Family Law - Law 359 (Winter 2019) : Alternative Dispute Resolution

Family Law — Law 359 [Winter 2019]
Alternative Dispute Resolution
v Shared Jurisdiction1
The FLA has several provisions that aim to “encourage” parties to resolve disputes out of court
[s. 4]. When first retained by a client, family lawyers must screen for family violence [s. 8(1)]
and inform their clients about the advisability of using the various dispute resolution mechanisms
available to them [s. 8(2)]. In assistance of this, parties to a “family law dispute”2 must make full
disclosure to the other side [s. 5(1)] subject to an implied undertaking [s. 5(2)]. Agreements the
parties make about family law matters are prima facie enforceable [s. 6(2)]. The limitations
period is suspended while the parties are undergoing ADR [s. 198(5)].
Similarly, the Divorce Act currently requires lawyers to advise their clients about the possibilities
of reconciling outside the court process [s. 9(1-2)] and requires each document beginning divorce
proceedings to contain a statement by the lawyer certifying they have discharged this duty [s.
9(3)]. The amended Divorce Act expands upon these duties and requires lawyers to “encourage”
the use of ADR3 unless it would be clearly inappropriate [s. 7.7]. It also states that the parties
themselves should endeavour to resolve their disputes through ADR where appropriate [s. 7.3].4
Mechanism Outline
“Kitchen table The parties reach an agreement themselves, each gets legal advice, lawyers draft the
agreements” agreement. Cheapest option—approx. $2,500-$3,000
Jointly-hired mediator Can be “evaluation-based” or “interest-based.” Mediator can draft a final agreement.
Represented negotiations Lawyers handle disclosure and the difficult issues. Highly dependent on who the
lawyers are.
Represented mediation Can be “shuttling” mediation or face-to-face.
Arbitration Can be before a mediator, arbitrator or parenting coordinators
Unbundled services Limited retainers—could involve drafting pleadings, affidavits, agreements etc.
A newer approach is he collaborative model of dispute resolution, which attempts to replace the
adversarial character of other dispute resolution methods with a team problem solving approach.
It is based around a “Participation Agreement” that parties sign to exclude recourse to the Courts
while the agreement is in force, ensure good faith negotiation, provide for full disclosure and
ensure that all negotiations will be without prejudice to the parties’ future rights. It may involve
hiring additional professionals (parenting coaches, financial advisors etc.) to assist the process. It
1
“Shared jurisdiction” in this CAN refers to the overlapping provincial and federal jurisdiction over married
couples. Nonmarital families can only use provincial law.
2
Defined as “a dispute respecting a matter to which this Act relates”: FLA, s. 1 “family law dispute.”
3
More precisely, “family dispute resolution processes”, which will be defined in the new Act to mean any “process
outside of court…used…to resolve any matters in dispute, including negotiation, mediation and collaborative law”:
Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 2(1) “family dispute resolution process”.
4
This will be especially relevant for parenting arrangements.
1
typically requires both parties’ lawyers to withdraw if a client wishes to withdraw from the
agreement. The average cost is about $6,000 and results in an alleged 90% success rate [Lazar].
Some issues associated with ADR include the fact that the parties may not have the right frame
of mind to negotiate (given the stress etc.); the potential for an agreement to have negative
externalities on third parties; and the fact that spouses may have different bargaining power
depending on their preferences, risk tolerance, financial resources etc. It may not be appropriate
in relationships marked by family violence. On the other hand, it can help parties reduce
uncertainty, lower costs, control the process and preserve working relationships.
Child Support5
v Shared Jurisdiction
Parents and guardians6 are under a duty to provide support for their children under the age of
majority who are not themselves spouses [FLA, s. 147(1)]. Child support can be arranged by
agreement7 made following or effective upon separation [DA, s. 15.1(5, 7); FLA, s. 148(1)] or
through interim [DA, s. 15.1(2)]; FLA, s. 149(1)] or final court order [DA, s. 15.1(1); FLA, s.
149(1)]. Child support orders take priority over spousal support orders under the DA [s. 15.3(1)].
Written agreements for child support can be filed with the court and made enforceable as if they
were orders of the court [FLA, s. 148(2)]. Courts may set aside written or oral agreements if they
are not satisfied that the agreement makes “reasonable arrangements” for the support of the child
[DA, s. 15.1(7); FLA, s. 150(2)]. An agreement is not unreasonable merely for failing to conform
to the guidelines [DA, s. 15.1(8); FLA, s. 150(3)].
Support may be required for a child past the age of 19 if they remain dependent on their
parent(s).8
Ø Test (status of a “child” past age of 19): whether the person

is “unable, because of illness, disability or another reason9, to
obtain the necessaries of life or withdraw from the charge of
his or her parents or guardians”
[DA, s. 2(1)(b); FLA, s. 146 “child”]
Factors relevant to assessing an adult child’s dependency include:
• Child’s employability;
• Any disabilities;
5
The simplest way to handle this, and many other issues in family law, is to just not have kids.
6
The definition of “guardian” here excludes non-parents whose only parental responsibilities relate to the child’s
legal and financial interests: FLA, s. 146 “guardian”.
7
Note that the FLA does not require that this be in writing or witnessed, as with spousal support agreements.
8
Including if they become independent and subsequently return to their “charge”: FLA, s. 147(2).
9
The “other cause” aspect of this should be interpreted liberally: Pound v. Pound, 1987 CanLII 2899 (B.C. C.A.). It
could include athletics, pursuit of unique talents etc.
2
• Child’s education (including extent of schooling time;
eligibility for loans or financial assistance; child’s career plans;
child’s ability to obtain part-time work; child’s age; past
academic performance; parents’ plans for child’s future,
especially if made during cohabitation); and
• Whether the child’s unilaterally withdrawn from a relationship
with the parent
[MJL v. GH]
The existence of a disability will render scrutiny of the child’s education or their severance of a
relationship with the parent less important in the analysis [MJL v. GH]. The receipt of disability
benefits will not preclude support obligations, though it may reduce the quantum of support
[MJL v. GH].
A divorcing or separating spouse who is not a biological parent may nevertheless be responsible
for paying child support if they stand “in the place of a parent” [DA] or are a “stepparent”
[FLA]10:
FLA Divorce Act

Test (obligation of stepparent to provide support): Test (standing in the place of a parent): what was the
whether they a) “contributed to the support of the child “nature of the relationship” considered objectively in
for at least one year”; and b) the proceeding is brought light of all the circumstances?
within a year following their last contribution [DA, s. 2(2) Chartier v. Chartier]
[FLA, s. 147(4)].
Factors relevant to this analysis include:
Stepparent’s obligation is secondary to parents and - Intentions (express and inferred)11;
guardians; - Child’s participation in extended family compared
[FLA, s. 147(5)(a)] with biological children;
- Person’s financial support for the child;
and is limited by i) child’s standard of living during - Disciplining;
relationship between stepparent and the spouse; ii) - Representations;
length of time child lived with the stepparent - Nature or existence of child’s relationship with the
[FLA, s. 147(5)(b)] missing biological parent;
- Child’s understanding of the relationship
[Chartier v. Chartier]
Unless an agreement specifies otherwise, the quantum of child support is determined, as a matter
of law, under the Federal Child Support Guidelines [DA, s. 15.1(3); FLA, s. 150(1)]. Courts can
depart from the guidelines where they are willing to uphold a different agreement between the
parties [DA, s. 15.1(7); FLA, s. 150(2)] or where a) other provisions have been made for children
(i.e. indirect support through property division); and b) the application of the guidelines would
lead to an “inequitable” outcome [DA, s. 15.1(5); FLA, s. 150(4)]. Under the Guidelines
themselves, the standard for variance is “undue hardship” on an affected spouse or child [s.
10
Parties can run either or both arguments if they are seeking relief corollary to divorce. A “stepparent” is defined as
a spouse of the child’s parent who lived with both during the child’s life: FLA, s. 146 “stepparent.”
11
The relevant intentions are those not qualified by duration or other conditions: Chartier v. Chartier, [1999] 1 SCR
242 (S.C.C.) at para. 39.
3
10(1)], which has been described as a “tough threshold to meet” [LCT v. RK].12 Income for child
support purposes is income as set out in the party’s T1 form [Guidelines, s. 16], unless it makes
more sense to evaluate the party’s “pattern of income” over the previous three years [s. 17].
In addition to basic amounts, the Guidelines permit a court to order payments for “special or
extraordinary expenses” [s. 7(1)], which should be shared on a pro rata basis by the spouses [s.
7(2)]. These typically relate to the child’s health, education and costs of child care due to the
custodial parent’s health or employment [s. 7(1)]. The Guidelines also create an explicit
exception for spouses whose incomes exceed $150,000. Courts in that situation can either follow
the guidelines or treat any balance above $150,000 on grounds it considers appropriate where the
amount in the table would be “inappropriate” [Guideline, s. 4(b)], with regard for the “condition,
means, needs and other circumstances” of the children plus the spouses’ ability to support them
[s. 4(b)(ii)].
Division of Property & Debt (Agreement)
v Provincial Jurisdiction
Spouses may conclude agreements13 altering the division, the inclusions and exclusions or the
valuation of family property and debt [FLA, s. 92], which can be registered with the Land Title
Office [s. 99] or personal property registry [s. 100]. Written agreements are presumptively
binding but may be set aside in whole or in part by a court on the grounds of procedural or
substantive unfairness.14 The grounds of procedural unfairness include:
o Failure to disclose “significant property or debts” or

