Difference between pages "Criminal Offences under the Youth Criminal Justice Act (2:III)" and "Divorce (3:IV)"

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{{REVIEWED LSLAP | date= July 18, 2021}}
{{REVIEWED LSLAP | date= August 12, 2021}}
{{LSLAP Manual TOC|expanded = youth}}
{{LSLAP Manual TOC|expanded = family}}


== A. Applicable Age ==
== A. Legislation ==
A “Child” is defined in section 2(1) of the ''YCJA'' as "a person who is, or, in the absence of evidence to the contrary, appears to be less than 12 years old". The ''CC'' states in section 13 that no person under the age of twelve years will be convicted of an offence.


A “Young person” is defined in section 2(1) of the ''YCJA'' as "a person who is, or, in the absence of evidence to the contrary, appears to be, 12 years old or older, but less than 18 years old".
The federal legislation governing divorces in Canada is the ''DA''. The ''DA'' applies to legally married couples, including same-sex couples as long as residency requirements for one spouse are met. It does not apply to common-law couples or other unmarried couples. The provincial family law legislation in BC is the ''FLA'', which applies to people in all relationships. The reason there are two statutes governing this area is the division of powers under sections 91 and 92 of the [http://canlii.ca/t/8q7k ''Constitution Act, 1867''], which gives the federal government jurisdiction over “Marriage and Divorce” (s 91), while giving provincial governments jurisdiction over “The Solemnization of Marriage in the Province” and “Property and Civil Rights” (s 92).


Section 14(5) states that the ''YCJA'' applies to "persons 18 years old or older who are alleged to have committed an offence while a young person". Section 14(4) states that "extrajudicial measures taken or judicial proceedings commenced against a young person" under the Act may be continued "after the person attains the age of 18 years".
== B. Jurisdiction ==


== B. Applicable Court ==
=== 1. Supreme Court ===
Under section 2(5) of the ''Provincial Court Act'', RSBC 1996, c 379, the Provincial Court is designated as the Youth Justice Court for the purposes of the ''YCJA'', and a Provincial Court judge is a Youth Justice Court judge.  The superior court of British Columbia has concurrent jurisdiction as a Youth Justice Court where the Crown is seeking an adult sentence for a young person.


== C. Declaration of Principle ==
The Supreme Court of British Columbia has jurisdiction over both the ''DA'' and the ''FLA''. Because all divorce claims must be heard under the ''DA'', the Supreme Court has exclusive jurisdiction over divorce claims. The Supreme Court has concurrent jurisdiction with Provincial Court  over guardianship, parenting arrangements and support for children (including common-law couples) while division of property is under  exclusive jurisdiction of the Supreme Court. If a Supreme Court order for parenting time, access, or support is made under the ''DA'', that order supersedes any existing ''FLA'' order. However, given the new ''FLA'' and change of terms under the provincial legislation (parenting time, guardianship and access to guardianship, parenting arrangements and contract), there is likely to be litigation regarding which act applies and when.  
The ''YCJA'' contains a declaration of principle.  The principles are set out in section 3 of the ''YCJA'' and must be used to interpret the entire Act.


#The youth criminal justice system is intended to protect the public by:
An uncontested divorce does not require a personal appearance in Supreme Court. Evidence can be submitted by affidavit with the application  for the Divorce Order, called a “Desk Order Divorce”. In fact, parties are required to submit applications for Divorce by way of a “Desk Order” unless there is a reason to bring it on by way of application in Chambers.
##holding young persons accountable through measures that are proportionate to the seriousness of the offence and the degree of responsibility of the young person,
##promoting the rehabilitation and reintegration of young persons who have committed offences, and
##supporting the prevention of crime by referring young persons to programs or agencies in the community to address the circumstances underlying their offending behaviour.
#The criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability, and must emphasize the following:
##rehabilitation and reintegration,
##fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity,
##enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected,
##timely intervention that reinforces the link between the offending behaviour and its consequences, and
##the promptness and speed with which persons responsible for enforcing this Act must act, given young persons’ perception of time.
#Within the limits of fair and proportionate accountability, the measures taken against young persons who commit offences should:
##reinforce respect for societal values,  
##encourage the repair of harm done to victims and the community,
##be meaningful for the individual young person given their needs and level of development and, where appropriate, involve the parents, the extended family, the community and social or other agencies in the young person’s rehabilitation and reintegration, and
##respect gender, ethnic, cultural and linguistic differences and respond to the needs of aboriginal young persons and of young persons with special requirements.
#Special considerations apply in respect of proceedings against young persons. In particular,
##young persons have rights and freedoms in their own right, such as a right to be heard in the course of and to participate in the processes, other than the decision to prosecute, that lead to decisions that affect them, and young persons have special guarantees of their rights and freedoms,
##victims should be treated with courtesy, compassion and respect for their dignity and privacy and should suffer the minimum degree of inconvenience as a result of their involvement with the youth criminal justice system,
##victims should be provided with information about the proceedings and given an opportunity to participate and be heard, and
##parents should be informed of measures or proceedings involving their children and encouraged to support them in addressing their offending behaviour.


== D. Right to Counsel ==
Note that as of March 1, 2021, the term 'custody' under the ''DA'' was repealed, and the term 'parenting time' is used in its place.  
Under section 25 of the ''YCJA'', "a young person has the right to retain and instruct counsel without delay...at any stage of the proceedings".  A police officer must inform young persons of their right to counsel upon their arrest or detention. The Legal Services Society of British Columbia provides legal services for young persons, regardless of their income or their parents’ income.


== E. Right to Notice ==
=== 2. Provincial Court ===
Notice must be given to the parents as soon as possible in any of the following circumstances:


*the young person is arrested and detained in custody
The Provincial Court only has jurisdiction to hear matters under the ''FLA'' and cannot hear any claim under the ''DA'', including divorce applications. The Provincial Court can make orders or vary original Provincial Court orders relating to guardianship, parenting arrangements, contact, child support, and spousal support. The Court does not have jurisdiction to deal with claims for the division of '''property''' under the ''FLA''.
*a summons or appearance notice is issued to the young person
*the young person is released on giving a promise to appear, or
*upon the young person entering into a recognizance (ss 26 (1) and (2))


When the whereabouts of the parents of a young person are unknown, notice may be given to an adult relative or to any other adult who is known by the young person and who is likely to assist the young person (s 26(4)).  When notice has not been given, the court may adjourn the proceedings until notice is given or may dispense with notice if the court thinks it would be appropriate (s 26(11)).
== C. Requirements for a Divorce ==


Notice is not required if the person has attained the age of 20 at the time of their first appearance before a Youth Justice Court (s 26(12)).
=== 1. Jurisdiction ===


The court may, if necessary, order the attendance of a parent at proceedings against a young person. A parent who then fails to attend may be held in contempt of court (s 27).
To obtain a divorce in a particular province, one of the parties to the claim must have been “ordinarily resident” in that province for at least one year immediately preceding the presentation of the Notice of Family Claim (''DA'', s 3(1)). A person can be “ordinarily resident” in a province and still travel or have casual or temporary residence outside the province.  


== F. Alternatives to the Court Process: Extrajudicial Measures and Sanctions ==
[http://www.parl.gc.ca/legisinfo/BillDetails.aspx?billId=5387766&Language=E&Mode=1 ''An Act to Amend the Civil Marriage Act''] received Royal Assent and came into force on June 26, 2013. It allows non-resident couples married in Canada to divorce in Canada if they cannot get a divorce where they live. 


=== 1. Extrajudicial Measures ===
Extrajudicial measures (EJM) are an alternative to the formal court process.  The principles applicable to the use of EJM’s are set out in section 4 of the ''YCJA''.  There is a presumption that EJM’s are adequate to hold a young person accountable for their offending behaviour if the young person has committed a non-violent offence and has not previously been found guilty of an offence. 


However, it may also be appropriate even if there has been a prior use of EJM’s or a prior finding of guilt. The addition of section 4.1(1) from Bill C-75 sets out the direction that EJM’s are also presumed to be adequate to hold a young person accountable in certain cases of breach of sentencing conditions or failure to appear at court, subject to the violations not having caused harm or safety concerns to the public or the young person having a history of failures or breaches. S 4.1(2) of Bill C-75 sets out that EJM’s should be used if they are adequate to hold the young person accountable for their failure to appear or refusal. If EJM’s are inadequate, the next measures the court should consider before proceeding with a charge are 1) issuing an appearance notice for a judicial referral hearing, or 2) applying for a review of the youth sentence. Only once these measures are deemed inadequate should the court proceed with a charge.
There must not be another divorce proceeding involving the same parties in another jurisdiction. If two actions are pending and were commenced on different days, and the proceeding that was commenced first is not discontinued, the court in which a divorce proceeding was commenced first has exclusive jurisdiction (DA s 3(2)) to hear and determine any divorce proceeding between the spouses, and the second divorce proceeding is deemed to be discontinued. Parties must submit a clearance form, filled out online and printed, at the time of filing the Notice of Family Claim and Marriage Certificate.


Section 5 of the ''YCJA'' outlines the objectives of EJM's. EJM’s should be designed to:
=== 2. A Valid Marriage: Proof of Marriage ===


*provide an effective and timely response to offending behaviour,
Section 52(1) of the [http://canlii.ca/t/840j ''Evidence Act'', RSBC 1996, c 124] states that if it is alleged in a civil proceeding that a ceremony of marriage took place in BC or another jurisdiction, either of the following can serve as evidence that the ceremony took place:
*to encourage young persons to acknowledge and repair the harm caused,
*a) the evidence of a person present at the ceremony (less common); or
*to encourage families of the young persons and the community to become involved in the design and implementation of those measures,
*b) a document purporting to be the original or a certified copy of the certificate of marriage (the church certificate is not acceptable). Note: A certified copy is often not accepted by the Registry and all efforts should be made to obtain the original marriage certificate.
*to provide an opportunity for victims to participate in decisions, and
*to respect the rights and freedoms of young persons and be proportionate to the seriousness of the offence.  


Both summary and indictable offences (in exceptional circumstances) may be considered for EJM’s.  
The simplest way is to use a certificate of marriage or registration of marriage. Only if the certificate or registration of marriage is not available should the evidence of a person present at the ceremony be used. An official translation of the marriage certificate and a translator’s affidavit must be provided if the marriage certificate is in any language other than English. French language marriage certificates must also be translated. The Court may require further proof that the marriage is valid if the documents evidencing the marriage appear questionable. Immigration and landing documents can be used as additional proof of marriage in these situations. In British Columbia, a party can order an original marriage certificate from Vital Statistics by filling out a request form. See the [https://www.vs.gov.bc.ca/marriage/certificate.html Vital Statistics website].


Forms of EJM available:
If a marriage certificate absolutely cannot be provided (e.g. the records cannot be obtained from the parties’ country of origin or were destroyed), and if there are no witnesses to the marriage available, a party to the divorce proceeding can attempt to prove their marriage by attesting to “cohabitation and reputation” in an affidavit. The Court will hear evidence of the couple’s “cohabitation and reputation” from the parties and witnesses. Where there are witnesses to the marriage available, a witness will be required to sign and swear an affidavit stating that: they were at the ceremony, it was conducted in accordance with the laws and religion of the country where the parties married, and to the best of their knowledge, the two parties were in fact married according to their law and traditions.
*To a police officer are (s 6):
**to take no further action
**to warn the young person
**to administer a caution, or
**to refer the young person to a program or agency in the community (with the consent of the young person).
**''Bill C-75 states that a police officer must consider whether one of these EJM’s will be sufficient before taking any other action''.
*To Crown Counsel are (s 8):
**to administer a caution.


