Divorce Act Basics

The provincial Family Law Act is the primary legislation on family law issues in British Columbia. It applies to married spouses, unmarried spouses, and people in other unmarried relationships. It also applies to people who have an interest in caring for someone else's children, like a family member or friend. The Family Law Act talks about the care of children after separation and about how guardians are appointed. It also deals with financial issues like child support, spousal support, and the division of property and debt, as well as with family violence, court processes, and ways of resolving family law problems without going to court.

This section provides a top to bottom overview of the Family Law Act in an easy-to-read question and answer format. It is written primarily for justice system workers and legal advocates, but anyone can use it. All of the information provided in this section is discussed in more detail elsewhere in JP Boyd on Family Law. Use the search tool at the top of the page to find more information about specific topics.

Important changes
Look for explanations under this heading to read about recent changes to family law affecting the information provided in this section.

Introduction

Who does the Family Law Act apply to?

The Family Law Act is the main law on family breakdown in British Columbia. (Although there is also the federal Divorce Act, the Divorce Act only applies to married spouses.) The Family Law Act applies to everyone in a family relationship in British Columbia, including people who:

• are married spouses,
• are unmarried spouses,
• are parents of a child together,
• want guardianship of a child,
• want contact with someone else’s child,
• are at risk of family violence,
• are having a child with assisted reproduction, and
• want to manage a child’s property.

The Family Law Act doesn’t change the Divorce Act. The Divorce Act also applies to people who are married, along with the Family Law Act.

How are family law problems resolved under the Family Law Act?

The Family Law Act tries to change how people solve family law problems. The law:

• encourages people to find solutions to family law problems outside of court,
• makes financial disclosure mandatory, even when people are dealing with a family law problem outside of court,
• makes family law agreements more difficult to change, as long as they were fairly negotiated, and
• promotes the use of parenting coordinators, when there is a final agreement or order about the care of children.

When people have to go to court, however, the Family Law Act gives the court new ways to:

• protect people who are at risk of family violence,
• enforce court orders and agreements, and
• manage court processes and manage the behaviour of people in court.

What does the Family Law Act cover?

The Family Law Act talks about:

• family violence, and protecting adults and children from violence,
• determining who is a child’s parent,
• having children through assisted reproduction,
• determining who is the guardian of a child, and how guardians are appointed and removed,
• how guardians share responsibility for decision-making and caring for children,
• the time someone has with a child who isn’t the child’s guardian,
• what happens when a guardian wants to move, including with a child,
• enforcing time with a child provided under an order or an agreement,
• paying child support and how child support is calculated,
• paying spousal support,
• preserving property so that it can be divided,
• dividing property and dividing responsibility for debt,
• dividing property located outside the province, and
• managing children’s property.

The Act, in other words, covers everything except adoption, child protection, and wills and estates problems!

Important changes
Under recent changes to the Family Law Act that took effect on 1 September 2020, the act now provides rules about the arbitration of family law disputes in addition to its rules about parenting coordination.

The law about children

How are decisions about children made?

The Family Law Act says that parents, judges, and other decision-makers, including arbitrators, must make decisions about children considering only the children’s best interests and nothing else.

Determining the best interests of children

To decide what is in a child’s best interest, parents and judges must consider all of the needs and circumstances of the child, as well as a number of factors that are listed at section 37. These factors include:

• the child’s health and emotional well-being,
• the views of the child, unless it wouldn’t be appropriate to consider them,
• the history of the child’s care and the child’s need for stability,
• the child’s relationships with other important people,
• any court proceedings that are relevant to the child’s safety and well-being, and
• the impact of any family violence.

The best interests of children and family violence

When family violence is an issue, parents and judges must consider the best-interests factors at section 37, as well as a list of considerations set out at section 38, to help assess the impact of family violence on the child and on a person’s capacity to care for the child. These considerations include:

• the severity of the family violence,
• the frequency of the family violence,
• whether the violence was directed toward the child, and
• the "harm to the child's physical, psychological and emotional safety, security and well-being as a result of the family violence."

The Family Law Act also says that an agreement or order is presumed not to be in the best interests of a child unless it protects the child’s safety and well-being to the greatest extent possible.

The best interests of children and children’s views

Under section 211 of the Family Law Act, the court can order that a family justice counsellor, a social worker, or another person like a clinical counsellor or a psychologist, assess one or more of:

• the needs of a child,
• the views of a child, and
• the ability of a person to meet the child’s needs.

Views of the child reports can also be ordered under section 37(2)(b). These reports usually just describe the child’s views without making an assessment or recommendations, and are often much cheaper and faster to get than a full parenting assessment under section 211.

Who is a parent?

Under the Family Law Act, a child’s parents are presumed to be the child’s birth mother and biological father. If the court is not sure who the child’s father is, the court can order medical tests to determine who the father is under section 33.

