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ADJUNCT 109 Fall 2016 (Redman) Nahal Iranpour

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Table of Contents
Intro .......................................................................................................................................... 4
Jurisdiction ........................................................................................................................................ 4
Legislative ................................................................................................................................................. 4
Judicial ...................................................................................................................................................... 4
Creating Relationships ............................................................................................................... 5
Marriage Requirements...................................................................................................................... 5
Other Types of Marriage..................................................................................................................... 8
Validity of Foreign Marriages.................................................................................................................... 8
Customary Marriages ............................................................................................................................... 9
Polygamous Marriages ............................................................................................................................. 9
Cohabitation/Common Law Spouses - Marriage Like Relationships ...................................................... 10
Ending Relationships ............................................................................................................... 12
Grounds for Divorce ......................................................................................................................... 12
Jurisdiction ...................................................................................................................................... 13
Duty of the Court ............................................................................................................................. 14
Same Sex Divorce ............................................................................................................................. 15
Same Sex Adultery .................................................................................................................................. 15
Capacity to Separate ........................................................................................................................ 16
Date of Separation ........................................................................................................................... 16
Best Interests of the Child ........................................................................................................ 18
Divorce Act ...................................................................................................................................... 18
Family Law Act ................................................................................................................................. 19
Expert Reports ................................................................................................................................. 22
Section 211 (FLA) .................................................................................................................................... 22
Views of the Child Report ....................................................................................................................... 23
Other Ways to Get Child's Evidence ....................................................................................................... 24
Who is a Parent? ..................................................................................................................... 25
Orders declaring parentage .............................................................................................................. 29
Post-Separation Parenting Framework ..................................................................................... 30
Divorce Act ...................................................................................................................................... 30
Family Law Act (Part 4; ss. 37-80) ...................................................................................................... 32
Specific Issues in Parenting ...................................................................................................... 39
1. Failure to Exercise Parenting Time ................................................................................................ 39
2. Denial of Parenting Time .............................................................................................................. 40
When Denial is NOT Wrongful ................................................................................................................ 41
3. Child Abduction ............................................................................................................................ 42
4. Mobility/Relocation ..................................................................................................................... 44
DA ........................................................................................................................................................... 44
FLA .......................................................................................................................................................... 45
5. Parental Alienation Syndrome ...................................................................................................... 49
Parenting Coordination Process ............................................................................................... 51
Arbitration .............................................................................................................................. 51
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Child Support........................................................................................................................... 52
Does the person asking for the order have the right to claim child support? ...................................... 52
DA ........................................................................................................................................................... 52
FLA .......................................................................................................................................................... 52
Is the child entitled to receive child support? .................................................................................... 52
DA ........................................................................................................................................................... 52
FLA ......................................................................................................................................................... 53
Whether post-secondary education will be paid for by parents? .......................................................... 54
Is the person against whom order is sought obliged to pay child support? ......................................... 55
How much support should the child receive? .................................................................................... 55
How long should the child receive support? ...................................................................................... 55
*Federal Child Support Guidelines* .................................................................................................. 55
Objectives ............................................................................................................................................... 55
Amount of Child Support ........................................................................................................................ 56
Division of Property ................................................................................................................. 67
Family Law Act – Part 5 .................................................................................................................... 67
Who can Make a Claim? ................................................................................................................... 68
Presumption .................................................................................................................................... 68
Beginning a Relationship .................................................................................................................. 69
What is Separation? ......................................................................................................................... 69
Date of Separation .................................................................................................................................. 69
Is There an Agreement?.................................................................................................................... 70
Categorization of Property ............................................................................................................... 71
What is Family Property?........................................................................................................................ 71
What is Family Debt? .............................................................................................................................. 72
What is Excluded Property? .................................................................................................................... 73
Can you get Unequal Division? ............................................................................................................... 73
Valuation................................................................................................................................................. 75
Before Agreement or Final Order is Made ............................................................................................. 75
Part 6 Pension Division ........................................................................................................................... 77
Caselaw ........................................................................................................................................... 77
2016 conflicting cases ............................................................................................................................. 77
Court of Appeal to the rescue ................................................................................................................ 78
Spousal Support ...................................................................................................................... 81
Objectives ........................................................................................................................................ 81
Conceptual Grounds ......................................................................................................................... 82
(1) Contractual Grounds ......................................................................................................................... 82
(2) Compensatory Grounds .................................................................................................................... 84
(3) Non-Compensatory Model (Basis: Social Obligation) ....................................................................... 86
Variation of Support Order ............................................................................................................... 88
Under the DA .......................................................................................................................................... 88
Under the FLA ......................................................................................................................................... 88
Spousal Support Advisory Guidelines (“SSAG”).................................................................................. 89
Without Child Formula ........................................................................................................................... 90
With Child Support Formula ................................................................................................................... 91
Spousal Misconduct ......................................................................................................................... 92
The Intersection of Property and Spousal Support ............................................................................. 93
Securing Spousal Support ................................................................................................................. 93
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Cases ....................................................................................................................................... 95
Ending the Relationship .................................................................................................................... 95
Wolfman-Stotland v. Stotland (2011 BCCA) ........................................................................................... 95
Best Interests of Child ...................................................................................................................... 96
BDM v AEM, 2014 BCSC .......................................................................................................................... 96
Division of Property.......................................................................................................................... 97
Cabezas v Maxim (2016 BCCA) ............................................................................................................... 97
V.J.F. v S.K.W. 2016 BCCA 186 ............................................................................................................... 98
Wong v Rooney (2016 BCSC) ................................................................................................................ 100
Bell v Stagg (2016 BCSC) ....................................................................................................................... 101
Jaszczewska v Kostanski (2016 BCCA)................................................................................................... 102
Sardinha v Sardinha (2016 BCSC).......................................................................................................... 102
FLA vs. FRA ............................................................................................................................ 104
Who is a parent? ............................................................................................................................ 104
Division of Property........................................................................................................................ 106
Divorce Statistics ................................................................................................................... 106
The key provisions of the (Act name) relevant to this issue are:
For every single Q on exam, don’t forget to look @ s. 37 BIOC!
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Intro
Jurisdiction
Legislative
The responsibility for regulating families falls on both the federal and provincial governments. In
some areas there are overlapping jurisdictions and in other areas each government has separate
and distinct responsibilities.
Judicial
The judicial jurisdiction over family law disputes is also a shared jurisdiction between superior and
lower courts. In British Columbia, there are two levels of court at the trial level: the British
Columbia Supreme Court and the Provincial Court. Depending on the circumstances, one or both
levels of court may be involved where the issue is breakdown of the family.
Supreme Court: only the Supreme Court may hear
 applications for divorce under the Divorce Act (see definition of "court" in s. 1 of the
Divorce Act).
 applications for custody, child support and spousal support under the Divorce Act.
 issues relating to the division of property and debt – w/in the provincial sphere under
s.92(13), so bring claim under the Family Law Act.
 hear applications for adoption (Adoption Act)
 disposing w/ notice under s. 69 of the Child, Family and Community Services Act
Provincial Court:
 generally, has sole jurisdiction in matters of child protection – but there are some
exceptions (i.e. disposing w/ notice)
Areas of concurrent jurisdiction in family breakdown:
 A claim under the Family Law Act and the only issues to be determined are custody and
support.
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Creating Relationships
3 ways to get out of a marriage:
1. Void (e.g. no consent, didn't know there was a ceremony, no capacity, no single, etc.)
2. Annulment (high threshold)
3. Divorce - courts have to ensure there is no possibility of reconciliation (Divorce Act s. 10).
Marriage Requirements
(A) Essential validity (federal jurisdiction)
1. Capacity
(a) Age – Marriage Act
 s.28: if under 19, must have: consent of living parents, lawful guardian, or order of BCSC
(dispenses with consent if it is being withheld "unreasonably or from undue motives" - e.g.
if racially or status based - or any other ridiculous reason), or consent of Public Guardian
and Trustee (when in care of gov't, ministry or PGT)
 s.29: if under 16, cannot be done unless BCSC makes an order
 s.30: nothing in ss. 28 or 29 invalidates a marriage - bias of law in favour of validity of
marriages
o If marriage happens, it is not an automatic invalidation although it doesn’t meet
requirement of age.
o ZJ: PP - marriage is a sacred thing protected by our society, provides protection for
those under age and are married. Need to have process to invalidate marriage even
if age requirements aren't met.
(b) Consanguinity (blood relations) & Affinity – Marriage (Prohibited Degrees) Act  void ab
initio = void as if it never occurred
 No prohibition – s.2(1): subject to (2), persons related by consanguinity, affinity or
adoption are not prohibited from marrying each other by reason only of their relationship
 Prohibition – s.2(2): no person shall marry another person if they are related lineally, or as
brother or sister or half-brother or half-sister, including by adoption
o Adopted/half/birth sibling can’t marry, but first cousins can
 ZJ: provisions are a bit contradictory but PP is to protect sacredness/sanctity of marriage.
Not really an issue now.
 ZJ: family lawyers look at the MA or MPDA only to void the marriage - people usually have
gone through the 'marrying' process.
(c) Single  If not single, void ab initio --> not valid from the beginning.
 Even if you think that your 1st spouse is dead, if they are alive the marriage is void
 Bigamy: knowing you're married and marrying someone else without 2nd spouse knowing
 Polygamy: being married to multiple partners at once
 Polyamory: being in a consensual relationship between more than two partners
 ZJ: these don't really matter b/c in Canada, we only recognize a marriage between two
individuals, just terms.
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(d) Sanity (will come back to this for capacity to divorce)  void
 TEST: both individuals must understand the nature of the marriage contract and the duties
and responsibilities it creates
o ZJ: this is a low threshold/test for capacity to marry
o ZJ: when talking about a marriage contract in the context of getting married, it is
NOT a pre- or post-nuptial, but the act of getting married (this alone is a K).
 Courts have interpreted insanity very narrowly and it is difficult to establish that a person
did not understand the nature of the marriage --> hard for marriage to be annulled or void
- not an in-depth understanding of the marriage K. This is also a contradiction with the
test…but remember PP: protection of sacredness of marriage.
(e) Opposite sex
 no longer required for capacity
 was based on common law definition Reference re Same Sex Marriage (2004 SCC)
 now, Civil Marriage Act:
o Came into force on July 20, 2005
o Preamble: every individual is equal before and under the law; courts in majority of
provinces have recognized the right of same sex-couples to marry; only equal
access to marriage would respect rights of same-sex couples to equality…
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ZJ: all people should be treated equally and have the right to marriage
 s.2: marriage, for civil purposes, is the lawful union of two persons to the exclusion of all
others [ZJ: b/w 2 people, can be of the same sex now].
 s.3: officials of religious groups are free to refuse to perform marriages that are not in
accordance with their religious beliefs [ZJ: this is a balancing act by the legislature b/w
equality rights and religious freedom].
 Marriage commissioners
o Sask HRT held marriage commissioners are part of and an arm of the "government",
fall under the Charter and cannot refuse to commission a marriage under s. 3,
otherwise it would be a human rights violation
o Sask and MB commissioners unsuccessfully complained about being obliged to
state willingness to marry all couples or resign
o PEI allows marriage commissioners to refuse [ZJ: this likely will be challenged in the
future].
2. Consent [another aspect of capacity]
Look @ CMD v RRS (2005 BCSC) under foreign marriages if intoxication at issue.
TEST: The question which I have to determine is not whether she was aware that she was going
through the ceremony of marriage, but whether she was capable of understanding the nature of
the contract she was entering into (Hunter v Edney 1881 UK).
 ZJ: but if we look at other cases, understanding the K means the person doesn't have to
clearly understand who the other person is and the responsibilities in a marriage. There is a
contradiction in the case law but still a low threshold to meet.
 ZJ: rely on the distinction that in Hunter, she may not know she was going through a
ceremony (facts particular to that case);
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In Durham v Durham 1885 UK, content of requisite understanding is described as follows: It is an
engagement between a man and a woman to live together, and love one another as husband and
wife, to the exclusion of all others.
 ZJ: if this is the test, even if there is infidelity, a marriage is not void! Again, shows a low
threshold.
Lack of consent renders a marriage VOID. Subsequent conduct can ratify it, unless void by duress
or fraud.
 Duress (forced):
o Genuine and reasonable fear
o Australian court held duress includes non-violent, controlling parental coercion (e.g.
forced arranged marriage, young girl is pregnant and forced by parents to be
married).
o Doesn't have to be violent
 Mistake or fraud:
o Voids consent
o Very strict interpretation
o Must go to nature of ceremony or identity of party
o But Hunter - there's a contradiction. That case held marriage isn't annulled if she
didn't know nature of the ceremony, but here it does.
o BUT, lying about name, age, race, wealth, occupation, etc., are not grounds [ZJ:
shows strict requirement]
o If you do not know you are going through ceremony, then it is grounds for
annulment. Going through a ceremony just means that there is a ceremony
happening, don’t need to know that it is for you and your benefit.
3. Consummation (aka capacity to perform sexual aspects)  ANNULMENT – VOIDABLE
inability to consummate a marriage renders the marriage voidable.
Reason for the rule: not procreation but the belief that heterosexual sexual relationships are the
foundation of marriage. However historically procreation would have been a sole or highly
relevant element of marriage.
Juretic v Ruiz (1999 BCCA)
F: ad for Spanish speaking wife, wife didn't want to be touched. Husband tried twice but stopped.
H: no annulment was granted.
R: the two represented themselves as a couple.
ZJ: more about annulment and not consummation, BC laws have changed now where there is a
requirement of 2 years residing with individual before applying for PR. Still a high threshold if the
person walks out after 2 years.
THE TEST … is a practical impossibility of consummation. It must be caused by physical or
psychological defect. Willful and persistent refusal or obstinacy is not a ground for annulment
(Deo v Kumar 1993 BCSC)
 Insufficient if parties simply establish they did not have sexual intercourse since date of
marriage
 If had sex before marriage but not after, it will be hard to annul
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If a party alleges that one of the spouses is impotent by reason of a psychological defect,
the defect must amount to "an invincible repugnance to the act of consummation,
resulting in a paralysis of the will which was consistent only with incapacity" – In other
words, you find the other person so repugnant that you are unable to consummate the
marriage.
A marriage on the basis of immigration reasons, even when there is no consummation of
the marriage and no intention to live together, is not alone sufficient grounds to dissolve
the marriage (H v H 1953 ER)
A mere capricious refusal to consummate the marriage does not qualify as a psychological
defect. However, the refusal to attempt consummation may have been so long continued
or under such circumstances as to justify the inference of impotence.
The court will not grant a declaration of nullity, unless a claimant has demonstrated the
elements noted above. Even if both persons say that we want to get out, it doesn’t matter
– still up to the courts
Even if it was undefended (served and no show, or both show up) - courts still have not
granted declarations where the relevant facts have not been established.
NOTE: even if marriage void, might have rights or obligations if qualify as “spouses” under FLA
(A) Formal validity (provincial jurisdiction)  invalid
Marriage Act: purpose of the act is to validate marriages, religious marriages (9), civil marriages
(20). Both require licenses (15), 2 witnesses, and both parties present (can’t be on the phone)
Procedural steps – Marriage Act
 License (8), and it's good for 3 months (17) (people usually get their license before they are
married, and after they're married, apply for marriage certificate and issued by fed gov't)
 Civil marriage (20) requirements (not for religious marriages):
o Marriage is contracted in a public manner in the presence of the marriage
commissioner and 2 or more witnesses,
o Each of the parties to the marriage in the presence of the marriage commissioner
and witness declares, "I solemnly declare that I do not know of any lawful
impediment why I, A.B., may not be joined in matrimony to C.D.", and
o Each of the parties to the marriage says to the other, "I call on those present to
witness that I, A.B., take C.D. to be my lawful wedded wife (or husband) (or
spouse)".
 Manner of registration - must register in a book (25(1)).
 25(1) Must be signed by: (a) each party, (b) at least 2 witnesses, and (c) religious rep or
marriage commissioner.
 27 If marriage register is lost, liable on conviction to a maximum penalty of $50.
Other Types of Marriage
Validity of Foreign Marriages

Recognition of a foreign marriage but only when it is valid under the foreign place's law:
o Formally valid under the place of celebration
o Essentially valid under the place of each party's prenuptial domicile
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if 2 10-yrs old BC boys get married outside of C  marriage voidable (capacity)
Equality rights apply to everyone
o Recognize a marriage that is formally valid and essentially valid, even if not recognized
in country of domicile
CMD v RRS (2005 BCSC)
Facts: Married in Vegas, knew each other for a few hours. Got marriage license, attended
ceremony, went separate ways. Wife applies to annul marriage on 2 grounds:
 Void - was drunk, no consent
 Voidable - no consummation
Holding: application dismissed:
 NOT void: had sufficient capacity to consent - wasn't too drunk
 NOT voidable: lack of consummation in itself is not sufficient - must meet the high burden
and it was not met in this case
Court adopted the consent test from Hunter – Test to apply is the following: was the plaintiff so
intoxicated that she was incapable of understanding that she was entering into a marriage? Went
to chapel, received directions to get license, obtained licensed and then got married. Participated
in the ceremony and then went to their rooms. This evidence shows that Ms. C.M.D. went through
deliberate and time-consuming steps all rationally connected to entering into a marriage contract;
moreover, her evidence shows that she has a recollection of these events. Undoubtedly, Ms.
C.M.D.’s judgment and acts were compromised by her drunkenness, but the evidence falls far
short of showing that she was incapable of understanding that she was entering into a marriage.
Where groom was so drunk that he had to be propped up to get through the ceremony, court held
that he was intoxicated enough that he was incapable of understanding the nature of the marriage
K and the duties and responsibilities which such K created.
In relation to consummation, the evidence of the plaintiff is a mere assertion that the marriage
was never consummated – not sufficient.
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Customary Marriages
Connolly v Woolrich (1867 UK)
Facts: William and Suzanne together from 1902 to 1831. Suzanna was Cree. W and S lived
together with her consent, her father's consent and in accordance with Cree customs (customary own ceremony). W married Julia in 1832, in accordance with Quebec Civil Law and Catholic faith.
Issue was between W and S' children and W and J's children re W's estate.
Holding: W and S married
 W and S were married in accordance with Cree custom and were husband and wife under
Quebec law
 Therefore, S' children had the rights to a proportionate share of half of W's property
 ZJ: demonstrates respect for customary marriages
Polygamous Marriages
Criminal Code:
 293(1)(a): indictable offence to enter into any form of polygamy or conjugal union with
more than one person at a time, whether or not it is a binding marriage
 293(1)(b): indicatable offence to celebrate, assist, or be a party to a rite, ceremony,
contract, or consent that purports to sanction a polygamous relationship [ZJ: mainly to
protect young adults and youth]
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Note: Bigamy does not fall under this section
Polygamy Reference: Reference re: Section 293 of the Criminal Code of Canada (2011 BCSC)
Advisory only, there was discussion whether s. 293 was inconsistent with Charter but justified by
Oakes test.
 s. 293 of the Criminal Code does not require the union to involve a minor or occur in
context of dependence, exploitation, abuse of authority, gross imbalance of power or
undue influence
 s. 293 is constitutional with one exception
 violates religious liberty (s. 2(a) of the Charter), but justified under s. 1
 violates s. 7 Charter interests of children under 18, and not justified under s. 1
Chief Justice Bauman:
 Compelling evidence of harm, including harm to women, children and to society and the
institution of marriage
 The provisions that could criminalize the actions of young people (women b/w 12-17)
should not stand.
 “As I said above, the prevailing view through millennia in the West has been that exclusive
and enduring monogamous marriage is the best way to ensure paternal certainty and joint
parental investment in children. It best ensures that men and women are treated with
equal dignity and respect, and that husbands and wives (or same sex couples), and parents
and children, provide each other with mutual support, protection and edification through
their lifetimes.” (para 884)
ZJ: this is usually an issue in areas of wills/estates, where there is more than one spouse and there
are claimants against an estate.
Cohabitation/Common Law Spouses - Marriage Like Relationships
New FLA (in force 2013) has included common law relationships under family law and family law
disputes, and therefore are treated like married couples
Takacs v Gallo (1998 BCCA):
Indicia of a marriage like relationship:
1. Shelter
a. Did the parties live under the same roof?
b. What were the sleeping arrangements?
c. Did anyone else occupy or share the available accommodation?
2. Sexual and Personal Behaviour
a. Did the parties have sexual relations? If not, why not?
b. Did they maintain an attitude of fidelity to each other?
c. What were their feelings towards each other?
d. Did they communicate on a personal level?
e. Did they eat their meals together?
f. What, if anything, did they do to assist each other with problems or during illness?
g. Did they buy gifts for each other on special occasions?
3. Services: what was the conduct and habit of the parties in relation to:
a. preparation of meals;
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b.
c.
d.
e.
4. Social
a.
washing and mending clothes;
shopping;
household maintenance; and
any other domestic services?
Did they participate together or separately in neighbourhood and community
activities?
b. What was the relationship and conduct of each of them toward members of their
respective families and how did such families behave towards the parties?
5. Societal: what was the attitude and conduct of the community toward each of them and as
a couple?
6. Support (economic):
a. What were the financial arrangements between the parties regarding the provision
of or contribution toward the necessaries of life (food, clothing, shelter, recreation,
etc.)?
b. ZJ: before the FLA, application for division of property for common law couples
were under equity (trust) law. "Joint venture" was a critical piece for showing
marriage-like relationship. Not so much an issue now.
c. What were the arrangements concerning the acquisition and ownership of
property?
d. Was there any special financial arrangement between them which both agreed
would be determinant of their overall relationship? (E.g. beneficiaries of RRSP,
medical benefits, etc).
7. Children: what was the attitude and conduct of the parties concerning the children?
“These organizing questions permit a trial judge to view the relationship as a whole in order to
determine whether the parties lived together as spouses. Reference to them will prevent an
inappropriate emphasis on one fact to the exclusion of others and ensure that all relevant factors
are considered.” – Madame Justice Huddart
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Ending Relationships
Preconditions to Applying for Divorce in BC
1. Legally married - marriage must be legally valid in the place the couple was married. Proof
from: marriage certificate, or witnesses of marriage (testify or swear an affidavit)
2. Either spouse must live in BC or have lived in BC for at least 1 year.
a. Exception: if you were married in BC and lived somewhere in the last year that
wouldn't allow a divorce, can get divorce in BC.
b. Claims about children, property division, and child and spousal support must be
dealt with where you and spouse live.
3. Must prove you have been separated from spouse for a year, or spouse treated you cruelly
or had sex with someone else (adultery)
Almost all issued can be resolved by agreement rather than going to the court – except for
divorce, the court must make a divorce order!
Grounds for Divorce
The DA includes both fault-based and no-fault grounds for divorce. A spouse who invokes a faultbased ground must prove the fault of the respondent (e.g. adultery, cruelty), rather than their
own fault – very difficult to prove and often not successful.
Section 8 of DA sets out the ground for divorce (marriage breakdown) and the ways to establish this
breakdown (living separate and apart, adultery, or cruelty).
8(1) A court of competent jurisdiction may, on application by either or both spouses, grant a divorce to the
spouse or spouses on the ground that there has been a breakdown of their marriage.
8(2) Breakdown of a marriage is established only if
(a) the spouses have lived separate and apart for at least one year immediately preceding the
determination of the divorce proceeding and were living separate and apart at the commencement
of the proceeding; or
(b) the spouse against whom the divorce proceeding is brought has, since celebration of the
marriage,
(i) committed adultery, or
(ii) treated the other spouse with physical or mental cruelty of such a kind as to render
intolerable the continued cohabitation of the spouses.
(A) Living Separate & Apart – intentional separation of spouses; date of separation KEY
8(2)(a) spouses must have lived separate and apart for at least one year immediately preceding
the determination of the divorce proceeding and were living separate and apart at the
commencement of the proceeding.
 Can start a divorce any time after separation, but won't be granted by courts until 12
months of separation
 Can be separated for one day, start application, then be granted a year later.
8(3)(b)(ii) the one-year period will not be considered to have been interrupted or terminated
when the spouses resume cohabitation in order to attempt reconciliation, so long as the period
(or periods) of cohabitation is less than ninety days in total.
 Difficult to determine - what if they took a vacation, slept over 4 nights a week?
 Cohabitation for less than 90 days with the purpose of restarting relationship – but if more,
the clock resents, and a new one-year period doesn’t start running until the last separation
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Questions
 Does the separation (living separate and apart for one year) have to be consensual? No,
other party doesn’t have to sign
 Does it have to predate the application for divorce? Yes, have to be S&A before starting
the application
 Why would someone not want a divorce?
o DA and FLA contain limitation periods for making a claim (2 years). Spousal support
and property division.
(B) Other Grounds for Getting a Divorce – go here if want to divorce faster
A spouse who invokes a fault-based ground must prove the fault of the respondent, rather than
their own fault. The onus of establishing adultery or cruelty is on the claimant. The benefit of
pursuing fault-based grounds is that you are granted an immediate divorce without waiting the 1+
year period. However, this is rarely invoked – generally recommend that clients just wait the year
and get out of the situation in the meantime. If you can’t prove any of the following grounds, then
use the 12-month option. Is there a reason client can’t wait the 12 months?
 Court won’t grant divorce if fault has been forgiven or condoned – see below s.11(1)(c)
(1) Adultery has been defined judicially as voluntary sexual intercourse between a married person
and another person of the opposite sex other than his or her spouse [Orford v Orford, 1921; Kahl
v Kahl, 1943]. In recent years Courts have moved towards a “broader” definition of what
constitutes adultery – i.e. intimate sexual activity… see Same Sex Adultery and P. (S.E.) v. P. (D.D.),
2005 BCSC below.
 In Orford, it was found that artificial insemination by the wife amounted to adultery
(husband unaware), but see Maclennan v Maclennan [1958]
 Spouse of who committed adultery cannot use adultery for a quicker divorce
 Sleeping w/ someone else w/out spouse’s permission
 Circumstantial evidence (Ex. hotel receipt) not acceptable – need direct evidence (like
photo or spouse’s admission)
(2) Cruelty – Physical or mental cruelty that makes the continued cohabitation of the spouses
intolerable [Section 8(2)(b)(ii)]. The treatment must be grave and weighty, going beyond
incompatibility (case-by-case standard). However, the issue is not the intention of the spouse to
be cruel, but rather the subjective effect of the treatment on the other spouse [Balasch v
Balasch, 1987].
 Police records could be proof of cruelty.
 Evidence of cruelty must come from someone else, like a doctor – spouse’s own evidence
won’t do
 Domestic violence - FLA has broadened definition of family violence - stalking, taking away
credit cards
Jurisdiction
DA s. 3(1) either spouse has been ordinarily resident in the province for at least one year
immediately preceding the commencement of the proceeding.
If two proceedings commenced in two provinces/territories on the same day:
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Exclusive jurisdiction is where the proceeding first filed s. 3(2)
If commenced same day, the Federal Court has exclusive jurisdiction s. 3(3)
Duty of the Court
Bars to
Divorce
– DA
s.11 (1)
Duty of the Court
In a divorce proceeding, it is the duty of the court to satisfy itself
(a) that there has been no collusion in relation to the application for a divorce and
to dismiss the application if it finds that there was collusion in presenting it;


S.11(4) Collusion means an agreement or conspiracy to which an applicant for a divorce is
either directly or indirectly a party for the purpose of subverting the administration of
justice, and includes any agreement, understanding or arrangement to fabricate or suppress
evidence or to deceive the court, but does not include an agreement to the extent that it
provides for separation between the parties, financial support, division of property or the
custody of any child of the marriage.
You want to get a divorce for the purpose of getting a divorce, not deceiving court, get tax
advantage, protect family assets for bankruptcy.
(b) to satisfy itself that reasonable arrangements have been made for the support
of any children of the marriage, having regard to the applicable guidelines, and, if
such arrangements have not been made, to stay the granting of the divorce until
such arrangements are made; and





s.10(1)
s. 21.1
(c) where a divorce is sought in circumstances described in paragraph 8(2)(b), to
satisfy itself that there has been no condonation or connivance on the part of the
spouse bringing the proceeding, and to dismiss the application for a divorce if that
spouse has condoned or connived at the act or conduct complained of unless, in the
opinion of the court, the public interest would be better served by granting the
divorce.
CANNOT GET A DIVORCE UNLESS APPLICANT PROVES THE ABOVE ELEMENTS!!!
It is the duty of the court, before considering the evidence, to satisfy itself that there
is no possibility of the reconciliation of the spouses, unless the circumstances of the
case are of such a nature that it would clearly not be appropriate to do so.
failure to remove religious barriers to remarriage - Court may dismiss divorce
application (prevent a divorce) and strike out any other pleadings and affidavits filed
by that spouse under this Act.