Section 6 of the Act requires police officers to consider extrajudicial measures and to refer cases to community agencies and programs when appropriate. Community Accountability Programs (CAPs) are funded by the Province of British Columbia and offer alternatives to the traditional justice system.
=== 3. Grounds for Divorce ===


Many CAPs accept criminal case referrals from the police as well as the community. The programs use Restorative Justice principles. Restorative Justice is a philosophy that aims to address the harms caused by criminal acts and work towards a resolution for the offender, victim, and community. While approaches may vary across programs, many use one-to-one facilitation, talking circles and conferences to work towards a confidential resolution that does not result in a criminal record for the person who has caused harm. To participate, the youth offender must take responsibility for their actions. The participation of other parties, such as victims, parents, and community members may depend on the case and the CAP.
In accordance with s 8(1) of the ''DA'', either or both spouses may apply for a divorce on the ground that there has been a breakdown of their marriage as evidenced by separation for a year, adultery, or physical or mental cruelty (see below). For the divorce action to succeed, the claimant must have valid grounds under s 8(2)(a) or 8(2)(b), and the respondent must be unable to raise a valid defence. Most divorces are based on separation rather than adultery or cruelty, in part because the accusing party must prove adultery and/or cruelty on the balance of probabilities. Where a claim for divorce based on adultery or cruelty has been filed for more than one year before the application for divorce is heard, the Court will usually grant the divorce on the ground of one year separation.


=== 2. Extrajudicial Sanctions ===
Note the decision of [http://canlii.ca/t/4zgl ''McPhail v McPhail'', 2001 BCCA 250], in which the Court found that, where both the grounds of cruelty and the grounds of a one-year separation for divorce exist, it would be appropriate for a trial judge to exercise their discretion to grant the divorce on the grounds of a one-year separation (no-fault) instead of on cruelty (fault). This was extended in [http://canlii.ca/t/fw3t1 ''Aquilini v. Aquilini'', 2013 BCSC 217] to  state that a one year separation should be used as the grounds for divorce instead of adultery where both exist.
Extrajudicial sanctions (EJS) may be used where the seriousness of the offence, the nature and number of previous offences committed by the young person or any other aggravating circumstances make a warning, caution, or referral inadequate (s 10 ''YCJA'').  


EJS’s may be used only if(s 10(2)):
== D. Divorces Based on Separation: s 8(2)(a) ==


#they are part of a program of sanctions authorized by the Attorney General;
=== 1. Separation - One Year ===
#the sanctions are considered appropriate having regard to the needs of the young person and the interests of society;
#the young person, having been informed of the EJS, fully and freely consents to be subject to it;
#the young person has, before consenting to be subject to the EJS, been advised of their right to be represented by counsel and been given a reasonable opportunity to consult with counsel;
#the young person accepts responsibility for the act or omission that forms the basis of the alleged offence;
#there is, in the opinion of the Attorney General, sufficient evidence to proceed with the prosecution of the offence;
#the prosecution of the offence is not in any way barred at law.


This procedure commonly involves an interview with a youth worker (through the local probation office), who will recommend a plan to the prosecutor that may include conditions such as counselling, restitution, community service, victim offender mediation, or an apology. Section 10(3) precludes EJS’s in circumstances where the young person denies culpability or expresses a desire to have the charges proceed against them in youth justice court.  Statements accepting responsibility, made as a condition of being dealt with through EJS’s, are not admissible in evidence in any subsequent civil or criminal proceedings (s 10(4)). If EJS’s are imposed, the person who administers the program must inform the parents of the young person about the sanctions (s 11).  Victims, upon request, are entitled to be informed of the identity of the young person and how the offence was dealt with when an EJS is used (s 12).
Under the ''DA'', neither party needs to prove “fault” to get a divorce. Most divorces will proceed under s 8(2)(a), separation for a period of at least one year. '''Although the pleadings starting the action can be filed immediately upon separation, the Divorce Order cannot be sought until one day after the parties have been separated for one year.'''


== G. Court Process ==
The ground of separation requires recognition by '''one''' of the parties that the marriage is at an end. It is not necessary that the parties form a joint intention. It is also not necessary that the two parties live in separate homes, although they must live “separate and apart” and demonstrate their intention to separate. For example the parties may, move into separate bedrooms in the same home.


=== 1. Compelling a Young Person’s Appearance in Court ===
=== 2. 90-Day Reconciliation Period ===
The procedure for compelling a young person to attend court is generally the same as that for adults as set out in the ''CC''.  A police officer may release a young person on either an Appearance Notice or a Promise to Appear (an Undertaking). These documents will indicate a time, date and location for the Young Person’s first appearance in Court. If the Information is not laid prior to this first appearance the Appearance Notice or the Promise to Appear will be rendered a nullity.  The Undertaking, however, will continue in force as long as the charges are before the Court. 


If the young person does not appear when they are supposed to or fails to comply with an undertaking, they can be charged with failure to comply. If the original charge that they made the Promise to Appear/Undertaking for is dismissed, withdrawn, or stayed, or the young person is acquitted, the Attorney General must review the charge for failure to comply before that prosecution can proceed (Bill C-75 s 24.1).
Any number of reconciliation attempts may be made during the separation year without affecting the application for divorce. However, if:
*the length of any reconciliation attempt exceeds 90 days; or  
*the aggregate total length of reconciliations exceeds 90 days, then the time for calculating the one year period of separation must start over again with the first day of calculation being the first day of separation after the 90+ day reconciliation ended (s 8(3)(b)(ii)).  


The Ontario Court of Appeal in [http://canlii.ca/t/22qlw ''R v Oliveira'', 2009 ONCA 219] held that a Promise to Appear and an Undertaking serve two distinct and separate purposes.  The Court went on to explain that the purpose of the Promise to Appear is to secure the initial attendance of the Accused in Court. The Undertaking, in contrast, constitutes a promise by the Accused to comply with certain conditions in exchange for his release from custody pending the resolution of the charges.
=== 3. Living Under the Same Roof ===


Alternatively, and after an Information has been laid, a young person will be compelled to Court by either a Summons or a Warrant.  A Warrant is issued where:
Some couples may choose to continue to live under the same roof after they have decided to separate for financial reasons or for the sake of the children. Indications of separation include: they have separate bank accounts, separate bedrooms, cook their own meals, do their own laundry, etc. (i.e., if there is an obvious severance of the conjugal relationship), they can still be considered separated.  
*Crown Counsel is either seeking the Detention of the young person or conditions of release for the young person, or
*the whereabouts of the young person are unknown.


=== 2. Time Limitations ===
This is the case for the ''DA'', though it should be noted that the Canada Revenue Agency (CRA) takes a different position when it comes to taxes and child benefit payments. The CRA does not recognize living  separate and apart under the same roof for the purpose of tax benefits unless there is a separate suite in the home.  
The time limitation for commencing a prosecution is the same for adults and youth. The time limitations vary depending on the nature of the offence and are set out in the ''CC''. See [[Introduction to Criminal Law (1:I) | Chapter 1: Criminal Law]]'''.


=== 3. Proof of Age ===
== E. Divorces Based on Cruelty or Adultery: Divorce Act, s 8(2)(b) ==
The age of the young person must be established. This is usually done at the early stages of the proceedings. There are a number of ways that this can be accomplished:
*a parent can testify as to the age of the young person (s. 148(1) ''YCJA''),
*a birth or baptismal certificate can be evidence of the age of a young person (s. 148(2) ''YCJA''),
*Defence Counsel may attest to having spoken with a parent or guardian, and on that basis, admit the age of the young person (s. 149 ''YCJA''), or
*the Court may act on any other information it considers reliable to determine the age of a young person (s. 148(3) ''YCJA'').


=== 4. Proof of Notice ===
Divorces based on separation require at least one year to pass before the divorce order can be granted. Divorce claims based on the ground of cruelty or adultery can result in an immediate divorce.
It must be shown that a young person’s parent or guardian has been notified of the charges against the young person.
*If detained, a police officer must contact the parents (in writing or orally) as soon as possible and tell them the location where the young person is being held and the reason for their arrest.
*If released on a Promise to Appear or other Undertaking, the police officer must give written notice to the parents as soon as possible.
*If given a ticket under the Contraventions Act (other than a parking ticket), the parents should be given written notice as soon as possible.  
*If the parents cannot be located, notice can be given to another relative or adult who is likely to assist the young person and is deemed appropriate.


=== 5. Pre-Trial Detention and Conditions ===
=== 1. Adultery: s 8(2)(b)(i) ===
The rules of pre-trial detention are set out in sections 28 and 29 of the ''YCJA''. A young person cannot be detained in custody or have conditions included in an undertaking as a substitute for appropriate child protection, mental health or other social measures.


Moreover, starting December 18, 2019, a young person may be subjected to a condition only if the judge/justice is satisfied that (s 29(1)):
Adultery is voluntary sexual intercourse between a married person and a person other than their spouse. The meaning of “adultery” includes sexual acts outside the marriage with a person of the same sex (''SEP v DDP'', [2005] BCJ No 1971 (BCSC)). The standard of proof for adultery is the same as the civil standard: the Court must be satisfied on a balance of probabilities (see ''Adolph v Adolph'' (1964), 51 W.W.R. 42 (BCC.A)). Proof can come in the form of an affidavit from one or both of the adulterers.
*the condition is needed to ensure their court appearance or keep safe or protect the public,
*the condition is reasonable to the circumstances of the offending behaviour, and,
*the young person would reasonably be able to comply with the condition.


A young person may only be detained in custody where the Crown has proven, on a balance of probabilities, that:
The Court will require proof that the adulterous conduct was not forgiven by the innocent spouse (condonation) and that the conduct was not conspired towards for the purposes of obtaining the divorce (collusion and connivance, see below).
#The young person has either:
#*been charged with a serious offence (as defined in s 2, ''YCJA''), or
#*has a history that indicates a pattern of either outstanding charges or findings of guilt.
#There is either:
#*a substantial likelihood that the young person will not appear in court, or
#*evidence that detention is necessary for the protection of the public having regard to all the circumstances including a substantial likelihood that the young person will commit a serious offence, or
#*evidence that the young person has been charged with a serious offence and detention is necessary to maintain confidence in the administration of justice having regard to the declaration of principle and all the circumstances, including: the strength of the prosecution’s case, the gravity of the offence, circumstances surrounding the commission of the offence, and the young person is liable for a potentially lengthy custodial sentence.
#There are no conditions that would:
#*reduce the likelihood that the young person would not appear in court, or
#*offer adequate protection to the public, or
#*maintain confidence in the administration of justice.


Bill C-75 adds the requirement that if a young person is charged with a summary offence (or the Crown is proceeding summarily), the need for detention must be reviewed every 30 days.
=== 2. Physical or Mental Cruelty: s 8(2)(b)(ii) ===


A young person may be placed in the care of a responsible person instead of being held in custody if a youth justice court is satisfied that:
The test for cruelty is subjective. The question asked in a cruelty case is whether the conduct is of such a kind as to render intolerable the  continued cohabitation of the spouses. There is no objective standard in the sense that certain conduct will constitute cruelty in every case while other conduct will not. The respondent’s conduct may constitute cruelty even if there is no intent to be cruel. What has to be determined is the effect of the conduct on a particular person, rather than the nature of the acts committed (''Burr v Burr'', [1983] BCJ No 743).  
#the young person would otherwise be detained in custody; and
#the person is willing and able to take care of and exercise control over the young person; and
#the young person is willing to be placed in the care of that person.


