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;

"child support guidelines" means the child support guidelines, provided for under section 247, for calculating child support;

"companion animal" means, subject to section 3.1 [companion animals], an animal that is kept primarily for the purpose of companionship;

"contact with a child" or "contact with the child" means contact between a child and a person, other than the child's guardian, the terms of which are set out in an agreement or order;

"court" means

(a) the Supreme Court, or

(b) to the extent that it has jurisdiction to make an order, the Provincial Court;

"excluded property" means property that would otherwise be family property but is excluded under section 85 [excluded property];

"family debt" means family debt as described in section 86 [family debt];

"family dispute resolution" means a process used by parties to a family law dispute to attempt to resolve one or more of the disputed issues outside court, and includes

(a) assistance from a family justice counsellor under Division 2 [Family Justice Counsellors] of Part 2,

(b) the services of a parenting coordinator under Division 3 [Parenting Coordinators] of Part 2,

(c) mediation, arbitration, collaborative family law and other processes, and

(d) prescribed processes;

"family dispute resolution professional" means any of the following:

(a) a family justice counsellor;

(b) a parenting coordinator;

(c) a lawyer advising a party in relation to a family law dispute;

(d) a mediator conducting a mediation in relation to a family law dispute, if the mediator meets the requirements set out in the regulations;

(e) an arbitrator conducting an arbitration in relation to a family law dispute, if the arbitrator meets the requirements set out in the regulations;

(f) a person within a class of prescribed persons;

"family justice counsellor" means a person appointed as a family justice counsellor under section 10 (1) [family justice counsellors];

"family law dispute" means a dispute respecting a matter to which this Act relates;

"family member", with respect to a person, means

(a) the person's spouse or former spouse,

(b) a person with whom the person is living, or has lived, in a marriage-like relationship,

(c) a parent or guardian of the person's child,

(d) a person who lives with, and is related to,

(i) the person, or

(ii) a person referred to in any of paragraphs (a) to (c), or

(e) the person's child,

and includes a child who is living with, or whose parent or guardian is, a person referred to in any of paragraphs (a) to (e);

"family property" means family property under section 84 [family property];

"family violence" includes, with or without an intent to harm a family member,

(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,

(iii) stalking or following of the family member, and

(iv) intentional damage to property, and

(e) 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" means a parent under Part 3 [Parentage];

"parental responsibilities" means one or more of the parental responsibilities listed in section 41 [parental responsibilities];

"parenting arrangements" means arrangements respecting the allocation of parental responsibilities or parenting time, or both;

"parenting coordinator" means a person who may act as a parenting coordinator under section 14 [parenting coordinators];

"parenting time" means parenting time as described in section 42 [parenting time];

"police officer" means a person who, under the Police Act,

(a) is a provincial constable or municipal constable or has the powers of a provincial constable or municipal constable, or

(b) is a constable other than a constable referred to in paragraph (a) and is within a prescribed class of constables;

"spouse" means a person who is a spouse within the meaning of section 3 [spouses and relationships between spouses];

"written agreement" means an agreement that is in writing and signed by all parties.

General interpretation

(a) is to be read as a reference to that part of an agreement or order that is relevant to the subject matter of the provision, of this Act or of the regulations made under it, in which the reference is made, and

(b) includes part of an agreement or order.

(2) A reference to a child's parent or guardian is to be read, as the context requires, as a reference to

(a) each parent or guardian of the child, or

(b) the parent or guardian who is the subject of the provision in which the reference is made.

Spouses and relationships between spouses

(a) is married to another person, or

(b) has lived with another person in a marriage-like relationship, and

(i) has done so for a continuous period of at least 2 years, or

(ii) except in Parts 5 [Property Division] and 6 [Pension Division], has a child with the other person.

(2) A spouse includes a former spouse.

(3) 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.

(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.

Companion animals

3.1   For the purposes of this Act, the following are not companion animals:

(a) a guide dog or service dog within the meaning of the Guide Dog and Service Dog Act;

(b) an animal that is kept as part of a business;

(c) an animal that is kept for agricultural purposes.

Purposes of Part

(a) to ensure that parties to a family law dispute are informed of the various methods available to resolve the dispute;

(b) to encourage parties to a family law dispute to resolve the dispute through agreements and appropriate family dispute resolution before making an application to a court;

(c) to encourage parents and guardians to

(i) resolve conflict other than through court intervention, and

(ii) create parenting arrangements and arrangements respecting contact with a child that is in the best interests of the child.

Duty to disclose

(2) A person must not use information obtained under this section except as necessary to resolve a family law dispute.

Agreements respecting family law disputes generally

(a) to resolve a family law dispute, or

(b) respecting

(i) a matter that may be the subject of a family law dispute in the future,

(ii) the means of resolving a family law dispute or a matter that may be the subject of a family law dispute in the future, including the type of family dispute resolution to be used, or

(iii) the implementation of an agreement or order.

(2) A single agreement may be made respecting one or more matters.

(3) Subject to this Act, an agreement respecting a family law dispute is binding on the parties.

(4) Subsection (3) applies whether or not

(a) there is consideration,

(b) the agreement has been made with the involvement of a family dispute resolution professional, or

(c) the agreement is filed with a court.

(5) A child who is a parent or spouse may enter into and be bound by an agreement, including an agreement respecting the division of property or debt.

Replacing agreements

(a) each part of the previous agreement that is changed is deemed to have been revoked, and

(b) the remainder of the previous agreement, if any, remains effective.

Duties of family dispute resolution professionals

(a) the safety of the party or a family member of that party, and

(b) the ability of the party to negotiate a fair agreement.

(2) Having regard to the assessment made under subsection (1), a family dispute resolution professional consulted by a party to a family law dispute must

(a) discuss with the party the advisability of using various types of family dispute resolution to resolve the matter, and

(b) inform the party of the facilities and other resources, known to the family dispute resolution professional, that may be available to assist in resolving the dispute.

(3) A family dispute resolution professional consulted by a party to a family law dispute must advise the party that agreements and orders respecting the following matters must be made in the best interests of the child only:

(a) guardianship;

(b) parenting arrangements;

(c) contact with a child.

Duties of parties respecting family dispute resolution

Family justice counsellors

(2) A family justice counsellor may provide the following assistance to a person:

(a) information respecting a family law dispute;

(b) family dispute resolution, including respecting

(i) guardianship,

(ii) parenting arrangements,

(iii) contact with a child, and

(iv) child and spousal support;

(c) referrals to other service providers or agencies.

(2.1) Subject to a court order, a family justice counsellor may grant to a person an exemption from a requirement to participate in all or part of a prescribed process.

(3) A family justice counsellor may assist the court under section 211 [orders respecting reports].

(4) For the purpose of providing assistance under this section, the following persons may collect, from a person relevant to the matter, personal information about any other person:

(a) a family justice counsellor;

(b) a person within a class of persons prescribed for the purposes of section 11 (1) (b) [confidentiality of information].

Confidentiality of information

(a) a family justice counsellor must not disclose information obtained in the course of providing assistance under section 10 (2) [family justice counsellors], and

(b) a person within a prescribed class of persons must not disclose information obtained from, or in the course of assisting, a family justice counsellor.

(2) With respect to personal information, this section applies despite the Freedom of Information and Protection of Privacy Act, other than section 44 (1) (b), (2), (2.1) and (3) of that Act.

Family justice counsellors not to be compelled

(a) a family justice counsellor;

(b) a person within a class of persons prescribed for the purposes of section 11 (1) (b) [confidentiality of information].

(2) For greater certainty, subsection (1) applies to the notes and records of the persons referred to in that subsection.

Information obtained while receiving assistance

(a) mediation, or

(b) negotiation or settlement discussions

under section 10 (2) (b) [family justice counsellors] is confidential and must not be used by the party in a proceeding respecting a family law dispute.

(2) Subsection (1) does not apply

(a) if the other party consents to the use of the information,

(b) to information, including a report, that is provided by a person who is not a party to the family law dispute, regardless of whether the information

(i) was obtained at the expense of either or both parties,

(ii) contains expert advice or opinions, or

(iii) was provided solely for the purposes of receiving assistance under section 10 (2) (b),

(c) in any circumstance under which the information is compellable by law, or

(d) to a written agreement between the parties

(i) to mediate, or

(ii) that resolves one or more issues relating to a family law dispute.

Parenting coordinators

When parenting coordinators may assist

(2) A parenting coordinator may assist only

(a) if there is a parenting coordination agreement or order in place, and

(b) for the purpose of implementing an agreement or order respecting parenting arrangements, contact with a child or other prescribed matters.

(3) A parenting coordination agreement or order may be made at the same time as, or after, an agreement or order respecting parenting arrangements, contact with a child or other prescribed matters is made.

(4) A parenting coordinator's authority to act ends 2 years after the parenting coordination agreement or order is made, unless the parenting coordination agreement or order specifies that the parenting coordinator's authority is to end on an earlier date or on the occurrence of an earlier event.

(5) Despite subsection (4), a parenting coordination agreement or order may be extended by a further parenting coordination agreement or order, but each extension may be for no more than 2 years.

(6) Despite subsection (4), a parenting coordination agreement or order may be terminated at any time as follows:

(a) in the case of an agreement, by agreement of the parties or by an order made on application by either of the parties;

(b) in the case of an order, by an order made on application by either of the parties;

(c) in any case, by the parenting coordinator, on giving notice to the parties and, if the parenting coordinator is acting under an order, to the court.

Information sharing for parenting coordination

(a) information requested by the parenting coordinator, and

(b) authorization to request and receive information, respecting a child or a party, from a person who is not a party.