s.9(1)
Biggest reason divorces are rejected
Child has right to receive support, cannot waive it
If high incomes, as long as it's clear in affidavits that the spouses do not need support - must
satisfy evidentiary burden.
If spouse left province or can't locate and can't get support --> in affidavit: filed application
12 months ago, haven't been served, can't locate spouse, financially able to care for children
without spouse - divorce will then likely be granted. Just have to turn mind to this element in
the affidavit.
If person returns again, can pursue child support then.
When a spouse requires a court to remove religious barriers to remarriage --> e.g. spouse
had to give consent in another culture for that other spouse to be remarried…(Iran).
Duty of Legal Advisor
It is the duty of every lawyer or advocate who undertakes to act on behalf of a spouse
in a divorce proceeding
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(a) to draw to the attention of the spouse the provisions of this Act that have as their
object the reconciliation of spouses, and



s.9(3)
Have to ask them if they have considered reconciliation
Counsel has a legal obligation to discuss with clients the possibility of reconciliation counselling, guidance - but not appropriate if there is violence or abuse.
Very serious obligation - have to sign a statement (section 9 declaration) swearing this
obligation has been fulfilled.
(b) to discuss with the spouse the possibility of the reconciliation of the spouses and
to inform the spouse of the marriage counseling or guidance facilities known to him
or her that might be able to assist the spouses to achieve a reconciliation, unless the
circumstances of the case are of such a nature that it would clearly not be
appropriate to do so.
Every document presented by the lawyer/advocate that formally commences a
divorce proceeding shall contain a statement certifying that they have complied with
this section
Same Sex Divorce
ANOMALY IN THE LAW WHICH MEANT THAT GAY/LESBIAN COUPLES WERE ABLE TO MARRY BUT
UNABLE TO DIVORCE WAS AMENDED IN 2005 WHEN THE DA DEFINITION OF SPOUSE WAS
CHANGED TO: EITHER OF TWO PERSONS WHO ARE MARRIED TO EACH OTHER.
 In June 2013, the Civil Marriage of Non-Residents Act was enacted to amend the Civil
Marriage Act. The amendment made valid in Canadian law all marriages of non-residents
whose marriages were performed in Canada. The Act also allows non-resident same-sex
couples to divorce in Canada, if divorce is not possible in their country of residence.
Same Sex Adultery
P(SE) v P(DD) (2005 BCSC)
F: the case involved a Vancouver couple who had been married for 17 years. The wife discovered
that her husband was having an affair with another man. The parties separated and the wife filed
for divorce, seeking an immediate end to their marriage on the basis of adultery. The husband
signed an affidavit acknowledging the adultery and did not contest the divorce.
I: does the CL definition of adultery include adulterous acts w/ individuals of the same sex?
 At trial, Garson J. refused to rule on the divorce immediately because the common law
definition of adultery did not include same sex relations. The Judge informed counsel for
the wife that she would re-hear the case if counsel would argue why the legal definition of
adultery should be broadened to include same-sex adultery.
 Following a re-hearing, Garson J. held that the common law definition adultery should be
changed to include same-sex acts. She stated: “I consider Parliament’s enactment of the
Civil Marriage Act to be a legislative statement (legislative purpose) of the current values of
our society consistent with the Charter that I am obliged to use as a guide to my
consideration of the current common law definition of adultery. Individuals of the same
sex can now marry and divorce and the common law would be anomalous if those samesex spouses were not bound by the same legal and social constraints against extra-marital
sexual relationships that apply to heterosexual spouses.”
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The only other province in which the common law definition of adultery has been expanded to
include same-sex adultery is New Brunswick. In finding in favour of a jilted husband, the court in
Thebeau v. Thebeau [2006] N.B.J, held that: The consequence of infidelity, at least in the context
of the Divorce Act, should not be confined to heterosexual spouses. To do so grants license to
homosexual spouses to be sexually unfaithful and to violate vows, untrammeled by the prospect
of a fault-based dissolution of their marriage. That is not equal treatment.
Capacity to Separate
In Wolfman-Stotland v. Stotland (2011 BCCA), the court adopts the hierarchy of capacity from
Calvert:
 Intention to separate – requires the lowest level of understanding, a person has to know
with whom he or she does not want to live
 Divorce – requires a bit more understanding, requires the desire to remain separate and to
be no longer married to one’s spouse – undoing the contract of marriage
 There is a distinction between the decisions a person makes regarding personal matters
such as where or with whom to live, and decisions regarding financial matters. Financial
matters require a higher level of understanding – the highest level of capacity is that
required to make a will
 The capacity to form intention to live separate and apart has been accepted as equivalent
to the capacity to enter into a marriage. WS had the capacity to instruct counsel and
understood that she wanted her share of the family assets.
 KR: all you need to know is that the ability to get divorced & married is much lower than
the ability to instruct counsel.
Date of Separation
Case by case assessment – Written notice is the best approach!!!
A determination of when spouses began to live "separate and apart" can be important not only
for the purposes of the DA, but also for the purpose of determining: property interests; debt
responsibility; excluded property and debt (accumulated post separation); and support claims
(retroactive support).
 Residency arrangements need not change – spouses can continue to live in the same home
and still meet the criteria for living “separate and apart”
 Giving notice – only one person required to form the intent to separate, but that intent
must be communicated in words or demonstrated in action --> email, notes, send flowers
(lol), have lawyer send letter - need objective indication of separating
FLA, s. 3(4) - For the purposes of this Act,
(a) spouses may be separated despite continuing to live in the same residence, and
(b) the court may consider, as evidence of separation,
(i) communication, by one spouse to the other spouse, of an intention to separate
permanently, and
(ii) an action, taken by a spouse, that demonstrates the spouse's intention to
separate permanently (KR: not travelling for work for 3 months)
KR: case where couple separated in 2004, but in court in 2015 b/c didn't separate physically until
2013. Client had another child with someone else, wife argued that they didn't argue till 2013.
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Pictures from FB brought into court. Needed to bring in evidence from home stay student that
they were living separately.
If both agree on date, then GTG. If not, look @ indicators from Oswell.
Oswell v. Oswell: There are various indicia in jurisprudence under the DA to assist a court in
determining when spouses who occupy the same premises are living separate and apart:
 physical separation - often this is indicated by the spouses occupying separate bedrooms
 withdrawal by one or both spouses from the matrimonial obligation with the intent of
destroying the matrimonial consortium (no socializing together)
 the absence of sexual relations is not conclusive but is a factor to be considered
 discussion of family problems and communication between the spouses; presence or
absence of joint social activities; the meal pattern
KR: need a whole host of factors if there is no objective indicator of separation. What does the
outside world think of your relationship? If just between the couple, they are not separated as
there is no objective evidence.
KR: couple can agree they separated in separation agreement. But if one person wants to prove
earlier date of separation, need to have objective evidence.
Routley v. Paget (2006 BC) Parties have been found to have been living separate and apart in spite
of evidence that they maintained frequent contact with each other including the resumption of a
sexual relationship. Living separate since 1997, but still have intimated relationship until 2003 –
court said separated in 1997.
Riha v. Riha [2001] O.J. No. Not having sex not enough on its own; There has to be a significant
change in relationship – They were still doing lots of things together
 KR: this is common - live in separate bedrooms, haven't told kids - this is not separation.
Need to meet most of the list of factors.
Now, moving towards non-adversarial ending of relationships:
 litigation is a bad process for children and anyone related to the couple - prefer a less
damaging process that ends in the same result
 Alternative dispute resolution in Family Law
o Mediation
o Collaborative practice: two lawyers and two parties sign an agreement to
collaborate and enter into a process that is a no-court process. Agreement binds
them to a confidential process where all documents used in collaborative practice
are confidential, and used only for settlement discussions.
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Best Interests of the Child
Mrs. Doubtfire & Kramer v. Kramer
Custody gives parent only legal right (e.g. sign passport) – doesn't give parenting time. Courts are
reluctant to grant sole custody to a parent b/c if a parent is involved with decisions of the child's
life, they more likely to be in contact with the child.
Guardianship is the umbrella of all parenting rights: parenting arrangements, parenting time and
contact (formerly known as access)
JPB: The two laws are the most different in terms of how they talk about children. The Divorce
Act talks about spouses who have custody and access. The Family Law Act talks about guardians
who have parental responsibilities and parenting time, and people who aren't guardians who
have contact. I prefer how the Family Law Act deals with children. It's more focused on the rights
and interests of children and less focused on the rights of parents.
Are they married? Is child a child of the marriage?
Divorce Act
Disputes b/w married persons are governed by the DA provided that child is a child of the
marriage (unmarried: Family Law Act).
s. 2(1) of the DA defines a child of the marriage as a child of two spouses or former spouses who, at the material
time,
(a) is under the age of majority (age 19 in BC) and who has not withdrawn from their charge, or
(b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause (ex.
continual of school = undergrad students), to withdraw from their charge or to obtain the necessaries of life
look @ 2(2) for interpretation
Custody Orders
16 (1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make
an order respecting the custody of or the access to, or the custody of and access to, any or all children of the
marriage.
Interim order for custody
16 (2) Where an application is made under subsection (1), the court may, on application by either or both spouses or
by any other person, make an interim order respecting the custody of or the access to, or the custody of and access
to, any or all children of the marriage pending determination of the application under subsection (1).
 May do so if there is a flight risk.
Application by other person
16(3) A person, other than a spouse, may not make an application under subsection (1) or (2) without leave of the
court.
 Other people, usually relatives of the child like a grandparent, can have custody or access to a child. To apply
for an order for custody or access, people who aren't spouses must first get the court's permission, and
then make their application.
 If married spouses have started a court proceeding, other people can use DA to ask for orders about the care
of children.
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Joint custody or access
16 (4) The court may make orders granting sole or joint custody to any or all children of marriage to any one or more
persons.
 Joint custody doesn’t mean spouses get equal parenting time; usually means that both spouses are expected
to play a role in raising their children and making decisions about their care and upbringing
Access
16 (5) spouse who is granted access to a child of the marriage has the right to make inquiries and to be given
information about health, education, welfare of child – unless the court orders otherwise
Terms and conditions
16(6) The court may make an order under this section for a definite or indefinite period or until the happening of a
specified event AND may impose such other terms, conditions or restrictions in connection therewith as it thinks fit
and just.
 KR: not permanent, circumstances may be changed – orders respecting children are never final
Order respecting change of residence
16 (7) Without limiting the generality of subsection (6), the court may include in an order under this section a term
requiring any person who has custody of a child of the marriage and who intends to change the place of residence of
that child to notify, at least thirty days before the change or within such other period before the change as the court
may specify, any person who is granted access to that child of the change, the time at which the change will be made
and the new place of residence of the child.
 Not all relocations may warrant notice, case-by-case basis.
 If there is sole guardianship, can move without giving notice or having consent.
Factors
16 (8) In making an order under this section, the court shall take into consideration ONLY the best interests of the
child of the marriage as determined by reference to the condition, means, needs and other circumstances of the
child.
Past conduct
16 (9) In making an order under this section, the court shall not take into consideration the past conduct of any
person UNLESS the conduct is relevant to the ability of that person to act as a parent of a child.
 Behavior that endangers the children – alcoholism, abuse
 KR: judge considered ex-spouse’s diary which contained dark/suicidal thoughts
Maximum contact
16 (10) In making an order under this section, the court shall give effect to the principle that a child of the marriage
should have as much contact with each spouse as is consistent with the best interests of the child AND, for that
purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such
contact.
 KR: usually in the best interests of the child to have maximum contact with parents
 KR: a lot of custodial parents don't facilitate contact and involves a lot of negativity. Court can make an order
to switch facilitation (this is drastic), but court could also order counselling, courses (on how to parent after
separation), cautionary notes
Family Law Act
If unmarried  FLA
The FLA uses different terminology from its predecessor, the FRA, and the Divorce Act. The
FLA does not refer to custody or access, but instead addresses the same issues in terms of
guardianship and parenting arrangements.
Best Interests of the Child
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37 (1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact
with a child, the parties and the court must consider the best interests of the child ONLY.
 Old statute included best interests test, but it wasn't the only consideration. Now, it is the only consideration
when making orders about children.
37 (2) To determine what is in the best interests of a child, ALL of the child's needs and circumstances must be
considered, including the following:
(a) the child's health and emotional well-being (KR: determined on a case-by-case basis)
(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
(where does family/extended family live?)
(d) the history of the child's care (just b/c a spouse was the primary caregiver before end of marriage, it is
not given too much weight)
(e) the child's need for stability, given the child's age and stage of development (some children need stability
of one home)
(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 (definition of family violence has been
broadened - more than physical violence - courts look at how violence has impacted child; court will also look
to objective evidence to be informed of family violence)
(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 (can these parents co-parent?)
(j) any civil or criminal proceeding relevant to the child's safety, security or well-being
When family violence is an issue, parents and judges must consider an additional list of factors, set out at s. 38, to
help assess the impact of the family violence on the child and on a person’s capacity to care for the child.
 62(a) denial of parenting time not wrongful if reasonably believe child might suffer from family violence
 protection orders:
37 (3) An agreement or order is NOT in the best interests of a child UNLESS it protects, to the greatest extent
possible, the child's physical, psychological and emotional safety, security and well-being.
37 (4) In making an order under this Part, a court may consider a person's conduct ONLY IF it substantially affects a
factor set out in subsection (2), AND only to the extent that it affects that factor.
 How does the court assess how a person’s conduct “substantially affects” a factor in (2)? Need objective
evidence – ex. teachers (although they are usually reluctant to get involved); counsellors; FB
Family violence includes (FLA definition section 1)
(a) physical abuse of a family member, including forced confinement or deprivation of the necessities of life, but not
including the use of reasonable force to protect oneself or others from harm,
(b) sexual abuse of a family member,
(c) attempts to physically or sexually abuse a family member,
(d) psychological or emotional abuse of a family member, including
(i) intimidation, harassment, coercion or threats, including threats respecting other persons, pets or property,
(ii) unreasonable restrictions on, or prevention of, a family member's financial or personal autonomy (e.g. cutting off
credit cards)
(iii) stalking or following of the family member (common, can get restraining order for that), and
(iv) intentional damage to property, and
(e) in the case of a child, direct or indirect exposure to family violence;
NOTE: unlikely that siblings will be separated!
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BDM v AEM (2014 BCSC)
High conflict case (parties seemed to be describing 2 different marriages) involving a 6-year-old
child (A) // self-rep father // Shared guardianship but allocation of Parenting responsibilities
The Court addressed most of the section 37(2) factors in determining what parenting
arrangement was in A’s best interests (ultimately A was to spend majority of time with mother):
 37(2)(a) & (f): the father had difficulty discriminating between his own objectives and
perceptions and the best interests of A – dad was very focused on himself // Also,
legitimate concern that dad won’t have the necessary energy to cope w/ demands of
parenting a young kid // psychological testing results raised concerns
 37(2)(b) child’s views: she was too young to be consulted – no indication of having
difficulty in spending time w/ either parent
 37(2)(c) relationship between child and others: here the court not only considered A’s
relationship with both parents, but also each parent’s relationship with their own
immediate and extended family and social network as well as the mother’s relationship
with the father’s family – in this case the father led a socially isolated life – factors favored
having A spend more time w/ mom
 37(2)(e) child’s need for stability: noted the parents had very different parenting
philosophies - as a result A should spend majority of her time with one parent --> may need
parent counselling and take a course - need to provide some consistency (e.g. no
technology after 8pm vs. no rules) --> the two homes were so different, court had to choose
one
 37(2)(g) &(h) family violence: while dad at time directed verbal abuse towards mom, no
reasonable belief that he will direct such abuse at A
 37(2)(i) whether an arrangement that requires co-operation is appropriate: very limited
(almost no) cooperation, has already adversely affected A – they couldn’t even decide on
school// Court states: “It is clear to me that the best interests of A require that any
parenting arrangement ordered cannot be dependent upon cooperation between the
parents.”
o look at Dr. Shred's report - he wrote report and was cross examined at trial. Focus
was what parenting regime in best interest of child. Addressed inability of parents
to cooperate in decision making (this was a s. 15 Report under FRA)
Hokhold v Gerbrandt (2014 BCSC) – mobility application
This case involved a 6 and 4-year-old children. Court found the parents had a dysfunctional
relationship. The court had the benefit of a section 15 report (under FRA – now section 211 under
FLA) // Both self-represented // Declining relationship, handovers disastrous, videotaping
The Court applied section 37 factors and found:
 child’s health and emotional well-being: father was using the distraught emotions of the
children to bolster his court application for increased access (the McDonalds video) –
children to attend counselling
 child’s views: 4-year-old too young but 6-year-old was clear with his views
 child’s need for stability: the animosity between the parents created instability for the
children. Father’s inability to meet parental responsibilities (ie getting kids to school on
time) considered here.
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
ability of each parent to exercise parental responsibility: mother lacking financial means
(and court heavily considered this) because father would not pay support, but mother more
capable of meeting parental responsibilities (this supported by father’s statement to Dr.
Waterman (Triple A mother) – tried to recant at trial!).
Relocation:
 Mother allowed to relocate to Sask - reliance on s. 66(1) of FLA - 60 days’ notice. Husband
applied for an order prohibiting move under s. 68 (need record of giving notice). Governed
by s. 69.
 Father's conduct found to constitute family violence (financial) - not paying child support,
freeze wife out
 Dr. Waterman s. 15 report for first trial in 2012, using Craig Neville, a family L, as PC
(parenting coordinator)
 Updated s 211 report August 2014 Dr. Waterman, recommended the move to
Saskatchewan but said that there was no decision which wouldn’t cause the children to
lose in some way
Expert Reports
Section 211 (FLA)
Recommendations made in s.211 reports are not determinative, however judges do rely on
them. Court may appoint, or parties may agree on an assessor. Threshold test for s.211 reports is
very low (look @ Keith v MacMillan). In Hokhold and BDM, court had benefit of s.15 report
(under FRA, now s.211 under FLA).
211 (1) A court may appoint a person to assess, for the purposes of a proceeding under Part 4 [Care of and Time with
Children], one or more of the following:
(a) the needs of a child in relation to a family law dispute;
(b) the views of a child in relation to a family law dispute;
(c) the ability and willingness of a party to a family law dispute to satisfy the needs of a child.
EX. to determine which high school kid should go to if both parents can’t agree.
KR: this is against the purpose of having collaborative law - having a 3rd person intervene and do a bird's eye view
assessment and psychological assessment of the family and determine what is best for the child – KR doesn't like this.
Who can be appointed?
211 (2) A person appointed under subsection (1)
(a) must be a family justice counsellor, a social worker or another person approved by the court, and
(b) unless each party consents, must not have had any previous connection with the parties.
Is notice required?
211 (3) An application under this section may be made without notice to any other person.
What should assessor do?
211 (4) A person who carries out an assessment under this section must
(a) prepare a report respecting the results of the assessment,
(b) unless the court orders otherwise, give a copy of the report to each party, and
(c) give a copy of the report to the court.
Who pays?
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211 (5) The court may allocate among the parties, or require one party alone to pay, the fees relating to an
assessment under this section.
 Cost - $12,000!!!
 If parties agree, then GTG
What if a party doesn't agree with the result?
 Could apply to court to obtain another report – say report is biased and attack credibility of
expert (can discredit through cross-examination)
 KR: difficult to obtain new report or attack credibility because experts have a duty to
provide neutral reports
Views of the Child Report
These reports usually just describe the child’s views without making an assessment or
recommendations, and are usually cheaper and faster to get // Can apply for an order that the
court appoint an expert to prepare a views of child report pursuant to s. 211 of FLA.
A useful tool, but not a full assessment where the needs and views of the child, and the ability
and willingness of each parent to meet the child’s needs are considered. Can be completed by a
number of professionals, including lawyers. Although this report is not that comprehensive, a
judge might order a s.211 report if they see anything alarming in the VCR.
 KR: but they are a lot cheaper
 Concerns: What if one parent has prepared the child what to say? What about parental
alienation? Interviewer with proper interview skills will detect that a child has been
prepared
 unless inappropriate s. 37(2)(b)
Keith v MacMillan (2014 BCSC) – illustrates the importance of including the child’s voice in
litigation involving children.
Here the Court had the benefit of a Views of the Child Report for two teens subject of this
litigation.
 The children were asked to rate how their parents “get along” on a scale of 0 to 10, with
zero representing “no cooperation” – the older child gave his parents 6 and the second
child a zero!
 The children shared the family violence they witnessed and experienced – neither parent
disclosed the family violence. After hearing children, court wanted to hear full evidence.
 Children’s views that they live with mother and see father on their own terms, judge
granted this at paragraph 62. Court ordered a full section 211 report to further investigate
the issues raised by the children in the views of the child report – NOTE low threshold
(paragraph 67-69)
 Result was full trial ordered because of conflicting evidence
Adjournment or dismissal
 Rule 11-3 (11) SCFR: On an application heard before or at the same time as the hearing of
a summary trial application, the court may
o (a) adjourn the summary trial application, or
o (b) dismiss the summary trial application on the ground that

(i) the issues raised by the summary trial application are not suitable for
disposition under this rule, or
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
(ii) the summary trial application will not assist the efficient resolution of the
family law case.
Other Ways to Get Child's Evidence
Court may decide how child's evidence is received
Family Law Act 202 In a proceeding under this Act, a court, having regard to the best interests of a child, may do one
or both of the following:
(a) admit hearsay evidence it considers reliable of a child who is absent
o E.g. teacher/counselor says "the child told me" – this is sometimes necessary for reliability and
necessity of evidence;
o KR: some teachers/principals don't allow teachers to talk,
(b) give any other direction that it considers appropriate concerning the receipt of a child's evidence.
Section 202 refers to how evidence is received.
Children's Lawyer
Family Law Act 203 (1) The court may at any time appoint a lawyer to represent the interests of a child in a
proceeding under this Act if the court is satisfied that
(a) the degree of conflict between the parties is so severe that it significantly impairs the capacity of the
parties to act in the best interests of the child, and
(b) it is necessary to protect the best interests of the child.
(2) If the court appoints a lawyer under this section, the court may allocate among the parties, or require one party
alone to pay, the lawyer's fees and disbursements
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Who is a Parent?
Possible exam question: difference b/w BC and Ontario system on ART (look on Connect for
articles)
Determining Parentage
The core of Part 3 of the FLA is section 23, which provides that a determination of
parenting under this part is a determination for the purposes of all of the laws of
BC.
FLA 23 (1) For all purposes of the law of British Columbia,
(a) a person is the child of his or her parents,
(b) a child's parent is the person determined under this Part to be the child's parent, and
(c) the relationship of parent and child and kindred relationships flowing from that
relationship must be as determined under this Part.
(2) For the purposes of an instrument or enactment that refers to a person, described in terms of
his or her relationship to another person by birth, blood or marriage, the reference must be read
as a reference to, and read to include, a person who comes within the description because of the
relationship of parent and child as determined under this Part.
Determine if ART-conceived or non-ART conceived
FLA s. 20 defines ART = "Assisted Reproduction" means a method of conceiving a Child other than
by sexual intercourse
 ART includes donor insemination, invitro fertilization (IVF = fertilized in a lab), inter uterine
insemination (IUI = placing the sperm inside u) and surrogacy.
 Doesn’t matter who bears the child
Non-ART conceived
Where parties have sexual intercourse to conceive their children without any assistance of donors,
surrogates or insemination or transplanting services at fertility clinics. As long as conception is
through sexual intercourse, intention does not matter if they did not intend to be parents together
but conceived, they are both still parents in the eyes of the law.
26 (1) If child is not born as a result of ART, the child’s parents are the birth mother and biological
father;
(2) A male person is presumed to be a child’s biological father if:
(a) he was married to the birth mother on the day of the child’s birth;
(b) he was married to the birth mother and, within 300 days before the child’s birth, the
marriage was ended (i) by his death, (ii) by divorce, or (iii) the marriage was voided.
(c) he married the birth mother after the child’s birth and acknowledges that he is the
father;
(d) he was living with the birth mother in a marriage-like relationship within 300 days
before, or on the day of, the child’s birth;
(e) he and the birth mother acknowledge that he is the father by signing a statement under
section 3 of the Vital Statistics Act;
25
(f) he has acknowledged that he is the father by having signed an agreement under section
20 of the Child Paternity and Support Act.
(3) If more than one person may be presumed to be a child’s biological father, no presumption of
paternity may be made.
By virtue of being a natural parent, you are legal guardian
 Mom has most of the time
 It is a bit tricky w/ respect to Dad – natural dad sometimes not entitled if not present (ex. one-night
stand) or doesn’t live w/ mom unless can show otherwise
ART-conceived
Where parties require assistance of donors for human reproductive genetic materials, embryo
and/or the assistance of surrogates and/or fertility treatments
People look for help to conceive a child for a number of reasons:
 A single person wants to have a child (often women)
 One or both members of an opposite-sex couple is infertile, and/or unable to carry a child
(e.g. several miscarriages)
 A lesbian couple or a gay couple wants to have a child
 One or both members of a couple is transgender
 A couple wants to include a donor or surrogate parent as part of a three parent family (can
be more than a 3 parent family)
24 (1) If a child is born as a result of assisted reproduction, a donor who provided human
Donor Not
Automatically reproductive material or an embryo for the assisted reproduction of the child
(a) is not, by reason only of the donation, the child's parent,
Parent
Parentage if
Assisted
Reproduction
(b) may not be declared by a court, by reason only of the donation, to be the child's
parent, and
(c) is the child's parent only if determined, under this Part, to be the child's parent.
(2) For the purposes of an instrument or enactment that refers to a person, described in terms of
his or her relationship to another person by birth, blood or marriage, the reference must not be
read as a reference to, nor read to include, a person who is a donor unless the person comes
within the description because of the relationship of parent and child as determined under this
Part.
 Where there is assisted reproduction used to conceive a child, donors of any genetic
material (e.g. sperm, egg or embryo) are NOT presumed to be the child's parent
 People who donate genetic material for ART are not legal guardians, unless provided for
in court order or agreement
27 (1) This section applies if
(a) a child is conceived through assisted reproduction, regardless of who provided the
human reproductive material or embryo used for the assisted reproduction, and
(b) section 29 [parentage if surrogacy arrangement] does not apply.
(2) On the birth of a child born as a result of assisted reproduction in the circumstances
described in subsection (1), the child's birth mother is the child's parent.
(3) Subject to section 28 [parentage if assisted reproduction after death], in addition to the
child's birth mother, a person who was married to, or in a marriage-like relationship with, the
child's birth mother when the child was conceived is also the child's parent unless there is proof
that, before the child was conceived, the person
(a) did not consent to be the child's parent, or
(b) withdrew the consent to be the child's parent.
26

Parentage if
Assisted
Reproduction
After Death
Parentage if
Surrogacy
Arrangement
Where a child is conceived by way of assisted reproduction, the child's birth mother is a
parent, even if the birth mother is not genetically related to the child (i.e. donor egg, or
donor embryo)
o Don't need an adoption agreement
In
addition, a person who was married to, or in a marriage-like relationship with, the

child's birth mother when the child was conceived is also the child's parent unless there is
proof that, before the child was conceived, the person did not consent or withdrew
consent to be a parent
28 (1) This section applies if
(a) a child is conceived through assisted reproduction,
(b) the person who provided the human reproductive material or embryo used in the
child's conception
(i) did so for that person's own reproductive use, and
(ii) died before the child's conception, and
(c) there is proof that the person
(i) gave written consent to the use of the human reproductive material or embryo,
after that person's death, by a person who was married to, or in a marriage-like
relationship with, the deceased person when that person died,
(ii) gave written consent to be the parent of a child conceived after the person's
death, and
(iii) did not withdraw the consent referred to in subparagraph (i) or (ii) before the
person's death (gave consent and didn't withdraw before dying)
 ZJ: if consent has been provided and not withdrawn, genetic material can be used to
create ART children.
 If consent isn't provided, the child will not be an ART child
(2) On the birth of a child born as a result of assisted reproduction in the circumstances
described in subsection (1), the child's parents are
(a) the deceased person, and
(b) regardless of whether he or she also provided human reproductive material or the
embryo used for the assisted reproduction, the person who was married to, or in a
marriage-like relationship with, the deceased person when that person died.
29 (1) In this section, "surrogate" means a birth mother who is a party to an agreement
described in subsection (2).
(2) This section applies if,
(a) before a child is conceived through assisted reproduction, a written agreement is
made between a potential surrogate and an intended parent or the intended parents, and
(b) the agreement provides that the potential surrogate will be the birth mother of a child
conceived through assisted reproduction and that, on the child's birth,
(i) the surrogate will not be a parent of the child,
(ii) the surrogate will surrender the child to the intended parent or intended
parents, and
(iii) the intended parent or intended parents will be the child's parent or parents.
(3) On the birth of a child born as a result of assisted reproduction in the circumstances
described in subsection (2), a person who is an intended parent under the agreement is the
child's parent if all of the following conditions are met:
(a) before the child is conceived, no party to the agreement withdraws from the
agreement;
(b) after the child's birth,
(i) the surrogate gives written consent to surrender the child to an intended parent
or the intended parents, and
(ii) an intended parent or the intended parents take the child into his or her, or
their, care.
(4) For the purposes of the consent required under subsection (3) (b) (i), the Supreme Court may
waive the consent if the surrogate
(a) is deceased or incapable of giving consent, or
27
Parentage if
Other
Arrangement
(b) cannot be located after reasonable efforts to locate her have been made.
(5) If an intended parent dies, or the intended parents die, after the child is conceived, the
deceased intended parent is, or intended parents are, the child's parent or parents if the
surrogate gives written consent to surrender the child to the personal representative or other
person acting in the place of the deceased intended parent or intended parents.
(6) An agreement under subsection (2) to act as a surrogate or to surrender a child is not consent
for the purposes of subsection (3) (b) (i) or (5), but may be used as evidence of the parties'
intentions with respect to the child's parentage if a dispute arises after the child's birth.
(7) Despite subsection (2) (a), the child's parents are the deceased person and the intended
parent if
(a) the circumstances set out in section 28 (1) [parentage if assisted reproduction after
death] apply,
(b) before a child is conceived through assisted reproduction, a written agreement is made
between a potential surrogate and a person who was married to, or in a marriage-like
relationship, with the deceased person, and
(c) subsections (2) (b) and (3) (a) and (b) apply.
 A surrogate mother is presumed to be the birth mother and parent of a child conceived
by this form of assisted reproduction regardless of any genetic connection the surrogate
may have to the child.
 Intended parents and the surrogate have to have a written agreement prior to the
conception of the child that confirms that the surrogate will not be a parent to the child;
the surrogate will surrender the child to the intended parents and the intended parents
are to be the parents of the child
 Critical the agreement must be before conception
30 (1) This section applies if there is a written agreement that
(a) is made before a child is conceived through assisted reproduction,
(b) is made between
(i) an intended parent or the intended parents and a potential birth mother who
agrees to be a parent together with the intended parent or intended parents, or
(ii) the potential birth mother, a person who is married to or in a marriage-like
relationship with the potential birth mother, and a donor who agrees to be a parent
together with the potential birth mother and a person married to or in a marriagelike relationship with the potential birth mother, and
(c) provides that
(i) the potential birth mother will be the birth mother of a child conceived through
assisted reproduction, and
(ii) on the child's birth, the parties to the agreement will be the parents of the child.
(2) On the birth of a child born as a result of assisted reproduction in the circumstances
described in subsection (1), the child's parents are the parties to the agreement.
(3) If an agreement described in subsection (1) is made but, before a child is conceived, a party
withdraws from the agreement or dies, the agreement is deemed to be revoked.
 Where a child is conceived by assisted reproduction, people can make an Agreement as
to who will be a parent. This can include a combination of intended parents, sperm
donor, egg donor and surrogate.
o This is how multi-parent families can be created
o Agreements can be challenged if not consistent with the best interests of the
child
o E.g. if there is a 5 parent family, and child is living in different and complicated
situations and child is not adapting, and impacting well-being, may no longer
be in best interests - may have 1 parent or a 3rd party challenging the
circumstances
 The Agreement needs to be made prior to conception and no parties can withdraw from
the Agreement prior to conception for the Agreement to be valid.
 As a result of these preconception agreements, there may be more than 3 parents of
the child.
28
Orders declaring parentage
If there is a "dispute" or any "uncertainty" as to whether a person is or is not a parent, a person
can make an application to the court seeking an order declaring whether the person is a child's
parent (Supreme Court and Provincial Court can hear these applications).
31 (1) Subject to subsection (5), if there is a dispute or any uncertainty as to whether a person is or is not a
parent under this Part, either of the following, on application, may make an order declaring whether a person
is a child's parent:
(a) the Supreme Court;
(b) if such an order is necessary to determine another family law dispute over which the Provincial
Court has jurisdiction, the Provincial Court.
(2) If an application is made under subsection (1), the following persons must be served with notice of the
application:
(a) the child, if the child is 16 years of age or older;
(b) each guardian of the child;
(c) each adult person with whom the child usually resides and who generally has care of the child;
(d) each person, known to the applicant, who claims or is alleged to be a parent of the child;
(e) any other person to whom the court considers it appropriate to provide notice, including a child
under 16 years of age.
(3) To the extent possible, an order under this section must give effect to the rules respecting the
determination of parentage set out under this Part.
(4) The court may make an order under this section despite the death of the child or person who is the
subject of the application, or both.
(5) An application may not be made respecting a child who has been adopted.
ZJ: problem is these sections haven't been tested - see how these provisions work out
29
Post-Separation Parenting Framework
Terms