A responsible person who agrees to care for a young person under section 31(3) adopts a very serious responsibility. The responsible person must sign an undertaking that binds them to oversee and essentially police the young person’s bail order. This undertaking often includes a term that the responsible person report to the police and the bail supervisor any breaches of the bail conditions. Wilful failure to comply with the terms of the undertaking may result in the responsible person being charged with an offence punishable with up to two years imprisonment (s 139).
If the spouses are still cohabiting, the Court will infer that the conduct was not intolerable unless the claimant had no means or opportunity for leaving (''Cridge v Cridge'' (1974), 12 RFL 57, (BCSC)). Lack of income, children at home, and difficulty with the English language may  qualify as reasons for continuing cohabitation.  


Section 30 of the ''YCJA'' provides that a young person who has been detained in custody prior to being sentenced must be placed in a youth facility. When that person attains the age of 20 years they shall be placed in an adult facility.
Again, to make a case based on cruelty, there must be proof on the balance of probabilities. Things that could be entered as evidence in this area include medical evidence such as charts and doctors' statements.


=== 6. Pleas ===
== F. Why a Divorce Application May Be Rejected ==
A young person may plead guilty or not guilty (s 36). The plea of not guilty by reason of mental disorder is also available. Pleas must be entered before a Youth Justice Court judge (not a judicial justice of the peace).


After a guilty plea is entered a Youth Justice Court judge may order the preparation of:
=== 1. Collusion ===
#a pre-sentence report (s 40); or
#a medical, psychiatric and/or psychological report (s 34).


The Judge may also convene a section 19 Conference. Where a not guilty plea is entered a Trial Date is set.
Collusion is, simply put, both parties conspiring to obtain a divorce. A more expansive definition can be found in s 11(4) of the ''DA''.  


=== 7. The Trial Process ===
Collusion is an '''absolute bar''' to a divorce on the grounds of cruelty or adultery.  
The trial process is the same for young persons as it is for adults.


==== ''Admissibility of Statements''  ====
=== 2. Condonation ===
The law relating to the admissibility of statements made by adult accused persons to persons in authority also applies to youths (s 146(1)).  There are, however, specific provisions that ensure a young person understands both the consequences of making such a statement and is given the opportunity to seek and/or consult counsel (s 146(2)).  The right to counsel may be waived but must be done so either by a signed written statement or a recorded statement (s 146(4) and (5)).  A judge may rule inadmissible any statement given by a young person if satisfied that it was given under duress (s 146(7)).  Voluntary statements can be admitted into evidence, even where there has been a technical irregularity in complying with a young person’s statutory protection, provided that the Youth Justice Court is satisfied that the admission of the statement would not offend the principle that young persons are entitled to enhanced procedural protection to ensure that they are treated fairly and that their rights are protected (s 146(6)).


In [http://canlii.ca/t/2dpvh ''R v AD'', 2010 BCSC 1715], the statement of the 15-year-old accused was found inadmissible for non-compliance with s 146(2)(d) of the ''YCJA''. In that case, Justice Stromberg-Stein notes that “[i]nforming a young person they are ''entitled'' to have a lawyer or third party with whom they have consulted present, rather than phrasing this as a ''requirement'', is ‘deficient’ and ‘not completely accurate’, as s 146 draws an important distinction between the rights of the young person and the requirements placed upon the police.” In that case, counsel for the accused was out of town and unable to immediately come to the police station where the accused was detained. Although the police informed AD of his right to have his lawyer present during the interview, it was clear that they were going to interview him that same day, regardless of his lawyer’s availability.
Condonation consists of forgiving a marital offence that would otherwise be a ground for divorce. There are three requirements: knowledge of the matrimonial offence by the claimant; forgiveness of the offence; and actual reinstatement of the relationship. A single attempt or a series of attempts at reconciliation totalling less than 90 days does '''not''' qualify as condonation.  


The ''YCJA'' does not specify the standard of proof the Crown must meet to show compliance with s 146. In [http://canlii.ca/t/20m8f ''R v LTH'', 2008 SCC 49], the Supreme Court of Canada stated each component of s 146 must be proved beyond a reasonable doubt. If a young person has been interviewed,  Crown  must  prove  the person  taking  the young  person’s  statement  took reasonable steps to ensure the young person understood their rights (R v LTH, 2008 SCC 49, 2 SCR 739, at para 6).  Simply reading a standardized form will likely not fulfill the caution requirement of s 146(2)(b). The person in authority  must  make  reasonable  efforts  to  determine the level  of  comprehension of the specific young person to ensure their explanation is appropriate.  
Condonation is a '''discretionary bar''' to a divorce. If the matter is raised, the onus is on the claimant to disprove it.  


In ''R v LTH'', the majority of the Court found the police officer, when reading the accused his rights, failed to take into account  that  the accused had a learning disability, and, as a result, found the statement inadmissible. In ''R v LTH'', the Court also notes that Crown Counsel does not have to prove the young person actually understood the rights explained to them. If the Judge is satisfied, beyond a reasonable doubt, that the young person’s rights and options were explained as required by s 146, the judge may infer the young person understood those rights and the consequences of waiving them. The burden then shifts to the defence to point to evidence showing the young person did not in fact understand their rights or the consequences of waiving those rights.
=== 3. Connivance ===


==== ''Children and Young Persons as Witnesses'' ====
Connivance occurs when one spouse encourages the other to commit adultery or cruelty. There must be a “corrupt intention... to promote or encourage either initiation or the continuance... or it may consist of a passive acquiescence....”. Keeping watch on the other spouse does not constitute passive acquiescence: [http://canlii.ca/t/g14fn ''Maddock v Maddock'', [1958<nowiki>]</nowiki> OR 810 at 818, 16 DLR (2d) 325 (CA)].


Where a child is a witness at a Youth Court trial, the Judge or Justice must instruct that child as to the duty to speak the truth and the consequences of failing to do so.  Where a young person is a witness the Judge or Justice may instruct the young person as to this duty “if he/she considers it necessary” (s 151).  
Connivance is a '''discretionary bar''' to a divorce, similar in effect to condonation.


There are special protections under the ''Criminal Code'' for witnesses who are under the age of 18 years. A justice/judge has the discretion under section 486 of the ''CC'' to exclude members of the public from the courtroom if they are of the opinion that such an order is in the interest of public morals, the maintenance of order or the proper administration of justice. The “proper administration of justice” includes ensuring that the interests of witnesses under the age of eighteen years are safeguarded in all proceedings (''CC'', s 486(2)(b)).  A witness who is under the age of 18 years may also be entitled to have a support person present in the courtroom while testifying (''CC'', s 486.1), to testify outside the courtroom or to testify behind a screen (''CC'', s 486.2).  The child or young person must be advised of these options.
=== 4. Discretion of the Court ===


Section 16.1 of the ''Canada Evidence Act'' provides that a person under 14 years of age is presumed to have the capacity to testify. Any person who challenges the capacity of such a witness bears the burden of satisfying the Court that there is an issue as to the witness’ capacity to understand and respond to questions. It must be shown that the witness does not understand the duty of speaking the truth.
In cases of condonation or connivance, the claim for divorce will be dismissed unless, in the Court’s opinion, the public interest would be better served by granting the divorce.  


== H. Sentences ==
The Court may also reject an application for divorce where: a divorce is pending in another jurisdiction; a marriage certificate or  registration of marriage has not been provided; there are defects in the application materials; or there are defects in the form of draft order provided with the  application. The Court registry is very particular about the content and form of both the applications materials and the  draft order, which may result in the rejection of the application before it gets to a judge.


=== 1. Youth Sentences ===
=== 5. Divorce Will Not Be Granted Until Child Support Is Settled ===
The purpose and principles of sentencing under the ''YCJA'' are set out in sections 3 and 38 of the Act.  The purpose of sentencing is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote their rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public (s 38(1)).  The principles of sentencing are set out in section 38(2) and include:


<ol type="a">
In a divorce proceeding, it is the duty of the Court to satisfy itself that “reasonable arrangements” have been made for the support of any children of the marriage, typically having regard to the Federal Child Support Guidelines. If such arrangements have not been made, s 11(1)(b) of the ''DA'' requires the Court to stay the granting of the divorce. When stepchildren are involved, the Court will determine child support requirements for a stepparent on a case-by-case basis. The definition of “child of the marriage” in s 2 of the ''DA'' is broad enough to include children for whom one spouse “stands in the place of a parent”.
<li>The sentence must not result in a punishment greater than would be appropriate for an adult convicted of the same offence committed in similar circumstances,</li>
<li>The sentence must be similar to that which would be imposed in other regions,</li>
<li>The sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence,</li>
<li>All available sanctions other than custody should be considered, with particular attention to the circumstances of Aboriginal young persons,</li>
<li>Subject to paragraph (c) the sentence must:
*be one that is the least restrictive, the most likely to rehabilitate and that will promote a sense of responsibility in the young person and an acknowledgement of the harm done to the victim(s) and society. None of these factors should be considered in isolation from each other, the other principles in 38(2), or the purposes and objectives of the act as a whole.
*e.1. Any condition imposed as a part of the sentence can only be imposed if it is necessary to achieve the purpose set out in s 38(1), if the young offender would reasonably be able to comply with  it, and if it is not used as a substitute for appropriate child protection, mental health or other social measures.</li>
<li>Subject to paragraph (c), the sentence may have the objective to denounce unlawful conduct and deter the young person from committing offences.</li>
</ol>
General deterrence is not a sentencing principle under the ''YCJA''.  


Although all elements listed under 38 (2) should be taken into consideration during sentencing the B.C. Court of Appeal has indicated that there is a hierarchy within that section. R v. S.N.J.S., [2013] B.C.J. No. 1847, the court noted that “to the extent that there is any hierarchy within the principles laid down in s. 38(2), it is (c) which is at the top of that hierarchy”. In S.NJ.S. at paragraphs 26 – 29 the Court reviewed the interplay between s.38(2)(d) and (e) with s. 38(2)(c) and indicated that S.38(2)(e) is subject to s.38(2)(c) and the need to impose a sentence proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence is at the top of the hierarchy. Further the court indicated that in respect of the criteria within 38(2)(e) there is no hierarchy between the three principles, and there is no reason for a judge to treat (e)(i) as trumping (e)(ii) or (iii). The judge must consider all of those requirements, along with the other principles laid down in s.38(2), and the principles set out in s.3, in determining a sentence. Additionally the court opined that the YCJA is not entirely “offender-centric”(para 28)
== G. Separation Agreements ==


In determining a youth sentence, section 38(3) requires a Youth Justice Court consider:
=== 1. General – Family Law Act ===
<ol type="a">
<li>The degree of participation of the young person in the offence,</li>
<li>The harm done to victims,</li>
<li>Any reparation made by the young person,</li>
<li>The time the young person has already spent in detention as a result of the offence,</li>
<li>Any previous findings of guilt of the young person, and</li>
<li>Any other aggravating and mitigating circumstances.</li>
</ol>
A Youth Justice Court shall, before imposing a youth sentence, consider a pre-sentence report prepared by a youth worker, representations made by the parties, other relevant information and recommendations submitted as a result of a section 19 Conference (s 42(1)). Mandatory minimum sentences under adult or provincial statutes do not apply to young persons. The maximum duration of youth sentences is set out in section 42(14) to (16).  A custodial sentence cannot be used as a substitute for appropriate child protection, mental health or other social measures (s 39(5)).