Assistance from parenting coordinators

(a) by building consensus between the parties, including by

(i) creating guidelines respecting how an agreement or order will be implemented,

(ii) creating guidelines respecting communication between the parties,

(iii) identifying, and creating strategies for resolving, conflicts between the parties, and

(iv) providing information respecting resources available to the parties for the purposes of improving communication or parenting skills;

(b) by making determinations respecting the matters prescribed for the purposes of section 18 [determinations by parenting coordinators].

Determinations by parenting coordinators

(a) may make determinations respecting prescribed matters only, subject to any limits or conditions set out in the regulations,

(b) must not make a determination respecting any matter excluded by the parenting coordination agreement or order, even if the matter is a prescribed matter, and

(c) must not make a determination that would affect the division or possession of property, or the division of family debt.

(2) In making a determination respecting parenting arrangements or contact with a child, a parenting coordinator must consider the best interests of the child only, as set out in section 37 [best interests of child].

(3) A parenting coordinator may make a determination at any time.

(4) A parenting coordinator may make an oral determination, but must put the determination into writing and sign it as soon as practicable after the oral determination is made.

(5) Subject to section 19 [changing or setting aside determinations], a determination

(a) is binding on the parties, effective on the date the determination is made or on a later date specified by the parenting coordinator, and

(b) if filed in the court, is enforceable under this Act as if it were an order of the court.

Changing or setting aside determinations

(a) acted outside the parenting coordinator's authority, or

(b) made an error of law or of mixed law and fact.

(2) If the court sets aside a determination, the court may make any order that the court may make under this Act to resolve a dispute between the parties in relation to the subject matter of the determination.

(3) If the court does not set aside a determination, the court may make any order that the court may make under this Act to enforce compliance with the determination.

Definition

Arbitration agreements respecting family law disputes

19.2   (1) Subject to this Act, 2 or more persons may make an agreement to resolve, by arbitration, a family law dispute or a matter that may be the subject of a family law dispute in the future.

(2) Subject to subsection (3),

(a) an arbitration agreement may be made only after the dispute to be arbitrated has arisen, and

(b) if the requirement under paragraph (a) is not met, the arbitration agreement and any arbitration award arising from it are not enforceable.

(3) Subsection (2) does not apply in relation to any of the following that provides for arbitration of a future dispute respecting a matter provided for in the order, arbitration award or agreement:

(a) an order made under this Act;

(b) an arbitration award respecting a family law dispute;

(c) an agreement respecting the implementation of an order, an arbitration award or an agreement to resolve a family law dispute.

(4) Subject to this Act, an arbitration agreement may include provisions respecting any of the following:

(a) the name of the arbitrator or a procedure for selecting an arbitrator;

(b) the matters or disputes that are to be submitted to arbitration;

(c) the law applicable to the substance of a dispute or that a matter in dispute be decided on the basis of equitable grounds, grounds of conscience or some other basis;

(d) the procedures for conducting the arbitration, including the following:

(i) the form and manner in which the parties are to identify the matters or disputes to be submitted to arbitration and the positions of the parties in relation to those matters or disputes;

(ii) the process for financial disclosure by the parties;

(iii) the form and manner in which evidence and argument are presented;

(iv) the process for the examination of witnesses;

(v) the use of expert evidence;

(vi) the form of an arbitration award;

(e) the authority of the arbitrator in respect of the following matters:

(i) the administration of an oath or affirmation;

(ii) issuance of arbitration awards, including interim awards;

(iii) conducting the arbitration in the absence of one or more of the parties;

(iv) costs of the arbitration, including awarding costs against a party.

Setting aside arbitration agreements

19.3   (1) On application by a party to an arbitration agreement, the Supreme Court may set aside or replace with an order made under this section all or part of the arbitration agreement if satisfied that one or more of the following circumstances existed when the parties entered into the agreement:

(a) a party took improper advantage of the other party's vulnerability, including the other party's ignorance, need or distress;

(b) a party did not understand the nature or consequences of the agreement;

(c) other circumstances existed that would, under the common law, cause all or part of a contract to be voidable.

(2) The Supreme Court may decline to act under subsection (1) if, on consideration of all of the evidence, the Supreme Court would not replace the arbitration agreement with an order that is substantially different from the terms set out in the agreement.

Stay of court proceedings

19.4   (1) If a party starts legal proceedings in a court in respect of a matter agreed to be submitted to arbitration, a party to the legal proceedings may, before submitting the party's first response on the substance of the dispute, apply to that court to stay the legal proceedings.

(2) In an application under subsection (1), the court must make an order staying the legal proceedings unless it determines that the arbitration agreement is void, inoperative or incapable of being performed.

Orders respecting protection of persons or property

19.5   It is not incompatible with an arbitration agreement for a party, before or during an arbitration, to apply to a court for an order referred to in paragraph (a) or (b) or to enforce any of the following orders, and for the court to make or enforce the order, as applicable:

(a) an order under section 91 [temporary orders respecting protection of property];

(b) an order under Part 9 [Protection from Family Violence];

(c) an order of a court or tribunal, made under an enactment of any jurisdiction, that is similar in nature to an order referred to in paragraph (b).

Order for appointment of arbitrator

(a) the arbitrator named in the arbitration agreement is, for any reason, unable to act;

(b) the procedure for selecting an arbitrator set out in the arbitration agreement does not, for any reason, result in the appointment of an arbitrator;

(c) the arbitration agreement does not name an arbitrator or set out a procedure for selecting an arbitrator and the parties fail to agree on the appointment of an arbitrator.

No revocation of appointment

Independence and impartiality of arbitrator

19.8   (1) An arbitrator must be independent of the parties.

(2) An arbitrator must be impartial and act impartially.

(3) If a person is approached in connection with the person's possible appointment as an arbitrator, the person must, without delay, disclose any circumstances likely to give rise to justifiable doubts as to the person's independence or impartiality.

(4) An arbitrator, from the time of the arbitrator's appointment and throughout the arbitration, must, without delay, disclose to the parties any circumstances referred to in subsection (3).

Order revoking appointment

19.9   (1) On application by a party, the Supreme Court may revoke the appointment of an arbitrator if satisfied that there are justifiable doubts as to the arbitrator's independence or impartiality.

(2) For the purposes of subsection (1), there are justifiable doubts as to the arbitrator's independence or impartiality only if there is a real danger of bias on the part of the arbitrator in conducting the arbitration.

Law applicable to substance of dispute

19.10   (1) In an arbitration of a family law dispute, the law applicable to the substance of the dispute is the law designated by the parties.

(2) If the parties have not designated the law applicable to the substance of the dispute, the arbitrator may choose the applicable law.

(3) An arbitrator must decide the substance of a family law dispute in accordance with the applicable law, including any equitable rights or defences available under that law.

(4) An arbitrator may grant relief or remedies under the applicable law, including orders of specific performance, injunctions, declarations or other equitable remedies available under that law.

(5) Despite subsection (3), if the arbitration agreement provides that the matter in dispute be decided on equitable grounds, grounds of conscience or some other basis, the arbitrator must decide the matter on that basis.

(6) Despite subsections (1) to (5) and any agreement of the parties, an arbitrator, in making an arbitration award that deals with a matter referred to in

(a) any of Divisions 1 to 5 of Part 4, must consider the best interests of the child, as set out in section 37 [best interests of child] only, and

(b) Division 6 of Part 4, must consider, in addition to section 37, the factors set out in section 69 (4) (a) [orders respecting relocation].

Evidence

19.11   (1) The arbitrator may decide all evidentiary matters, including the admissibility, relevance, materiality and weight of any evidence, and may draw such inferences as the circumstances justify.

(2) Unless otherwise agreed by the parties, the arbitrator is not required to apply the law of evidence other than the law of privilege.

Production and evidence from non-parties

19.12   (1) If, on application by a party or on the arbitrator's own initiative, an arbitrator determines that a person who is not a party should give evidence or produce records, the arbitrator may

(a) issue a subpoena to a person in British Columbia requiring the person to give evidence or produce for inspection records in the person's possession or control, or

(b) request a court of competent jurisdiction to assist the arbitrator by requiring a person in or outside British Columbia to give evidence or produce for inspection records in the person's possession or control.

(2) A subpoena under subsection (1) (a) must set out, and a request under subsection (1) (b) must propose, the following, as applicable:

(a) how, where and when the person is to give evidence;

(b) the records the person is to produce;

(c) how, where and when the records are to be produced and copied;

(d) conditions for the payment of the expenses of the person named in the subpoena or request.

(3) A subpoena under subsection (1) (a) has the same effect as if it were issued in a court proceeding.

(4) A subpoena under subsection (1) (a) may be set aside on application by the person named in the subpoena to the arbitrator or the Supreme Court.

Powers of arbitrator

(a) establish procedures and make procedural orders for the conduct of the arbitration and, without limiting that, may administer an oath or affirmation,

(b) make an interim arbitration award, and

(c) at any time during the arbitration, make a costs award and make costs payable at any time.

Form, content and delivery of arbitration award

19.14   (1) An arbitration award must be in writing, signed by the arbitrator and delivered to the parties.

(2) The arbitrator must, on request of a party, deliver an original signed copy of the arbitration award to each party.

(3) An arbitrator must provide reasons for an arbitration award, unless

(a) the parties to the arbitration have agreed that no reasons are to be provided, or

(b) the award is an arbitration award on agreed terms.

(4) An arbitration award must state the place of arbitration and the date on which the award is made.

