper way to settle relationship breakdowns. That's wrong. The fact is, unless family violence is a factor or urgent intervention is needed to protect children, people, or property, most families don't need the court's help to fairly resolve their separation.

What people do need is accurate information about legal rights — their own rights, the other person's rights, and their children's rights — finances, and the risks and benefits of the choices they want to make. This information can empower people to resolve their legal issues on their own, and make appropriate and acceptable compromises as necessary. People then need certainty that the decisions they've made resolving their issues will be respected, followed, and enforced if necessary. Many efficient, sensible, and effective alternatives to court exist that can meet these core needs. And many of them are less costly, less stressful, and less time-consuming than going to court. Court is generally only better for highly contentious family law problems.

''JP Boyd on Family Law'' is filled with chapters designed to reduce the barrier to justice that arises from our perception that court is the only or the best option:
* [[Resolving Family Law Problems out of Court]], includes sections about non-court processes and the legal professionals who provide them, such as [[Collaborative Negotiation]], [[Family Law Mediation]], [[Family Law Arbitration]], and [[Parenting Coordination]], and
* [[Family Law Agreements]], provides information on how people can settle their own ongoing or future disputes with minimal involvement by lawyers or courts.

There are other barriers to family justice as well, of course. The law is complex, often hard to find and often hard to understand. The rules that govern the court system, and the forms the rules require, are also complicated. (These are things ''JP Boyd on Family Law'' tries to address as well.) If you decide that you'd like to hire a lawyer to help guide you through the law and the rules, lawyers' fees can be very expensive and are sometimes out of reach. Even if you can afford a lawyer, there may not be a lawyer near you who specializes in family law.

===Cost barriers===
For those who do end up in court, the stakes can be high, the process can feel intimidating, and having a lawyer by your side can feel like a priority. The cost of this can be a significant barrier, however. Based on a [https://www.canadianlawyermag.com/news/features/2021-legal-fees-survey-results/362970 2021 legal fees survey], British Columbians can expect to pay on average more than $6,000 per day for a lawyer's time in trial. Many people simply cannot afford to pay for full legal representation.

You might [https://legalaid.bc.ca/legal_aid/howToApply apply to Legal Aid BC] to see if you qualify for free legal representation, but finite public funding for these services is another barrier. Universal legal aid is not a reality in BC. You probably won't qualify for help, unless your annual income is below the poverty line and your legal problem is one of the few problems legal aid will help with. Even if you do qualify, you won't get a legal aid lawyer to help you with all of your case, just some of it, and only for a limited amount of time.

Apart from legal aid lawyers, Legal Aid BC also runs several services to connect people to [https://legalaid.bc.ca/legal_aid/familyLegalAdvice family law legal advice]. Although these services are even more limited in terms of the number of hours of advice one can get, and while most are still for low income individuals, you may qualify for these even if you don't qualify for a legal aid lawyer. These programs include:
* ''Family Duty Counsel'',
* ''Family Advice Lawyers'', and
* ''FamilyLawLINE''

===Service confusion barriers===
There is a vast array of legal information resources, legal clinics, support organizations, online tools and guides, and lower-cost options for hiring legal professionals. But what are they? Where and when do they operate? Whom do they help? The legal assistance landscape is badly fragmented. The relative obscurity of some of these services, geographical limitations for certain services, confusion about eligibility criteria, the lack of an integrated referral process, and the exhaustion many experience from having to retell one's story again and again to different intake workers, all raise barriers to accessing justice.

Websites like [https://www.clicklaw.bc.ca Clicklaw], and services like [https://www.povnet.org/find-an-advocate PovNet's Find an Advocate Tool] can help people sort through the confusion, and reveal options like [https://womenslegalcentre.ca Rise Women’s Legal Centre], and other advocates and clinics who can help in family law matters.

===Time barriers===
It's not unusual to have to represent oneself in court. The rates of people without lawyers are as high as 80% in some courts. But being in that position means having to learn about the law and court processes. The laws of British Columbia and Canada are published in print and online, and can be found through the provincial government's [https://www.bclaws.gov.bc.ca/ BC Laws website], from the Canadian [https://laws-lois.justice.gc.ca/eng/acts/ Department of Justice], or, even better, through the awesome website provided by the [https://canlii.org Canadian Legal Information Institute]. Courthouse Libraries BC also operates library branches in courthouses throughout the province, and the librarians who work there are skilled at helping members of the public locate legislation and other forms of legal information.

This wide availability of legal information is a good thing, but it takes time to educate yourself. Did you do a poor job filling out a legal form because you couldn't make the time to research how to do it well? Did you get a bad outcome as a result? You may have non-negotiable time commitments like kids, a dependent relative, a critical healthcare appointment, or a job that you cannot afford to lose. It takes time to be an informed self-represented litigant, and people sometimes resign themselves to unfair outcomes because they don't have the time to do anything else. The time needed to self-educate and digest information is one of the biggest barriers to justice.

===Complexity barriers===
While public legal information can help explain court procedures, case law and legislation, ultimately the primary materials that must be understood are the legal authorities. Unfortunately, statutes and reasons for judgement are not written for the average person; they're written by lawyers (or by judges who used to be lawyers) for lawyers. For many, the complexity of intricate court rules and the dense legal language in statutes and case law leads to confusion and misunderstanding. The complexity of the law undermines people's ability to understand it, and this complexity is another barrier to justice.

Some of the complexity can be minimized by trustworthy plain language resources that are written for the public. Going to the [https://www.clicklaw.bc.ca Clicklaw website] is a good place to start. That website is a clearing house of reliable public legal education and information about family law in British Columbia. There's also:
*Legal Aid BC's [https://family.legalaid.bc.ca/ Family Law website],
*the Justice Education Society's [https://supremecourtbc.ca/family-law Online Help Guide for Supreme Court family law matters],
*the People's Law School's [https://dialalaw.peopleslawschool.ca/category/families/ Dial-A-Law website for families and children], and
*the Ministry of Attorney General's [https://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice Family Justice website].

If you go to court, you'll want to learn about the British Columbia Supreme Court or the Provincial Court, and their rules as well.

The Provincial Court, has relatively easy-to-understand rules that can be printed into a thick brochure, doesn't charge any filing fees, and has forms that are easy to fill out. The Provincial Court website has a [https://www.provincialcourt.bc.ca/GoingToCourt Going to Court webpage] with helpful materials for self-represented litigants.

If you need to divide property upon separation or get a divorce, you have to go to the Supreme Court. This court has rules the width of the Kelowna phone book, charges fees for almost every step of the process, and uses more complicated forms. The Supreme Court also has some [https://www.bccourts.ca/supreme_court/self-represented_litigants/ information for self-represented litigants on its website].

===Equity and inclusion barriers===
Barriers have a tendency to add up. Statistically speaking, being part of certain marginalized or vulnerable groups can — for a variety of reasons outside that person's direct control — increase the risk that they will experience a family law problem. And once they do, being a member of a marginalized or vulnerable group can mean they face further barriers trying to access to family justice. Disability, language, financial status, mental health capacity, geographical remoteness, gender, class, religion, sexual orientation, immigration status, and Indigenous status are all factors that can increase the prejudice individuals face, increase the complexity of the problems they face, limit their access to comprehensible information, and more. Not all of these barriers are unique to family justice, but they are most certainly present.

Efforts within the justice system to ease these barriers should focus on law reforms, supportive services, cultural competency in the legal profession, and more accessible, inclusive legal information.

The point is that there are a lot of barriers to accessing justice in this province — and everywhere else in Canada, really — which include common perceptions about court being the best place to solve problems and challenges accessing out-of-court-options, the complexity of the governing legislation and the common law, the complexity of the rules of court, the difficulty of navigating the free or low-cost options that do exist, the cumulative impacts of being marginalized, and, of course, the cost of accessing professionals when needed, whether that's a lawyer or a mediator, parenting coordinator, collaborative family law practitioner, or someone else altogether.

If we do live in a society governed by the rule of law, and I believe we do, it seems important to advocate for better access to justice for everyone, including the children of separation and divorce.

==An impressive pile of reports...==

Beginning in the 1960s and early 70s, lawyers and judges began to be concerned about the justice system, partly because litigation associated with the civil rights struggle revealed gross inequalities in people's ability to access justice as a result of their income, their sexual orientation, their gender, their religious inclinations, their ethnicity and the colour of their skin. People protested, wrote lots of important papers about access to justice, and lobbied government for change. As impotent as protests and lobbying can seem today, things did in fact change.

First, we saw the creation of provincial courts throughout the west. (The Provincial Court of British Columbia was founded in 1969.) Second, law schools across Canada began to develop student legal advice programs, through which law students provided legal services for free while learning more about the law and their future careers, including the [https://www.lslap.bc.ca Law Students' Legal Advice Program] at the University of British Columbia. We also saw human and civil rights legislation being introduced across Canada, including the [https://laws-lois.justice.gc.ca/eng/acts/C-12.3/FullText.html Canadian Bill of Rights] in 1960, the British Columbia ''Human Rights Code'' in 1973, and the ''Canadian Human Rights Act'' in 1977.

These were all important steps, but none of them was the silver bullet that solved the access to justice problem, and the problem continued. And got worse. In hindsight, it seems as if every 15 to 20 years after that point, concern about access to justice would build and build and then crest with a flurry of academic reports, government commissions and law society task forces. A few initiatives would be launched, some with lasting effect, like Canada's pro bono legal advice programs, and concerns about access to justice would again subside.