other relevant information;
o Taking improper advantage of the other’s vulnerability,
including their “ignorance, need or distress”15;
o Lack of understanding of the “nature or consequences
of the agreement”; or
o Other circumstances that would lead the contract to be
voidable at common law
[s. 93(3)]
12
Circumstances giving rise to undue hardship could include having responsibility for “unusually high level of debts
reasonably incurred” for support purposes; unusually high expenses in exercising access; and other spousal, child or
dependent support obligations: Guidelines, s. 10(2). This remedy is unavailable if the person claiming undue
hardship has a higher standard of living than the other spouse: s. 10(3)].
13
Section 92 uses the word “agreements” while s. 93 uses “written agreements.” Courts may only set aside
agreements under the s. 93 framework if they are in writing. Both oral and written agreements respecting the
division of property are enforceable, however: Storey v. Terry, 2019 BCSC 674 at para. 49. Oral agreements are
assessed under the s. 95 framework, where s. 95(2)(b) permits a court to consider the “terms of any agreement
between the spouses, other than an agreement described in section 93(1)”: Storey v. Terry at paras. 51-52. In other
words, oral agreements are presumed to not be binding.
14
While s. 93 only applies to written agreements signed by the spouses, the agreement does not necessarily have to
be witnessed: s. 93(6).
15
This apparently includes a spouse’s “vulnerability” from attempting to conceive a child: Asselin v. Roy, 2013
BCSC 1681 at para. 147.
4
In particular, the lack of independent legal advice may be fatal to an agreement under s. 93(3)(c)
[Asselin v. Roy]. Given the typically sweeping nature of such agreements, courts will look for
more than the usual level of caution; merely understanding and consenting to the nature and
contents of an agreement may not suffice [Asselin v. Roy]. Rather, courts may ask whether the
party’s solicitor made full inquiries into their circumstances, whether they were advised as to
their legal rights and obligations, whether they were advised as to the consequences of refusing
to agree, and whether they were advised as to the desirability of agreeing [Asselin v. Roy].
A court may decline to intervene if such an agreement is nevertheless substantively fair such that
a court’s own order would not be “substantially different” [s. 93(4)]. If an agreement is
“significantly unfair” it may be set aside for substantive unfairness despite no procedural flaws
[s. 93(5)]. This assessment will consider:
o The length of time since the agreement;

o The intent of the spouses (in terms of achieving
certainty); and
o The spouses’ reliance on the terms of the agreement16
[s. 93(5)]
The parties’ agreement must be set aside before a court can make orders respecting property or
debt covered by the agreement [s. 94(2)].17 This may involve cancelling agreements registered
with the Land Title Office or personal property registry [s. 101].
Division of Property & Debt (Default)
BC is an “opt-out” jurisdiction: by default, spouses are entitled to an undivided half interest in

family property as tenants in common and are equally responsible for family debt upon
separation18 [FLA, s. 81].19
“Family property” includes all property20 owned by the spouses on the date of separation [s.
84(1)(a)] and property derived from it post-separation [s. 84(1)(b)]. It also includes:
16
A spouse who encourages the other to act against their financial interests, for example by pooling money into an
asset that is excluded by the agreement, may be precluded from arguing that they relied on the agreement: Asselin v.
Roy at para. 156.
17
For real-world purposes the date of the agreement is key—if it was made while the Family Relations Act was still
in force then that Act governs the proceedings unless the spouses agree otherwise: FLA, s. 252(2).
18
See s. 3(4) of FLA for the definition of “separation.” This would seemingly include spouses who are married but
separated.
19
The stated purpose of the FLA was to “simplify the division of family property, to render it more certain and
predictable, and to divide property on a basis that better fits people’s expectations of fairness” by providing greater
clarity on what constitutes excluded property and by reducing courts’ discretion to depart from equal division:
Jaszczewska v. Kostanski, 2016 BCCA 286 at para. 36. In borderline cases it would be prudent to expect the status
quo to prevail on this basis.
20
“Property” includes anything “another person would pay to acquire,” including goodwill in a business: HCF v.
DTF, 2017 BCSC 1226 at para. 87. This matters because more intangible assets like “goodwill” may have been
acquired prior to the relationship, as in HCF v. DTF, even though their value is only realized later.
5
• Increases in the value of excluded property from the later of the
beginning of the relationship or when the property was
acquired [s. 84(2)(g)] 21
• Property a spouse contributed to a trust, which they retain some
control over [s. 84(3)] 22
• Property held outside the jurisdiction [s. 109(1)]23
The FLA adopts an excluded property model, according to which all property belonging to a
spouse at the time of separation24 is subject to division unless it falls within one of the listed
exclusions [s. 85(1)]25:
(a) Property acquired before the relationship began

(b) Inheritances
(b.1) Gifts from a third party [to one spouse]
(c) Damages or settlement funds unless owed to both
spouses or in compensation for lost income26
(d) Insurance money, unless owed to both spouses or in
compensation for lost income
(e) A spouse’s beneficial interest in any of the above
(f) A beneficial interest in a discretionary trust settled
by others without their contribution [i.e. a gift trust]
(g) Property derived from any of the above
The party claiming that property is excluded bears the onus of proof [HCF v. DTF]. Excluded
property can be divided if family property or debt is outside BC and can’t practically be divided
[s. 96(a)] or if it would be “significantly unfair” to not include it in light of the length of the
relationship and a spouse’s contributions to the property [s. 96(b)]. Courts are generally reluctant
to do this and have stressed that the standard for doing so is higher than that for the division of
family property:
Ø Test (division of excluded property): whether the