Correction and interpretation of arbitration award

(a) a party may request the arbitrator to correct in the arbitration award any computation, clerical or typographical errors or any other errors of a similar nature, and

(b) a party may, if agreed by the parties, request the arbitrator to give an interpretation of a specific point or part of the arbitration award.

(2) If the arbitrator considers the request made under subsection (1) to be justified, the arbitrator must make the correction or give the interpretation within 30 days after receipt of the request, and the interpretation forms part of the arbitration award.

(3) The arbitrator may correct, on the arbitrator's own initiative, any type of error described in subsection (1) (a) within 30 days after the date of the arbitration award.

(4) The arbitrator may, if necessary, extend the period of time within which the arbitrator must make a correction or give an interpretation under subsection (2).

(5) Section 19.14 applies to a correction or interpretation of an arbitration award made under this section.

Arbitration award binding

Termination of arbitration

19.17   (1) An arbitration of a family law dispute is terminated by the final arbitration award or by an order of the arbitrator under subsection (2).

(2) The arbitrator must issue an order for the termination of the arbitration if

(a) the parties agree on the termination of the arbitration, or

(b) the arbitrator finds that the continuation of the arbitration has for any other reason become unnecessary or impossible.

Orders respecting arbitration awards

19.18   (1) On application by a party, the Supreme Court may change or set aside an arbitration award if satisfied that any of the following apply:

(a) there are justifiable doubts as to the arbitrator's independence or impartiality;

(b) a party was not provided a reasonable opportunity to be heard respecting the award;

(c) the award was obtained by fraud or duress;

(d) the award deals with a dispute not falling within the terms of the arbitration agreement or contains a decision on a matter that is beyond the scope of the arbitration agreement;

(e) the arbitrator acted outside the arbitrator's authority.

(2) For the purposes of subsection (1) (a), there are justifiable doubts as to the arbitrator's independence or impartiality only if there was a real danger of bias on the part of the arbitrator in conducting the arbitration.

(3) On application by a party, the Supreme Court may change, suspend or terminate all or part of an arbitration award for any reason for which an order in relation to the same matter could be changed, suspended or terminated under this Act.

Appeal

19.19   (1) A party to an arbitration may appeal to the Supreme Court an arbitration award on any question of law or on any question of mixed law and fact.

(2) The time limit for starting an appeal is 40 days, beginning on the day after the arbitration award is received by the party.

(3) On an appeal, the Supreme Court may do one or more of the following:

(a) confirm, amend or set aside the arbitration award;

(b) remit the arbitration award to the arbitrator together with the court's opinion on the question of law that was the subject of the appeal.

Enforcement of arbitration awards

19.20   (1) Subject to this Act, if an arbitration award is filed in the court, the award is enforceable under this Act as if it were an order of the court.

(2) Despite any agreement of the parties to a family law dispute, a provision of an arbitration award that is inconsistent with this Act or the Divorce Act (Canada) is not enforceable.

Immunity

19.21   (1) Subject to subsection (2), no legal proceeding for damages lies or may be commenced or maintained against an arbitrator because of anything done or omitted

(a) in the performance or intended performance of any duty under this Division or under an arbitration agreement, or

(b) in the exercise or intended exercise of any power under this Division or under an arbitration agreement.

(2) Subsection (1) does not apply to an arbitrator in relation to anything done or omitted in bad faith.

Confidentiality

19.22   (1) Subject to this Act and any agreement of the parties, the parties and the arbitrator must not disclose proceedings, evidence, documents and information in connection with the arbitration that are not otherwise in the public domain.

(2) Subsection (1) does not apply if disclosure is

(a) required by law,

(b) required for the purposes of a proceeding under this Act, or

(c) authorized by a court order.

Interpretation

"assisted reproduction" means a method of conceiving a child other than by sexual intercourse;

"birth mother" means the person who gives birth to, or is delivered of, a child, regardless of whether her human reproductive material was used in the child's conception;

"donor" means a person who, for the purposes of assisted reproduction other than for the person's own reproductive use, provides

(a) his or her own human reproductive material, from which a child is conceived, or

(b) an embryo created through the use of his or her human reproductive material;

"embryo" means a human organism during the first 56 days of its development following fertilization or creation, excluding any time during which its development has been suspended, and includes any cell derived from such an organism that is used for the purpose of creating a human being;

"human reproductive material" means a sperm, an ovum or another human cell or human gene, and includes a part of any of them;

"intended parent" or "intended parents" means a person who intends, or 2 persons who are married or in a marriage-like relationship who intend, to be a parent of a child and, for that purpose, the person makes or the 2 persons make an agreement with another person before the child is conceived that

(a) the other person will be the birth mother of a child conceived through assisted reproduction, and

(b) the person, or the 2 persons, will be the child's parent or parents on the child's birth, regardless of whether that person's or those persons' human reproductive material was used in the child's conception.

(2) A child born as a result of assisted reproduction is deemed to have been conceived on the day the human reproductive material or embryo was implanted in the birth mother.

Void and voidable marriages

(a) 2 persons go through a form of marriage to each other, with at least one of them doing so in good faith,

(b) the 2 persons live together during the marriage, and

(c) the marriage is void,

the 2 persons are deemed to have been married during the period they were living together, and the marriage is deemed to have ended when the persons stopped living together.

(2) For the purposes of this Part, if a voidable marriage is declared a nullity, the persons who went through the form of marriage are deemed to be married until the date of the declaratory order of nullity.

Effect of Part

Parentage to be determined by this Part

(a) a person is the child of the person's 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 the person's 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.

Donor not automatically parent

(a) is not, by reason only of the donation, the child's parent,

(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 the person's 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.

Parentage if adoption

Parentage if no assisted reproduction

(2) For the purposes of this section, a male person is presumed, unless the contrary is proved or subsection (3) applies, to be a child's biological father in any of the following circumstances:

(a) he was married to the child's birth mother on the day of the child's birth;

(b) he was married to the child's birth mother and, within 300 days before the child's birth, the marriage was ended

(i) by his death,

(ii) by a judgment of divorce, or

(iii) as referred to in section 21 [void and voidable marriages];

(c) he married the child's birth mother after the child's birth and acknowledges that he is the father;

(d) he was living with the child's birth mother in a marriage-like relationship within 300 days before, or on the day of, the child's birth;

(e) he, along with the child's birth mother, has acknowledged that he is the child's father by having signed a statement under section 3 of the Vital Statistics Act;

(f) he has acknowledged that he is the child's father by having signed an agreement under section 20 of the Child Paternity and Support Act, R.S.B.C. 1979, c. 49.

(3) If more than one person may be presumed to be a child's biological father, no presumption of paternity may be made.

Parentage if assisted reproduction

(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.

Parentage if assisted reproduction after death

(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.

(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 the person 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.

Parentage if surrogacy arrangement

(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 the intended parent's or parents' 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

(b) cannot be located after reasonable efforts to locate the surrogate 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.

Parentage if other arrangement

(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 marriage-like 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.

Orders declaring parentage

(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.

New evidence

(2) On application, a court may confirm or set aside an order made under section 31, or make a new order under that section.

(3) The setting aside of an order under subsection (2) of this section does not affect

(a) rights or duties that have already been exercised, or

(b) property interests that have already been distributed.

Parentage tests

(a) human leukocyte antigen tests,

(b) tests of the deoxyribonucleic acid (DNA), and

(c) any other test the court considers appropriate.

(2) On application by a party to a proceeding under this Part,

(a) the Supreme Court, or

(b) if necessary for the purposes of making an order under section 31 [orders declaring parentage], the Provincial Court,

may order a person, including a child, to have a tissue sample or blood sample, or both, taken by a medical practitioner or other qualified person for the purpose of conducting parentage tests.

(3) An order under subsection (2) of this section may require a party to pay all or part of the cost of the parentage tests.

(4) If a person named in an order under subsection (2) of this section fails to comply with the order, the court may draw from that failure any inference that the court considers appropriate.

Definitions

"extraprovincial declaratory order" means an order of an extraprovincial tribunal that declares whether a person is a child's parent;

"extraprovincial tribunal" means a court or tribunal, outside British Columbia, having authority to make orders declaring whether a person is a child's parent.

Recognition of Canadian extraprovincial declaratory orders

(2) On recognition by a court, an extraprovincial declaratory order made in Canada has the same effect as if it were an order made under section 31 [orders declaring parentage].

(3) A court may decline to recognize an extraprovincial declaratory order made in Canada and make an order under section 31, if

(a) evidence becomes available that was not available during the proceeding at which the extraprovincial declaratory order was made, or

(b) the court is satisfied that the extraprovincial declaratory order was obtained by fraud or duress.

Recognition of non-Canadian extraprovincial declaratory orders

(a) was habitually resident in the jurisdiction of the extraprovincial tribunal, or

(b) had a real and substantial connection with the jurisdiction of the extraprovincial tribunal.

(2) On recognition by a court, an extraprovincial declaratory order made outside Canada has the same effect as if it were an order made under section 31 [orders declaring parentage].

(3) A court may decline to recognize an extraprovincial declaratory order made outside Canada and make an order under section 31, if

(a) evidence becomes available that was not available during the proceeding at which the extraprovincial declaratory order was made,

(b) the court is satisfied that the extraprovincial declaratory order was obtained by fraud or duress, or

(c) the extraprovincial declaratory order is contrary to public policy.

Best interests of child

(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;

(b) the child's views, unless it would be inappropriate to consider them;

(c) the nature and strength of the relationships between the child and significant persons in the child's life;

(d) the history of the child's care;

(e) the child's need for stability, given the child's age and stage of development;

(f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise the person's responsibilities;

(g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;

(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in the person's ability to care for the child and meet the child's needs;

(i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;

(j) any civil or criminal proceeding relevant to the child's safety, security or well-being.

