Difference between pages "Contracts for Sale of Goods (11:III)" and "Parenting Orders, Guardianship, and Contact (3:XI)"

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{{REVIEWED LSLAP | date= August 5, 2021}}
{{REVIEWED LSLAP | date= August 18, 2021}}
{{LSLAP Manual TOC|expanded = consumer}}
{{LSLAP Manual TOC|expanded = family}}


Generally, consumers have no right to return goods or cancel a contract simply because they decide the goods are no longer wanted or needed. However, it is often only after the goods are purchased that damages or defects are discovered. In such cases, a purchaser may have a remedy if it can be shown that a term of the contract has been breached.  It may also be the case that the business has a refund policy of which the consumer can take advantage.
== A. General ==


This section outlines the protection that consumers have against the problems that may occur after a purchase has been made. To understand one’s legal rights, it is necessary to know the differences between terms, representations, and mere puffs.  
Disputes over parenting time of minor children are often the most difficult issues to resolve during the breakdown of a marriage or other relationship. Parenting time decisions can always be changed; however, courts rarely make such changes. Thus, the decision about who gets interim parenting time is particularly important. Children usually stay with the parent who has provided primary care in the past and who can spend the most time with them. Sometimes, courts will order joint parenting time on an interim basis so that neither parent’s position is prejudiced.  


== A. Identifying and Classifying the Terms of a Contract ==
The best interests of the child is the '''only''' consideration in determining parenting time, contact, and parenting arrangements.  


A term of the contract is a promise made by the manufacturer or seller regarding the character or quality of an article. It can be either written or oral. Written terms will generally be straightforward to identify. Whether an oral statement can be properly considered a term may be less obvious. Not everything said by the seller will be a term of the contract. To be a term, the statement must be a specific promise that makes up part of the contract.  
In addition to parenting time, courts can also make decisions regarding guardianship of minor children. Guardianship gives a parent or other person “a full and active” role in determining the course of a child’s life and upbringing (see ''e.g.'' [http://canlii.ca/t/23r7t ''Charlton v Charlton'', [1980<nowiki>]</nowiki> BCJ No 22]). There is considerable overlap between the two, but it is useful to note that while having parenting time usually includes having guardianship, the reverse is often not true. This distinction is impacted somewhat by the ''FLA'' as the term “Guardianship” subsumes all the rights and responsibilities of a parent and there is no longer reference to “Custody”.  


If a statement is not a term, it may be either a representation or a puff. A representation is a material statement of fact made to induce the other party to enter the contract. A puff is vague sales talk not meant to have any legal effect. For example, a statement that “This is a wonderful car” would be a puff and not meant to be taken literally as a contractual term (see [[Consumer Protection from Deceptive and Unconscionable Acts (11:IV)|11:IV G. False or Misleading Advertising]])
The case law on parenting time and guardianship has developed to the point where there is a presumption in favour of joint parenting time or both parents being guardians(although there is no legislative presumption). A parent seeking sole parenting time will generally have to show that there is a serious defect in the other person’s parenting skills, that the other person is geographically distant, or that the parents are utterly unable to communicate without fighting before the Court will consider granting such an application, and in the last case, the Court may explore other options such as Parenting Coordination or parcelling out decision making and responsibilities to address the communication issue instead of granting sole parenting time to one parent.


Whether a statement is a term, representation, or puff affects the remedy available to the consumer: damages (see [[{{PAGENAME}}#D. Remedies for Breach of Contract | D. Remedies for Breach of Contract]] below), rescission (under a claim of misrepresentation; see [[Consumer Protection from Deceptive and Unconscionable Acts (11:IV)|11:IV G. False or Misleading Advertising]]), or no remedy, respectively. For this Chapter, we are concerned with terms of a contract.
== B. Legislation ==


If a statement is a term of the contract, it can be a condition, warranty, or innominate term. A well-drafted contract will characterize particular terms as conditions or warranties, though the wording used in the contract will not always be determinative ([https://www.bailii.org/uk/cases/UKHL/1973/2.html ''Wickman Machine Tool Sales Ltd. v L. Schuler A.G.'', [1974<nowiki>]</nowiki> AC 235]). The three types of terms are as follows ([https://www.bailii.org/ew/cases/EWCA/Civ/1961/7.html ''Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd'', [1962<nowiki>]</nowiki> 2 QB 26, [1962<nowiki>]</nowiki> 1 All ER 474] at para 49):
=== 1. Divorce Act ===


=== 1. Condition ===
The ''DA'' only speaks of contact and parenting time. Under s 16, the Supreme Court may make an order for parenting time. This order will supersede any  existing ''FLA'' orders, which cover parenting time, contact, and guardianship, and can be registered for enforcement with any other Superior Provincial Court in Canada. The Supreme Court can also grant interim parenting time before a divorce action is heard.  


A condition is a term that is so essential to the agreement that its breach is considered to be a substantial failure to perform the contract. A breach of a condition is said to go to the root of the contract. In other words, the breach is such that it deprives the innocent party of “substantially the whole benefit” of the contract. If a manufacturer/supplier/seller breaches a condition, the buyer is entitled to terminate any further obligations under the contract and sue for damages.  
The ''DA'' applies only to married couples. Under the Act, the person making the application for parenting time must have been “habitually resident” in the province for at least one year prior.


Anticipatory breach is where one party (say, the seller) communicates their intention to breach in the future. The aggrieved party (here, the buyer), if aware of the impending breach, could accept the repudiation by the seller and terminate the contract, ending all future obligations except for the seller’s obligation to pay the damages that stem from non-performance. Or, the aggrieved party could '''not''' accept the repudiation and may wait for the future breach to actually occur before pursuing damages (e.g., if they think that there is still a chance that the contract will be performed).
The court will only consider the best interest of the child in the course of making a parenting order or contact order and when allocating parenting time (DA s 16(1)). Subsections 16(2-6) outline the factors under consideration when “best interest of the child” is assessed. Subsection 16(4) outlines the role of family violence in assessing the best interests of the child.


=== 2. Warranty ===
Amendments to the DA will result in changes to the terms of guardianship:
*Replacing of the terms “custody” and “custody order” with “parenting time” and “parenting order”.
*Using the term “contact order” to characterize time spent with someone other than a spouse, including grandparents.
*Adding the term “decision-making responsibility” to define a non-exhaustive list of areas of significant weight and how decisions about those areas must be made (with the “best interests of the child” in mind).  


A warranty is a term of the contract that is not so essential. A warranty must be performed, but its breach is not considered to go to the root of the contract. This meaning of warranty should not be confused with other uses of the word such as in “one-year maintenance warranty”. When a warranty is breached, the contract is '''not''' terminated, meaning that the innocent party must continue to perform its own obligations under the contract (e.g., the buyer must still pay for the good) but can sue for damages for breach of warranty.
The aim of these changes is to emphasize the “best interests of the child” by focusing on relationships with children.  


=== 3. Innominate Terms ===
=== 2. Family Law Act ===


Innominate or intermediate terms arise out of the common law, but unlike conditions and warranties, they are not mentioned in the SGA. An innominate term is one that may be treated as either a condition or a warranty, depending on how severe the consequences of a breach turn out to be. Whether an innominate term is a condition or a warranty is for a judge to decide.
Among a plethora of changes to the general family law in BC, the Act makes the following changes to the law surrounding guardianship:
*Replace the terms “custody” and “access” with “guardianship”, “parenting time”, and “contact”.
*Define “guardianship” through a list of “parental responsibilities” that can be allocated to allow for more customized parenting arrangements.
*Provide that parents retain responsibility for their children upon separation if they have lived together with the child after the child’s birth. (Note: this does not mean that the law presumes an automatic 50-50 split of parental responsibilities or parenting time.) If they have not, the parent with whom the child lives is the guardian.
*Under the ''FLA'', the terms custody and access are no longer used – only guardianship will be considered.
*Additionally, the “best interests of the child” is no longer the paramount consideration under the ''FLA''; it is the only consideration.  


:'''NOTE:''' For certain terms, the ''SGA'' specifies whether they are conditions or warranties.  The ''SGA'' also implies some terms as conditions or warranties even if they are not expressly included in the contract (see [[{{PAGENAME}}#C. Provisions of the Sale of Goods Act | C. Provisions of the Sale of Goods Act]] below)
== C. Courts ==


== B. Determining if the Sale of Goods Act Governs the Contract ==
=== 1. Supreme Court ===


The ''SGA'' applies to transactions that can be characterized as '''contracts for the sale''' of '''goods'''. Any transaction that is not for the sale of goods does not  receive the benefit of the ''SGA''. Hence, the subject matter of the transaction must be goods, and the essential elements of a contract must also be present.
The Supreme Court has jurisdiction to deal with all matters relating to parenting time, guardianship and access to children, pursuant to the ''DA'', the ''FLA'', and the ''CFCSA''. The Court almost never deals with the ''CFCSA'' unless there is the matter of adoption to be considered. The Supreme Court also has jurisdiction over orders restraining contact or entry to the matrimonial home.  