Sentencing options are set out in section 42(2),''YCJA''. Non-custodial sentence options include:
The ''FLA'' defines a written agreement as an agreement that is in writing and signed by all parties (s 1 ''FLA''). A separation agreement is  a legal contract that generally provides for a division of property and debt, the support of a dependent spouse, and for the support,  guardianship and parenting arrangements of a child by a parent.
<ol type="a">
<li>A judicial reprimand,</li>
<li>An absolute discharge,</li>
<li>A conditional discharge,</li>
<li>A fine to a maximum of $1000,</li>
<li>Compensation and restitution,</li>
<li>Community work service,
<li>Probation,</li>
<li>An Intensive Support and Supervision Program Order (ISSO), and</li>
<li>Non-residential programs</li>
</ol>
Where a fine or an order for compensation or restitution is imposed, a court must consider the present and future means of the young person to pay. If a fine is imposed, the ''YCJA'' allows for the lieutenant governor in council of the province to order a percentage of any fine imposed on a young person to be used to assist victims of offences (s 53(1)). In B.C., an Order in Council has set this at 15%. Where a conditional discharge, probation or ISSO is imposed, the court must ensure that any conditions included complying with the requirements in s 38(2)(e.1) of the YCJA.


Section 39(1) of the ''YCJA'' provides that a young person cannot be committed to custody unless:
A separation agreement can deal with some or all of these issues. It can eliminate much of the emotional disturbance involved in courtroom  proceedings, and provide the parties with an arrangement to which they have both agreed, as opposed to a Court order, with which neither party may be happy. Part 2, Section 6 outlines that parties are able to make agreements to resolve disputes and respecting matters at issue in a family law dispute and subject to the ''FLA'', the agreement is binding on the parties.
<ol type="a">
<li>The young person has committed a violent offence,</li>
<li>The young person has previously been found guilty of an offence under section 137 in relation to more than one sentence and, if the court is imposing a sentence for an offence under subsections 145(2) to (5) of the Criminal Code or section 137, the young person must have caused harm, or a risk of harm, to the safety of the public in committing that offence,</li> 
<li>The young person has committed an indictable offence for which an adult would be liable to imprisonment for a term of more than 2 years and has a history that indicates a pattern of either extrajudicial sanctions or of findings of guilt, or</li>
<li>In exceptional cases where the young person has committed an indictable offence, the aggravating circumstances of the offence are such that the imposition of a non-custodial sentence would be inconsistent with the purpose and principles set out in section 38.</li>
</ol>
The Youth Justice Court under section 39(2) of the YCJA is required to consider all alternatives to custody that are reasonable in the circumstances and, if custody is imposed, reasons must be given as to why the Court found a non-custodial sentence inadequate to achieve the purpose of sentencing as set out in section 38(1) (s 39(9)).


Prior to committing a young person to custody, the Judge must consider a pre-sentence report (s 39(6)). This requirement can be waived, with the consent of the prosecutor and the young person, and if the Youth Justice Court is satisfied that it is unnecessary (s 39(7)).
The overarching test for any agreements made regarding Part 4 of the ''FLA'' (guardianship, parenting arrangement contact) is the best interest of the child test in section 37 of the ''FLA''.  


Custodial sentence options include:
A separation agreement between spouses can also deal with division of family property and family debt, as well as any assets excluded from division.  
<ol type="a">
<li>'''Deferred Custody and Supervision Order (s 42(2)(p)''':  This is a custodial sentence served in the community.  It is not available where a young person has committed an offence that causes or attempts to cause serious bodily harm.  The maximum duration of this sentence is 6 months.  If the young person breaches a condition of the DCSO, a warrant may be issued and, after a hearing, the DCSO may be converted to a Custody and Supervision Order.</li> 


<li>'''Custody and Supervision Order (s 42(2) (n))'''. The maximum duration of a CSO is two years, or three years if an adult maximum sentence is life imprisonment.  Two thirds of the sentence must be served in custody while the remaining one-third is served under a community supervision order.  The level of custody (open custody or secure custody) must be specified by the youth justice court (s 88 and Order in Council 267/2003).  The provincial director sets the mandatory and optional condition of the community portion of the CSO (s 97).  In [http://canlii.ca/t/273vr ''R v RRJ'', 2009 BCCA 580], the British Columbia Court of Appeal held that pre-sentence detention is not part of the sentence imposed.  The Court explained that the Judge must consider time already served in custody when sentencing a young person but that the judge may still choose to impose the maximum period of custody and supervision available under the statute.</li> 
Section 85 of the FLA excludes the following from the division of family property:
* Property acquired by a spouse before the relationship between the spouses began;
* Inheritances to a spouse;
* Gifts to a spouse from a third party;
* A settlement or an award of damages to a spouse as compensation for injury or loss, unless the settlement or award represents compensation for
** Loss to both spouses, or
** Lost income of a spouse;
* Money paid or payable under an insurance policy, other than a policy respecting property, except any portion that represents compensation for
** Loss to both spouses, or
** Lost income of a spouse;
* Property referred to in any of the paragraphs above that is held in trust for the benefit of a spouse;
* A spouse's beneficial interest in property held in a discretionary trust
** To which the spouse did not contribute, and
** That is settled by a person other than the spouse;
* Property derived from property or the disposition of property referred to in any of the above paragraphs.


<li>'''Custody and Supervision Order (s 42(2) (o))''':  A custody term of a maximum of three years can be imposed where a young person is convicted of either attempted murder, manslaughter or aggravated sexual assault.  There is no minimum time period that must be spent in custody.  The time spent in custody is left up to the Judge’s discretion.</li> 
Each spouse must be aware of the potential influence of any agreement on future expectations, and the legal implications of the agreement on questions of ownership and title in family property. Each spouse should have independent legal advice, even in cases where the parties seem to be in agreement on the terms of a separation agreement. If a separation agreement has been signed and one party did not have independent legal advice this may go towards evidence of unfair contracting and it may be possible to overturn the contract.  


<li>'''Custody and Supervision Order (s 42(2) (q))''':  Young persons convicted of murder can be committed to custody for longer periods of time.  A young person convicted of 1st degree murder can serve a custodial sentence of 10 years (no more than 6 years can be served in continuous custody). In the case of 2nd degree murder a sentence of 7 years can be imposed (no more than 4 can be served in continuous custody).</li>  
It is possible that a separation agreement containing provisions for support may be regarded by the Court as evidence of liability on the part of the supporting spouse. While the agreement does not usurp the Court’s jurisdiction in support, guardianship or parenting arrangements, the Court will consider the terms of the agreement when making the order. Whether the Court will uphold the  terms of  the agreement  changes  depending on the subject matter of the agreement. See sections of the ''FLA'' that apply to each subject matter. Note also that any orders respecting agreements are subject to s 214 of the ''FLA''.


<li>'''Intensive Rehabilitative Custody and Supervision Order (s 42(2) (r) and 42(7))''': These orders are rare and are usually imposed when a young person has serious mental health issues.
In addition to property settlements, guardianship or parenting arrangements, and support, the separation agreement may embrace any other matters the parties wish to include in it, and often includes estate provisions, releases, penalties for breach of the contract, etc. A  separation agreement can be more flexible than a Court order. For example, a Court order cannot contain contingent terms, but a separation agreement can.  


The ''YCJA'' allows for a delay in the imposition of a custody order where appropriate.  In these instances, the probation order commences prior to the custody order and stipulates that the custody sentence begin immediately after the designated period of delay (s 42(12)).</li> 
:'''NOTE:''' Because of the complicated nature of separation agreements, clients who wish to make a separation agreement should be given family law referrals.
</ol>
While in custody a young person, with the assistance of a youth worker, must plan for their reintegration into the community, including the preparation and implementation of a reintegration plan that sets out the most effective programs for the young person in order to maximize their chances for reintegration in the community (s 90(1)).


Section 76(2),''YCJA'' prohibits young persons under the age of 18 years from serving any portion of their custodial sentence in either a provincial correctional facility for adults or a penitentiary. A young person who is serving a youth custodial sentence may be transferred to an adult correctional facility if the Court considers it to be in the best interests of the young person or in the public interest (s 92).  A young person who turns 20 years old while serving a custodial sentence will be transferred to an adult facility (s 93). A young person who has reached the age of 20 at the time the custodial youth sentence is imposed will be committed to a provincial correctional facility for adults (s 89(1)).
== H. Other Points to Note ==


====Section 19 Conferences====
=== 1. Jurisdictions to Vary Proceedings ===


A Youth Justice Court may convene a conference under section 19 for recommendations as to an appropriate sentence (ss 41 and 19).  Conferences can be an effective means of coordinating services, broadening the range of perspectives on a case, and arriving at more creative and appropriate resolutions. Conferences can be composed of a number of different people, including the victim the accused, their parents, members of the justice system, and community resource professionals. The conference may elicit advice on decisions such as a suitable extrajudicial measure, a condition for release from pre-trial detention, appropriate sentencing and plans for reintegrating the young person back into the community after release from custody.
Section 5(1) of the ''DA'' allows a Court in a province other than the Court of original jurisdiction (that is, the Court which originally made an order) to vary an order made under the ''DA'' if:
*One of the former spouses is ordinarily resident in the province at the commencement of the proceeding; or
*Both former spouses accept the jurisdiction of the Court.


=== 2. Adult Sentences ===
=== 2. Adjournment for Reconciliation under the DA ===
Crown Counsel may make an application to the youth justice court for an order that a young person is liable to an adult sentence if the young person is or has been found guilty of an offence for which an adult is liable to imprisonment for a term of more than 2 years and that was committed after the young person attained the age of 14 years (s 64(1)). Prior to changes in Bill C-75, the Crown Counsel was obligated to consider whether it would be appropriate to seek an adult sentence for a young person, over the age of 14 years, who committed a serious violent offence (murder, attempt murder, manslaughter or aggravated sexual assault), and to advise the court of that decision. Provinces could also choose to fix an age greater than 14 years but not greater than 16 years for the purpose of this requirement to consider an adult sentence. As of September 19, 2019, the last two points have been repealed.


The Youth Justice Court shall order that an adult sentence be imposed if Crown Counsel has satisfied the Court that:
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, s 10(2) of the ''DA'' allows the Court to adjourn the proceedings to give the spouse an opportunity to reconcile. The Court can also, with the spouses' consent, nominate a marriage counselor, or in special circumstances, some other suitable person to assist a reconciliation.  
<ol type="a">
<li>The presumption of diminished moral blameworthiness or culpability of the young person is rebutted (s 72(1)(a)), and</li> 
<li>A youth sentence would not be of sufficient length to hold the young person accountable for their behaviour (s 72(1)(b)).</li>
</ol>
Although youths can be sentenced as adults the sentencing guidelines are not strictly the same as those that would be utilized in sentencing an adult. In [http://canlii.ca/t/1r1sv ''R v Pratt'', 2007 BCCA 206], the British Columbia Court of Appeal recognized that the court must consider the principles of sentencing in section 3 YCJA when sentencing a youth, including a youth who receives an adult sentence.