When people have a child through assisted reproduction, a person who donates eggs or sperm is not presumed to be a legal parent. However, a woman who is a surrogate mother is presumed to be a parent, and her spouse may also be a legal parent. The Family Law Act lets people make agreements when they have a child through assisted reproduction. These agreements can say who is a parent and who isn’t. The people who can be a parent under an assisted reproduction agreement are:

• up to two people who want to have the child,
• a donor of sperm,
• a donor of eggs,
• a surrogate mother, and
• the spouse of the surrogate mother.

As a result, a child can have more than two parents under the Family Law Act. The courts have yet to figure out how child support will work in situations like this.

Who is a guardian?

Under the Family Law Act, the people who are responsible for caring for a child are guardians. A child can have one guardian, two guardians, or more than two guardians. Most of the time, a child’s parents will be the child’s guardians, as long as the parents have lived with the child. A parent who never lived with a child isn’t a guardian unless:

• the court makes an order that the parent is a guardian,
• the parent and the child’s other guardians make an agreement that the parent is a guardian,
• the parent regularly cares for the child, or
• the parent is a parent because of an assisted reproduction agreement.

The court can make an order that someone who isn’t a parent is the guardian of a child. The court can also make an order that someone who is a guardian is no longer a guardian. Both the Provincial Court and the Supreme Court can make orders about guardianship.

It's important to know that a guardian's spouse or partner doesn’t become a guardian to a child just because of their relationship with the child’s guardian. The only way for a spouse or partner to become a guardian is to be appointed as a guardian by the court.

What are parental responsibilities?

The different ways that guardians care for a child and the decisions guardians have to make are called parental responsibilities. Parental responsibilities are listed at section 41 of the Family Law Act and include:

• making decisions about the day-to-day care of the child,
• deciding where the child will live,
• making decisions about the child’s schooling and extracurricular activities,
• making decisions about the child’s health care, and
• deciding how the child will be raised, including making decisions about things like religion, language, and culture.

When a child has more than one guardian, the guardians must usually make these decisions together. However, the guardians can agree or the court can order that only one guardian should have a particular parental responsibility. Both the Provincial Court and the Supreme Court can make orders about parental responsibilities.

If the child’s guardians can’t agree on a particular decision, they can go to see a family justice counsellor, a mental health professional, or a mediator to help them make the decision, or they can go to court.

Remember that only guardians have parental responsibilities and the right to make decisions for a child.

Important changes
Under the changes to the Divorce Act that took effect on 1 March 2021, "custody" is now known as decision-making responsibility and "access" is now known as parenting time, for people who are or used to be married to each other, or as contact for other people. Decision-making responsibility under the Divorce Act means the same thing as parental responsibilities under the Family Law Act.

What happens if a guardian can’t exercise parental responsibilities?

If a guardian is temporarily unable to exercise their parental responsibilities, the guardian can authorize someone else to manage certain responsibilities. This person doesn’t become a guardian but can be given the power to:

• make decisions about the day-to-day care of the child,
• make decisions about the child’s schooling and extracurricular activities,
• make decisions about the child’s health care, and
• give or withhold permission on behalf of a child, like about going on a school field trip or having a medical treatment.

This is useful when a guardian is going to be sick or will be out of town for a period of time and someone else needs to care for the child, or if a child from outside British Columbia will be going to school here and an adult is needed to care for the child and the child's affairs.

What happens if a guardian has a terminal illness or dies?

Under the Family Law Act, a guardian can appoint someone to take over and act as the child’s guardian if:

• the guardian has a terminal illness,
• the guardian is going to be permanently unable to care for the child because of a mental illness, or
• the guardian dies.

The new person takes over as guardian when the first guardian dies or becomes unable to exercise parental responsibilities.

It's important to know that a parent who is not a guardian does not automatically become the child’s guardian when a guardian dies. If that parent wants to become the child’s guardian, they will have to be appointed as a guardian by the court.

What's the difference between parenting time and contact?

The time a guardian has with a child is called parenting time. During a guardian’s parenting time, the guardian is responsible for the care of the child and has the right to make day-to-day decisions for the child.

The time that someone who isn’t a guardian has with a child is called contact. Parents who aren’t guardians, grandparents, other relatives of a child, and people who aren’t a child’s relative can have contact with the child. Someone with contact does not have the right to make day-to-day decisions for the child.

How do agreements and orders about parenting time and contact work?

Agreements about parenting time and contact can be made by the child’s guardians. Both the Provincial Court and the Supreme Court can make orders about parenting time and contact.

Agreements and orders about parenting time and contact can set a fixed schedule of time with a child or they can say that the parenting time or contact will happen when everyone agrees, as the child prefers or on some other term. Parenting time and contact can also be on conditions, for example that the person will not smoke or drink during their time with the child, or be supervised by a third party.

Remember that only guardians have parenting time. Everyone else has contact with a child.

How are parenting time and contact enforced?

The Family Law Act gives the court the power to enforce parenting time and contact when:

• parenting time or contact has been wrongfully withheld from a person entitled to parenting time or contact, or
• a person with parenting time or contact fails to use their parenting time or contact.