The most recent flurry happened in 2013. In that year, we had four very important national reports on the problems affecting Canadians' ability to access justice, and it seemed as though a moment of significant change was at hand. These papers are all very good and are all worth reading:

#Professor Julie Macfarlane's landmark study on the experiences of litigants without lawyers, "[https://perma.cc/PV9C-UE4X The National Self-Represented Litigants Project: Identifying and Meeting the Needs of Self-Represented Litigants]",
#the report of the Canadian Bar Association's Access to Justice Committee, "[https://perma.cc/7Q94-VTML Equal Justice: Balancing the Scales]",
#the final report of the Family Justice Working Group of the Canada-wide Action Committee on Access to Justice in Civil and Family Matters, "[https://perma.cc/4YKG-TQGF Meaningful Change for Family Justice: Beyond Wise Words]," which provided a particularly powerful call to action, and is really worthwhile reading, and
#the final summary report of the Action Committee on Access to Justice in Civil and Family Matters, "[https://perma.cc/4574-YC3D Access to Civil and Family Justice: A Roadmap for Change]."

The report of the national committee's Family Justice Working Group was especially important. The authors observed that:

<blockquote>"Canadians do not have adequate access to family justice. For many years now reports have been telling us that cost, delay, complexity and other barriers are making it impossible for many Canadians to exercise their legal rights. More recently, a growing body of research has begun to quantify the extent of unmet legal need in our communities and to describe the disquieting individual and social consequences of failing to respond adequately to family legal problems."</blockquote>

But, commenting on that "growing body of research," they further observed that the pile of reports which had already been generated on the access to justice problem were remarkably consistent in both their diagnosis of the problem and their recommendations for its cure:

<blockquote>"The [working group] is very mindful of the many family justice reform reports that precede this one. These reports are remarkably consistent in their diagnosis of the problems and their prescriptions for change. A key theme of all reports is the place of adversarial (rights-based) and non-adversarial (interest-based) dispute resolution processes in the family justice system and the still untapped potential for non-adversarial values and consensual dispute resolution processes to enhance access to the family justice system.</blockquote>
<blockquote>"Steps have been taken to respond to these reports across Canada and the Commonwealth and, in many respects, the practice of family law looks very different today than it did 25 years ago. Changes to court rules and forms have made courts more accessible and judges have become increasingly involved in case management and settlement facilitation. Legal information programs, subsidized mediation and post-separation parenting programs are widespread. The legal profession has adopted non-adversarial approaches to family law disputes and processes like mediation and collaborative law are now widely used across Canada.</blockquote>
<blockquote>"Despite these changes, reports and inquiries continue to call for further reform, saying that the changes to date, while welcome, are simply not enough. The reports continue to advocate for a more dramatic shift to non-adversarial approaches, calling for 'drastic change', a 'fundamental overhaul' and a 'paradigm shift'."</blockquote>

Now, more than sixty years after the access to justice revolution first began, the problem continues and persists. In fact, it is arguably worsening. The number of people without lawyers continues to climb in all areas of the court system, but especially in our provincial courts and especially in family law cases. The availability of out-of-court options for resolving family matters has increased, which is a positive development for families. However, court processes continue to be affected by under-resourcing and delays, which increases stress on families.

==...and some partial progress==

This is not, of course, to say that nothing is being done. After that flurry of reports in 2013, groups were established in many provinces to pursue the access to justice problem and potential solutions to the problem. Some of these efforts have floundered, while others have produced notable successes. We are lucky to live in British Columbia, which seems to be leading the country in experimenting with new programs and different initiatives. The changes that have been made in just the last ten or fifteen years in British Columbia are impressive and inspiring.

===Progress by the courts===
Here are a few of the steps the courts have taken:

*The Supreme Court deserves credit for implementing specific family rules and forms in 2010. While they remain more complex than those in Provincial Court, the Supreme Court's forms are now closer to a "fill in the blanks" approach. The Supreme Court also expanded its use of ''conferences'' (there are several versions of these, but they are all generally more informal opportunities for the parties to meet with a judge who can often work out a settlement to some of the issues in dispute, and in some cases full settlement). Anyone can schedule a judicial case conference at any time, and in 2023 the court introduced a new case planning conference to give parties greater access to a judge who can help streamline and simplify their litigation.
*For its part, the Provincial Court has been extraordinarily active, experimenting with an ongoing and vast redesign of its approach to handling family law cases. The ''early resolution'' process at some registries has involved a major redesign of the court experience. And new Provincial Court Family Rules and forms were launched in 2021. The new rules are focused on the experience of participants, not just the needs of the court, and aim to change how court appearances work to ensure that each court appearance has a more meaningful outcome. The court has embraced the recommendations of the Action Committee on Access to Justice in Civil and Family Matters. For those whose goal is to keep a family law resource like this wikibook up-to-date, it's been hard to keep up with the Provincial Court!
*Both courts deserve credit for their efforts towards ensuring transparency by explaining the specific legal wording common in family law orders that they issue, including the [https://bit.ly/46NqDzr Provincial Court's Family Law Orders Picklist] and the [https://www.bccourts.ca/supreme_court/practice_and_procedure/sc_family_law_orders.aspx Supreme Court's Family Law Orders Picklist].
*The courts and the judges that lead them are also working more in conjunction with other policy leaders to make high-level plans for change. An initiative called the [https://transformfamilyjusticebc.ca/about/ Transform the Family Justice System Collaborative], led by Access to Justice BC (itself a collaboration among leaders from basically all the province's justice-related organizations), was launched in 2022 with the aim of transforming the family justice system in BC by focusing it on achieving family well-being. This represents a shift to focus on better outcomes for children of separated parents.
*The pandemic all but forced the courts to embrace video conferencing and other remote methods for attendance. For many people, this is clearly an improvement for access to justice. Changes to both courts' rules and forms have also acknowledged that exchanging court materials by email is routine, and should be the default.

===Progress by the government===
Here are some of the steps the government in BC has taken:

*The introduction of Justice Access Centres and [https://bit.ly/4u5wM4C Family Justice Centres] has been very important. These centres are staffed by Family Justice Counsellors specially trained to help families with parenting arrangements, contact with children, guardianship, support issues, and ownership of companion animals (when family pets are involved). They can help parents resolve disagreements without going to court and provide short-term counselling, mediation, emergency and community referrals, along with other free services. There are 24 of these centres across the province, and virtual appointment options are available.
* In 2024, the Government of British Columbia [https://news.gov.bc.ca/releases/2024AG0010-000203 announced a $29 million expansion in legal aid for individuals experiencing family violence]. A multidisciplinary, trauma-informed family law clinic model will assist people fleeing family violence. Eligibility criteria will be broader, effective 1 April 2024. This change was planned with Legal Aid BC and the Centre for Family Equity to resolve constitutional challenges to secure more responsive legal supports for single mothers experiencing family violence.
*The new [https://bcfnjc.com/indigenous-justice-centres-in-british-columbia/ Indigenous Justice Centres] (IJCs) are the product of collaboration between the provincial government and the BC First Nations Justice Council. The plan is for 15 IJCs by the end of 2024, plus a Virtual Indigenous Justice Centre. This commitment to providing Indigenous families with accessible, culturally attuned legal assistance, supports the broader goal of fostering family well-being within Indigenous communities.
*Another noteworthy new service is the [https://justice.gov.bc.ca/apply-for-family-order/ Online FLA Assistant], which helps anyone apply for a Family Law Act order in Provincial Court. This is more than an information website. The Online FLA Assistant will ask questions and take information from self-represented litigants to assemble completed forms that can then be filed in the Provincial Court.
*Similar to the Online FLA Assistant, but for uncontested divorce applications, the Ministry of Attorney General's [https://justice.gov.bc.ca/divorce Online Divorce Assistant] lets people jointly apply for a divorce. It's free, takes in information through an online questionnaire, and then prepares forms that can be filed jointly by people seeking a divorce.
*Ongoing reforms to the ''[[Family Law Act]]'' in recent years encourage arbitration, clarify areas of the law that were confusing, like the [[Dividing Property and Debt in Family Law Matters|division of property]], and introduced new laws for dealing with pet ownership after separation.
*Before the pandemic, the provincial government had been planning changes to how the Family Maintenance Enforcement Program was managed. (FMEP is a free program has helped enforce child and spousal support orders since 1988.) A new agency was formed, called the BC Family Maintenance Agency, but the pandemic resulted in delays. In late September 2023, government announced that they are going ahead with the changes. It's clear a primary goal is to make the system easier to use online through apps and modern websites, with less paperwork, printing, and faxing.

===Progress by the legal profession and its regulator===
The Law Society of BC's Innovation Sandbox initiative aims to improve access to justice by improving access to legal advice and assistance from less conventional sources. The Law Society describes their "sandbox" as a "safe space" for people and organizations that are not otherwise authorized to offer legal services to experiment with new ways to do so that could benefit the public. It's a response to the fact that 85% of people in British Columbia who have a serious legal problem get no help from a lawyer, and often go to someone other than a lawyer for assistance. Basically, the regulator is allowing groups to experiment, so long as they make a proposal to the Law Society, without fear of the regulator coming down on them. For a regulatory system that's premised on protecting the public by ensuring lawyers maintain a monopoly over the practice of law, this is a significant step.