=== 3. Reintegration Leave ===
=== 3. Alteration of Effective Date of Divorce ===


The Provincial Director may, subject to any terms or conditions that they consider desirable, authorize a young person committed to custody in a youth facility the opportunity to have leave from the facility. There are two categories of leave:
Under s 12 of the ''DA'', a divorce takes effect on the 31st day after the day on which the judgment granting the divorce is rendered. The 31 days allow for the appeal period to expire. The Court may order that the divorce take effect before this if it is of the opinion there are special circumstances and the spouses agree that no appeal from the judgment will be taken. The impending birth of a child and remarriage are generally not considered compelling reasons to shorten the appeal period. However, one may file an appeal waiver to remarry sooner.  
<ol type="a">
<li>'''Reintegration Leave''': This leave is granted for medical, compassionate or humanitarian reasons or for the purpose of rehabilitating the young person or reintegrating the young person into the community. The maximum length of time is 30 days (s 91(1)(a)).</li>


<li>'''Day release:''' This leave is to allow a youth to attend an educational facility, to attend work, to assist their family, to participate in programming related to school and/or work or to attend an outpatient treatment program or other program that provides services to address the needs of the young person (s 91(1)(b)).</li>
=== 4. Support Order After Divorce Has Been Granted ===
</ol>
Reintegration leaves are also available to a young person serving an adult sentence in a youth facility.


=== 4. DNA Sample ===
Under s 15 of the current ''DA'', for the purposes of child support, “spouse” means either of two persons a male or female who are married to each other (s 2(1)) and also includes “former spouse”. This means that a former spouse may be able to get a support order after the divorce has been granted.  
When a young person is found guilty of certain designated offences (see s 487.04 of the ''CC''), an order may be made for the young person to  provide samples of one or more bodily substances for the purpose of forensic DNA analysis, under ss 487.051 and 487.052. The resulting DNA data is stored in a DNA databank, which is maintained by the RCMP.  


The ''DNA Identifications Act'', SC 1998, c 37, has been amended so as to limit the retention of DNA samples taken from a young person. DNA samples taken from young persons can be retained for shorter periods of time than those taken from adults (s 9.1) and shall be promptly destroyed when the record relating to the offence is expunged (s 10.1).
The amended ''DA'' has repealed s 15 and updated the definition of “spouse” under s 2(1) to reflect the sections under which the meaning of “spouse” is inclusive of “former spouse.” This change came into effect March 1, 2021.


== I. Review of Sentences ==
=== 5. Mediation ===


=== 1. Custodial Sentences ===
A form of mediation for separating couples is provided by the Family Justice Counsellors of the Ministry of Attorney General. It is intended to steer people out of the Court system. Similar to the small claims process, if the two parties come to an agreement through mediation they may choose to sign a binding contract after the process. Should either party choose not to sign, the agreement will not be binding. There are offices throughout BC, which can be located using the blue pages of the telephone book under BC Corrections Branch, or Family Court: Probation  and Family Court Services. The service is confidential and free. Family Justice Counsellors cannot deal with property and debt division.
An annual review is mandatory for all custodial sentences over one year. This review is to take place without delay at the end of one year from the date of the earliest youth sentence imposed and the end of every subsequent year from that date (ss 94 (1) and (2)).  


A young person may be entitled to an optional review. When the youth sentence is for less than one year a young person may request a review 30 days after the sentence is imposed or after serving one third of the sentence, whichever is greater (ss 94(3)(a)(i) and (ii)). When the youth sentence exceeds one year a young person may seek a review after serving six months of the sentence (s 94(3)(b)). In either case, the review will only take place where the Youth Justice Court is satisfied that there are grounds for such review (s 94(5)). Possible grounds for review are as follows:
There is also the Family Mediation Practicum Program which aims to provide affordable mediation services to participants while also offering  practical training to new mediators (along with an experienced mentor mediator). See [[Governing Legislation and Resources for Family Law (3:II)#B. Resources on the Internet | B. Resources on the Internet in Governing Legislation and Resources for Family Law (3:II)]].  
*The young person has made sufficient progress to justify a change in the sentence
*The circumstances that led to the youth sentence have changed materially
*There are new services or programs available that were not available at the time of the youth sentence
*The opportunities for rehabilitation are now greater in the community, or 
*Any other grounds the youth justice court considers appropriate (s 94(6)).


A progress report must be prepared for the purposes of review (s 94(9)). A Youth Justice Court, after review, may confirm the sentence or it may release the young person from custody and place the young person on conditional supervision (s 94(19)). The terms of the condition supervision will be imposed by the youth justice court in accordance with section 105.
Parties may wish to retain a private family law mediator to assist them in mediating a resolution to their family law matter. They may contact  the British Columbia Mediator Roster Society for names of family law mediators. See [[Governing Legislation and Resources for Family Law (3:II)#B. Resources on the Internet | B. Resources on the Internet in Governing Legislation and Resources for Family Law (3:II)]]. Not all family law mediators are listed on the roster, and there are many family lawyers who are specifically trained and accredited in family law mediation.  


=== 2. Non-Custodial Sentences ===
The new ''FLA'' favours out of Court resolution of issues, and even gives courts the authority to refer parties to counselling and mediation (s 4 ''FLA''). It also formally recognizes the role of and duties of family dispute resolution professionals (Section 1-8), family justice counsellors (Section 1-10), and parenting coordinators (Division 3).
As of December 18, 2019, section 59(1) of the ''YCJA'' allows for non-custodial sentences to be reviewed at any time after they are imposed. They no longer require leave from a PCJ for a review within the first 6 month period after sentencing. The application for review can be made by the provincial director, the young person, the young person’s parent, or by Crown Counsel (s 59(1)). The grounds for review are:
*The circumstances that led to the youth sentence have changed materially,
*The young person is unable to comply with or is experiencing serious difficulty in complying with the terms of the youth sentence,
*The young person has contravened a condition of an order without reasonable excuse,  
*The terms of the youth sentence are adversely affecting the opportunities available to the young person to obtain services, education or employment, or
*Any other ground that the youth justice court considers appropriate (s 59(2)).  


A progress report may be ordered for the purposes of such a review (s 59(3)). A Youth Justice Court, after conducting a review, may confirm the youth sentence, terminate the youth sentence or vary the youth sentence (s 59(7)). Subsection 59(8) states that the varied sentence cannot be more onerous that the original youth sentence, unless the young person consents or more time is required to comply with the youth sentence (s 59(9)). The time to complete a community work service order or a restitution order may be extended for up to 1 year (s 59(9)). Further, the new s 59(10) allows for more onerous conditions to be added onto a sentence made under 42(2) or (1) if they would either better protect the safety of the public from the risk of harm by the young offender, or if it would assist the young offender to comply with any conditions previously imposed as part of the sentence.
=== 6. Collaborative Divorce ===


== J. Appeals ==
Another option for parties dealing with family law matters is the Collaborative Divorce Model. This offers an option for parties to resolve  disputes respectfully and without going to Court. Parties work out a negotiated settlement with the help of collaboratively trained  professionals including (as needed) lawyers, divorce coaches, child specialists and financial specialists. This allows the parties to negotiate a settlement without the threat of Court. If the parties are unable to resolve matters through the Collaborative process, the Collaborative  professionals will not be involved in Court proceedings. See the websites listed in [[Governing Legislation and Resources for Family Law (3:I)#16. Collaborative Divorce | Collaborative Divorce]] for more information.  
Under the ''YCJA'', young persons and the Crown have the same rights of appeal as adults under the CC (ss 37(1) and (5)). However, a young person cannot appeal a sentence review decision, whether mandatory or optional (s 37(11)).


== K. Special Concerns ==
=== 7. Rule 7-1: Judicial Case Conferences ===  


=== 1. Public Hearings ===
In cases where relief other than a simple divorce is sought in the Supreme Court, Rule 7-1 of the Supreme Court Family Rules (British Columbia) requires that a judicial case conference (JCC) be held before a party to a contested family law proceeding delivers a notice of application or affidavit in support of an interlocutory application to the other party There are exceptions to this rule. A party may file and serve a notice of application and supporting affidavits in any of the following applications even though a JCC has not yet been conducted:
Youth Justice Court hearings are open to the public. A justice may, however, exclude any person from all or part of the proceedings if the Justice considers that the person’s presence is unnecessary to the conduct of the proceedings and the justice is of the opinion that:
*An application for an order under section 91 of the FLA restraining the disposition of any property at issue;
*Any information presented to the Justice would be seriously injurious or seriously prejudicial to the young person, a witness, or a victim, or
*An application for an order under section 32 or 39 of the Family Homes on Reserves and Matrimonial Interests or Rights Act (Canada) or a First Nation's law made under that Act with respect to an equivalent matter;
*It would be in the interest of public morals, the maintenance of order or the proper administration of justice to exclude any member of the public (s 132).
*An application for a consent order;
*An application without notice;
*An application to change, suspend or terminate a final order;
*An application to set aside or replace the whole or any part of an agreement;
*An application to change or set aside the determination of a parenting coordinator.


=== 2. Publication of a Young Person’s Identity ===  
=== 8. Divorce Law and First Nations People ===
Section 110(1) ''YCJA'' states that no person shall publish the name of a young person, or any other information that would result in the identification of a young person. This ban does not apply:
*Where the information relates to a young person who has received an adult sentence, or,
*Where the publication of information is made in the course of the administration of justice and not for the purpose of making the information known in the community.


Bill C-75 eliminated the court-initiated lifting of publication ban for violent youth offenders as of September 19, 2019.
Special concerns arise in cases involving First Nation People registered under the [http://canlii.ca/t/7vhk ''Indian Act'', RSC 1996, c 23]. The ''Indian Act'' sets out guidelines for and definitions of Aboriginal people, and defines who is eligible for “status”. Only “status” people are affected by the legislation under the ''Indian Act''. One spouse’s treaty payment may be directed to the other “where the Ministry is satisfied he deserted his spouse or family without sufficient cause, conducted himself in such a manner as to justify the refusal of his spouse or family to live with him, or has been separated by imprisonment from his spouse and family” (''Indian Act'', s 68). As well, reserve land allocated by a certificate of possession cannot be dealt with in the same manner as a matrimonial home as the rules in the ''FLA'' do not apply to reserve land. However, in such cases, the Court may ask that the spouse  in  possession  of  the  reserve  land  pay  cash  compensation  to  the  other  spouse  (''George v George'' (1997), 30 BCLR (3d) 107). Keep in mind that most provincial laws apply to Aboriginal people and reserve land, unless they are in direct conflict with the ''Indian Act''. Further, courts will almost always take the cultural identity of the children into consideration when making an order for parenting time; see e.g. [https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1699/index.do ''D.H. v H.M.'', [1999<nowiki>]</nowiki> SCJ No 22], and see [http://canlii.ca/t/51z8 ''Van de Perre v Edwards'', [2001<nowiki>]</nowiki> SCJ No 60].  