=== 1. Goods ===
The Supreme Court has ''parens patriae'' jurisdiction over all children in the province. In operation, this can allow the Court to transcend the statutory letter of the law in drafting orders that best represent the best interests of the child.  


Goods include all personal chattels, other than “things in action” (e.g. cheques, insurance policies, money). Things attached to real property, which the parties agree to sever before sale, or under the contract of sale, are included (s 1). Note that registration in the Land Title Office may be advisable to avoid possible characterization of the goods as real property or fixtures, so that the SGA may apply to the transaction.  
A written agreement about parenting time or guardianship may be given the force of a court order under section 44 of the ''FLA''.  


According to ss 1 and 9, the ''SGA'' covers '''existing''' and '''future goods'''. Future goods are goods to be manufactured or acquired by the seller after the making of the contract of sale.  
An order made under the ''DA'' can be registered for enforcement in any other province’s Supreme Court registry.


According to ss 1 and 6(1), general property or title in the goods must pass – not merely a special property or interest. Thus, for example, a contract of bailment is not covered.  
=== 2. Provincial Court ===


Contracts for skill and labour alone are not contracts for the sale of goods, so the ''SGA'' does not apply to them. However, if a contract is for labour and materials, then the ''SGA'' could apply to the materials (e.g. a contract to paint a house with paint supplied by the contractor).  
The Provincial Court has jurisdiction to deal with all matters relating to parenting time, guardianship, and access to children, and the ''CFCSA''. This includes restraining orders but does not include orders restraining entry to the matrimonial home. A written agreement about parenting time or guardianship may be given the force of a court order, or s 44 of the ''FLA'', if it is filed in court.  


=== 2. Contract of Sale ===
== D. Parenting Time ==


According to s 6(1), the ''SGA'' applies only where the purchaser agrees to buy goods with money as consideration. Hence gifts, barters, or exchanges are not subject to the ''SGA''’s implied conditions and warranties. However, a court may avoid this result by finding two separate contracts rather than a barter, as long as the consideration (which is the value being exchanged in the contract, whether money or goods) has its value measured in monetary terms: see <u>''Messenger v Green'', [1937] 2 DLR 26 (NSSC)</u>. Thus, if a total price is attached, there will be a sale, even if payment is in goods rather than money.
Proceedings regarding parenting arrangements or contact that have been started, but not determined, before the ''Family Law Act'' is in force, do not need special transition sections. Section 4 of the [http://canlii.ca/t/844q ''Interpretation Act''] provides a default rule that the Act will be used upon it becoming effective, so cases started under the ''FRA'' will be determined under the ''FLA''.  


According to s 6(3) of the ''SGA'', a contract of sale may be absolute or conditional. If the contract is subject to some condition to be fulfilled later, it is called an agreement to sell.
In the absence of a court order or a written agreement, parenting time of a child remains with the person with whom the child usually resides. One must bear in mind that the Act does not touch on day-to-day life until it is invoked, usually by filing a lawsuit or by making an application.


Under s 8 of the ''SGA'', it provides that the contract may be either written or oral.
=== 1. Factors in Awarding Parenting Time ===


=== 3. Lease Contracts ===
The factors that the Court must consider in determining the “best interests of the child” are set out in, s 37 of the ''FLA'':


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


== C. Provisions of the Sale of Goods Act ==
and at s 16(1-6) of the DA:


Under ss 16 – 19 of the ''SGA'', many terms are implied into contracts for the sale of '''new''' items. When these implied terms can and cannot be expressly waived by the seller is governed by s 20. The ''SGA'' also defines these terms as conditions or warranties, thus determining the remedies available if breached.
* (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.
* (2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional, and psychological safety, security and well-being.
* (3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including
** (a) The child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
** (b) The nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
** (c) Each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
** (d) The history of care of the child;
** (e) The child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
** (f) The child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
** (g) Any plans for the child’s care;
** (h) The ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
** (i) The ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
** (j) Any family violence and its impact on, among other things,
*** i. The ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
*** ii. The appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
** (k) Any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security, and well-being of the child.
* (4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:
** (a) The nature, seriousness and frequency of the family violence and when it occurred;
** (b) Whether there is a pattern of coercive and controlling behaviour in relation to a family member;
** (c) Whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;
** (d) The physical, emotional and psychological harm or risk of harm to the child;
** (e) Any compromise to the safety of the child or other family member;
** (f) Whether the family violence causes the child or other family member to fear for their own safety or for that of another person;
** (g) Any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and
** (h) Any other relevant factor.
* (5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.
* (6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.  


=== 1. Implied Conditions and Warranties ===
These factors should not be viewed like a checklist. Rather, the discretionary, contextual, and complex nature of parenting time cases makes it more appropriate for the factors to be viewed holistically. Similarly, these factors do not necessarily form an exhaustive list of the factors to be considered. The best interest argument is often expansive, considering a range of factors illuminated at both the statutory and common-law level.


The vital part of the ''SGA'' for the consumer is ss. 16 – 19, which '''may''' add statutory conditions and warranties to a contract for the sale of goods, subject to the possibility of exclusion (see [[{{PAGENAME}}#2. Exemption from Implied Contractual Terms | 2: Exemption from Implied Contractual Terms]] below).
The Court will generally consider the child’s health and emotional well-being, their education and training and the love, affection and similar ties that exist between the child and other persons such as relatives and family friends. If appropriate, the views of the child will be considered. For a parenting order relating to a teenager to be practical, it  must reasonably conform to the wishes of the child ([http://canlii.ca/t/1dxml ''O’Connell v McIndoe'' (1998), 42 R.F.L. (4th) 77 (BCCA)], [http://canlii.ca/t/23fnw ''Alexander v Alexander'' (1988), 15 R.F.L. (3d) 363 (BCCA)]).  


==== a) Implied Condition of Title: s 16(a) ====
Other factors have emerged through the common law, including a preference that siblings remain together and a willingness to look into the character, personality and moral fitness of each parent. However, there is no presumption against the separation of siblings ([http://canlii.ca/t/546m ''P (AH) v P (AC)'', 1999 BCCA 203]). The welfare of the child is not determined solely on the basis of material advantages or physical comfort, but also  considers psychological, spiritual, and emotional factors ([http://canlii.ca/t/1fv1n ''King v Low'',(1985), 44 R.F.L. (2d) 113 (SCC)]). The Court will take into account  the personality, character, stability, and conduct of a parent, if appropriate ([http://canlii.ca/t/23fhc ''Bell v Kirk'' (1986), 3 R.F.L. (3d) 377 (BCCA)]).


Under s 16(a), the ''SGA'' provides that, subject to contrary intentions, there is an implied '''condition''' that the seller has the right to sell the goods. In an agreement to sell goods at a later date, there is an implied condition that the seller will have the right to sell the goods at the date the buyer takes possession.
Agreements between parties regarding parenting time do not oust the Court’s jurisdiction. An agreement is important, but only one of several factors to be taken into consideration when determining the best interests of the child. The degree of bonding between child and parent is also taken  into consideration. The biological link does not outweigh other considerations, but when all other factors are equal, the parenting time of the child is best served with the biological parents ([http://canlii.ca/t/1fnkk ''L (A) v K (D)'',2000 BCCA 455]; [http://canlii.ca/t/1kvhg ''H (CR) v H. (BA)'', 2005 BCCA 277]).  


==== b) Implied Warranty of Quiet Possession: ss 16(b) and (c) ====
Race and aboriginal heritage are relevant considerations, but neither is determinative of parenting time alone. The importance of race differs in  adoption cases, where it may be given more weight because the Court is making a decision about the child’s exposure to their race or culture ([http://canlii.ca/t/51z8 ''Van de Perre v Edwards'',  2001  SCC  60]). Aboriginal heritage is to be weighed along with other factors in a determination of a child’s best interests ([http://canlii.ca/t/1f50z ''H (D) v M (H)'', [1997<nowiki>]</nowiki> BCJ No 2144 (QL) (SC)]).


Under ss 16(b) and (c), the ''SGA'' provides implied '''warranties''' that in the future the buyer will enjoy undisturbed possession of the goods, free from any liens, charges, security interests, or other encumbrances in favour of third parties that are unknown to the buyer at the time the contract is made. For example, a contract of sale for a good may be made between a seller and buyer where a third-party lender made a loan to the seller with this good as collateral. If the secured creditor (the lender) subsequently makes claims against the buyer who was unaware of this security interest in the good at the time of sale, the buyer can sue the seller for damages resulting from breach of this implied warranty. The quantum of damages would likely be the amount of the liens outstanding so that the buyer could pay them off.
Clients may wish to vary a parenting order. The threshold for a variation of a parenting or access order is a material change in the circumstances affecting the child. There is no legal presumption in favour of the custodial parent, although that parent’s views are entitled to respect. The focus is on the best interests of the child, not the interests and rights of the parents ([http://canlii.ca/t/1fr99 ''Gordon v Goertz'', [1996<nowiki>]</nowiki> 2 SCR 27]).  