We have also seen family law lawyers and other family law professionals take on the access to justice issue by participating in a range of different initiatives:
* the [https://www.bccollaborativerostersociety.com/pro-bono-collaborative-family-law-project/about/ Pro Bono Collaborative Family Law Project] offers free collaborative lawyers for each party, plus other collaborative professionals as needed, and is for people who could not afford a collaborative team ordinarily,
* Access Pro Bono, an important organization where lawyers and legal professionals donate their time and advocacy, has assumed responsibility for or pioneered a number of innovative services, including
** a free online family mediation service for people of modest means, called the [https://www.accessprobono.ca/program/virtual-family-mediation-program Virtual Family Mediation Project],
** the [https://www.accessprobono.ca/our-programs/lawyer-referral-service Lawyer Referral Service], which connects lawyers and clients with a free 15-minute consultation, and
** the [https://everyonelegal.ca/ Everyone Legal Clinic], which is relatively new and offers affordable legal services, including transparent pricing for family law agreements, uncontested divorce applications, and dispute resolution assistance.
*Mediate BC offers https://www.mediatebc.com/learn/pro-bono-clinics online pro bono mediation clinics] where people can ask a Registered Roster Mediator questions about family law mediation, discuss specific circumstances with them, for free, and
* different groups of lawyers and mental health professionals deserve credit for their work in promoting a family law system that is kinder on children including,
** The [https://hearthechild.ca/ BC Hear the Child Society], which aims to give children the opportunity to share their views with the courts when their best interests are decided in the family justice system. It hosts a roster of lawyers who can prepare ''hear the child reports''.
** The [https://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society], which hosts a roster of qualified parenting coordinators, and promotes ''parenting coordination'' as a mechanism for dealing with issues in high-conflict relationships between parents.

Many more lawyers are now also willing to try to resolve cases using mediation, collaborative negotiation, and arbitration than ever before.

''Unbundling'' is something else lawyers are exploring, and a number of family law lawyers are offering ''Unbundled legal services'', or ''limited scope retainers'', as a part of their ordinary practice.

To work on an "unbundled" or "limited scope" basis means that, instead of the usual sort of retainer where a lawyer expects to handle all aspects of a file from start to finish, the lawyer will work with their client to identify the specific services they will offer while the client does the rest. The sort of legal services that are best suited to a limited scope approach include:

#drafting affidavits and applications,
#preparing legal opinions,
#completing court forms, including financial statements,
#evaluating or drafting settlement proposals, and
#coaching the client through the litigation process.

A directory of lawyers offering unbundled legal services is available online at [https://unbundlinglaw.peopleslawschool.ca unbundlinglaw.peopleslawschool.ca].

===Progress by libraries===
[https://www.courthouselibrary.ca/ Courthouse Libraries BC] has produced this wikibook since 2013 when ''JP Boyd on Family Law'' first appeared, not just online, but in a full-size book, printed and distributed to public libraries and courthouse libraries and across the province. CLBC operates many access to justice services:
* each of its 30 branches, in courthouses throughout the province, are open to the public whenever they are staffed and provide access to:
** law librarians who can answer questions about legal reference and finding legal information in person, by email, or by telephone,
** a vast collection of printed legal information, including law books, journals, practice manuals, historical and contemporary print volumes of legislation and regulation, and legislative debates,
** [https://www.courthouselibrary.ca/how-we-can-help/legislation-case-law/subscription-databases special databases], accessible within the branches, used for legal research, and
** a website with many custom and helpful tools specific to British Columbia law, including guides and the ''[https://www.courthouselibrary.ca/how-we-can-help/our-legal-knowledge-base Our Legal Knowledge Base]'',
* the Clicklaw website, which is referenced throughout this wikibook and provides an authoritative listing of vetted sources for legal information by topic, and
* LawMatters, a program that supports people's access to legal information in public libraries throughout hundreds of communities in the province by training public librarians on how to make better legal referrals and handle legal reference questions, providing grants to support public libraries' collections of legal information, and finding ways to turn public libraries into places people can come to for more support with their legal questions — when you hold a print copy of ''JP Boyd on Family Law'' in your hand, it's because the LawMatters program funded its printing!

CLBC is a very old organization, and its work supporting self-represented litigants and members of the public seeking legal information has grown significantly over the years. CLBC's librarians routinely help members of the public find and get copies of information from law books and databases that are designed and written primarily for lawyers. These include important books published by the Continuing Legal Education Society of British Columbia that nearly every family lawyer in the province relies upon to practice family law:
* ''British Columbia Family Practice Manual'',
* ''Family Law Agreements: Annotated Precedents'',
* ''Family Law Deskbook'', and
* ''Family Law Sourcebook for British Columbia''

CLBC can also help people find relevant course materials from CLEBC on specific topics within family law, as well as precedents and how to tips on court procedure from other legal publishers.

===Progress by other groups===

Law students, paralegals, and others also deserve major credit for their efforts to improve access to family justice in British Columbia.

[https://www.legalformsbc.ca Amicus Curiae] is a volunteer-driven program that offers workshops on filling forms and completing paperwork for court. It involves paralegals, new lawyers, law students, law librarians and accountants, all supervised by lawyers.

The [https://www.lslap.bc.ca Law Students Legal Advice Program] at UBC's law school has been providing assistance through supervised law student clinicians for decades, while the [https://thelawcentre.ca Law Centre] clinic at the University of Victoria, and the [https://www.tru.ca/law/students/outreach/legal-clinic.html Community Legal Clinic] at Thompson Rivers University do the same. The degree of family law assistance may be limited, but some assistance is offered.

There are many other organizations and services I haven't mentioned, of course. Go to the [https://www.clicklaw.bc.ca/ Clicklaw website] to explore other options for help with family law.

==What else needs to be done?==

The practice of family law in British Columbia is, from a lawyer's point of view, very different today than it was just twenty years ago. As a young lawyer just starting out, I remember treating every new case that came in the door as if it was going to be resolved at trial. That was just the assumption we made then. We didn't think about mediation or arbitration, and collaborative negotiation had yet to be introduced in the province. Parenting coordination hadn't been established, and unbundled legal services were just starting to be discussed.

Very few lawyers make the same assumption today. Most of us assess new cases for certain factors that might make litigation inevitable — including the presence of family violence, the need for orders protecting people or orders protecting property, and applications to move away with children — and our first inclination is often to pick up the phone and call the lawyer on the other side to talk about what's going on rather than filing a claim in court. We have more tools to settle cases these days than ever before, and the fact that less than 5% of family law court cases are resolved by trial seems to reflect the growth of these options.

The bigger problems — the cost of legal services, the complexity of the legislation and case law, the difficult and adversarial nature of court processes, the chronic delays affecting the court system, and our failure to properly fund alternatives to court — have barely been touched, and I'm not sure that any government is really prepared to tackle these problems head-on.

British Columbians deserve a system that is focused on the short- and long-term wellbeing of children, that is built to minimize the impact of parental conflict on children, that provides the social and economic supports families in crisis need, that includes social and psychological services as well as legal services, and that is fundamentally designed to promote the future functioning of families living apart. We deserve a system in which court is the last resort and collaborative negotiation is the first, and a system in which people don't necessarily have to hire a lawyer to move forward with their lives.

If the justice system is going to change, it's going to change because a lot of people realize that business-as-usual hasn't worked for the last sixty years and that the status quo is not only unacceptable, it's harmful.

If this wikibook is being used to help you through a family law matter, and if you learn things through your process that should be heard by law and policy makers, please consider writing to your MP and your MLA, the federal Minister of Justice, and the provincial Attorney General. Write letters to your local media, and press for continuing coverage of justice system issues rather than the usual one-and-done article published when something scandalous happens. Get on your local Provincial Court family law committee. Run for election. Become a lawyer, a paralegal, or a mediator. Start community groups and Facebook groups. Volunteer with local advocacy centres, and if there isn't one, create one.

Change can happen, but it's not going to happen until enough people begin to put pressure on the system and demand change. What we've got is simply not good enough. Help make a difference!

==Resources and links==
In ''JP Boyd on Family Law,'' we emphasize the importance of accessible legal information and resources to support self-represented litigants and those seeking a deeper understanding of family law. This section reflects our commitment to providing comprehensive and reliable resources. We categorize these resources to help you easily navigate through them, prioritizing those that offer direct support or valuable information to self-represented litigants.

===Legal representation, advice, or support===
* [https://legalaid.bc.ca/legal_aid/howToApply Apply to Legal Aid BC] - Check eligibility for free legal representation.
* [https://legalaid.bc.ca/services/family-law-legal-advice Legal Aid BC's family law legal advice offerings] - Family Duty Counsel, Family Advice Lawyers, and Family LawLINE.
* [www.gov.bc.ca/FamilyJusticeLocations Family Justice Centres and Justice Access Centres] - Offering mediation, counselling, and referral services from Family Justice Counsellors.
* [https://www.accessprobono.ca/program/virtual-family-mediation-program Virtual Family Mediation Project] - Free online family mediation service.
* [https://www.bccollaborativerostersociety.com/pro-bono-collaborative-family-law-project/about/ Pro Bono Collaborative Family Law Project] - Free collaborative law services for eligible individuals.
* [https://www.accessprobono.ca/our-programs/lawyer-referral-service Lawyer Referral Service] - Connects lawyers and clients for a free initial consultation.
* [https://everyonelegal.ca/ Everyone Legal Clinic] - Affordable legal services with transparent pricing.
* [https://www.unbundlinglaw.ca Directory of lawyers offering unbundled legal services] - Find lawyers for limited scope legal assistance.
* [https://womenslegalcentre.ca Rise Women’s Legal Centre] - Pro bono community legal clinic and teaching facility serving women and gender diverse people.
* [https://www.povnet.org/find-an-advocate PovNet's Find an Advocate Tool] - Search online for other advocates and clinics who can help in family law matters.
* [https://www.lslap.bc.ca Law Students' Legal Advice Program] - Legal services provided by law students.
* [https://www.legalformsbc.ca Amicus Curiae] - Workshops on court form completion and paperwork, but no legal advice.