Once a young person attains the age of eighteen years he or she may apply to lift the ban on publication for the purpose of permitting that person to publish information that would identify him or her as having been dealt with by the ''YCJA''. The ban will only be lifted if the Youth Justice Court is satisfied that the publication would not be contrary to the young person’ best interests or the public interest (s 110(6)).
Furthermore, for First Nation Peoples living on reserves, the ''Family Homes on Reserves and Matrimonial Interests or Rights Act'' (S.C. 2013, c. 20) applies and can affect the division of assets in the case of divorce or separation (see ss 43, 46).


=== 3. Fingerprints and Photographs ===  
=== 9. Other Procedural Options ===
The ''Identification of Criminals Act'', RSC 1995, c I-1, applies to young persons. Fingerprints and photographs of a young person can only be taken in circumstances in which an adult would be subject to the same procedures (''YCJA'', s 113).


=== 4. Records: Access and Disclosure ===
There are many other procedural options available to parties in Family Law disputes. Section 8 of the ''FLA'' requires counsel and other  Family Dispute Resolution Professionals to discuss the advisability of the various types of family dispute resolution, which include those listed above as well as the following:
Sections 114 to 129 of the ''YCJA'' govern the records relating to young people which are kept in relation to the Youth Justice Court process. These provisions set out who may keep records in relation to a young person who is charged under the Act, and restrict access and control the disclosure of information contained within these records.  
*(a) Mediation
*(b) Family Law Arbitration. See http://family.legalaid.bc.ca/visit/arbitrators for more information
*(c) Med/Arb, which is a combination of both Mediation and Arbitration.
*(d) Judicial Settlement Conferences pursuant to Rule 7-2 of the ''Supreme Court Family Rules''
*(e) Family Management Conferences pursuant to Rule 7(1) of the ''Provincial Court Family Rules''
# The Provincial Court (Family) Rules will be repealed in May 2021 and the new Provincial Court Family Rules will take effect. Once this occurs, Family Management Conferences will replace Family Case Conferences.
*(f) The use of a Parenting Coordinator to address ongoing parenting and communication issues between the parties after an order or agreement has been reached for the parenting arrangement. For more information see http://www.bcparentingcoordinators.com/


Records that arise out of proceedings under the ''YCJA'' may be kept by:
== I. Availability of Divorce Services in BC ==
*A Youth Justice Court, a review board or any court dealing with matters arising out of proceedings under the ''YCJA'' (s 114),
*An investigating police force may keep a record relating to any alleged offence or any offence committed by a young person (s 115(1)),
*An investigating police force may keep a record of any extrajudicial measures that they use to deal with young persons (s 115(1.1)),
*A department or an agency of any government in Canada for the purpose of investigation, use in proceedings against the young person, sentencing, and considering the young person for extrajudicial measures (s 116(1)).


Who has access to these records is set out in sections 117 to 124 ''YCJA''. Except as authorized by the ''YCJA'' no person is to be given access to a record, kept under sections 114 to 116, and no information contained in it may be given to any person, where to do so would identify the young person as a person dealt with under the Act (s 118(1)). Sections 119(1-2) list the persons to whom access to records may  be granted and the time limits within which access can be granted. These time limits vary in length depending on the treatment of the young person by the court. After the applicable access period has ended a person must apply to a Youth Justice Court judge to gain access to the  records and the application must meet the requirements set out in section 123(1). The group of persons to whom access will be granted with respect  to extrajudicial sanctions has special limitations (s 119(4)).
=== 1. Legal Aid ===


Not all records concerning young persons are governed by the same rules with respect to access. Under section 120 ''YCJA'' RCMP records may be accessed by:
[http://www.legalaid.bc.ca/ Legal Aid] will provide extremely limited assistance to those who meet their income requirements. Clients must also have a risk or history of family violence, or a risk or history of child abduction, to be eligible for this service. Legal Aid will not assist with divorces.
*the young person to whom the record relates,
*the young person’s counsel,
*a government of Canada employee for statistical purposes,  
*any person with a valid interest in the record if a judge is satisfied that access is desirable in the public interest for research or statistical purposes,
*the Attorney General or a peace officer for the purpose of investigating an offence,  
*the Attorney General or a peace officer to establish the existence of an order in any offence involving a breach of an order, and
*any person for the purposes of the Firearms Act.  


Sections 125 to 127 of the Act deals with disclosure of the information in a record. These rules outline who may disclose information which is in their possession, to whom they may disclose the information, and when such disclosure will be permitted. Before any information is disclosed, the young person must have an opportunity to be heard unless reasonable efforts locate the young person have been unsuccessful.
=== 2. Lawyers ===


=== 5. Mental Health Provisions ===
All lawyers will expect an initial payment from their client. The amount of the initial retainer will vary depending on the lawyer’s hourly rate and their estimation of the complexity of the case. The cost of a simple, uncontested divorce begins at approximately $1,000 and up.  Advise clients to use the [http://www.cbabc.org/for-the-public/lawyer-referral-service Lawyer Referral Service] (604) 687-3221 or 1-800-663-1919. The first half-hour will only cost $25, with the lawyer charging their standard rate thereafter.  
Young persons who come into contact with the criminal justice system may suffer from mental health issues. The ''CC'' provisions regarding mental disorders apply to the ''YCJA'' except to the extent they are inconsistent with the ''YJCA'' (s 141). Section 34 of the ''YCJA'' allows the Court to take into account the mental health of a young person and order a report in certain circumstances.  


Pursuant to section 34, at any stage of the proceedings the Court may order an assessment of a young person by a qualified person who is required to report the results of the assessment in writing:
To minimize costs when retaining a lawyer, clients should be advised to:  
<ol type="i">
*Negotiate the cost of legal services in advance, so they do not come as a surprise;
<li>with the consent of the young person and the Crown, or</li>
*Collect all necessary documentation rather than pay the lawyer to do it;
<li>on its own motion or on application of the young person or the Crown if the court believes a report is necessary and:
*Call the lawyer only when imparting necessary information (every phone call costs money);
*the Court has reasonable grounds to believe that the young person is suffering from a physical or mental illness or disorder, a  psychological disorder, an emotional disturbance, a learning disability, or a mental disability,
*Use Family Court and Supreme Court resources (such as Family Justice Counsellors) if appropriate;
*the young person has a history indicating a pattern of offences, or
*Ask for regular or scheduled billing to monitor escalating legal costs;
*the young person is alleged to have committed a serious violent offence.</li> 
*Carefully read all correspondence sent by the lawyer; and  
</ol>
*Treat the lawyer as a professional.
In practice, the threshold for meeting 34 (a) is broader than it appears. In R v. D.P. (6 July 2017), Vancouver 23695-2-C, 23664-1 (BC Youth Div) the Youth Division of the BC Provincial Court clarified that to order a report under s 34 (1) the court does not need to conclude or even suspect that the evaluation would indicate that a person has a “diagnosed condition”. Instead, 34(1) is satisfied if there is some indication that there is information relating to the young person’s medical condition that would assist the court in carrying out it’s purpose.
 
An assessment report can be ordered under ''YCJA'' section 34(2) for a limited number of designated purposes, i.e. if the Youth Justice Court is:
*considering an application under s 33 (release from or detention in custody),
*deciding whether to impose an adult sentence under s 71,
*making or reviewing a youth sentence,
*considering an application for continuation of custody (s 104(1)),
*setting conditions for conditional supervision (s 105(1)),
*making an order after a review of a breach of conditional supervision (s 109(2)), or  
*authorizing disclosure of information about a young person (s 127(1)).
 
Section 34(2)(a) seems to significantly narrow the purposes for which an assessment can be ordered and restricts it to instances where the court is reviewing a previous decision via a section 33 application. In practice, however, the courts suggest that 34(2)(a) should be read to include bail hearings in the first instance. In R v. C.L. (27 February 2014), Vancouver 22805-2-C (BC Youth Div) the Youth Division of the BC Provincial Court noted that restricting s. 34 applications to a youth applying to release from detention “leads to an absurd result” because the same considerations apply before there has been a detention. Similarly, in R v C.B. ( 13 May 2014), Vancouver 23236-1; 23236-2-A (BC Youth Div) the court recognized that 34(2), if read narrowly, is inconsistent with other parts of the act. In C.B. the court notes that s. 34 (2) should be read “expansively” so that it applies to “a release from or detention in custody of a young person who is before the court, whether it is by s.33 or by the more general process of arrest”. Both cases indicate that 34 (2) (a) is not limited to applications under s. 33.
 
Only the people described in section 119 of the ''YCJA'' can have access to the medical and psychological reports outlined in section 34.
 
For more information on mental illness and the law, see [[Introduction to Mental Health and Capacity (14:I) | Chapter 14: Mental Health Law]].
 
=== 6. Victims ===
Amendments have been made to the ''CC'' to enhance the role of the victim in the criminal trial process. The ''YCJA'' also aims to enhance the victim’s role. This is demonstrated by the references to victims’ rights in the general principles of section 3 and the fact that consideration of the harm done to victims and reparations are relevant in youth sentencing (s 38(3)).
 
B.C. is at the forefront when it comes to victim rights’ legislation, particularly in relation to the enactment of the ''Victims of Crime Act'', which helps to ensure victims’ views and concerns will not go unnoticed. In 2015, Parliament enacted the ''Canadian Victims’ Bill of Rights'', which guarantees victims’ rights throughout the criminal justice system across Canada. Refer to [[Introduction to Law for Victims of Crime (4:I) | Chapter 4: Victims]] for more information.
 
=== 7. Sex Offenders Information Registration Act ===
In April 2004, Parliament enacted the ''Sex Offenders Information Registration Act'', SC 2004, c 10 [“''SOIRA''”], to help police  investigate sexual crimes by providing them with up-to-date information from convicted sex offenders. The Act imposes an ongoing reporting process for  sex  offenders  to  provide  information  regarding  residence,  telephone  numbers, employment, education, and physical description.
 
Section 490.011(2) of the ''CC'' provides that the ''SOIRA'' applies to young persons only if they are given adult sentences. Section 7 of the ''SOIRA'' allows a sex offender who is under 18 years to choose an adult to be in attendance when they report to a registration centre where information is collected.
 
=== 8. Forfeiture ===
 
Forfeiture amounts may have been set out in an Undertaking or release order. Applications to follow through on the forfeiture are made to the youth justice court (s 134 ''YCJA''). A Judge will arrange a hearing to decide if the forfeiture should be allowed or not.


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Revision as of 22:25, 15 September 2021

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on August 12, 2021.
LSLAP Manual
LSLAP Manual
This page is from the
Law Students' Legal
Advice Program Manual.
See the full contents.
LSLAP Manual
Introduction
Chapters
3. Family Law
 · I. Introduction

 · II. Governing Legislation and Resources
 · III. Marriage
 · IV. Divorce
 · V. Uncontested Divorce
 · VI. Simple Divorce Procedure
 · VII. Alternatives to Divorce
 · VIII. Family Violence
 · IX. Assets
 · X. Spousal and Child Support
 · XI. Parenting Orders/Guardianship/Contact
 · XII. Children and the Law
 · XIII. Adoption
 · XIV. Name Changes
 · XV. Court Procedures

 · Appendix A: Glossary
v • d • e



A. Legislation

The federal legislation governing divorces in Canada is the DA. The DA applies to legally married couples, including same-sex couples as long as residency requirements for one spouse are met. It does not apply to common-law couples or other unmarried couples. The provincial family law legislation in BC is the FLA, which applies to people in all relationships. The reason there are two statutes governing this area is the division of powers under sections 91 and 92 of the Constitution Act, 1867, which gives the federal government jurisdiction over “Marriage and Divorce” (s 91), while giving provincial governments jurisdiction over “The Solemnization of Marriage in the Province” and “Property and Civil Rights” (s 92).