==== c) Implied Condition of Compliance with the Description: s 17 ====
Section 211 of the ''FLA'' allows the Court to order an assessment by a psychologist of each party’s parenting abilities and relationship with the child. These reports are particularly important where the dispute over parenting time is bitter and unlikely to settle. An assessment provides the Court with an independent and neutral expert opinion. Where expert evidence would assist the Court, the Court can order an ''FLA'' Section 211 report ([http://canlii.ca/t/4xfd ''Gupta v Gupta'', 2001 BCSC 649]).


Under s 17, when goods are sold by description, there is an implied '''condition''' that they correspond to the description.  
=== 2. Types of Parenting Orders ===
:'''NOTE:''' '''Description''' refers to generic characteristics of a good and does not include words of praise about the good.


Most sales will be sales by description. The notable exception is where a buyer makes it clear that they are buying a particular item on the basis of its qualities known, independent of any representations by the seller. Generally, where a buyer purchases a product because of a vendor’s representations about its features (which may have been offered either gratuitously or in response to the buyer’s questions), this will be a sale by description, with the vendor’s representations forming part of the description. Catalogue purchases, online shopping, and purchases of products sealed in containers by the manufacturer are also sales by description.
:'''NOTE:''' “Parenting time” is a term that only appears in the ''DA'' and so only applies to claims that are proceeding in Supreme Court under the ''DA''.


If a sale is made by description and by sample, it is not enough that the bulk of the goods correspond with the sample; the delivered goods must also correspond with the description by which they were sold (s 17(2)).
==== a) Interim Orders ====


:'''NOTE:''' '''Specific goods''' (as opposed to unascertained goods) are goods that, at the time the contract is made, are agreed to be the only goods whose transfer will satisfy the contract. For example, in a sale of a new chair, if the parties agree that a ''specific'' chair is to be the subject matter of the contract, the sale has been of specific goods. So, if the seller attempts to deliver a different chair, which is identical in every way, except that it is not the actual chair agreed upon, the seller has breached the contract. '''Unascertained goods''' are goods that are agreed to be the subject matter of the contract at a point in time after the contract is made. For example, in the sale of a new chair, if the parties agree only on a specific type of chair, but do not specifically single out any individual chair, the sale has been of unascertained goods.
An interim order is a temporary order made once the proceedings have commenced but before the final order is pronounced. Courts will usually make interim parenting orders while an action in divorce is underway, with an eye to the child’s immediate best interests. Courts tend to favour stability, so an interim order is likely to favour the party with parenting time at the time of the marriage breakdown. This presumption toward stability can give an interim order substantial weight in determining a final parenting order.


Although s 17 cannot be excluded in retail sales of new goods, it may be excluded in private or commercial sales, subject to the ''contra proferentum'' rule. The ''contra proferentum'' rule states that a contract, if ambiguous, is construed as against the party who wrote it. Where a standard form contract (a “take it or leave it” contract that is drafted entirely by one party without any negotiations with the other party) is used, it is construed as against the party who offered it (usually the seller).
==== b) Sole Parenting Time ====


A sale by description may also raise s 18(b) issues (see [[{{PAGENAME}}#e) Implied Condition of Merchantable Quality: s 18(b) | e) Implied Condition of Merchantable Quality: s 18(b)]] below).
Sole parenting time, in which one parent provides the primary residence and is mostly responsible for day-to-day care, can be granted in cases where the parents request such an arrangement, where they live far apart, or where relations between the parties are so poor as to preclude cooperation.  


==== d) Implied Condition of Fitness for Buyer’s Purpose: s 18(a) ====
:'''NOTE:''' The concept of “full parenting time” does not exist.  A parent using this term is most likely referring to sole parenting time.


Under s 18(a), if:
==== c) Joint Parenting Time ====


* The buyer expressly or by implication makes known to the seller the particular <u>purpose</u> for which the goods are required, so as to show that they rely on the <u>seller’s skill and judgment</u>; and
In joint parenting time, both parents have parenting time with the child. While the child may reside primarily with one parent, the parents cooperate in raising the child, acting as both joint custodians and guardians of the child. In British Columbia, there is a presumption toward joint parenting time.
* The goods are of a description which it is in the course of the <u>seller’s business</u> to supply;


then there is an implied '''condition''' that the  goods are necessarily fit for such purpose. An '''exception''' occurs where the contract is for the sale of a specified article under its patent or trade name, in which case there is no implied condition as to its fitness for any particular purpose because the buyer is no longer relying on the seller’s skill and judgement.
==== d) Shared Parenting Time ====


To establish a claim under s 18(a) of the ''SGA'', three factors must be satisfied on a balance of probabilities ([https://www.canlii.org/en/bc/bcsc/doc/2012/2012bcsc1412/2012bcsc1412.html?autocompleteStr=Nikka%20Traders%20&autocompletePos=1 ''Nikka Traders Inc v Gizella Pastry Ltd'', 2012 BCSC 1412] at para 65):
“Shared parenting time” is a term used by the ''Federal Child Support Guidelines'', but not by either the ''DA'' or the ''FLA''. Shared parenting time is a form of joint parenting time in which the child spends an almost equal time with each parent. Typically, the child would be switching homes on a frequent basis, such as every few days or once a week. This usually requires that the parents live near one another and have good communication skill.  It also requires that the child is able to adapt to living in two homes.  Any agreement for shared parenting time will affect child support.
# That the buyer has made known to the seller the purpose for which it requires the goods;
# The dissemination of that purpose shows that the buyer relies on the seller’s skill or judgment; and
# The goods are of a description that is in the course of the seller’s business to supply.  


Furthermore, the courts have held that the seller need not know the specific purpose for which the buyer wishes to use the goods; knowledge of a broad purpose is sufficient. For example, in [https://www.canlii.org/en/bc/bcpc/doc/2006/2006bcpc265/2006bcpc265.html?autocompleteStr=Sugiyama%20v%20Pilsen&autocompletePos=1 ''Sugiyama v Pilsen'', 2006 BCPC 265] at para 71, the court held that s 18(a) provides a warranty that a car is “a reliable vehicle for use in driving in safety on the roads” and a car being sold must be reasonably  fit for such purpose. However, if the buyer wishes to use the goods for an unusual or peculiar purpose, this must be indicated to the seller.   
==== e) Split Parenting Time ====


The “Patent and Trade Name Exception” is of little effect since the courts have interpreted it narrowly. The issue remains one of reliance, and the trade names exception will apply only where the buyer’s use of the patent or trade name indicates a lack of reliance upon the seller. In other words, the exception only applies where a consumer decides to purchase goods solely because of the trade name of a product. See [https://www.canlii.org/en/bc/bcca/doc/2002/2002bcca78/2002bcca78.html#par38 ''Wharton v Tom Harris Chevrolet Oldsmobile Cadillac'', 2002 BCCA 78] at paras 38-39.
“Split parenting time” is a term used by the ''Federal Child Support Guidelines'', and not by either the ''DA'' or the ''FLA''. On rare occasions, courts will order siblings to live with separate parents. This is usually a drastic solution, ordered only after an ''FLA'' section 211 report (a court-ordered report respecting the needs of a child, the views of a child, and the ability and willingness of one of the parents to satisfy the needs of a child) is submitted to the Court. A split parenting timeorder will affect child support.


==== e) Implied Condition of Merchantable Quality: s 18(b) ====
=== 3. Other Parenting Time Issues ===


Under s 18(b), if:
==== a) Consent Orders ====
# Goods are bought by <u>description</u>, and
# From a <u>seller who deals</u> in goods of that description, the seller is bound by an implied '''condition''' that the goods are of merchantable quality.


===== (1) The Concept of Merchantable Quality =====
Where there is agreement on the terms of support or parenting time provisions, but no written agreement, a consent order may be made by the Court under s 219 of the ''FLA'' if the written consent of the party against whom the order is to be enforced has been obtained. The order can extend only to the terms consented to.


The concept of merchantable quality is difficult to define. A commonly used test, the price abatement test, asks whether a reasonable buyer, informed of the actual quality of the goods, would buy the goods without a substantial abatement of price ([https://www.bailii.org/uk/cases/UKHL/1970/1970_SC_HL_51.html ''BS Brown & Son v Craiks Ltd'', [1970<nowiki>]</nowiki> 1 All ER 823 (HL)]). If the informed reasonable buyer would not buy without a substantial abatement of price, unmerchantable quality is inferred, and repudiation may be available.
==== b) Enforcement of Parenting Time Orders ====


Any damage to goods beyond the ''de minimus'' range may be said to render the goods of unmerchantable quality ([https://www.canlii.org/en/sk/skca/doc/1925/1925canlii154/1925canlii154.html?autocompleteStr=International%20Business%20Machines%20&autocompletePos=2 ''International Business Machines v Shcherban'', [1925<nowiki>]</nowiki> 1 DLR 864 (Sask CA), [1925<nowiki>]</nowiki> 1 WWR 405]).
Where a parenting time order is in force, the Court may make an order prohibiting interference with a child. The Court may further order sureties  and/or documents from the person against whom the order is made, and require that person to report to the Court for a period of time (''FLA'', s 183).  