===Educational and informational resources===
* [https://www.clicklaw.bc.ca Clicklaw] - Clearing house of public legal education and information in BC.
* [https://family.legalaid.bc.ca/ Legal Aid BC's Family Law website] - An essential resource for information and resources on family law.
* [https://supremecourtbc.ca/family-law Online Help Guide for Supreme Court family law matters] by Justice Education Society - Guidance for navigating Supreme Court family law matters.
* [https://dialalaw.peopleslawschool.ca/category/families/ Dial-A-Law website for families and children] by People's Law School - Plain language legal information on family law topics.
* [https://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice BC Ministry of Attorney General's Family Justice website] - More essential information about how family law works in BC.

===Court information and forms support===
* [https://provincialcourt.bc.ca/navigating-court-case/family Navigating a Family Court Case webpage] by BC Provincial Court - Resources for self-represented litigants in Provincial Court.
* [https://www.bccourts.ca/supreme_court/self-represented_litigants/ BC Supreme Court's information for self-represented litigants] - Guidance for navigating the BC Supreme Court.
* [https://canlii.ca/t/tcmq Family Law Handbook for Self-Represented Litigants] - A 175-page guide commissioned by the Canadian Judicial Council and prepared by the Justice Education Society.
* [https://justice.gov.bc.ca/apply-for-family-order/ Online FLA Assistant] - A tool for applying for Family Law Act orders in the BC Provincial Court, assisting with the completion of necessary forms.
* [https://justice.gov.bc.ca/divorce Online Divorce Assistant] - Facilitates the process of filing for an uncontested divorce in BC, allowing joint applicants to prepare required forms.
* [https://bit.ly/46NqDzr Provincial Court's Family Law Orders Picklist] - A comprehensive list of standardized terms for common orders in family law cases.
* [https://www.bccourts.ca/supreme_court/practice_and_procedure/sc_family_law_orders.aspx Supreme Court's Family Law Orders Picklist] - Standard terms for most of the usual orders made in family cases.

===Primary legislation and caselaw sources===
* [https://canlii.org Canadian Legal Information Institute] - Comprehensive database of Canadian statutes and case law.
* [https://www.bclaws.gov.bc.ca/ BC Laws website] - Official source for BC statutes and regulations.
* [https://laws-lois.justice.gc.ca/eng/acts/ Department of Justice Canada] - Access to federal statutes and regulations.

===Libraries and publishers===
* [https://www.courthouselibrary.ca/ Courthouse Libraries BC (CLBC)] - Offers access to a wide range of legal information resources, including specialized databases and knowledgeable law librarians.
* [https://www.courthouselibrary.ca/how-we-can-help/legislation-case-law/subscription-databases CLBC Subscription Databases] - Specialized legal research databases accessible within CLBC branches.
* [https://www.courthouselibrary.ca/how-we-can-help/our-legal-knowledge-base CLBC's Legal Knowledge Base].
* [https://www.cle.bc.ca/ The Continuing Legal Education Society of British Columbia (CLEBC)] - Publisher of essential legal resources for family law practitioners in BC (available through CLBC):
**''British Columbia Family Practice Manual'' - A comprehensive resource for family law issues in BC.
**''Family Law Agreements: Annotated Precedents'' - Provides precedents for various family law agreements.
**''Family Law Deskbook'' - A quick-reference tool for family law practitioners.
**''Family Law Sourcebook for British Columbia'' - An essential guide to family law legislation and case law.
* [https://www.canlii.org/en/commentary/ CanLII Commentaries] - Free access to secondary law materials, from law reviews and treatises to reports and articles, from the same website that aggregates Canadian legislation and caselaw.

===Progressive initiatives led by legal professionals===
* [https://www.mediatebc.com/learn/pro-bono-clinics Mediate BC] - Offers online pro bono mediation workshops to discuss specific circumstances with Registered Roster Mediators (RRMs) specializing in family law mediation.
* [https://hearthechild.ca/ BC Hear the Child Society] - Provides children a voice in the family justice system and hosts a roster of lawyers who prepare ''hear the child reports''.
* [https://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society] - Features a roster of qualified parenting coordinators for handling high-conflict parental relationships and promoting children's well-being.

===Collaborative initiatives and reports===
* [https://perma.cc/PV9C-UE4X The National Self-Represented Litigants Project: Identifying and Meeting the Needs of Self-Represented Litigants] by Professor Julie Macfarlane - A landmark study on the experiences of self-represented litigants.
* [https://perma.cc/7Q94-VTML Equal Justice: Balancing the Scales] - A report by the Canadian Bar Association’s Access to Justice Committee.
* [https://perma.cc/4YKG-TQGF Meaningful Change for Family Justice: Beyond Wise Words] - The final report of the Family Justice Working Group of the Action Committee on Access to Justice in Civil and Family Matters.
* [https://perma.cc/4574-YC3D Access to Civil and Family Justice: A Roadmap for Change] - A summary report by the Action Committee on Access to Justice in Civil and Family Matters.
* [https://transformfamilyjusticebc.ca/about/ Transform the Family Justice System (TFJS) Collaborative] - Initiative to transform the family justice system in BC.

{{REVIEWED | reviewer = [[JP Boyd]], 28 November 2023}}

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

{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

The Court System for Family Matters

2026-05-14T22:29:44Z

Nate Russell: Review via FJSD comments

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bob Mostar]] and [[Mark Norton]]
|CoAuthor = [[Kendra Marks]] and [[Iris Turaglio]]
}}
There are three levels of court in British Columbia: the Provincial Court, the Supreme Court, and the Court of Appeal. Above all of these courts is the Supreme Court of Canada, the highest court in Canada. The Provincial Court and the Supreme Court are trial courts. They listen to witnesses and hear arguments and make decisions about the legal claims people bring before them. The Court of Appeal only hears appeals. It listens to arguments about why a trial judge may have made the wrong decision about a claim, and may confirm, change or cancel a trial judge's decision. The Supreme Court also hears appeals of decisions made by a Provincial Court judge.

The Provincial Court deals with a limited variety of issues and claims. The Supreme Court and the Court of Appeal are our province's superior courts and can deal with all issues and all claims; their jurisdiction is limited only by their rules and by the Constitution.

This section provides an introduction to the Provincial Court, the Supreme Court, and the Court of Appeal.

==Introduction==

Our court system has its origins hundreds of years ago in England, when the Court of Common Pleas was established by Henry II in the late 12th Century. Before this, people would come to the king or queen on special days set aside for the hearing of "petitions," legal complaints made by someone, the ''petitioner'', against someone else, the ''respondent''. If the petition was heard, and not all were, the king or queen would make a decision that the parties were obliged to accept, whether they liked it or not, putting an end to the complaint.

As the rule of law became more and more important in maintaining a civil society and the law itself became more and more complicated, kings and queens began to farm out the job of hearing petitions to people specially appointed to hear them. This was the origin of the Court of Common Pleas, and it marked the start of the English common law as the specially-appointed people, ''judges'', were sent out to tour the country and resolve legal problems on behalf of the king or queen. Eventually, the monarchy got out of the business altogether and left the hearing of petitions entirely to the judges. The English court system became more complex as time went on, and different types of courts, like the Court of Equity, the Court of the Exchequer and the Court of Wards and Liveries, were eventually set up to deal with different kinds of problems.

British Columbia's court system has its roots in English law, which was formally adopted for the mainland Colony of British Columbia on 19 November 1858 by Governor Sir James Douglas, as shown below. Although the colonies of Vancouver Island and British Columbia did not merge until 1866, and ultimately BC joined Confederation in 1871, this early adoption of English law helped shape the legal framework we still rely on today.

[[Image:1858_Proclamation_Gov_Douglas.png|frameless|center|400px|1858 Proclamation of Governor Sir James Douglas]]

The fundamental purpose of the courts today is the same as it was then: to resolve people's legal disputes. We still use a lot of the same terms that were used hundreds of years ago — there's even a court form called a Petition — although we have merged the different types of courts into a single system with the authority to decide every sort of legal problem.

Our courts deal with all manner of disputes, from the government's complaint that someone has committed a crime, to a property owner's complaint that someone has trespassed on their property, to an employee's complaint that they have been wrongfully dismissed, to a driver's complaint that someone else was responsible for an accident and should pay for the damage it caused. The job of the judge is to hear each case and decide what an appropriate and fair solution should be, in an impartial and unbiased manner, free from any interference by the government or influence by the parties.

===The courts of British Columbia===

Today we have three levels of court in British Columbia:

#the Provincial Court of British Columbia,
#the Supreme Court of British Columbia, and
#the Court of Appeal for British Columbia.

Each successive level of court is "superior" to the other, with the Provincial Court being at the bottom of the pile and the Court of Appeal being at the top. Above our Court of Appeal is the Supreme Court of Canada, which deals with cases from all of the courts of appeal across Canada.

The Provincial Court and the Supreme Court of British Columbia are where the bulk of family law court proceedings are resolved; they are our ''trial courts''. The Court of Appeal and the Supreme Court of Canada only hear appeals of decisions made by the lower courts; they are our ''appellate courts''.