“consequences of not dividing excluded property would be so
weighty as to produce an unjust or unreasonable result”
21
See especially real estate in this regard. The beginning of the relationship means the beginning of the marriage-
like relationship or the date of marriage: FLA, s. 3(3).
22
It may also include property owned by a spouse’s corporation in circumstances where it would be appropriate to
“pierce the corporate veil”: e.g., Lynch v. Segal (2006), 82 O.R. (3d) 641 (O.N. C.A.), leave ref’d 2007 CarswellOnt
4425 (S.C.C.).
23
A court in BC can make direct orders over extraterritorial property if it’s satisfied that such an order would be
enforceable: s. 109(2)(b-c). If it would be unenforceable, the court can substitute BC property and debt for it or
order compensation: s. 109(2)(a).
24
This includes property a spouse has a beneficial interest in: s. 84(1)(a)(ii). It excludes property gifted to minor
children by reason of the presumption of advancement: P.G. v. D.G., 2015 BCSC 1454 at para. 92, citing Pecore v.
Pecore, 2007 SCC 17 at para. 40.
25
What is the guiding line dividing family property from excluded property? Excluded property appears to be
windfall or compensatory property acquired outside of the couple’s “joint venture.”
26
This may raise questions in cases where a spouse obtains damages for loss of future earnings.
6
[Andermatt v. Tahmasebpour]
Source Excluded Property Not Divided

Parton v. Parton 33-year marriage, husband was gifted 50% of shares in a company, wants to gift them
to business partner. Wife worked at the company for years as assistant and bookkeeper
for a wage after retiring from her career due to disability. Shares excluded.
Appleby v. Marshman 7-year relationship, Marshman added 2 barns, a woodshed, a porch, greenhouse and
water lines to Appleby’s house. These made little to no difference in the value of the
property, required remedial work and required permits. House excluded.
McCarthy v. McCarthy 5-year relationship, 100-acre property gifted to both spouses as joint tenants, had been
in husband’s family for decades. Wife spent 20 weeks there and contributed domestic
chores. Property excluded.
If a spouse gifts excluded property outright to the other spouse, then it will become family
property [VJF v. SKW]27, though it may still be traceable if the spouse gifts a joint tenancy to the
other [PG v. DG]. Note that the presumption of advancement still applies to property subject to
division under the FLA [HCF v. DTF; VJF v. SKW28]. The party claiming that property is
excluded bears the onus of proof [s. 85(2)] on the balance of probabilities [HCF v. DTF].
Family debt includes all “financial obligations” incurred during the relationship [s. 86(a)] and
includes debts incurred to maintain family property following breakup [s. 86(b)].29 Property and
debt are valued by their fair market value at either the date of an agreement or the date of the
court hearing [s. 87(b)], unless it would be “significantly unfair” to do so [Blair v. Johnson].30
Fair market value is understood in the ordinary sense and isn’t affected by taxes payable
[Maguire v. Maguire].
Ø Test (fair market value): “the price at which a transaction

would occur, in an open and unrestricted market between
informed and prudent parties acting at arm’s length, where
neither party is acting under compulsion.”
[Maguire v. Maguire]
Spouses can apply for interim orders dividing family property and debt [s. 88], including orders
for funding dispute resolution or proceedings [s. 89], the occupation of the family residence and
its contents [s. 90] and the preservation of property [s. 91]. The court can order a party to make
payments related to a residence (rent, mortgage, taxes, utilities etc.) [s. 226(a-b)] and to require a
person to supervise the removal of property from a residence [s. 226(c)].
27
This is the view in the case law, though it doesn’t seem to find much support in the FLA itself. See also Venables
v. Venables, 2019 BCCA 281 at para. 95, confirming that this is the correct approach.
28
See also Remmem v. Remmem, 2014 BCSC 1552; G.P. v. G.D., 2015 BCSC 1454, which both refused to follow
the presumption of advancement. Well v. Campbell, 2015 BCSC 3 followed it. The more recent case Namdarpour v.
Vahman, 2019 BCCA 153 held that the presumption of advancement persists but that it may only be used to “tip the
scales” if the totality of the evidence is inconclusive about the donor’s intent: at paras. 39-41. Transfers from wives
to husbands presumptively create a resulting trust in favour of the wife: Kerr v. Baranow, 2011 SCC 10 at para. 20.
29
Like family property, family debt includes increases in debts that were originally acquired prior to the
relationship: C.P. v. K.W.A., 2018 BCSC 332 at para. 218. Note that Part 5 of the FLA does not affect creditors’
rights respecting family debt: s. 82.
30
Section 95 and 87 may be regarded as “alternate routes” for dealing with unfairness in property division: Blair v.
Johnson, 2015 BCSC 761 at para. 69.
7
A court may also order unequal division if equal division would be “significantly unfair” [s.
95(1)].
Ø Test (unequal division): “something objectively unjust,

unreasonable or unfair in some important or substantial sense,”
deliberately framed without “too much precision” to permit
case law to develop
[Jaszczewska v. Kostanski]
The FLA provides a non-exhaustive list of relevant factors:
(a) Duration of the relationship [more likely unequal

division in shorter relationships]
(b) Terms of any agreement aside an agreement respecting
property division
(c) Spouse’s contribution “to the career or career potential”
of the other31
(d) Whether family debt was incurred in the “normal course
of the relationship”
(e) Ability of each to pay for whatever debt exceeds family
property
(f) Whether a spouse caused a “significant decrease or
increase” in the value of family property or family debt
following separation, “beyond market trends”
(g) Whether a spouse, through bad faith, “substantially
reduced” the value of family property or transferred it
to adversely affect the other spouse’s entitlement
(h) Tax liability due as a result of a transfer, sale or order
(i) “any other factor”
[s. 95(2)]
Although unequal contributions to property is not an explicit factor in this list it may be relevant
under s. 95(2)(f) or s. 95(2)(i) depending on the facts [Jaszczewska v. Kostanski]. The actual
manner of unequal division can be done “globally” even if the dispute centers on particular items
of property [Jaszczewska v. Kostanski]. A court may also use an unequal division of property to
compensate for inadequate spousal support [s. 95(3)].
Source Unequal Division

Jaszczewska v. Kostanski Husband demolished family home and built new property on his own design whose
value far surpassed market trends.
Lahdekorpi v. Lahdekorpi 36-year relationship, couple left with significantly different financial prospects,
lack of much financial planning, husband intending to retire within a few years.
Williams v. Killey 3.5-year relationship, mostly excluded property, he contributed all of value to
RRSPs, she made some contribution to house.
31
See, e.g., the wife’s signature on the husband’s line of credit in Blair v. Johnson.
8
Smith v. Clough-Smith 7-year relationship, wife had made significant contributions to repairing and
maintaining a family property out of a motor vehicle accident settlement post-
separation and taken care of all family debt.
Chang v. Xia Husband failed to disclose value of pension and RRSPs following separation
(student debt reapportioned to him alone).
In effecting a division of property and debt between spouses, courts have broad powers to make
orders related to ownership, possession or division [s. 97(1)(a)] and may make any ancillary
orders required to make those orders effective [s. 97(1)(b)].
Divorce32
v Federal Jurisdiction
A court33 may only grant spouses a divorce if there has been a “breakdown of their marriage”
[DA, s. 8(1)]. This can occur in three circumstances [8(2)]:
(a) The spouses have lived “separate and apart” for at least a year,
including at the beginning of proceedings34
(b)(i) The respondent committed adultery, or
(b)(ii) The respondent treated the applicant with “physical
or mental cruelty” rendering continued cohabitation
“intolerable”
The living “separate and apart” branch has two criteria: physical separation and an intent to sever
the “matrimonial consortium” [Rushton v. Rushton; Dorchester v. Dorchester; DA s. 8(3)(a)].35
The intent to separate may be unilateral and can be inferred from conduct [HSS v. SHD].
Ø Test (intent to separate): whether “either party regards it as

being an end, and by his or her conduct, has demonstrated in a
convincing manner that this particular state of mind is a settled
one” [HSS v. SHD, citing Hodge v. Canada].
This test is intended to be “contextual and holistic” [HSS v. SHD]. Relevant factors include:
o Living arrangements [“frequently accorded significant