(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.

(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.

Assessing family violence

(a) the nature and seriousness of the family violence;

(b) how recently the family violence occurred;

(c) the frequency of the family violence;

(d) whether any psychological or emotional abuse constitutes, or is evidence of, a pattern of coercive and controlling behaviour directed at a family member;

(e) whether the family violence was directed toward the child;

(f) whether the child was exposed to family violence that was not directed toward the child;

(g) the harm to the child's physical, psychological and emotional safety, security and well-being as a result of the family violence;

(h) any steps the person responsible for the family violence has taken to prevent further family violence from occurring;

(i) any other relevant matter.

Parents are generally guardians

(2) Despite subsection (1), an agreement or order made after separation or when the parents are about to separate may provide that a parent is not the child's guardian.

(3) A parent who has never resided with the parent's child is not the child's guardian unless one of the following applies:

(a) section 30 [parentage if other arrangement] applies and the person is a parent under that section;

(b) the parent and all of the child's guardians make an agreement providing that the parent is also a guardian;

(c) the parent regularly cares for the child.

(4) If a child's guardian and a person who is not the child's guardian marry or enter into a marriage-like relationship, the person does not become a guardian of that child by reason only of the marriage or marriage-like relationship.

Parenting arrangements

(2) Unless an agreement or order allocates parental responsibilities differently, each child's guardian may exercise all parental responsibilities with respect to the child in consultation with the child's other guardians, unless consultation would be unreasonable or inappropriate in the circumstances.

(3) Parental responsibilities may be allocated under an agreement or order such that they may be exercised by

(a) one or more guardians only, or

(b) each guardian acting separately or all guardians acting together.

(4) In the making of parenting arrangements, no particular arrangement is presumed to be in the best interests of the child and without limiting that, the following must not be presumed:

(a) that parental responsibilities should be allocated equally among guardians;

(b) that parenting time should be shared equally among guardians;

(c) that decisions among guardians should be made separately or together.

Parental responsibilities

(a) making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child;

(b) making decisions respecting where the child will reside;

(c) making decisions respecting with whom the child will live and associate;

(d) making decisions respecting the child's education and participation in extracurricular activities, including the nature, extent and location;

(e) making decisions respecting the child's cultural, linguistic, religious and spiritual upbringing and heritage, including, if the child is an Indigenous child, the child's Indigenous identity;

(f) subject to section 17 of the Infants Act, giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the child;

(g) applying for a passport, licence, permit, benefit, privilege or other thing for the child;

(h) giving, refusing or withdrawing consent for the child, if consent is required;

(i) receiving and responding to any notice that a parent or guardian is entitled or required by law to receive;

(j) requesting and receiving from third parties health, education or other information respecting the child;

(k) subject to any applicable provincial legislation,

(i) starting, defending, compromising or settling any proceeding relating to the child, and

(ii) identifying, advancing and protecting the child's legal and financial interests;

(l) exercising any other responsibilities reasonably necessary to nurture the child's development.

Parenting time

(2) During parenting time, a guardian may exercise, subject to an agreement or order that provides otherwise, the parental responsibility of making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child.

Exercise of parental responsibilities

(2) If a guardian is temporarily unable to exercise any of the parental responsibilities described in section 41 (a), (c), (d), (f) to (j) or (l) [parental responsibilities], the child's guardian, in writing, may authorize a person to exercise, in the best interests of the child, one or more of those responsibilities on that guardian's behalf while the guardian is unable to do so.

Agreements respecting parenting arrangements

(a) the allocation of parental responsibilities;

(b) parenting time;

(c) the implementation of an agreement made under this section;

(d) the means for resolving disputes respecting an agreement made under this section.

(2) An agreement respecting parenting arrangements is binding only if the agreement is made

(a) after separation, or

(b) when the parties are about to separate, for the purpose of being effective on separation.

(3) A written agreement respecting parenting arrangements that is filed in the court is enforceable under this Act as if it were an order of the court.

(4) On application by a party, the court must set aside or replace with an order made under this Division all or part of an agreement respecting parenting arrangements if satisfied that the agreement is not in the best interests of the child.

Orders respecting parenting arrangements

(a) the allocation of parental responsibilities;

(b) parenting time;

(c) the implementation of an order made under this Division;

(d) the means for resolving disputes respecting an order made under this Division.

(2) An order under subsection (1) must not be made if the child's guardians are the child's parents and are not separated.

(3) The court may make an order to require that the transfer of a child from one party to another, or that parenting time with a child, be supervised by another person named in the order if the court is satisfied that supervision is in the best interests of the child.

(4) Despite subsection (1), a person applying for guardianship may apply, at the same time, for an order under this section.

Changes to child's residence if no agreement or order

(a) no written agreement or order respecting parenting arrangements applies in respect of a child;

(b) an application is made for an order described in section 45 (1) (a) or (b) [orders respecting parenting arrangements];

(c) the child's guardian plans to change the location of that child's residence and the change can reasonably be expected to have a significant impact on that child's relationship with another guardian.

(2) To determine the parenting arrangements that would be in the best interests of the child in the circumstances set out in subsection (1) of this section, the court

(a) must consider, in addition to the factors set out in section 37 (2) [best interests of child], the reasons for the change in the location of the child's residence, and

(b) must not consider whether the guardian who is planning to move would do so without the child.

Changing, suspending or terminating orders respecting parenting arrangements

Informal parenting arrangements

(a) no agreement or order respecting parenting arrangements applies in respect of a child, and

(b) the child's guardians have had in place informal parenting arrangements for a period of time sufficient for those parenting arrangements to have been established as a normal part of that child's routine,

a child's guardian must not change the informal parenting arrangements without consulting the other guardians who are parties to those arrangements, unless consultation would be unreasonable or inappropriate in the circumstances.

(2) Nothing in subsection (1) prevents a child's guardian from seeking

(a) an agreement respecting parenting arrangements, or

(b) an order under section 45 [orders respecting parenting arrangements].

Referral of questions to court

Agreements respecting guardianship

(a) if the person is the child's parent, or

(b) as provided under this Division, the Adoption Act or the Child, Family and Community Service Act.

Orders respecting guardianship

(a) appoint a person as a child's guardian, or

(b) except in the case of a director who is a child's guardian under the Adoption Act or the Child, Family and Community Service Act, terminate a person's guardianship of a child.

(2) An applicant under subsection (1) (a) of this section must provide evidence to the court, in accordance with the Supreme Court Family Rules or the Provincial Court Family Rules, respecting the best interests of the child as described in section 37 [best interests of child] of this Act.

(3) Subsection (2) of this section applies regardless of whether there is consent to the application under section 219 [persons may consent to order being made].

(4) If a child is 12 years of age or older, a court must not appoint a person other than a parent as the child's guardian without the child's written approval, unless satisfied that the appointment is in the best interests of the child.

(5) A person who has custody of a child under section 54.01 (5) or 54.1 of the Child, Family and Community Service Act is deemed, for the purposes of this Act, to be a guardian appointed under subsection (1) of this section.

Who is entitled to notice

(a) each parent or guardian of the child affected by the application;

(b) each adult person with whom the child usually lives and who generally has care of the child;

(c) any other person to whom the court considers it appropriate to serve with notice.

(2) Subsection (1) does not apply to a parent of a child if any of the following apply:

(a) the parent's guardianship was terminated by a continuing custody order under the Child, Family and Community Service Act;

(b) another person has custody of the child under section 54.1 of the Child, Family and Community Service Act;

(c) another person has custody of the child under section 54.01 (5) of the Child, Family and Community Service Act.

(3) The court may grant an exemption from a requirement to give notice under subsection (1) if the court considers it appropriate.

Appointment of guardian in case of death

(a) in a will made in accordance with the Wills, Estates and Succession Act, or

(b) in the prescribed form,

(i) signed at its end by the guardian, or the signature at the end must be acknowledged by the guardian as the guardian's, in the presence of 2 or more witnesses present at the same time, and

(ii) signed by 2 or more of the witnesses in the presence of the guardian.

(2) For the purposes of subsection (1) (b),

(a) a witness may not be a person appointed to be the child's guardian, and

(b) a reference to the signature of a guardian includes a signature made by another person in the guardian's presence and by the guardian's direction, and the signature may be either the guardian's name or the name of the person signing.

(3) If a child's guardian dies without having made an appointment under subsection (1) of this section or under section 55 (1) [appointment of standby guardian], and there is

(a) one surviving guardian who is also the child's parent, the surviving guardian has all parental responsibilities with respect to the child, unless an order provides otherwise, or

(b) more than one surviving guardian who are also the child's parent, each of the surviving guardians has the parental responsibilities that the deceased guardian had with respect to the child, unless an agreement or order provides otherwise.

Loss of guardian

Appointment of standby guardian

(2) An appointment under subsection (1)

(a) must be made in the prescribed form,

(i) signed at its end by the guardian, or the signature at the end must be acknowledged by the guardian as the guardian's, in the presence of 2 or more witnesses present at the same time, and

(ii) signed by 2 or more of the witnesses in the presence of the guardian,

(b) must state the conditions that must be met for the appointment to take effect, and

(c) may provide that a designated person certify that a condition referred to in paragraph (b) has been met and that, if such a certification is made, it is conclusive.

(3) For the purposes of subsection (2) (a),

(a) a witness may not be a person appointed to be the child's guardian, and

(b) a reference to the signature of a guardian includes a signature made by another person in the guardian's presence and by the guardian's direction, and the signature may be either the guardian's name or the name of the person signing.