Only a few family law cases are brought to the Court of Appeal. Fewer still are brought to the Supreme Court of Canada, partly because that court must give permission, called ''leave'', to hear appeals in non-criminal cases and partly because it can cost a great deal of money to take a case that far. Appeals generally tend to be complicated and fairly expensive. This often discourages people from arguing about their legal disputes after they've gone through a trial.

===Making the choice of forum===

There are important differences between the Provincial Court and the Supreme Court. Deciding in which trial court to start a proceeding is called making the ''choice of forum''.

The Provincial Court deals with issues relating to parenting children, child support, spousal support, companion animals, and orders protecting people under the provincial ''[[Family Law Act]]''. The Supreme Court has the authority to deal with all of those issues, but can also deal with issues about parentage, dividing property and debt, and orders protecting property under the provincial act. Only the Supreme Court has the authority to make orders under the federal ''[[Divorce Act]]'', including orders for divorce. There's a chart showing which court can deal with which issue in the [[Family Law in British Columbia#The courts of British Columbia | Family Law in British Columbia]] chapter of the Getting Started part of this resource.

The rules of the BC Supreme Court can be very complicated and fees are charged for many steps in the court process, including filing the paperwork that starts a court proceeding, making an application, or going to trial. The rules of the Provincial Court are meant to be easier for self-represented people and the forms include lots of explanations. However, the procedure is still complex and it’s recommended that you read through the Provincial Court chapters and look at other resources before starting any court proceedings. The BC Provincial Court doesn't charge any fees to file forms.

It is possible to start a proceeding in the Provincial Court to deal with things like child support, and then start a proceeding in the Supreme Court to get a divorce and deal with things like property. However, it can be complicated to split your family law issues between two courts. A lot of people find it easier just to deal with everything in one court. Because of the limits of the authority of the Provincial Court, that court is usually the Supreme Court.

==The Provincial Court==
The Provincial Court can be the most accessible court for people who aren't represented by a lawyer. The [http://canlii.ca/t/b8rn Provincial Court Family Rules], which govern the Provincial Court's process are written in easy-to-understand language. The Provincial Court doesn't charge any filing fees, and many people who use the Provincial Court don't have a lawyer. Some of the Provincial Court registries have [https://www.clicklaw.bc.ca/services/justice-access-centres Justice Access Centres] or [https://www.clicklaw.bc.ca/services/family-justice-centres Family Justice Centres] where people can speak to family justice counsellors or even lawyers acting as duty counsel free of charge (depending on your eligibility for any help through Legal Aid). There are also many more courthouses across the province for the Provincial Court than there are for the Supreme Court.

There are four divisions of the Provincial Court. Provincial Family Court is the one that deals with family law problems.

===Provincial Court jurisdiction===

The Provincial Court can only deal with claims for orders under the ''[[Family Law Act]]'', the ''[https://canlii.ca/t/84dv Child, Family and Community Service Act]'', and the ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''. The Provincial Court does not have the jurisdiction to make orders for the division of family property (with the exception of companion animals) or family debt, the management of children's property, or orders protecting property. It cannot make any orders under the ''[[Divorce Act]]''. The Provincial Court is unable to make declarations about who the parents of a child are, unless it's necessary in order to deal with another issue, like a claim about child support or guardianship.

The Provincial Court can hear claims about these issues:

*guardianship of children,
*parental responsibilities and parenting time,
*contact with a child,
*child support,
*spousal support,
*companion animals (the one form of family property that it can deal with)
*changing and cancelling Provincial Court orders,
*enforcing agreements about the above issues,
*enforcing Provincial Court orders,
*enforcing Supreme Court orders about guardianship, parental responsibilities, parenting time, and contact, and
*moving away, with or without a child.

===Provincial Court proceedings===

The Provincial Court has special rules just for family law proceedings. These are contained in the [https://canlii.ca/t/b8rn Provincial Court Family Rules]. These rules set out different procedures to follow depending on the type of registry that your court proceeding was filed in. This means that the rules can vary significantly depending on where you are in the province. Make sure you know which type of registry your family law matter is filed at. The types are:
* ''Early Resolution Registries''. These Provincial Court registries follow a procedure that's designed to resolve cases without the need for going to court. As of May 1, 2026, Early Resolution Registries include Provincial Court registries in the Fraser, Interior, Vancouver Island, and Vancouver Coastal regions. Check the government page for [https://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/your-options/early-resolution/early-resolution-registries-filing-locations-fjsd-offices Early Resolution Registries, filing locations and FJSD offices] to confirm which process applies to your registry. Before going to court, parties must usually:
*# meet with a family justice counsellor and undergo a ''needs assessment'' to figure out what the parties need to do and what options and resources are available to them,
*# attend consensual dispute resolution, if appropriate, and
*# take a parenting course, such as the free online Parenting After Separation course, if applicable.
* ''Parenting Education Program Registries''. Provincial Court registries that are not Early Resolution Registries are Parenting Education Program Registries. These registries require that parties who are parents of children under 19, if the parents are seeking orders about parenting, take a parenting after separation course. A certificate of completion of the parenting after separation course is filed with the registry, and this lets you proceed to make court applications. If your matter is in Kamloops, and it looks like it's going to trial, you might hear about that registry's new ''Informal Family Trials Pilot'', which is explained on the [https://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/your-options/going-to-court/provincial-court/informal-family-trial-pilot BC Government's website], and on [https://family.legalaid.bc.ca/bc-legal-system/if-you-have-go-court/informal-trials-kamloops-court-registry Legal Aid BC's Family Law website].

The requirements are different in each type of registry, so please read the chapter on [[Family Law Litigation in Provincial Court]] for more information.

Regardless of which type of Provincial Court registry is handling your family law matter, it's important that you read and understand the Provincial Court Family Rules. The rules say how nearly every aspect of a Provincial Court case is run, from starting a court proceeding to scheduling a trial. They set out important deadlines and limitations, and say what court forms must be used for which purpose. You also need to have a look at the [https://provincialcourt.bc.ca/news-notices-policies-and-practice-directions/notices-policies-practice-directions Practice Directions] issued by the Chief Judge, which clarify certain aspects of the rules of court and describe additional processes and procedures.

====Provincial Court procedure based on location of registry====
Provincial Court Family Rules changed considerably in 2021. Provincial Court procedure now depends on where the parties live and in which registry the claim is filed. There are two types of Provincial Court registries: Early Resolution Registries and Parenting Education Program Registries.

====General Provincial Court procedure====
The person who starts a proceeding in the Provincial Court is the ''applicant''. The person against whom the court proceeding is brought is the ''respondent''.

An applicant starts by filing a form, although a different form is needed for ''Early Resolution Registries'' than in other Provincial Court registry locations. To read more about the Early Resolution process in Early Resolution Registries see the [https://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/your-options/early-resolution BC Government's website]. To confirm whether a registry is an Early Resolution Registry, check the government page for [https://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/your-options/early-resolution/early-resolution-registries-filing-locations-fjsd-offices Early Resolution Registries, filing locations and FJSD offices], and [https://www2.gov.bc.ca/assets/gov/birth-adoption-death-marriage-and-divorce/divorce/family/options/early-resolution/early_resolution_brochure_may_2026.pdf brochure] with a simplified process map. The procedures explained below apply to the Early Resolution Registries only if parties don’t resolve their matter through the Early Resolution Procedure and have to proceed to court.

After any required early resolution or parenting education steps have been completed, many family law matters proceed by filing an Application About a Family Law Matter in [[PCFR Form 3 Application About a Family Law Matter|Form 3]] and then serving it on each person named as a respondent. The form must be ''personally served'' on the respondent by an adult other than the applicant — you can't do it yourself. Once served, the respondent has 30 days to answer the claim by filing a Reply to an Application About a Family Law Matter in [[PCFR Form 6 Reply to an Application About a Family Law Matter|Form 6]] at the court registry. The court clerk will send a copy of the filed Reply to the applicant. The Reply can also be used to make a ''counter application'', the respondent's own claim against the applicant. A respondent who does not file a Reply to an Application About a Family Law Matter is not entitled to notice of further hearings in the case!

All registry locations require the parties, if there is a matter involving children, to take a parenting after separation course. Family justice counsellors are government employees trained in mediation who can help with issues about the care of children, guardianship and contact with a child, child support, spousal support, and companion animals (i.e. disputes over family pets). Early Resolution Registries also require parties to complete a needs assessment with a family justice counsellor, and (if appropriate) attend consensual dispute resolution before filing the Form 3 Application About a Family Law Matter. Consensual dispute resolution can be with a family justice counsellor or a [https://www.familylawinbc.ca/visit/child-support-officers child support officer] — both of which work for the Family Justice Services Division — or through a private mediator or collaborative family law process.

The parties' first appearance before a judge is normally at a ''family management conference'', where the judge (or a family justice manager, but we'll just refer to the judge for simplicity's sake) will see if the parties can resolve their issues early on. A family management conference is a private meeting between the parties, their lawyers — if they have lawyers — and the judge. A judge can make orders at a family management conference even if the parties don't agree, but such orders are on an interim or temporary basis and are often made "without prejudice," meaning that the parties are not prevented from applying for different orders at a later family management conferences, an interim hearing, or at trial. If a party asks for an order that differs from the without prejudice order from a family management conference, that party won't have to argue that something significant changed since that first order was made. By comparison, a judge's order made after a formal hearing or trial is harder to change than one made at a family management conference.