weight”, HSS v. SHD]
o Sexual relations
32
See also “Jurisdiction (Divorce)” and “Nonmarital Families” below.
33
This means a judge only, not juries: Divorce Act, s. 7. Standard procedure is to do a hearing, not a trial.
34
Note that given strained court resources most couples seeking divorce will have “separate and apart” for over a
year anyway by the time their case is heard.
35
There are many relationships where spouses would live physically apart from one another without experiencing a
breakdown in the marriage, i.e., where a spouse is posted overseas for work or where a spouse is institutionalized for
mental illness: Dorchester v. Dorchester. The inability of a spouse to form the intent of severing the matrimonial
consortium is no bar if the separation would likely have continued even if the spouse had not lost capacity: Divorce
Act, s. 8(3)(b)(i).
9
o Degree of communication
o Provision of domestic services
o Socializing (incl. eating arrangements, activities,
vacation plans, presentation to others36 etc.)
o Financial intermingling (incl. tax filings, estate
planning etc.)
[Dupere v. Dupere; HSS v. SHD]
Physical separation is not assessed in terms of proximity per se—a couple may be living separate
and apart “under the same roof” [Rushton v. Rushton], particularly when doing so out of
economic necessity [Dupere v. Dupere]. In borderline cases the court’s task is to distinguish
unhappy households from separated ones, a task that requires “great care” in considering the
evidence [Dupere v. Dupere].37 In cases where a spouse has diminished capacity, Courts require
that they “know with whom he or she does or does not want to live” and have a “desire to remain
separate and to be no longer married to [their] spouse” [Devore-Thompson v. Poulain]. A period
of reconciliation of 90 days or less will not interrupt the calculation of time for the purposes of
divorce [DA, s. 8(3)(b)(ii)].
Separate and Apart Not Separate and Apart

Rushton v. Rushton: joint caretakers of an apartment Dupere v. Dupere: Separate bedrooms, no sexual
building, lived in same suite but conducted separate relations, moved twice together, wife seeing another
lives. Moved into separate suites when they took over man with husband’s consent, living together for sake of
another building. the kids
HSS v. SHD: stopped living together in 1999 following Dorchester v. Dorchester: had dropped wife off at a
a domestic incident, husband saying he wasn’t coming mental hospital three years earlier, where she resided
back, husband bought house in 2003, she in 2005. ever since. Said he formed intent to separate on day of
Vacationed together with daughters, using separate filing divorce petition.
bedrooms. Her tax returns said “married,” his
“separated.” Kept separate finances except for family
expenses. [separate and apart from 2003].
Courts define adultery on a case-by-case basis, though each successful case will involve
something akin to a “violation of the marital bond” [SEP v. DDP].38 Cruelty is also defined on a
case-by-case basis. It generally implies a “disposition to inflict suffering…hard-heartedness as
manifested by conduct” etc. Danger to health isn’t a pre-requisite [Payne & Payne]. Courts will
generally try to avoid granting divorce on either of these grounds when a no-fault alternative is
available [Aquilini v. Aquilini; McPhail v. McPhail], unless required for faith-based reasons [HP
v. CTP].
Divorce may be barred where divorce is sought on grounds of adultery or cruelty if the spouses
have colluded in fabricating grounds of divorce [s. 11(1)(a)] or the applicant spouse has
36
Evidence of how the spouses presented themselves to others may conflict with the rule against prior consistent
statements. However, courts deem it admissible for the specific purposes of the test, and it may in some cases be
necessary to demonstrate or rebut a recent fabrication claim: H.S.S. v. S.H.D., 2016 BCSC 1300 at paras. 55-58.
37
Note that spouses who live together for the sake of the family (i.e. the kids) may have a more difficult time getting
a divorce than those who live together for economic reasons: contrast Dupere v. Dupere and Rushton v. Rushton,
recalling that in Dupere the spouses moved back in together after a period of separation.
38
The common law now recognizes that a person can commit adultery with a person of either sex: SEP v. DDP,
2005 BCSC 1290.
10
“condoned or connived” in the act complained of, unless the public interest would be better
served by granting divorce anyway [s. 11(1)(c)]. Divorce may be postponed in any cases where
the spouses have not made “reasonable arrangements…for the support of any children of the
marriage” [s. 11(1)(b)].
In cases where a religion imposes certain barriers to remarriage, spouses can file and serve an
affidavit indicating their own removal of those barriers or requesting that the other spouse
remove those barriers [s. 21.1(2)]. If the other spouse doesn’t comply the court can dismiss or
strike their pleadings and affidavits [s. 21.1(3)].
Family Violence
Concurrent to their duties to consult parties about their ADR options, lawyers and other dispute
resolution professionals must assess whether family violence is present and whether it may
adversely affect the safety of family members and the ability of the client to “negotiate a fair
agreement” [FLA, s. 8(1)].
Family violence orders39 (or “protection orders”) can be made by the court at any time upon
application by an affected family member or their representative, or on the court’s own initiative
[FLA, s. 183(1)], where the court believes that family violence is “likely to occur” [s. 183(2)].
Such orders can be made ex parte if necessary [s. 186]. Family violence is also a key factor in
determining the best interests of the child for the purposes of parenting arrangements [s. 38]. The
term “family violence” is defined relatively broadly in both the amended Divorce Act and the
FLA:
FLA New DA
a) “physical abuse of a family member, including “any conduct…by a family member towards another
forced confinement or deprivation of the necessities of family member, that is violent or threatening or that
life, but not including the use of reasonable force to constitutes a pattern of coercive and controlling
protect oneself or others from harm”; behaviour or that causes that other family member to
b) sexual abuse; fear for their own safety or for that of another person”
c) attempted physical or sexual abuse; including direct or indirect exposure of a child to the
d) “psychological or emotional abuse…including” i) above. Includes:
“intimidation, harassment, coercion or threats, a) physical abuse including forced confinement but
including threats respecting other persons, pets or excluding reasonable self-defence;
property”, ii) “unreasonable restrictions on…a family b) sexual abuse;
member’s financial or personal autonomy”, iii) c) threats to kill or cause bodily harm;
“stalking or following a family member”, or iv) d) harassment, including stalking;
“intentional damage to property”; e) failure to provide necessaries of life;
e) direct or indirect exposure of a child to the above f) psychological abuse;
[FLA, s. 1 “family violence”] g) financial abuse;
h) threats to kill or harm an animal or damage property;
i) killing or harming an animal or damaging property
[new DA, s. 2(1) “family violence”]
39
The lists of orders courts can make, and the factors relevant to making them, are outlined in FLA ss. 184-185.
11
Protection orders can seemingly only be enforced by the police [FLA, s. 188].40
Guardianship
Guardianship is a legal precondition to having parental responsibilities and parenting time [FLA
s. 40(1)] and includes the ability to exercise all parental responsibilities unless determined
otherwise by order or agreement [s. 40(2)].
In most cases it is reserved for parents. A parent who lives with the other parent and the child is a
guardian, including post-separation [s. 39(1)].41 However, a parent may become a guardian even
if they have never lived with the child in three circumstances:
• They are an intended parent pursuant to s. 30 [s. 39(3)(a)];