(4) In carrying out parental responsibilities, a guardian appointed under this section must consult with the appointing guardian to the fullest possible extent regarding the care and upbringing of the child.

(5) Unless the appointing guardian, while capable, has revoked the appointment or the appointment provides otherwise, a guardian appointed under this section continues as the child's guardian on the death of the appointing guardian despite any other instrument made by the appointing guardian.

Limits on appointments

(a) must consider the best interests of the child only, and

(b) may not grant greater parental responsibilities than the appointing guardian has with respect to the child.

Appointments must be accepted to take effect

Agreements respecting contact

(2) An agreement respecting contact with a child is binding only if the agreement is made between all of a child's guardians having parental responsibility for making decisions respecting with whom the child may associate.

(3) A written agreement respecting contact with a child that is filed in the court is enforceable under this Act as if it were an order of the court.

(4) On application by a party, the court must set aside or replace with an order made under this Division all or part of an agreement respecting contact with a child if satisfied that the agreement is not in the best interests of the child.

Orders respecting contact

(2) A court may grant contact to any person who is not a guardian, including, without limiting the meaning of "person" in any other provision of this Act or a regulation made under it, to a parent or grandparent.

(3) The court may make an order to require the parties to transfer the child under the supervision of, or require contact with the child to be supervised by, another person named in the order if the court is satisfied that supervision is in the best interests of the child.

(4) An access order referred to in section 54.2 (2.1) or (3) of the Child, Family and Community Service Act is deemed, for the purposes of this Act, to be an order made under subsection (1) of this section for contact with a child.

Changing, suspending or terminating orders respecting contact

Denial of parenting time or contact

(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;

(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.

(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.

When denial is not wrongful

(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.

Failure to exercise parenting time or contact

(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;

(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).

(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.

Orders to prevent removal of child

(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;

(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.

(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.

Definition and application

(a) a guardian, or

(b) one or more other persons having a significant role in the child's life.

(2) This Division applies if

(a) a child's guardian plans to relocate themselves or the child, or both, and

(b) a written agreement or an order respecting parenting arrangements or contact with the child applies to the child.

Notice of relocation

(a) the date of the relocation, and

(b) the name of the proposed location.

(2) The court may grant an exemption from all or part of the requirement to give notice under subsection (1) if satisfied that

(a) notice cannot be given without incurring a risk of family violence by another guardian or a person having contact with the child, or

(b) there is no ongoing relationship between the child and the other guardian or the person having contact with the child.

(3) An application for an exemption under subsection (2) may be made in the absence of any other party.

Resolving issues arising from relocation

(2) Nothing in subsection (1) prevents

(a) a guardian from making an application under section 69 [orders respecting relocation], or

(b) a person having contact with the child from making an application under section 59 [orders respecting contact] or 60 [changing, suspending or terminating orders respecting contact], as applicable, for the purpose of maintaining the relationship between the child and a person having contact with the child if relocation occurs.

Child may be relocated unless guardian objects

Orders respecting relocation

(2) On application by a guardian, a court may make an order permitting or prohibiting the relocation of a child by the relocating guardian.

(3) Despite section 37 (1) [best interests of child], the court, in making an order under this section, must consider, in addition to the factors set out in section 37 (2), the factors set out in subsection (4) (a) of this section.

(4) If an application is made under this section and the relocating guardian and another guardian do not have substantially equal parenting time with the child,

(a) the relocating guardian must satisfy the court that

(i) the proposed relocation is made in good faith, and

(ii) the relocating guardian has proposed reasonable and workable arrangements to preserve the relationship between the child and the child's other guardians, persons who are entitled to contact with the child, and other persons who have a significant role in the child's life, and

(b) on the court being satisfied of the factors referred to in paragraph (a), the relocation must be considered to be in the best interests of the child unless another guardian satisfies the court otherwise.

(5) If an application is made under this section and the relocating guardian and another guardian have substantially equal parenting time with the child, the relocating guardian must satisfy the court

(a) of the factors described in subsection (4) (a), and

(b) that the relocation is in the best interests of the child.

(6) For the purposes of determining if the proposed relocation is made in good faith, the court must consider all relevant factors, including the following:

(a) the reasons for the proposed relocation;

(b) whether the proposed relocation is likely to enhance the general quality of life of the child and, if applicable, of the relocating guardian, including increasing emotional well-being or financial or educational opportunities;

(c) whether notice was given under section 66 [notice of relocation];

(d) any restrictions on relocation contained in a written agreement or an order.

(7) 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.

If relocation permitted

(a) subject to subsection (2) of this section, if the order made under section 69 affects an agreement or order that allocates parenting arrangements between the relocating guardian and another guardian, an order under section 45 [orders respecting parenting arrangements] or 47 [changing, suspending or terminating orders respecting parenting arrangements], as applicable;

(b) any order necessary to ensure that the relocating guardian complies with the terms of the order permitting relocation, including an order to do one or more of the following:

(i) give security in any form the court directs;

(ii) transfer specific property to a trustee named by the court.

(2) In making an order under subsection (1), the court must seek to preserve, to a reasonable extent, parenting arrangements under the original agreement or order.

Not a change in circumstances

Definitions and interpretation

"extraprovincial order" means an order of an extraprovincial tribunal that is similar in nature to an order respecting guardianship, parenting arrangements or contact with a child;

"extraprovincial tribunal" means a court or tribunal, outside British Columbia, having authority to make an extraprovincial order.

(2) For the purposes of this Division, a child is habitually resident in the place where the child most recently resided

(a) with the child's parents,

(b) if the parents are living separate and apart, with one parent

(i) under an agreement,

(ii) with the implied consent of the other parent, or

(iii) under an order of a court or tribunal, or

(c) with a person other than a parent on a permanent basis for a significant period of time.

(3) The removal or withholding of a child without the consent of a guardian does not affect the child's habitual residence unless the guardian from whom the child is being removed or withheld acquiesces or delays in applying for an order of a court or an extraprovincial tribunal.

Purposes

(a) to ensure that court applications respecting guardianship, parenting arrangements or contact with a child are determined on the basis of the best interests of the child;

(b) to avoid the making of orders respecting guardianship, parenting arrangements or contact with a child, respecting the same child, in more than one jurisdiction;

(c) to discourage child abduction as an alternative to determining by due process the guardianship of, or parenting arrangements with respect to, a child;

(d) to provide for effective enforcement of orders respecting guardianship, parenting arrangements or contact with a child, and for the recognition and enforcement of extraprovincial orders.

Determining whether to act under this Part

(2) Despite any other provision of this Part, a court may make an order under this Part respecting guardianship, parenting arrangements or contact with a child only if one of the following conditions is met:

(a) the child is habitually resident in British Columbia when the application is filed;

(b) the child is not habitually resident in British Columbia when the application is filed, but the court is satisfied that

(i) the child is physically present in British Columbia when the application is filed,

(ii) substantial evidence concerning the best interests of the child is available in British Columbia,

(iii) no application for an extraprovincial order is pending before an extraprovincial tribunal in a place where the child is habitually resident,

(iv) no extraprovincial order has been recognized by a court in British Columbia,

(v) the child has a real and substantial connection with British Columbia, and

(vi) on the balance of convenience, it is appropriate for jurisdiction to be exercised in British Columbia;

(c) the child is physically present in British Columbia and the court is satisfied that the child would suffer serious harm if the child were to

(i) remain with, or be returned to, the child's guardian, or

(ii) be removed from British Columbia.

(3) A court may decline to make an order under this Part if the court considers that it is more appropriate for jurisdiction to be exercised outside British Columbia.

Recognition of extraprovincial orders

(a) the extraprovincial tribunal would have had jurisdiction to make the order under the rules that are applicable in British Columbia;

(b) each party to a proceeding in which the extraprovincial order was made had

(i) reasonable notice that the order would be made, and

(ii) a reasonable opportunity to be heard respecting the order;

(c) the extraprovincial tribunal was required by law to consider the best interests of the child;

(d) it would not be contrary to public policy in British Columbia to recognize the order.

(2) On recognition by a court,

(a) an extraprovincial order has the same effect, and may be enforced, as if it were an order made under section 45 [orders respecting parenting arrangements], 51 [orders respecting guardianship] or 59 [orders respecting contact], as applicable, and

(b) the court may, if necessary to give effect to the extraprovincial order, make any order that the court may make under this Act.

(3) If an application is made to recognize more than one extraprovincial order and the orders conflict, the court must recognize the order that is most consistent with the best interests of the child.

Superseding extraprovincial orders

(a) the child would suffer serious harm if that child were to

(i) remain with, or be returned to, the child's guardian, or

(ii) be removed from British Columbia, or

(b) a change in circumstances affects, or is likely to affect, the best interests of the child and subsection (2) of this section applies.

(2) For the purposes of subsection (1) (b), an order may be made only if

(a) the child is habitually resident in British Columbia when an application is filed, or

(b) the child is not habitually resident in British Columbia when the application is filed, but the court is satisfied that

(i) the circumstances described in section 74 (2) (b) (i), (ii), (v) and (vi) [determining whether to act under this Part] apply, and

(ii) the child no longer has a real and substantial connection with the place where the extraprovincial order was made.

Wrongful removal of child

(a) may not make an order or declines to make an order under section 74 [determining whether to act under this Part], or

(b) is satisfied that a child has been wrongfully removed to, or is being wrongfully retained in, British Columbia.