If matters aren't settled at the first family management conference, the judge can direct the parties to hold another family management conference, hold a family settlement conference, or go to trial. All of these early conferences can be very helpful as they provide a great opportunity to talk about the legal issues and explore potential areas of compromise.

After the family management conference, ''interim applications'' — applications for temporary orders different from any orders made at the family management conference — can be made formally, triggering a formal hearing where each party will present their side and give evidence about why that party thinks the judge should rule in their favour.

If the legal issues in the court proceeding aren't settled through conferences, interim hearings, or by the parties' agreement, there will be a ''trial''. At the trial, each side will present their evidence and their arguments, and the judge will make a decision about the legal issues, called a ''judgment.'' The judgment will describe not only the judge's ''final orders'' on the legal issues, but the judge's decisions about the facts of the case and the law that applies to the case.

Provincial Court procedures are covered in the chapter on [[Family Law Litigation in Provincial Court]].

====Addressing the Provincial Court====

Judges of the Provincial Court are addressed as "Your Honour."

====Appeals====

Final orders of the Provincial Court may be appealed to the Supreme Court. The appeal must be started within 40 days of the date the final order was made. The timelines for appeals are strictly applied.

According to [https://canlii.ca/t/8q3k#section233 s. 233(1)] of the ''[[Family Law Act]]'', only final orders may be appealed. In a 2011 case called [https://canlii.ca/t/fkmwm ''Dima v Dima''], the Court of Appeal confirmed that the only way to challenge an interim order of the Provincial Court is through judicial review under the ''[https://canlii.ca/t/844v Judicial Review Procedure Act]''.

It's important to know that an order that is appealed remains in effect unless the judge who made the order says otherwise. Starting an appeal doesn't mean that you can ignore the order you are appealing.

==The Supreme Court==

Unlike the Provincial Court, the Supreme Court has the authority to deal with all family law issues. If the Provincial Court cannot deal with a particular issue, the Supreme Court is where you will have to go. As well, the Supreme Court is the only court that can grant an order for divorce.

There are fewer registries of the Supreme Court than there are for the Provincial Court. Court fees — fees for services like filing documents, photocopying, starting a court proceeding, or having a trial — are also payable in the Supreme Court. No fees are charged by the Provincial Court.

The Supreme Court is also a lot more formal than the Provincial Court. While it is possible to represent yourself in the Supreme Court, the rules of court used for family law matters, the [http://canlii.ca/t/8mcr Supreme Court Family Rules], are complicated and are applied strictly. The assistance of a lawyer is highly recommended.

===BC Supreme Court jurisdiction===

The BC Supreme Court has the authority to deal with all of the same issues as the Provincial Court and more. The BC Supreme Court:

*has ''inherent jurisdiction'', which means it can deal with every kind of legal issue,
*can deal with claims under the ''[[Divorce Act]]'', including making divorce orders, as well as claims under the ''[[Family Law Act]]'',
*can divide family property and family debt, and make orders respecting companion animals, under the ''Family Law Act'',
*may divide assets between people who aren't spouses under either the common law, like the law of trusts, or under legislation, like the ''[http://canlii.ca/t/8456 Land Title Act]'' or the ''[http://canlii.ca/t/848q Partition of Property Act]'',
*may make orders for the protection of property, and
*hears appeals from decisions of the Provincial Court.

===BC Supreme Court proceedings===

The BC Supreme Court has special rules just for family law proceedings, the [http://canlii.ca/t/8mcr Supreme Court Family Rules]. If you are involved in a proceeding before the Supreme Court, you should try to read and understand these rules, or at least the rules that talk about the specific procedure you are dealing with. The rules of court govern every aspect of a Supreme Court case, from starting a court proceeding to scheduling a trial. They set out important deadlines and limitations, and say what court forms must be used for which purpose. You also need to have a look at the [https://www.bccourts.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Practice Directions] and [https://www.bccourts.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Administrative Notices] issued by the Chief Justice, which clarify aspects of the rules of court and describe additional processes and procedures.

====BC Supreme Court procedure====

Most Supreme Court family law proceedings are started by filing a Form F3 ''Notice of Family Claim''. The person who starts a proceeding by a Notice of Family Claim is the ''claimant'', and the person against whom the claim is brought is the ''respondent''. In certain unusual cases, a proceeding can also be started by filing a Form F73 ''Petition''. Someone starting a proceeding with a Petition is the ''petitioner'', and the other party is the ''petition respondent''.

Notices of Family Claim and Petitions must be ''personally served'' on the other party by an adult other than the claimant or petitioner. You cannot serve the other side yourself.

A respondent may reply to a Notice of Family Claim by filing a Form F4 ''Response to Family Claim''. A respondent who does not file a Response to Family Claim is not entitled to notice of further hearings in the case! The respondent may also file a ''Counterclaim'' (Form F5). A counterclaim is used to describe the respondent's own claim against the applicant.

In general, before anyone can do anything else, the parties must attend a ''judicial case conference''. A judicial case conference is a private meeting between the parties, their lawyers, and an associate judge or judge to talk about the legal issues and see whether any of them can be settled. The associate judge or judge who hears a judicial case conference cannot make orders, except for procedural orders, without the parties' agreement. Judicial case conferences can be very helpful. Cases, even difficult ones, sometimes settle at judicial case conferences!
''Interim applications'', applications for temporary orders, can be made by filing a Form F31 ''Notice of Application'' and a Form F30 ''Affidavit'' in court. An affidavit is a person's written evidence, which the person swears or affirms is true before a lawyer, notary public, or court staff member able to take oaths. The person making an application is the ''applicant''; the person against whom an application is brought is the ''application respondent''. An application respondent may reply to a Notice of Application by filing a Form F32 ''Application Response'' and an ''Affidavit'' within five business days after service of the Notice of Application.

If the legal issues in the court proceeding aren't settled, there will be a ''trial''. At the trial, each side will present their evidence and their arguments, and the judge will make a decision about the legal issues, called a ''judgment''. The judgment will describe not only the judge's ''final orders'' on the legal issues, but the judge's decisions about the facts of the case and the law that applies to the case.

Applications to ''change final orders'' are made by filing a Form F31 Notice of Application and an ''Affidavit'' in court and serving them on the other parties. The process works just like the process for interim applications, except that the application respondent has 14 business days from the date of service of the application materials to reply to the application.

====Addressing the court====

There are two kinds of judicial officials at the Supreme Court that hear applications and trials, ''associate judges'' and ''justices'', both of whom we'll refer to as "judges" for convenience.

Associate judges used to be called ''masters'' until January 2024 when their title was changed. They deal with a wide variety of applications in Supreme Court Chambers, but they do not have the full range of judicial authority that a ''justice'' has, and they do not have the authority to make final orders. Associate judges deal mainly with interim applications and hear judicial cases conferences. Associate judges of the Supreme Court are addressed as "Your Honour."

Justices can also hear interim applications and judicial cases conferences, but are mostly assigned to hear trials and applications to change final orders. Until a couple years ago, justices were addressed by the ancient-sounding terms "My Lord" or "My Lady," or, if you wanted, as "Your Lordship" or "Your Ladyship." As of the end of 2021, a justice of the BC Supreme Court is to be addressed as "Chief Justice", "Associate Chief Justice", "Justice", "Madam Justice", or "Mr. Justice" as the context requires. The old terms "My Lord", "My Lady", "Your Lordship", and "Your Ladyship" are to be avoided.

====Appeals====

Interim orders of associate judges may be ''appealed'' to a justice of the Supreme Court. A party appealing the order of an associate judge must file a Form F98 ''Notice of Appeal'' in the Supreme Court within 14 days of the date the order was made.

Interim and final orders of justices of the Supreme Court are ''appealed'' to the Court of Appeal. This is a more rigorous process. An appeal of a justice's order to the Court of appeal must be brought within 30 days of the date of the order. Appeals of interim orders are generally ''limited appeal orders'' and require the permission of the Court of Appeal before they will be heard. This permission is called ''leave''. Appeals of final orders don't need leave to proceed. Appeals to the Court of Appeal proceed under the ''[[https://canlii.ca/t/b96x Court of Appeal Act]]'' and the [https://canlii.ca/t/bgkw Court of Appeal's rules of court] and court forms.

It's important to know that an order that is appealed remains in effect unless the associate judges or justice who made the order says otherwise. Starting an appeal doesn't mean that you can ignore the order you are appealing.

See [[How Do I Appeal an Interim Supreme Court Decision?]] and [[How Do I Appeal an Interim Supreme Court Decision?]] under the Helpful Guides & Common Questions section for more information on appealing Supreme Court orders.

==The Court of Appeal==

The Court of Appeal has the same sort of jurisdiction as the Supreme Court. It can deal with every kind of legal problem. However, this court does not hear trials, it only hears appeals from decisions of the Supreme Court and certain legal questions referred to it by the government of British Columbia. Although the Court of Appeal's central registry is in Vancouver, the court occasionally hears cases in Victoria, Kelowna, and Kamloops.

Appeals are a fairly expensive process. You should only bring an appeal after you've given a lot of thought to the cost of the appeal and your chances of success; don't leap to appeal a decision just because you don't like it or are angry with the result. Consider asking a lawyer to review your case and the reasons for judgment from trial. Simply put, the cost of the appeal may outweigh the benefits you will get even if you are completely successful.