Custody & access (DA, no longer under FLA in BC)
Sole custody
Joint custody/shared custody/split custody (won't cover latter two too much - relates to
child support)
o Joint and shared custody are similar - where both parents have equal parenting
time with children
o Split custody - different children parented by each parent, not residing in same
home (like Parent Trap)
Guardianship
Parenting arrangements (new terms):
o Parenting responsibilities
o Parenting time
o Contact

New concept, supposed to replace "access"

PP for contact to be included in FLA and to replace access b/c "access" seemed
to have an adversarial/negative connotation

ZJ: don't know if this is better than access - still about parents fighting over time
with children
DA (federal) v FLA (provincial)

Although DA is available for married spouses separating/divorcing, we tend not to use the
DA because it's not a comprehensive Act for co-parenting. FLA is more comprehensive
(FRA was even better). Only use this for strategy purposes (e.g. changing jurisdiction).
o E.g. one parent commenced an action in Provincial Court (which is a zoo), and
seeking orders under FLA (b/c PC can't make orders under DA), but you want
matters in DA, then file an action on which the basis is the DA (married couple,
property division).
o ZJ: PC is not litigant friendly - more complicated (including its family law rules)
Divorce Act
Note that the term "guardianship" is not mentioned in the DA - also wasn't defined under the
FRA. Concept came up in cases and is defined under FLA.
Section 2(1) – Definitions
Access
Child of the
Marriage
is defined only in the French version of the DA --> "right to visit"
Means a child of two spouses or former spouses who, at the material time,
(a) is under the age of majority and has not withdrawn from their charge, or
(b) is the age of majority or over and under their charge, but unable, by reason of
illness, disability of other cause, to withdraw from their charge or to obtain the
necessaries of life (enfant à charge)

Concept of disability has expanded in recent years - narrow definitions don't apply
anymore
30


Custody
Custody
Order
Spouse
E.g. medical research shows that addiction at a certain point constitutes a disability –
judges are split on this
This definition is relevant because it relates to child support - if not a child of marriage, it
won't qualify as a child of support
[Under section 2(2), for the purposes of the definition of “child of the marriage”,
a child of 2 spouses or former spouses include: (a) any child for whom they both
stand in the place of parents; and (b) any child of whom one is the parent and for
whom the other stands in the place of a parent.]
means care, upbringing and any other incident of custody (with respect to
children)
An order made under subsection 16(1)
means either of two persons who are married to each other, including former
spouses (not limited to man and woman; recall DA only applies to married
persons) – NOTE: includes stepparents
Custody and Access Orders
DA s. 16 sets out what the court is to consider when making such an order:
Factors
s. 16(8) In making an order under this section, the court shall (mandatory
consideration) take into consideration only the best interests of the child of the
marriage as determined by reference to the condition, means, needs and other
circumstances of the child.


In reference to conditions and circumstances of the child (e.g. health state, special needs,
physical or other disabilities, which parent is best suited to care in respect of those needs,
parents' means in regards to the child's specific needs) --> subjective analysis
Previously under the FRA, best interests of the child was "paramount" and not the "only"
consideration, which resulted in many factors. Now, it is the ONLY consideration!
Past conduct s. 16(9) In making an order under this section, the court shall not take into
consideration the past conduct of any person unless the conduct is relevant to
the ability of that person to act as a parent of a child.

Maximum
contact
Important because we came from a system of "fault", but now we have a "no fault"
system. Legislation here is clear that past conduct is not relevant except as it pertains to
their ability to care for the child.
s.16(10) In making an order under this section, the court shall give effect to the
principle that a child of the marriage should have as much contact with each
spouse as is consistent with the best interests of the child and, for that purpose,
shall take into consideration the willingness of the person for whom custody is
sought to facilitate such contact (none in FLA).



This concept has been problematic. When using this principle, we are trying to balance the
best interest of the child (which may include no contact with a parent) and principle of
maximum contact. This is a balancing act.
Sometimes adjudicators are stuck at this principle and fail to address best interests of the
child, or considers it less, even though it should be the only consideration.
ZJ: hopefully this will be amended.
Variation of Court Orders
Has there been a change? Is the change material?
31
Under DA s. 17, the court can make an order varying a custody order or any provisions thereof.
Per s. 17(5), the court must be satisfied that there has been a "change in the conditions, means,
needs or other circumstances of the child since making the order.” The best interests of the child
& maximum contact principle remain the governing factors under the DA.
 ZJ: when it says "child", but we look at the child, parents, environment, parents' ability to
parent and all circumstances.
 There has to be a “material change in circumstances” for court order to be varied – i.e.
something that you could not anticipate when the original order was made – aging of the
child is not a material change in circumstances, but can sometimes include a review clause
based on when the child reaches a certain age. A child deciding that they do not want to
spend time with one parent is considered a material change in circumstance.
 Terminal illness of a former spouse a change in circumstance per s. 17(5.1)
Family Law Act (Part 4; ss. 37-80)
Section 1 – Definitions
Child
Except in Parts 3 [Parentage] and 7 [Child and Spousal Support] and section 247
[regulations respecting child support], means a person who is under 19 years of age
Family physical abuse of a family member including force confinement/deprivation of
Violence necessities of life, but not including the use of reasonable force to protect oneself or
others from harm,
sexual abuse of a family member,
attempts to physically or sexually abuse a family member,
psychological or emotional abuse of a family member
in the case of a child, direct or indirect exposure to family violence
Guardian Means a Guardian under section 39 [parents are generally guardians] and Division 3
[Guardianship] of Part 4
Parent Parent under Part 3 [Parentage]
Who is a Guardian? Parents; by agreement; court order
ZJ: new addition to FLA. Guardianship was not defined under FRA and no presumption of
guardianship. When people made claims after separation, they generally included "guardianship,
custody, access". Now, don't include guardianship unless you want to terminate one parent's
guardianship. Otherwise, they are presumptively guardians.
Guardians
that Reside
Guardians
that DO
NOT Reside
w/ Child
Step
Parents
FLA – Guardianship
39(1) Parents are presumptively guardians while living together and after
separation, unless there is an agreement or order which provides otherwise
39(3) A parent who has never resided w/ the child is NOT a guardian unless
(a) s. 30 applies and the person is a parent under that section (agreement
w/ potential birth mom or donor re: parentage); or
(b) the parent and all of the child's guardians make an agreement providing
that the parent is also a guardian; or
(c) the parent regularly cares for the child.
39(4) If a child’s guardian and person who is not a guardian marry or enter into a
marriage-like relationship, the person does not automatically become a guardian by
32
reason of the relationship (they can only become a guardian by way of section 51 or if they adopt and become a
parent)
51(5): A person who has custody of a child under ss. 54.01(5) or 54.1 of the CFCSA is deemed to be
a guardian under the FLA.
 Director will have custody when child is removed (under child protection statute) and
therefore is a guardian
Appointing a Guardian by Agreement
Under SECTION 50, a person cannot become a child’s guardian by agreement unless (a) the person
is the child’s parent, or (b) as provided for under the Adoption Act or Child, Family and
Community Service Act. However, under SECTION 51(1)(A) the court may appoint a person as the
child’s guardian. Section 51 applies to non-parents, and parents who have not lived w/ the child
and have not had regular care of the child – Otherwise parents are presumptively guardians.
 The TEST is the best interests of the child (s. 51(2)) – as described in s.37
 If a child is 12 years of age or older, the Court must not appoint a person as guardian
without the child’s written approval (s. 51(4))
 Notice must be given to all parents, guardians and others who provide care for the child or
with whom the child lives (s. 52(1)) - anytime there is a change to guardianship of the child.
Guardian of Child's Estate



A child’s guardian is not, by reason only of being a guardian, a trustee of the child’s
property or entitled to discharge property received on behalf of the child (FLA s. 176)
o In agreements, include an explicit definition addressing "estate" because of this
provision.
Exception (FLA s. 178) - the exception is in relation to property the trustee has authority to
hold for the child, or property within a prescribed value or a prescribed class of property –
Otherwise, not presumed to be trustee of estate
There is also now a division that sets out how parents/guardians ought to treat children's
property (not addressed in this class)
Termination of Guardianship
ZJ: try not to apply for termination. Only scenario to do this is adoption - where other biological
parent is not involved (e.g. dad in jail and won't give consent; mom's fiancé wanted to adopt child
to make a whole family, dad would be in jail for a long time, court granted order).
Note: It is difficult to get guardianship terminated. It might be easier to try to get all parental
responsibilities instead.
Presumptive
Guardians
Appointed Guardians,
e.g. grandparents
39(2): an agreement or Order may be made after separation, or when
about to separate, that one parent is not the child’s guardian
51(1)(b): The Court may terminate a person’s guardianship of the child,
except when director is guardian under the Adoption Act or the CFCSA court has no jurisdiction when director is involved and up to director's
discretion to make the decision.
33
CL has held that termination of guardianship is only appropriate in (high
threshold to meet b/c we are starting with presumption, need to rebut
presumption):
 extreme situations; important to give parents “maximum
opportunity to remain a significant part of the child’s life (D v D,
2013 BCPC) AND
 rarest and clearest of cases where cancelling guardianship is
clearly in the child’s best interest” (STH v RMG, 2013 BCPC)
CL
Parenting Arrangements and Responsibilities
FLA – Parenting Arrangements
Definition
1 “parenting arrangements” means arrangements respecting the allocation of
parental responsibilities, or parenting time, or both
Who can have a 40(1) Only a guardian can have parenting responsibilities and parenting time
parenting
 concept of parenting arrangements only applies to guardians.
arrangement?
No
40(4) No particular arrangement is presumed to be in the BIOC. In particular,
Presumptions there is no presumption that (a) responsibilities should be allocated equally;
about
(b) parenting time should be shared equally; or (c) decisions should be made
Arrangements separately or together


E.g. in the past used to presume it's better for a child to be with mom than dad, but
not the case anymore (may be subconsciously in adjudicators now)
Have to consider the needs for that child - that may be different from the child's
siblings, so the children in the family may have different needs and arrangements
But Note: the FLA essentially sets up a “joint” guardianship regime as each
guardian is entitled to exercise parenting responsibilities unless an agreement
or Order provides otherwise.
Informal
48 If the parents do not have a formal parenting arrangement but have had in
Parenting
place an informal parenting arrangement for a period of time for a length of
Arrangements time that has allowed the arrangement to become a “normal” part of the
child’s routine, the informal arrangement cannot be changed w/o consulting
the other guardian(s), unless consultation would be unreasonable or
inappropriate in the circumstances.
“Unless unreasonable or inappropriate": refers to family or domestic violence,
either current or a history of it (pattern of past behaviour).
Court Orders 45(1) Court can make orders for allocation of parental responsibilities, or
parenting time, that parties participate in dispute resolution for the
implementation of a parenting order. Ex. exchanges or supervised access



May include orders for supervision, that parenting/contact time is supervised (should
happen only when necessary) - can be for a period of time, under certain
circumstances
E.g. child is with mom and mom's sister (who has a history of substance abuse), need
supervision order (may not need supervision order just for mother)
Supervision occurs more often than termination - PP: more necessary for supervision
over parent's conduct
34

Violence doesn't have to be against to child but to other parent - sufficient to have
exposure to family violence
45(2) These court orders cannot be made if the child’s guardians are the
parents and are not separated
FLA – Parental Responsibilities
Definition
1“parental responsibilities” means one or more of the parental responsibilities
in section 41
What are
41 For the purposes of this Part, parental responsibilities with respect to a
parental
child are as follows:
responsibilities? (a) making day-to-day decisions affecting the child and having day-to-day
care, control and supervision of the child;
 These aren't necessarily made jointly by parents - e.g. food, clothing,
friends; but made by the parent who is caring for the child
(b) making decisions respecting where the child will reside;
 Can't leave with the child without informing the other parent
(c) making decisions respecting with whom the child will live and associate;
 More complicated - what about parents with new partners? Other parent
doesn't really have control over that.
 What if it's not in the child's best interest? E.g. new individual has
problems/behaviour that is contrary to child's best interest - then may be
able for other parent to intervene.
(d) making decisions respecting the child's education and participation in
extracurricular activities, including the nature, extent and location;
 Joint decision - e.g. where to go to school, swimming, hockey
 Sometimes, a parent may make unilateral decisions about activities but
may expect other parent to help pay for it. Court may say that b/c the
activity wasn't consulted about, the deciding parent pays and activity
continues b/c child benefits for it.
(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;
 This is an important decision and should be made jointly - if can't, may
need an adjudication process to sort it out
(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;
 E.g. consents for field trip - probably won't ask for consent.
 But consent for zip-lining (or risky activity), important to discuss with
other parent regarding the undertaking
(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 from third parties health, education or other
information respecting the child;
35

E.g. teacher, doctor, caregiver - anyone who has involvement in the
child's life
(k) subject to any applicable provincial legislation,
(i) starting, defending, compromising or settling any proceeding relating
to the child, and
 Also a joint decision
(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.
 Basket clause
BIOC
40 & 43 Guardian must exercise their parental responsibilities in the BIOC
Consultation w/ 40(2) Guardians must exercise parental responsibilities in consultation with all
Other Guardians other guardians unless there is an agreement or Order to the contrary, or
unless consultation would be unreasonable or inappropriate (e.g. if as a result
of consultation, there will be risk or exposure to family violence)
Allocation of 44(1)(a) Parental Responsibilities may be allocated among guardians by
Responsibilities agreement, or
45(1)(a) Parental responsibilities may be allocated by order
E.g. Parent A make decisions on religious activities; Parent B make decisions on
extracurricular and medical activities.
(So, basically starts with the presumption that all guardians get to do these things and then can change
that); can give one person “sole authority;” can parse them out; or can have duty to consult, but if unable
to agree then one party makes the decision or both go to mediation)
Separation
Required
44(2) and 45(2) An agreement is only binding and an Order can only be made in
respect of parenting arrangements if the guardians (parents) are separated
Parenting Time
Definition
s. 42(1)
s. 42(2)
ss. 1 and 58
s. 58(2)
s. 59
(1) “parenting time” parenting time as described in section 42
Parenting time is time that a child is with a guardian, as allocated under an
agreement or court order
 Recall informal arrangements may also be binding and may not be
changeable without consultation
During parenting time, a guardian may exercise day-to-day decisions affecting
the child, unless an agreement or court order says otherwise
Contact
Contact is time someone who is NOT a guardian has with a child, including
people other than parents
Agreements for contact are only binding if made with all guardians having
parental responsibility
Orders for contact may include terms and conditions, such as “supervision
requirements”– if the court is satisfied that supervision is in the best interests
of the child - can be for however long as necessary.
PP of supervision is to preserve child's relationship with parent
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Joint Custody and Guardianship Master Joyce Model (DA & FRA)
 Model developed under FRA by Master Joyce. Don’t rely on this anymore b/c s. 41 provides a list
of parental responsibilities, but helpful to see how orders/agreements were drafted pre-FLA.
 Joint guardians of the child's estate (not important to say "joint" - continue to be guardians as
parents)
 Either dies the other will be sole guardian of person & estate of the child.
 Custodial parent must inform the other parent of any significant matters affecting the child.
 The custodial parent must discuss with other any significant decisions, including significant
decisions about the child's health (except emergency decisions), education, religious
instruction, and general welfare.
 The parent who does not have custody must discuss with the custodial parent and try to agree
on those major decisions.
 If cannot agree, custodial parent has the right to make the decision.
 Other parent believes not in child’s best interests, has (had) the right, under s. 32 of the Family
Relations Act, to ask the court to review the decision. This is the case if one parent had the final
decision making.
 Each parent has right to get info about the child directly from 3 parties
rd
DAM v DAT (2014 BCSC) - Order in very High-Conflict Case
This case is about applications and part of a review that took place a year after initial family law decision. Initial family
order granted mom sole custody and guardianship (under FRA, didn't have s. 41 orders at that point). They turn the
order to accommodate the s. 41 orders - also got all the rights and primary residency. Ordered to follow reunification
process.
Children reported to mother that father was conducting sexually inappropriate behaviour --> acted with alienating
behaviour; stayed away from her own parents (grandparents).
Fisher J: in her initial decision, she states she didn't recognize sexual assault then, but also didn't rule it out. Couldn't
find sexual abuse based on the court appointed psychologist on a BoP because children were subjected to too much
questioning (and therefore susceptible/influenced by intense questioning).
Subsequent to the order, the reunification counselling stopped on the father's side after 2 sessions. Fisher J discusses
this about him "losing faith in the psychologist", but disagrees with father on this. Also father didn't renew order after
6 months so it questions whether the father really wanted reunification of the family. Psychologist identified troubling
behaviour on the father's side.
2nd psych report: potentially too much over identification by counsel with the mother? Fisher J slams mom/counsel
for bringing children to a second psychologist - overdoing it.
 Chris: does alienation allegations have any part to play when there are sexual assault allegations? Is it
inappropriate to alienate children that are being sexually abused?
 2nd psych assessment found that sexual abuse allegations were likely on a BoP, but judge found it wasn't a
balanced assessment and didn't have a critical enough view of children's and wife's perspectives, and didn't
seek input from father.
Allegations: Claimant father had sexually abused the parties’ two children. Respondent mother had alienated the
children against the father
 How could a parent appropriately act or respond when told the ex-spouse is acting sexually inappropriately?
Court Order (para 95)
Only a guardian can get parenting responsibilities. So, if judge grants some parenting responsibilities to a parent, then
that parent must be a guardian.
 The children will continue to reside with the mother, provided her residence is different from that of her
parents;
 The mother will exercise all parental responsibilities with respect to the children and will consult with the
father about decisions respecting
o where the children will reside,
o their education and the location of their school, and
37
o
their health and the giving, refusing or withdrawing consent to medical, dental and other healthrelated treatments;
 The father will be entitled to request and receive from third parties health, education or other information
about the children;
 For a period of up to 12 months, the father’s parenting time with the children will be at the direction of
Robert Finlay within a counselling process designed to reconcile and re-unite the father with the children,
subject to the following conditions:
Plan for father that was in intervals and very detailed --> this is in response to issues that arise from the last
order:
o if Robert Finlay is unable to carry out the counselling process, he must report to the court within 30
days of the date of this order and provide his reasons therefor;
o if Robert Finlay is able to carry out the counselling process, he must, within six months of the date of
this order, report to court about the progress being made and provide any recommendations he
considers necessary or appropriate;
o neither party will in any way communicate with Robert Finlay outside the parameters of the
counselling process;
o neither party’s counsel will in any way communicate with Robert Finlay except jointly for the
purpose of providing him with the following information:
1. A copy of these reasons;
2. A copy of my March 5, 2013 reasons for judgment;
3. A copy of Dr. Krywaniuk’s s. 15 report (equivalent to s. 211 reports under FLA; report to
assess each parent's ability to parent);
4. A copy of Dr. Hervé’s report (forensic report to verify children's report);
 Robert Finlay is to provide a final report to court within 12 months of the date of this order that includes a
summary of the counselling process and recommendations about parenting responsibilities and parenting
time going forward;
 Robert Finlay may report to the court at any other time if he requires further direction or for any reason he
considers it necessary:
 During the counselling process:
o the mother will not have any communications with the children about any counselling sessions in
the absence of Mr. Finlay or a member of his team;
o the mother will not retain any other health care professional to provide psychological counselling to
the children; and
o neither party will retain any other professional to conduct an assessment or evaluation of any kind
pertaining to the children;
 The cost for Robert Finlay’s services is to be shared equally between the parties;
 The mother must refrain from any conduct that conveys negative messages about the father to the children
and must follow the advice of Robert Finlay and those involved in the counselling process.
[96] I have crafted this order in contemplation of the best interests of the children and I urge the parties to move
forward with this process with the best interests of their children in mind.
Speaker: Important for a family lawyer to be objective and reasonable, and to be your client's sober 2nd thought! That
can make a big difference for someone involved in legal practice in family law.
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Specific Issues in Parenting
NOTE: Have to have guardianship (the big umbrella) before you can do any of these! bio mom and
dad, not grandparents
1. Failure to Exercise Parenting Time
What do you do if someone does not show up? Go to s. 63
When a parent misses a scheduled meeting, cancels at the last min, doesn't show up or bring
them in early, it is disruptive to both the child – need stability and consistency in their lives – AND
other parent – who now has to get day care or take time off.
E.g. father made plans to go to Whistler, mother cancels, father has to make new plans (and
expends cost - either daycare or forgo hotel cost)
The Family Relations Act did not have remedies for dealing with a person that repeatedly fails to
exercise parenting time or contact agreed to or granted in an order.
Section 63 of the Family Law Act addresses what happens when a parent repeatedly fails to
exercise parenting time/contact when there is an order or an agreement in place & provides
limited remedies – ensuring the prescribed remedy is not at odds with the child’s best interest
(ex. forcing a relationship with an uninterested adult). This section also gives judges the discretion
to allocate the cost, if any, required to facilitate parenting time/contact or the family dispute
resolution (including counselling).
 If repeatedly failed, reason would be considered – ex. medical condition
 Agreement doesn’t have to be super formal – just have to show that you guys have been
following a routine – even if only one person has signed, GTG if you can show you guys had
a routine
Failure to exercise parenting time or contact
63 (1) If a person fails repeatedly (once is not enough) to exercise the parenting time or contact with the child to
which the person is entitled under an agreement or order, whether or not reasonable notice was given, the court on
application may make an order to do one or more of the following:
(a) require one or more of the things described in section 61 (2) (a), (b) or (e) [denial of parenting time or
contact];
(b) require the person to reimburse any other person for expenses reasonably and necessarily incurred by
the other person as a result of the failure to exercise the parenting time or contact with the child, including
travel expenses, lost wages and child care expenses;
 KR: this is very effective - warn with lawyer's letter; or parent go to court with this. Issue usually
happens around holidays or first day in school.
 Parent needs to give evidence to get reimbursement (e.g. took ferry, cancelled ski trip)
(c) if the court is satisfied that the person who failed to exercise the parenting time or contact with the child
may not comply with an order under this section, order that person to do one or more of the things
described in section 61 (2) (f).
 This is giving money/security - refer to below.
(2) In making an order under subsection (1) (a), the court may allocate among the parties, or require one party alone
to pay, the fees relating to the family dispute resolution, counselling, service, program or transfer.
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2. Denial of Parenting Time
Denial of parenting time provisions are also new to family law in BC – the Family Relations Act did
not have specific remedies for denial of parenting time allegations. PP: provide framework for
people to solve problems of dysfunctional parenting time quickly - within 12 months
Section 61 permits a person entitled under an order to parenting time to apply to the court for
relief on the ground that he has been wrongfully denied parenting time!
Section 61 of the Family Law Act establishes an enforcement regime for judges to ensure parties
respect each other’s parenting time and contact arrangements. It provides a range of remedies,
from preventative to punitive, that a judge can order when there is a denial of parenting time or
contact, including: requiring parties or their children or both to attend family dispute resolution,
counselling or other services. The remedies include:
 compensatory time;
o ex. deny dad weekend, have to give up your weekend
 reimbursement of expenses incurred as a result of the denial; and
o ex. ferry fare
 requiring the offending party to provide security or pay a fine of up to $5,000.
o KR: very effective
This section gives judges the discretion to allocate the cost, if any, of family dispute resolution,
counselling or supervised transfer of children to facilitate parenting time or contact. However,
these applications must be made within 12 months of the denial.
 PP: prevent length and number of affidavits
 Has to be current and need have documentary evidence
Denial of parenting time or contact
61 (1) An application under this section may be made only
(a) by a person entitled under an agreement or order to parenting time or contact with a child, and
(b) within 12 months after the person was denied parenting time or contact with a child.
(2) If satisfied that an applicant has been wrongfully denied parenting time or contact with a child by a child's
guardian, the court on application may make an order to do one or more of the following:
(a) require the parties to participate in family dispute resolution;
(b) require one or more parties or, without the consent of the child's guardian, the child, to attend
counselling, specified services or programs;
(c) specify a period of time during which the applicant may exercise compensatory parenting time or contact
with the child;
(d) require the guardian to reimburse the applicant for expenses reasonably and necessarily incurred by the
applicant as a result of the denial, including travel expenses, lost wages and child care expenses;
(e) require that the transfer of the child from one party to another be supervised by another person named
in the order;
o KR: This is bad - e.g. pick up and drop off kids in police parking lot. Get counselling/help early on to
prevent this.
(f) if the court is satisfied that the guardian may not comply with an order made under this section, order
that guardian to
(i) give security in any form the court directs, or
(ii) report to the court, or to a person named by the court, at the time and in the manner specified
by the court;
(g) require the guardian to pay
(i) an amount not exceeding $5 000 to or for the benefit of the applicant or a child whose interests
were affected by the denial, or
(ii) a fine not exceeding $5 000.
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(3) If the court makes an order under subsection (2) (a), (b) or (e), the court may allocate among the parties, or
require one party alone to pay, the fees relating to the family dispute resolution, counselling, service, program or
transfer.
Need to consider these on the exam! Need to remember there is a remedy.
When Denial is NOT Wrongful
Is the denial of parenting time justified?
E.g. child under 5, client says other parent is not supervising well enough with documentation (e.g.
running across cross walk). Very protective mother – need to be considerate of the fact that diff
parents have diff parenting styles.
X’s concern for the child’s physical & emotional safety provide justification for the denial of
parenting time under s.62(1)(?) of the FLA. Accordingly, X’s denial of parenting time was not
wrongful.
Section 62 of the Family Law Act provides examples of circumstances in which a denial of
parenting time or contact is not wrongful. Most remedies for denial of parenting time or contact
are only available when the parenting time or contact was wrongfully denied. However, even
where the denial was not wrongful, the court may, if appropriate, order compensatory time to the
guardian to make-up for the missed time with their child (if appropriate in in BIOC).
 Court looks at s. 37 and s. 62 together
When denial is not wrongful
62 (1) For the purposes of section 61 [denial of parenting time or contact], a denial of parenting time or contact with a
child is not wrongful in any of the following circumstances:
(a) the guardian reasonably believed the child might suffer family violence if the parenting time or contact
with the child were exercised;
(b) the guardian reasonably believed the applicant was impaired by drugs or alcohol at the time the
parenting time or contact with the child was to be exercised;
(c) the child was suffering from an illness when the parenting time or contact with the child was to be
exercised and the guardian has a written statement, by a medical practitioner or nurse practitioner,
indicating that it was not appropriate that the parenting time or contact with the child be exercised;
(d) in the 12-month period before the denial, the applicant failed repeatedly and without reasonable notice
or excuse to exercise parenting time or contact with the child;
(e) the applicant
(i) informed the guardian, before the parenting time or contact with the child was to be exercised,
that it was not going to be exercised, and
(ii) did not subsequently give reasonable notice to the guardian that the applicant intended to
exercise the parenting time or contact with the child after all;
(f) other circumstances the court considers to be sufficient justification for the denial.
(2) If, on an application under section 61, the court finds that parenting time or contact with a child was denied, but
was not wrongfully denied, the court may make an order specifying a period of time during which the applicant may
exercise compensatory parenting time or contact with the child.
Look @ s.211 to get some objective evidence – subjective evidence alone is not enough! (ex. of
subjective: recording child after they come back from their visit w/ the other parent, who said
horrible things about u)
 211 can be a full report or view of the child depending on the age of the child
DNL v CWS 2014 BCSC
Is mom not letting the child see dad wrongful?
41
Case involved a 12-year-old child who refused to spend time with her father. Father was seeking
to enforce parenting time and mother was seeking to terminate parenting time with father
 denial of parenting time was not wrongful b/c dad’s use of force to compel kid to
accompany him led mom to believe there was a real risk of physical altercation – court
held mom reasonably believed child might suffer from family violence.
Views of the Child Report (s. 211 report): child reported that she did not want to spend time with
her father because of his angry outbursts, accusations against her mother, refuses to let her go to
her mother's home when she is upset, insults her mother and maternal grandmother and blames
her for his behavior!
Father claimed mother turned child against him, but psychologist found it was his own conduct.
The Court, after considering section 37 factors in relation to the father’s conduct, found it is in
the child's best interests to terminate court-ordered parenting time
FLA can consider views of child unless it is inappropriate – weight will depend on circumstances
E.g. articulate 7-year-old vs. autistic 12-year-old
3. Child Abduction
ex. dad takes kids to Iraq
Section 64 of The Family Law Act provides for two types of orders with respect to removal of a
child:
 The first type allows a court to restrict a person from taking a child out of a certain area generally about parenting together and making sure each guardian knows where the child
is – worried but still let children go
o Idea behind this is to assist parents in making sure that their ability to parent isn’t
impacted by the other moving away – ex. kids going on holiday and mom worried
that dad won’t bring them back – order is in place to ensure other guardian knows
where the kids are at all times! Get itinerary, names & addresses of hotel – if super
worried, then go to the more restrictive option
 The second type is used where there is concern that a person may remove and not return
a child. In these circumstances, the court may take action to stop the person from leaving
with the child, such as surrendering passports or providing security to motivate the person
to stay – nope you are not going!
o Prohibitive and more restrictive
o E.g. dad quit job, broke up with girlfriend, house is empty, trip to Mexico planned
o KR: courts always "air on side of caution"
Orders to prevent removal of child
64 (1) On application, a court may make an order that a person not remove a child from a specified geographical
area. [less restrictive]
(2) On application, if satisfied that a person proposes to remove a child from, and is unlikely to return the child to,
British Columbia, the court may order the person who proposes to remove the child to do one or more of the
following:
(a) give security in any form the court directs;
(b) surrender, to a person named by the court, passports and other travel records of the person who
proposes to remove the child or of the child, or of both;
(c) transfer specific property to a trustee named by the court;
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(d) if there is an agreement or order respecting child support, pay the child support to a trustee named by
the court.
(3) This section does not apply in relation to the relocation of a child within the meaning of Division 6 [Relocation] of
this Part.
 Not relocation (e.g. moving to Calgary), but going on holiday
(4) A person required by an order made under this section to hold passports, travel records or other property
delivered under the order must do so in accordance with the directions set out in the order.
Don’t need H convention in detail – only need to know the notes in red
Section 80 of The Family Law Act addresses the Hague Convention on the Civil Aspects of
International Child Abduction to ensure the continued application of the Convention in British
Columbia. Under this Convention, the removal of a child, or the retention of a child, is considered
wrongful if it breaches the rights of custody under the law of the jurisdiction in which the child
was habitually resident immediately before the removal/retention, and those custody rights were
actually being exercised. Article 3 of the Convention dictates that a court must order return of the
child “forthwith” unless one of the narrow exceptions under Articles 12, 13 or 20 apply (*Applies
when children are brought here from outside Canada and only applies when the other country is a
signatory to the Convention). Wrongful removal of a child from where habitually resident and
court can order return of child!!!
 This section links H convention to BC’s provincial jurisdiction (makes convention the law in
BC)
International child abduction
80 (1) In this section, "convention" means the Convention on the Civil Aspects of International Child Abduction signed
at The Hague on October 25, 1980.
(2) The definitions in the convention in relation to custody and access apply to this Division for the purpose of
applying the convention.
(3) For the purpose of the convention, the Attorney General is the Central Authority for British Columbia.
(4) Subject to subsection (5), the provisions of the convention have the force of law in British Columbia.
(5) The government is not bound to assume any costs resulting from the participation of legal counsel or advisors, or
from a court proceeding, in relation to applications submitted under the convention, except to the extent that the
costs are covered under British Columbia's system of legal aid and advice.
(6) Subsections (1) to (5) and the convention apply respecting a child who, immediately before a breach of custody or
access rights, was habitually resident in a contracting state, but do not apply respecting a child described in
subsection (7).
(7) Division 7 [Extraprovincial Matters Respecting Parenting Arrangements] applies respecting
(a) a child who is in Canada and who, immediately before a breach of custody or access rights, was habitually
resident in Canada,
(b) a child who, immediately before a breach of custody or access rights, was habitually resident in a state
other than a contracting state,
(c) a child who, immediately before a breach of custody or access rights, was resident, but not habitually
resident, in a contracting state, and
(d) any other child affected by an extraprovincial order, other than a child respecting whom subsections (1)
to (5) of this section and the convention apply.
Kubera v Kubera 2008 BCSC
Justice Martinson does a great job of explaining the application of the Convention – father was
seeking the return of his 8-year-old child to Poland. Court found that child was wrongfully retained
in Canada, but that she should not be returned because she was now settled in her new
environment. – KR: have to consider best interests of child!
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All you need to know is that you can use the H convention to get the child back if country is a
signatory.
4. Mobility/Relocation
e.g. one parent wants to move from West Vancouver to North Vancouver – even a relatively short
move can impair a parent's schedule with the child. Look @ Hokhold v Gerbrandt under BIOC
FRA didn't have anything on this and had no clear way to move. FLA provides more clarity (wants
to rely less on cases and judges, and more on what steps to take).
(1) If the parties are OR were married, then start w/ the DA. (2) Then, apply the
FLA. (3) Finally, find the case that works best for the outcome you want.
Karen: first, have to decide if equal parenting or not. Then, mention Gordon. Lastly,
go through the relevant sections of the FLA.
DA
Relocation under the DA is about applying to vary an order for custody or access. Inevitably, a
move of even only a few hours away can frustrate a spouse's access to a child, and for the moving
spouse to avoid being in breach of an order for custody or access, the spouse will need to apply to
the court for an order adjusting the arrangements for custody and access to allow the move. The
leading case on this issue is Gordon v. Goertz [1996] SCC. The law can be summarized as follows:
1. Parent applying for move must meet the threshold requirement of material change
(parent applying for a change in custody or access order)
2. Fresh inquiry on best interests of child
3. Evidence of new circumstances
4. No presumption of legal presumption, although custodial parent’s views entitled to great
respect – FLA overturns this, and does not give greater deference to custodial parent, but
only BIOC
Two-part TEST:
 1) Threshold requirement of demonstrating a material change of circumstances affecting
the child (a change, which materially affects the child, and was unforeseen or not
reasonably contemplated at time of previous Order)
o moving down the street or far away – ex. does kid have to take a fury to get to
school
 2) The applicant must establish that the proposed move is in the best interests of the
child, given all the relevant circumstances, the child’s needs, and the ability of the
respective parents to satisfy those needs
o Who is the applicant? Is the applicant the person who moves or the other parent?
o focus is not on interest or rights of the parents – only issue is the BIOC – maximum
contact requirement under s.16(10) is not determinative and BIOC are paramount.
Kiran: The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a
material change in the circumstances affecting the child. So if there's an order allowing the parent to relocate with the child, and
the other parent is applying to vary the order, the parent APPLYING would have the onus for the threshold requirement. But I'm
not sure how common that is - I feel like the dispute would arise prior to the court ordering the relocation
DA: s.16(7) & s.17
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FLA
It is instructive to review the law on mobility and relocation as it stood prior to the enactment of
the FLA. Gordon, the leading case on mobility from the SCC, arose in the context of an application
to vary custody. In that case the court provided a list of factors to consider in determining a
relocation request on a variation application.
ADJ v AEA (2013 BCSC) provides a useful summary of the FLA
STEP 1: Is there a written agreement (informal OK) or court order for parenting?
(A) Changes to child's residence if no written agreement or order
Section 46(1) of The Family Law Act Applies if all of the following circumstances exist:
 (a) No written agreement or Order respecting parenting arrangements;
 (b) Application is made for an Order under s. 45; and
 (c) A guardian plans to change the child’s residence and that change can reasonably be
expected to have a significant impact on that child’s relationship with another guardian.
 KR: this is an oversimplification; prefer ss. 65-69 b/c those tell me what my client needs to
do
 KR: Not prohibited from using 69 if you don’t have a written agreement or an order –
MUST use s.46 if no agreement/order, but could also use 65-69 (more onerous test – this
makes sense. If there are court orders, makes sense that you have to jump through more
hoops to relocate after) may want to use this to show court that client took steps,
whereas 46 is more vague and just based on best interests of the child (this is an objective
standard) – can show that the court will presume in the best interest of child.
46(2) To determine the parenting arrangement that is in BIOC in the circumstances under
subsection (1), the court Must consider section 37(2) factors AND the reasons for the change in
the location of the child’s residence, and Must NOT consider whether the guardian who is
planning to move would do so w/o the child.
(B) If there is an agreement or order: Division 6 (65-70) – Relocation
Can use this section whether there is an agreement or not! Karen would NEVER USE s.46!
Applies if: written agreement or Order respecting parenting arrangements or contact and
guardian plans to relocate himself or herself or the child, or both.
Goal is to introduce some certainty to this area of law by mandating notice of a proposed move,
defining what constitutes relocation and directing courts about both circumstances that should be
considered and those that should not.
STEP 2: Division 6 – Relocation Analysis
THE GOAL OF DIVISION 6 OF THE FLA IS TO INTRODUCE CERTAINTY TO THIS AREA OF THE LAW BY MANDATING
NOTICE OF A PROPOSED MOVE, DEFINING WHAT CONSTITUTES RELOCATION, AND DIRECTING COURTS ABOUT BOTH
CIRCUMSTANCES THAT SHOULD BE CONSIDERED AND THOSE THAT SHOULD NOT.
The scheme in Division 6 appears to be designed to create a climate where parties attempt to
work out their differences before resorting to court applications. It provides for the relocating
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parent to give written notice under s. 66 and for the parties to use their best efforts to cooperate
with one another to resolve issues relating to the proposed relocation under s. 67. Where there is
objection, s. 68 contemplates an application by the non-relocating parent for an order prohibiting
the relocation but s. 69 contemplates an application by either guardian.
In Wong v Rooney (dad arguing move to Schelte no bigi), Mr. R may not have provided notice
strictly in accordance w/ s.66, but there was no dispute that Ms. W had clear notice of his
intention to move. Whether they used their best efforts to resolve this issue was questionable, but
they clearly held incompatible views and required a decision of the court.
(A) Who can challenge?
Section 69: only guardians have the right to challenge a relocation.
 E.g. Grandma can be considered under 65(1), but they cannot bring an application unless
they are a guardian.
 KR: don't want client to give other spouse sole guardianship - otherwise, cannot stop
relocation.
(B) Ensure meets def of relocation
section 65(1) “Relocation" means a change in the location of the residence of a child or child's
guardian that can reasonably be expected to have a significant impact on the child's relationship
with
 a guardian, or
 one or more other persons having a significant role in the child's life.
Change of residence within a metropolitan centre (i.e. the Lower Mainland) does not qualify as a
“relocation” – Master MacNaughton in Berry v Berry,2013 BCSC
 Though KR thought move from North Vancouver to Surrey is significant
(C) Give notice of relocation
section 66 (1) Requirements: relocating parent must give notice
 To all other guardians and persons having contact with the child;
 At least 60 days in advance; and
 In writing, with the date of the relocation and the name of the proposed location – can
send an email
(2) Court can grant exemption if
 Notice cannot be given without incurring a risk of family violence; or
 No ongoing relationship between the child and other guardian or contact person.
o Exemption may be granted after move - do it after and don't apply for an
exemption.
(3) Application for exemption can be brought ex parte.
(D) What do parents have to do? Resolving Relocation Issues
section 67
(1) After notice is given:
 Guardians and contact persons must use best efforts to cooperate in resolving any issues
relating to the proposed relocation.
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Either relocating parent can apply for an order to go, or other parent can bring
application to stop relocation.
o KR: what court wants is that before an application in front of the court, the parents
have tried - have given options, alternatives (evidence of some sort)