This section also applies to the sale of '''used goods''', as well (s 18(b)). However, there is a lower standard here: the goods must be usable but not perfect. A minor defect does not necessarily render the goods unmerchantable. See <u>''Bartlett v Sidney Marcus Ltd'', [1965] 2 All ER 753 (Eng CA)</u>.
Under the ''FLA'', police officer enforcement clauses can only be granted when there has been a breach of an order (s 231).


In any case, where the buyer seeks recovery of the full purchase price based on the implied condition of merchantable quality, they should be cautioned that continued use of the goods in question seriously weakens the argument that the goods are not fit for a particular purpose or are not of merchantable quality.
A child abducted and taken elsewhere within the province will be returned to their rightful custodian. Abduction is an offence under the ''FLA'', s 188 that carries a possibility of criminal proceedings ([http://canlii.ca/t/7vf2 ''Criminal Code'', RSC 1985, c C-46], ss 280-281). The ''Criminal Code'' makes it an offence for a non-custodial parent to abduct a child. Where a parenting order is in effect, abduction amounts to contempt of Court.  


===== (2) Sale by Description =====
==== c) Parental Mobility (Under the FLA, this is referred to as Relocation which has separate considerations from that of Mobility under the DA) ====


This section only applies to a sale by description (s.18(b)). This is usually not a problem since most sales are by description, except where the buyer is clearly buying a particular item on the basis of qualities known to them apart from any representations (see [[{{PAGENAME}}#d) Implied Condition of Fitness for Buyer’s Purpose: s 18(a) | d) Implied Condition of Fitness for Buyer's Purpose: s 18(a)]] above).
Relocation is defined and explained under Division 6 of the ''FLA''. It considers relocation of a child that can reasonably be expected to have a significant impact on the child’s relationship with his/her guardian(s) or other adults with which the child has a significant relationship (s 65). The guardian intending to relocate with the child must provide 60-day written notice to all other guardians and persons having contact with the child (s 66). The notice must include the date of the relocation, and the name of the proposed location. Exemptions to these requirements can be granted by the Court if they are satisfied that the notice cannot be given without incurring a risk of family violence by another guardian or a person having contact with the child or there is no ongoing relationship between the child and the other guardian or the person having contact with the child (s 66(2)).


===== (3) Seller who Deals in Goods of that Description =====
The child’s other guardian(s) can object to the relocation within 30 days of receiving the notice. If an objection is made, the guardian requesting the relocation must satisfy the court that (s 69(4)(a)):
*(i) The proposed relocation is made in good faith, and
*(ii) The relocating guardian has proposed reasonable and workable arrangements to preserve the relationship between the child and the child's other guardians, persons who are entitled to contact with the child, and other persons who have a significant role in the child's life.


In addition to requiring that the sale be by description, s 18(b) also requires that the seller must “deal in goods of that description.” In [https://www.canlii.org/en/bc/bcsc/doc/2011/2011bcsc927/2011bcsc927.html?autocompleteStr=hartmann%20v%20mc&autocompletePos=1 Hartmann v McKerness, 2011 BCSC 927], a seller sold a watch by description over eBay and was sued for violating the implied condition of merchantability in ss 18(b). In paragraphs 43-47, the BC Supreme Court held that the seller was not one “who dealt in goods of that description” for the purpose of 18(b), as he did not specialize in watches, but rather sold a large variety of goods.
When considering the good faith requirement, the Court must consider (s 69(6)):  
*(a) The reasons for the proposed relocation;
*(b) Whether the proposed relocation is likely to enhance the general quality of life of the child and, if applicable, of the relocating guardian, including increasing emotional well-being or financial or educational opportunities;
*(c) Whether notice was given under section 66 [notice of relocation];
*(d) Any restrictions on relocation contained in a written agreement or an order.  


===== (4) Effect of Examination by the Buyer =====
Issues of parental mobility may arise in conjunction with parenting time issues. That is, one parent may wish to relocate away from another parent with whom they share parenting time . In ''Gordon v Goertz'', [1996] 5 WWR 457 (SCC), the Supreme Court of Canada set out the basic principles for the ''DA''. Once the parent applying for the change meets a threshold requirement of demonstrating a material change in the circumstances affecting the child, the Court is required to begin a fresh inquiry into what is in the best interests of the child. Factors to be considered include: the desirability of maximizing contact between the child and both parents, the disruption to the child, and the child’s views.


There is an '''exception''' where the buyer has examined the goods; then, there is no condition of merchantable quality to the extent that the examination ought to have revealed the defect. However, if the average person would not have been able to spot the defect, the condition of merchantability remains. Hence, it must be determined: 1) whether the buyer <u>examined</u> the goods, and 2) whether the defects ought to have been <u>revealed</u> by the examination.  
[http://canlii.ca/t/1fmfc ''One v One'', 2000 BCSC 1584], also a ''DA'' case, identifies the following list of factors to be considered in determining whether a proposed move is in a child’s best interests:
# The parenting capabilities of and the child’s relationship with parents and their new partners;
# Employment, security and prospects of the parents and, where appropriate, their partners;
# Access to and support of extended family;
# The difficulty of exercising the proposed access and the quality of the proposed access if the move is allowed;
# The effect of the move on the child’s academic situation;
# The psychological and emotional well-being of the child;
# The disruption of the child’s existing social and community support and routine;
# The desirability of the proposed new family unit for the child;
# The relative parenting capabilities of either parent and the respective ability to discharge parenting responsibilities;
# The child’s relationship with both parents;
# The separation of siblings;
# The retraining or educational opportunities for the moving parent.


:'''NOTE:''' There is no obligation on the buyer to make a reasonable examination or even any examination.
== E. Access ==


===== (5) Implied Condition of Reasonable Durability =====
"Access" is the term used under the ''DA''. As of March 1, 2021, the term “access” will be removed from the DA, and the term “contact order” will be used to describe arrangements for non-guardians. Under the ''FLA'', the terms are "parenting time" for guardians, or "contact" for non-guardians.


The goods must be durable for a reasonable period of time with regard to their normal use (s 18(c)).
Proceedings regarding parenting arrangements or contact that have been started, but not determined, before the ''FLA'' came into force (March 18, 2013), do not need special transition sections. Section 4 of the ''Interpretation Act'' provides a default rule that the Act will be used upon it becoming effective, so cases started under the ''FRA'' will be determined under the ''FLA''.  


==== f) Implied Conditions in Sales by Sample: s 19 ====
Unless a parent poses a risk to the safety or well-being of the child, they will usually be allowed access or visiting rights. Courts can make an order for access and may view a custodial parent who denies access as acting against the best interests of the child.


For a contract to be a sale by sample, there must be an express or implied term in the contract to that effect (s 19(1)).  
:'''NOTE:''' It is important to note that access is a distinct and separate issue from child support. '''Denial of access is not grounds to withhold support; nor is a failure to pay support grounds for withholding access.'''


Three implied conditions of a sale or lease by sample are set out in s 19(2):
=== 1. Factors Considered in Making an Access Order ===
# The bulk must correspond with the sample in quality;
# The buyer or lessee must have a reasonable opportunity of comparing the bulk with the sample; and
# The goods must be free from any defect rendering them unmerchantable, which would not be apparent on reasonable examination of the sample.


The last condition can only be relied upon where the defect would not have been apparent on a hypothetical reasonable examination. Contrast this with the [[{{PAGENAME}}#(4) Effect of Examination by the Buyer | s 18(b) condition of merchantability for sales by description]], where the buyer’s '''actual''' examination is considered.
The overriding principle remains the '''best interests of the child'''. The courts will not be bound by the wishes of the child, although the child’s views can be a powerful factor. When the '''FLA''' came into force, it introduced an overarching consideration “'''to ensure the greatest possible protection of the child’s physical, psychological, and emotional safety.'''” It can be argued that this consideration is functionally in place already, however. The courts will look into several factors in making access orders. These include:
*The age of the child: older children will be allowed longer visits, but courts will also consider the wishes of children over 12 who may not wish to see the non-custodial parent;
*Distance between homes: if the distances are great, courts may order longer stays;
*Conduct of the non-custodial parent: access can be denied for reasons such as alcoholism, abuse, past attempts to abduct the child, or attempts to alienate the child from the custodial parent;
*Health of the non-custodial parent: if health problems limit the non-custodial parent’s ability to care for the child, access may be limited;


=== 2. Exemption from Implied Contractual Terms ===
=== 2. Types of Access Orders ===


==== a) Private Seller ====
==== a) Interim Orders ====


Based on section 20, Private sellers or lessors, as opposed to retail sellers or lessors, can explicitly exempt themselves from ss 17, 18, and 19. A retail sale is defined as one in the “ordinary course of the seller or lessor’s business.” This is subject to the ''contra proferentum'' rule that such a clause, if ambiguous, is read strictly against the person relying on it.  
After making an interim parenting order, a court will often grant access on an interim basis. Usually, such an order will favour the status quo, so as to minimize disruption for the child.