(2) In the circumstances set out in subsection (1), a court may do one or more of the following:

(a) make any interim order that the court is satisfied is in the best interests of the child;

(b) stay an application to the court for an order, subject to

(i) the condition that a party to the application promptly start a similar proceeding before an extraprovincial tribunal, or

(ii) any other conditions the court considers appropriate;

(c) order a party to return the child to a place the court considers appropriate and, in the discretion of the court, order a party to pay all or part of the expenses reasonably and necessarily incurred for travel and other expenses of the child and of any parties to or witnesses in the proceeding.

Extraprovincial evidence

(2) If a court considers it necessary to receive evidence from a place outside British Columbia before making an order respecting guardianship, parenting arrangements or contact with a child, the court may send to the senior legal executive of the place a request, along with any necessary supporting material, that

(a) the senior legal executive take any necessary action to require a named person to attend before the proper tribunal in that place and produce or give evidence respecting the subject matter of the application, and

(b) the senior legal executive, or the tribunal, send to the court a certified copy of the evidence produced or given before the tribunal.

(3) A court that acts under subsection (2) may order payment of all or part of the expenses reasonably and necessarily incurred for the purposes of this section.

Referral to court

(2) A court to which the Attorney General refers a request under subsection (1) must require the person named in the request to attend before the court and produce or give evidence in accordance with the request.

International child abduction

(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.

Equal entitlement and responsibility

(a) spouses are both entitled to family property and responsible for family debt, regardless of their respective use or contribution, and

(b) 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.

Certain presumptions not to be applied

(2) The rule of law applying a presumption of resulting trust must not be applied in questions respecting the ownership of property as between spouses.

Rights and remedies of third parties

Interpretation

(a) they begin to live together again and the primary purpose for doing so is to reconcile, and

(b) they continue to live together for one or more periods, totalling at least 90 days.

(2) Nothing in this Part affects a division of property under an agreement or order in a circumstance where, after the agreement or order was made, spouses live together and then separate again.

(3) For the purposes of this Part, property received by a spouse from a trust in respect of the spouse's beneficial interest in property held in the trust must be considered to be property derived from that beneficial interest.

(4) In this Part, "property" includes a beneficial interest in property unless a contrary intention appears.

Family property

(a) on the date the spouses separate,

(i) property that is owned by at least one spouse, or

(ii) a beneficial interest of at least one spouse in property;

(b) after separation,

(i) property acquired by at least one spouse if the property is derived from property referred to in paragraph (a) (i) or from a beneficial interest referred to in paragraph (a) (ii), or from the disposition of either, or

(ii) a beneficial interest acquired by at least one spouse in property if the beneficial interest is derived from property referred to in paragraph (a) (i) or from a beneficial interest referred to in paragraph (a) (ii), or from the disposition of either.

(2) Without limiting subsection (1), family property includes the following:

(a) a share or an interest in a corporation;

(b) an interest in a partnership, an association, an organization, a business or a venture;

(c) property owing to a spouse

(i) as a refund, including an income tax refund, or

(ii) in return for the provision of a good or service;

(d) money of a spouse in an account with a financial institution;

(e) a spouse's entitlement under an annuity, a pension plan, a retirement savings plan or an income plan;

(f) property, other than property to which subsection (3) applies, that a spouse disposes of after the relationship between the spouses began, but over which the spouse retains authority, to be exercised alone or with another person, to require its return or to direct its use or further disposition in any way;

(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.

(2.1) For the purposes of subsection (2) (g), any increase in value of a beneficial interest in property held in a discretionary trust does not include the value of any property received from the trust.

(3) Despite subsection (1) of this section and subject to section 85 (1) (e), family property includes that part of trust property contributed by a spouse to a trust in which

(a) the spouse is a beneficiary, and has a vested interest in that part of the trust property that is not subject to divestment,

(b) the spouse has a power to transfer to themselves that part of the trust property, or

(c) the spouse has a power to terminate the trust and, on termination, that part of the trust property reverts to the spouse.

Excluded property

(a) property acquired by a spouse before the relationship between the spouses began;

(b) inheritances to a spouse;

(b.1) gifts to a spouse from a third party;

(c) a settlement or an award of damages to a spouse as compensation for injury or loss, unless the settlement or award represents compensation for

(i) loss to both spouses, or

(ii) lost income of a spouse;

(d) money paid or payable under an insurance policy, other than a policy respecting property, except any portion that represents compensation for

(i) loss to both spouses, or

(ii) lost income of a spouse;

(e) property referred to in any of paragraphs (a) to (d) that is held in trust for the benefit of a spouse;

(f) a spouse's beneficial interest in property held in a discretionary trust

(i) to which the spouse did not contribute, and

(ii) that is settled by a person other than the spouse;

(g) property derived from property or the disposition of property referred to in any of paragraphs (a) to (f).

(2) A spouse claiming that property is excluded property is responsible for demonstrating that the property is excluded property.

(3) If property is excluded from family property under subsection (1), the exclusion applies despite any transfer of legal or beneficial ownership of the property from a spouse to the other spouse.

Family debt

(a) during the period beginning when the relationship between the spouses begins and ending when the spouses separate, and

(b) after the date of separation, if incurred for the purpose of maintaining family property.

Valuing family property and family debt

(a) the value of family property must be based on its fair market value, and

(b) 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.

Orders under this Division

Orders for interim distribution of property

(a) family dispute resolution,

(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.

Temporary orders respecting family residence

(a) owned or leased by one spouse or both, and

(b) the ordinary place of residence of the spouses.

(2) The Supreme 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.

(4) If an order has been made under subsection (2), the Supreme Court may

(a) order that the right of a spouse to apply for partition and sale of, or to sell or otherwise dispose of or encumber, the family residence or personal property

(i) be postponed, and

(ii) is subject to the order made under subsection (2), and

(b) change the order made under subsection (2).

(5) Nothing in this section prevents the filing of an entry under the Land (Spouse Protection) Act.

Temporary orders respecting protection of property

(2) The Supreme 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.

(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.

Agreements respecting property division

(a) divide family property or family debt, or both, and do so equally or unequally;

(b) include as family property or family debt items of property or debt that would not otherwise be included;

(c) exclude as family property or family debt items of property or debt that would otherwise be included;

(d) value family property or family debt differently than it would be valued under section 87 [valuing family property and family debt];

(e) jointly own a companion animal;

(f) share possession of a companion animal;

(g) give exclusive ownership or possession of a companion animal to one of the spouses.

Setting aside agreements respecting property division

(2) For the purposes of subsection (1), the same person may witness each signature.

(3) On application by a spouse, the Supreme Court may set aside or replace with an order made under this Part all or part of an agreement described in subsection (1) only if satisfied that one or more of the following circumstances existed when the parties entered into the agreement:

(a) a spouse failed to disclose significant property or debts, or other information relevant to the negotiation of the agreement;

(b) a spouse took improper advantage of the other spouse's vulnerability, including the other spouse's ignorance, need or distress;

(c) a spouse did not understand the nature or consequences of the agreement;

(d) other circumstances that would, under the common law, cause all or part of a contract to be voidable.

(4) The Supreme Court may decline to act under subsection (3) if, on consideration of all of the evidence, the Supreme Court would not replace the agreement with an order that is substantially different from the terms set out in the agreement.

(5) Despite subsection (3), the Supreme Court may set aside or replace with an order made under this Part all or part of an agreement if satisfied that none of the circumstances described in that subsection existed when the parties entered into the agreement but that the agreement is significantly unfair on consideration of the following:

(a) the length of time that has passed since the agreement was made;

(b) the intention of the spouses, in making the agreement, to achieve certainty;

(c) the degree to which the spouses relied on the terms of the agreement.

(6) Despite subsection (1), the Supreme Court may apply this section to an unwitnessed written agreement if the court is satisfied it would be appropriate to do so in all of the circumstances.

Orders respecting property division

(2) The Supreme Court may not make an order respecting the division of property and family debt that is the subject of an agreement described in section 93 (1) [setting aside agreements respecting property division], unless all or part of the agreement is set aside under that section.

Unequal division by order

(a) equally divide family property or family debt, or both, or

(b) divide family property as required under Part 6 [Pension Division].

(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;

(b) the terms of any agreement between the spouses, other than an agreement described in section 93 (1) [setting aside agreements respecting property division];

(c) a spouse's contribution to the career or career potential of the other spouse;

(d) whether family debt was incurred in the normal course of the relationship between the spouses;

(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;

(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;

(i) any other factor, other than the consideration referred to in subsection (3), that may lead to significant unfairness.

(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.

Division of excluded property

(a) family property or family debt located outside British Columbia cannot practically be divided, or

(b) it would be significantly unfair not to divide excluded property on consideration of the duration of the relationship between the spouses and one or more of the following factors:

(i) a spouse's direct contribution to the preservation, maintenance, improvement, operation or management of the excluded property;

(ii) the terms of any agreement between the spouses respecting the excluded property, other than an agreement described in section 93 (1) [setting aside agreements respecting property division], including but not limited to terms respecting the transfer of the excluded property;

(iii) if the Supreme Court makes a determination under section 95 (1) [unequal division by order] respecting significant unfairness, the extent to which the significant unfairness cannot be addressed by an unequal division of family property or family debt, or both.

Giving effect to property division

(a) determine any matter respecting the ownership, right of possession, or division of the property or family debt, and

(b) despite sections 94 (2) [orders respecting property division] and 215 (2) [changing, suspending or terminating orders generally], and subject to subsections (3) to (4.3) of this section, as applicable, make any order that is necessary, reasonable or ancillary to give effect to the division.