E.g. offer to do the driving, split driving, etc.

But this isn't a ground for the court to strike the application out – often
skimmed over.
(2) However, nothing prohibits:
 A guardian from bringing an application for an Order respecting relocation (under s. 69); or
 A person with contact from bringing an application for an Order respecting contact (under
ss. 59 or 60).
o
(E) Objecting to Relocation – have to hire a lawyer and get an order
section 68: If the other guardian objects to the relocation of a child, that guardian must file an
application for an Order to prohibit the relocation within 30 days after receiving notice of the plan
to relocate the child.
NOTE: If the other guardian does not initiate an application in Court objecting to the relocation
within 30 days of being given notice, then the relocation may occur on or after the date stated in
the written notice.
Use BCSC if the move is out of province.
 KR: I would choose BCSC anyway unless I was in a hurry and the parties already had a case
started in PC (I may have no choice except to stay with the court where the case is already
started). BCSC is more expensive but especially if there is a self rep on the other side,
people take it more seriously if you threaten to take them to Supreme Court.
(F) Orders Respecting Relocation
(1) What is the TEST?
section 69: Court can make an Order permitting or prohibiting the relocation. TEST:
 1) Best interest of the child: s. 37(2);
 2) Good faith; and
o To prove that it is not vindictive, and not denying parenting time to other parent.
o Getting a job, activities for child, moving closer to family ties (e.g. nothing else in
Vancouver other than dad).
 3) Reasonable and workable arrangements to preserve the relationship between the
child and the other guardians, persons entitled to contact, and other persons who have a
significant role in the child’s life.
o What does "workable" mean? Don't know what this means yet, but cases try to
help interpret what this means.
o Doesn't have to be 50-50
o Affordable, practical
o E.g. 4-year-old child, parents separated, dad went into depression, mom moved to
Scotland, dad got court order for daughter to come back for trial, dad said in child's
best interests (emotional well-being, ties to community, affordability of being in
Vancouver), judge held it is in her best interest to go to Scotland.
(2) Who has to prove the case?
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Onus depends on whether or not there is substantially equal parenting time.
(3) Equal parenting time or not?
(A) Not Substantially Equal Parenting Time: section 69(4)
b/c the parties have substantially equal parenting time, s.69(5) applies to this application. It
requires X to satisfy that:
Relocating guardian must satisfy the Court that
 The proposed relocation is made in good faith; and
o Moving closer to family ties
 She/he has proposed reasonable and workable arrangements to preserve the
relationships.
o Dad gets every summer and xmax
o Workable = affordable, etc.
If Court is satisfied of the above, then relocation must be considered to be in the best interest of
the child unless other guardian satisfies the Court otherwise. Onus is on non-relocating guardian.
Ex. mom successful taking little girl to Scotland
(B) Substantially Equal Parenting Time: section 69(5)
b/c the parties have substantially equal parenting time, s.69(5) applies to this application. It
requires X to satisfy that:
Relocating guardian must satisfy the Court that
 The proposed relocation is made in good faith;
 She/he has proposed reasonable and workable arrangements to preserve the
relationships; and between kid and mom, as well as between kid and the members of
mom’s family who have a significant role in her life
 The relocation is in the best interests of the child. Onus is on the relocating guardian.
o go through s. 37(2) factors. This is much harder to do.
(G) Good Faith?
For the purpose of determining if the proposed relocation is made in good faith, s. 69(6) requires
the court to consider all relevant factors, including:
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 wellbeing 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.
In Wong v Rooney (dad arguing move to Schelte no bigi), court was not satisfied that dad
established good faith w/in meaning of s. 69(6).
(H) Factor Not to be Considered
In determining whether to make an order under this section, the Court must not consider whether
a guardian would still relocate if the child’s relocation were not permitted (the improper doublebind question): FLA s.69(7).
48
As the court described in Wong v Rooney (dad arguing move to Schelte no bigi), this provision was
intended to address the “double-bind” issue, which adopted a status quo disposition as being in
the best interests of the child by assuming that the relocating parent would not move if not
permitted to do so with the child. Such an assumption avoids a comprehensive assessment of
what parenting arrangement is in the best interests of the child.
5. Parental Alienation Syndrome
If fact pattern suggests parental alienation (ex. parent saying bad things about the other
parent), need objective evidence s.211
There are no specific provisions under the Family Law Act that deal with allegations of parental
alienation. However, there are numerous judgments on the issue.
Is it just the child doesn't like the parent, or something that the other parent actively did?
N.R.G. v. G.R.G., 2015 BCSC
Justice N. Kent provides an excellent overview of the signs of estrangement and alienation and
possible remedies.
[277] The difference between an estranged child and an alienated child lies in the cause;
estrangement, sometimes referred to as “realistic estrangement”, is the label applied when the
child understandably refuses contact with a parent because of the latter’s behaviour whether it
be physical or emotional abuse, rigid or restrictive parenting, immature and self-centered
behaviour, and/or dysfunctional conduct arising from the parent’s own psychological or
psychiatric issues. In such circumstances, the child’s rejection of the parent may well be a
reasonable and adaptive response to the estranged parent’s behaviour.
 Ex. dad is a drinker and child doesn’t want to go – this is not alientation
[278] An alienated child, on the other hand, is the label frequently applied when there is little or
no objectively reasonable cause for the child’s rejection of the parent and particularly when it is
the product of the other parent’s hostility and antipathy towards his/her former spouse and the
intentional undermining by the former of the child’s relationship with the latter. While the
undermining of the relationship can arise from direct or indirect behaviours, in its worst form the
parental conduct is expressly designed to alienate the child from the other parent. Such conduct is
pernicious and unpardonable.
What can the courts do in these cases?
Remedies Adopted by Courts (N.R.G. v. G.R.G.)
[288] A very helpful review of the legal responses to alienation can be found in Bala et al.,
“Alienated Children And Parental Separation: Legal Responses In Canada’s Family Courts”, 33
Queen’s L.J. 79 (2007). The various mechanisms often used by the courts include:
 Detailed case management and parental conduct orders with cost consequences for noncompliance;
o Parenting plans
 Judicial exhortation urging compliance and emphasizing the emotional harm caused to the
children (generally only effective in less severe cases of alienation);
 Court-ordered therapeutic intervention where appropriate, while recognizing “forcemarching” a child to reunification may in some cases be unrealistic and harmful;
49
E.g. 4 people working with one family to guide parents and children out of PAS
(parental alienation syndrom)
o Can't force children to do anything, but courts can impose orders on parents
 Ordering supervised access/parenting time to allay any child anxiety and possibly pave the
way for further strategies to achieve positive relationships;
o Lots of supervision agencies available
 Suspension of child or spousal support as a sanction to enforce more engagement with
the other parent;
 Transferring custody from the alienating parent to the rejected parent where expert
testimony establishes the long-term benefits will outweigh any short-term emotional
trauma to the child;
o Ex. sending kid to stay w/ dad for 10 months - after having tried everything but PAS
didn't get better
o PP: need to repair relationship with alienated parent and child
 Terminating access by/parenting time of the alienated parent when the alienation is so
entrenched that the “cure is worse than the illness”, recognizing that children do
sometimes resume a relationship with a rejected non-custodial parent after a long period
without contact, albeit perhaps only in later years.
o Alienation has been going on for so long and child has been told very horrible
things.
Remember - clients need to provide objective evidence.
o
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Parenting Coordination Process
This is designed for a small segment of families that are divorcing
@ law not their mandate to create a parenting plan
voluntary side and directive side
determination making ability – if can’t get consensus, then transition to this stage – firm and
binding
 When transitioning, there is an obligation to make it clear to client
 Ex. who should get kids on mother’s day?
Meet w/ children 5 or up
No one parent can terminate
Scenario 1
 Most will try to solve through consensus
A court can order one if neither parent wants it, but it is a Q of how it will get in front of the court.
Arbitration
Thinks should have put the arbitration structure into the FLA – instead of having to go to the
arbitration act
Make sure arbitrator has jurisdiction – can only decide issues before him
Rules
 Can K out – but have to put something else in place
 Have to put in your remuneration
 Arbitrator can be removed if there is arbitral error; lots of delay
o Penalty: loss of remuneration & costs
Advantages
 You get to pick your judge
o Very few judges in supreme court that have family law background
o Privacy – it is a private process, at least the original hearing

Once there is an appeal, it might become less private
o Faster process
o Less costly – don’t have to pay for the chambers applications
Disadvantages
 How well the courts are going to see this and enforce awards
o Ontario courts have been very supportive so far
o The law is that they are supposed to give deference to the arbitrators
SoR = reasonableness
Arbitration can be by agreement or court order
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Child Support
Required to report, but child support is not taxable income anymore!
Relevant Statutes
Divorce Act, section 2 definitions, section 15.1
Family Law Act, section 1 definitions, part 7: sections 146 – 152 (FLA)
Federal Child Support Guidelines, definitions, sections 2, 3, 4, 7 ,8, 9, 10, 11, 14,15,16,17,18,19,
20, 21 (Guideline)
There are five things the court must consider before a child support order can be
made:
Does the person asking for the order have the right to claim child support?
An order for child support can be made under s. 15.1 DA OR s. 149 FLA OR a couple can agree on
child support in a separation agreement. Either way, the amount of support awarded must, with
only a few exceptions, conform to the rules set out in the federal Child Support Guidelines.
DA
A court can only make an order for child support under the Divorce Act if it has or had
the jurisdiction to make an order for the spouses' divorce: the spouses must be or have been
legally married, and per s.3(1) the spouse making the application must have lived in the province
where the application is made for at least one year // Applications under the DA can only be
heard by the Supreme Court, not the Provincial Court.
FLA
Under the FLA, the applicant can be anyone included in the definitions of parent or guardian –
whether the parties are married spouses, unmarried spouses or in another unmarried
relationship, or if they were in no particular relationship with each other at all // People other
than parents can also apply for child support if they are caring for a child, including grandparents
who are guardians of their grandchildren and people who have been appointed as a guardian of a
child // If the claim is being made against a stepparent, the claim must be made within one year
after the stepparent last contributed to the child's upkeep and after the stepparent and parent
have separated // Both the Supreme Court and the Provincial Court can make orders for child
support under the Family Law Act.
Is the child entitled to receive child support?
The court must find that the child qualifies as a child as defined by the FLA or as a child of the
marriage as defined by the DA.
NOTE: Child support is payable between parents – don’t directly pay child anything, so if child
moves in with their BF, have withdrawn their charge.
DA
In the Divorce Act, children are referred to as children of the marriage, and a child must fall within
the act's definition of a "child of the marriage" in order to be eligible for support. There are a
52
couple of important definitions in s. 2(1) that apply in determining whether a child is a child of the
marriage:
"age of majority", in respect of a child, means the age of majority as determined by the
laws of the province where the child ordinarily resides, or, if the child ordinarily resides
outside of Canada, eighteen years of age;
"child of the marriage" means a child of two spouses or former spouses who, at
the material time,
(a) is under the age of majority and who has not withdrawn from their charge, or
(b) is the age of majority or over and under their charge but unable, by reason of
illness, disability or other cause, to withdraw from their charge or to obtain the
necessaries of life;
As well, s. 2(2) of the act says that:
For the purposes of the definition "child of the marriage" in subsection (1), a child of two spouses
or former spouses includes
(a) any child for whom they both stand in the place of parents; and
(b) any child of whom one is the parent and for whom the other stands in the place of a
parent.
Taken together these definitions mean that:
 child support can be owing from an adoptive parent, as well as a natural parent,
 child support can be owing from stepparents (spouses who "stand in the place of a
parent"),
 child support is payable until a child reaches the age of majority in the province where the
child lives, and
 child support can be payable after the child reaches the age of majority if the child cannot
withdraw from his or her parents' care.
An adult child can continue to be eligible for child support as long as he or she cannot "withdraw
from the charge" of his or her parents. The two main reasons why a child might not be able to
withdraw are because the child is going to college or university, or because the child has a serious,
chronic illness that prevents him or her from becoming self-supporting.
FLA
s. 146 In this Part and section 247 [regulations respecting child support]:
"child" includes a person who is 19 years of age or older and unable, because of illness,
disability or another reason, to obtain the necessaries of life or withdraw from the charge
of his or her parents or guardians;
"guardian" does not include a guardian
(a) who is not a parent, and
(b) whose only parental responsibility is respecting the child's legal and financial
interests;
"parent" includes a stepparent, if the stepparent has a duty to provide for the child under
section 147 (4) [duty to provide support for child];
"stepparent" means a person who is a spouse of the child's parent and lived with the
child's parent and the child during the child's life.
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FLA s.147
(1) Each parent and guardian of a child has a duty to provide support for the child, unless the child
(a) is a spouse, or
(b) is under 19 years of age and has voluntarily withdrawn from his or her parents' or
guardians' charge, except if the child withdrew because of family violence or because the
child's circumstances were, considered objectively, intolerable.
(4) A child's stepparent does not have a duty to provide support for the child unless
(a) the stepparent contributed to the support of the child for at least one year, and
(b) a proceeding for an order under this Part, against the stepparent, is started within one
year after the date the stepparent last contributed to the support of the child.
Whether post-secondary education will be paid for by parents?
To determine whether the pursuit of education necessary to equip a child w/ a career qualifies as
“other cause” for continuing dependence of a child of or over the age of majority …
The factors a court will consider in determining whether a child's academic career continues to
qualify the child for support include the following – only relevant when parents separate (Farden
v. Farden, 1993):
 Whether child is studying part-time or full-time
o This is related to the actual expenses that will be incurred, depending on whether
program is PT, FT, and what kind of program
 Whether child has applied for, or is eligible for, student loans or other financial
assistance
o Adult child also has obligation to seek other financial sources to pay for education
outside of parents
o When applying for student loans, parents' income is considered
o Adult child should also apply for scholarships and other forms of financial assistance
 Whether child’s career plans are reasonable and appropriate
o What do they want to study and what do they want to do?
 The child’s ability to contribute to her/his own support through part-time employment
o If only going to school PT, or even FT, may be able to have PT employment to pay
for other living expenses
o Again, obligation is on children first
 The child’s age
o 19 or 30 – in 30s and on their 3rd degree
o Sometimes, court orders have been made where adult child's 3rd degree is paid for
by parents in late 20's – This shows age is relevant.
o ZJ: this is not common but what drives adjudicators to make those decisions is
based on adult's plan for schooling and career (whether it is clear and potentially
successful); and whether parents have financial means to pay for it.
 The child’s past academic performance and whether the child is demonstrating success in
the chosen course of studies
o If failed math throughout high school but wants to pursue degree in math, is that a
reasonable expectation
o Past performance is taken into account
 The parents’ plan for the education of their children, particularly where those plans were
made during cohabitation, and
54
Not a strong factor if decided not to pay – but strong factor if decided to pay (ex.
contribution or RRSP)
o Pre-separation plans - did parents have RESP's, did they consider whether they
would or would not pay for parents' education?
o Some parents say at the outset that children will pay for own education b/c it is an
important life skill
o This is a consideration but NOT a strong factor, but only strong if discussed in a way
like "we will pay for their education" – shows they turned their mind to it.
o Obligation is to support children, so there is a presumptive obligation to pay for
children. But, this can be rebutted if both parents agreed that they want children to
pay for own post-secondary education as a life lesson.
o Just need probability that parents discussed and agreed to a solution.
o Financial capacity of each parent is weighed against this.
In the case of a mature child, whether the child has unilaterally terminated the
relationship with the parent from whom support is sought
o Consider if child is estranged from parent(s)
o ZJ: don't know if this is fair or not but a judge will consider it.
o