• They agree with all the guardians to become a guardian [s.
39(3)(b)]; or
• They “regularly care…for the child” [s. 39(3)(c)]
This latter is not merely a question of counting the frequency of visits [AAAM v. BC]:
Ø Test (regularly caring for the child): whether the parent has
“demonstrated a continuing willingness to provide for the
child’s ongoing needs and a record of ‘usually’ or ‘normally’
doing so in fact”
[AAAM v. BC]
By contrast, a person who marries or begins a marriage-like relationship with a parent does not
automatically become the guardian of that parent’s children [s. 39(4)]. A parent can cease being
a guardian by agreement post-separation [s. 39(2)]. Except pursuant to the FLA, Adoption Act or
the Child, Family and Community Service Act, only parents may become guardians by agreement
[s. 50].
The court may also appoint a person a guardian or terminate their guardianship by order, if they
consider it in the best interests of the child [s. 51(1)]. Applicants for guardianship must meet the
best interests of the child criteria under s. 37 [s. 51(2)]. If the child is 12 years old or older, their
written approval must be obtained, unless the court is satisfied that the appointment is otherwise
in the child’s best interests [s. 51(4)]. The case law suggests that the threshold for parents to
become guardians under this section is relatively low, though such orders may include conditions
if there are concerns with the applicant’s ability to parent [P v. S&S].
40
It seems to be an open question whether the court might be able to use its inherent jurisdiction to get around this
section.
41
Such a person may cease being a guardian upon agreement made upon or after separation or by court order: s.
39(2).
12
Indigenous Family Law Issues
v Federal Jurisdiction (indigenous affairs and reserves)
Different substantive rules may apply where indigenous litigants or reserve property are
involved.
Under the Indian Act, non-indigenous people are not entitled to the division of property on
Indian reserves [s. 28(1)], though they may apply for a federal permit to remain on reserve for a
year [s. 28(2)] and can remain longer with the band council’s consent [s. 28(2)]. This means that
upon separation or divorce, a non-indigenous spouse living on reserve may be required to leave,
even where they have lived there for a long period and made improvements to the property
[Bradfield v. Brydges]. However, the more recent Family Homes on Reserves and Matrimonial
Interests or Rights Act now permits a court to make an order for exclusive occupation of a family
home [s. 21] and for division of property (i.e. value) on reserve [s. 34] where one of the parties is
a status Indian or band member, pursuant to a long list of factors. It also authorizes First Nations
to legislate their own bylaws respecting family homes and the division of property [s. 7]. A court
may make an order for occupation even against the wishes of the relevant band council if the
factors point in support of it [Toney v. Toney Estate].
Another area that has unfortunately been historically important has been the removal of
indigenous children from their parents:
Ø Test (MFHD removing a child without court order):

whether the director “has reasonable grounds to believe that the
child needs protection and that (a) the child’s health or safety is
in immediate danger, or (b) no other less disruptive measure
that is available is adequate to protect the child”
[Child, Family and Community Services Act, s. 30(1)]
The standard the director has to meet at the first stage of this test during the “presentation
hearing” over removal is much lower than a balance of probabilities, and any conflicts in the
evidence are to be resolved in the director’s favour unless their evidence is “so plainly and
obviously wrong or untrue” that no credibility assessment is required [Director v. LDS and
CCC]. The second stage is more difficult to attain, particularly if the director has failed to take
reasonable steps to alert the birth mother to the possibility of removal or was guided by
stereotypical reasoning [Director v. LDS and CCC].
International Law
While federal and provincial laws should be primary in the analysis of family law issues,
international law sources can help inform particular decisions. In particular, important principles
respecting children are enshrined in the UN Convention on the Rights of the Child, which Canada
has ratified. This states that the best interests of the child are the paramount consideration in “all
actions concerning children” [Art. 3(1)], that children should be protected from family violence
[19(1)] and that children should “be provided the opportunity to be heard” in any judicial
13
proceeding affecting them [12(2)], assuming they are capable of forming their own views
[12(1)]. Their views should be accorded “due weight in accordance” with their age and maturity
[12(1)]. The FLA also incorporates the Hague Convention on the Civil Aspects of International
Child Abduction
The articles of the UN Declaration on the Rights of Indigenous Peoples (“UNDRIP”) may also
be relevant in an indigenous context, particularly as BC has recently passed the Declaration on
the Rights of Indigenous Peoples Act, which implements UNDRIP on a provincial level and
permits the provincial government to enter agreements with Indigenous governing bodies over
exercises of statutory power [s. 7(1)].
Jurisdiction
On a federal level, the jurisdiction in family law and related matters breaks down as follows:
Federal Shared Provincial

Criminal law (re: polygamy, Maintenance (married couples) Guardianship/Parentage
assisted reproduction etc.) [91(27)]
Indigenous Peoples and reserve Parenting orders (married couples) Maintenance (unmarried couples)
lands [91(24)]
Marriage & Divorce [91(26)] Parenting orders (unmarried
couples)
Property division [92(13)]
Protection orders
Solemnization of marriage [92(12)]
Except when the Federal Courts serve as a tie-breaker forum (i.e. in competing divorce
proceedings) all proceedings take place in the Provincial Courts of the jurisdiction. Only the
BCSC may decide matters under the Divorce Act, but there is significant overlap between BCSC
and BCPC jurisdiction.
BCPC or BCSC BCSC only

Family violence [s. 193(3)] Divorce [DA, s.2(1) “court”]
Maintenance [s. 193(1)] Property division (incl. pensions and children’s
property)
Parentage (only at BCPC if incidental to another order)
[s. 193(2)(a)]
Parenting orders [s. 193(1)]
Where there’s a conflict of law, the competency of a court in matters not specifically addressed
in the legislation—like spousal support—fall under the general provisions of the Court
Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c. 28.42
42
Parker v. Mitchell, 2016 BCSC 723 at para. 11.
14
Jurisdiction (Division of Property & Debt)
Orders respecting the division of property and debt can only be made at the BCSC. That court
has jurisdiction if [FLA, s. 106(2)]:
(a) it’s a counterclaim to a claim brought in BC;

(b) both spouses submit to the jurisdiction
(c) either spouse is “habitually resident”43 in BC at the start
of proceedings;
(d) there’s a “real and substantial connection” to BC
Courts presume there is a “real and substantial connection” if [s. 106(3)]:
(a) the property at issue is in BC