===Court of Appeal proceedings===

If you are involved in a proceeding before the Court of Appeal, you must read the ''[https://canlii.ca/t/b96x Court of Appeal Act]'' and the [https://canlii.ca/t/bgkw Court of Appeal Rules]. The act and the rules govern every aspect of an appeal, from starting an appeal to the size and colour of paper you have to use for court documents. (I'm not kidding. The rules even say what kind of font and type size you have to use!) They set out important deadlines and limitations, and say what court forms must be used for which purpose. You also need to have a look at the [https://www.bccourts.ca/court_of_appeal/Practice_and_Procedure/civil_practice_directives_/index.aspx Practice Directives] issued by the Chief Justice, which clarify aspects of the rules of court and describe additional processes and procedures.

While it is possible to represent yourself in the Court of Appeal, and lots of people do, the court requires very strict compliance with its rules and forms. The assistance of a lawyer is highly recommended.

====Court of Appeal procedure====

Appeals of final Supreme Court orders are discussed in the Helpful Guides & Common Questions section under [[How Do I Appeal a Final Supreme Court Decision?]]. They must be started within 30 days of the date the order was made. The person who starts an appeal is the ''appellant'', the other parties are ''respondents''. The appellant must serve the Notice of Appeal on all respondents. After being served, a respondent has to file a ''Notice of Appearance'', and may serve their own ''Notice of Cross Appeal'', which is only necessary if the respondent also wants to appeal the Supreme Court's order and is asking for different orders than the appellant.

''Interim applications'', applications for temporary orders, can be made in the Court of Appeal subject to the rules on them being ''limited appeal orders''. Appeals of interim Supreme Court orders are discussed in the Helpful Guides & Common Questions section under [[How Do I Appeal a Interim Supreme Court Decision?]].

Applications are rarely brought to the Court of Appeal, but when they are, the rules say the hearing of the application must be completed within 30 minutes.

All appeals are based on the evidence before the judge who made the original decision. The Court of Appeal does not hear evidence from witnesses and rarely considers evidence that was not presented to the trial judge. Before an appeal can be heard, the appellant must:

#get transcripts of all of the oral evidence at trial, and transcripts can be hideously expensive to obtain,
#prepare an ''appeal record'' with the Notice of Appeal, and all of the pleadings filed in the Supreme Court proceeding plus the order at issue and reasons for judgment, and
#prepare an ''appeal book with'' all of the documents used as evidence at trial.

By "book" we mean that the paper is securely bound in some way. Lawyers often use ''cerlox'' or ''comb binding'', and businesses that provide photocopying services will usually be able to bind paper like this.

Each side must also prepare a written argument, called a ''factum'', as well as books containing all the statute law and case law they will be relying on in arguing the appeal. The court registry is very particular about how these materials are prepared; read the [https://canlii.ca/t/bgkw Court of Appeal Rules] very carefully!

Applications for leave to appeal, when they are required, are heard by one judge.

Appeals are heard by a ''panel'' of three judges, but when a legal issue is particularly important, the appeal may be heard by a panel of five judges. The panel reaches its decision after reading the parties' factums, hearing the parties' oral arguments, and considering the law that applies to the issues. The decision of the panel, and the result of the appeal, is the decision of a majority of the judges on the panel; the judge or judges who disagree with the majority decision are said to ''dissent'' and may write a separate decision, called a ''dissenting judgment''.

====Addressing the court====
Not too long ago, justices of the Court of Appeal were addressed as "My Lord" or "My Lady". This outdated convention has now changed, as it had throughout most of Canada before BC. Justices are to be referred to as "Chief Justice", "Justice", "Madam Justice", "Mr. Justice" or, collectively, as "Justices", according to the context.

The old terms "My Lady”, "My Lord", "Your Ladyship" or "Your Lordship" are now to be avoided. The BC Court of Appeal has over 15 judges, and it also has a registrar, who is another court official that hears select court matters. In a registrar's hearing, the registrar is addressed as "Your Honour".

====Appealing an appeals decision====

Decisions of the Court of Appeal can be appealed to the Supreme Court of Canada. However, the Supreme Court of Canada must first grant leave for the appeal to be brought. There is no automatic right to appeal a judgment of the Court of Appeal in a family law dispute. Read the Helpful Guides & Common Questions section under [[How Do I Appeal a Court of Appeal Decision?]].

==Resources and links==

===Legislation===

* ''[http://canlii.ca/t/84h8 Court Rules Act]''
* ''[http://canlii.ca/t/b96x Court of Appeal Act]''
* [http://canlii.ca/t/bgkw Court of Appeal Rules]
* ''[http://canlii.ca/t/84d8 Supreme Court Act]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* ''[http://canlii.ca/t/849w Provincial Court Act]''
* [http://canlii.ca/t/b8rn Provincial Court Family Rules]
* ''[https://canlii.ca/t/8q3k Family Law Act]''
* ''[https://canlii.ca/t/551f9 Divorce Act]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''
* ''[http://canlii.ca/t/844v Judicial Review Procedure Act]''
* ''[http://laws-lois.justice.gc.ca/eng/Const/index.html Constitution Acts, 1867 to 1982]''

===Resources===

* [https://www2.gov.bc.ca/gov/content/justice/courthouse-services/documents-forms-records/court-forms/prov-family-forms Provincial Court Family Forms]
* [https://provincialcourt.bc.ca/news-notices-policies-and-practice-directions/notices-policies-practice-directions Provincial Court Practice Directions]
* [https://www2.gov.bc.ca/gov/content/justice/courthouse-services/documents-forms-records/court-forms/sup-family-forms Supreme Court Family Forms]
* [https://www.bccourts.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [https://www.bccourts.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [https://www.bccourts.ca/Court_of_Appeal/practice_and_procedure/Civil_Rules_Forms.aspx BC Court of Appeal Civil Rules Forms]
* [https://www.bccourts.ca/court_of_appeal/Practice_and_Procedure/civil_practice_directives_/index.aspx Court of Appeal Practice Directives]
* [https://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/your-options/early-resolution Early Resolution Registries information page] from BC Government's website
* [https://www.clicklaw.bc.ca/services/justice-access-centres Justice Access Centres information page] from Clicklaw
* [https://www.clicklaw.bc.ca/services/family-justice-centres Family Justice Centres information page] from Clicklaw
* [https://www.familylawinbc.ca/visit/child-support-officers child support officers information page] from Family Law in BC website
* [https://family.legalaid.bc.ca/bc-legal-system/if-you-have-go-court/informal-trials-kamloops-court-registry Informal Family Trial Pilot (Kamloops)] from Legal Aid BC's Family Law website
* [https://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/your-options/going-to-court/provincial-court/informal-family-trial-pilot Informal Family Trial Pilot information page] from BC Government's website
* ''[https://canlii.ca/t/srvn The CanLII Manual to British Columbia Civil Litigation]''

===Links===

* [https://www.bccourts.ca/ Courts of British Columbia website]
* [https://www.bccourts.ca/Court_of_Appeal/index.aspx Court of Appeal website]
* [https://www.bccourts.ca/supreme_court/index.aspx Supreme Court website]
* [https://www.provincialcourt.bc.ca/ Provincial Court website]
* [http://canlii.org CanLII]

{{REVIEWED | reviewer = [[Kendra Marks]], 3 January 2025}}

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How Do I Start a Family Law Action in the Provincial Court?

2026-05-06T22:00:07Z

Nate Russell:

{{JP Boyd on Family Law How Do I TOC|expanded=starting}}
{{LSSbadge
| resourcetype = a detailed step-by-step guide on
| link = [https://family.legalaid.bc.ca/bc-legal-system/court-orders/get-order-bc/provincial-court/get-new-family-order-provincial-court-if starting a family law action in Provincial Court]
}}
Starting a court proceeding in the Provincial Court is fairly straightforward, but if you're filing in one of the ''Early Resolution Registries'' you will need to follow a slightly different process than the one outlined in this short guide. Note that:
* As of May 1, 2026, Provincial Court registries in the southern parts of the province are Early Resolution Registries, including registries throughout the Lower Mainland and Fraser Valley, on Vancouver Island, in the Interior, and on the Central Coast.
* Check the government's [https://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/your-options/early-resolution/early-resolution-registries-filing-locations-fjsd-offices Early Resolution Registries, filing locations and FJSD offices webpage] to make sure you're dealing with the correct procedure for the registry that you're in.
* Read the section on [[Starting and Responding to Provincial Court Family Law Proceedings]] in the [[Family Law Litigation in Provincial Court]] chapter, which includes an [https://www.google.com/maps/d/viewer?mid=1F3aokSLvDT4cbkCmjW4Zvn-yAqn6BCk interactive map] and explains the steps involved in the Early Resolution process.

This guide talks about the procedure followed in Provincial Court registries where early resolution steps are not required before filing an application about a family law matter. These registries are ''Parenting Education Program registries''. There are no longer any ''Family Justice registries''.
==When to use the Provincial Court==

The authority of the Provincial Court is limited and it can only deal with certain issues. You can use the Provincial Court when the things you need to deal with involve any of the following:

*guardianship of children,
*parenting arrangements for children,
*contact with a child,
*child support,
*spousal support,
*protection orders, and
*orders dealing with ownership of pets (or ''companion animals'' as they're referred to in the ''Family Law Act'').

==When not to use the Provincial Court==

The Provincial Court cannot deal with issues involving property or debts, with the sole exception of dealing with pet ownership (which is a new jurisdiction of the Provincial Court effective 15 January 2024). The Provincial Court cannot make orders under the ''Divorce Act'', including divorce orders. If you need orders about property, debt, or divorce, you might think about starting your court proceeding in the Supreme Court, which can deal with all of these issues and all of the issues that the Provincial Court can deal with.