Conditions can be put on orders - can ask for transcripts, contingent on students applying for
scholarships (this will depend on lawyer's drafting)
Is the person against whom order is sought obliged to pay child support?
Look @ defs
How much support should the child receive?
The court must first make a finding as to the payor's annual income, usually with the help of the
parties' financial information // and then fix the amount of support payable according to the
tables set out in the Child Support Guidelines based on the number of children and the payor's
income.
How long should the child receive support?
Most orders and agreements limit themselves by providing that child support shall be paid "until,"
for example, "the child is no longer a child of the marriage as defined by the DA," "the child is no
longer a child as defined by the FLA," or "the child reaches the age of 19."// The question of a
termination date for support usually only crops up where the child is an adult engaged in postsecondary studies or is otherwise "unable to withdraw from the charge" of his or her parents, and
the court must then consider the factors described earlier.
*Federal Child Support Guidelines*
Not legislation, just guidelines (that describe the rules that the courts must apply when making
an order for child support), but they should be followed unless there is good reason not to.
Objectives
1 The objectives of these Guidelines are
(a) to establish a fair standard of support for children that ensures that they continue to
55
benefit from the financial means of both spouses after separation;
(b) to reduce conflict and tension between spouses by making the calculation of child
support orders more objective;
(c) to improve the efficiency of the legal process by giving courts and spouses guidance in
setting the levels of child support orders and encouraging settlement; and
(d) to ensure consistent treatment of spouses and children who are in similar
circumstances.
Amount of Child Support
If make less than $20,000, then don’t pay child support.
Roadmap: determine the appropriate scenario
1. Primary parent: one parent has kid more than 60%, other has less than 40%. Parent will
pay child support based on table amount by the parent who has less time. Where does the
child live primarily (i.e. primary residence)?
2. Split custody: s. 8, what each ought to pay according to the table & parent that has to pay
more pays diff
o each must use the Child Support Guidelines to determine what they would owe the
other parent based on their own income level and the number of children living
with the other parent
3. Shared custody/parenting: each parent caring for child 40% or more (e.g. 50-50). 3 factors
to consider (s. 9):
a) Start with table - determine what difference from table based on parties' income
b) Consider if there are additional costs for either parent to exercise the shared
custody (often not a factor b/c live in the same community)
c) Then look at "conditions, means, needs and other circumstances of each spouse"
and the children, and household income. This weighs heavily on judge's discretion
to determine amount of payment for each parent – there is no clear formula
Presumptive rule
3 (1) Unless otherwise provided under these Guidelines, the amount of a child support order for
children under the age of majority is
(a) the amount set out in the applicable table, according to the number of children under
the age of majority to whom the order relates AND the income of the spouse against
whom the order is sought; AND
(b) the amount, if any, determined under section 7
o This is the additional support paid above and beyond basic child support amounts
3(2) if child over ager of majority (a) same as under or (b) amount court considers appropriate*
Incomes over $150,000
4 Where the income of the spouse against whom a child support order is sought is over $150,000,
the amount of a child support order is
(a) the amount determined under section 3; or
(b) if the court considers that amount to be inappropriate [too high or too low],
56
(i) in respect of the first $150,000 of the spouse’s income, the amount set out in
the applicable table for the number of children under the age of majority to whom
the order relates;
(ii) in respect of the balance of the spouse’s income, the amount that the court
considers appropriate, having regard to the condition, means, needs and other
circumstances of the children who are entitled to support and the financial ability
of each spouse to contribute to the support of the children; AND
(iii) the amount, if any, determined under section 7.
What is the meaning of "inappropriate" under s. 4(b) of the Guidelines?
Francis v. Baker [1999] 3 S.C.R. 250
Facts: The parties were married in 1979; 2 children // Mr. Baker was a lawyer in a large Toronto
law firm; Ms. Francis was a high school teacher // The parties divorced in 1987. They reached a
separation agreement wherein Ms. Francis was paid $30,000 in child support a year // In 1988,
Ms. Francis applied for an increase in child support and 9 years later when the matter reached
trial, she amended her pleadings to claim child support under the Guidelines // At the time of trial,
Mr. Baker earned $945,538 per year with a net worth of $78 million. Ms. Francis earned $63,000 a
year // The trial judge ordered child support of $10,034 a month; the appeal court dismissed Mr.
Baker’s appeal // SCC left judgement as it
SCC per Mr. Justice Bastarache:
 A proper construction of s. 4 requires that the objectives of predictability, consistence and
efficiency on one hand, be balanced with those of fairness, flexibility and recognition of
the actual “conditions, means, needs and other circumstances of the children” on the
other hand
o
o


Predictability/consistency: Important for parents to know what their obligations are
Actual conditions: need to consider what is best for the children and what is needed to
meet children's need
“Inappropriate” must be defined to mean “unsuitable” rather than merely “inadequate”
(as held by the ONCA) [leaving the courts the discretion to both increase and reduce the
amount of child support prescribed by its strict application].
Parliament intended there to be a presumption in favour of the Table amounts, so there
must be an “articulable reason” for displacing the Guideline figures, with relevant factors
differing from case to case
o
Need a reason to not follow guidelines - can't just use pure discretion, have to provide
justification
Held: Court of appeal interpretation of “inappropriate” is not upheld – downward variation of the
Guideline figure is permissible (i.e. parents earning more than $150,000 could argue for
reductions in child support awards under s. 4)
Does X qualify as special and/or extraordinary expenses under the Guidelines?
Special or Extraordinary Expenses
7 (1) In a child support order the court may, on either spouse’s request, provide for an amount to
cover all or any portion of the following expenses, which expenses may be estimated, taking into
account the necessity of the expense in relation to the child’s best interests AND the
reasonableness of the expense in relation to the means of the spouses and those of the child and
to the family’s spending pattern prior to the separation:
57

s. 7(1) consideration of the "means of the spouses" should be interpreted broadly as including all sources of income
available to the paying parent, including the income of a parent's new partner.
(a) child care expenses incurred as a result of the custodial parent’s employment, illness,
disability or education or training for employment;
(b) that portion of the medical and dental insurance premiums attributable to the child;
(c) health-related expenses that exceed insurance reimbursement by at least $100
annually, including orthodontic treatment, professional counselling provided by a
psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational
therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;
(d) extraordinary expenses for primary or secondary school education or for any other
educational programs that meet the child’s particular needs;
o
E.g. school trips, lunches at school
(e) expenses for post-secondary education; and

Farden v. Farden factors – look above
(f) extraordinary expenses for extracurricular activities.
o
Horseback riding – if kid did not engage in prior to the divorce & parents can’t afford, then probs kid is out of
luck
Notes




This is NOT a closed list, can have others. Parents can agree to others, but when courts
make an order, they'll look to the expenses in s.7 first (ex of s. 7 expenses: RRSP's, savings
for down payment for child's first home)
2 prong test: will consider necessity of expense related to best interests and
reasonableness.
o Ex. If child has gone to private school for all their life, parents separating, decide
can't have child in private school – then necessity threshold is likely met, since
there is history. Then, have to figure out whether reasonable or not – will depend
on parents' ability to fund private education. When parents separate, finances
usually weaken as there is no combined financial means.
Expenses could also be shared by parents each paying for one item (e.g. one pays private
education tuition and other pays hockey), but more common for parents to share
What if one parent thinks an expense is necessary? That parent will have to show
adjudicator that it is necessary (e.g. self-defence classes).
7(1.1) For the purposes of paragraphs 7(1)(d) and (f), “extraordinary expenses” means
(a) expenses that exceed those that the requesting parent can reasonably cover, taking
into account that spouse’s income and the amount that the spouse would receive under
the applicable table or, where the court has determined that the table amount is
inappropriate, the amount that the court has otherwise determined is appropriate; OR

Basic child support is meant to cover shelter, food, clothing; NOT private education and
extracurricular activities, or health expenses beyond what is covered by medical insurance (but
not all parents have medical insurance - need to consider this)
(b) where paragraph (a) is not applicable, expenses the court considers extraordinary
taking into account:
(i) the amount of the expense in relation to the income of the requesting spouse;


Do they want to share for sake of sharing or b/c actually unable to pay?
Ex. Halloween custom – stupid fight; not worth the $ you’d have to pay to L
(ii) the nature and number of educational programs and extracurricular activities
58

Consider if beneficial for child, or would activities be too much and children will burn out? – Already
engage in 4 activities and now want to play the piano
(iii) any special needs or talents of the children


Ex. if child is talented in guitar, may want to continue w/ it.
If parents can’t agree, child’s views become important
 This is where parenting coordinators (PC's) are very important!
 If he said/she said about what child wants, PC can find out from child what child really wants, and not
what the parent wants. This can avoid going to court.
(iv) the overall cost of the programs and activities

Dad had to drive to mom’s town, take kid to another town to play sports – judge gave order – ZJ: this is
what happens when you don’t consult
(v) any other similar factors the court considers relevant


Could be very subjective
E.g. sibling is doing activity and wants to join sibling
Sharing Section 7 Expenses
Court may order or parties may agree that:
 The parents share payment of section 7 expenses proportionately, based on their
respective incomes (most common approach) – 7(2)
o Formula: A earns 30% more than B, A pays 30% more than B
 Each parent pays for a set of expenses
o Ex. dad 100% responsible for piano lessons – unless bring an application of hardship
o E.g. dad pays for lacrosse for as long as child is interested in playing, mom pays for
tuition
 One parent pays less than what is required, based on each party’s income. For example,
each pays 50/50 although one parent ought to pay more than 50%
o Usually happens with shared parenting arrangements, when child lives semi- or
equally with parents, but one parent makes substantially more than other parent.
o Will consider income of new partner (not 100%) as the household income (don't
need to know for exam but need to know there is a formula to determine
proportion of income)

Subjective formula - court has discretion to decide the percentage breakdown
Split Custody
8 Where each spouse has custody of one or more children, the amount of a child support order is
the difference between the amount that each spouse would otherwise pay if a child support order
were sought against each of the spouses.
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Children aren't moving back and forth b/w parents but one parent has 1 and other parent has 2
E.g. mom, based on income of $50K, should pay $1K for each, and dad, based on income of $100K, is
supposed to pay $2K - dad would pay mom $1K
Split custody does not happen often b/c courts want to keep children together, but does happen
Shared Custody
What drives this is the child support payments - parents want to pay less, or parents think they
pay none (latter is false). For some parents, some genuinely want to spend more time!
Per Contino v. Leonelli-Contino (2005 SCC), to determine child support in shared custody
situations, there is a two-step test based on section 9 of the Guidelines:
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(1) First, determine: Does the parent cross the 40 percent threshold? To trigger s. 9,
access or parenting time of 40% or more over the course of a year must be met.
 Onus is on the parent seeking a change in child support to invoke s. 9 to establish care of
40% or more – ZJ: should be a split requirement/onus: seeking show why met; the other
show why not met
 There is a case that says 37% OK – but not 36%
 Look @criticism of section below
How is the 40% threshold time calculated?
Maulstaid v. Blair, 2009 BCCA 102 – have to follow s.9 whether you like it or not
Madam Justice Saunders said the following about the 40% threshold: @ para 21: Although
courts have bemoaned the imprecision of the section and expressed concern over the
consequences for children of the application of the section in certain circumstances, we are
not free to disregard the language enacted by Parliament, or to set as criteria for its
application aspects of the parties’ responsibility for the children not found in the Guidelines. @
para 25: There is no single method in determining the amount of time.
Some methods of calculating time include:
 Counting the hours each parent has with the children over a two-week period
 Counting the hours over a year, including during school and holidays
 Counting the number of hours in a typical week
 Counting the number of days
Class Notes:
 when kid @ school, is it parenting time? Arguable
o Yes: if something happens to child at school, one parent will be called parenting time
o No: child is at school, not with parent - not parenting time
 pilot dad wanted shared custody even though mom had kids for most of the time –
want to have the option of shared parenting available in case he is able to do so; he is
staying on the mortgage for the benefit of the kids, so why should he pay full child
support? – this is an example of how parents can agree to anything.
(2) What amount of child support should be paid given the factors under s.9?
9 Where a spouse exercises a right of access to, or has physical custody of, a child for not less than
40 per cent of the time over the course of a year, the amount of the child support order must be
determined by taking into account:
(a) the amounts set out in the applicable tables for each of the spouses;
(b) the increased costs of shared custody arrangements; AND
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There might not be any
Often may not be relevant b/c when agreements/orders are made about shared custody – want parents to be
in close vicinity with each other
ZJ: when drafting separation agreements, it contains a provision that says parents will remain in the same
community, unless they agree otherwise, so children can attend the same schools. This is important b/c don't
want children to commute across towns/communities
Child moving between 2 parents until kindergarten, but then parents had to live in the same community
I have to move b/c can’t afford to live in WV anymore & need a car  ex has to pay for ½ of insurance – this is
up to the discretion of the judge
(c) the conditions, means, needs and other circumstances of each spouse and of any child
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for whom support is sought (i.e. take into account household incomes – not just the
parent’s income, but also the income of the new spouse)

o
Mom & dad equal incomes – but mom’s husband made triple of each, so household income way higher than
dad’s – so mom had to cover more of the costs
ZJ: judges don't like to apply this case, and will often treat shared custody as split custody --> have parents pay
difference and not consider household income. This is unfortunate b/c household income should be considered
for both split and shared custody.
Section 9 requires the court to determine the amount of child support in accordance with the
three factors listed (once the 40 percent threshold is met) AND consider the following:
 The specific language of s. 9 warrants emphasis on flexibility and fairness to ensure that
the economic reality and particular circumstances of each family are properly accounted
for
 The weight given to each factor depends on the particular facts of each case
 There is no presumption of reducing or increasing the amount of child support payable;
there is no conclusive formula
NOTES:
same as shared parenting arrangement under FLA – have to look @ the whole year to determine
where child primarily resided – can’t just be like oh stayed w/ me for the whole summer - Judges
have a lot of discretion // ZJ: want a set formula to provide guidance
The “shared custody” provision, particularly the 40% threshold, has generated a significant
amount of litigation and been criticized as being arbitrary and causing conflict for parents – one
might limit the parenting time of the other to avoid reduction in child support while the other may
seek increased parenting time to reduce child support payments.
 I have kid more, so you have to pay me more
Before the Child Support Guidelines
Random application of rules for calculation of child support (Reference Martha Metzner’s
presentation) // With the introduction of the Guidelines in 1997 came a standardized National
system for calculation of child support // Recall objectives on Guidelines (see above)
Discussion questions: What issues can still be litigated in light of the Guidelines? s.9 and
determination of income
From Social justice perspective not fair – what if parent can’t afford to keep the child?
Metzner v. Metzner 2000 BCCA 474
 Good summary of the s. 4 principles (para 30)
 Presumption of the Table amounts – Table amounts are accurate and should be followed
 Can only be increased or decreased if party has rebutted the presumption – Onus is on
party who wants to change, and has to justify why court should deviate from guidelines
 Clear and compelling evidence for departing from Guidelines
 Factors for determining inappropriateness listed in s. 4(b)(ii)
 Focus is on the “centrality” of the actual situation of children – requires a balance
o Need to do a case-by-case assessment
o Just b/c a parent can pay $50K a month doesn't mean they should - need to
consider needs of children and other parent
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The objective is the maintenance of children rather than household equalization or spousal
support
o Factors considered for spousal support are very different from child support
o Child support is an obligation, whereas spousal support is not a right/obligation but
need to prove entitlement and that spouse ought to receive it
o ZJ: this is like equalization of household - if assessing based on standard of living in
household prior to separation, but after separation the standards of living are very
different, then there is a form of equalization b/c we want child to continue
benefiting (e.g. private education)
Court needs necessary information to determine inappropriateness – There must be some
evidence - e.g. receipts
Onus is on paying parent to show an expense is not reasonable (i.e. too high)
Note: basic point of child support is so that the child doesn’t live a double life.
Undue Hardship
Section 10 of the Child Support Guidelines allows parties to argue that the base amount of support
set out in the Guidelines tables is too low or too high and would cause undue hardship if the table
amount was paid. Payors will claim that the base amount is too high, while recipients will argue
that it is too low.
10 (1) On either spouse’s application, a court may award an amount of child support that is
different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that
the spouse making the request, or a child in respect of whom the request is made, would
otherwise suffer undue hardship (if the Guidelines table amount of child support is paid).
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Ex. can’t pay child support b/c have new kids – just b/c you have a new family, it doesn’t mean that you can forget about
your old family
Court will look at reasons: Is it b/c you had high expenses or b/c you were gambling?
Circumstances that may cause undue hardship
(2) Circumstances that may cause a spouse or child to suffer undue hardship include the following:
(a) the spouse has responsibility for an unusually high level of debts reasonably incurred to
support the spouses and their children prior to the separation or to earn a living;
o Could be as a result of the separation or a result of post-separation (then court will
look to source - gamble vs. good reason (high expenses due to separation))

E.g. one parent moved away and other parent now has to commute -->
increased costs
o Court has discretion to consider factors
(b) the spouse has unusually high expenses in relation to exercising access to a child;
(c) the spouse has a legal duty under a judgment, order or written separation agreement to
support any person;
(d) the spouse has a legal duty to support a child, other than a child of the marriage, who is
(i) under the age of majority, or
(ii) the age of majority or over but is unable, by reason of illness, disability or other
cause, to obtain the necessaries of life; and
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(e) the spouse has a legal duty to support any person who is unable to obtain the
necessaries of life due to an illness or disability.
10(3) – look @ standard of living
Circumstances for Variation
Material change of circumstances - not in provision but that's the wording used in case law --> if
original order is no longer appropriate
Section 14 of the Guidelines: For the purposes of subsection 17(4) of the Divorce Act, any one of
the following constitutes a change of circumstances (material change in circumstance) that gives
rise to the making of a variation order in respect of a child support order:
(a) in the case where the amount of child support includes a determination made in
accordance with the applicable table, any change in circumstances that would result in a
different child support order or any provision thereof;
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In reference to parties' income
Provide documents of parties involved and sources of income (e.g. T4's)
Always based on "last year's income" because courts can rely on tax documents and corporate documents;
unless there is a drastic event (loses job, or making much more within that year before agreement/order was in
place)
Yearly unless something drastic happens; ex. someone loses their job
(b) in the case where the amount of child support does not include a determination made
in accordance with a table, any change in the condition, means, needs or other
circumstances of either spouse or of any child who is entitled to support; and
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E.g. child living with one parent primarily, shared arrangement or split custody, and child has moved to other
household (parent who is paying child support). This is a material change in circumstances and child support
should change.
E.g. one parent has to care for child more due to illness/other circumstance since agreement/order, and cannot
be employed to capacity or make income - other parent should be paying more child support
(c) in the case of an order made before May 1, 1997, the coming into force of section 15.1
of the Act, enacted by section 2 of chapter 1 of the Statutes of Canada, (1997).
Determination of Annual Income – high conflict
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Area of high conflict in child support and family law
This is critical as people will have different sources of income
If employed, simple as you look at income and T4 (but want to ensure they are working full
time/at capacity if that's what they're supposed to be doing)
o Expectation is each parent will work at capacity and earn as much as capable of
doing so, or they would be underemployed and unacceptable
15 (1) Subject to subsection (2), a spouse’s annual income is determined by the court in
accordance with sections 16 to 20.
Agreement
(2) Where both spouses agree in writing on the annual income of a spouse, the court may consider
that amount to be the spouse’s income for the purposes of these Guidelines if the court thinks
that the amount is reasonable having regard to the income information provided under section
21.
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Both can agree – if other person has not reported accurately, as a L, you don’t have to report them to the CRA!
Calling the CRA not the best idea, b/c other spouse might be liable – Einstine v Einstine
Party can go back to court for variation
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Lack of financial disclosure is a commonly used ground for variation
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So parties should make an agreement after having getting full disclosure and having reviewed paper work
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Court also considers child support in a divorce application (has child been provided for adequately?)

Remember, child support is the right of the child - court won't grant divorce unless child is provided for and no
possibility of reconciliation
Guideline income is determined under ss. 16 to 21 based on the present year’s predicted income or the historical pattern
of income

Normally, just look at last year's income (as all documents are available for review), and choose one way so it is
consistent, unless last year's income was vastly different
All sources of income are included in the calculation (unless it is from a criminal source, e.g. drug trafficking)
Income may also be imputed where there has been a failure to comply with the disclosure obligations (s. 21 of
Guidelines)

Underemployed, unemployed - income may be imputed and court finds what the parent is capable of making
based on skills, historical income, retirement plans and other factors.

Once parent sets up a high standard of income, have to maintain that

E.g. corporate lawyer to legal aid for health reasons and altruism --> health counts, altruism doesn't

E.g. corporate lawyer to single practitioner --> seen as better reason than altruism, but there has to be a sense
that there is a business plan (believes practice will do well in the future and this is an investment)

PP: reason for this is people go from high paying jobs to lower incomes out of spite and don't want to pay other
spouse
Determining Income
Guideline income is determined under ss. 16 to 21 based on the present year’s predicted income
or the historical pattern of income.
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Normally, look @ last yr’s documents b/c available – adopt the same method
All sources of income are included in the calculation
Income may also be imputed where there has been a failure to comply with the disclosure
obligations (s. 21) – ex. if a parent is unemployed – once you have set a standard, you better meet
it – ex. high paid mom, can’t quit and become a legal aid lawyer
Roadmap
 s. 16 – based on “Total income” in T1 Income Tax General
 s. 17 – Pattern of income: using last three years and determining what is fair and
reasonable, including in light of fluctuations and non-recurring amounts
 s. 18 – for shareholders or directors of corporations, court can consider all or part of pretax income and amount commensurate with the service the payor provides to the
corporation
 s. 20 – for non-resident payor, as if person were resident of Canada
Calculation of Annual Income
16 Subject to sections 17 to 20, a spouse’s annual income is determined using the sources of
income set out under the heading “Total income” in the T1 General form issued by the Canada
Revenue Agency and is adjusted in accordance with Schedule III.
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Look into other sources too – are they being paid cash? INVESTIGATE – look @ bank account statements
ZJ: don’t always follow this
Some lawyers also consider non-reported income (income earned in cash)
May have to investigate and look into bank account statements
Pattern of Income
17 (1) If the court is of the opinion that the determination of a spouse’s annual income under
section 16 would not be the fairest determination of that income, the court may have regard to
the spouse’s income over the last three years and determine an amount that is fair and
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reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring
amount during those years.
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Generally, look @ last 3 yrs
Important for parents who don't make consistent money
People who make commission, sole practitioners, business people - income will vary over years
Shareholder, director or officer
18 (1) Where a spouse is a shareholder, director or officer of a corporation and the court is of the
opinion that the amount of the spouse’s annual income as determined under section 16 does
not fairly reflect all the money available to the spouse for the payment of child support, the
court may consider the situations described in section 17 and determine the spouse’s annual
income to include
(a) all or part of the pre-tax income of the corporation, and of any corporation that is related
to that corporation, for the most recent taxation year; or
(b) an amount commensurate with the services that the spouse provides to the corporation,
provided that the amount does not exceed the corporation’s pre-tax income.
Adjustment to corporation’s pre-tax income
(2) In determining the pre-tax income of a corporation for the purposes of subsection (1), all
amounts paid by the corporation as salaries, wages or management fees, or other payments or
benefits, to or on behalf of persons with whom the corporation does not deal at arm’s length must
be added to the pre-tax income, unless the spouse establishes that the payments were reasonable
in the circumstances.
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Just know this section exists - likely won't be questioned
Lawyers hire financial advisors/evaluators to do financial assessments to look at corporate records and financial
statements to determine income that should be paid
Imputing Income
Income is imputed based on your income earning capacity!
S. 19 – the Court may impute income as it considers appropriate in the circumstances, including
(a) Payor is intentionally under-employed or unemployed (look @Koch)
(b) Payor is exempt from paying federal or provincial income tax
(c) Payor lives in country with lower tax rate
(d) It appears income has been diverted which would affect level of child support payable
(income splitting w/ a new spouse is the most common – there is nothing illegal about this)
(e) spouse’s property not reasonably used to generate income
(f) Payor failed to provide income information
(g) Payor unreasonably deducts expenses from income
(h) Payor derives significant portion of income from dividends, capital gains or other
sources taxed at a lower rate or exempt from tax
(i) Payor is a beneficiary under a trust and is or will receive income from the trust
When is income imputed?
Koch v. Koch, 2012 BCCA 378
General principles (para 36):
 Parents who are healthy and can work have a duty to seek employment
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Reasonable income-earning capacity will be based on parent’s age, education, skills,
health, and on-the-job experience
Limited experience and skills do not justify a failure to pursue employment – can’t just wait
for the best job (can’t just wait around for a job, have to go out there even if it means
working at a min wage job)
Persistence in unremunerative employment may entitle the court to impute income.
A parent cannot be excused from his or her child support obligations in furtherance of
unrealistic or unproductive career aspirations.
Is income from illegal activity imputed?
S.A.B. v. C.D.B. 2004 BCSC 314
Facts: The defendant is a drug trafficker. He has a long criminal record (including living off the
avails of prostitution), having earned virtually all his income during the marriage from trafficking
(his “work” as it was referred to during the trial.) He says that he has not trafficked since about
when this action was started. He faces an enormous assessment of income tax arrears – between
$200,000 and $300,000 – which he is contesting. The plaintiff has been an exotic dancer since
before she met the defendant. She now has a cleaning job in a hospital in Victoria although she
supplements her income a bit by some dancing.
Issue: What income should be attributed to the defendant?
Reasoning: In this case I have to “impute” income to the defendant for the purpose of child
maintenance pursuant to s. 19 of the Federal Child Support Guidelines. Needless to say I hesitate
to impute it on the basis of what I might determine (if I could) that he can earn as a drug
trafficker. I am concerned that the court would appear to be encouraging or requiring him to
continue his criminal activity. I will calculate and impute it the best I can on the basis of his legal
earning power. At trial, the defendant insisted and his friends, the A.s., agreed that he is quite
capable of earning a good income legally. How he has been making money since the separation is
somewhat mysterious although he talks of doing so by “buying and selling things”.
The court is divided on this. ZJ: leans toward imputing income! It is a choice b/c otherwise, letting
people off the hook.
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Division of Property
THE FLA MADE A NUMBER OF CHANGES THAT ARE PARTICULARLY IMPORTANT FOR PROPERTY
AND DEBT DIVISION, INCLUDING THE APPLICATION TO CL AND MARRIED SPOUSES, REDEFINING
FAMILY PROPERTY, AND ETC. ANY ISSUES RELATING TO PROPERTY AND DEBT OCCUR AT THE BCSC
LEVEL BECAUSE PROVINCIAL COURTS DO NOT HAVE JURISDICTION OVER PROPERTY AND DEBT.
Who can make a claim?
Definitions:
 Family Property
 Excluded Property
 Family Debt
Division: equal / unequal
Valuation Date
The Family Law Act (FLA) replaced the Family Relations Act and became law on March 18, 2013.
Objective: reduce litigation and encourage out of court settlement.
The FLA made a number of changes that are particularly important for property and debt division,
including:

Application to common law and married spouses alike

Redefining what is family property

Redefining property division & includes division of family debt

Judicial interpretation – difficulties
Family Law Act – Part 5
If exam Q on division of property, say: go to part 5 and the court has jurisdiction per s.97(2)(a).
Section 97(2)(a): This section says that the Supreme Court can make declarations concerning the
possession and ownership of property and can make orders that may be necessary to give effect
to such declarations.
Section 106: This section says when the courts of British Columbia have the authority to divide
property and debt if there is another court that can also make orders dividing property and debt
between the same spouses.
(2) Supreme Court has authority if one of the following is met:
(a) counterclaim to another proceeding in the SC
(b) both spouses agree to SC jurisdiction
(c) either spouse is habitually resident in BC @ the time proceeding started
(d) there is a real & substantial connection w/ BC – under (3) real substantial
connection is presumed if: (a) property located in BC, or (b) the most common
habitual residence of the spouses was in BC, or (c) a notice of family claim issued
under DA
(4) court can decline if considers it more appropriate for jurisdiction to be exercised
outside of BC – factors that it will consider are in (5)
Section 81: This section states the basic principle that when spouses separate, each spouse takes a
one-half interest in family property as a tenant in common, and each becomes responsible for
one-half of the family debt. This is the starting point!
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So if husband dies, his half goes to his estate – just severe it
Does FLA sever tenancy upon separation? Yes
Sections 84 and 85: These sections tell you how to figure out which property is family property
and which property is excluded property.
Section 94(1): This section gives the court the authority to make orders for the division of property
and debt between spouses.
Sections 95 and 96: These sections say when the court may divide excluded property between
spouses and when it may divide family property unequally.
Section 109(1): This section allows the court to make orders for the ownership and division of
property outside of British Columbia.
 In these cases, court cannot make an order w/ respect to property outside of BC, but CAN
divide ppty in BC in a different way to account for the fact that one spouse owns property
outside of BC
 Can allocate more money in BC when there is something of value outside of province
Interestingly, there isn't a section that explicitly says "the court should make orders dividing family
property and family debt equally"; you have to figure this out from s. 81, which says that each
spouse should have half of the family property and family debt, and from s. 94, which says that
the court can make orders dividing family property and family debt.
Who can Make a Claim?
Only a spouse can make a claim to property and debt division under the FLA. A spouse is defined
as (Section 3 of the FLA)
 Married individuals; or
 those that have lived together in a marriage-like relationship for a continuous period of at
least 2 years
o “living together” not necessary – other indicia of “marriage like relationship”
 A spouse includes a former spouse
Exception to spouse definition
Spouse definition – parties who have had a child together – this is relevant only for the purpose of
support (exception – not spouses for the purpose of property and pensions division)
Live together and have a child, then spouse and can get support BUT NOT FOR PROPERTY
DIVISION.
Presumption
The FLA starts w/the presumption found in s. 81 – each spouse is presumptively entitled to an
undivided half interest in all family property, regardless of their respective use or contribution.
Nonetheless, the scheme under FLA contemplates judicial discretion to depart from an equal
division. This discretion is recognized in s.81 and further articulated in s.95. Section 95 defines
both the test and the factors for court to consider in exercising its discretion.
[Policy]: as described by the court in Jaszczewska the statutory intent is to constrain the
exercise of judicial discretion. The test of “significant unfairness” imposes a more stringent
threshold than the mere “unfairness” test of the FRA to allow unequal division by a court. As Mr.
Justice Butler observed in Remmem v. Remmem “significant” is defined as “extensive or
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important enough to merit attention” and the term refers to something that is “weighty,
meaningful or compelling.” He concluded that to justify an unequal distribution “[i]t is necessary
to find that the unfairness is compelling or meaningful having regard to the factors set out in s.
95(2).” The Legislature intended the general rule of equal division to prevail unless persuasive
reasons can be shown for a different result.
Equal entitlement & EQUAL RESPONSIBILITY!
FLA Section 81: subject to an agreement or an order
 equal entitlement to family property and equal responsibility for family debt, regardless of
use or contribution
 on separation***, each spouse has a right to an undivided half interest in all family
property as a tenant in common, and is equally responsible for family debt.
o Entitlement arises on separation
EXCEPTION! FLA Section 95 - a court may order unequal division of family property and/or family
debt if it would be SIGNIFICANTLY UNFAIR to equally divide these between the spouses.
Under the current Act, harder!!!!
Applies to married and common law spouses alike!!!
Beginning a Relationship
Under s. 3(3) of the FLA, a relationship between spouses begins on the earlier of the following:
(a) the date on which they began to live together in a marriage-like relationship;
(b) the date of their marriage.
Since the definition of spouse at s. 3(1)(b)(i) includes people who have lived together "for a
continuous period of at least 2 years," once you have reached the two-year mark:
1. you and your partner are spouses, and
2. your relationship as spouses began two years earlier, on the date you began to live
together.
What is Separation?
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Discussion of date of separation
Indicators of separation: living separately, written notice, separate bedrooms, living
separately
Living together in the same house
Disputes over date of separation
What do you advise your clients to do if they want to clarify date of separation?
Date of Separation
To separate, one spouse should announce the end of the relationship and then take steps that
would demonstrate an intention to end the relationship.
FLA Section 3(4)
(a) spouses may be separated despite continuing to live in the same residence, and
 Saw an example of this in Wong v Rooney (dad arguing move to Schelte no bigi)
(b) the court may consider, as evidence of separation,
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(i) communication, by one spouse to the other spouse, of an intention to separate
permanently, and
(ii) an action, taken by a spouse, that demonstrates the spouse's intention to separate
permanently.
It will happen as long as one person wants it – don’t need to agree on it!
Note – living separately may not be sufficient to indicate intention to separate.
Importance of Date of Separation
Acts as a triggering event – the point in time when the joint financial unit of the spouses is divided
into two individual financial units
 Presumption is equal division triggered by separation, but it will depend on type of
property
Exception: assets bought with family property/debts incurred for family purpose
 Separate sell house and buy a boat – bought w/ family property
 Husband flakes out and you incur debt – family debt
Advice to clients – deliver written notice of intention to separate
Reconciliation – impact on date of separation
FLA Section 83 (1) spouses are not considered to have separated if, within one year after
separation,
(a) they begin to live together again and the primary purpose for doing so is to reconcile,
and