(2) Without limiting subsection (1), the Supreme Court may make an order to do one or more of the following:

(a) declare who has ownership of, or right of possession to, property, including a companion animal;

(b) require that title to a specified property granted to a spouse be transferred to, held in trust for, or vested in the spouse, absolutely, for life or for a term of years;

(c) require a spouse to pay compensation to the other spouse if property has been disposed of, transferred, converted, or exchanged into another form, or for the purpose of dividing the property;

(d) require partition or sale of property and payment to be made out of the proceeds of sale to one spouse or both in specified proportions or amounts;

(e) require property forming all or a part of the share of either or both spouses to be transferred to, held in trust for, or vested in a child;

(f) require a spouse to give security, in any form the court directs, for the performance of an obligation imposed by an order under this section, including a charge on property;

(g) require a spouse to waive or release in writing any right, benefit or protection given by section 23 of the Chattel Mortgage Act, R.S.B.C. 1979, c. 48, section 19 of the Sale of Goods on Condition Act, R.S.B.C. 1979, c. 373, or section 58 or 67 of the Personal Property Security Act;

(h) subject to subsection (3), declare that one spouse is responsible for payment of an item of family debt and must indemnify the other spouse for the item of family debt;

(i) require the sale of property for the purposes of paying an item of family debt;

(j) transfer property to a spouse.

(3) An order in relation to family debt applies only as between the spouses and does not affect an agreement between a spouse and any other person.

(4) Nothing in this section permits the Supreme Court to divide excluded property unless

(a) division is permitted under section 96 [division of excluded property], or

(b) the excluded property is a companion animal.

(4.1) In determining whether to make an order under subsection (1) respecting a companion animal, the Supreme Court must consider the following factors:

(a) the circumstances in which the companion animal was acquired;

(b) the extent to which each spouse cared for the companion animal;

(c) any history of family violence;

(d) the risk of family violence;

(e) a spouse's cruelty, or threat of cruelty, toward an animal;

(f) the relationship that a child has with the companion animal;

(g) the willingness and ability of each spouse to care for the basic needs of the companion animal;

(h) any other circumstances the court considers relevant.

(4.2) An order respecting a companion animal must not

(a) declare that the spouses jointly own the companion animal, or

(b) require the spouses to share possession of the companion animal.

(4.3) Sections 95 [unequal division by order] and 96 do not apply to the making of an order respecting a companion animal.

Definitions

"described land" means land described in a notice of agreement;

"financing change statement" has the same meaning as in the Personal Property Security Act;

"financing statement" has the same meaning as in the Personal Property Security Act;

"notice of agreement" means a notice setting out

(a) the full name and last known address of each spouse who is a party to a property agreement,

(b) a description of land to which the property agreement relates, and

(c) the provisions of the property agreement that relate to the land described in the notice;

"personal property registry" means the personal property registry established under the Personal Property Security Act;

"property agreement" means a written agreement respecting division of property and debt, with the signature of each spouse witnessed by at least one other person;

"registration" means the registration, in the personal property registry, of a financing statement in relation to a manufactured home.

Filing in land title office

(2) On filing a notice of agreement and on paying the prescribed fee and any fees payable under the Land Title Act, the registrar may register the notice of agreement, in the same manner as a charge is registered, against the described land.

(3) If a notice of agreement is registered, the registrar must not allow registration of a transfer, a mortgage, an agreement for sale or a conveyance of the fee simple in the land, or a lease of the land, unless each spouse who is a party to the agreement signs and files in the land title office a cancellation or postponement notice.

(4) If a cancellation or postponement notice is filed or an order is made under section 101 [orders for postponement, cancellation or discharge], the registrar must cancel or postpone the registration of the notice of agreement in the same manner as the registration of a charge is cancelled or postponed.

(5) A notice of agreement or cancellation or postponement notice under this section must be made in the form and manner approved, and contain the information required, by the Director of Land Titles.

Filing in personal property registry

(2) If a registration is made,

(a) sections 43 (1) to (3), (6) to (8) and (12) to (15), 46 to 48, 52 and 54 of the Personal Property Security Act apply, and

(b) unless the parties to the property agreement register in the personal property registry a financing change statement discharging or postponing the registration,

(i) any security interest created in the manufactured home after registration is subordinate to the interest created by the property agreement, and

(ii) the registrar of manufactured homes must not register a transfer of the manufactured home.

(3) A financing statement and a financing change statement must be made in the form and manner prescribed under the Personal Property Security Act.

(4) If a financing change statement discharging or postponing the registration is registered or an order is made under section 101 [orders for postponement, cancellation or discharge], the registrar must discharge or postpone the registration.

Orders for postponement, cancellation or discharge

(a) cannot be located, after a reasonable search is made,

(b) unreasonably refuses to

(i) sign or file a cancellation notice under section 99 (3), or

(ii) register a financing change statement under section 100 (2) (b), or

(c) is a person with a mental disorder.

Donor of gift is party to agreement

Enforceability of interest in property

(2) Section 29 of the Land Title Act applies to a spouse's interest in land.

(3) If, on acquiring property other than land, a person does not have actual notice of a spouse's interest in the property, the spouse's interest is not enforceable against that person.

(4) Despite subsections (2) and (3), a spouse's interest is enforceable against the other spouse from the date of separation, unless a property agreement between the spouses, or an order, provides otherwise.

Rights under this Part

(2) The rights under this Part are in addition to and not in substitution for rights under equity or any other law.

Definitions and interpretation

"extraprovincial property" means property located outside British Columbia;

"proper law of the relationship" means the proper law of the relationship as determined under section 107 [proper law of relationship].

(2) For the purposes of this Division, spouses do not have a common habitual residence in a jurisdiction if they live separate and apart in the jurisdiction.

Determining whether to act under this Part

(2) Despite any other provision of this Part, the Supreme Court has authority to make an order under this Part only if one of the following conditions is met:

(a) a spouse has started another proceeding in the Supreme Court, to which a proceeding under this Part is a counterclaim;

(b) both spouses submit, either in an agreement or during the proceeding, to the Supreme Court's jurisdiction under this Part;

(c) either spouse is habitually resident in British Columbia at the time a proceeding under this Part is started;

(d) there is a real and substantial connection between British Columbia and the facts on which the proceeding under this Part is based.

(3) For the purposes of subsection (2) (d), a real and substantial connection is presumed to exist if one or more of the following apply:

(a) property that is the subject of the proceeding is located in British Columbia;

(b) the most recent common habitual residence of the spouses was in British Columbia;

(c) a notice of family claim with respect to the spouses has been issued under the Divorce Act (Canada) in British Columbia.

(4) Despite subsection (2), a court may decline to make an order under this Part if the court, having regard to the interests of the spouses and the ends of justice, considers that it is more appropriate for jurisdiction to be exercised outside British Columbia.

(5) In determining whether to decline jurisdiction under subsection (4), the court must consider all of the following:

(a) [Repealed 2014-9-15.]

(b) the relative convenience and expense for the spouses and their witnesses;

(c) if section 108 [choice of law rules] applies, the law to be applied to issues in the proceeding;

(d) the desirability of avoiding multiple proceedings or conflicting decisions in different courts or tribunals;

(e) the extent to which an order respecting property or debt

(i) made in another jurisdiction would be enforceable in British Columbia, and

(ii) made in British Columbia would be enforceable in another jurisdiction;

(f) the fair and efficient working of the Canadian legal system as a whole;

(g) any other circumstances the court considers relevant.

(6) A determination of authority under subsection (2) or of whether to decline jurisdiction under subsection (4) is to be made solely by reference to this section.

Proper law of relationship

(a) the internal law of the jurisdiction in which the spouses had their most recent common habitual residence,

(b) if the jurisdiction under paragraph (a) is outside Canada and is not the jurisdiction most closely associated with the relationship between the spouses, the internal law of the jurisdiction that is most closely associated with the relationship between the spouses, or

(c) if the spouses did not have a common habitual residence, the internal law of the jurisdiction in which the spouse making an application for an order under this Part was most recently habitually resident.

Choice of law rules

(a) are deemed to be owned or owing by both spouses, and

(b) are divided, on separation of the spouses, as if both spouses equally owned the property or owed the debt,

but does not include a regime of separate property or a system of law under which a spouse's interest is deferred until or after the occurrence of an event that signifies the end of the relationship between the spouses.

(2) If the Supreme Court takes jurisdiction under this Division, the Supreme Court must act in accordance with the rules set out in this section.

(3) Subject to subsection (4), if spouses make an agreement respecting the division of property or debt, the substantive rights of the spouses in a proceeding under this Part are determined by the agreement.

(4) The enforcement of an agreement under subsection (3) is subject to any restriction that the proper law of the relationship places on the ability of spouses to determine the division of property or debt by agreement.

(5) Subject to subsection (3), if the spouses' first common habitual residence during the relationship between the spouses was in a jurisdiction in which a regime of community of property applies, property owned or acquired and debt owing or acquired during the relationship between the spouses that is property or debt to which the regime of community of property applies must be divided at the end of the relationship between the spouses according to that regime of community of property.

(6) If neither subsection (3) nor (5) applies, the substantive rights of spouses in a proceeding under this Part must be determined according to the proper law of the relationship.

Extraprovincial property

(2) For the purposes of dividing extraprovincial property, the Supreme Court, on application by a spouse, may make an order to do one or more of the following:

(a) instead of dividing the extraprovincial property,

(i) require property or family debt within British Columbia to be substituted for rights in the extraprovincial property, or

(ii) require a spouse who has legal title to the extraprovincial property to pay compensation to the other spouse;

(b) if the court is satisfied that it would be enforceable against a spouse in the jurisdiction in which the extraprovincial property is located,

(i) preserve the extraprovincial property,

(ii) provide for the possession of the extraprovincial property,

(iii) require a spouse who has legal title to the extraprovincial property to transfer all or part of the spouse's interest in the extraprovincial property to the other spouse, or

(iv) provide for any other matter in connection with the extraprovincial property;

(c) if the court is satisfied that it would be enforceable in the jurisdiction in which the extraprovincial property is located, provide for non-monetary relief.