(b) the “most recent common habitual residence” of a
spouse was in BC, or
(c) a notice of family claim under the Divorce Act was
issued in BC
Even if the court has jurisdiction it may decline to exercise it if another jurisdiction is “more
appropriate” [s. 106(4)], considering similar factors to those under the Court Jurisdiction and
Proceedings Transfer Act [s. 106(5)]. If the BCSC assumes jurisdiction it may make orders
respecting property held outside BC [s. 109]. The FLA adopts choice of law rules [s. 107-108]
that won’t be relevant on an exam.
Jurisdiction (Divorce)
Provincial courts only have jurisdiction over divorce proceedings if either spouse has been
ordinarily resident there for at least a year prior to the proceedings [DA, s. 3(1)]. If both spouses
start proceedings in different jurisdictions the jurisdiction of the first proceeding governs [s.
3(2)].44 If they start on the same day, the FC takes jurisdiction [s. 3(3)]. “Ordinary residence” is
determined contextually, borrowing from tax law45:
43
Note that this is different from the “ordinary residence” standard under the Divorce Act.
44
This may create a race against the clock in cases where one jurisdiction may have more favourable corollary relief
(division, maintenance etc.) for a given spouse.
45
This is not necessarily to say that residency for the purposes of divorce is equivalent to residency for the purposes
of tax law, immigration etc. In family law, a person will typically only have one place of ordinary residence but may
have more than one: Parker v. Mitchell, 2016 BCSC 723 at para. 19, citing Blazek v. Blazek, 2009 BCSC 1693 at
para. 33.
15
Ø Test (ordinary residence): the person’s “residence in the
course of the customary mode of life…” or their “settled
routine of…life” [Hinter v. Hinter, citing Thompson v. MNR]
Note, however, that courts are highly reluctant to stay or dismiss a divorce proceeding and will
only do so in a “clear and obvious case” [Hinter v. Hinter].
Source Non-Resident
Wrixon v. Wrixon Petitioner lived in AB for 20 years but had spent prior 18 months in Hawaii, furniture
stored in AB.
MacLean v. MacLean Couple moved to Seattle, kept bank accounts, real estate, cars, social memberships etc. in
BC and stated they intended to return.
Hinter v. Hinter Petitioner moved to Florida for relationship, brought 2 proceedings in the state, swearing
that she was a Florida resident. Listed ON as her residence for tax returns, but no
expressed intent to return, spent most of time in Florida.
Non-residents married in Canada can obtain a divorce with the jurisdiction they were married in
under s. 7(1) of the Civil Marriage Act provided they have lived “separate and apart” for at least
a year [7(1)(a)]; neither spouse resides in Canada at the time of application [7(1)(b)]; and both
have resided for at least a year in a state that will not grant their divorce [7(1)(c)].
Corollary relief [DA, s. 4(1)] and variation [s. 5(1)] can be granted if either spouse is ordinarily
resident in the jurisdiction at the start of proceedings or if both submit to the court’s jurisdiction.
Custody proceedings can be transferred to the jurisdiction in which the child is “most
substantially connected” [s. 6].
Limitation Periods
The basic rule is that proceedings for the division of property, pension division or maintenance
must be brought within a 2-year window following divorce, annulment or separation [s.
198(2)].46 This is subject to some exceptions:
Source Effect
FLA, s. 198(3) A spouse can apply to set aside or replace an agreement respecting property or spousal
support within 2 years of the time they discovered or should have discovered the grounds for
the application.
FLA, s. 198(4) 2-year baseline doesn’t apply to reviews of spousal support or pension benefits under s. 168-
169
FLA, s. 198(5) Clock stops running during the family dispute resolution process47 or another prescribed
process
FLA, s. 147(4)(b) 1-year limitation on seeking child support from a stepparent post-separation
The issue may be especially relevant in cases where the spouses have separated for a period of
time, since this may have the effect of rendering the earlier phase of the relationship non-
justiciable. If a limitation period has expired, it may be worth exploring whether an unjust
46
Note that there is no limitation period on procedures respecting parenting arrangements.
47
Defined in s. 1 to include mediation, arbitration, collaborative settlement processes and parenting coordination.
16
enrichment claim may be brought since claims for the recovery of trust property (including a
constructive trust) may be brought within 10 years post-discovery [Limitation Act, s. 3(3)].
Marriage (Essential Validity)
The essential validity of marriage is a question of who can legally marry.48 Federal legislation
sets out some of the basic parameters.
Source Effect
CMA49 s. 2 Marriage is the “lawful union of two persons to the exclusion of all others”
CMA s. 2.1 Marriage requires the “free enlightened consent” of the spouses
CMA s. 2.2 Minimum age for marriage is 1650
CMA s. 2.3 No new marriages until all prior marriages are dissolved or declared null
CMA s. 4 Spouses can be of the same sex
MPDA51 s. Can’t marry someone who’s “related lineally, or as brother or sister or half-brother or half-
2(2) sister, including by adoption” [consanguinity, affinity and adoption]
A failure to conform to these rules can lead to criminal consequences—for instance, the Criminal
Code retains prohibitions on polygamy and bigamy for those who intentionally practice or enter
a marriage “with more than one person at the same time,” whatever the method of marrying [CC,
s. 293; Reference re Section 293 of the Criminal Code of Canada].52
The common law has also developed its own views on what makes a marriage essentially valid.
The various common law doctrines reflect a particular policy stance making marriages easy to
enter into and difficult to invalidate. One illustration is the invalidation of marriage on the
grounds of fraud or misrepresentation:
Ø Test (fraud, misrepresentation or mistake): whether the

“misrepresentation induces an operative mistake, e.g. as to the
nature of the ceremony,53 or deception as to the identity of one
of the persons54 to the marriage, as when A is induced to marry
B, believing that she is marrying C”
[Hovius, citing Iantsis (Papatheodorou) v. Papatheodorou]
48
“Formal validity” refers to the separate question of how people legally marry and is within provincial
jurisdiction—see below.
49
Civil Marriage Act, S.C. 2005, c 33.
50
See also the provincial Marriage Act, RSBC 1996, c 282 ss. 28-30 on formal validity: consent of all guardians
required to marry a minor [s. 28(1)], though failure to get this won’t invalidate a marriage [s. 30].
51
Marriage (Prohibited Degrees) Act, S.C. 1990, c. 46.
52
This is distinguished from polyamory on the basis of a “sanctioning event,” which polyamory allegedly lacks:
Reference re Section 293 of the Criminal Code of Canada, 2011 BCSC 1588 at para. 939.
53
This may occur where a spouse has a poor grasp of English or the Canadian legal system and fails to recognize a
marriage ceremony for what it is: Hovius, citing Jiwani v. Samji (1979), 11 RFL (2d) 188 (B.C. S.C.).
54
This basically never happens: Hovius.
17
The narrowness of this doctrine can lead to unintuitive results in cases where a spouse
misrepresents their motives for entering into a marriage or conceals important facts about
themselves, such as a drug addiction or financial difficulties [Hovius, citing Grewal v. Sohal].55
Nevertheless, courts generally uphold such marriages and have frequently done so in cases where
one or both spouses entered into the marriage for limited purposes, such as immigration benefits
[Hovius].56
In rare cases a marriage may be voidable for inability to consummate if the spouses are unable to
have sex at least once following marriage:
Ø Test (inability to consummate): “invincible aversion” or

physiological incapacity
[Hovius57]
This doctrine may offer a means of getting around the limitations of the fraud or
misrepresentation doctrine in situations where the inability to consummate is itself a product of
the fraud or misrepresentation.58 The complaint must be sincere—a spouse who understands or
has reasonable grounds to believe that the marriage will be platonic will not be permitted to
annul the marriage for an inability to consummate [Hovius, citing Norman v. Norman; Aisaican
v. Kahnapace].59 Courts presume that parties are able to consummate their marriage and so
require “clear and unequivocal evidence” to establish the contrary [Hovius, citing Komon v.
Komon; Phinnemore v. Phinnemore].
Other doctrines flow from a contractual understanding of marriage. One is duress:
55
Note that the marriage will be invalid if a spouse conceals the fact that they are in an existing marriage: Li v. Rao,
2018 BCSC 142. However, the ground for invalidation will be the first marriage, not the misrepresentation. The
spouse responsible for the fraud or misrepresentation may be liable to the other in deceit or misrepresentation if they
caused them loss or damage (i.e. wedding expenses, emotional harm): Raju v. Kumar, 2006 BCSC 439. The torts of
deceit and misrepresentation are typically unavailable in relationships other than marriage, unless the offending
spouse put the other at risk of contracting a serious transmittable disease: Lee v. Riley, 2002 CarswellOnt 5558 (O.N.
S.C.); P. (P.) v. D. (D.), 2016 ONSC 258, aff’d 2017 ONCA 180. The latter may also have criminal consequences:
R. v. Mabior, 2012 SCC 47.
56
Doing so may ironically run afoul of s. 4 of the Immigration and Refugee Protection Regulations, SOR/ 2002-227.
57
See also Grewal v. Sohal, 2004 BCSC 1549 at para. 61.
58
As Hovius notes, this argument has succeeded in cases where a spouse failed to disclose a criminal past (Sangha
v. Aujla, 2002 BCSC 1472); where a spouse concealed a painkiller addiction and a motive to obtain an immigration
benefit (Grewal v. Sohal, 2004 BCSC 1549); where a spouse concealed his homosexuality and his motive to obtain
an immigration benefit (L. (K.H.) v. L. (G.Q.), 2003 BCCA 313); and where deficiencies in the marriage ceremony
led a devotedly religious spouse to believe she could never consummate the marriage (Jomha v. Jomaa, 2010 ABQB
135).
59
Another way of putting this may be to say that the inability to consummate must be the complaint. Further, it
seems that the complaint probably has to be brought immediately following the marriage—recall that cessation of
sexual relations is insufficient on its own to grant a spouse a divorce: Dupere v. Dupere, [1974] N.B.J. No. 24 (N.B.
S.C.).
18
Ø Test (duress): whether “the applicant’s mind was so overborne
by pressure to constitute duress vitiating the consent to
marriage.”60 Factors:
o Party’s emotional state at the time of the ceremony
[most important factor]
o Party’s vulnerability
o Time between alleged coercive conduct and the
ceremony
o Whether marriage was consummated
o Residence of parties during the marriage
o Passage of time before annulment proceedings
[RH v. RT]
The limited case law on duress was surveyed in RH v. RT:
Void Valid
S. (A.) v. S. (A.), 1988: arranged marriage, parents Thompson v. Thompson, 1971 SKQB: wife rejected by
exerted overwhelming pressure on wife. another man, went through ceremony under mother’s
pressure and for fear of altering plans.
Pascuzzi v. Pascuzzi, 1955 ONHC: wife was 15, Parihar v. Bhatti, 1980 BCSC: arranged marriage,
disowned by family, husband facing charges, his pressured by family, didn’t live with husband, didn’t
family pressured her to marry. consummate marriage.
Feng v. Sung Estate, 2003 ONSC: husband was in late Kecskemethy v. Magyar, 1961 NSW: married after
stages of cancer, caregiver threatened to abandon him husband threatened suicide.
if he didn’t marry her, was draining his finances.
Kawaluk v. Kawaluk, 1927: wife was 15, married at
father’s request, only lived with husband for 3 months.
RH v. RT: business person with high income got
pressured into involvement with girlfriend’s fake
businesses in Asia, arranged the ceremony, was getting
treated for depression, GF threatened to “destroy him”
unless he married her.
A marriage may also be annulled for a spouse’s lack of mental capacity, though the bar for
capacity is set fairly low, reflecting a policy stance that people with diminished capacity ought to
be able to marry. The law presumes that a person has capacity, so the person alleging otherwise
bears the onus of proof [Devore-Thompson v. Poulain].
Ø Test (mental capacity): whether the person “has the capacity