In certain situations, it isn’t wrongful to withhold a child from a person entitled to parenting time or contact. Under section 62, it isn’t wrongful to withhold a child if:

• the guardian with the child believes there is a risk of family violence, or that the other person is impaired by alcohol or drugs,
• the child is sick, and the guardian with the child has a doctor’s note,
• the other person has frequently failed to use their parenting time or contact in the past, or
• the other person told the guardian ahead of time that the parenting time or contact wasn’t going to be used.

The court can make a number of orders to enforce parenting time and contact, including requiring:

• make-up time, when parenting time or contact was wrongfully withheld,
• a person or a child to attending counselling,
• the parties to try to resolve their dispute outside of court,
• payment of a party’s expenses, or
• payment of up to $5,000 to a person or as a fine.

Applications about the wrongful withholding of parenting time or contact must be brought within a year of when the parenting time or contact was withheld.

What happens if a guardian wants to move?

If a guardian wants to move, with or without a child, and the move will have an impact on the child’s relationship with another guardian or someone who has contact with the child, the guardian must usually give 60 days’ notice of the move, in writing. The notice must say where the guardian plans on moving to and when the guardian plans on moving. See the discussion on relocation under the heading "Relocating with or without a child", in the section on [[ Changing Family Law Orders and Agreements Involving Children within the Children in Family Law Matters chapter.

Only other guardians can object when a guardian plans on moving. If a guardian objects, they have 30 days to go to court to get an order preventing the move. Remember that only a guardian can object to a proposed move! Someone who has contact can't prevent a guardian from moving.

When a guardian objects, it becomes important whether there moving guardian and the objecting guardian share the child's time equally or almost equally, or not. There are different tests that the court will apply depending on whether the guardians have "substantially equal parenting time."

If there is not substantially equal parenting time, the guardian with the greater parenting time who wants to move must show the court that:

• they want to move in good faith, and
• they have proposed reasonable plans to preserve the child’s relationship with the child’s other guardians, with people who have contact with the child, and with others who have an important role in the child’s life.

In these situations, the objecting guardian must then show that the move is not in the best interests of the child or the move will be allowed.

When there is substantially equal parenting time, the guardian who wants to move must show the court that:

• they want to move in good faith,
• they have proposed reasonable plans to preserve the child’s relationship with the child’s other guardians, with people who have contact with the child, and with others who have an important role in the child’s life, and
• the move is in the child’s best interests.

Good faith means that the guardian who wants to move isn’t planning on moving just to take the child away from another guardian, and that the move will likely improve the child’s quality of life or the guardian’s quality of life.

Important changes
The Divorce Act now also provides a test to help judges decide what should happen when a spouse wants to move away from the other spouse after separation. Although the Divorce Act test is similar to the Family Law Act test, they are not exactly the same. It is a good idea to speak to a lawyer whenever someone wants to move away after separation.

The law about child support

Who is entitled to get child support?

Child support is usually paid to support children who are under the age of 19, or who are 19 or older but are unable to support themselves, including because they are going to college or university.

Under the Family Law Act, children who are younger than age 19 can stop being entitled to child support if:

• they become a spouse, or
• they withdraw from the care of their parents or guardians, as long as they aren't withdrawing because of family violence or because of poor living conditions.

Child support is usually paid to the person whom the child mostly lives with. Child support can sometimes be paid directly to the child, usually if the child is 19 or older and living away from home and going to college or university.

Who is required to pay child support?

All of a child’s parents and guardians are required to support the child. The person with whom the child lives most often is presumed to meet their support obligation through the many tangible and intangible ways that they care for the child living in their home. Everyone else pays child support, and more than one person can be required to pay child support at the same time for the same child.

In certain circumstances, stepparents can also be required to pay child support. A stepparent is the married or unmarried spouse of a parent, as long as:

• the spouse has contributed to the child’s costs for at least one year, and
• the claim for child support is made within one year of the stepparent's last contribution to the child’s costs.

Remember that under the Divorce Act, a stepparent is someone who is married to a parent and "stands in the place of a parent." This is a much different legal test.

How is the amount of child support calculated?

Child support is determined by the Child Support Guidelines. Most of the time, child support is simple to figure out: you find the Guidelines tables for the province or territory where the payor lives and look up the amount payable based on the payor’s income and the number of children support is being paid for. Child support can get more complicated when:

• a child is 19 or older,
• the payor has an income of more than $150,000 per year,
• the payor is a stepparent or a guardian who isn't a parent,
• one or more children live mostly with each guardian (a split custody arrangement),
• the guardians share the children’s time equally or almost equally (a shared custody arrangement), or
• the payment of the tables amount would cause "undue hardship" to either the recipient or the payor.

(Note: even though the Family Law Act does not use the term custody, it is used in the Guidelines which is why it appears above.)

The Family Law Act doesn’t change how any of these problems are handled. What the Family Law Act does change is the calculation of child support for guardians who are not parents and for stepparents. Under the act, the child support obligations of guardians who are not parents come second to the obligations of parents. The child support obligations of stepparents come second to both parents and guardians, and the amount of support a stepparent should pay is based on:

• the child’s standard of living when they lived with the stepparent, and
• the length of time the child lived with the stepparent.