Moving back to take care of sick kid doesn’t count
(b) they continue to live together for one or more periods, totaling at least 90 days.
Is There an Agreement?
Karen: do a cohabitation agreement or marriage agreement if you want to avoid problems!!!
Spouses are free to enter into agreements dealing with their assets in the event their relationship
terminates: FLA s. 92. The parties did exactly that when they entered into …
This is similar to the agreement in Bell v Stagg (Husband (wrote travel articles) put house in wife’s
(life coach) name to trick CMHC), where the parties did not consider what would happen when the
Chilliwack home was sold and a new home purchased. The court in Bell found that the terms
“rolled over” to the new property. Thus, it is likely that the terms of the agreement at issue in this
fact parent will be rolled over as well. Also, remember credibility super important – court in Bell
didn’t find the wife super credible.
Courts can’t make orders respecting property subject of an agreement (94(2)), unless all or part of
an agreement is set aside under 93(3). Courts have jurisdiction to set aside an agreement only if
satisfied that the claimant either failed to disclose significant property or other relevant
information, took improper advantage of the respondent, or if the respondent did not understand
its nature or consequences, or other circumstances that would make it voidable: FLA s. 93(3). Even
if these circumstances exist, court may nonetheless decline to set an agreement aside if the
evidence would not justify a substantially different order: FLA s. 93(4). The court also has
jurisdiction to set aside the agreement if it is satisfied it is substantially unfair: FLA s. 93(5).
 Need to lead reliable evidence – wife in Bell did not satisfy the criteria of s.93(3): although
reluctant, she signed. She was not threatened by husband – confirmed by daughter’s
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evidence that mom was not emotional, upset or otherwise under duress when she signed.
Also, agreement made it clear that he DID NOT INTENT the payment to be a gift.
Categorization of Property
Family Property
The FLA defines family property in s. 84. The definition of “family property” in s. 84 has been said
to establish a “communal pot” (P.G. v. D.G.) from which only excluded property is removed. The
definition in s. 84(1)(a) is very broad, reaching all property owned or beneficially owned by “at
least one spouse” on the date of separation. Section 84(1)(b) then extends the reach of the
definition to property or a beneficial interest acquired after separation if it was “derived from”
property described in s. 84(1)(a). Section 84(2) confirms the inclusion of various forms of property
as well as:
(g) the amount by which the value of excluded property has increased since the later of the
date
(i) the relationship between the spouses began, or
(ii) the excluded property was acquired.
Excluded Property
Property which is excluded from family property is that which was acquired by one of them prior
to the relationship (s. 85(1)(a)), inheritances of either of them (s. 85(1)(b)), gifts to them from a
third party (s. 85(1)(b.1)), or settlements or awards of damages for injury or loss unless the
settlement or award represents compensation for a loss to both spouses or lost income of a
spouse (s. 85(1)(c)). Per s. 85(2), the onus is on the person claiming the asset is an excluded
property.
Division
The consequence of the categorization of property as either family property or excluded property
is that on separation, each spouse is generally entitled under s. 81 to an undivided half interest in
family property as a tenant in common. Per s.95(1), the court may divide family property
unequally only if equal division would be “significantly unfair” having regard to all the factors
listed in ss. 95(2) and (3). Excluded property in contrast must not be divided unless it would be
significantly unfair not to divide it having regard to only two factors – the duration of the parties’
relationship and any direct contribution by a spouse to the preservation or maintenance of the
property (s. 96(b)).
Argue excluded property. If it doesn’t work, then argue unequal division!
What is Family Property?
FLA Section 84 family property includes all real and personal property, unless it is excluded
property then only the increase in the value of the asset during the relationship is family property.
84(1) Includes any property that:
 (a) on the date of separation, is owned by at least one spouse, or in which at least one
spouse has a beneficial interest; and/or
o if you have a bank account in the name of your mom, then family property
 (b) after separation, was acquired by at least one spouse, or in which at least one spouse
acquires a beneficial interest, that is derived from the family property
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
o ex. buying a boat after selling a house
Ownership not necessary
o putting in the name of a numbered company
84(2)(2.1)(3) Family property may include:
 Real estate/land
 a share or an interest in a corporation
 money of a spouse in an account with a financial institution
 a spouse’s entitlement under an annuity, a pension, a retirement savings plan or an income
plan
o prepaying CRA
 that part of trust property contributed to by a spouse in which:
o the spouse is a beneficiary, and has a vested interest in that part of the trust
property that is not subject to divestment,
o the spouse has a power to transfer to himself or herself that part of the trust
property, or
o the spouse has a power to terminate the trust and, on termination, that part of the
trust property reverts to the spouse.
o If the spouse is one of many and they have not control, then it is not family
property – all you need to know is power and control
What is Family Debt?
When did X incur debt? Before, during, after?
If after – Before the post-separation increase in X can be classified as a family debt, Y must prove
that it was incurred for the purpose of maintaining family property: FLA s.86
FLA section 86
 All financial obligations incurred by either spouse during the course of the relationship
(date of cohabitation/marriage to date of separation) are family debts subject to equal
division
o Start living Jan1, 2014 – property division starts as of the date you start living
together
o Husband in Bell agreed that he was responsible for ½ of wife’s operating line at the
date of separation
o In Wong v Rooney, Ms. W couldn’t prove a legitimate family debt for unpaid rent
 Debts incurred post separation are excluded, unless incurred for the purposes of
maintaining family property
o Vacation to Vegas is not family debt, but paying mortgage on the house is
o In Bell, increase in debt since date of separation was not for purpose of maintaining
family property and under s. 86, husband was not responsible for it. Wife alleged
increased LOC to make ends meet for daughter's medical needs (but no evidence to
support the medical needs)
 Pre-relationship debts are excluded
o ex. student loans
Discuss: practicality of being able to prove existence of debts in long marriages. Onus is on person
seeking exclusion/exception
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What is Excluded Property?
Can K out by way of an agreement
X would be entitled to $Y of the amount as excluded property pursuant to s. 85(1)(?)
FLA Section 85
 property that existed prior to relationship
 gifts or inheritances to a spouse
o gift from spouse is not a gift from a third party (look @ VJF)
 a settlement or an award of damages to a spouse as compensation for injury or loss
(unless … income etc.) – loss of income can be used to pay support
 money paid or payable under an insurance policy (unless … income etc.)
 property held in a discretionary trust
o to which the spouse did not contribute,
o of which the spouse is a beneficiary, and
o that is settled by a person other than the spouse;
 property derived from excluded property or the disposition of excluded property
o
If want to exclude property, need to trace and have proof of where it went
NOTE: case law clarifies FLA is not a complete code, what does this mean?
EXCEPTION: the amount by which the value of excluded property has increased in value since the
later of the date
 the relationship between the spouses began, or the excluded property was acquired.
 the increase in value is family property
Discussion: give examples of growth in value of excluded property. How would you prove this?
How would you advise your clients to protect against sharing growth in value of Excluded
property?
Can you get Unequal Division?
FLA 95 (1) The Supreme Court may order an unequal division of family property or family debt, or
both, if it would be SIGNIFICANTLY UNFAIR to (a) equally divide family property or family debt, or
both, or (b) divide family property as required under Part 6 [Pension Division].
 Depends on the circumstances of the case – this is a very high burden
Factors to Consider (2) For the purposes of subsection (1), the Supreme Court may consider one
or more of the following:
(a) the duration of the relationship between the spouses;
o A really long relationship would weigh towards unequal division
(b) the terms of any agreement between the spouses, other than an agreement described
in section 93 (1) [setting aside agreements respecting property division];
o Any form of unwritten agreement - and maybe if everyone knows about agreement
o Everyone knew the West Van property was his
(c) a spouse's contribution to the career or career potential of the other spouse;
o Putting other party through med school
(d) whether family debt was incurred in the normal course of the relationship between the
spouses;
o My spouse has a gambling problem or spouse likes to invest
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(e) if the amount of family debt exceeds the value of family property, the ability of each
spouse to pay a share of the family debt;
(f) whether a spouse, after the date of separation, caused a significant decrease or
increase in the value of family property or family debt beyond market trends;
o Spouse wanted to sell in Nov, but other one went on Vacation – value significantly
dropped // Spouse trashes house // Unequal contributions that increase value
o Argue conduct of spouse led to the loss
o Jaszczewska(husband decides to demolish house)
(g) the fact that a spouse, other than a spouse acting in good faith,
(i) substantially reduced the value of family property, or
(ii) disposed of, transferred or converted property that is or would have been family
property, or exchanged property that is or would have been family property into
another form, causing the other spouse's interest in the property or family property
to be defeated or adversely affected;
(h) a tax liability that may be incurred by a spouse as a result of a transfer or sale of
property or as a result of an order;
o Capital gains tax
o If client is getting an asset with tax or deferred tax liability, need to ensure client
gets more of the family property
(i) any other factor, other than the consideration referred to in subsection (3), that may
lead to significant unfairness.
o General discretion
Jaszczewska v Kostanski: Considerations in s.95 are not a closed list (ex. court considered equal
contribution, even though not specified on the list) (husband decides to demolish house).
(3) The Supreme Court may consider also the extent to which the financial means and earning
capacity of a spouse have been affected by the responsibilities and other circumstances of the
relationship between the spouses if, on making a determination respecting spousal support, the
objectives of spousal support under section 161 [objectives of spousal support] have not been
met.
 E.g. military spouse, no ability to generate equity in property; spouse subject to significant
abuse and can't do so
 If spouse is unwilling to pay spousal support, order unequal division --> catch all for
dividing property unequally
96 (b) = this section is for unequal division of excluded property
SIGNIFICANT UNFAIRNESS
The Family Law Act has made it more difficult to divide Excluded Property by raising the bar to one
of Significant Unfairness so that under the FLA, equal division occurs unless it would be
significantly unfair to do so. This section of the FLA has been interpreted by the courts as a
“caution against departure from the default of equal division in an attempt to achieve perfect
fairness.”
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In L.G. v R.G. 2013 BCSC, the court said that “only when equal division brings consequences
sufficiently weighty to render an equal division unjust or unreasonable should a judge depart
from the default equal division.”
An analysis of the cases that consider this issue leaves us to advise our clients that the issue of
significant unfairness needs to be dealt with on a case by case basis, which for me, always brings
me back to my initial advice to clients: do a Cohabitation Agreement or Marriage Agreement if you
want to avoid problems in the future.
Jaszczewska v Kostanski: equal division unless there is very persuasive evidence otherwise –
Remmen significant refers to something that is “weighty, meaningful or compelling” – One can say
that reapportionment will require something objectively unjust, unreasonable or unfair in an
important or substantial sense.
Valuation
Section 87 provides that the value of family property is determined @ the date of the hearing,
although a court has discretion to depart from that date.
FLA Section 87: Unless an agreement or order provides otherwise and except in relation to a
division of family property under Part 6 (Pensions),
 the value of family property must be based on its fair market value, AND
 the value of family property and family debt must be determined as of the date
(i) an agreement dividing the family property and family debt is made, or
(ii) of the hearing before the court respecting the division of property and family debt.
Jaszczewska v Kostanski: Valuation of property is as of date of trial – not date of completion of
property (as wanted by wife); not date of separation (as wanted by husband) // (husband decides
to demolish house)
Discussion
Parties separate in 2014 and do nothing for two years, what problems could there be in terms of
valuation dates at trial in 2016?
 One spouse is good with documentation and other does nothing
 One spouse is contributing to RRSP/RESP and other doesn't
One spouse lives in house and pays all expenses and value goes up significantly, do they share
current value? Yup
 Both will get 50% of increase
 Market trend, spouse who has been contributing had benefit of living there
What about RRSP’s if one party has contributed post separation?
 If parties have been one financial unit for the 2 years, family money is in the pool --> that's
why date of valuation is date of trial. FLA presumes parties will continue to be one financial
unit.
What if one party has saved their money and one party has spent all of theirs?
Before Agreement or Final Order is Made
What can you do in the mean time?

E.g. FL case, trial is in 2 years, need relief in the meantime --> that is the point of an interim
order
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Orders for interim distribution of property: FLA Section 89: If satisfied that it would not be
harmful to the interests of a spouse and is necessary for a purpose listed below, the Supreme
Court may make an order for an interim distribution of family property that is at issue under this
Part to provide money to fund
(a) family dispute resolution, (ex. pay for family law L)
(b) all or part of a proceeding under this Act, or
(c) the obtaining of information or evidence in support of family dispute resolution or an
application to a court
This section is commonly used to get interim relief. As a lawyer of a client who is high-income,
should put aside money for that spouse for legal representation - don’t want self-rep, will help
make file easier to deal with and to get good resolution
Discussion: when would you need to make an application for this? Interim application (before the
trial when spouse needs finances)
Temporary orders respecting family residence: FLA Section 90: The Court may make an order
granting a spouse, for a specified period of time,
(a) exclusive occupation of a family residence, or
(b) possession or use of specified personal property stored at the family residence,
including to the exclusion of the other spouse.
(3) An order under this section does not
(a) Authorize a spouse to materially alter the substance of the family residence or personal
property,
(b) grant to a spouse a proprietary interest in the family residence or personal property, or
(c) subject to subsection (4), grant to a spouse any right that continues after the rights of
the other spouse, or of both spouses, as owner or lessee are terminated.
Rights remain the same, but giving someone the right to use the property.
Can’t just get them off property b/c you don’t like them // wife pulled a gun on husband – worked!
What if there are charges in the FL case? Or before charges are made (but spouse is arrested)?
 Judge may make order with caution against spouse (and exclude spouse from residence).
But can argue against that and say there is a presumption of innocence - but courts likely
will make order out of caution
 KR: depends on the charge, depends on the circumstance
 Court will also look to what is practical
In Wong v Rooney(dad arguing move to Schelte no bigi), Ms. W sought an order that Mr. R vacate
the residence. Judge wrote that he intended to make such an order, and explained that the
parties’ current situation of living separate and apart in the same residence is untenable and has
created unnecessary tension and stress for the child. Moreover, it is simply not feasible to
construct any sensible order without a proper time frame in which this is to occur. But Ms. W
didn’t make an application under s.90, so court relied on s.218 to make an order requiring R to
vacate. Section 218 of the Family Law Act gives this court considerable discretion to include in an
order any terms or conditions considered appropriate in the circumstances.
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Temporary orders respecting protection of property: FLA Section 91
(1) On application by a spouse, the Supreme Court must make an order restraining the other
spouse from disposing of any property at issue under this Part or Part 6 [Pension Division] until or
unless the other spouse establishes that a claim made under this Part or Part 6 will not be
defeated or adversely affected by the disposal of the property.
 Really easy to get
Interim Orders: (2) The Court may make one or more of the following orders:
(a) for the possession, delivery, safekeeping and preservation of property;
(b) for the purpose of protecting the applicant's interest in property from being defeated or
adversely affected,
(i) prohibiting the other spouse from disposing of, transferring, converting, or exchanging
into another form, property in which the applicant may have an interest, or
(ii) vesting all or a portion of property in, or in trust for, the applicant.
 KR: essentially these are orders to stop people from doing stupid things (e.g. change dental
insurance; padlocks)
(3) The Supreme Court may make an order under this section before notice of the application is
served on the other spouse, or may order that notice of the application be served on the other
spouse.
(4) Despite section 215 (2) [changing, suspending or terminating orders generally], the Supreme
Court may change, suspend or terminate an order made under this section.
Part 6 Pension Division






When employed, some of the earnings goes into savings --> makes sense for it to be in
family property
KR: when making agreement, need to get specific clause on pension from agreement
Pensions are family property – Date of cohabitation to date of separation!
Part 6 of the FLA deals with the division of pensions
There are numerous provisions detailing how to effect the division of pensions
All you need to know is the above
Caselaw
What do you need to know? You need to be able to discuss the relationship between the FLA as a
code and the application of the code by the Court of appeal.
You need to know the nature of the conflicting cases in 2016 and the 2016 BC Court of Appeal
cases that have clarified the issue on division of excluded property in BC
2016 conflicting cases
First, we had Asselin v Roy 2013 BCSC, that told us if you could trace your excluded property
(with documents and other evidence), then you could keep it as your separate property.
 Put in on your mortgage, it doesn’t matter as long as you can trace it
Then, we had Remmem v Remmem 2014 BCSC, in which the husband was allowed to keep the
value of his excluded property, even though it had been sold and the funds used towards the
purchase of the party’s new house. From this case we were reassured that our clients could
comfortably use their excluded property, or funds derived from their excluded property to
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purchase property jointly with their spouse, and they would not automatically lose their
exclusion.
A line of cases followed Remmem, including P.G. v D.G. 2015 BCSC, which basically said, “once
property is excluded it is always excluded”. Practical use of inheritance to reduce mortgage etc.
But then came Wells v Campbell 2015 BCSC, which contradicted the Remmem and P.G. decisions
and found that the husband had lost the ability to claim his exclusion by putting property into
joint names with his wife.
 KR: this was unbelievable!!! But it was at BCSC and of a court of similar level, so both lines
of cases were argued
In the fall of 2015, following the trial in V.J.F. v S.K.W. aka S.K.F. 2015 BCSC, followed the line of
reasoning in the Wells v. Campbell case and the husband lost his exclusion of $2,000,000 by
purchasing a property with his inheritance and putting it into the sole name of his wife.
 Have to divide 50-50
 Court talked about presumption of advancement – he tried to rebut by arguing just wanted
to protect from creditors
 Court found that the husband, in putting the $2,000,000 inheritance into a house and
putting it into the sole name of his wife, had gifted that property to his wife and could not
then later claim that property as his excluded property. The husband’s evidence at trial
was that the purpose of his ‘gift’ was to protect the property from creditors, but the Court
said he could not have it both ways, meaning he couldn’t give it to her for one reason and
then get it back for another. The ‘gift’ of the $2,000,000 property to the wife was found to
be Family Property, not Excluded Property as claimed by the husband, and it was subject to
equal division between the parties. BCCA agreed w/ BCSC!
Court of Appeal to the rescue
FLA is not a complete code and must look at the intentions of the parties and or their parents or
relatives at the time the inheritance was received or property transferred to determine whether
can claim as excluded property.
BCCA issues two cases to clarify division of excluded property.
Cabezas v. Maxim, 2016 BCCA
Facts: The parties met in 2005, began living together in 2006, 2007 purchased property together (a
trailer), Mr. Maxim paid a $56,000 down payment. The balance of the purchase was funded
through a mortgage of $256,000. The parties struggled financially so Mr. Maxim’s parents paid a
total of $187,349 to discharge the mortgage, without any written agreement or loan document.
After separation in 2013 and following the sale of the family residence, Mr. Maxim argued that the
net sale proceeds of $196,070 were his excluded property. Mr. Maxim’s mother testified at trial
that she intended the money to be given only to her son as an advance on his inheritance, and not
to the couple together.
 Mom had no evidence – ex. if she had two sons and gave both of them $ at the same time
could have helped her
In the absence of any contemporaneous evidence suggesting the payments were loans, as well as
the manner in which she gave money to her other children, the trial judge concluded that the
funds were given as a gift intended to benefit both parties (at para. 67). The judge found that the
mother’s intention to provide the funds as an advance on her son’s inheritance were found to
have been made after the gifts had been made, therefore they were not excluded property.
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Mr. Maxim appealed the trial decision and on February 23, 2016 the B.C. Court of Appeal handed
down this first decision which confirms that the Family Law Act is NOT A COMPLETE CODE,
meaning that the common law principles can still be considered in each case. Madam Justice
Garson, at paragraph 38 clearly states that the common law provides interpretative context to the
Family Law Act.
 Presumption of advancement does not operate with respect to adult kids (court cites
Pecore)
V.J.F. v S.K.W. 2016 BCCA 186
In April of 2016, BCCA handed down the V.J.F decision, and provided clarification regarding the
state of the law on excluded property. The Court found that the husband, in putting the
$2,000,000 inheritance into a house and putting it into the sole name of his wife, had gifted that
property to his wife and could not then later claim that property as his excluded property.
The husband’s evidence at trial was that the purpose of his ‘gift’ was to protect the property from
creditors, but the Court said he could not have it both ways, meaning he couldn’t give it to her for
one reason and then get it back for another. The ‘gift’ of the $2,000,000 property to the wife was
found to be Family Property, not Excluded Property as claimed by the husband, and it was
subject to equal division between the parties.
 FLA is not a complete code
 FLA does not abolish the presumption of advancement
 Inter-spousal gifts fall into the “communal pot” on separation and is divisible as family
property in the normal way.
So, what can you do?
1. Draft a marriage agreement or a cohabitation agreement and clarify your intentions.
2. Make sure you have documentation at the time your property/gift/inheritance is received
or transferred.
3. Sign a Declaration of Trust if you intend that your spouse will hold property in trust for you.
4. Be aware of the inference of joint right of survivorship that arises with joint bank accounts
and property held in joint tenancy.
5. Talk to a family law lawyer about your options.
2016 cases that have followed the BCCA decisions
Wong v Rooney, 2016 BCSC (dad arguing move to Schelte no bigi)
 Bracelet - from R's mom, sentimental value
 Inappropriate for R to take it - it is family ppty and entrusted to W for daughter, should
remain in her possession s.97(2)(a) and order return to W under s. 97(2)(j). Court declared
W to have right to possession and to use it, and is obliged to give to daughter when
appropriate.
Jaszczewska (husband decides to demolish house)
 Equity in family home reapportioned to 70/30 in favour of husband, as equal division
would be significantly unfair to husband
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Husband's contribution post-separation was a significant factor to increase in ppty's
value, and equal division would be significantly unfair (s. 95(2)(f))
o But construction was financed by mortgage on family ppty (where wife was entitled
to half interest on separation), so wife's equity also contributed to increase in value

NOTE: increase in market value was divided equally.
Proceeds of sale of strata units should be equally divided as the development of the
complex during the relationship does not support reapportionment.
$36K payments under Agreement of Sale is not excluded property. Husband argued preexisting savings is excluded ppty and can be traced into the ppty's equity under 85(1)(g)
b/c that equity is properly derived from excluded ppty. In this case, payments didn't
increase value, and it was a pre-condition that allowed parties to build equity in ppty - not
excluded ppty
Shares in 540 & proceeds derived from their ownership are family property – purchase
was financed by borrowing against the equity in K house. And, to the extend the values of
the shares were increased by Mr. Kostanski’s efforts in developing the project, that
enhancement occurred during the relationship.
Class comment: Seems like husband used separation as an entrepreneurial opportunity should separate assets as they were on separation
o




Funds advanced by parents: inheritance or gift or loan? Is the evidence there? Ex. dad’s
disease
 Here there is no suggestion that the funds were … // Similar to X, there is evidence that
 Presumption of advancement does not apply to parents giving money to their adult kids
(Pecore).
Sardinha v. Sardinha, 2016 BCSC (dad w/ Alzheimer’s paid off mortgage)
There is evidence in this case that monies were in the nature of an inheritance and an
advancement of that inheritance. The money was applied directly to the mortgage, an instrument
that the parents were debtors under, and was, obviously, specifically for the parties' home. After
being diagnosed w/ Alzheimer’s parents decided to sell their home and then transferred $ to bro
and then to paid off the mortgage on the property. Benefit of this inheritance is limited to
monies advanced, through application of 85(1)(g). In the alternative, court finds that under s. 95
it would require an unequal division of value in matrimonial home in favour of husband to extent
of the mortgage payout. Significantly unfair to deprive husband of benefit of sharing in his parents'
estate. Also, neither husband or wife made significant contribution to ppty - parents did.
Blog notes
 On plain reading of the FLA, it would appear that a person, who received an inheritance
and could prove it, was entitled to claim it as excluded property. BUT, BCCA does not
agree.
 Cases above state that the provisions of the FLA CANNOT be considered in isolation, that
FLA is not in itself a complete code, and we must look at the intentions of the parties at the
time the inheritance was received or the property was transferred
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Spousal Support
Spousal support is taxable income!
A payment made by one spouse (the payor) to the other spouse (the recipient) to help with his or
her day-to-day living expenses or to compensate the recipient for the financial choices the spouses
made during the relationship.
 There is no automatic right to receive support just because of the relationship. Party
seeking spousal support (recipient) has the onus to show entitlement - show what entitles
that person to spousal support.
 Whether spousal support will be paid, and if so, how much, depends on the particular
circumstances of each couple
 Once a spouse is designated as the payor, they remain the payor until spousal support
ends – unlike child support, where the payor and recipient can flip (ex. when child moves
to other parent)
Same Sex Spouses
M v. H, [1999] S.C.J. declared unconstitutional the exclusion of same-sex spouses from the
statutory right and obligation of spousal support.
Applicable Legislation – Choosing a Statute
 Married couples or formerly married couples can elect to have spousal support
arrangements pursuant to either the FLA or the DA
 Common law (un-married) couples must seek spousal support under the FLA, which, for
the purposes of child support and spousal support, defines spouse as including:
o people who are married to each other,
o people who have lived together in a "marriage-like relationship" for at least two
years,
o people who lived together in a marriage-like relationship for less two years and
have a child together, and
o former spouses.
Objectives
The
objectives of
spousal
support
FLA s.161 &
DA s.15.2
(both have
same
language in
regards to
objective)
In determining entitlement to spousal support, must
consider the following objectives:
(a) to recognize any economic advantages or
disadvantages to the spouses arising from the
relationship between the spouses or the breakdown
of that relationship;
(b) to apportion between the spouses any financial
consequences arising from the care of their child,
beyond the duty to provide support for the child;
(c) to relieve any economic hardship of the spouses
arising from the breakdown of the relationship
between the spouses;
NOTE: the first 3 apply to
the payor, but d speaks
to recipient’s duty to
become self-sufficient
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Duty to
provide
support for
entitled
spouse
FLA s. 160
Determining
spousal
support
FLA s. 162
(d) as far as practicable, to promote the economic
self-sufficiency of each spouse within a reasonable
period of time
If, after considering the objectives set out in section
161 [objectives of spousal support], a spouse is
entitled to spousal support, the other spouse has a
duty to provide support for the spouse in
accordance with section 162 [determining spousal
support].
The amount and duration of spousal support, if any,
must be determined on consideration of the
conditions, means, needs and other circumstances
of each spouse, including the following:
(a) the length of time the spouses lived together;

longer together, longer get support
(b) the functions performed by each spouse during
the period they lived together;
(c) an agreement between the spouses, or an order,
relating to the support of either spouse.
Same under DA s.15.2(4)
Note: duty doesn’t arise
before entitlement
"Indefinite" is not really
indefinite - there are dates of
review built into the
agreement.
Have to consider age of
individual that is asked to be
self-sufficient (wife has not
worked for 33 yrs, other than
bookkeeping for husband’s
very specific biz – hard to retrain and be employed)
Estate of deceased person can
be forced to continue to pay
Conceptual Grounds
There are three conceptual grounds for entitlement to spousal support
 Contractual;
 Compensatory; and
 Non-compensatory
(1) Contractual Grounds
Applies in situations where the parties have entered into a marriage or separation agreement,
or a contractual obligation is implied.
 Often the recipient, and often in cases where agreements were made a long time ago
(often before children, before deciding how to structure family and disadvantages that
flow from that). Recipient wants more money.
 Need a clause that established entitlement to spousal support.
 Important that agreement states why spousal support paid or not paid.
Divorce Act
Until Miglin, the authority on how much weight a court should attach to an agreement was based
on the trilogy of cases: “Pelech v. Pelech; Caron v. Caron and Richardson v. Richardson (the
“Trilogy”). These cases held that, subject to limited exceptions, the parties should be bound by
their agreement. The discretion to depart from the spousal support provisions of an agreement on
the application of the supported spouse was limited to cases in which the applicant could show a
radical change of circumstances flowing from a pattern of economic dependence caused by the
marriage.
 Lots of discretion involved in what constituted radical change
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Miglin v. Miglin (2003 SCC 24) – changes rule from previous cases
In Miglin, the SCC ruled that the threshold established by the trilogy is no longer appropriate
under the current, broader support objectives under the Divorce Act. The court held that the
grounds for ordering support in an amount that differs from an agreement are broader;
however, agreements on support are still entitled to deference.
The Court set out a TWO-STAGE TEST for approaching an originating application for support
where there is an existing agreement on support. The court assesses the agreement from two
points in time - the time the agreement was made and the current circumstances.
 STAGE 1: was the agreement reached fairly (procedurally)?
Court must look at:
(1) the circumstances in which the agreement was made to determine whether the
agreement was obtained fairly; AND



Contractual defenses – ex. duress, unconscionable, void for other reasons, sufficient disclosure, sufficient
consideration, meeting of minds, etc.
Things to watch out for – did they get independent legal advice – procedural fairness
Analysis stop here if procedurally unfair
(2) whether the agreement substantially complied with the objectives of the DA.