B. Jurisdiction

1. Supreme Court

The Supreme Court of British Columbia has jurisdiction over both the DA and the FLA. Because all divorce claims must be heard under the DA, the Supreme Court has exclusive jurisdiction over divorce claims. The Supreme Court has concurrent jurisdiction with Provincial Court over guardianship, parenting arrangements and support for children (including common-law couples) while division of property is under exclusive jurisdiction of the Supreme Court. If a Supreme Court order for parenting time, access, or support is made under the DA, that order supersedes any existing FLA order. However, given the new FLA and change of terms under the provincial legislation (parenting time, guardianship and access to guardianship, parenting arrangements and contract), there is likely to be litigation regarding which act applies and when.

An uncontested divorce does not require a personal appearance in Supreme Court. Evidence can be submitted by affidavit with the application for the Divorce Order, called a “Desk Order Divorce”. In fact, parties are required to submit applications for Divorce by way of a “Desk Order” unless there is a reason to bring it on by way of application in Chambers.

Note that as of March 1, 2021, the term 'custody' under the DA was repealed, and the term 'parenting time' is used in its place.

2. Provincial Court

The Provincial Court only has jurisdiction to hear matters under the FLA and cannot hear any claim under the DA, including divorce applications. The Provincial Court can make orders or vary original Provincial Court orders relating to guardianship, parenting arrangements, contact, child support, and spousal support. The Court does not have jurisdiction to deal with claims for the division of property under the FLA.

C. Requirements for a Divorce

1. Jurisdiction

To obtain a divorce in a particular province, one of the parties to the claim must have been “ordinarily resident” in that province for at least one year immediately preceding the presentation of the Notice of Family Claim (DA, s 3(1)). A person can be “ordinarily resident” in a province and still travel or have casual or temporary residence outside the province.

An Act to Amend the Civil Marriage Act received Royal Assent and came into force on June 26, 2013. It allows non-resident couples married in Canada to divorce in Canada if they cannot get a divorce where they live.


There must not be another divorce proceeding involving the same parties in another jurisdiction. If two actions are pending and were commenced on different days, and the proceeding that was commenced first is not discontinued, the court in which a divorce proceeding was commenced first has exclusive jurisdiction (DA s 3(2)) to hear and determine any divorce proceeding between the spouses, and the second divorce proceeding is deemed to be discontinued. Parties must submit a clearance form, filled out online and printed, at the time of filing the Notice of Family Claim and Marriage Certificate.

2. A Valid Marriage: Proof of Marriage

Section 52(1) of the Evidence Act, RSBC 1996, c 124 states that if it is alleged in a civil proceeding that a ceremony of marriage took place in BC or another jurisdiction, either of the following can serve as evidence that the ceremony took place:

  • a) the evidence of a person present at the ceremony (less common); or
  • b) a document purporting to be the original or a certified copy of the certificate of marriage (the church certificate is not acceptable). Note: A certified copy is often not accepted by the Registry and all efforts should be made to obtain the original marriage certificate.

The simplest way is to use a certificate of marriage or registration of marriage. Only if the certificate or registration of marriage is not available should the evidence of a person present at the ceremony be used. An official translation of the marriage certificate and a translator’s affidavit must be provided if the marriage certificate is in any language other than English. French language marriage certificates must also be translated. The Court may require further proof that the marriage is valid if the documents evidencing the marriage appear questionable. Immigration and landing documents can be used as additional proof of marriage in these situations. In British Columbia, a party can order an original marriage certificate from Vital Statistics by filling out a request form. See the Vital Statistics website.

If a marriage certificate absolutely cannot be provided (e.g. the records cannot be obtained from the parties’ country of origin or were destroyed), and if there are no witnesses to the marriage available, a party to the divorce proceeding can attempt to prove their marriage by attesting to “cohabitation and reputation” in an affidavit. The Court will hear evidence of the couple’s “cohabitation and reputation” from the parties and witnesses. Where there are witnesses to the marriage available, a witness will be required to sign and swear an affidavit stating that: they were at the ceremony, it was conducted in accordance with the laws and religion of the country where the parties married, and to the best of their knowledge, the two parties were in fact married according to their law and traditions.

3. Grounds for Divorce

In accordance with s 8(1) of the DA, either or both spouses may apply for a divorce on the ground that there has been a breakdown of their marriage as evidenced by separation for a year, adultery, or physical or mental cruelty (see below). For the divorce action to succeed, the claimant must have valid grounds under s 8(2)(a) or 8(2)(b), and the respondent must be unable to raise a valid defence. Most divorces are based on separation rather than adultery or cruelty, in part because the accusing party must prove adultery and/or cruelty on the balance of probabilities. Where a claim for divorce based on adultery or cruelty has been filed for more than one year before the application for divorce is heard, the Court will usually grant the divorce on the ground of one year separation.

Note the decision of McPhail v McPhail, 2001 BCCA 250, in which the Court found that, where both the grounds of cruelty and the grounds of a one-year separation for divorce exist, it would be appropriate for a trial judge to exercise their discretion to grant the divorce on the grounds of a one-year separation (no-fault) instead of on cruelty (fault). This was extended in Aquilini v. Aquilini, 2013 BCSC 217 to state that a one year separation should be used as the grounds for divorce instead of adultery where both exist.

D. Divorces Based on Separation: s 8(2)(a)

1. Separation - One Year

Under the DA, neither party needs to prove “fault” to get a divorce. Most divorces will proceed under s 8(2)(a), separation for a period of at least one year. Although the pleadings starting the action can be filed immediately upon separation, the Divorce Order cannot be sought until one day after the parties have been separated for one year.

The ground of separation requires recognition by one of the parties that the marriage is at an end. It is not necessary that the parties form a joint intention. It is also not necessary that the two parties live in separate homes, although they must live “separate and apart” and demonstrate their intention to separate. For example the parties may, move into separate bedrooms in the same home.

2. 90-Day Reconciliation Period

Any number of reconciliation attempts may be made during the separation year without affecting the application for divorce. However, if:

  • the length of any reconciliation attempt exceeds 90 days; or
  • the aggregate total length of reconciliations exceeds 90 days, then the time for calculating the one year period of separation must start over again with the first day of calculation being the first day of separation after the 90+ day reconciliation ended (s 8(3)(b)(ii)).

3. Living Under the Same Roof

Some couples may choose to continue to live under the same roof after they have decided to separate for financial reasons or for the sake of the children. Indications of separation include: they have separate bank accounts, separate bedrooms, cook their own meals, do their own laundry, etc. (i.e., if there is an obvious severance of the conjugal relationship), they can still be considered separated.

This is the case for the DA, though it should be noted that the Canada Revenue Agency (CRA) takes a different position when it comes to taxes and child benefit payments. The CRA does not recognize living separate and apart under the same roof for the purpose of tax benefits unless there is a separate suite in the home.

E. Divorces Based on Cruelty or Adultery: Divorce Act, s 8(2)(b)

Divorces based on separation require at least one year to pass before the divorce order can be granted. Divorce claims based on the ground of cruelty or adultery can result in an immediate divorce.

1. Adultery: s 8(2)(b)(i)

Adultery is voluntary sexual intercourse between a married person and a person other than their spouse. The meaning of “adultery” includes sexual acts outside the marriage with a person of the same sex (SEP v DDP, [2005] BCJ No 1971 (BCSC)). The standard of proof for adultery is the same as the civil standard: the Court must be satisfied on a balance of probabilities (see Adolph v Adolph (1964), 51 W.W.R. 42 (BCC.A)). Proof can come in the form of an affidavit from one or both of the adulterers.

The Court will require proof that the adulterous conduct was not forgiven by the innocent spouse (condonation) and that the conduct was not conspired towards for the purposes of obtaining the divorce (collusion and connivance, see below).

2. Physical or Mental Cruelty: s 8(2)(b)(ii)

The test for cruelty is subjective. The question asked in a cruelty case is whether the conduct is of such a kind as to render intolerable the continued cohabitation of the spouses. There is no objective standard in the sense that certain conduct will constitute cruelty in every case while other conduct will not. The respondent’s conduct may constitute cruelty even if there is no intent to be cruel. What has to be determined is the effect of the conduct on a particular person, rather than the nature of the acts committed (Burr v Burr, [1983] BCJ No 743).

If the spouses are still cohabiting, the Court will infer that the conduct was not intolerable unless the claimant had no means or opportunity for leaving (Cridge v Cridge (1974), 12 RFL 57, (BCSC)). Lack of income, children at home, and difficulty with the English language may qualify as reasons for continuing cohabitation.

Again, to make a case based on cruelty, there must be proof on the balance of probabilities. Things that could be entered as evidence in this area include medical evidence such as charts and doctors' statements.

F. Why a Divorce Application May Be Rejected

1. Collusion

Collusion is, simply put, both parties conspiring to obtain a divorce. A more expansive definition can be found in s 11(4) of the DA.

Collusion is an absolute bar to a divorce on the grounds of cruelty or adultery.

2. Condonation

Condonation consists of forgiving a marital offence that would otherwise be a ground for divorce. There are three requirements: knowledge of the matrimonial offence by the claimant; forgiveness of the offence; and actual reinstatement of the relationship. A single attempt or a series of attempts at reconciliation totalling less than 90 days does not qualify as condonation.

Condonation is a discretionary bar to a divorce. If the matter is raised, the onus is on the claimant to disprove it.

3. Connivance

Connivance occurs when one spouse encourages the other to commit adultery or cruelty. There must be a “corrupt intention... to promote or encourage either initiation or the continuance... or it may consist of a passive acquiescence....”. Keeping watch on the other spouse does not constitute passive acquiescence: Maddock v Maddock, [1958] OR 810 at 818, 16 DLR (2d) 325 (CA).

Connivance is a discretionary bar to a divorce, similar in effect to condonation.

4. Discretion of the Court

In cases of condonation or connivance, the claim for divorce will be dismissed unless, in the Court’s opinion, the public interest would be better served by granting the divorce.

The Court may also reject an application for divorce where: a divorce is pending in another jurisdiction; a marriage certificate or registration of marriage has not been provided; there are defects in the application materials; or there are defects in the form of draft order provided with the application. The Court registry is very particular about the content and form of both the applications materials and the draft order, which may result in the rejection of the application before it gets to a judge.

5. Divorce Will Not Be Granted Until Child Support Is Settled

In a divorce proceeding, it is the duty of the Court to satisfy itself that “reasonable arrangements” have been made for the support of any children of the marriage, typically having regard to the Federal Child Support Guidelines. If such arrangements have not been made, s 11(1)(b) of the DA requires the Court to stay the granting of the divorce. When stepchildren are involved, the Court will determine child support requirements for a stepparent on a case-by-case basis. The definition of “child of the marriage” in s 2 of the DA is broad enough to include children for whom one spouse “stands in the place of a parent”.

G. Separation Agreements

1. General – Family Law Act

The FLA defines a written agreement as an agreement that is in writing and signed by all parties (s 1 FLA). A separation agreement is a legal contract that generally provides for a division of property and debt, the support of a dependent spouse, and for the support, guardianship and parenting arrangements of a child by a parent.