to understand the nature of the [marriage] contract and the
duties and responsibilities it creates.” Must have:
o “some understanding of with whom [they] want…to
live”; and
o “some understanding that it will have an effect on one’s
future in that it will be an exclusive mutually supportive
relationship until death or divorce.”
60
A subjective test. This could include cases of economic duress as well—cases where a person is offered a sum of
money or a dowry in desperate circumstances etc.
19
[Devore-Thompson v. Poulain]
Similarly, intoxication may render a marriage voidable:
Ø Test (intoxication): whether the applicant was “so intoxicated

that [they were] incapable of understanding that [they were]
entering into a marriage”
[Davison v. Sweeney]
The effect of a declaration that a putative marriage lacked essential validity by reason of prior
existing marriage, lack of capacity, youth61 or consanguinity is to render the marriage void ab
initio [Devore-Thompson v. Poulain; Marriage (Prohibited Degrees) Act, s.3(2)]. Where the
invalidity results from something other than an inherent feature of the spouses the marriage will
be voidable at the option of the aggrieved party.
A declaration of invalidity will not exempt the spouses from their rights and obligations in
relation to parentage [FLA s. 21(1)], property division and spousal support under the FLA [Li v.
Rao], though it will almost certainly be taking into consideration by a court in making such
orders.62
Marriage (Formal Validity)
The formal requirements of marriage in BC are set out in the Marriage Act:
Source Effect
s. 3 Religious representatives must be ordained or appointed by the relevant religious body to officiate
marriages in BC (or to be a supernumerary)
s. 7(3) Only registered religious representatives, marriage commissioners or designated treaty first nation
members designated to solemnize marriages (over at least one treaty first nation member, s. 7(4)) may
solemnize marriages
s. 9(1) Religious marriages must be witnessed by at least 2 people beside the religious representative
s. 15 Must have a marriage licence before getting a religious marriage
s. 16 Have to file an affidavit in prescribed form to get a marriage licence
s. 17 Unused marriage licences expire after 3 months
s. 25 Officiant has to enter marriage in a book kept for purpose, needs signature of parties, at least two
witnesses and the officiant
s. 28 Consent of parental guardians is required to marry someone under age of 19, consent not to be
unreasonably withheld
s. 29 No solemnization of marriages for those under age of 16
s. 30 Sections 28-29 do not affect the validity of a marriage
These rules are unlikely to be relevant on an exam but could be helpful if a client is planning to
get married in some unconventional way.
61
Some commentators refer to marriage of people under 16 as “void but capable of being ratified.” This sounds
contradictory, but a plausible interpretation is that the ratification is the marriage in such cases.
62
See the factors under s. 95(1) for the unequal division of property, especially the duration of the relationship.
20
Marriage (Officiation)
Officiation generally only arises as an issue when privately religious, but publicly employed,
marriage commissioners refuse to marry same-sex couples. While forcing religious officials to
solemnize marriages that are contrary to their religious beliefs would flatly violate s. 2(a) of the
Charter [Reference re Same-Sex Marriage], the refusal by civil marriage commissioners to
marry eligible same-sex couples violates human rights legislation and s. 15(1) of the Charter
[Nichols v. MJ]. Legislation that enables them to do so would also likely violate s. 15(1), unless
reflecting some new minimally impairing scheme (possibly a “single entry point” administration)
[Re: Marriage Commissioners Appointed Under the Marriage Act].
Nonmarital Families
The FLA treats unmarried couples as married couples for the purposes of property division [s.
81] and spousal support [s. 160] by virtue of including people living in “marriage-like
relationships” for a continuous period of at least two years within the definition of “spouse” [s.
3(1)(b)(i)]. For spousal support, the definition also includes those living in a “marriage-like
relationship” and who have a child together [s. 3(1)(b)(ii)].
The factors relevant to determining whether a relationship is “marriage-like” are similar to those
involved in determining whether a married couple has an intent to live “separate and apart” (see
“Divorce” above). They include:
• Shelter: living and sleeping arrangements; the presence of