Substantial fairness
An agreement that was not obtained fairly or that departed substantially form the
objectives of the Act will be given little weight.
STAGE 2: If the agreement satisfies the first stage, then the court must consider whether
the agreement still reflects the original intentions of the parties AND remains in
substantial compliance with the objectives of the Act.
o
If reached fairly, at THAT time they complied with objectives of Act, but so much has happened b/w individuals
that it may not comply with objectives and therefore no longer fair
If there has been a material change of circumstances not reasonably anticipated by the
parties that has led to a situation which cannot be condoned, the court may give little
weight to the agreement.
“It is only where the current circumstances represent a significant departure from the
range of reasonable outcomes anticipated by the parties, in a manner that puts them at
odds with the objectives of the Act, that the court may be persuaded to give the
agreement little weight” [para. 91]
o
Restricting judicial interference - courts still required to respect agreement but have to look at it from a broader
perspective - balancing act
FLA – Varying Support Agreements
First step is to look at the agreement and decide whether a portion or all of the agreement should
be set aside. Under Section 165(3), the court cannot make an order for spousal support in the face
of agreement unless all or part of the agreement is set aside. Section 164 then provides for when
a court can make an order that replaces all or part of an existing agreement for spousal support.
There are 2 TESTS that, if met, will allow the court to set aside or replace an agreement with an
order.
 TEST ONE: The first test concerns procedural fairness in making the agreement. If any of
the following circumstances existed when the parties entered into the agreement, the
court may set it aside:
(a) a spouse failed to disclose income, significant property or debts, or other information
relevant to the negotiation of the agreement;
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(b) a spouse took improper advantage of the other spouse’s vulnerability, including the
other party's ignorance, need or distress;

Spouse may be suffering from illness (physical or mental) - not in right state of mind, other spouse knows this
and takes advantage of this
(c) a spouse did not understand the nature or consequences of the agreement;


This is why independent legal advice is import – even go as far as paying for your spouse’s lawyer to ensure
they get it
(d) other circumstances that would under the common law cause all or part of a contract
to be voidable.
TEST TWO: The court may set aside an agreement if it is satisfied that the agreement is
significantly unfair. In determining significant unfairness, the court may consider the
following factors:
o
(even if not set aside under test 1, can use test 2 to set aside)
(a) The length of time that has passed since the agreement was made;
o
o
Agreement made 30 years ago (may not be appropriate today) vs. agreement made last year
The longer agreement has been around, higher the likelihood there will be significant unfairness
(b) Any change, since the agreement was made, in the condition, means, needs or other
circumstances of a spouse;
o
When agreement made, didn’t think they’ll have kids – but did & one stayed home to take care  became
primary caregiver and changed income capacity
(c) The intention of the spouses, in making the agreement, to achieve certainty;
o
o
Often certainty, but sometimes not done on good faith
Finality is important and we want to encourage this and uphold these agreements --> so judges are more
weary than not in overturning agreements. Give deference to agreements - determine if they intended
agreements to provide certainty.
(d) The degree to which the spouses relied on the terms of the agreement;
o
Look at agreement as a whole, not just the provisions that deal with spousal support
(e) The degree to which the agreement meets the objectives set out in FLA s. 161
On the exam, could say: these are similar factors that were discussed by the SCC in Miglan.
"Significant unfairness" is new to FLA - area that is driving a lot of litigation as it is very subjective.
(2) Compensatory Grounds
in the event that the K is void …
Absent a contractual agreement for post-marital assistance, entitlement to support could be
founded on compensatory principles, i.e., reimbursement of the spouse for opportunities
foregone or hardships accrued as a result of the marriage
Moge v. Moge [1992] SCR

When does it apply? Applies where a spouse has forgone opportunities or endured
hardships as a result of the marriage.
o


Doesn't just have to be forgoing employment, but could be pension benefits // E.g. employee was contributing
to pension, stopped working and not entitled to pension - this is a forgone opportunity
Spouse stops working: Relied upon most frequently in situations where one spouse, more
often the woman, has left the workforce to care for the children; but even in childless
marriages, couples may also decide that one spouse will remain at home and any economic
disadvantage to that spouse flowing from that shared decision should be regarded as
compensable.
Spouse hasn’t stopped working: A spouse may also be compensated if they decline a
promotion, refuses a transfer, leaves a position to allow the other spouse to take
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advantage of an opportunity for advancement, or otherwise curtails employment
opportunities and incurs economic loss (such as forgoing a pension)
o

What do you consider? The financial consequences of the end of the marriage include
things like the loss of future earning power, loss of seniority, missed promotions and lack
of access to fringe benefits such as pension plans, life, disability, dental and health
insurance. Persons who are not in the work force also cannot take advantage of job
retraining and the upgrading of skills provided by employers.
o



Despite any kind of structures spouses may adopt, there is almost always one spouse supporting the other for
career at one point. Court will look throughout the duration of relationship to see who suffered the most, and
there is a greater discrepancy suffered by one.
“TRADITIONAL” VS. “MODERN’ DICHOTOMY:
“It would appear that the courts have recognized a substantial change in the nature of
marriages and the roles played by the parties. At the one end of the scale we have the
traditional marriage where one spouse is the breadwinner and the other the child-rearer,
often entitled to be supported for life // At the other end we have the type of marriage
where both spouses participate in the economic advancement of the family unit and
although one may be disadvantaged for a period of time during the marriage by deserting
career opportunities, this can be balanced upon dissolution by provisions promoting the
self-sufficiency of that spouse and thereafter both parties go their own ways. In between
these two extremes we still find a variety of marital arrangements that must be fairly dealt
with upon dissolution…
“In my opinion, a judge today in approaching a maintenance order should continue to
recognize the distinction between the traditional and the modern marriage. Upon
dissolution of a modern marriage the goal should be the placing of both parties in a
position of economic self-sufficiency at the earliest possible time…Temporal limits on
maintenance should be utilized to accomplish this end, and illness and other factors not
related to the marriage should not be used to justify the continuation of maintenance
which otherwise should cease” (Heinemann v. Heinemann, 1989 CanLII 196 (NS CA))
o


No presumption of equal standard of living post-separation, BUT the longer the relationship and increased
dependency, it could be that the payor is expected to compensate recipient to a point where it is similar to
their pre-separation living standards
PURPOSE OF SPOUSAL SUPPORT is “to relieve economic hardship that results from
“marriage or its breakdown”. Whatever the respective advantages to the parties of a
marriage in other areas, the focus of the inquiry when assessing spousal support after the
marriage has ended must be the effect of the marriage in either impairing or improving
each party’s economic prospects.”
o


The objective is to compensate each person, but there is no guarantee that they will be restored to their
original stage before the separation
The spouse entitled to support is not guaranteed the same standard of living but the longer
the relationship, the closer the economic union, the greater will be the presumptive claim
to equal standards of living.
o

Can be both spouses working – but one is forgoing opportunities
ZJ: a lot has changed - no presumptive support for life, but in reality it still happens
RECOGNIZING THE DISADVANTAGES OF MARRIAGE (policy things to be aware) Moge:
“It would be perverse in the extreme to assume that Parliament’s intention in enacting the
act was to financially penalize women in this country.”
“A division of functions between marriage partners, where one is a wage-earner and the
other remains at home will almost invariably create an economic need in one spouse
85





during marriage. The spouse who stops working in order to care for the children and
manage a household usually requires financial provision from the other. On divorce, the
law should ascertain the extent to which the withdrawal from the labour force by the
dependent spouse during the marriage (including loss of skills, seniority, work
experience, continuity and so on) has adversely affected that spouse’s ability to maintain
himself or herself. The need upon which the right to maintenance is based therefore
follows from the loss incurred by the maintained spouse in contributing to the marriage
partnership..
If the functions of financial provision, household management and child care are divided in
any particular way between a husband and wife, the law should characterize this as an
arrangement between the spouses for accomplishing shared requirements of the marriage
partnership according to their preferences, cultural beliefs, religious imperatives, or similar
motivating factors. A spouse who does one of these things should be seen as freeing the
other spouse to perform the remaining functions.”
“However, once the marriage dissolves, the kinds of non-monetary contributions made by
the wife may result in significant market disabilities. The sacrifices she has made at home
catch up with her and the balance shifts in favour of the husband who has remained in the
work force and focused his attention outside the home. In effect, she is left with a
diminished earning capacity and may have conferred upon her husband an embellished
one.”
“The doctrine of equitable sharing of the economic consequences of marriage or
marriage breakdown upon its dissolution which, in my view, the Act promotes, seeks to
recognize and account for both the economic disadvantages incurred by the spouse who
makes such sacrifices and the economic advantages conferred upon the other spouse.
Significantly, it recognizes that work within the home had undeniable value and transforms
the notion of equality from the rhetorical status to which it was relegated under a deemed
self-sufficiency model, to a substantive imperative.”
DIVORCE – IMPACT ON WOMEN AND CHILDREN: “For most women and children, divorce
means precipitous downward mobility – both economically and socially. The reduction in
income brings residential moves and inferior housing, drastically diminished or nonexistent
funds for recreation and leisure, and intense pressures due to inadequate time and money.
Financial hardships in turn cause social dislocation and a loss of familiar networks for
emotional support and social services, and intensify the psychological stress for women
and children alike. On a societal level, divorce increases female and child poverty and
creates an ever-widening gap between the economic well-being of divorced men, on the
one hand, and their children and former wives on the other.” (L.J. Weitzman, The Divorce
Revolution: The Unexpected Social and Economic Consequences for Women and Children
in America)
Therefore, Judicial Discretion (T’s CAN p.30)
o Requires an examination of all of the objectives
o Broad approach
o Not all elements will be equally important
(3) Non-Compensatory Model (Basis: Social Obligation)
Can get both compensatory & non-compensatory!
86
Applies in situations where the recipient spouse’s need exceeds the entitlement to be
compensated. In such situation, the obligation to provide support derives from the “basic social
obligation” of the marital relationship.
Bracklow v. Bracklow
Question: may a spouse have an obligation to support a former spouse over and above what is
required to compensate the spouse for loss incurred as a result of the marriage and its breakdown
(or to fulfill contractual support agreements)?


Obligation/duty to pay spousal support already found on a compensatory ground - now court will consider whether
spouse needs to be compensated beyond that.
OR there may be no compensatory ground and can get support on non-compensatory grounds
Determining Entitlements:
 In cases where the extent of the economic loss can be determined, compensatory factors
may be paramount. On the other hand, “in cases where it is not possible to determine the
extent of the economic loss of a disadvantaged spouse…the court will consider need and
standard of living as the primary criteria together with the ability to pay of the other
party” Ross v. Ross (1995).

…where compensation is not indicated and self-sufficiency is not possible, a support
obligation may nonetheless arise from the marriage relationship itself.
 The ability and capacity of, and the reasonable efforts made by, either or both spouses to
support themselves” (Family Relations Act, s. 89(1)(d)), suggests a concern with need that
transcends compensation or contract. Even if a spouse has foregone no career
opportunities or has not otherwise been handicapped by the marriage, the court is
required to consider that spouse’s actual ability to fend for himself or herself and the effort
that has been made to do so, including efforts after the marriage breakdown. Similarly,
“economic circumstances’ (s. 89(1)(e)) invites broad consideration of all factors relating to
the parties’ financial positions, not just those related to compensation.
 Economic hardship…arising from the breakdown of the marriage” is capable of
encompassing not only health or career disadvantages arising from the marriage
breakdown properly the subject of compensation…, but the mere fact that a person who
formerly enjoyed intraspousal entitlement to support now finds herself or himself without
it
 A spouse’s lack of self-sufficiency may be related to foregoing career and educational
opportunities because of the marriage. But it may also arise from completely different
sources, like the disappearance of the kind of work the spouse was trained to do (a career
shift having nothing to do with the marriage or its breakdown), or, as in this case, ill health.
Determining Quantum:
 The same factors that go to entitlement have an impact on quantum
o


when considering HOW MUCH TO BE PAID, consider how much money they have and needs (e.g.
illness may require more support, payor may be responsible for more (also depending on ability to
pay))
For practical purposes, however, it may be useful to proceed by establishing entitlement
first and then effecting necessary adjustments through quantum.
The quantum awarded, in the sense of both amount and duration, will vary with the
circumstances and the practical and policy considerations affecting particular cases.
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Indefinite Support?
Messier v. Delage, [1983] S.C.J.
 “That does not mean that the obligation of support between ex-spouses should continue
indefinitely when the marriage bond is dissolved, or that one spouse can continue to be a
drag on the other indefinitely or acquire a lifetime pension as a result of the marriage, or to
luxuriate in idleness at the expense of the other…” Chouinard J.
o For long marriages, often will say on the software that it's "indefinite" payment but it's in reality NOT indefinite payment!
 “the current economic situation, the difficulty in finding work and the resulting high rate of
unemployment” and asked whether a divorced spouse who is working always should bear
the consequences of this and provide for the needs of his unemployed former spouse, or
is it for the government, if it cannot remedy, at least to alleviate the effects and to what
extent?” Lamer J.
If an illness happens like 5 years after marriage, and illness doesn’t have a relationship to the
breakdown, then unlikely that she will get support.
Variation of Support Order


Ex. review of spousal support where husband wanted to stop paying after 6-7 years. Wife
took money (over $10K/mth), went to film school, met someone, pays for his film school
and lets him live in her house… ex-husband has to keep paying (there is no way she will be
self-sufficient)
Applications or variations may be triggered if we notice that the other spouse is taking a lot
of vacations and buying more cars, for instance, which shows an increase income that will
trigger investigation for variation
Under the DA
s. 17 (4.1): Before the court makes a variation order in respect of a spousal support order, the
court shall satisfy itself that a change in the condition, means, needs or other circumstances of
either former spouse has occurred since the making of the spousal support order or the last
variation order made in respect of that order, and in making the variation order, the court shall
take that change into consideration.



E.g. client says she is retiring in 2 years, but if she knew that she would retire in that timeline at the time application was
made - that is not a change!
E.g. do you anticipate change in income (anticipate promotion, know nature of employment and advancement)
Change is one that is not anticipated or foreseeable
Under the FLA
s.167: (1) On application, a court may change, suspend or terminate an order respecting spousal
support, and may do so prospectively or retroactively.
(2) Before making an order under subsection (1), the court must be satisfied that at least one of
the following exists, and take it into consideration:
(a) a change in the condition, means, needs or other circumstances of either spouse has
occurred since the order respecting spousal support was made;
(b) evidence of a substantial nature that was not available during the previous hearing has
become available;

Disclosure, or e.g. spouse wasn't feeling well but didn't have diagnosis (didn't have the knowledge)
88
(c) evidence of a lack of financial disclosure by either spouse was discovered after the
order was made.
(3) Despite subsection (2), if an order requires payment of spousal support for a definite period or
until a specified event occurs, the court, on an application made after the expiration of that
period or occurrence of that event, may not make an order under subsection (1) for the purpose
of resuming spousal support unless satisfied that
(a) the order is necessary to relieve economic hardship that
(i) arises from a change described in subsection (2) (a), and
(ii) is related to the relationship between the spouses, and
(b) the changed circumstances, had they existed at the time the order was made, would
likely have resulted in a different order.
Spousal Support Advisory Guidelines (“SSAG”)
After you have established that the recipient is entitled to SS, have to determine the Quantum
(“Q”) and Duration. The Q and duration of SS are determined using the Spousal Support Advisory
Guidelines (“SSAG”). The SSAG suggests appropriate ranges of support in a variety of situations for
spouses who are entitled to support (PP is to make things more standardized and clear). They DO
NOT provide guidance on whether a spouse is entitled to support. SSAG are NOT legally binding,
but are intended as informal guidelines operating on an advisory basis only (judges are expected
to rely on them – if deviate, need to justify deviation – in practice, treated like law). SSAG provides
two formulas: (1) with children, and (2) without children. However, it only works within the
income ceiling ($350k) and income floor ($20k).
 Floor of $20K - plug this into DivorceMate calculator (used to calculate spousal support)
 Ceiling is different - at this point judges have greater discretion in determining what the Q
will be but the guidelines still apply.
o Purpose is equitable sharing of consequences after breakdown – not accounting for
money beyond $350 K defeats the purposes. It is not a hard ceiling; it is a soft
ceiling. So in effect, ceiling is not the place to stop (despite the fact it's called a
ceiling)
 Only applicable to residence in BC or payor is resident of BC.
 With funding from the Department of Justice, two family law professors, Rollie Thompson
and Carol Rogerson, developed guidelines in an effort to make spousal support more
predictable and consistent.
 Originally introduced in draft form in 2005, released in 2008 & revised in 2016
 Unlike child support that changes annually, spousal support is not like that – there can be
reviews though
Yemchuk v. Yemchuk
According to Justice Prowse the Guidelines are intended to reflect the current law rather than to
change it and build upon the law as it exists. The Guidelines are not official law, but neither do
they constitute evidence or even expert evidence that needs to be proven in court.
 Guidelines will be taken as they are – won’t be tested
W v. W., 2005 BCSC 1010
 Says the SSAGs are consistent with the law in British Columbia (para. 25)
89


Notes that the SSAGs are just guidelines and advisory and an example of one useful tool to
lawyers (para. 27)
ZJ: but followed religiously in practice
Redpath v. Redpath, 2006 BCCA 338
 If there is a differentiation in the guidelines refer to this case
 If a particular award deviates substantially from the Guidelines with no exceptional
circumstances to explain, it could be a grounds of appeal.
 The court increased an award of $3,500 per month to $5,000 per month even though the
trial judge considered all of the factors and did not misapprehend the evidence
 ZJ: At appellate court, has to be misapprehension of facts or evidence, or misapplication or
error in law. Essentially a third ground, you deviated and didn’t have an exceptional reason
to do so
Without Child Formula
Two crucial factors:
 A. the gross income difference between the spouses; and
o Look @ all income sources whether taxable or not
o Gross income = income before taxes or deductions
 B. the length of the relationship
o The amount & duration increases incrementally with the length of the relationship.
NOTE: There is software used to determine quantum and duration of support (i.e. DivorceMate)
Example 1:
Arthur and Ellen have separated after a 20-year marriage and one child. During the marriage,
Arthur had just finished his commerce degree when the two met, worked for a bank, rising
through the ranks and eventually becoming a branch manager. He was transferred several times
during the course of the marriage. His gross annual income was now $90,000. Ellen worked for a
few years early in the marriage as a bank teller, then stayed at home until their son was in school
full time. Ellen worked part time as a store clerk until he finished high school. Their son is now
independent. Ellen now works full time as a receptionist earning $30,000 gross per year. Both
Arthur and Ellen are in their mid-forties.
 Age is relevant b/c of future earning potential – How long recipient needs support for?
How long can payor pay for? Potential for advancements? How long they can continue
working before retirement? How much more they can earn? Their competency and ability?
1. What grounds of entitlement would you argue applies and why?
 Compensatory:
o Did one spouse move around for the other? That's considered a loss that's
compensatory
o Staying home and making sacrifices will be considered a loss of  should be
compensated

She was a teller; what level would she be at? Would she have a pension plan?
 Non-compensatory would still apply because duration of relationship was long – 20-yr
marriage. Social obligations because she doesn't make that much compared to him. Quality
90
of life will drastically change – differences in living standards from moving from $120K
household to only $30K.
2. What is the amount of support under the without child support formula?
Entitlement: both Compensatory and Non-compensatory
Amount of Support = $1,500 to $2,000 per month
 Step 1: $90,000 - $30,000 = $60,000
 Step 2: 1.5 x 20 years = 30 percent to 2 x 20 years = 40 percent
 Step 3: 30 percent x $60,000 = $18,000/year ($1,500/month) to 40 percent x $60,000 =
$24000/year ($2,000/month)
With Child Support Formula
Come here if a child is involved! Can payor first make child support payments? If yes, then move
on to spousal support.
Priority must be given to child support b/c it’s an obligation & right of child (i.e. payor always
makes child support payments first). What drives support in these cases is not the length of the
marriage, or marital interdependency, or merger over time, but the presence of dependent
children and the need to provide care and support for those children. Must first determine child
support, and then determine SS.
 When dependent children are involved, spousal support even more critical b/c might not
even be economical to go to work b/c daycare expensive
 Once child and spousal support is determined, the onus is on the payor to argue undue
hardship.
Differences between the formulas
The with child formula:
 A. uses the net incomes of the spouses, not their gross incomes; and
o b/c trying to determine what each individual is actually going home w/ - want the
real number, b/c there might be little left after you pay taxes
 B. divides the pool of combined net incomes between the two spouses not the gross
income difference;
 The upper and lower percentage limits of net income division do not change with the
length of the relationship.
STEPS
Step 1: Determine the individual net disposable income (INDI) of each spouse – how?
 Guideline Income minus child support minus taxes and deductions = Payor’s INDI
 Guideline income minus notional child support minus taxes and deductions plus
government benefits and credits = Recipient’s INDI
 Child support is no longer taxable income, but spousal support is
Step 2: Add together the individual net disposable incomes. Determine the range of spousal
support amounts that would be required to leave the lower income recipient spouse with
between 40 and 46 percent of the combined INDI
There are 3 ranges: high payment, mid-payment, low-payment. Generally, go w/ mid-range – but
if significant disparity between the income, then can argue that you should go w/ the high range
91
b/c the mid-range is not sufficient to meet the other person’s needs. If recipient is receiving
significant support and has walked away with significant division of assets, then court may order
low range payment.
When doing agreements, a cost effective way to split – can get a lump sum that you treat as a
settlement amount and not taxable – payor can pay less and recipient pays less tax – this will work
if short marriage.
Spousal Misconduct
Don’t consider b/c this is a no fault system.
DA
FLA
15.2 (5) In making an order under subsection (1) [Spousal support order] or an interim
order under subsection (2) [Called rough justice], the court shall not take into
consideration any misconduct of a spouse in relation to the marriage.
 BUT note Leskun
Didn’t have these provisions under the FRA!
166 In making an order respecting spousal support, the court must not consider any
misconduct of a spouse, except conduct that arbitrarily or unreasonably
(a) causes, prolongs or aggravates the need for spousal support, or


One spouse abusive during marriage, as a result of which the other spouse has lost employment
or is unable to continue (ex. can’t show up w/ a bruise); mental impairment or depression 
unable to work or go out and find work and maintain
At the time of separation, consciously doing stuff to make the other side suffer  conscious or
bad behavior targeted attack
(b) affects the ability to provide spousal support.

Can happen post separation – ex. purposely dragging out litigation (vexatious litigation,
considered as family violence), misuse of family assets (gambling), Payor’s own behavior
preventing him from being actually employed – ex. quit my job
167(1)(c) allows a court to change a support order in certain circumstances, including
lack of financial disclosure


Court may impute income to a person if they are purposely underemployed or not disclosing
their income
Repeated refusal to produce, will piss off the judge and they will impute income – ex. you are
making $80,000 – then can’t afford in breach of court order and will have to appeal – and appeal
court will be pissed b/c you are fucking wasting their time
FLA Cases on Spousal Misconduct and Support:
L v. Lebovitz, 2013 BCSC: a payor’s failure to take meaningful steps toward
employment and repeated applications to terminate support are arbitrary actions
adversely affecting the ability to pay.
 This goes to s.166(b)
 Court said this is a form of misconduct & MUST make those payments. If not,
breach of court order. Contempt application proved, then fined or jailed
Bateman v. Bateman, 2013 BCSC: the cause of the failure of relationship is not a factor
to be considered
 Infidelity doesn’t count as misconduct but the consequences or what happens
to the recipient could be misconduct depending on how it was handled.
NOTE: Financial control is not considered misconduct; ex of husband who gave pay cheque to wife
92
Leskun v. Leskun 2006 1 SCR 920
Spousal misconduct is not relevant to spousal support, but consequences of spousal misconduct
(i.e. impact on recipient) may be relevant insofar as they affect self-sufficiency.
20 year of marriage, the wife worked, financially contributed to her husband’s continuing
education, and had a child. She suffered a significant back injury and was laid off from work. Soon
after, her husband told her that he wanted a divorce to marry another woman. They divorced in
1999. At trial, the wife was found to be entitled to support and was granted $2,250 per month
until she returned to work, at which point support would be reviewed. In 2003, an application by
the husband to discontinue support payments on the basis that he was now unemployed and in
financial difficulty was denied. The chambers judge found that the wife was not self‑sufficient and
remained in need of spousal support. The Court of Appeal affirmed the ruling. A majority of the
court indicated that the Divorce Act did not prevent consideration of a failure to achieve
self‑sufficiency as being the result, at least in part, of the emotional devastation caused by the
other spouse’s misconduct. Husband’s appeal to SCC dismissed.
 He had an affair – the infidelity itself is not enough, could be the way that it came out
 Ex. you had an affair – well actually she moved in – wife devastated
 JZ: the way you divorce someone might be misconduct – but initiation divorce alone is not
sufficient
The Intersection of Property and Spousal Support




1) division of property; 2) spousal support
Some of the property might be income producing
If get an income producing income, then quantum of spousal support might be zero
Do you have assets that you have an ability to generate income from?
Family Law Act s. 95: permits the court to order an unequal division of family property or debt, or
both, if it would be significantly unfair to equally divide them. One of the factors that the court can
consider is: (3) the extent to which the financial means and earning capacity of a spouse has been
affected by the responsibilities and other circumstances of the relationship between the spouses
if, on making a determination respecting spousal support, the objective of spousal support under
section 161 have not been met

If payor does not have income to pay spousal support to the entitled recipient, unequal division of assets is warranted
where there is a clear set of factors for the court to consider that would make it significantly unfair for the recipient to
have equal division
Securing Spousal Support
FMAP – if don’t pay when alive – an enforcement agency that tracks payments – if repeatedly
miss, FMAP can garnish employment cheque; take away license; ability to renew passport; CRA
refund
Two forms of security (if payor dies)
 1) Estate: Support payments can be secured by making the payments binding on the estate
of the payor; by agreement or by court order.
o Payor will revise will immediately – will will say: X is obligated to make payments of
support for W – whatever the remaining entitlement is
o Agreement will state that payor will provide a copy of will
93
Will be under an obligation not to change (which is set out in the divorce
agreement)
2) Life Insurance: Support payments can also be secured through life insurance on the life
of the payor whereby the recipient is the irrevocable beneficiary for the duration of the
support obligation (once ends, insurer can change B); by agreement or by court order.
o Irrevocable for duration of obligation
o Have to provide proof on annual basis that the premiums have been paid in full and
that the policy is in effect – otherwise, it’s useless!
o Agreement will outline what happens if payor doesn’t honor – penalties; to deter
from payment of policies
o For child support – children are irrevocable B and parent is irrevocable trustee for
the children – so trustee parent has FD to distribute $ for benefit of children
Combined: this is good – life insurance .goes into the estate and then estate pays the
recipient – ZJ really advocated for this method.
o Make the life insurance part of the estate, so estate administers the life insurance
o
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
94
Cases
Ending the Relationship
Wolfman-Stotland v. Stotland (2011 BCCA)
F: WS and S were married for 57 years. They have no children, and S handled finances during
marriage. WE (had dementia) is 92 years old and had been living in an old-folks home since 2001. S
is 93 years old and had been living in a separate old-folks home since 2007. They had not lived in
the same residence for 10 years (due to health reasons). WS said that she wanted the divorce
because S “fell asleep during Bingo,” there was no evidence of mistreatment. Mr. Stotland
opposed the divorce, on the basis that his wife did not have the requisite capacity, he was 93
years old.
I: Did WS have the capacity to separate?
Chamber’s Judge: ordered capacity assessment by a physician and despite the doctor’s finding, at
the second hearing dismissed application for divorce.
 The chambers judge reviewed the reasons given by Mrs. Stotland (Mrs. S gave reasons) for
wanting to end the marriage – her only complaint being that Mr. Stotland “fell asleep
playing bingo” – and noted the absence of any evidence that Mr. Stotland mistreated his
wife. From this, the chambers judge said there was “no other evidence before the court
that she has the requisite ability to form the intention to separate.”
Court of Appeal:
The chambers judge held that Mrs. Stotland lacked the necessary capacity to divorce because she
was unable to manage her own affairs. The court of appeal overturned the trial decision on the
basis that the trial judge applied the wrong test for capacity. The minimum capacity required to
form the intent to separate is the capacity to instruct counsel --> CA held she had capacity to
instruct counsel, said in affidavit she wanted to separate capacity, doctor found she had
capacity to do so.
The Court adopts hierarchy of capacity in Calvert (litigation guardian of) v. Calvert (1997 ONSC): A
useful discussion of the hierarchy of levels of capacity is found in Calvert at paras. 54-56:
 [54] Separation is the simplest act, requiring the lowest level of understanding. A person
has to know with whom he or she does or does not want to live. Divorce, while still simple,
requires a bit more understanding. It requires the desire to remain separate and to be no
longer married to one’s spouse. It is the undoing of the contract of marriage.
o KR: separation is easier and the lowest hierarchical, but divorce is a little higher
because it is undoing the contract of marriage.
 [55] The contract of marriage has been described as the essence of simplicity, not requiring
a high degree of intelligence to comprehend: Park, supra, at p. 1427. If marriage is simple,
divorce must be equally simple. The American courts have recognized that the mental
capacity required for divorce is the same as required for entering into marriage: re:
Kutchins, 136 A. 3d 45 (Ill., 1985).
o KR: if marriage is simple, a divorce must equally be simple.
o Separation is lowest, divorce is higher.
95