A separation agreement can deal with some or all of these issues. It can eliminate much of the emotional disturbance involved in courtroom proceedings, and provide the parties with an arrangement to which they have both agreed, as opposed to a Court order, with which neither party may be happy. Part 2, Section 6 outlines that parties are able to make agreements to resolve disputes and respecting matters at issue in a family law dispute and subject to the FLA, the agreement is binding on the parties.

The overarching test for any agreements made regarding Part 4 of the FLA (guardianship, parenting arrangement contact) is the best interest of the child test in section 37 of the FLA.

A separation agreement between spouses can also deal with division of family property and family debt, as well as any assets excluded from division.

Section 85 of the FLA excludes the following from the division of family property:

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

Each spouse must be aware of the potential influence of any agreement on future expectations, and the legal implications of the agreement on questions of ownership and title in family property. Each spouse should have independent legal advice, even in cases where the parties seem to be in agreement on the terms of a separation agreement. If a separation agreement has been signed and one party did not have independent legal advice this may go towards evidence of unfair contracting and it may be possible to overturn the contract.

It is possible that a separation agreement containing provisions for support may be regarded by the Court as evidence of liability on the part of the supporting spouse. While the agreement does not usurp the Court’s jurisdiction in support, guardianship or parenting arrangements, the Court will consider the terms of the agreement when making the order. Whether the Court will uphold the terms of the agreement changes depending on the subject matter of the agreement. See sections of the FLA that apply to each subject matter. Note also that any orders respecting agreements are subject to s 214 of the FLA.

In addition to property settlements, guardianship or parenting arrangements, and support, the separation agreement may embrace any other matters the parties wish to include in it, and often includes estate provisions, releases, penalties for breach of the contract, etc. A separation agreement can be more flexible than a Court order. For example, a Court order cannot contain contingent terms, but a separation agreement can.

NOTE: Because of the complicated nature of separation agreements, clients who wish to make a separation agreement should be given family law referrals.

H. Other Points to Note

1. Jurisdictions to Vary Proceedings

Section 5(1) of the DA allows a Court in a province other than the Court of original jurisdiction (that is, the Court which originally made an order) to vary an order made under the DA if:

  • One of the former spouses is ordinarily resident in the province at the commencement of the proceeding; or
  • Both former spouses accept the jurisdiction of the Court.

2. Adjournment for Reconciliation under the DA

Where at any stage in a divorce proceeding it appears to the Court from the nature of the case, the evidence, or the attitude of either or both spouses that there is a possibility of the reconciliation of the spouses, s 10(2) of the DA allows the Court to adjourn the proceedings to give the spouse an opportunity to reconcile. The Court can also, with the spouses' consent, nominate a marriage counselor, or in special circumstances, some other suitable person to assist a reconciliation.

3. Alteration of Effective Date of Divorce

Under s 12 of the DA, a divorce takes effect on the 31st day after the day on which the judgment granting the divorce is rendered. The 31 days allow for the appeal period to expire. The Court may order that the divorce take effect before this if it is of the opinion there are special circumstances and the spouses agree that no appeal from the judgment will be taken. The impending birth of a child and remarriage are generally not considered compelling reasons to shorten the appeal period. However, one may file an appeal waiver to remarry sooner.

4. Support Order After Divorce Has Been Granted

Under s 15 of the current DA, for the purposes of child support, “spouse” means either of two persons a male or female who are married to each other (s 2(1)) and also includes “former spouse”. This means that a former spouse may be able to get a support order after the divorce has been granted.

The amended DA has repealed s 15 and updated the definition of “spouse” under s 2(1) to reflect the sections under which the meaning of “spouse” is inclusive of “former spouse.” This change came into effect March 1, 2021.

5. Mediation

A form of mediation for separating couples is provided by the Family Justice Counsellors of the Ministry of Attorney General. It is intended to steer people out of the Court system. Similar to the small claims process, if the two parties come to an agreement through mediation they may choose to sign a binding contract after the process. Should either party choose not to sign, the agreement will not be binding. There are offices throughout BC, which can be located using the blue pages of the telephone book under BC Corrections Branch, or Family Court: Probation and Family Court Services. The service is confidential and free. Family Justice Counsellors cannot deal with property and debt division.

There is also the Family Mediation Practicum Program which aims to provide affordable mediation services to participants while also offering practical training to new mediators (along with an experienced mentor mediator). See B. Resources on the Internet in Governing Legislation and Resources for Family Law (3:II).

Parties may wish to retain a private family law mediator to assist them in mediating a resolution to their family law matter. They may contact the British Columbia Mediator Roster Society for names of family law mediators. See B. Resources on the Internet in Governing Legislation and Resources for Family Law (3:II). Not all family law mediators are listed on the roster, and there are many family lawyers who are specifically trained and accredited in family law mediation.

The new FLA favours out of Court resolution of issues, and even gives courts the authority to refer parties to counselling and mediation (s 4 FLA). It also formally recognizes the role of and duties of family dispute resolution professionals (Section 1-8), family justice counsellors (Section 1-10), and parenting coordinators (Division 3).

6. Collaborative Divorce

Another option for parties dealing with family law matters is the Collaborative Divorce Model. This offers an option for parties to resolve disputes respectfully and without going to Court. Parties work out a negotiated settlement with the help of collaboratively trained professionals including (as needed) lawyers, divorce coaches, child specialists and financial specialists. This allows the parties to negotiate a settlement without the threat of Court. If the parties are unable to resolve matters through the Collaborative process, the Collaborative professionals will not be involved in Court proceedings. See the websites listed in Collaborative Divorce for more information.

7. Rule 7-1: Judicial Case Conferences

In cases where relief other than a simple divorce is sought in the Supreme Court, Rule 7-1 of the Supreme Court Family Rules (British Columbia) requires that a judicial case conference (JCC) be held before a party to a contested family law proceeding delivers a notice of application or affidavit in support of an interlocutory application to the other party There are exceptions to this rule. A party may file and serve a notice of application and supporting affidavits in any of the following applications even though a JCC has not yet been conducted:

  • An application for an order under section 91 of the FLA restraining the disposition of any property at issue;
  • An application for an order under section 32 or 39 of the Family Homes on Reserves and Matrimonial Interests or Rights Act (Canada) or a First Nation's law made under that Act with respect to an equivalent matter;
  • An application for a consent order;
  • An application without notice;
  • An application to change, suspend or terminate a final order;
  • An application to set aside or replace the whole or any part of an agreement;
  • An application to change or set aside the determination of a parenting coordinator.

8. Divorce Law and First Nations People

Special concerns arise in cases involving First Nation People registered under the Indian Act, RSC 1996, c 23. The Indian Act sets out guidelines for and definitions of Aboriginal people, and defines who is eligible for “status”. Only “status” people are affected by the legislation under the Indian Act. One spouse’s treaty payment may be directed to the other “where the Ministry is satisfied he deserted his spouse or family without sufficient cause, conducted himself in such a manner as to justify the refusal of his spouse or family to live with him, or has been separated by imprisonment from his spouse and family” (Indian Act, s 68). As well, reserve land allocated by a certificate of possession cannot be dealt with in the same manner as a matrimonial home as the rules in the FLA do not apply to reserve land. However, in such cases, the Court may ask that the spouse in possession of the reserve land pay cash compensation to the other spouse (George v George (1997), 30 BCLR (3d) 107). Keep in mind that most provincial laws apply to Aboriginal people and reserve land, unless they are in direct conflict with the Indian Act. Further, courts will almost always take the cultural identity of the children into consideration when making an order for parenting time; see e.g. D.H. v H.M., [1999] SCJ No 22, and see Van de Perre v Edwards, [2001] SCJ No 60.

Furthermore, for First Nation Peoples living on reserves, the Family Homes on Reserves and Matrimonial Interests or Rights Act (S.C. 2013, c. 20) applies and can affect the division of assets in the case of divorce or separation (see ss 43, 46).

9. Other Procedural Options

There are many other procedural options available to parties in Family Law disputes. Section 8 of the FLA requires counsel and other Family Dispute Resolution Professionals to discuss the advisability of the various types of family dispute resolution, which include those listed above as well as the following:

  • (a) Mediation
  • (b) Family Law Arbitration. See http://family.legalaid.bc.ca/visit/arbitrators for more information
  • (c) Med/Arb, which is a combination of both Mediation and Arbitration.
  • (d) Judicial Settlement Conferences pursuant to Rule 7-2 of the Supreme Court Family Rules
  • (e) Family Management Conferences pursuant to Rule 7(1) of the Provincial Court Family Rules
  1. The Provincial Court (Family) Rules will be repealed in May 2021 and the new Provincial Court Family Rules will take effect. Once this occurs, Family Management Conferences will replace Family Case Conferences.
  • (f) The use of a Parenting Coordinator to address ongoing parenting and communication issues between the parties after an order or agreement has been reached for the parenting arrangement. For more information see http://www.bcparentingcoordinators.com/

I. Availability of Divorce Services in BC

1. Legal Aid

Legal Aid will provide extremely limited assistance to those who meet their income requirements. Clients must also have a risk or history of family violence, or a risk or history of child abduction, to be eligible for this service. Legal Aid will not assist with divorces.

2. Lawyers

All lawyers will expect an initial payment from their client. The amount of the initial retainer will vary depending on the lawyer’s hourly rate and their estimation of the complexity of the case. The cost of a simple, uncontested divorce begins at approximately $1,000 and up. Advise clients to use the Lawyer Referral Service (604) 687-3221 or 1-800-663-1919. The first half-hour will only cost $25, with the lawyer charging their standard rate thereafter.

To minimize costs when retaining a lawyer, clients should be advised to:

  • Negotiate the cost of legal services in advance, so they do not come as a surprise;
  • Collect all necessary documentation rather than pay the lawyer to do it;
  • Call the lawyer only when imparting necessary information (every phone call costs money);
  • Use Family Court and Supreme Court resources (such as Family Justice Counsellors) if appropriate;
  • Ask for regular or scheduled billing to monitor escalating legal costs;
  • Carefully read all correspondence sent by the lawyer; and
  • Treat the lawyer as a professional.
v • d • e
 
Chapters 1-7
Criminal Law  · Youth Justice  · Family Law  · Victims  · Public Complaints · Human Rights  · Workers Compensation
Chapter One:
Criminal Law
Chapter Two:
Youth Justice
Chapter Three:
Family Law
Chapter Four:
Victims
Chapter Five:
Public Complaints
Chapter Six:
Human Rights
Chapter Seven:
Workers' Compensation
I. Introduction · II. Governing Legislation, Policy & Guidelines · III. Introduction to Compensation Claims for Injured Workers · IV. LSLAP's Role at the Initial Decision Level · V. Limitation Periods and Timing of Decisions · VI. Making a Claim · VII. The Claim Acceptance Process · VIII. Worker Status · IX. Disability and Causation · X. Time Limits and Procedures · XI. Claim Benefits · XII. Appeals · XIII. Health and Safety Regulations in the Workplace · XIV. Assessments of Employers · XV. The WCB Fair Practices Officer · Appendix A: Abbreviations · Appendix B: List of Cases · Appendix C: Referrals · Appendix D: Resources · Appendix E: Claims Process · Appendix F: Checklist for Interviews · Appendix G: Checklist for Appeals · Appendix H: Sample Authorization Form
© Copyright 2023, The Greater Vancouver Law Students' Legal Advice Society.


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