More information about how child support is calculated is available in the Child Support chapter, particularly in the sections on the Guidelines and the Exceptions to the Guidelines.

How is child support paid?

People can make agreements and the court can make orders about who should pay child support and about how much support should be paid. Both the Provincial Court and the Supreme Court can make orders about child support.

Most of the time, child support is paid every month, usually on the first day of the month. It is possible for child support to be paid in a single lump sum, but this is very rare. Payors can be required to pay by giving the recipient a series of post-dated cheques. However child support gets paid, it's important for the payor to keep a record of how much was paid and when it was paid, perhaps from receipts provided by the recipient, from cancelled cheques, or from bank statements. This can help prevent arguments about whether a payment was late or missed altogether.

Are there tax consequences?

There are no tax consequences when child support is paid. The payor isn't allowed to deduct child support payments from the payor's taxable income, and the recipient isn't required to report child support payments as taxable income.

What about if the payor dies?

If the payor has a life insurance policy, the parties can agree and the court can order that the payor keep the policy up to date and name a person, usually the recipient, as the beneficiary of the policy. This way, the child will still be supported if the payor dies.

The parties can agree and the court can order that the payor’s obligation to pay child support will continue after the payor’s death and be paid from the payor's estate. Court orders about this can be made at the time the child support order is made or after the payor’s death.

The law about spousal support

Who is entitled to ask for spousal support?

Only spouses can ask for spousal support. Under the Family Law Act, for the purposes of spousal support, spouse includes people who:

• are married to each other or used to be married to each other,
• have lived together in a marriage-like relationship for at least two years, and
• have lived together in a marriage-like relationship for less than two years and have had a child together.

A spouse’s entitlement to spousal support is determined based on factors taken from the Divorce Act, set out at section 161 of the Family Law Act.

Remember that no one is automatically entitled to get spousal support the way a child is automatically entitled to benefit from child support. Anyone who is a spouse can ask for spousal support, but being able to ask doesn’t mean you’ll get it. Someone asking for spousal support also must show that they are entitled to spousal support.

When do claims for spousal support have to be made?

Under the Family Law Act:

• married spouses have to start a court proceeding for spousal support within two years of the date of their divorce or the annulment of their marriage, and
• unmarried spouses have to start a proceeding for spousal support within two years of the date they separated.

Remember that these limits are for the Family Law Act — there are no limits to when married spouses can ask for spousal support under the Divorce Act.

It's important to know that under section 198(5), the two-year countdown from the date of divorce or separation stops while the spouses are trying to resolve their dispute outside of court with the help of a family justice counsellor, a mediator, a lawyer, or an arbitrator.

How are the amount and duration of spousal support calculated?

When a spouse is entitled to receive spousal support, the amount to be paid and the length of time support should be paid for, called duration, is determined based on factors taken from the Divorce Act, set out at section 162 of the Family Law Act.

The amount of spousal support to be paid and the duration that it should be paid for is often determined using the Spousal Support Advisory Guidelines. The Advisory Guidelines is not a law like the Child Support Guidelines. The Family Law Act does not mention the Advisory Guidelines. However, decisions from the BC Court of Appeal have evolved to the point that the Advisory Guidelines must be considered and are all but mandatory in this province. Advisory Guidelines can be very helpful to figure out how much should be paid and how long it should be paid for. Lawyers and the courts now routinely use the Advisory Guidelines in making decisions about spousal support.

More information about spousal support is available in the Spousal Support chapter and the section on the Advisory Guidelines.

Is a spouse’s conduct taken into account?

Under the Divorce Act, the court is not allowed to consider a spouse's behaviour during the marriage when making an order about spousal support. The same thing is generally true under the Family Law Act, except that under this act the court can take into account misconduct that:

• unreasonably prolongs a spouse's need for support, or
• unreasonably undermines a spouse's ability to pay support.

In other words, the court can look at whether a spouse is being unreasonable in not becoming financially self-sufficient and whether a spouse has reduced work hours, quit a job, or refused to take a job in order to avoid paying support.

How is spousal support paid?

People can make agreements and the court can make orders about who should pay spousal support and about how much support should be paid. Both the Provincial Court and the Supreme Court can make orders about spousal support.

Most of the time, spousal support is paid every month, usually on the first day of the month. If child support is also being paid, child support and spousal support payments can be staggered if that's fair to both parties. It is possible for spousal support to be paid in a single lump sum. Payors can be required to pay by giving the recipient a series of post-dated cheques.

If a payor cannot pay both spousal support and child support, section 173 of the Family Law Act requires the court to give priority to child support.

Are there tax consequences?

There are tax consequences when spousal support is paid on a regular, repeating basis. Spousal support is tax neutral when it is paid as a single lump sum.

The recipient of regular payments of spousal support must declare the support received in their income tax return and pay tax on it, just as if the support payments were employment income. The payor can deduct the spousal support paid from their taxable income, in the same way that RRSP contributions can be deducted from taxable income. This usually means that the recipient has to pay tax at the end of the year while the payor gets a tax refund.