==Starting your action for a family law matter==

If early resolution steps are not required in the registry where your case is being started, you will usually fill out a document called a [[PCFR Form 3 Application About a Family Law Matter|Form 3 Application About a Family Law Matter]] and file it in the registry of the court closest to you. You should review the section on [[Starting and Responding to Provincial Court Family Law Proceedings]] in the [[Family Law Litigation in Provincial Court]] chapter to learn about the other processes for initiating a proceeding using the Provincial Court Family Rules. Consider reading the [https://www2.gov.bc.ca/assets/gov/law-crime-and-justice/courthouse-services/court-files-records/court-forms/family/pfa712-guidebook.pdf?forcedownload=true ''guidebook'' for Form 3], published by the BC Government on their [https://www2.gov.bc.ca/gov/content/justice/courthouse-services/documents-forms-records/court-forms/prov-family-forms Family Court Forms] webpage.

There are no filing fees, and when you file the Form 3, the court staff may tell you how to go about serving the other side.
Copies of the Form 3 Application About a Family Law Matter are available from the court registry for free, as well as online. See [https://www.familylawinbc.ca/forms/provincial Legal Aid BC's Family Law website's online list of Provincial Court forms].

The BC Government's online form filing service is another option for you, and it walks you through and automates much of the application process. See the online [https://justice.gov.bc.ca/apply-for-family-order/ Apply for a Family Law Act Order] tool. The version of the form that you can get from the court registry includes lots of information about how to fill it out.

If you are making a claim for ''spousal support'' or ''child support'', you'll also have to fill out a [[PCFR Form 4 Financial Statement|Form 4 Financial Statement]]. The court registry will provide you with this form, or you can find it online. The form is fairly easy to fill out. There are, however, certain documents you need to gather and attach to the form, including your last three years' worth of tax returns, your most recent paystub, and so forth. The section on [[Disclosure and Provincial Court Family Law Proceedings]] in the [[Family Law Litigation in Provincial Court]] chapter has more information about Form 4 Financial Statements.

If are not already a ''guardian'' of a child, and you are making a claim to become a guardian, you will eventually need to fill out a [[PCFR Guardianship Affidavit|Form 5 Guardianship Affidavit]], and provide copies of recent police and Ministry of Children and Family Development records checks. Read the guidebook which is linked on the form page for [[PCFR Guardianship Affidavit|Form 5]] to understand the timing for when this affidavit needs to be filed. You will need to swear it close to the time you file it (not more than 7 days before), and you will need records checks in place before you sign it.

==What happens next?==

Once you've filed your Form 3 Application About a Family Law Matter, you'll have to have it served on the other person and get your process server to complete an Form 48 Affidavit of Personal Service. Once the other person has been served, they will have 30 days to file a form called a Form 6 Reply to an Application About a Family Law Matter, and, if either of you are making a claim for spousal support or child support, their Form 4 Financial Statement as well. The court will mail you a copy of these documents.

When the court receives the other person's Form 6 Reply to an Application About a Family Law Matter, the court will normally schedule a date for a Family Management Conference.
In certain registries there may be other requirements that you must meet before the Family Management Conference. For example, you may be required to take the Parenting After Separation course or the Parenting After Separation for Indigenous Families course. The registry will let you know what steps you have to take.

{{REVIEWED | reviewer = [[Nate Russell]], May 5, 2026}}

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[[Category:Helpful Guides & Common Questions|S]]
[[Category:Starting a Family Law Action]]
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How Do I Start a Family Law Action in the Provincial Court?

2026-05-06T21:55:39Z

Nate Russell:

{{JP Boyd on Family Law How Do I TOC|expanded=starting}}
{{LSSbadge
| resourcetype = a detailed step-by-step guide on
| link = [https://family.legalaid.bc.ca/bc-legal-system/court-orders/get-order-bc/provincial-court/get-new-family-order-provincial-court-if starting a family law action in Provincial Court]
}}
Starting a court proceeding in the Provincial Court is fairly straightforward, but if you're filing in one of the ''Early Resolution Registries'' you will need to follow a slightly different process than the one outlined in this short guide. Note that:
* As of May 1, 2026, Provincial Court registries in the southern parts of the province are Early Resolution Registries, including registries throughout the Lower Mainland and Fraser Valley, on Vancouver Island, in the Interior, and on the Central Coast.
* Check the government's [https://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/your-options/early-resolution/early-resolution-registries-filing-locations-fjsd-offices Early Resolution Registries, filing locations and FJSD offices webpage] to make sure you're dealing with the correct procedure for the registry that you're in.
* Read the section on [[Starting and Responding to Provincial Court Family Law Proceedings]] in the [[Family Law Litigation in Provincial Court]] chapter, which includes an interactive map and explains the steps involved in the Early Resolution process.

This guide talks about the procedure followed in Provincial Court registries where early resolution steps are not required before filing an application about a family law matter. These registries are ''Parenting Education Program registries''. There are no longer any ''Family Justice registries''.
==When to use the Provincial Court==

The authority of the Provincial Court is limited and it can only deal with certain issues. You can use the Provincial Court when the things you need to deal with involve any of the following:

*guardianship of children,
*parenting arrangements for children,
*contact with a child,
*child support,
*spousal support,
*protection orders, and
*orders dealing with ownership of pets (or ''companion animals'' as they're referred to in the ''Family Law Act'').

==When not to use the Provincial Court==

The Provincial Court cannot deal with issues involving property or debts, with the sole exception of dealing with pet ownership (which is a new jurisdiction of the Provincial Court effective 15 January 2024). The Provincial Court cannot make orders under the ''Divorce Act'', including divorce orders. If you need orders about property, debt, or divorce, you might think about starting your court proceeding in the Supreme Court, which can deal with all of these issues and all of the issues that the Provincial Court can deal with.

==Starting your action for a family law matter==

If early resolution steps are not required in the registry where your case is being started, you will usually fill out a document called a [[PCFR Form 3 Application About a Family Law Matter|Form 3 Application About a Family Law Matter]] and file it in the registry of the court closest to you. You should review the section on [[Starting and Responding to Provincial Court Family Law Proceedings]] in the [[Family Law Litigation in Provincial Court]] chapter to learn about the other processes for initiating a proceeding using the Provincial Court Family Rules. Consider reading the [https://www2.gov.bc.ca/assets/gov/law-crime-and-justice/courthouse-services/court-files-records/court-forms/family/pfa712-guidebook.pdf?forcedownload=true ''guidebook'' for Form 3], published by the BC Government on their [https://www2.gov.bc.ca/gov/content/justice/courthouse-services/documents-forms-records/court-forms/prov-family-forms Family Court Forms] webpage.

There are no filing fees, and when you file the Form 3, the court staff may tell you how to go about serving the other side.
Copies of the Form 3 Application About a Family Law Matter are available from the court registry for free, as well as online. See [https://www.familylawinbc.ca/forms/provincial Legal Aid BC's Family Law website's online list of Provincial Court forms].

The BC Government's online form filing service is another option for you, and it walks you through and automates much of the application process. See the online [https://justice.gov.bc.ca/apply-for-family-order/ Apply for a Family Law Act Order] tool. The version of the form that you can get from the court registry includes lots of information about how to fill it out.

If you are making a claim for ''spousal support'' or ''child support'', you'll also have to fill out a [[PCFR Form 4 Financial Statement|Form 4 Financial Statement]]. The court registry will provide you with this form, or you can find it online. The form is fairly easy to fill out. There are, however, certain documents you need to gather and attach to the form, including your last three years' worth of tax returns, your most recent paystub, and so forth. The section on [[Disclosure and Provincial Court Family Law Proceedings]] in the [[Family Law Litigation in Provincial Court]] chapter has more information about Form 4 Financial Statements.

If are not already a ''guardian'' of a child, and you are making a claim to become a guardian, you will eventually need to fill out a [[PCFR Guardianship Affidavit|Form 5 Guardianship Affidavit]], and provide copies of recent police and Ministry of Children and Family Development records checks. Read the guidebook which is linked on the form page for [[PCFR Guardianship Affidavit|Form 5]] to understand the timing for when this affidavit needs to be filed. You will need to swear it close to the time you file it (not more than 7 days before), and you will need records checks in place before you sign it.

==What happens next?==

Once you've filed your Form 3 Application About a Family Law Matter, you'll have to have it served on the other person and get your process server to complete an Form 48 Affidavit of Personal Service. Once the other person has been served, they will have 30 days to file a form called a Form 6 Reply to an Application About a Family Law Matter, and, if either of you are making a claim for spousal support or child support, their Form 4 Financial Statement as well. The court will mail you a copy of these documents.

When the court receives the other person's Form 6 Reply to an Application About a Family Law Matter, the court will normally schedule a date for a Family Management Conference.
In certain registries there may be other requirements that you must meet before the Family Management Conference. For example, you may be required to take the Parenting After Separation course or the Parenting After Separation for Indigenous Families course. The registry will let you know what steps you have to take.

{{REVIEWED | reviewer = [[Nate Russell]], May 5, 2026}}

{{JP Boyd on Family Law Navbox|type=how}}

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[[Category:Helpful Guides & Common Questions|S]]
[[Category:Starting a Family Law Action]]
[[Category:JP Boyd on Family Law]]