[56] There is a distinction between the decisions a person makes regarding personal
matters such as where or with whom to live and decisions regarding financial matters.
Financial matters require a higher level of understanding. The capacity to instruct counsel
involves the ability to understand financial and legal issues. This puts it significantly higher
on the competency hierarchy. It has been said that the highest level of capacity is that
required to make a will: Park, supra, at p. 1426. (I note that Mr. Birnbaum felt that, in
August 1994, he would have taken instructions for a will but for Dr. Hogan’s concern about
her ability to instruct counsel.) While Mrs. Calvert may have lacked the ability to instruct
counsel, that did not mean that she could not make the basic personal decision to separate
and divorce.
o KR: ability to instruct counsel is linked - court made a distinction and simplified
what was required to separate. Didn’t need capacity to instruct counsel, but as
simple as making the decision that she didn't want to live with her husband.
o KR: even if the person cannot understand why kids have dragged him/her into the
lawyer's office, the person can still have capacity to not live with his/her spouse
o KR: 5 years ago, had capacity to separate, but currently does not have capacity to
instruct counsel --> still has capacity!
As the authorities make clear, the capacity to form the intention to live separate and apart has
been accepted as equivalent to the capacity to enter into a marriage. As the Court stated in
Calvert, the intention to separate requires the lowest level of understanding. The requisite
capacity is not high, and is lower in the hierarchy than the capacity to manage one’s affairs.
 KR: the capacities to marriage and divorce are equivalent.
In summary, I conclude that the chambers judge erred in law in applying a dual test for the
capacity to form the intention to live separate and apart. Mrs. Stotland had the capacity to
instruct counsel and understood that she wanted her share of the family assets. That evidence
provided a sufficient basis to grant the s. 57 declaration.
 KR: in Stotland, the CA said the chambers judge was incorrect as she had capacity, that the
Supreme Court applied the wrong test (equating capacity to separate to capacity to
instruct counsel). Found she had capacity to want fair share of assets.
Best Interests of Child
BDM v AEM, 2014 BCSC
Case intro: “prolonged and ruinously expensive dispute between parties.”
68 days of trial, straight forward legal issues but factual disputes.
Married someone in Morroca – lady came even though guy tried his best to avoid – wife said let’s
have a family – husband threatening wife that he will take A away if she does not agree to go to
Morocco – wife left for a shelter b/c of husband’s aggressive behavior and refusal to provide food
or money – later lived in basement of a friend
Discussion of s. 37(2) of the FLA – dad making allegations that mom negligent – evidence
vague/subject to interpretation/inaccurate – some of A’s comments clearly prompted by dad – ex.
96
A says she got minor bruising from jumping off of the roof they are staying at – this is a 3 stories
room
An expert report found that neither parent posed a risk to the child, but that they were unable to
cooperate.
Division of Property
Cabezas v Maxim (2016 BCCA)
Facts: Parties met in 2005, began living together in 2006. 2007 purchased property (trailer)
together - registered in their joint names. Mr. M paid $56K down payment. Balance of purchase
was funded through mortgage of $256K. Parties struggled financially, Mr. M's parents paid a total
of $187K to discharge mortgage, without any written agreement or loan document. 2013
separation, following sale of family residence - Mr. M argued net sale proceeds of $196K were his
excluded property. Mr. M's mother testified at trial that she intended money to be given only to
her son as an advance on his inheritance and not to the couple together. Didn't have loan
agreement or document (KR: anything would have been evidence) --> had nothing but the
inference that mother intended to help son and both.
TJ concluded funds were given as a gift intended to benefit both parties (and not excluded
property under 85(1)(b))
 No evidence suggesting payments were loans
 Money was given in a manner of gifts
 Found mother's intention to provide funds as an advance on her son's inheritance were
found to have been made after gifts had been made, therefore they were NOT excluded
property
Also found C paid most expenses during co-habitation and undertook liability of the mortgage
Mr. M appealed decision - wanted to exclude ppty by relying on mother's will as evidence that
payments were made as an advance on his inheritance (in reliance on s. 85(1)(b) of FLA)
Issue: is the property excluded? Were the payments from parents a gift to both spouses or a
loan/inheritance to son?
1. Did TJ err in finding proceeds were not excluded ppty under 85(1)(b)?
2. In the alternative, did TJ err in finding it would be significantly unfair not to divide proceeds equally
under 96(b)?
3. Did TJ err in finding M's personal and corporate debt was not a family debt to be apportioned b/w
parties?
Holding: no - family property.
Reasoning
 FLA is NOT a complete code, which means common law principles still apply and can be
considered in each case (contrary to holding in Remmem)
o Common law provides interpretative context to the FLA - and statutory law and CL
are necessarily intertwined; need to consider overall context of enactment, other
provisions and other statutes/rules in legal system
97
Need to look further than the code and need to consider CL principles (provides
conceptual framework for how legislation fits in)
1. BCCA found that the net proceeds were NOT excluded property under 85(1)(b)
o Court can consider CL to determine whether ppty is within 85(1)(b)
o Distinguish this case from Remmem as there was no dispute in that case over whether
the jointly purchased ppty was excluded ppty (ppty was acquired before parties lived in
marriage-like relationship).
 Mother intended payments to be gifts to both parties, even if she intended it to
be an advancement of M's inheritance.
 Pecore is clear that inquiry is on time of the transfer
 Here, TJ erred in relying on PA to find payments were gifts - no PA for adult
independent children (PP: modern society finds parents transfer to children to
management of their affairs).
2. BCCA upheld TJ's finding that in considering sale of matrimonial home were family ppty,
96(b) has no application.
3. BCCA held corporate and personal debts should not be divided, but no evidence was argued
to this point at trial.
o
Class Discussion
Is this right?
 They are partners - sharing home and family --> marriage - economic and emotional union
 Even if mom intended to help son, but both parties were on property and were to enjoy and she effectively knows both will benefit. Different from whether she actually likes her
ex-daughter in law. Should have documented (could have been done in a simple fashion)
Is it wrong?
 But it implies that lay person should have legal knowledge about foundation of contracts,
as parents of their children --> require regular person to have expert knowledge on what
they should know
V.J.F. v S.K.W. 2016 BCCA 186
This decision clarifies state of law on excluded property
Facts: Husband received a $2M gift from 3rd party, which he then used to buy a ppty and put in
sole name of wife for creditor protection. As executive and director at his company, he was
concerned about liability as a director from unknown claims – his bus said don’t worry I’ve got
your back & when he died he gifted him $2M.
TJ found it was NOT excluded ppty under s. 85 but that it was family ppty and should be evenly
divided. In the alternative, TJ found even if not family ppty, it would be significantly unfair to not
divide the ppty under s. 96 - wife had contributed "significantly" to improvement and
management of ppty and to rel'n with the 3rd party (that gifted the $2M). Husband argued that
the "tracing" provision under 85(1)(g) means ppty cannot lose its excluded status.
Issue: is the house (bought with proceeds from gift) excluded ppty or family ppty? What is the
proper characterization of the $2M in trust?
Holding: family ppty - equal division of funds was not significantly unfair
98
Excluded Property (85)
 Court found this was a gift (a gratuitous transfer of ppty where donor retained no interest
and expected no remuneration)
 Husband lost exclusion when he voluntarily and unreservedly directed ppty to be
transferred to wife and 'derived' no ppty from that disposition
 FLA does not reverse a gift and does not ignore the gift b/c spouses separated, and does
not effectively 'prohibit gifts b/w spouses'. Rather, the gift goes back into the communal
pot on separation and divided 50-50 on separation.
 Under FLA, presumption of advancement still applies
o Says legislature should clarify whether PT applies to CL and formal marriages, and
that it should apply to gifts from wife to husband (p.32)
 85(1)(g) is not applicable b/c husband "derived" no ppty or consideration from the
disposition
o Technical argument - that husband received no consideration and therefore did not
derive property, so $2M does not fit with this provision
 Fairness - would be unfair for donor to "recall" the gift
o Would be unfair if husband could assert the gift as wife's to protect against
creditors, but then that it doesn't belong to wife
 Excluded ppty regime is not a complete code that descends on spouses upon separation,
but builds in existing CL and equitable principles (preserves concepts such as gifts and
presumption of advancement)
 Husband's evidence was that the purpose of this 'gift' was to protect the property from
creditors (tried to rebut presumption of advancement)
o Court held husband cannot have it both ways - cannot give to wife for one reason
and get it back for another --> hiding assets from creditors is NOT sufficient to
rebut presumption of gift
Significant Unfairness (96)
 TJ found there was no basis to rebut presumption that equal division would be unfair
 Onus on wife to show it would be significantly unfair to divide (and for her to keep all $2M)
 Factors:
o Duration of relationship: almost 10 year relationship - husband met donor before
he met wife
o Career contributions: wife made significant contributions to household, helped
husband development rel'n with donor; but husband completed education and
started working before meeting wife
o Other factors:

Husband gave $2M to husband - purpose of gift was very specific, which was to
protect husband from personal liability in case he was to be in trouble as a
director of the company. Donor did not intent gift to increase wealth of husband
or his family. If wife keeps it, husband won't be able to protect himself – BUT
court finds that is the inevitable consequence of husband's decision to purchase
property rather than retain it to protect himself from potential future liability
 Court finds there would NOT be significant unfairness and threshold in s. 96 is not met.
99
Wong v Rooney (2016 BCSC)
Facts: living in a marriage like relationship; had a kid together; separated after 4 yrs – but lived in
the same residence, sharing parenting equally. R moved in to W's family residence - R paid for
almost all living expenses, paid rent to W's mother, W never paid rent to mother.
Issue 1: Is the proposed move to Sechelt a relocation?
 Yup – takes over 2 hours & requires travel by ferry & will impact relationship w/ mom –
regular contact w/ mom will be eliminated
Issue 2: Does this proposed relocation fall under s. 46 or Part 4, Division 6 of the Family Law Act?
 S.46 applies when there is no written agreement or order respecting parenting
arrangements
 S. 65(2) applies when there is an agreement or order – under division 6 there is a higher
burden on the parent wishing to move
 The 2 interim orders are orders w/in the meaning of both ss. 46 and 65  Division 6
applies to dad’s proposal to relocate
Issue 3: Should the relocation be permitted? Para 43
 Since parties have equal parenting time, s.69(5) applies
Division of property:
 Bracelet - sentimental value, from R's mom
 W: R gave her bracelet after birth of daughter from mom for "having the baby"; mom said
W could sell if she wants to and R had appraisal for it
 R: bracelet given to W from mom for daughter
 Mom: intended for granddaughter to have it, is OK with W keeping it after separation (for
daughter eventually) – mom had poor memory of the event // denied having any
discussion about selling, but recalled passing along the appraisal
 Court found W was most clear in evidence, but found it was not an outright gift but
impressed with a trust in favour of daughter. Therefore, gift was from a 3rd party to both
parties and became family property.
 Bracelet was a gift from a 3rd party to both parties and thus became family property- wrong
of guy to take bracelet – it was family property which had been entrusted to lady to use
and later pass on to daughter – There will be a declaration that Ms. Wong has the right to
possess the bracelet and use it, and an obligation to pass it on to E. when she considers it
appropriate. There will also be an order requiring Mr. Rooney to return the bracelet to her
forthwith. 97(2)(a); 97(2)(j)
 Unpaid rent: Lady claiming she owes $37K in unpaid rents to mom – couldn’t prove a
legitimate family debt for unpaid rent: there was no rental agreement, no record of
payments & amount owed; payment never demanded; mom had no intention of pursuing
daughter for any outstanding amount (Mother testified that she never demanded payment
because "she is my daughter"); W had savings ($94K) but did not pay rent  no family
debt to divide
100
Bell v Stagg (2016 BCSC)
Facts: Parties can’t agree on anything – A shorter common law relationship, got together "late in
life". They lived together w/ lady’s kid S. Bought a house in Chilliwack – husband contributed 62.5K
and wife contributed 22.5K. Husband couldn’t qualify for CMHC mortgage (b/c US resident), so
they registered the property in wife’s name. Husband’s down payment was documented as a gift
to the wife in the form of a “gift letter”. Husband also drew up a separation agreement - but
doesn’t say "agreement will apply to future properties". They sell property in Chilliwack and buy
one in Salmon Arm.
Wife (respondent) has Salmon Arm property in her name - seeks 100% ownership, as well as her
vehicle, household effects, personal belongings, pension, CPP and bank accounts.
Husband (claimant)seeks determination of family assets/debts to divide - wants interest in wife's
property, a share of his personal assets, an interest in wife's pension and other assets/ debts
Credibility of two people super important
Issue #1: What should be considered family property and how should it be divided between the
parties?
 When considering a contested gift in the family law context, one of the factors is whether
there are any contemporaneous documents and whether there is any expectation of
repayment. In this case, the 2009 Agreement is a contemporaneous document that was
likely signed around the same time as the gift letter – intended to confirm that the down
payment was not intended as a gift
 Even if it was a gift, per VJF, the gift is considered part of the “communal pot” on
separation and is divisible as family property in the normal way
 Cohabiting parties can enter into agreements dealing w/ their assets in the event their
relationship terminates – FLA s.92
o Court has jurisdiction to set aside agreement if 93(3) satisfied or agreement
substantially unfair: s. 93(5). Even if these circumstances exist, the court may
decline to set agreement aside if evidence would not justify a substantially diff
order: s.93(4).

K’s ex. getting hit by the bus – under s.95 the court will set them aside
 Terms “rolled over” to the property purchased after the agreement
 Entitled to a portion of lady’s pension
 Line of credit: to classify the post-separation increase in the Operating Line as a family
debt, the respondent must prove that it was incurred for the purpose of maintaining family
property – FLA s.86
 Life insurance policies worth less now than it was at the time the parties began cohabiting.
Thus, guy gets to keep and doesn’t have to share w/ woman.
Issue #2: Is the respondent entitled to retroactive and/or prospective spousal support and, if so,
what is the quantum and duration of that support?
 Look at s. 161 to determine if lady entitled to spousal support – lady couldn’t prove a claim
for compensatory spousal support; non-compensatory spousal support
101
Issue # 3: What is the appropriate amount of retroactive and prospective child support the
claimant should pay for the respondent's daughter, S.?
 Per s. 147(4), has to pay retroactive and prospective child support as step-parent
 Court agreed to depart from the guidelines b/c not bio dad – obligations will cease when S
19
Issue #4: What should the claimant pay the respondent for s. 7 extraordinary expenses for S?
 Lady didn’t meet the burn of proving that expenses were actually met
 Even if she did, no evidence that these were proper s.7 expenses b/c no reliable evidence
to support that these were necessary or reasonable
Jaszczewska v Kostanski (2016 BCCA)
Facts: Marriage like relationship for around 10 years. Wife brought no assets into relationship.
Largest family asset is the K ppty and became the couple's home. Husband used pre-existing
assets for down payment (excluded ppty) and amounts under agreement for sale (latter is not
excluded, this did not increase equity in ppty). After separation, husband demolished home and
constructed a new house – even though wife said NO!
Findings of TJ: TJ found equal division of family ppty would be significantly unfair b/c of husband's
post-separation efforts to build residence on parties' property - allows husband to keep 100% of
proceeds, but ordered husband to pay compensation of $1M to wife (on equal division of other
assets). TJ held date of valuation is date of trial, not date of separation. This is b/c husband
unilaterally decided to redevelop home, and husband mortgaged family ppty to finance
construction - wife's interest was at risk so it is only fair for wife to share in benefit.
Issue: would an unequal division be unfair?
Holding: uphold TJ's order of compensation of $1M, but amend division of family home (70/30 in
favour of husband)
Sardinha v Sardinha (2016 BCSC)
Facts: Separated in 2013, 12-year relationship, have 2 children and a family home (as joint
tenants). Purchased family home with husband's parents' support (value $205K, mortgage $180K).
Parents helped with down payment, and became debtors. They took a 1% ownership interest in
the property. Parents paid out mortgage in full ($186K) with part of net sale proceeds of their
home. Parents transferred $200K to husband's brother on same day. At the time funds were
advanced, husband’s dad was diagnosed w/ Alzheimer’s. Husband claims he should have exclusive
entitlement to mortgage (parents' inheritance); wife claims there should be equal division. Wife
accepted husband’s tools (before the relationship or gift), Tacoma truck (funds came from
personal injury claims advanced by Mr. from 3 MVAs), and boat were excluded property (gift).
Issue: whether or not the funds provided by the parents were an advancement on Mr.’s
inheritance or gift? Further, if they were a gift, was it a gift to both of the parties or only the
claimant?
Holding: funds provided as an advancement on the claimant’s inheritance
Analysis: Unlike Cabezas, there is evidence in this case that monies were in the nature of an
inheritance and an advancement of that inheritance // Unlike L.A.F., the money was applied
directly to the mortgage, an instrument that the parents were debtors under, and was, obviously,
specifically for the parties' home // after being diagnosed w/ Alzheimer’s parents decided to sell
102
their home and then transferred $ to bro and then to paid off the mortgage on the property //
both mom & bro testified // Benefit of this inheritance is limited to monies advanced, through
application of 85(1)(g)
In the alternative, court finds that under s. 95 it would require an unequal division of value in
matrimonial home in favour of husband to extent of the mortgage payout // Significantly unfair to
deprive husband of benefit of sharing in his parents' estate // Neither husband or wife made
significant contribution to ppty - parents' did.
Court ordered:
 Husband entitled to value of mortgage in ppty
 Balance to be shared equally
 Husband to assume outstanding mortgage balance that was acquired to repair truck (his
excluded ppty – purchased with his personal injury claim monies)
Is this a fair result?
 What about time spent taking care of him from personal injury?
 A lot that she got was furniture for children, husband got funds
 Perhaps Mrs. S was not sophisticated and could not raise or retain evidence
103
FLA vs. FRA
Who is a parent?
Family Relations Act (FRA) – Old
Family Law Act (FLA) – New
No definition of legal parentage: it was
determined under s. 61 of Law and Equity Act
(repealed in 2013)
 Often find in family law that it borrows
from other areas of law
Definition of legal parentage is in Part 3 of the Act and is
the interpretation to be used for all purposes of BC laws
Birth certificate provided evidence, but not
proof of parentage
Birth certificate provides proof of parentage: FLA
combined with Vital Statistics Act - became necessary to
define parentage under FLA
"Legal parentage" was determined on the basis "Legal parentage" is determined:
of a Child's genetic connection to his/her parent.
 In non-ART: by birth mother and biological father
There was a presumption of paternity in the
(s. 26). There are presumptions of who is a
FRA.
biological father (s. 26(a) to (f)); or
 In ART: pursuant to the scheme in Part 3
No legislation re: ART - conceived Children
Comprehensive scheme re: legal parentage of ARTconceived Children
 When FLA was drafted, it was clear there had to
be some scheme/structure to guide this area.
No reference to status of "Donors" or whether a Donors are never legal parents by virtue of only being
person was a legal parent because he or she had donors (s. 24) unless the donation was for the purpose
donated sperm or eggs
of the donor's own reproductive us (s. 20: "donor")
 In practice, when someone donates
genetic material, the goal is to ensure, by
agreement or court order, that they have
no rights or obligations. Idea of donating
is they are not a parent.
 People may make arrangements where
there are rights and no obligations, or vice
versa.
Maximum of two parents
 Keep in mind parentage also wasn't
defined
Multiple legal parents by pre-conception agreements
(e.g. surrogacy agreement - important it's in place
before conception) (s. 29, 30) or by a court declaration
of parentage (s. 31)
A co-parent of a child conceived with ART could
be registered as a 'parent' on the child's birth
certificate, but needed a declaration of
parentage or adoption to be a legal parent (e.g.
fiancé story - would be an adoption)
A co-parent with the birth mother of a child conceived
by ART is presumed to be legal parent (s. 27) unless
consent to parental project was withdrawn before
conception or was never consented to
 Law changes depending on how the child was
conceived
104
Declaration of parentage not contemplated by
legislation; courts relied on inherent jurisdiction
(only federal courts)
 Only time this would arise is in the
adoption process
Declaration of parentage specifically provided for in Act
(s. 31)
No provision for determination of parentage of
children carried by surrogate mothers: a
declaration of parentage is required
Provides scheme for:
A. Pre-conception agreement b/w Intended Parents
and surrogate, followed by
B. Relinquishment of Child to Intended Parents, and
C. Birth registration of Intended Parents based on
agreement: no court order required (s. 29)
No dispute resolution section re: legal parentage Section 31 permits a court to make a declaration of legal
determination
parentage where there is "uncertainty or dispute" as to
parentage
 This didn't exist under the FRA
Any declaration of parentage had to be done in
Supreme Court - no legislation/so inherent
jurisdiction
Provincial court can do declaration of parentage
wherever the issue comes up, assuming the issue is
otherwise in the jurisdiction of the Provincial court (s.
31)
No provision for parentage of Children
conceived with genetic material from a person
who died before conception
Specific provision for Children conceived with genetic
material from person who died before conception (s. 28)
"Parenting" rights and responsibilities assigned
to legal parents and others who played a role in
the life of the Child - e.g. stepparents
"Parenting" rights and legal responsibilities assigned to
legal parents and others who played a role in the life of
a Child
 E.g. guardians and Stepparents - not dependent
on determination of parentage under Part 3
 Stepparents are not automatically guardians have to apply to be a guardian
 See Part 4 of FLA
Improvements in the FLA:
 That a "parent" under Part 3 is a "parent" for all the purposes of BC law is a sensible and
economical development.
 Status of a donor is now clear. Unless a donor of sperm is using the sperm for his own
reproductive project (including a multi-parent project), the sperm donor is never a
"parent"
 The ability under the FLA to have a surrogacy agreement and register the child as the child
of his or her "intended parents" without a court order is a helpful change
 The ability to create families with more than two parents. Though it will be used by a
minority of potential parents, it is parents in these circumstances who are among the most
vulnerable to a challenge of their parental status.
 The status of a co-parent whose partner conceives with ART has also been clarified. She or
he will continue to be able to be registered as a parent of the child when the child is born;
105
and unlike the old regime, will not require a declaration of birth or an adoption in addition
to registration of the birth
Division of Property
PP of FLA: impose a family purpose regime of ppty division, reduce judicial resources spent to
determine whether ppty was used for a family purpose --> supposed to be simpler and clearer.
Also Narrowed courts discretion (VJF, p.15).
Unequal division of property
 Look @ Jaszczewska – PP of FLA: simplify division of family ppty, render it more certain
and predictable, and divide ppty that better fits expectations of fairness. This is why the
bar to be met to justify unequal division was raised to "significant unfairness". Under FRA,
one factor was "relative contribution to acquisition, preservation, maintenance or
improvement of family ppty during rel'n" (e.g. who paid mortgage) but now it is only
career contributions (c) and post-separation increases in value beyond market trends (f)
o This is more narrow - legislature intended to narrow this factor; if FLA wanted to
consider it, it would have put this into the new legislation
o Also furthers objective of providing certainty
o (i) is a catch all provision - so unequal contribution may still be relevant but more
constrained
 look @ V.J.F.” para 2, 5, 6
Divorce Statistics
2008 Census Profile Summary:
 Over the last century, with the introduction of “no fault” divorce and the changes to the DA (i.e. 3 yr
separation to 1 yr separation), there has been a steady increase in the divorce rate.
 In 2008 there were 70,226 divorces in Canada (about of 21.1 divorces per 10,000 population). Across Canada,
the crude divorce rate was highest in Yukon (32.6 divorces per 10,000 population). Provincially, Alberta had
the highest provincial crude divorce rate (24.7), followed by Ontario (23.0).
 Close to one-fifth (19.4%) of divorces were for marriages of up to five years duration, while a further 22.6% of
divorces were for marriages that lasted between five and nine years. An additional 41.6% of divorces in 2008
were for marriages that had lasted between 10 and 24 years and 16.4% were for marriage durations of 25
years or more.
o Shorter marriages, less divorces. Increases for mid-length, and decrease for longer marriages
o But increasing divorces now for longer marriages as people are living longer (below)
 The primary reason provided for divorces was separation of at least one year (93.6%). An additional 3.7%
of the reasons provided for marital breakdown on the divorce application were for adultery, followed by
mental cruelty (1.6%) and physical cruelty (1.2%).
o Other grounds are hard to prove
 Steady increase of “silver separations” and “grey divorces”
o 37.6% of marriages entered in 2008 are expected to end in divorce before the 25th year of marriage.
o 43.1% of marriages entered in 2008 are expected to end in divorce before the 50th year of marriage.
106
2015 Exam
Q1
 married or not?
 What statute applies?
 FLA
 Denial of parenting time  61; is it wrongful per 62
 2014 – no chance b/c has to be w/in 12 months of denial
 mom might say – failure to exercise parenting time s.63

risk of family violence
 BIOC
Q2
 Arbitration over litigation
 Get to choose j
 Quicker
 Confidential  this is the most crucial for this fact pattern
 Simplify the rules of procedure & evidence
 More cost effective
 Flexible scheduling
Q3
 Part 5 of FLA
 Before 2016 cases, Sally gets 100,000 back b/c excluded property
 Does he get 20,000 back? No, b/c used in the course of the relationship
 Now, 100,000 @ risk – if joint tenancy  risky man
 She should probs take it b/c she is probably losing his 10
 Intent at the time
 At the face of it FLA tells us that it is excluded property but from 2016 cases we know that
it is not a complete cod
Q4
 Spouse  FLA
 Family violence
 After separation  s. 39; lived together so presumed to be guardian of child // living w/
the child important – problem: what if it is a day
 Obligation to pay child support
 Recognize that the DA won’t apply b/c CL
 Child Support Guideline – resident parent
 Calculating day care – proportionate share // imputing income and stuff
 Advice to get an order and use family enforce whatever
 He has to pay his proportionate share – employment related child care is an extra-ordinary
expense
 Relocation: do they have an agreement  go to s.46 BIOC
 Family violence factors – protection and communication order – these are hard to enforce
 If married –
Q5
 DA
 Adult kids; work  not children
 Sole-SH  incorporated
107






Determination of income
NO
Parties have an ability to enter into an agreement
Forcing her – form of family violence
If she signs, you better have a nice cover letter
Both biz are family property – s.5 have to disclose everything  can be set aside for lack of
disclosure
 Procedural fairness – duress, undue influence s.93
 Spousal support  she is entitled; compensatory (she stayed w/ kids); non-compensatory
 Non-compensatory  to equalize
 Medical condition might impact ability to work & ability to become independent
 Duration  unspecified term which will be reviewed when he turns 65
Review Class
Assets valued at the date of trial except pensions which are from date of marriage to separation
Can use misconduct to establish entitlement, but won’t consider for assessment
-------------------290. Bigamy
290. (1) Every one commits bigamy who
(a) in Canada,
(i) being married, goes through a form of marriage with another person,
(ii) knowing that another person is married, goes through a form of marriage with that person, or
(iii) on the same day or simultaneously, goes through a form of marriage with more than one
person; or
(b) being a Canadian citizen resident in Canada leaves Canada with intent to do anything
mentioned in subparagraphs (a)(i) to (iii) and, pursuant thereto, does outside Canada anything
mentioned in those subparagraphs in circumstances mentioned therein.
Matters of defence
(2) No person commits bigamy by going through a form of marriage if
(a) that person in good faith and on reasonable grounds believes that his spouse is dead;
(b) the spouse of that person has been continuously absent from him for seven years immediately
preceding the time when he goes through the form of marriage, unless he knew that his spouse
was alive at any time during those seven years;
(c) that person has been divorced from the bond of the first marriage; or
(d) the former marriage has been declared void by a court of competent jurisdiction.
Incompetency no defence
(3) Where a person is alleged to have committed bigamy, it is not a defence that the parties
would, if unmarried, have been incompetent to contract marriage under the law of the place
where the offence is alleged to have been committed.
Validity presumed
(4) Every marriage or form of marriage shall, for the purpose of this section, be deemed to be valid
unless the accused establishes that it was invalid.
Act or omission by accused
(5) No act or omission on the part of an accused who is charged with bigamy invalidates a
marriage or form of marriage that is otherwise valid.
293. Polygamy
108
293. (1) Every one who
(a) practises or enters into or in any manner agrees or consents to practise or enter into
(i) any form of polygamy, or
(ii) any kind of conjugal union with more than one person at the same time,
whether or not it is by law recognized as a binding form of marriage, or
(b) celebrates, assists or is a party to a rite, ceremony, contract or consent that purports to
sanction a relationship mentioned in subparagraph (a)(i) or (ii),
is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
Evidence in case of polygamy
(2) Where an accused is charged with an offence under this section, no averment or proof of the
method by which the alleged relationship was entered into, agreed to or consented to is necessary
in the indictment or on the trial of the accused, nor is it necessary on the trial to prove that the
persons who are alleged to have entered into the relationship had or intended to have sexual
intercourse.
109
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