Remember that taxes should be taken into account when figuring out spousal support. At a minimum, recipients should be reminded to put some money aside to pay their taxes.

Reviews

It can sometimes be very difficult to figure out when spousal support should end. The person getting support usually wants support to continue for as long as possible. The person paying support wants support to end as soon as possible. It is hard to settle on an end date if, for example, it’s not known when a spouse will finish job training, become self-sufficient, or recover from an illness.

People often try to avoid this problem by agreeing that spousal support will be paid for now, but that the support will be reconsidered in a review, after a certain amount of time has passed or when a certain event has happened. The Family Law Act says that agreements and orders for spousal support can be reviewable. Agreements and orders for reviewable spousal support can specify:

• what will trigger the review,
• the dispute resolution process that will be used at the review, and
• the factors that will be considered at the review.

The Family Law Act says that a review can also be triggered when someone begins to receive a pension, even if the agreement or order for spousal support doesn’t call for the review.

What about if the payor dies?

If the payor has a life insurance policy, the parties can agree and the court can order that the payor keep the policy up to date and name a person, usually the recipient, as the beneficiary of the policy. This way, the spouse will still be supported if the payor dies.

The parties can agree and the court can order that the payor’s obligation to pay spousal support will continue after the payor’s death and be paid from their estate. Court orders about this can be made at the time the spousal support order is made or after the payor’s death.

Note that the rules about life insurance and support when the payor dies are the same for spousal support as they are for child support.

The law about dividing property and debt

Who is entitled to ask to divide property and debt?

Only spouses can ask to divide property and debt. Under the Family Law Act, for the purposes of dividing property and debt, spouse includes people who:

• are married to each other or who used to be married to each other, and
• have lived together in a "marriage-like relationship" for at least two years.

Note that the people who are spouses for the division of property and debt are different than the people who are spouses for child support and spousal support.

When do claims for the division of property and debt have to be made?

Under the Family Law Act:

• married spouses have to start a court proceeding to divide property and debt within two years of the date of their divorce or the annulment of their marriage, and
• unmarried spouses have to start a proceeding to divide property and debt within two years of the date they separated.

It's important to know that under section 198(5), the two-year countdown from the date of divorce or separation stops while the spouses are trying to resolve their dispute outside of court with the help of a family justice counsellor, a mediator, a lawyer, or an arbitrator.

What is excluded property?

Excluded property is the property each spouse has on the date they began to live together or got married, whichever was first. Excluded property includes certain property received by each spouse during the spouses’ relationship, such as:

• gifts and inheritances,
• court awards for injury or loss, except for awards relating to both spouses or for lost income,
• insurance payments, except for payments relating to both spouses or for lost income,
• certain kinds of trust interests, and
• property bought with excluded property.

What is family property?

Family property is the property either or both spouses got after the date they began to live together or got married, whichever was first. ("Ordinary use for a family purpose," the test under the old Family Relations Act, the law before the Family Law Act, doesn’t matter under the new law.) Family property includes:

• real estate,
• bank accounts,
• interests in companies and businesses,
• debts owed to a spouse,
• pensions and RRSPs, and
• other personal property.

Most importantly, family property also includes the increase in value of excluded property during the spouses’ relationship, beginning either at the date the spouses began to live together or the date of their marriage, whichever is first.

Remember that excluded property includes property bought during the relationship with excluded property, as long as you can trace the old excluded property into the new property.

What is family debt?

Family debt is all debt incurred by either spouse after the date the spouses began to live together or got married, whichever was first, up to the date of separation. Family debt also includes debt incurred after the date of separation if the debt was incurred to maintain family property, like repairing the family home or paying the mortgage.

How are property and debt divided?

Spouses can make agreements and the court can make orders about how property and debt should be divided. Only the Supreme Court can make orders about the division of property and debt.

Note that agreements and orders about debt made under the Family Law Act are only binding between spouses, and don’t affect the rights of creditors or the steps they can take to collect on a debt.

Family property and family debt

Under the Family Law Act, spouses are presumed to:

• each be entitled to one-half of family property, regardless of how they contributed to or used the property, and
• each be responsible for one-half of family debt.

When spouses separate, they each become one-half owners of all family property as tenants in common and one-half responsible for all family debt. Under the Family Relations Act, spouses didn’t become owners of family assets as tenants in common until they made a separation agreement, got divorced, or the court made a declaration under section 57. Now all it takes is separation.

The court can divide family property and family debt unequally if an equal division would be "significantly unfair." The court can take into account a number of reasons why an equal division could be significantly unfair including:

• length of the spouses’ relationship,
• a spouse’s contribution to the other spouse’s career,
• whether the amount of family debt is more than the value of family property,
• whether a spouse reduced the value of family property or got rid of family property to avoid sharing either the property, or the full value of the property, with the other spouse, and
• any taxes owing from dividing the property.

Excluded property

Each spouse’s excluded property is presumed to remain their separate property and to not be shared with the other spouse.

