Recent Changes to Family Law in British Columbia

Family law has changed a lot over the past 15 years or so, especially if you live in British Columbia. In 2010, we had special new Supreme Court rules just for family law cases. In 2013, the Family Law Act replaced the Family Relations Act and brought in new ways of thinking about parenting after separation, a new test that applies when someone wants to move away after separation, a new scheme for dividing property between spouses, new provisions about parenting coordination, and new tools for judges to manage court processes. In 2019, the Provincial Court established a pilot project in the Victoria courthouse aimed at the early resolution of family law disputes, complete with a whole new set of court rules just for the pilot project. In 2020, the Family Law Act was changed to also address the arbitration of family law disputes, in terms very different from those of the old Arbitration Act, and the Victoria pilot project was expanded to include the Surrey courthouse. Of course, 2020 was also the year that COVID-19 was declared to be a global pandemic and resulted in yet more changes to day-to-day court processes.

In 2021, sweeping changes to the federal Divorce Act came into effect that changed how we talk about parenting after separation and included a new test for figuring out children's best interests and a new test for when someone wants to move away. Thankfully, for people already used to the Family Law Act, the changes to the Divorce Act felt very familiar, as if the federal government had simply copied huge swathes from our legislation. However, the changes to the Divorce Act also resulted in changes to the Child Support Guidelines, changes to the forms used by the Supreme Court, and the introduction of brand new forms used when someone wants to move away or objects to someone moving away.

Frankly, the pace of change has been a bit dizzying, especially for those of us who prepare public and professional education materials on family law. We could use a break.

Introduction

The key changes to the federal Divorce Act are discussed in the page on the new Divorce Act. The Family Law Act Basics page provides a stem to stern outline of the Family Law Act in a helpful question and answer format, and you can get a good overview of how family law works in British Columbia in the page on the Legal System.

This page provides an overview of the other changes that have happened in the last couple of years, including the amendments to the Family Law Act about arbitration, the new Provincial Court pilot project, and the changes to the Child Support Guidelines and the forms used by the Supreme Court resulting from the changes to the Divorce Act.

Arbitration under the Family Law Act

Until 1 September 2020, all you needed to know about the arbitration of family law disputes could be found in the provincial Arbitration Act. That law, which used to be called the Commercial Arbitration Act, was an all-purpose piece of legislation meant to apply to the arbitration of almost every kind of legal dispute. However, when the provincial government began to think about retooling that legislation it also began to think about creating a spot in the Family Law Act just for arbitration.

This made a lot of sense, as one of the important changes the Family Law Act introduced when it came into effect in 2013 was encouraging people to resolve their family law disputes other than through court. Section 4 of the act said it was important for people to learn about all of the different ways to resolve family law disputes, section 5 imposed a duty on people to give each other full and complete disclosure whether they were resolving their dispute in court or not, and section 8 required lawyers to assess for the presence of family violence and advise their clients about the different options for resolving their dispute in light of that assessment. Sections 10 to 13 talked about the services Family Justice Counsellors can provide to help people resolve their disputes, and sections 14 to 19 allowed the court to appoint parenting coordinators, making British Columbia the first jurisdiction in Canada to provide for parenting coordination in its legislation. Why not fold arbitration into the Family Law Act too?

That's what sections 19.1 to 19.22 do, and section 2(5)(b) of the new Arbitration Act makes it clear that the arbitration of family law disputes is now governed solely by the Family Law Act.

(If you're wondering why the new sections of the Family Law Act are numbered 19.1, 19.2, 19.3 and so on instead of 20, 21 and 22, it's because of the havoc that would be created if the entire Family Law Act were renumbered. Think about all the cases that talked about the old section 21 that wouldn't make sense anymore! Instead, new sections that need to be inserted are given a decimal and a new series of numbers. This way, if you add two sections between section 68 and 69, the sections would be numbered as 68, 68.1, 68.2, 69, 70 and so on. The same thing applies to inserting new bits into a section. To add a new subsection between (c) and (d), the subsection would be numbered (c.1), and the subsections would be numbered as (a), (b), (c), (c.1), (d), (e) and so on.)

Resources and links

Legislation

• the old Divorce Act
• Bill C-78

Links

• An Overview of Bill C-78 by John-Paul Boyd

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by JP Boyd, February 15, 2021.

JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.