==== b) Commercial Seller ====
==== b) Specified and Unspecified Access ====


Under s 20 of the ''SGA'', retailers of '''new goods''' cannot exempt themselves from the implied terms in ss 16 – 19, and any clause that attempts  to do so is void, subject to the exceptions listed below.
Specified orders set out the times and places at which the non-custodial parent must have access to the child. Specified orders are generally preferred. Unspecified access is less common and is ordered when the parents are willing to accommodate one another.  


A seller who is making a retail sale in the ordinary course of business can only expressly waive ss 16 – 19 if:
==== c) Conditional Access ====


*i) the goods are used (except s 16, which also applies to used goods);
Courts may impose requirements, such as not smoking or using drugs or alcohol in the presence of the child. If the parent fails to meet the condition, access may be denied.  
*ii) the purchaser, even a private individual, intends to resell the goods;
*iii) the lease is to a lessee for the purpose of subletting the goods;
*iv) the purchaser intends to use the goods primarily for business;
*v) the purchaser is a corporation or commercial enterprise; or
*vi) the seller is a trustee in bankruptcy, a liquidator, or a sheriff.
Where a commercial dealer includes a disclaimer clause exempting the transaction from the provisions in ss 16 – 19, the clause is void, unless one of the exceptions applies.


=== 3. Buyer’s Lien ===
==== d) Supervised Access ====


Amendments to the ''SGA'' in 1994 created the buyer’s lien, which gives priority to a consumer who has paid some or all of the purchase price of the goods, but has not taken possession, before the seller goes into receivership or bankruptcy.
Courts may order visits to be supervised by a designated third party if there are concerns about abuse, abduction, mental and physical handicaps or attempts to alienate the child from the custodial parent. It is up to the custodial parent to demonstrate that access should be supervised.  


=== 4. Buyer’s Obligations and Seller’s Rights ===
:'''NOTE:''' There are no filing fees nor does a person need legal representation in Provincial Court, making it a more accessible option for many clients.


A seller’s rights arise from a breach of the buyer’s obligations. The buyer has two main obligations: (1) to pay the price, and (2) to take delivery. A breach of either of these obligations does not necessarily give rise to all of the seller’s possible remedies as outlined below. One must consider the severity and consequences of a breach to determine the seller’s remedy. The seller has two classes of rights under the ''SGA'': (1) personal rights against the buyer for price or for damages, and (2) ''in rem'' rights to the goods.
=== 3. Extra-provincial Parenting Time and Access Orders ===


==== a) Seller’s Personal Rights ====
Under the ''FLA'', the Court may exercise its jurisdiction to make parenting and access orders if one of the following conditions is met:
#The child was “habitually resident” in BC (s 74(2)(a)). 
#If the child is not habitually resident in B.C., the Court must at the commencement of the application order be satisfied that (s 74(2)(b)): 
#*i. The child is physically present in British Columbia when the application is filed,
#*ii. Substantial evidence concerning the best interests of the child is available in British Columbia,
#*iii. No application for an extraprovincial order is pending before an extraprovincial tribunal in a place where the child is habitually resident,
#*iv. No extraprovincial order has been recognized by a court in British Columbia,
#*v. The child has a real and substantial connection with British Columbia, and
#*vi. On the balance of convenience, it is appropriate for jurisdiction to be exercised in British Columbia; 
# The child is physically present in British Columbia and the court is satisfied that the child would suffer serious harm if the child were to (s 74(2)(c))
#*i. Remain with, or be returned to, the child's guardian, or
#*ii. Be removed from British Columbia.


===== (1) Action for the Price: s 52 =====
B.C. courts are required to enforce extra-provincial orders (s 75) with certain exceptions (s 76). Such exceptions include situations where the child would suffer serious harm if they were returned to the guardian or leaving British Columbia (s 76(1)(a)). 


This action arises when the property in the goods has passed to the buyer, and the buyer neglects or refuses to pay; or where the price is payable on a certain day and the buyer neglects or refuses to pay. This remedy involves the seller seeking the price of the goods.  
If one spouse is not in BC, the only BC Court that the BC residing spouse can proceed in is the BC Supreme Court, because the Provincial Court has no jurisdiction outside of the province.


===== (2) Damages for Non-Acceptance: s 53 =====
== F. Guardianship ==


This is an alternate remedy to action for the price. The prima facie rule for damages is set out in s 53(3). The seller is entitled to be paid  an amount equal to the difference between the negotiated price and the market price for the goods. However, this rule may be displaced where there is either no available market, or the goods are unique, in which case the damages will be assessed based on the estimated loss incurred  by the seller stemming from the breach (s 53(2)).  
Guardianship may be the most important aspect of any legal arrangements concerning the care and control of the children. Guardianship encompasses the whole bundle of rights and obligations involved in parenting a child, including making decisions about the child’s school, moral instruction, religion, health care, dental care, extracurricular activities, etc.  


==== b) Seller’s In Rem Rights ====
When they are still together, both parents are presumed to be guardians, pursuant to a statutory presumption set out in section 39 of the FLA, playing a “full and active role” in the upbringing of the child (see ''e.g.'' [http://canlii.ca/t/23r7t ''Charlton v Charlton'']).  Upon marital breakdown, this can change either by agreement or by order of the Court. 


===== (1) Unpaid Seller’s Lien: ss 43 - 45 =====
Under the ''FLA'', guardianship is primarily governed by sections 39, 41, and 42. 


To get an unpaid seller’s possessory lien (the right to retain the goods until the whole of the price has been paid), the seller must be an “unpaid seller” as set out in s 42. An unpaid seller may retain the goods beyond the specified delivery date. Where goods are to be delivered in installments under a single contract, the seller may exercise a lien over any part of the goods if any part of the price is outstanding (s 45). If the goods are sold on credit, the seller is not entitled to a lien, except under ss 44(1)(b) and (c) where the term of credit has expired, or where the buyer is insolvent.  
Parents can also appoint a guardian in a will. If the parents are both dead or have abandoned the child, the Public Guardian and Trustee becomes the child’s guardian.  


The right of lien may be lost if:
While a child’s parents are living together and after the child’s parents separate, each parent of the child is presumed to be the child’s guardian (s 39).  However, an agreement may be made to provide that a parent is not the child’s guardian after the parents separate or when the parents are about to separate.
*a) the price is paid or tendered (s 44(1));
*b) delivery is made to a carrier or bailee (not the seller’s agent) without reserving a right of disposal (s 46(1)(a));
*c) the buyer or his or her agent lawfully obtains possession (s 46(1)(b)); or
*d) there is a waiver (s 46(1)(c)).  


===== (2) The Right of Stoppage in Transit: ss 47 - 49 =====
Section 39 of the FLA also provides for three other scenarios under which a parent is presumed to be a guardian. A parent who has never resided with a child is not the child’s guardian unless:
* 1) There is an agreement made under section 30 of the FLA,
* 2) The parent and all of the child’s guardians make an agreement providing that the parent is also a guardian, or
* 3) The parent regularly cares for the child. 


This right can be exercised in accordance with s 47 when the seller is unpaid, the buyer is insolvent, and the goods are in the hands of a carrier.  
Additionally, a person does not become a child’s guardian by reason only of marriage or a marriage-like relationship.


===== (3) The Right of Resale: ss 43(1) and 51 =====
A person who is not a parent or a parent who is not a guardian may become a guardian of the child by court order, pursuant to section 50 of the FLA. The person applying to court for a guardianship order must demonstrate why it would be in the best interests of the child and provide notice to all of the child’s guardians and adults with whom the child resides (s. 51). If the child is over 12, the child’s written consent is also required. The evidentiary requirements to obtain such an order are set out under the Supreme Court Family Rules Rule 15-2.1 and the Provincial Court Family Rules Rules 26, 51, and 172. The applicant must provide:


The seller has the right to resell:  
* 1. An affidavit setting out the following information:
*a) if the goods are perishable, or if notice of an intention to resell is given to the buyer by the unpaid seller, and the buyer does not pay within a reasonable time. In this case, the seller may resell the goods and recover damages from the original buyer for any loss from the breach of contract (s 51(3));
**a. The nature and length of the applicant’s relationship with the child,
*b) if the seller has expressly reserved the right to resell in the contract (s 51(4)); 
**b. The child's living arrangements,
**c. A detailed plan for how the applicant going to care for the child,
**d. Information about any other children in the applicant’s care,
**e. Information about any incidents of family violence that may affect the child, and
**f. Information about any family or child protection court proceedings the applicant has been involved in;
*2. A Ministry of Children and Family Development records check;
*3. A Protection Order Registry records check; and
*4. A criminal record check.


Note that if the buyer defaults, and the contract provides that the seller may resell the goods in that situation, the seller may still claim damages, (s 51(4)).
Effective May 2021, the repealed Provincial Court (Family) Rules will be replaced by the new Provincial Court Family Rules found at https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/120_2020. The Guardianship Affidavit (Form 5) is included in the new Rules and requires identical information to what is stated above (see Rules 26, 51, and 172).    


=== 5. Other Sale of Goods Act Provisions ===
If an application is made for guardianship of a treaty First Nation’s child, the child’s First Nation’s government must be served notice of the application and has standing in the proceeding (ss. 208 and 209).