The court can divide a spouse’s excluded property if:

• it can’t divide family property or family debt that is located outside British Columbia, or
• it would be "significantly unfair" not to share the excluded property because of the length of the spouses’ relationship or because of the contributions made by the spouse who doesn’t own the property.

Value of property

The value of property is what a reasonable person — someone objective, not one of the parties — would pay to buy the property in its current state. This is called the property’s fair market value. The process of assessing this value is called valuation, and because property changes value over time, a fixed point-in-time when the property's value is to be assessed (the valuation date) is critically important.

For a signed agreement dealing with property division between spouses, the valuation date is the date of the agreement. For a court order dividing property, the valuation date is the date of the court hearing.

How are pensions divided?

Spouses can make agreements and the court can make orders about how pensions and assets that are like pensions are divided. Only the Supreme Court can make orders about the division of pensions.

RRSP accounts

RRSPs are family property. If RRSPs are divided, the federal Income Tax Act allows them to be equalized between spouses without any taxes being paid.

Workplace pensions

In general, the part of the pension that accumulated between the date the spouses began living together or got married and the date of separation is family property and is divided equally between the spouses. This is true whether the pension is being paid out or not.

Agreements and orders about dividing pensions are carried out by the people who administer the pension plans, not by the spouse who owns the pension.

Note that the division of pensions can be very, very complicated. It is always best to speak to a lawyer about issues with pensions.

Canada Pension Plan credits

Spouses are entitled to equalize the CPP credits they each accumulated between the date they began living together or got married and the date of their separation or divorce. Agreements and orders about the equalization of CPP credits are carried out by the people who administer the Canada Pension Plan in Ottawa.

British Columbia is one of a handful of provinces that let people decide not to divide their CPP credits. To do this, very specific language must be used and it's best to consult a lawyer to make sure you get it exactly right.

How is foreign property divided?

Under the Family Law Act, the court can make orders about family property that is located outside of British Columbia, including about the:

• safekeeping of the property,
• right to use the property, and
• right to own the property.

The court can decide to divide property or family debt inside British Columbia to compensate for property outside of British Columbia, instead of trying to divide it. The court can also divide excluded property between spouses if it can’t divide property outside of British Columbia.  

What about children’s property?

Children sometimes get large amounts of money or property from inheritances, insurance policies, or court awards. Under the Family Law Act, a child’s guardians are not automatically the trustees of the child’s property, except for property with a value of less than $10,000.

A guardian may apply to court to be appointed as trustee for the child’s property. Only the Supreme Court can make orders about children’s property.

Family violence and protection orders

What is family violence?

Family violence is defined in very broad terms in section 1 of the Family Law Act, and includes obvious things like physical abuse as well as:

• sexual abuse,
• attempts to physically or sexually abuse someone,
• psychological and emotional abuse, including by harassing, stalking, or intimidating someone, or by restricting their liberty, and
• in the case of children, being exposed to family violence.

Family violence does not include a person’s use of force to protect themselves, or someone else, from family violence.

What are the duties of professionals?

Under section 8, family justice counsellors, mediators, lawyers, arbitrators, and parenting coordinators are required to assess for family violence and the extent to which it affects someone’s safety or ability to negotiate. These professionals have to discuss with their clients how different family dispute resolution processes may or may not be appropriate, and consider what additional assistance my be necessary, including a safety plan. If there is an imminent risk of serious physical harm, they may have to share confidential information or report a child who needs protection. Some of the Legal Services Society has published a guide to relationship violence for lawyers that covers some of these considerations.

How do you determine what is in children’s best interests?

To decide what is in a child’s best interests, parents and judges must consider all of the needs and circumstances of the child and a number of factors that are listed at section 37 of the Family Law Act. The best interests factors include the impact of any family violence on the child. When family violence is an issue, parents and judges must consider an additional list of factors to assess the impact of the family violence on the child and on a person’s capacity to care for the child. The family violence factors are set out at section 38 and include:

• the nature and severity of the family violence,
• the recency and frequency of the family violence,
• whether the family violence is situational or part of a pattern of controlling behaviour,
• whether the family violence was directed to the child and the extent to which the child was exposed to the family violence, and
• the harm caused to the child’s safety and well-being.

The Family Law Act also says that an agreement or order is presumed not to be in the best interests of a child unless it protects the child’s safety and well-being to the greatest extent possible.

What are protection orders?

The court can make an order against one family member to protect another family member. Protection orders can include orders:

• restricting contact and communications,
• requiring a person to stay away from someone else’s home, school, place of employment, or place of business,
• prohibiting stalking,
• prohibiting a person from possessing weapons, and
• requiring the police to remove a person from the family home.

Protection orders remain in force for one year, unless the protection order says otherwise. Protection orders can be renewed.

Applying for a protection orders

A person at risk of family violence, or someone on that person’s behalf, can ask the court for a protection order as long as the at-risk person and the person from whom the protection order is sought are family members as defined by section 1. In general, a family member is someone who lives with the other person, someone who is a spouse of the other person, and someone who is a parent with the other person. People who don't live together and are just dating will not quality as family members.