Definitions

"administrator" means a person responsible for administering a plan

(a) under the terms of the plan,

(b) as required by the Pension Benefits Standards Act or equivalent legislation in another jurisdiction, or

(c) as required by the Pooled Registered Pension Plans Act or equivalent legislation in another jurisdiction,

and includes the administrator of a supplemental plan and the issuer of an annuity;

"beneficiary" means a person entitled to receive benefits on the death of a member;

"benefit", in relation to a plan, means a pension or other monetary amount a person is or may become entitled to receive under the plan, but does not include a refund of actuarial excess or surplus;

"benefit formula provision" means

(a) a defined benefit provision,

(b) a target benefit provision, or

(c) any provision of the plan text document of a plan that is prescribed under the Pension Benefits Standards Act to be a benefit formula provision;

"commuted value" means the commuted value of a benefit, determined in accordance with the Pension Benefits Standards Act;

"defined benefit provision" means a provision of the plan text document of a plan that establishes a formula by which the amount of the pension that is to be paid to a member is determined, but does not include a target benefit provision or a provision that is prescribed under the Pension Benefits Standards Act to be a benefit formula provision;

"defined contribution account" means the account referred to in paragraph (a) of the definition of "defined contribution provision";

"defined contribution provision" means a provision of the plan text document of a plan that

(a) contemplates that an actual or notional account will be maintained to record

(i) the contributions, other than additional voluntary contributions within the meaning of the Pension Benefits Standards Act, made by or on behalf of a member,

(ii) the interest, within the meaning of the Pension Benefits Standards Act, allocated to the account, and

(iii) administration expenses and other money deducted by payment, transfer or withdrawal from the money referred to in subparagraphs (i) and (ii), and

(b) provides that the benefits to which the member is entitled under the provision are determined solely by reference to the amount of that account;

"extraprovincial plan", subject to the regulations, means a plan that is not a local plan, and includes a supplemental plan to an extraprovincial plan;

"former Act" means the Family Relations Act, R.S.B.C. 1996, c. 128;

"hybrid plan", subject to the regulations, means any of the following:

(a) a plan if some of the benefits under the plan are determined under a defined contribution provision and other benefits under the plan are determined under a benefit formula provision;

(b) a plan if one of the following applies:

(i) a member may choose whether benefits are determined under either or both of a defined contribution provision and a benefit formula provision;

(ii) the plan text document contains rules that provide whether benefits are determined under either or both of a defined contribution provision and a benefit formula provision;

(c) a prescribed plan;

"joint and survivor pension" means a pension payable during the lives of the member and another person and, after the death of one of them, to the survivor for life;

"limited member" means a person designated under section 113 [designation of limited members] as a limited member of a local plan;

"local plan", subject to the regulations, means any of the following:

(a) a plan that is established by the government;

(b) a plan that

(i) is registered under the Pension Benefits Standards Act, the Pooled Registered Pension Plans Act or legislation equivalent to either in another jurisdiction, and

(ii) has members who accrue, or have accrued, entitlement to benefits under the plan from employment, or in the case of a pooled registered pension plan, self-employment, in British Columbia;

(c) a plan that is subject to this Part

(i) by the terms of the plan,

(ii) by the operation of legislation, in British Columbia or another jurisdiction, that regulates the plan,

(iii) by reason of the requirements of the Pension Benefits Standards Act and a reciprocal agreement between governments, or

(iv) by reason of the requirements of a reciprocal agreement between governments in respect of the Pooled Registered Pension Plans Act and equivalent legislation of the jurisdictions of the other governments;

(d) a prescribed plan;

(e) a plan for specified individuals that

(i) is registered under the Pension Benefits Standards Act, or

(ii) has members who accrue, or have accrued, entitlement to benefits under the plan from employment in British Columbia;

"member", in relation to a plan, means a person, other than a limited member, who

(a) has made contributions to the plan or on whose behalf an employer is or was required by the plan to make contributions, and who has not terminated membership or begun receiving a pension,

(b) retains a present or future entitlement to receive a benefit under the plan, or

(c) has begun

(i) receiving a pension, or

(ii) if the member is or was entitled to receive benefits under a defined contribution provision, making withdrawals from the member's defined contribution account;

"pension" means a series of periodic payments that, under the terms of the plan text document of a plan, is payable,

(a) in the case of payments under a benefit formula provision, for the life of a member, whether or not the pension is continued to another person,

(b) in the case of an annuity purchased by an administrator for a member, for the life of the member, whether or not the pension is continued to another person,

(c) in the case of payments under a defined contribution provision, until the earlier of

(i) the date on which the member dies, and

(ii) the date on which the balance in the member's defined contribution account is zero, or

(d) in the case of a supplemental plan, for the life of a member or for a shorter period, whether or not the payments are continued to another person;

"phased retirement benefit", in relation to a member of a plan who is at least 60 years of age, or is at least 55 years of age and entitled under the plan to receive a pension without reduction, means payments out of the plan of an amount that is payable periodically to the member for a period other than for the life of the member;

"phased retirement period" means the period during which phased retirement benefits are to be paid to a person who is eligible to receive them;

"plan" means a plan, a scheme or an arrangement, other than a prescribed plan, scheme or arrangement, organized and administered to provide pensions for members;

"plan text document", in relation to a plan, means the record that sets out the rights, obligations and entitlements under the plan;

"proportionate share" means a fraction calculated in accordance with the regulations, an agreement or an order;

"separate pension" means the share of a member's benefits, determined in accordance with the regulations, that is

(a) payable to a limited member until the earlier of the death of the limited member and the termination of benefits under the plan, and

(b) separate from the benefits payable to the member;

"specified individuals" has the same meaning as in section 8515 (4) of the Income Tax Regulations under the Income Tax Act (Canada);

"supplemental plan", subject to the regulations, means a plan

(a) under which initial and continuing membership is subject to first having membership in another plan, and

(b) under which benefits are provided that supplement those provided under the other plan;

"survivor benefits" means lump-sum or periodic benefits paid under a plan to a beneficiary when a member dies;

"target benefit provision" means a provision of the plan text document of a plan that

(a) establishes a formula by which the amount of the pension that is intended to be payable to a member is to be determined, and

(b) provides that the actual benefit under the plan may be reduced below the intended benefit;

"transfer" means a transfer made in accordance with the regulations.

Benefits to be determined in accordance with this Part

(2) For the purposes of this Part, all of a member's benefits are deemed to be allocated to the member if an agreement between that member and that member's spouse, or if an order,

(a) is silent on entitlement to benefits, and

(b) represents a final settlement and separation of the financial affairs of the member and the spouse in recognition of the end of the relationship between the spouses.

(3) Nothing in subsection (2) affects a court's jurisdiction under Part 5 in relation to an agreement or order.

(4) Without limiting subsection (1) but subject to subsection (2), if

(a) a spouse of a member of a plan is entitled under Part 5 [Property Division] to an interest in benefits payable to the member, and

(b) before the spouse receives the spouse's share of those benefits, the member becomes entitled to receive additional amounts under the plan, including, without limitation, a refund of actuarial excess or surplus within the meaning of the Pension Benefits Standards Act,

the spouse is entitled to an interest in those additional amounts.

Original agreements and orders

(2) If an original agreement or order provides that benefits are not divisible, provides for a method of division other than in accordance with this Part, or is silent on entitlement to benefits, a member and a spouse may agree to have benefits divided under this Part at any time before the earliest of the following:

(a) benefits are divided under the original agreement or order;

(b) the member or spouse dies;

(c) benefits are terminated under the plan.

(3) If the original agreement or order provides that the member must pay the spouse a proportionate share of benefits under a plan when the member's pension commences,

(a) if the member's pension has not commenced,

(i) the member and spouse may agree, by the spouse giving notice under Division 2 [Division of Benefits under Local Plans] of this Part, to divide benefits in accordance with this Part, and

(ii) unless the member and spouse agree otherwise, the original agreement or order must be administered in accordance with the regulations, or

(b) regardless of whether the member's pension has commenced, the spouse may choose to have benefits divided in accordance with section 117 [local plans after pension commencement].

(4) Subsection (3) (b) does not apply if the original agreement or order expressly prohibits the division of benefits under Part 6 of the former Act or under this Part.

(5) Unless an agreement or order provides otherwise, a term in the agreement or order that requires a member to sever, or to assist a spouse in severing, the spouse's share from the member's benefits under a plan as soon as it becomes possible to do so is conclusively deemed to be an agreement referred to in subsection (3) (a) (i) of this section, made as of the date the administrator receives notice that the spouse is to be designated as a limited member or is entitled to benefits under section 114 [benefits determined under defined contribution provision].

Designation of limited members

(a) are under a local plan or under a supplemental plan to a local plan, and

(b) are to be divided in any manner other than by way of an immediate transfer from a defined contribution account under section 114 (2) (a).

(2) A spouse may be designated as a limited member of the local plan, or as a limited member of a supplemental plan to the local plan, in any of the following ways:

(a) by the spouse giving notice in accordance with section 136 [notice or waiver];

(b) by the member giving notice in accordance with section 136;

(c) by the personal representative of the spouse's estate giving notice in accordance with section 136, only if the member's pension has not commenced at the time of the spouse's death.

(3) A limited member has the following rights: