Family
Contents
Preliminary Matters
[§1.01]	Introduction: FRA; Divorce Act	1
[§1.02]	Initial Interview: Cx are emotional, have misconceptions (5). If at all possible, matter should be settled, NOT LITIGATED	1
	Get sufficient, incl marital history. Avoid conflicts of interest	2
[§1.03]	Financial Disclosure: ask cx to search records, get Y tax returns. Good to list spouse’s assets and liabilities, make sure claim appropriate assets for Cx.  Do searches, e.g. LTO, corporate, PPR	2
[§1.04]	Special Duties of Counsel: if want divorce, must draw Cx’s attn to DA s.9 re: reconciliation. Lawyer MUST discuss possibility of reconciliation and inform of counseling facilities available.  Lawyer must signe declaration that has complied w/DA s.9.  Also discuss advisability of negotiating custody/support issues, inform of mediation facilties	3
[§1.05]	Urgent Matters: in initial interview, determine if any immediate action required	3
	1.	Status of Litigation -may need to act asap to prevent default judgment,  set aside orders	3
	2.	Preservation of Property - ensure assets preserved pending trial.  Register caveat, file  certificate of pending litigation (CPL); get FRA s.67 order preserving assets, get Law and Equity Act s.39 order; 
		File entry under Land (Spouse Protection) Act - latter applies to married spouses, preserves interest in homestead when property held in name of other spouse w/out starting action.	3
	3.	Protection of Persons: Possible relief under FRA ss.37, 38,  126	3
	4.	Preservation of the Status Quo	3
	5.	Limitation Periods	3
[§1.06]	Mediation - family law disputes resolved w/ADR. Mediation is process of resolving disputes using impartial professional to control processi n which parties themselves define solution.  Defined in HB App 2(1)	3

	1.	The Process: mediator will assist negotation; has no decision making power, won’t impose resolution. Sessions are confidential, w/out prej. Emphasis on cooperation. Still have independent legal advicd, lawyers may or may not be present.  Agr will be drafted by mediator or one party’s lawyer.    	4
		HB App2(4): mediator must encourage parties to get independent legal advice before signing agreement.  As lawyer providing this, be aware Cx aware of all rights and understands terms, that full disclosure was made; 	4

	2.	Who is Entitled to Mediate? (a)General: be knowledgable in family law. Parties must be willing to allow 3P; mediator must be actively involved but be neutral, work to reconcile competing interests, be skilled communicator	4
		(b) Lawyer-mediators: must meet standards of Law Society Rules 3-20. Limitations imposed under HB App2(3), 2(5)- min requirements for written agr. to mediate	5
		(c) Nonlawyer-mediators - anyone can offer services, ongoing issue of standards	5
	3.When to Consider It: pretty much anything can be mediated, see list	6
	Cx concerned w/cost or speed of resolution; who manifest cooperative attitude or can identify differences w/spouse are all appropriate individs for mediation	6
	May not be appropriate w/unequal bargaining positions, violent history; if not committed to giving best efforts/willing to listen	6
Family law proceedings
[§2.01]	The Legislation: DA, FRA.  DA alone governs divorce; FRA along governs guardianship. Both cover child custody, access to child; child/spousal support.  Must be legally married to invoke DA.  FRA governs division of assets, incl if in ‘marrriage-like’ rel’n, s.120.1	21
[§2.02]	Choosing the Forum	21
	1.	Jurisdiction: SC can hear all family law issues not assigned elsewhere by statute. Prov Ct only has jurisdiction assigned by leg’n. Only SC can grant divorce and make orders wrt property	21
		SC and Prov Ct can make FRA orders wrt children and support. Only SC has inherent jurisdiction to make order in best interests of children wrt issue not governed by leg’n	21
		SEE CHART AT APP 2,  p. 42

2.	Disclosure: SC process governed by SCR; Prov Ct (Family) Ruless govern FRA matters. SCR incl disclosure mechanisms not available in Prov Ct	22

3.	Enforcement: Each ct enforces own orders; power to punish for contempt of order only in SC. Prov Ct can only punish contumacious behaviour occurring in J’s presence	22
		SC order for custody, support, access is enforceable by Prov Ct (FRA s.12)	22
		FRA 128, breach of order made under certain sections = offense	22
[§2.03]	INITIATING COURT PROCEEDINGS	22
	1.	Supreme Court	22
		(a)	Writ of Summons and Statement of Claim - family law proceeding governed by SCR 60, whcih incorporates most other SCR via SCR 60(2).  Commenced by customzied writ and StCl. in Forms 127, 128.	22
		SCR 60(16) permits joinder,  service OK outside BC-SCR  13(1)(q)(i)	22
		Can file defense in Form 129 and counterclaim	22
		Interim orders claimed in SC Chambers w/notice of motion w/affidavits. Before appy for interim, must attend Judicial Case Conf -SCR 60E which doesn’t apply for s57 or 67 order or app w/out notice or order on consent or if waived by J. 60E(3)	22

(b)	Financial Statements (Form 89)	23
(i)General: When apply for support order, SCR 60D details financial disclosure	23
(ii)Timing and Procedure: Must be served w/in 30 days of service of pleadings and must also serve Notice to File a Financial Statement.  Party  defending claim must in turn serve Form 89 w/30 days of service of Notice to File.	23
(iii)Content: 6 parts: Y, Expenseees; Property; Special Expenses; Undue Hardship; Y of Other persons in household. Have to complete diff parts depending on action	23
(iv)Attachments: may have to attach docs, e.g. assessment notice for real property	23
(v)Enforcement and Disclosure: SCR 60D(34) - enforcement mechs if 60D not observed’ sanctions under Child Support Guidelines	23
(vi)Opting Out - can out for purpose of Guidelines, sign From 91A, agr as to annual Y and amt of child support	24
(vii)Change in Financial Circumstances: continuing obligation to inform other party of material changes which makes info inaccurate or incomplete.	24
(viii)Particulars: if statement lacks particulars, can demand their provision w/in 7  days	24
(ix)Disclosure of business interest: may be  necessary to verify value of disclosing party’s interest or Y. Can make requests to 3P; docs must be provided w/in 21 days	24
(x) Practice Tips -- Y and expenses, valuing assets;  debts - see tips 	24

	2.	Provincial Court:  File app in Reg (Form1). If claim support, file financial statement in Form 4.  Serve on Resp who has 30 days to file Reply in Form 3. If doesn’t, not entitled to notice. At first appearance, J can make interim or final order
		Rule 5: In fam justice registries, parties to contested proceeding must meet w/family justice counsellor	25
	Rule 21: in designated Reg, consider if need to attend  Parenting After Separation Prog 	25

[§2.04]	VARIATION PROCEEDINGS	25
	1.	Supreme Court: app to vary existing order of SC- brought by notice of motion in proceeding in which order made, w/supporting affs and if necessary, financial statement.  
		App to vary DA order made in other prov, brought by petition	25

	2.	Provincial Court: file Form 2 in registry where order made. Rule 2(2)	26
[§2.05]	DIVORCE PROCEEDINGS: SC has juris to grant divorce if either spouse resident of BC for at least one year immediately prior -  DA s.3(1)	26
	Grounds for divorce, DA s.8: separation over 1 year; adultery; physical/mental cruelty. Must prove marriage; grounds; that reasonable arrangements are in place for support of kids - e.g. child support.	26
	Pleadings must be served by someone other than Pl; must be served personally on spouse. Proof of service filed by affidavit.  If made best efforts, can get substituted service??	26
[§2.06]	GUARDIANSHIP: FRA Part  2 - determines who, absent ct order, is guardian. If divorce order made, person granted custody is sole guardian unles ordered otherwise. FRA s.27(4). If not parent, can’t be guardian, unless both parents consent or have been given notice of application under s.30 FRA	26
	Guardian of child’s estate makes decisions wrt property. Guardian of child’s person decides where lives, what does, how cared for	26
	No presumption in favour of joint g’ship/custody, but practice arisen of jt g’hip w/one parent having sole custody.  Master Joyce, SC BC created model order defining g’ship	26
	If ct determines who will have g’ship, look to best interest of child, s.24 FRA.  G’ship also determined by written agr b/w parents (FRA 28), ct order (FRA 30), etc.  If no surving g. willing to act, Director under Child, Family and Community Service Act (CFCSA) is g of person and Public Guardian and T’ee is g of estate (FRA s.29)	27

[§2.07]	CUSTODY -best interests of child.	27
1.	Divorce Act: “child of the marriage” definition - child of 2 spouses, under AOM	27
		Anyone can apply, but if not one of spouses, can’t apply w/out ct leave (DA s.16)
		SC has jurisdiction to determine custody in divorce proceeding.  If already divorce, either former spouse can start corollary relief proceedings in prov where reside	27
		DA s.16 sets out factors - consider best interests of child	27

2.	Family Relations Act:  child - under 19 yrs. FRA s.1	27
		Pt 2 governs custody; s.34: who may exercise custody if no ct order. 

		Jurisdiction: s.44: ct can exercise jurisdiction only if (a)child habitually resident in BC (b) or in not, but certain conditions met. See list and definition of habiutally resident; can also declinen to exercise juris if feels another is more appropriate	27-8

		s.24: paramount consideration to child’s best interests.  5 factors (a-e)	28
		Appears more factors in FRA than under DA? Child’s best interests still paramount	28

	3.	Additional Factors Governing Determination of Custody: parent most likely to get custody is primary caregiver. Ct will hesitate to change status quo where kids in stable and secure setting, but will change if in l/t interests of kids	28
		Ct will look at personality, character, stability, conduct of parent.  May look to willingness of one parent to facilitate contact b/w kid and other parent.	28
		Views of child - sometimes in FRA, not in DA. FRA s.15 empowers ct to order investigation by 3P wrt custody/access.  JJ recognize older children can ‘vote w/their feet’
		Ct will generally try to keep siblings together	29
		Jt custody only if in best interests of child.  Cases unclear	29

	4.	Access: by non-custodial parent; also governed by best interests of kid. Contact w/both parents presumed to be beneficial to kid; to terminate access generally need evidence that access would harm kid	29
[§2.08]	SUPPORT: general principles similar under DA and FRA. Child support: Fed Child Support Guidlines [Guidelines]	29
[§2.09]	SPOUSAL SUPPORT	29
1.	Taxation: periodic spousal support payable by written agr is tax deductible in hands of payor and taxable in hands of payee.  Lump sum not deductible or taxable	29

2.	Jurisdiction and Limitation Periods	29
(a)	Divorce Act: spousal support application under s.15.2 w/in proceeding incl claim for divorce or as separate corollary proceeding. No limitation period. To bring separate proceeding must already be divorced, 1 must be ordinarily resident in prov.	29
(b)	Family Relations Act: married or formerly married spouses can apply for support - during marriage OR w/in 2 years of divorce.  Unmarried persons can apply if lived in marriage-like rel’nship for at least 2 yrs AND apply w/in 1 yr of ceasing to live together.  	29

3.	The Principles	30
(a)	Divorce Act: s.15.2 outlines factors ct will consider.  e.g. conditions, needs, means and other circs incl length of time together; functions w/in marriage; any order or agreement b/w spouses. Can take into acct misconduct of spouse (15.2(5))	30

	Order for spousal support should (15.2(6)): recognize ec adv/disadv from marriage breakdown; apportion financial consquences of caring for kids; relieve ec hardship from breakdown; promote ec self-sufficiency of each	30
(b)	Family Relations Act: Sp support apps under Pt.7.  FRA s.89: spouse responsible and liable for support/maintenance having regard to: role of each spouse; express/implied agreements; custodial obligations; ability and capacity and reasonable efforts made to support selves; ec circs.  	30
	Spouse has stat duty to beocme ec independent/self-sufficient.
	FRA s.93, ct can adjust amt being paid, taking into account needs, means, capacities, and ec circs of each spouse, looking to 5 other factors	30

(c)	The Caselaw: Bracklow v. Bracklow; Moge v. Moge: all 4 stat objectives of 15(7) of DA must be taking into acct.  3 conceptual grounds of entitlement: compensatory, needs based, contractual (supp obs can be modified by K).  	31
	Compensatory support: financial costs to spouse of ec opps lost  as result of jt decision for one spouse to stay at home should be borne equally by both spouses	31
[§2.10]	Child Support	31
	1.	Taxation: child support paid under order/agr after May/97 neither deductible by payor nor taxable by recipient.  If before May/97 still deductible/taxable. Y on reserve not taxed so Y of paying spouse needs to be grossed up to determine quantum of child support	31

	2.	Governing Legislation: both have adopted the Fed Guidelines	31
	(a)	Divorce Act: s15.1 governs app. 15.1(5): ct can vary from Guidelines  where special provisions are in order or agr that benefit kid and app of Guidelines would be inequitable as a result. 15.1(7) w/consent of both parties, ct can depart from Guidelines if satisfied reasonable arrangements made	31
	(b)	Family Relations Act: BC has simply adopted Guidelines. Make support order under Guidelines - FRA s.93(1). 93(2) gives discretion to depart if application would be inequitable as result of special provisions made for kid; 93.1 ct can depart if satisfied reasonable arrangements made for kid	32

	3.	Eligible Children: FRA def of child; DA def of child of marriage: must be under 19 or over 19 and unable b/c of disability, etc. to w/draw from parents’ care	32

	4.	Liable Parents	32
	(a)	Divorce Act:  s. 2(2): liability on child of 2 spouses/former spouses, incl if stand in place of parent.  To determine if ‘stood in place’  look to rel’nship w/child during marriage, incl if $ support, disciplined, represented self as parent, etc.	32
	(b)	Family Relations Act: s.88: ea parent is liable. s.1(1)defines parent to incl. guardian, stepparent if contributed to support/maintenance for at least one yr and FRA proceedings commenced w/in 1 yr of last contributiion to mainentance. s1(2) defines parent whether married or living in marriage like rel’nship for 2 yrs	32
		Support payable by person in place of parent is whatever ct sees appropriate, looking to all circs incl Guidelines and other parent’s legal duty of support.	32
		ss94, 95 govern paternity

	5.	The Child Support Guidelines - 6 STEPS	33
		4 exceptions: s.4 gives ct discretion to depart when payor’s Y>150, 000 but only when table amts unsuitable; s.8 applies to split custody; s.9 applies to shared custody; s.10 if willl cause undue hardship - have to show taht if Guidelines were applied the payor’s standard of living would be less than that of recipient’s household	33-4

[§2.11]	VARIATION OF CUSTODY OR SUPPORT ORDERS	34
1.	Jurisdiction	34
(a)	Divorce Act: s.5: juris to hear proceeding to vary. Can only make provisional order if resp not ordinarily resident in BC and not consent to jurisdiction- s.18(2). Can vary or rescind or suspend order prospectively or retroactively	34
	(b)	Family Relations Act: s.20: ct can vary or rescind FRA custody, access or support order where circumstances have changed 	34

2.	Variation of Spousal Support	34
(a)	Divorce Act: need change in condition/means/needs/other circs of spouse since previous order. Can’t consider conduct that couldn’t have been considered in initial order	34
	s.17(7): order varying support order should (4 factors):  recognize ec adv/disadv from marriage breakdown; apportion $ consequences of care for child; relieve ec hardship; promote ec self-sufficiency	34
(b)	Family Relations Act: 91(4): authority to vary spousal support, incl cancel and reduce arrears. s.96(1) ct must consider changes in means, needs, capacities, ec circs	35
(c)	Principles: material change that if had been known at time of initial order would have likely resulted in diff order being made. Unsettled caselaw on test. Won’t vary support ordered for fixed term unless material change of circs flowing from ec pattern of dependency engendered by marriage	35

	3.	Variation of Child Support: DA ss.17(4), 17(6.2)-(6.5); s.14 Guidelines; FRA   s.96(1.1),  (1.2).  Ct has discretion to vary but must be suff change in circs	35

	4.	Variation of Custody	35
	(a)	Divorce Act: change in conditions/means/needs/other circs of child since last order-17(5). Give effect to principle that child should have as much contact as possible w/each parent as long as in best interests-17(9). Look to willingness to faciltate custody	35
	(b)	Family Relations Act: ct will require material change of circumstances	35
	(c)	Principles: tailored to ea child, look to best interests. Q re: moving child and non-custodial parent applying to prevent move by variation in custody.  Party seeking variation must show material change; then J considers kid’s best interests. Relocation not always material change. Must be not  reasonably contemplated by TJ; materially affect child; could not have been foreseen.  	36
		If show change, no presumption in favour of custodial parent. Look to list of 7 factors. Importance of child remaining w/custodial parent weighed against importance of contact w/access parent;  extended family and community	36
[§2.12]	Dividing Assets	37
1.	Dividing Family Assets Between Married People: governed by Pts 5 &6 of FRA; must commence proceedings when still spouses - still married or w/in 2 yrs of divorce, judicial separation, declaration that marriage is null and void	37

		When triggering act in s.56 occurs, each party entitled to 1/2 interest in all assets that are family asssets.  4 triggers: separation agr signed; s.57  SC declaration of no reasonable prospect of reconciliation; order for dissolution of marriage;judidical separation; or order made declaring marriage null and void.	37

		Family assets defined in s.58, include assets used ordinarily for family purpose. Onus on spouse opposing claim to show NOT ordinarily used for family purpose 	37

2.	Specific Assets	37
(a)	Pensions and RRSPs: family assets by definition, see list s.58	37
Pt 6 FRA and Pension Division Regulation codifies methods for division/entitlement of non-member spouse. Determine if local plan (s.70) or extra-provincial plan (s.77). Pt 6 only applies to local	37
	(i)Local Plan - registered w/Fed or B.C Pension Benefits Standards Acts; or by own terms subject to Pt.6 	37
	(ii)Extra-provincial: fall outside Pt.6, subj to c.l. principles. Benefit split to be administered by member as t’ee for spouse	38
	(iii)Part 6 exempt plans-- if plan created by specific statute, may be governed by Pension Benefits Division Act, Sch II - complete code for division of pension	38
	(iv) if Pt 6 governs it determines division
Defined Contribution Plan: like RRSP - contribute $, acct earns return - resulting acct available at retirement
Defined Benefits Plan: provide fixed retirement Y regardless of contributon
OPTIONS FOR DIVSION OF LOCAL PLAN
	(i)Matured pension: divided by benefit spit, spouse becomes ltd member	38
	(ii)Unmatured Pension in Defined Contribution Plan: divided by rolling over spouse’s share to another vehicle, e.g. locked in RRSP	38
	(iii)Unmatured Pension in Defined Benefits Plan: make spouse ltd member of plan. Ltd can wait til member retires and receive separate pension OR can direct plan to transfer share to prescribed vehicle such as locked in RRSP after member eligible to retire	38

(b)	Business ventures: family assets incl any venture to which other spouse has contributed money or money’s worth directly or indirectly - FRA s.58(3)(e), but assets used primarily for business are excluded- FRA s.59- as long as non-owing spouse made NO direct or indirect contribution to acquisition or operation of business. Childrearing/household responsibilities considered to be indirect contribution	39
(c)	Homes on reserve: FRA not apply 	39
(d)	Other assets: if not family asset and not in other cat, then ‘other’ and remains property of owning spouse.	39
(e)	New assets: if acquired after separation, not family asset unless acquired using family assets	39

3.	Reapportionment:FRA gives both spouses equal interest, but this is presumption rebuttable on grounds of fairness.  Ct can reapportion under s.65. SEE FACTORS. Incl contributions made during cohabition before marriage.  FRA doesn’t specificall provide for division of debt, have to convince ct about apportionment except if debt secured by family asset	40

4.	Marriage Agreements: valid agreement - defined by s.61-displaces presumption of equal sharing unless agr is unfair	40

5.	Canada Pension Plan: CPP credits earned during cohabitation may be divided equally b/w spouses on application by either	40

6.	Property Division Between Unmarried People:Pts 5 & 6 dont’ apply to unmarried couples unless enter into property agreement under s.120.1.  If unmarried, but in marriage-like relationship for 2+ yrs and enter agr that governs ownership of property, couple subject to Pts. 5 & 6	40

		If no marriage agr, have to seek relief under c.l. principles of unjust enrichment: if one party pd money, performed service, and action enriched recipient at expense of donor w/out any juristic reason for it (such as employment K), then can get constructive trust
		See Peter v. Beblow	40

7.	Variation of Property Division; variation of order dividing assets not possible under FRA except under appeal. Some exceptions	41
APPENDIX 2 -- JURISDICTION - SC v. Prov Ct	42
INTERLOCUTORY APPLICATIONS
[§3.01]	INTRODUCTION - FRA s.9; DA ss15.1(3), 16(2): interloc/interim relief available to both parties. SCR 10,  44, 51A. SC has  juris over all interloc proceedings, Prov Ct juris is more ltd	43
[§3.03]	GENERAL CONSIDERATIONS ON APPLICATIONS WITHOUT NOTICE: if doing this under SCR 51A or FRA s.9, material should state why no notice.  Only do when absolutely necessary.  	45
	HB 8(21)During such applications, lawyer has duty to tell ct of all material facts known to him to enable ct to make informed decision, even if adverse to Cx	45
[§3.04]	COMMON INTERLOCUTORY ORDERS (all have procedure stuff) Must be a proceeding/action!!!	45
	1.	Contempt: can get SCR 56 order for fine if oder of ct is disobeyed or refused to answer interrogatories/make discovery	45

	2.	Interim Custody – Family Relations Act, ss. 9 and  35 and Divorce Act, s. 16(2): has big effect, once get to trial, cts reluctant to disturb status quo. Ct will consider kids’ best interests	45
		Generally by affidavit evidence, ensure affs contain 8 factors listed	45
		Negotiation is always better
		JJ frequently order shared parenting in interim, esp if this was status quo before	45

	3.	Interim Support for Spouse or Children – Family Relations Act, ss. 9 and 93
and Divorce Act, ss. 15.1, 15.2 and 15.3: to cover child and spousal support til trial. Same general guidelines for child support, but more emphasis on NEED.  Heard in Chambers, by aff. Get as much $ disclosure as possible. Consider 60D. Can also get lump sum payment.  For child support, eligibility must be determined before quantum, esp if dispute over paternatiy	46

		DA can give order for interim payment RETROACTIVE to date of separation;  FRA CANNOT, only from date of service of application	46

	4.	Interim Disbursements: to cover legal fees, special expennses. FRA s.66; SCR 43	46

	5.	Appointment of Expert to Investigate a Family Matter: FRA s.15 -    ct can direct investigation conducted by neutral 3P. SCR 32A re: ct appt’d experts.  If Cx can’t afford independent expert, s.15 authorizes ct to appt family ct counsellor to prepare report at no cost, since publicly funded, unlikely you’ll get one these days	46

	6.	Order Prohibiting Interference – Family Relations Act, s. 38: when makes custody order, ct can also make order prohibiting person from entering premises where child resides. Can also prohibit attempts at contact.  Uncommon for ct to disallow access	47

	7.	Non-Molestation –  Family Relations Act, s. 37: order preventing molestation; harassment, etc. Where issues of violence, ss.37 and 38 orders may be appropriate	47
		Be cautious in wording so that can be enforced. Can incl direction for peace officer to act on order, etc. Peace Officer Clause not granted unless specifically sought and ct thinks is necessary	47

	8.	Information Concerning Address – Family Relations Act, s. 40: if App needs to know where Resp is, ct can order person or public body to provide ct w/any info it has.  Won’t make order against lawyer or if ct thinks purpose of app’ is to find child, not Resp	48
		Bring by way of affidavit, incl listed factors	48

	9.	Guardianship: FRA s.30,app’n for appt of guardian of kid; s.32: guard’n can apply for directions on Q concerning child	48

	10.	No Prospect of Reconciliation - FRA has deferred community of property - on triggering event as set out in s.56, ea spouse gets 1/2 interest in family assets. 1 triggering event is s.57 declaration of no reasonable prospect of reconciliation.  	48
		Assess impact on Cx’s property rights - want it or not?. May need it to preserve priority over 3P creditors.  [s.57 declaration may need to be accompanied w/cert of pending litigation to preserve Cx’s claim to prop]	49
		If prop not in your name, best to get this asap.	49

	11.	Exclusive Occupancy: ct can order that 1 spouse gets excl occupancy of family residence, also that 1 spouse has excl use of personal prop at fam residence. 	49
		App must show that shared use of home of practical impossibility, not mere matter of incompatibility. Ct will look to 5 factors: presence of serious dispute; kids; relative ec positions; presence of alt living arrangements; balance of convenience	49
	
	12.	Restraining Use, Disposition or Encumbrance of Assets: Must preserve assets	49
		Steps to take: 
		(a)register caveat as charge against interests in property	49
		(b) file certificate of pending litigation.  CPL does not create substantive rights, only notice of interest. Doesn’t give priority over other competing claims.  Claim could be defeated by judgment reg’d after you file CPL but before get s.57 declaration - t/f get s.57 declaration ASAP. Need triggering event	50
		(c)obtain FRA s.67 order restraining use, disposition, encumbrance of assets - can be w/out notice. Ct must make order to restain opposing party from disposing of asset unless he establishes that App’s claim won’t be impaired by diposal of fam asset or other proeprty	50
		(d)File entry under Land (Spouse Protection) Act	50
		(e) Order preserving property under Rules 45, 46 and Law and Equity Act s.39	50

		Condition Precedent to s.67 application that proceeding under Pt.5 for division of matrimonial property be commenced.  N/A to unmarried people unless have s.120.1 agreement bringing them under these parts of FRA.	50
		Need s.67 to preserve assets that are not interests in land	51	
	13.	Restriction of Contact: Ct can order one spouse not to enter premises occupied by other spouse or child, FRA s.126, often joined s/124 order for occupancy of family residence.	51

	14.	Severing Joint Tenancy: FRA s.66(2)(g): where property owned by spouses as joint tenants, ct can sever jt tenancy.  Need more than commencing FRA action, need trigger event - such as s.57 declaration.	51

	15.	Examination of Witnesses: Rule 28 - can examine person who may have material evidence relating to matter in issue	51

	16.	Appointment of Receiver or Receiver Manager: Rule 47, SC can appt receiver, only apply for this where real danger of assets in dispute being dissipated by spouse in control of them.  In affidavit, should set out 5 factors as listed: why family assets; grounds for fears; any harm, name/qualifications of proposed receiver, estimated costs	51

	17.	Joining Proceedings - can do this	52

	18.	Security for Costs: Rule 60(21) - can ask for this	52

	19.	Extraprovincial Custody and Access Orders: extraprov if not granted in BC. Governed by Part 3 of FRA. Requres BC cts to recognize custody/access order made outside BC unless one of 5 circumstances apply - circs where initial order might not have been fair	52
		When BC ct recognizes order, deemed to exist as if BC order, enforceable as such
		FRA s.43: purpose of Pt.3 (4 factors): ensure apps done in best interests of kids, avoid duplication of apps;  discourage kidnapping; increase efficiency of enforcement	52
		FRA s,44 - only exercise juris over kid not habitually resident in BC if satisfied that 6 requirements met	53
		FRA Pt 4 deals w/child abduction. See Hague Convention, B.C. is signatory	53

APPENDIX 3A — Affidavit Guidelines:  Interim Maintenance p.55; Interim Custody and Access p.56; s.57 Declaration p.56 ; Exclusive Occupancy p.56-7; Restraining Entry p.57; Exclusive Use of Chattels p.57; Restraining Use, Disposition, Encumbrance of Assets p57; Prohibiting Interference w/Child p.58; Severance of Jt Tenancy p.58; Disc etc. p.58; Contempt p.58; s.67 Order p.59;  Receiver p.59,	
PRE-TRIAL INVESTIGATION AND PREPARATION
[§4.01]	DISCOVERY: Generally no diff than other civil actions.  One specific rule is 60D, requiring financial statements to be provided; also allows party to make demand for specific documentation and information	67
[§4.02]	RETAINING EXPERTS: Not unsual to retain at least one expert. Make sure are clear as to who is paying for it, you or cx!!	67
[§4.03]	CUSTODY REPORTS: lawyer or ct can initiate this - FRA s.15. Family counsellor or independent pyschologist investigates all matters relevant to custody, access, kids best interests.	67
[§4.04]	IDENTIFYING AND INTERVIEWING WITNESS: No property in witnesses, can speak to adverse W as long as comply with HB 8(21)-(27) - tell them who you are, who you represent.  Access to opposing experts ltd by SCR  28(2)	67
[§4.05]	INTERROGATORIES: available as form of discovery	68
[§4.06]	SCHEDULE OF ASSETS: ‘Scott Schedule’ - includes (5 factors): list of each asset w/description; brief particulars as to acquisition/disposition; value; position of parties regarding ownership and apportionment; provison for reference/cross-reference to exhibit to be filed in support of that item	68
	Generally person seeking order as to assets prepares schedule and provides to opposing counsel, who may agree or not. If disagree, he’ll prepare his own.  	68
	One/both may be presented at trial to give J clear statement of assets and parties’ positions	68
OTHER PRE-TRIAL PROCEEDINGS
[§5.01]	Judicial Case Conference and Case Management: SCR 60E, party to family law proceeding prohibited from making interloc application to other party unless judicial case conf has first been held.	71
[§5.02]	PRE-TRIAL CONFERENCE: purpose to expedite trial process and encourage settlement.  Ct may set p/t conf - SCR 35(2).  If parties estimate trial of 4-10 days, p/t conf is required. Party may request p/t conf. If one wants and other doesn’t, must obtain ct order	71
[§5.03]	SETTLEMENT CONFERENCE: explore possibility of settlement w/J assistance w/out prejudice- Rule 35(6). SCR 60E(12) judge who conducts judicial case conference can order parties to attend one of these.  J expects to hear formal statement of facts and law; will provide parties w/his perspective of outcome of case	71
[§5.04]	MINI-TRIAL: allows parties and counsel to hear J non-binding opinion as to what his decision would be after hearing summary of evidence and argument from both sides.  Useful if case turns on inferences from undisputed facts; not so helpful if disputes on important facts or if credibility big issue. Can also be ordered under SCR 60E(12) from judicial case conf.	71
[§5.05]	SUMMARY TRIAL AND SUMMARY JUDGMENT” SCR 18A - final disposition w/out cost.  Rarely be used for custody/access disputes	71
[§5.06]	OFFERS TO SETTLE: governed by SCR 37. Cost consequences to refusing to settle. SCR 37(26.1): if you reject settlement and person making offer gets same or better judgment than you have to pay costs to date of offer and double costs after that! 37(27) allows J to pick date other than date of offer from which to calculate double costs if appropriate	72
[§5.07]	RULE 51A	72

JUDGMENTS, AGREEMENTS AND ENFORCEMENT
[§6.01]	JUDGMENTS AND ORDERS: must be drafted according to SCR and Forms	73
	1. Support order will incl: who pays/who receives; how much $; from what date; parties’ Y details; interim or not, etc.  6 FACTORS	73
	2.Custody order will incl: who has custody; kid info; joint or not; interim or not, provision for removal from juris, etc.     8 FACTORS	73
	3.Order for divison of family assets will incl: description of asset/location/recipient; declaration of apportionment, etc.      5 FACTORS	73
[§6.02]	ENFORCEMENT OF RESTRAINING ORDERS - order binding from date of pronouncement whether entered or not, but if don’t enter, will have enforcement probs. Should enter order and serve entered copies! If to restrain spouse from dealing w/assets, should also serve copy of order on banks, etc.  Problem- might make it hard for him to get $ you want!	73
[§6.03]	ENFORCEMENT OF OTHER ORDERS	74
	1.	Support Orders. DA s.20, order in divorce proceeding has legal effect in all of Cda,  can be reg’d in any prov; CA s.28, mechanism for confirming variation order for support order made elsewhere
		Interjurisidctional Support Orders Act - b/w BC, other provs, outside Cda. Replaces Pt.8 FRA, support orders from other provs have same effect as BC order when reg’d in BC  Point is to simplify proceedings	74

	2.	Family Maintenance Enforcement Act: privatized maintenance enforcement program. Aimed at people in default of support orders, support order can be filed w/Prog as soon as received, don’t have to wait til in arrears. S.4 authorizes Director to enforce support orders filed w/her.	75

	3.	Contempt Proceedings: SCR 56	75
[§6.04]	ENFORCEMENT OF AGREEMENTS: SC or Prov Ct can enforce provision wrt support, custody, access contained in written agr.	75
UNDEFENDED DIVORCES
[§7.01]	UNDEFENDED DIVORCES: if writ and st of claim properly served, time elapsed for filing defense and no defense filed, proceed w/divorce on undefended basis: Desk Order Divorce, don’t need hearing.  Available where (1)proceeding undefended from  outset or (2) divorce uncontested and other claims settled, w/drawn, discontinued, etc.	76
	1.	Other Proceedings: won’t be granted til ct satisfed that no earlier divorce proceeding instituted anywhere.  Search Central Divorce Reg in Ottawa.	76
	2.	Definition: see def.  No defense; jt divorce action; defense w/drawn; or all other claims settled, etc.	76
	3.	Practice Directions	76
	4.	Certificate of Pleadings: Rule 60(27) - file pleadings w/Registrar who will issue cert that pleadings are correct and in order or require irregularities to be fixed	76
	5.	What to File	76
		(a)praecipe requesting order sought
		(b)draft order
		(c)proof of service if necessary
		(d) proof action is undefended - e.g. praecipe requesting registry search
		(e)certificate of pleadings
		(f)affidavit in Form 132
		(g)if appropriate, Child Support Affidavit
	
	6.	The Order - must be in Form 136; if divorce claimed along w/other stuff, can order divorce entered and other stuff dealt with separately	77
[§7.02]	CHILD SUPPORT IN UNDEFENDED DIVORCES: DA s.11(1)(b): ct has duty before granting divorce, to satisfy itself that reasonable arrangements have been made for support of children of marriage. If have kids, must complete Child Support Aff as above and aff in Form 132	77
OTHER PROCEEDINGS
[§8.01]	CHILD, FAMILY AND COMMUNITY SERVICE ACT (CFCSA) - practice and procedure for state intervention in wellbeing and safety of kids.  N/A on reserves where  bands have passed own child welfare laws under s.81 Indian Act.  Prov Ct has juris over proceedings under s.1 CFCSA/	87
	CFCSA, s2:  guiding principles - paramount consideration is safety and well-being of kid. 7 specific principles - see 3 in materials - free from abuse; family is preferred env, etc.	87
	CFCSA s.3: service delivery principles; s.4 consider kid’s best interests, esp if aboriginal in which case look also to importance of preserving cultural heritage (s.4(2))
	Directors appt’d under s.91 of CFCSA.  They have lots of power. See long list in materials	87
	Procedures Directors must follow:
	A.Alts to Removal
	1. Voluntary Agreements: case investigated; D and parent may enter into agr to provide or to assist parent to purchase, services to support family to care for kid. (CFCS s.5) Max initial term is 6 mos; can extend for 6 mos. Voluntary care agr can be made b/w D and parent when parent temp unable to take care of kid and gives kid to D under plan of care. Max initial term is 3 mos if under 5; 6  mos if 5+. Max extenstions, see materials	88
	2. Take Charge Provisions: CFCSA s.25 if kid found unattended, D can take to safe place for up to 72 hours. Same for runaways under s.26
	3.  Protective Intervention Orders: if D has reasonable grounds to believe contact b/w kid and   3P would cause kid to need protection under s.13(1)(a)-(e), D can apply to ProvCt/SC for order (CFCS s.28)
	4. Non-Removal Supervision Orders: apply for supervision order w/out removing kid. (29.1). D must attend presentation hearing w/in 10 days. After removal and before hearing, may determin interim custody not necessary and return kid.  If ct finds grounds to support concerns, make interim superivision order and set date for protection hearing.  If find needs protection, make supervision order under s.41
	5, Mediation: CFCS s.22 - mediation mechanism. D and 3P can resolve issue re: child/care	88
	B. Removal:Can remove kid w/out ct order if reasonable grounds to think kid needs protection and health/safety in immediate danger and no less disruptive measure is adequate (s.30). If D doesn’t return kid in 7 days, must attend presentation hearing and D must inform parties of hearing info - see list at p.89	89
	At Presentation hearing, s.35 says what materials necessary.  Ct must determine if kid needs protection and must make order under s.41 - temporary, extensions can be sought, s.44	89
	Apply for continuing custody order under s49 to make Director become sole guardian of kid, Public T’ee becomes guardian of estate, til kid reaches AOM, adopted, married, ct cancels order (party can apply to cancel under s.54); custody transferred	89
	s.70: rights of child in care, s.71, D must consider best interests of kid.
[§8.02]	ADOPTION ACT: 4 types of adoption:
	(a) direct placement by adoption agency w/parents to whom no blood rel’n
	(b)relative or stepparentsss
	(c) Ministry of Social Services and Housing adopttions by which children in continuin custody of Director of CFCS are adopted
	(d)custom adoptions	90
	Adoption Act, s.5 -- 1 or 2 parents can adopt, can be c.l. or same-sex. Adopting parents must have been resident of BC for 6 mos and kid/parents must have been living as a family unit for 6 mos.	90
	Proceedings commenced in SC by petition or praecipe.  	90
	Consent required from kids if 12+ yrs old; birth mother and father.  When order made, child is of adopting parents alone; $ obligations of natural parents over; right of access of natural parents over except for aboriginal kids	91
	Custom adoptions - Adoption Act s.46 -- adoption of person effected by custom of Indian band has effect of adoption under Act	91

FAMILY LAW APPEALS
[§9.01]	FAMILY LAW APPEALS	92
	1.	The Decision to Appeal - lay groundwork during trial, e.g. amend pleadings, etc.	92
	2.	Re-Argument - if lose at trial, consider re-open or re-argue case before appeal.  	92
		Ct will consider re-argument when ct overlooked material judgment or counsel overlooked determinative line of argument.
		Ct will consider re-opening when unforeseen new evidence has come to light and not to consider it will be injustice	92
	3.	Cost - expensive	92
	4.	Appeals of Fact or Law- appeal based on appeal of fact will be unsuccessful unless can be est’d that there is NO evidence in trial ct to support particular findings of fact or unless finding of fact clearly wrong. Tough to win!	92
	5.	Court of Appeal Act - does it govern? If so, look to time requirements	92
	6.	Family Relations Act: can appeal Prov Ct order made under FRA to SC (except interim order)-FRA s.16(2). Must be launched w/in 40 days of order made	92
		Can appeal from SC to CA w/in 30 days of order pronouncement	92
	7.	Divorce Act: appeal from SC to CA	93
	8.	Appeals of Interim or Interlocutory Orders: SCR 52(2)(a), 53(6) - appeal from interloc order of master to SCJ in Chambers as of right, if file notice of appeal w/in14 days. Unsettled if can go from master directly to CA.	93
	9.	Time Estimate - on appeal to CA, have time estimate ready as in SC	93
	10.	Applications to Extend the Time for Appeal: can make app in front of single J. Ct will expect applicant to show notice of intent to appeal given to resp before expiry; prej will result from failure to extend, substance to appeal	93
	11.	Motion for Leave to Appeal: w/in 30 days of filing notice of app for leave to appeal, but file/serve notice of motion setting down app for hearing in chambers	93
	12.	Custody Appeals: primary issue is best interests of kid, appellate tribunals reluctant to reverse findings of TJ on that issue.  Need to show manifest error in principle	93
	13.	Stay of Proceedings: apply for stay of proceedings pending appeal.  Stay app of SC order made to SC; stay app of Prov Ct order made to Prov Ct. Order remains in force til ct taht  made order orders otherwise - FRA s.14. Wrt custody, ct unlikely to grant stay unless most impelling reasons
		Divorce order not in effect til time for filing appeal expired and all appeals concluded	94
DOMESTIC AGREEMENTS
[§10.01]	DOMESTIC AGREEMENTS	97
	1.	Introduction: 3 common kinds: separation agreements; marriage agreements; cohabitation agreements.
		Cts favour enforcement of these agreements; reluctant to interfere as long as they’re fair and no material misrep’ns made.  In determining ‘fair’ look to whether had independent legal advice.  Can be set aside w/c.l. defenses e.g. duress
		Some stat provisions allow variation.  FRA ss.65, 68
		Ct can redistribute family assets, notw/standing sep agr, if unfair agr, considering following factors: (5) length of marriage, of separation; date prop acquired, etc	97

	2.	Drafting Separation Agreements: should execute 4 copies 	98

	3.	Marriage Agreements: Agr made at begining of marriage to deal w/eventuality of marriage breakdown. FRA s.61(2) - must deal w/property and be in writing, signed by both spouses and witnessed.  	98

	4.	When Should a Marriage Agreement be used?: suited for people w/significant assets at time of marriage or who expect to inherit bigtime during marriage	98

	5.	Judicial Intervention in Marriage Agreements: cts treat w/great deference. Unreasonable agr will be suspect. Should enter into them as far ahead of marriage as possible to avoid claims of duress, undue influence	99
[§10.02]	COHABITATION AGREEMENTS: FRA s.89 - 2 people not married who lived in marriage like relationship for 2+ years are each responsible for support and maintenance  of the other, having regard to express or implied agreements b/w them. If make marriage agreement, subject to Pts. 5&6 of FRA (s.120.1)	99
[§10.03]	MINUTES OF SETTLEMENT AND CONSENT ORDERS: record settlement of family law proceedings, should deal w/each claim in proceeding.  Commonly incorp’d into consent order that’s filed w/ct.  Alt to separation agr, can combine sep agr w/consent order, best to have key provisions in consent order for enforcement ease
	Counsel sign minues; generally get parties to sign too - avoid future claims that they weren’t in agreement	99
	SCR 41(16) -obtain order by consent w/out ct appearance. Ct will accept generally as long as interests of kid preserved and order is unamiguous.   Can’t appeal consent order	100
	Ct will endorse minutes; if party refuses to conset order on same terms of minutes, person seeking enforcement can get stay of proceedings	100
TAX IMPLICATIONS OF SPOUSAL SETTLEMENTS
[§11.01]	INTRODUCTION	109
[§11.02]	SPOUSE FOR TAX PURPOSES: recent amendments, same-sex treated same as legally married.  “Common law partner” added to all provisions w/term ‘spouse.’ Applies 2001 onward unless make election to apply earlier - 98, 99, 00. To be c.l. partner, must cohabit at particular time and have done so for 12 months before that time or be parent of child	109
[§11.03]	INCOME TAX CONSEQUENCES OF A DIVISION OF FAMILY ASSETS	109
	1.	General Rules: division of assets involves transfer of assets  from one spouse to other, as result, potential consenquence is taxable gain/loss realized or deemed to be realized	109
		Deemed disposal at FMV (unless rollover as described below). If prop has increased in value, it might be taxable gain	110
		Capital gain (cg) from disposition of capital property for proceeds in excess of capital losses. 1/2 of cg taxable; 1/2 capital loss is allowable.  Net taxable cg included in Y and taxed;  allowable capital losses exceed cg, can be carried back 3 years and forward indefinitely to offset cg in those years.  	110
		Lifetime cg exemption of $500, 000 for gains on dispositions of qualified small businesses and qualified farm property. See definitions in materials	110

	2.	The Family Relations Act: The Concept of Deferred Community of Property: separate property interests of spouses are recognized during marriage, but if marriage breakdown, family assets are divided equally b/w spouses.  May have tax consequence b/c asset formerly owned by one spouse vests in other. Former owner deemed to have disposed of interest which will result in realization of accrued gains/losses unless special rollover provisions apply	110

	3.	Time of Division: FRA s.56 - get 1/2 fam assets on triggering event, but unclear exactly when interest vests. Some authority that vests immediately on trigger; possible to argue a delay.  	110
		Consider using marriage agreements to contract out of s.56 and to exclude assets likely to give rise to tax liability from settlement. Will only be effective if not ‘unfair’ as per FRA s.65	111

	4.	Tax Deferred Dispositions of Family Assets: certain transactions done on tax-deferred or tax-free basis, esp those wrt inter vivos transfers of property to spouse; disposition of principal residence
		(a) Inter vivos transfer of propety to spouse: where capital prop of taxpayer transferred to spouse/former spouse under settlement of matrimonial rights/spouse trust and both resident in Cda, prop deemed to be transferred for proceeds = cost of prop to tp. Where this rollover occurs, no gain/loss realized for tax purposes.  	111
		Tax deferred, not eliminated; if spouse disposes of prop to 3P in excess of inherited cost, taxable gain may arise. 	111
		Rollover provisions apply automatically unless elect not to have them apply	111
		Only applies to capital property, not apply to division of non-capital property	111
		Exs of non-capital prop: good will and gov’t licenses; inventory; resource property; accrued interest;  life insurance policies;  deferred income planns; income-averaging annuity contracts	111
		(b) Inter vivos transfer of property to child: rolloevers only apply to transfers of property used in farming business; shares of farm corporation or interest in farming p’ship and only if various conditions are met.  ss.73(3), (4)	113
		(c) Principal Residence: general exemption for gains realized by disposing of principal residence.	113

	5.	Shares and Depreciable Property:  transfer can affect tax treatment	113
		(a)Corporate Shares: change in ownership of  shares of  priv corp may affect ability to claim small business deduction	113
		(b)Depreciable Property: rates of CCA may be affected by change of ownership unless Reg. 1102(4) applies which preserves original classification of depreciable prop if acquired in non-arm’s length transaction	113	
	6.	Attribution Rules: when Y/gains of person legally entitled to them are attributed to another person who is liable for that tax - apply when one spouse transfers/lends money or other property to other. 	113
		Do not apply to payment or   transfer of property to former spouse, but do apply to transfer/payment to person who later becomes spouse	114
		DON’T APPLY TO:	
		(a)Limitation to scope of attribution rules:  n/a if not to spouse; n/a if transferor not resident of Cda	114
		(b) Y earned after marriage breakdown doesn’t count	114
		(c)Capital gains/losses realized after marriage breakdown where election filed	114
		(d) FMV value transfers - if get fmv consideration and elect out of rollover?	114
		(e) RRSPs	115
	7.	Joint and Several Liability:  160(1)(d), (e) may cause individual who received prop from spouse to be jointly, severally liable for tax liabilities of transferor - where prop transferred to spouse/person under 18/3P not at arms length.  N/A to prop transferred as reuslt of ct order or written separation agreement if living apart	115
	8.	Splitting Tax Liability: separation agr providing for splitting tax liability from disposition of property not binding on CCRA and doesn’t change tax obligations	115
[§11.04]	Taxation of Support Payments	115
	1.	Tax Regime: 97 amendments to shift  tax burden from custodial parent to supporting parent.  Payments that are ‘support amt’ but not child support amt are deductible by  payer and incl in recipient Y.  Payments that are ‘child support amt’ are non-deductible and non-includable in Y. Applies after May/97.  Applies if payments made when due, if in arrears for child support, payments for spouse support treated as payments on child support!	115

	2.	Support Amounts:  Payable as allowance on periodic basis for maintenance of recipient; recipient has discretion as to use, recipient is (former) spouse; living separate b/c of marriage breakdown; amt is receivable under order or written agreement	116

	3.	Child Support Amounts: Support amount not identified as being solely for support of spouse; statutory presumption that support payments are for child support. If support payments blended, payments treated as child support.	116

	4.	Periodic Payments: payable on periodic basis - at regular intervals, not lump sum. But single payment made for arrears qualifies b/c test is whether amount is PAYABLE on periodic basis, not whether it is actually paid.	116

	5.	Allowance for Maintenance: not in cnxn w/division of assets	116

	6.	Third Party and Other Specific Purpose Payments: rules that apply at option of parties relax some requirements. Certain specific purpose paymetns made to supported person or to 3P can be treated as support amt. E.g. medical, educational costs	116
		EXPLAIN??????? 	117

	7.	Prior Payments: amt paid before date on which ct order or written agreement made is not support amt, but if order or agreement says otherwise, it will be incl for tax purposes.	117

	8.	Court Orders and Written Agreements before May 1, 1997: generally means are deductible by payor, taxable in hands of recipient. But can take steps so that new rules will apply to amounts payable after May/97.  Parties can file jt election specifying ‘commencement date’; ct order/agreement is varied, new ct order or agr made, etc. New rules apply, can be no return to old rules.	117

	9.	Registration of Court Orders or Written Agreements: CCRA requires registration or orders/agreements subject to post-97 tax rules, although no statutory basis for this	117

	10.	Equivalent-to-Spouse Tax Credit: after spouses separate, spouse w/custody may be entitled to claim equiv to spouse tax credit wrt child.  See details. (???)	118
[§11.05]	Deductibility of Legal Fees: legal costs incurred to obtain child support; defend application to reduce amount of child support; enforce payment of support in arrears	118
	Must look to first principles: only can claim deduction if incurred for purpose of gaining or producing Y from business or property.  T/f only matters relating to support payments are deductible.	119
	Distinction b/w legal costs to create/modify a right to support - non-deductible; and those costs to enforce a right to support - deductible.  	119
	Children have pre-existing right to suport and so legal costs re: determining child support are deductible, while law re: costs of getting spousal support in state of flux	119