Applications for protection orders can be made without notice to anyone else, and may be made whether there is an existing court proceeding or not.

Protection orders that conflict with other orders

If a protection order conflicts with another order made under the Family Law Act, like an order for parenting time or contact with a child, the parts of the earlier order that are in conflict with the protection order are suspended until either the order is changed to remove the conflict, or the protection order expires.

This rule applies to orders that are like Family Law Act protection orders but are made under the Criminal Code or under the laws of another jurisdiction.

Enforcing protection orders

Protection orders cannot be enforced under the Family Law Act or the provincial Offence Act. They can only be enforced under s.127 of the Criminal Code, which makes breach of a court order a criminal offence.

The Family Law Act directs police officers to take action to enforce a protection order, and to use reasonable force if necessary.

Out-of-court processes

What are the alternatives to going to court?

Under the Family Law Act, processes that help people resolve family law problems outside of court are called family dispute resolution processes. Family dispute resolution processes include:

• assistance from family justice counsellors,
• mediation, collaborative processes, and arbitration, and
• parenting coordination.

People can make an agreement that they will resolve a family law problem, or a family law problem that might arise in the future, using a family dispute resolution process rather than going to court.

How are family dispute resolution processes supported?

Duties of professionals

Family justice counsellors, mediators, lawyers, and arbitrators are required to tell people about the different ways that family law disputes can be resolved outside of court.

Lawyers are also required to certify that they have told their client about family dispute resolution processes when they start a court proceeding.

Duties of parties making agreements

People who are trying to resolve family law problems outside of court are required to provide each other with "full and true information." Agreements about support and the division of property and debt can be set aside for a number of reasons, including if:

• a spouse did not make full disclosure of financial information, or
• a spouse took advantage of the other spouse’s lack of knowledge or emotional state.

However, when full disclosure is made, agreements about spousal support and the division of property and debt that were fairly negotiated are harder to set aside under the Family Law Act than they were under the old law.

Suspended time limits

Court proceedings about spousal support or the division of property and debt must normally be started within two years of the date of divorce, for married spouses, or within two years of the date of separation, for unmarried spouses. Under section 198 of the Family Law Act, the countdown for the two-year limit stops while the spouses are involved in a family dispute resolution process with a family justice counsellor, mediator, lawyer, or arbitrator.

What is mediation?

Family justice counsellors, mediators, and lawyers who have special additional training can help people resolve a family law dispute through mediation. In mediation, the mediator helps people reach their own settlement. Although some mediators also give information about the law and may offer an opinion about a person’s position, mediators do not make decisions for people and do not have the power to impose a settlement.

When mediation is successful, the parties will usually sign a separation agreement to document their settlement. Separation agreements can be filed in court and be enforced like court orders.

More information about mediation is available in the Resolving Family Law Problems out of Court chapter in the section on Family Law Mediation.

What is collaborative negotiation?

Lawyers who have special additional training can help people resolve a family law dispute through collaborative negotiation. When people agree to use collaborative negotiation, they and their lawyers sign an agreement that they will use their best efforts to resolve the dispute outside of court, and that if the parties do have to go to court they will hire new lawyers.

Collaborative negotiation works like ordinary negotiation but involves other professionals when their participation will help the parties to reach a settlement:

• clinical counsellors or psychologists can be involved as coaches, helping the parties work through their emotions and stumbling blocks in the negotiation process,
• clinical counsellors or psychologists can be involved as child specialists, giving the parties advice about parenting schedules and how the children are experiencing the separation, and
• accountants, appraisers, and tax experts and other financial specialists can be involved to help the parties figure out complicated problems about money.

When collaborative negotiation is successful, the parties will usually sign a separation agreement to document their settlement. Separation agreements can be filed in court and be enforced like court orders.

More information about collaborative negotiation is available in the Resolving Family Law Problems out of Court chapter in the section on Collaborative Process.

What is arbitration?

In arbitration, a person with special training, often a lawyer, resolves a family law dispute by making a decision, called an award, that is binding on the parties like a court order. Although arbitration can be a lot like going to court, it has a lot of advantages over court processes:

• the parties can pick the person they want to arbitrate their dispute,
• the arbitration hearing can be scheduled whenever everybody is available without having to wait on trial scheduling,
• arbitration hearings happen in private, often in the arbitrator’s office boardroom,
• the parties can choose the rules of the arbitration process, and
• the parties can decide to have the arbitrator resolve a dispute in many different ways, including without hearing from witnesses but relying on the parties’ arguments, reading the parties’ documents, or reading the parties’ affidavits.

The result of an arbitration process is the arbitrator’s award. The arbitrator’s award is private, but can be filed in court and be enforced like a court order.

Arbitration in British Columbia is governed by the Arbitration Act. The Family Law Act makes a number of changes to this law to improve how it deals with family law problems.

More information about arbitration is available in the Resolving Family Law Problems out of Court chapter in the section on Family Law Arbitration.

What is parenting coordination?