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


Section 14 states that, unless there is a different intention, stipulations as to time of payment do not go to the essence of a contract of sale (i.e. they are not conditions).  
Section 41 of the ''FLA'' lists out the parental responsibilities with respect to a child:
*(a) Making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child;
*(b) Making decisions respecting where the child will reside;
*(c) Making decisions respecting with whom the child will live and associate;
*(d) Making decisions respecting the child's education and participation in extracurricular activities, including the nature, extent and location;
*(e) Making decisions respecting the child's cultural, linguistic, religious and spiritual upbringing and heritage, including, if the child is an aboriginal child, the child's aboriginal identity;
*(f) Subject to section 17 of the Infants Act, giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the child;
*(g) Applying for a passport, licence, permit, benefit, privilege or other thing for the child;
*(h) Giving, refusing or withdrawing consent for the child, if consent is required;
*(i) Receiving and responding to any notice that a parent or guardian is entitled or required by law to receive;
*(j) Requesting and receiving health, education or other information respecting the child from third parties;
*(k) Subject to any applicable provincial legislation,
**(i) Starting, defending, compromising, or settling any proceeding relating to the child, and
**(ii) Identifying, advancing, and protecting the child's legal and financial interests;
*(l) Exercising any other responsibilities reasonably necessary to nurture the child's development.  


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


Under s 34, if the seller delivers a quantity of goods either greater or lesser than that contracted for, the buyer may either reject the entire shipment, or accept the quantity delivered and pay accordingly, or, if the quantity is greater than ordered, reject the balance over that ordered. There is likely an exception when the difference in quantity is so slight as to be ''de minimis''.  
Additionally, Division 6 of Part 4 of the new ''FLA'' states that if you are a child’s guardian and you want to relocate with the child, you must give any other person who can contact the child 60 days’ notice which includes both the date of the relocation and the name of the proposed location. The Court may not grant an exemption to give notice if it is satisfied that notice cannot be given without incurring a risk of family violence by another guardian or a person having contact with the child or there is no ongoing relationship between the child and the other guardian or the person having contact with the child. Once notice is given, a child’s guardians and persons having contact with the child must use their best efforts to resolve any issues relating to the proposed relocation. The proposed relocation may occur unless another guardian of the child files an application to prohibit the relocation within 30 days of receiving notice. The Court will make its decision based on s 37 of the ''FLA'' considering what would be in the best interests of the child.  


==== c) Stipulations as to Price ====
=== 1. Terminating Guardianship ===


Under s 12, where a contract is silent as to price, the court will infer a reasonable price, but where the price would be too vague for the court to infer, there may be no consensus upon an essential term, and therefore no contract.  
Sole guardianship and joint guardianship are not terms used in the ''FLA''.  The parents or a court may decide that one parent should be the only guardian of the child.  This terminates the presumption of guardianship for the other parent.  The parents may terminate one parent’s guardianship via written agreement (s. 39). The court can terminate one parent’s guardianship pursuant to section 51 of the ''FLA''.  This is an extreme step, taken only when one parent has been shown to be either uninterested in or incapable of proper parenting.  


==== d) Installments ====
=== 2. Both Parents are Guardians ===


Under s 35(1), a buyer need not accept delivery by installments unless that is agreed to. Where a contract is for separately paid installments, circumstances and construction of the contract determine whether a breach allows for repudiation of the entire contract, or only a right to sue for damages regarding the defective installment.
Under the ''FLA'', the standard guardianship agreement, wherein both parents are or remain guardians, is structured such that parental responsibilities and parenting time are specified in the agreement, with specific provisions which govern the allocation of parenting responsibilities. If no such provisions are included, then each party may exercise all parental responsibilities in consultation with the other guardians (''FLA'' section 40(2)).  


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


Sections 52 – 57 of the ''SGA'' cover actions for breach of contract. Common law and equitable remedies may exist as well.
Also, agreements will typically include a dispute resolution clause which governs the situation where the guardians cannot reach agreement over one of their shared responsibilities. The options include:
*a) One parent has the final word; however, the other party can apply to court if they disagree with the deciding parent. In particularly high-conflict cases, giving one parent decision-making authority may be the only solution ([http://www.canlii.org/en/bc/bcsc/doc/2015/2015bcsc2409/2015bcsc2409.html?autocompleteStr=BCSC%202409&autocompletePos=1 ''Friedlander v Claman'', 2015 BCSC 2409]);
*b) The parties go to mediation, wherein the mediator will have the final word if the parties cannot agree;
*c) The parties go to a parenting coordinator who has decision-making authority;
*d) Other collaborative law processes; or
*e) The parties can resolve the matter in court.


=== 1. Damages Generally ===
== G. Parenting Responsibilities and Parenting Time ==


Generally, the object of damages is to put the injured party in the same position he or she would have been in had the other party performed their contract obligations (“expectation damages”).  
=== 1. Family Law Act ===


At common law, to be awarded damages for breach of contract, those damages must be in the reasonable contemplation of both parties at the time the contract was formed. If the damages are too remote, they may not be recoverable under contract law. Both sides must be aware of the circumstances at the time of formation that would lead to damages if an obligation went un- or underperformed. This may encompass either implied circumstances, if reasonable, or special circumstances that were communicated at the time the contract was formed (''Hadley v Baxendale'' (1854), 156 ER 145 (Eng Ex Div)). Damages that were substantially likely and easily foreseeable at the time the contract was formed will be deemed to have  been in the reasonable contemplation of the parties. Once the '''type''' of loss is found to have been foreseeable, the extent of damages can be recoverable even if the '''degree''' of damages is so extensive as to be unforeseeable.  
According to section 42 of the FLA, parenting time refers to the amount of time that a child spends under the care of a guardian, as determined by an order or agreement. When the child is under their care, guardians assume responsibility for day-to-day care and decision-making for the child (please see section 41 of the FLA for a range of parenting responsibilities). Parenting time and responsibilities may not be allocated equally amongst guardians, and guardians may or may not be required to consult with one another depending on the terms of the order or agreement.  


Parties have a common law '''duty to mitigate''' their damages from the date of the contractual breach. In a contract for the sale of goods, this means buying the goods elsewhere and suing the party who breached the contract for the additional amount paid for the goods over the contract price. In a contract for services, such as roof repair, this means hiring another party to do the repairs and suing the original party for the difference in price paid, if any. There is some jurisprudence that suggests when it is not feasible for a party to mitigate, they are excused from doing so. See ''[https://www.canlii.org/en/ca/scc/doc/2012/2012scc51/2012scc51.html?resultIndex=1 Southcott Estates Inc v Toronto Catholic District School Board]'', 2012 SCC 51.
Decisions as to parenting time and responsibilities are determined according to the best interests of the child only. Section 40 of the FLA notes that the equal division of parenting time and parenting responsibilities is not presumed to be in the best interests of the child, nor should it be presumed that it is inherently better to make decisions separately or jointly. Guardians should not expect that they are entitled to equal sharing of parenting time or parenting responsibility. The best interests of the child are determined by weighing the following non-exhaustive list of considerations set out in section 37(2) of the FLA:  


=== 2. Breach of Warranty ===
*(a) The child's health and emotional well-being;
*(b) The child's views, unless it would be inappropriate to consider them;
*(c) The nature and strength of the relationships between the child and significant persons in the child's life;
*(d) The history of the child's care;
*(e) The child's need for stability, given the child's age and stage of development;
*(f) The ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;
*(g) The impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;
*(h) Whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs;
*(i) The appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;
*(j) Any civil or criminal proceeding relevant to the child's safety, security or well-being.


For a breach of a term of the contract that is a warranty, the only available remedy will be damages. The innocent party must continue with the contract while seeking damages.  
A person’s conduct is considered only where their conduct stands to impact any of the above considerations regarding the best interests of the child.  


In a contract for the sale of goods governed by the ''SGA'', the standard measure of damages is “the estimated loss directly and naturally resulting, in the ordinary course of events, from the breach” (s 56(2)). Where the warranty pertained to quality of the goods, the loss will be calculated as the difference between the cost of obtaining the goods in the market and the contract price of the goods (s 56(3)). Thus a buyer who has negotiated a good deal can recover the difference between their expected savings and the market price. Section 57 states that s 56 does not affect recovery of special damages or interest, if otherwise available by law. The common law governs the recovery of  special damages. For special damages to be recoverable, both parties must have been made aware of their possible incursion at the time of formation of the contract.
=== 2. Divorce Act ===


=== 3. Breach of Condition ===
Under the DA, the term “parenting time” is used to refer to matters concerning the care, upbringing, and other relevant details pertaining to a child (s. 2); parenting time is designated by what is referred to as a parenting order under the current DA. The provisions of section 16 give a brief overview of how an order for parenting is decided and issued, including who may apply for an order, who may issue an order, and several of the court’s considerations when issuing such orders.


For a breach of condition, the aggrieved party can affirm the contract and, in the future, seek damages, or terminate the contract, discharging future obligations but still allowing recovery for damages. The offending party has “repudiated” the contract by acting in a way that expresses the intention to no longer be bound by the contract, and the party aggrieved can accept or reject that repudiation.
As of March 1, 2021, updates to the DA mean that the term “custody” was replaced by “parenting time” and “parenting responsibilities” to emphasize the importance of the needs of the child rather than on the child as a possession of a parent. Similarly, “order for custody” was replaced by “parenting order.” Section 16(1) through 16(10) were repealed and replaced with a new section entitled “Best Interests of the Child”. This section includes more expansive provisions which focus on determining parenting time and responsibilities based on the best interests of the child. The new section 16(3) provides guidance as to the factors to be considered, including:


==== a) Repudiation ====
*(a) The child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
*(b) The nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
*(c) Each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
*(d) The history of care of the child;
*(e) The child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
*(f) The child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
*(g) Any plans for the child’s care;
*(h) The ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
*(i) The ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
*(j) Any family violence and its impact on, among other things,
**i. The ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
**ii. The appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
*(k) Any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.


The buyer’s primary right for a breach of a condition is to repudiate the contract and reject the goods. This can normally be exercised regardless of the actual quantum of loss or benefit to the parties. However, the right to repudiate may be lost under the ''SGA''.
The updated DA also sets out the required contents of a parenting order (16.1(4)). A parenting order allocates parenting time—and, correspondingly day-to-day decision-making responsibilities—and may include a schedule and permitted means of communication between a child and a person with parenting responsibilities. Parenting orders submitted by the parties must be mutually agreed to when submitted, though a court may modify according to the best interests of the child.


In the case of a rightful repudiation, the buyer may refuse further payment, and in addition, seek either damages or restitution from the  seller. The consequence of wrongful repudiation termination (the buyer repudiates when they did not have the right to do so; e.g. because the seller breached a warranty rather than a condition) is that the buyer is liable to the seller for their own breach of condition. So, it is important to determine whether or not repudiation is justified '''before''' taking any action, by determining the nature of the term the seller breached.


===== (1) When a Breach of Condition is Treated as a Breach of Warranty =====
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Section 15(4) specifies two circumstances where, unless the parties contract otherwise, any breach of condition (including the implied statutory conditions in ss 16 – 19) must be treated as a breach of warranty: (1) in a contract for sale of specific goods when property has  passed to the buyer; or (2) where the buyer has accepted the goods, or part of them.
 
===== (2) Specific Goods: Upon Passage of Property =====
 
When s 15(4) is combined with ss 23(1) and (2), the result is that, for a sale of specific goods in a deliverable state, the buyer loses the right to repudiate as soon as the contract is made.
 
However, courts may avoid this harsh result by: (1) implying a term allowing the buyer to accept the goods and later reject them: see ''[http://canlii.ca/t/g7bg3#par22 Polar Refrigeration Service Ltd v Moldenhauer]'' (1967), 61 DLR (2d) 462 (Sask QB) at para 22; (2) finding a total failure of consideration: see ''Rowland v Divall'', [1923] 2 KB 500; (3) finding the intent for property to not pass immediately (ss 22 and 23(1)); (4) finding that the goods are not specific; or (5) finding ss 23(3), (4) or (5) to be applicable.
 
===== (3) Unascertained Goods: Upon Acceptance =====
 
For a sale of unascertained goods, the buyer loses the right to repudiate upon acceptance of the goods (s 15(4)).
 
Under s 38, if the buyer has not previously examined the goods, there is no acceptance unless and until the buyer has had a reasonable opportunity to examine them. However, under s 39 a purchaser has accepted the goods once (1) the seller is notified by the buyer of  acceptance, (2) the goods are used in a manner inconsistent with the seller’s ownership (e.g. reselling the goods to a third party), or (3) the goods are retained without being rejected within a “reasonable time”.
 
The court determines a reasonable time for inspection and possible rejection by looking at all the circumstances surrounding the transaction.
 
==== b) Damages for Breach of Condition ====
 
As mentioned above, the innocent party has a choice in the face of a breach of condition. They may (1) accept the repudiation, terminate the contract, and sue for damages right away, or (2), if they have a legitimate interest in doing so, may affirm the contract, wait for the date of performance, and sue for damages for any defect in performance at that date. (In many cases involving one-time sales, the performance date will be contemporaneous with the date of the payment/delivery/breach, rendering this a moot point.)
 
In deciding whether or not to affirm a contract in order to assess damages at a later date, the client should consider the implications of their duty to mitigate the loss. In a sale of goods, purchasing the goods from someone else can often mitigate damages; generally no special interest exists in purchasing the particular goods from a particular vendor.
 
==== c) Specific Performance ====
 
If an aggrieved party does decide to affirm the contract, specific performance may be available for a contract of sale for specific goods. Specific performance is a court order compelling performance of a contract in the specific form in which it was made (''SGA'', s 55). In certain circumstances, it may be available at common law for unascertained goods (''Sky Petroleum Ltd v VIP Petroleum Ltd'', [1974] 1 WLR 576, [1974] 1 All ER 954). Specific performance is a discretionary equitable remedy and will only be granted if damages are inadequate; for example where the goods are unique or otherwise unavailable. Section 3(1)(c) of the ''Small Claims Act'', RSBC 1996, c 430, provides that the Small Claims Division of the Provincial Court of  British Columbia can grant specific performance in an agreement relating to personal property.
 
=== 4. Rescission ===
 
The remedy of rescission seeks to undo a contract. It is available for, among other things, misrepresentation. See section IV.G for a fuller discussion of what constitutes misrepresentation. Rescission is an equitable remedy that sets the contract aside and seeks to restore the parties to their original, pre-contractual positions. This usually means return of the goods and return of any payment made. Because it undoes the contract, no damages can be claimed beyond the restitution necessary to return the parties to their pre-contractual positions. Delay in bringing the action or acceptance of the goods may bar rescission.
 
 
 
 
{{REVIEWED LSLAP | date= August 5, 2021}}
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Revision as of 00:03, 2 November 2021

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on August 18, 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. General

Disputes over parenting time of minor children are often the most difficult issues to resolve during the breakdown of a marriage or other relationship. Parenting time decisions can always be changed; however, courts rarely make such changes. Thus, the decision about who gets interim parenting time is particularly important. Children usually stay with the parent who has provided primary care in the past and who can spend the most time with them. Sometimes, courts will order joint parenting time on an interim basis so that neither parent’s position is prejudiced.

The best interests of the child is the only consideration in determining parenting time, contact, and parenting arrangements.

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

The case law on parenting time and guardianship has developed to the point where there is a presumption in favour of joint parenting time or both parents being guardians(although there is no legislative presumption). A parent seeking sole parenting time will generally have to show that there is a serious defect in the other person’s parenting skills, that the other person is geographically distant, or that the parents are utterly unable to communicate without fighting before the Court will consider granting such an application, and in the last case, the Court may explore other options such as Parenting Coordination or parcelling out decision making and responsibilities to address the communication issue instead of granting sole parenting time to one parent.

B. Legislation

1. Divorce Act

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

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

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

Amendments to the DA will result in changes to the terms of guardianship:

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

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

2. Family Law Act

Among a plethora of changes to the general family law in BC, the Act makes the following changes to the law surrounding guardianship:

  • Replace the terms “custody” and “access” with “guardianship”, “parenting time”, and “contact”.
  • Define “guardianship” through a list of “parental responsibilities” that can be allocated to allow for more customized parenting arrangements.
  • Provide that parents retain responsibility for their children upon separation if they have lived together with the child after the child’s birth. (Note: this does not mean that the law presumes an automatic 50-50 split of parental responsibilities or parenting time.) If they have not, the parent with whom the child lives is the guardian.
  • Under the FLA, the terms custody and access are no longer used – only guardianship will be considered.
  • Additionally, the “best interests of the child” is no longer the paramount consideration under the FLA; it is the only consideration.

C. Courts

1. Supreme Court

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

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

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

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

2. Provincial Court

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

D. Parenting Time

Proceedings regarding parenting arrangements or contact that have been started, but not determined, before the Family Law Act is in force, do not need special transition sections. Section 4 of the Interpretation Act provides a default rule that the Act will be used upon it becoming effective, so cases started under the FRA will be determined under the FLA.

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

1. Factors in Awarding Parenting Time

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

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

and at s 16(1-6) of the DA:

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

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

The Court will generally consider the child’s health and emotional well-being, their education and training and the love, affection and similar ties that exist between the child and other persons such as relatives and family friends. If appropriate, the views of the child will be considered. For a parenting order relating to a teenager to be practical, it must reasonably conform to the wishes of the child (O’Connell v McIndoe (1998), 42 R.F.L. (4th) 77 (BCCA), Alexander v Alexander (1988), 15 R.F.L. (3d) 363 (BCCA)).

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

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

Race and aboriginal heritage are relevant considerations, but neither is determinative of parenting time alone. The importance of race differs in adoption cases, where it may be given more weight because the Court is making a decision about the child’s exposure to their race or culture (Van de Perre v Edwards, 2001 SCC 60). Aboriginal heritage is to be weighed along with other factors in a determination of a child’s best interests (H (D) v M (H), [1997] BCJ No 2144 (QL) (SC)).

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

Section 211 of the FLA allows the Court to order an assessment by a psychologist of each party’s parenting abilities and relationship with the child. These reports are particularly important where the dispute over parenting time is bitter and unlikely to settle. An assessment provides the Court with an independent and neutral expert opinion. Where expert evidence would assist the Court, the Court can order an FLA Section 211 report (Gupta v Gupta, 2001 BCSC 649).

2. Types of Parenting Orders

NOTE: “Parenting time” is a term that only appears in the DA and so only applies to claims that are proceeding in Supreme Court under the DA.

a) Interim Orders

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

b) Sole Parenting Time

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

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

c) Joint Parenting Time

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

d) Shared Parenting Time

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

e) Split Parenting Time

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

3. Other Parenting Time Issues

a) Consent Orders

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

b) Enforcement of Parenting Time Orders

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

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

A child abducted and taken elsewhere within the province will be returned to their rightful custodian. Abduction is an offence under the FLA, s 188 that carries a possibility of criminal proceedings (Criminal Code, RSC 1985, c C-46, ss 280-281). The Criminal Code makes it an offence for a non-custodial parent to abduct a child. Where a parenting order is in effect, abduction amounts to contempt of Court.

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

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

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

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

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

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

Issues of parental mobility may arise in conjunction with parenting time issues. That is, one parent may wish to relocate away from another parent with whom they share parenting time . In Gordon v Goertz, [1996] 5 WWR 457 (SCC), the Supreme Court of Canada set out the basic principles for the DA. Once the parent applying for the change meets a threshold requirement of demonstrating a material change in the circumstances affecting the child, the Court is required to begin a fresh inquiry into what is in the best interests of the child. Factors to be considered include: the desirability of maximizing contact between the child and both parents, the disruption to the child, and the child’s views.

One v One, 2000 BCSC 1584, also a DA case, identifies the following list of factors to be considered in determining whether a proposed move is in a child’s best interests:

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

E. Access

"Access" is the term used under the DA. As of March 1, 2021, the term “access” will be removed from the DA, and the term “contact order” will be used to describe arrangements for non-guardians. Under the FLA, the terms are "parenting time" for guardians, or "contact" for non-guardians.

Proceedings regarding parenting arrangements or contact that have been started, but not determined, before the FLA came into force (March 18, 2013), do not need special transition sections. Section 4 of the Interpretation Act provides a default rule that the Act will be used upon it becoming effective, so cases started under the FRA will be determined under the FLA.

Unless a parent poses a risk to the safety or well-being of the child, they will usually be allowed access or visiting rights. Courts can make an order for access and may view a custodial parent who denies access as acting against the best interests of the child.

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

1. Factors Considered in Making an Access Order

The overriding principle remains the best interests of the child. The courts will not be bound by the wishes of the child, although the child’s views can be a powerful factor. When the FLA came into force, it introduced an overarching consideration “to ensure the greatest possible protection of the child’s physical, psychological, and emotional safety.” It can be argued that this consideration is functionally in place already, however. The courts will look into several factors in making access orders. These include:

  • The age of the child: older children will be allowed longer visits, but courts will also consider the wishes of children over 12 who may not wish to see the non-custodial parent;
  • Distance between homes: if the distances are great, courts may order longer stays;
  • Conduct of the non-custodial parent: access can be denied for reasons such as alcoholism, abuse, past attempts to abduct the child, or attempts to alienate the child from the custodial parent;
  • Health of the non-custodial parent: if health problems limit the non-custodial parent’s ability to care for the child, access may be limited;

2. Types of Access Orders

a) Interim Orders

After making an interim parenting order, a court will often grant access on an interim basis. Usually, such an order will favour the status quo, so as to minimize disruption for the child.

b) Specified and Unspecified Access

Specified orders set out the times and places at which the non-custodial parent must have access to the child. Specified orders are generally preferred. Unspecified access is less common and is ordered when the parents are willing to accommodate one another.

c) Conditional Access

Courts may impose requirements, such as not smoking or using drugs or alcohol in the presence of the child. If the parent fails to meet the condition, access may be denied.

d) Supervised Access

Courts may order visits to be supervised by a designated third party if there are concerns about abuse, abduction, mental and physical handicaps or attempts to alienate the child from the custodial parent. It is up to the custodial parent to demonstrate that access should be supervised.

NOTE: There are no filing fees nor does a person need legal representation in Provincial Court, making it a more accessible option for many clients.

3. Extra-provincial Parenting Time and Access Orders

Under the FLA, the Court may exercise its jurisdiction to make parenting and access orders if one of the following conditions is met:

  1. The child was “habitually resident” in BC (s 74(2)(a)).
  2. If the child is not habitually resident in B.C., the Court must at the commencement of the application order be satisfied that (s 74(2)(b)):
    • i. The child is physically present in British Columbia when the application is filed,
    • ii. Substantial evidence concerning the best interests of the child is available in British Columbia,
    • iii. No application for an extraprovincial order is pending before an extraprovincial tribunal in a place where the child is habitually resident,
    • iv. No extraprovincial order has been recognized by a court in British Columbia,
    • v. The child has a real and substantial connection with British Columbia, and
    • vi. On the balance of convenience, it is appropriate for jurisdiction to be exercised in British Columbia;
  3. The child is physically present in British Columbia and the court is satisfied that the child would suffer serious harm if the child were to (s 74(2)(c))
    • i. Remain with, or be returned to, the child's guardian, or
    • ii. Be removed from British Columbia.

B.C. courts are required to enforce extra-provincial orders (s 75) with certain exceptions (s 76). Such exceptions include situations where the child would suffer serious harm if they were returned to the guardian or leaving British Columbia (s 76(1)(a)).

If one spouse is not in BC, the only BC Court that the BC residing spouse can proceed in is the BC Supreme Court, because the Provincial Court has no jurisdiction outside of the province.

F. Guardianship

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

When they are still together, both parents are presumed to be guardians, pursuant to a statutory presumption set out in section 39 of the FLA, playing a “full and active role” in the upbringing of the child (see e.g. Charlton v Charlton). Upon marital breakdown, this can change either by agreement or by order of the Court.

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

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

While a child’s parents are living together and after the child’s parents separate, each parent of the child is presumed to be the child’s guardian (s 39). However, an agreement may be made to provide that a parent is not the child’s guardian after the parents separate or when the parents are about to separate.

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

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

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

A person who is not a parent or a parent who is not a guardian may become a guardian of the child by court order, pursuant to section 50 of the FLA. The person applying to court for a guardianship order must demonstrate why it would be in the best interests of the child and provide notice to all of the child’s guardians and adults with whom the child resides (s. 51). If the child is over 12, the child’s written consent is also required. The evidentiary requirements to obtain such an order are set out under the Supreme Court Family Rules Rule 15-2.1 and the Provincial Court Family Rules Rules 26, 51, and 172. The applicant must provide:

  • 1. An affidavit setting out the following information:
    • a. The nature and length of the applicant’s relationship with the child,
    • b. The child's living arrangements,
    • c. A detailed plan for how the applicant going to care for the child,
    • d. Information about any other children in the applicant’s care,
    • e. Information about any incidents of family violence that may affect the child, and
    • f. Information about any family or child protection court proceedings the applicant has been involved in;
  • 2. A Ministry of Children and Family Development records check;
  • 3. A Protection Order Registry records check; and
  • 4. A criminal record check.

Effective May 2021, the repealed Provincial Court (Family) Rules will be replaced by the new Provincial Court Family Rules found at https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/120_2020. The Guardianship Affidavit (Form 5) is included in the new Rules and requires identical information to what is stated above (see Rules 26, 51, and 172).

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

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

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

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

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

Additionally, Division 6 of Part 4 of the new FLA states that if you are a child’s guardian and you want to relocate with the child, you must give any other person who can contact the child 60 days’ notice which includes both the date of the relocation and the name of the proposed location. The Court may not grant an exemption to give notice if it is satisfied that notice cannot be given without incurring a risk of family violence by another guardian or a person having contact with the child or there is no ongoing relationship between the child and the other guardian or the person having contact with the child. Once notice is given, a child’s guardians and persons having contact with the child must use their best efforts to resolve any issues relating to the proposed relocation. The proposed relocation may occur unless another guardian of the child files an application to prohibit the relocation within 30 days of receiving notice. The Court will make its decision based on s 37 of the FLA considering what would be in the best interests of the child.

1. Terminating Guardianship

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

2. Both Parents are Guardians

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

The following are standard elements typically included in guardianship agreements:

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

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

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

G. Parenting Responsibilities and Parenting Time

1. Family Law Act

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

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

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

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

2. Divorce Act

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

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

  • (a) The child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
  • (b) The nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
  • (c) Each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
  • (d) The history of care of the child;
  • (e) The child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
  • (f) The child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
  • (g) Any plans for the child’s care;
  • (h) The ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
  • (i) The ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
  • (j) Any family violence and its impact on, among other things,
    • i. The ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
    • ii. The appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
  • (k) Any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

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


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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