Social workers, counsellors, psychologists, mediators, and lawyers who have special additional training can help people resolve disputes about the care of children through parenting coordination. Parenting coordinators are appointed by the parents’ agreement or by a court order, and are appointed for terms ranging from six months to two years. A parenting coordinator’s appointment can be renewed, if the parenting coordinator agrees.

Parenting coordination is only used where the parents have an agreement or a final court order about parental responsibilities, parenting time and contact, and is meant to help with:

• implementing the parts of the agreement or order about children,
• improving how the parents deal with conflict about their children,
• improving how the parents communicate with each other, and
• making sure the parents put the needs and interests of the children first.

Parenting coordinators cannot help with child support, spousal support, or the division of property and debt.

Parenting coordinators try to resolve disputes about children by helping the parents find a settlement, like a mediator. However, when a settlement cannot be reached or the dispute is urgent, the parenting coordinator may make a decision resolving the dispute, like an arbitrator. A parenting coordinator’s decision is called a determination. Determinations can be filed in court and be enforced like court orders.

More information about parenting coordination is available in the Resolving Family Law Problems out of Court chapter in the section on Parenting Coordination.

In-court processes

Which court deals with which family law problem?

The powers of the Provincial Court are pretty much the same under the Family Law Act as they were under the old Family Relations Act. The Supreme Court can deal with all family law problems, but the Provincial Court can only deal with problems about the care of children, child support, and spousal support.

As a result, the Provincial Court can make declarations about the parentage of a child, but only if the declaration is necessary to handle a claim within its jurisdiction. The Provincial Court can also enforce agreements and orders, but only the parts of agreements or orders that are within its jurisdiction.

What happens when there’s a proceeding in each court?

Starting a court proceeding in one court doesn’t stop a proceeding being started in the other court, unless the claims made in the second proceeding have already been dealt with by the first court. Section 194 of the Family Law Act talks about what happens when there is a proceeding in each court:

• The making of an order by one court doesn’t stop an application in the other court, unless the application is about the same thing as the order made by the first court.
• A court can refuse to deal with a claim until the claim has been dealt with by the other court.
• The Supreme Court can consolidate a Provincial Court proceeding with its own proceeding so that both are handled as a single proceeding in the Supreme Court.

The Supreme Court can change a Provincial Court order to accommodate an order it is making. The Supreme Court cannot otherwise change Provincial Court orders except as the result of an appeal.  

How does the court manage court processes and people in court?

Guiding principles

The Family Law Act says that court proceedings should be run with as little delay and formality as possible, and in a way that promotes cooperation between parties and protects adults and children from family violence. The court is also required to encourage parties to focus on the best interests of their children and minimize the effect of their conflict on their children.

Preventing misuse of court processes

If a party is frustrating or misusing the court process, the court can make an order prohibiting the party from making further applications without permission under section 221. When making such orders, the court can also:

• make the order last for a specific period of time, or until the party has complied with another order,
• require the party to pay another person’s expenses, and
• make the party pay up to $5,000 to a person or as a fine.

Conduct orders

Under section 222 of the Family Law Act, the court may make a conduct order to:

• encourage settlement,
• manage a party’s behaviour that is frustrating settlement, and
• prevent misuse of the court process.

Conduct orders include orders:

• that the parties participate in a family dispute resolution process,
• that one or more of the parties, or a child, attend counselling,
• restricting communication between the parties, and
• that a party continue to pay for debts and services related to the family home, like paying the mortgage or paying the gas bill.

Note that conduct orders restricting communication can also be made as protection orders.  

Case management orders

Conduct orders include case management orders. Case management orders include orders:

• striking out all or part of a claim or application,
• delaying a court proceeding while the parties participate in a family dispute resolution process, and
• requiring that all other applications be heard by the same judge (e.g. a judge might do this for highly litigious proceedings).

How are orders enforced?

Some orders, like orders about parenting time and contact, have their own enforcement procedures. Where an order under the Family Law Act doesn't have a specific enforcement procedure, the general enforcement provisions of the act are used. Under section 230, the court may enforce an order by requiring a party to:

• post security in court to guarantee their future good behaviour,
• cover the expenses of the other party resulting from their conduct, or
• pay up to $5,000 to another person or as a fine.

Where nothing else will get a party to obey a court order, the court may order that the party be imprisoned for up to 30 days.

Both the Provincial Court and the Supreme Court can enforce orders.

Resources and links

Legislation

• Family Law Act

Resources

• A Very Brief Introduction to the Family Law Act (PDF): A plain-language overview of the Family Law Act written for justice system workers and advocates.
• An Overview of the Family Law Act (PDF): A more complicated overview of the 'Family Law Act', prepared before the act came into effect, written for lawyers and judges.

Links

• "The Family Law Act Explained", from the Ministry of Attorney General
• "The Family Law Act Regulations Explained", from the Ministry of Attorney General
• "Amendments to Court Rules", from the Ministry of Attorney General
• Living Together or Living Apart, from the Legal Services Society

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by JP Boyd, June 21, 2019.

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.