others
• Interpersonal behaviour: sexual relations; expectations of
fidelity; feelings toward one another; mutual communications;
meal arrangements; assistance during illness or issues; gift
giving
• Services: respecting meals, clothes, shopping, household
maintenance, other domestic services etc.
• Social activities: joint participation in community; conduct
toward their respective families
• Societal presentation: attitude of community towards them
• Finances: financial arrangements, joint acquisition or
ownership of property
[Kneller v. Greenwood]
Courts should take a “broad approach” when looking at the relationship and its context [Weber v.
Leclerc]. As in separation for the purposes of divorce, the intent of the parties is relevant but not
dispositive [Kneller v. Greenwood; Weber v. Leclerc].
21
Married-like Not married-like
Weber v. Leclerc: 9-year relationship; had family Takacs v. Gallo [cited in Weber v. Leclerc]: lived
portraits displayed; shared a bedroom; monogamous together during school year but lived with respective
sexual relations; had a family dog and boat; contact parents during summers
with extended family; bought property together and
shared expenses; vacations together; shared meals,
grocery shopping, evenings out; kept mostly separate
finances otherwise. She expected him to care for her
when she fell ill, he vacationed to Mexico.
Kneller v. Greenwood: she moved into his house in
2003 and contributed domestic services and expenses.
Shared a bed and had sexual relations. Were in touch
nearly every night he was away. She kept close contact
with Greenwood’s family living nearby. He added her
to employment benefits, named her as beneficiary of
his mutual funds. Socialized and vacationed as a
couple. Gave her a “promise ring.” Finances were
always intentionally kept separate.
Roach v. Dutra: Moved to separate residences 5-
minutes away in 2003 to reduce tensions between her
and his daughter. Gave her a second engagement ring
and wedding ring in 2004. Maintained emotional bond,
expectations of fidelity, economic support, joint
vacations, care for one another’s kids. Broke off
relations in 2006.
“Separation” for unmarried couples largely tracks the case law on separation for the purposes of
divorce [Nearing v. Sauer]. The FLA expressly provides that separated spouses may live in the
same residence [s. 3(4)(a)] and that separation can be established through communication or
through conduct [FLA, s. 3(4)(b)].
Parentage (Assisted Reproduction)
v Provincial Jurisdiction; Federal Criminal Jurisdiction
Parentage is more complex where the parents use assisted reproduction than when they give birth
naturally, since the reproductive process sometimes involves third parties. The FLA contains
rules pertaining to the different ways donors and third parties may be involved, including
permitting the third party to become a third parent.
Donors are defined as those who contribute genetic material for assisted reproduction other than
for their “own reproductive use” [FLA, s. 20(1) “donor”].63 A donor of reproductive material or
an embryo in BC is not the parent of an eventual child merely by virtue of their donation [s.
24(1)]. Where no surrogate is used, the birth mother using assisted reproduction is a parent [s.
27(2)]. A “person” who is married to, or in a marriage-like relationship with, the birth mother
63
A donor can become a parent by virtue of being an “intended parent” through s. 30. An interesting situation could
arise where a donor subsequently begins a parenting-type relationship with the child. In such a case, the court might
declare the person to be a parent pursuant to s. 31, which permits such an order where there is “a dispute or any
uncertainty” about parentage.
22
also becomes a parent unless they did not consent or withdrew consent to become a parent [s.
27(3)].
Where a surrogate is used, the surrogate herself will not be a parent if she and the intended
parent(s) a) sign a written agreement beforehand establishing that the surrogate will not be a
parent, she will surrender the child to the intended parent(s) and the intended parent(s) will be
the parents [s. 29(2)]; and b) no party withdraws pre-birth, the surrogate gives written consent to
surrender the child post-birth and the intended parent(s) take the child into their care [s. 29(3)].
The Court may order that the intended parents are the parents in the absence of a written
agreement on the theory that the disjunct between the parties’ intent and their actual legal status
creates “uncertainty” within s. 31 [Family Law Act (Re)]. It is probably fair to say that this
remedy will only be granted where everything was done except the writing [Family Law Act
(Re)].
Parties using assisted reproduction must navigate some criminal prohibitions. Surrogacy cannot
be paid in Canada [AHRA, s. 6], nor may a donor claim consideration for their reproductive
tissues [s. 7]. However, both surrogates and donors may be reimbursed for their costs pursuant to
the regulations [s. 12]. Reproductive tissues or an embryo may not be used without the donor’s
consent [s. 8]. Donors can revoke their consent, at least prior to pregnancy [SH v. DH].
The FLA permits a birth mother conceiving through assisted reproduction64 to become a parent
alongside the intended parent(s) [s. 30(1)(i)] or alongside their spouse and the donor [s. 30(1)(ii)]
if they make a written agreement to this effect and a party does not withdraw prior to conception.
This theoretically permits three people to become a child’s parents.65 There is authority
suggesting that the Court has the power to declare a third person a parent under its parens
patriae jurisdiction in case of danger to the child or a legislative gap [AA v. BB]. This could be
relevant if no written agreement was executed.66
Parentage (Default)
Disputes sometimes arise as to the parentage of children where the mother has had multiple
sexual partners around the time of conception. Except where assisted reproduction was used, the
child’s parents are its birth mother and biological father [FLA s. 26(1)]. The FLA presumes that
certain categories of men are the biological father [s. 26(2)]:
• The husband67
• The ex-husband who separated within 300 days of the birth
• The husband who married following birth and acknowledges
he’s the father
64
Note that this does not apply to those who conceive through intercourse.
65
Section 20 defines “intended parents” as up to two persons. In practice, the partner of the third parent will often
stand in the place of a parent in a de facto sense.
66
In addition to s. 31, as discussed above.
67
This includes a person living in a void or voidable marriage until the declaration of invalidity: FLA s. 21.
23
• The common-law partner living in a marriage-like relationship
with the mother within 300 days of the birth
• The man who signs a statement under the Vital Statistics Act
with the mother
• The man who signs an agreement under the Child Paternity
and Support Act
If more than one man fits these criteria, then no presumption arises [s. 26(3)]. If parentage is
disputed, a party can apply to the BCSC or BCPC (if ancillary to other relief) to seek a parentage
order [s. 31(1)]. Such an order may be preceded by an order for a parentage test [s. 33(2)]. The
power to make such orders is discretionary and context-driven [RJP v. NLW]. Courts do not have
to be satisfied that the outcome of the test will benefit the child or that the applicant will succeed
on ancillary issues [RJP v. NLW].68
Parental Alienation
In high-conflict cases parents sometimes attack one another through their children. This poses a
tricky issue for parenting arrangements, since it can shape children’s perceptions of their own
best interests (the views of the child being a relevant factor under FLA s. 37(2)(b) and the
amended Divorce Act).
Alienation can be very difficult to establish in court. Its existence and cause must be proved by
expert evidence69 [LCT v. RK] and the same is necessary to determine the appropriate remedy
[LCT v. RK]. Orders will not be made on the basis of alienation without considering all
alternative remedies [LCT v. RK]. Potential remedies include:
• Detailed case management and conduct orders

• Judicial exhortation
• Therapeutic intervention
• Supervised access/parenting time
• Suspension of child or spousal support
• Transferring custody
• Terminating access for the alienated parent (if the problems are
severe)
[LCT v. RK]
68
However, as noted in RJP v. NLW, the interests of the child must be considered per Rule 1-3 of the Supreme Court
Family Rules, B.C. Reg. 169/2009.
69
Social scientific evidence is typically not admissible, unless presented through an expert: LCT v. RK, 2018 BCSC
1016 at para. 61.
24
Parenting Arrangements
Parenting arrangements are an especially difficult aspect of Family Law in light of the overlap
between federal and provincial jurisdictions. As in other areas, both laws apply to married
couples except in case of conflict and judges frequently draw from both when making parenting
orders [DML v. DBL]. Upcoming amendments to the Divorce Act add a third element to
consider.
Parenting arrangements70 comprise the division of parental responsibilities and parenting time.
Parenting responsibilities include making day-to-day decisions as well as other more major
decisions concerning the child [see list at FLA, s. 41], and must be exercised in the child’s best
interests [s. 43(1)]. Day-to-day decisions are typically made during parenting time (time with the
child) unless an agreement or order provides otherwise [FLA, s. 42(2); new DA, s. 16.2(2)].
Parenting arrangements are the province of guardians only [FLA, s. 40(1)].
Under the FLA, two or more guardians can make an agreement as to parenting arrangements
post-separation or in preparation for separation [FLA, s. 44(2)], including allocating parental
responsibilities [s. 44(a)], parenting time [s. 44(b)] and determining procedures about
implementation and dispute-resolution [s. 44(c-d)]. If filed with the court, the agreement is
enforceable between them as if it were a court order [s. 44(3)]. A court can set such an agreement
aside if satisfied that it is not in the “best interests of the child” [s. 44(4)]. Agreements are not
addressed in the current DA. However, under the new DA the parties can submit a parenting plan
to the court, which it will include in its order unless doing so would be contrary to the best
interests of the child [s. 16.6(1)].
Courts can make parenting orders on an interim [old DA s. 16(2); FLA s. 45(1); new DA, s.
16.1(2)] or indefinite basis [old DA s. 16(1); FLA s. 45(1); new DA, s. 16.1(1)]. Inter alia, an
order may require that guardians advise one another of significant matters; discuss significant
decisions; attempt to reach agreement on significant decisions; keep an exchange journal of the
child’s activities; and may appoint one guardian as the final decided subject to court review; and
permit each guardian to obtain the child’s information from third parties [Van Kooten v. More].
There is no presumption in favour of any particular arrangement [DML v. DBL; FLA, s. 40(4)].
Source Effect
DA, s. 16(3) Anyone can apply, but leave is required if they aren’t a spouse
DA, s. 16(4) Court can order joint custody or access to “any one or more persons”
DA, s. 16(5) Spouse granted access can make inquiries and get info about the “health, education and welfare of
the child,” unless there’s a court order to the contrary
DA, s. 16(6) Court can attach conditions or put time limits on an order
The only consideration in parenting arrangements, whether made by agreement or order, is the
best interests of the child [DA s. 16(8), FLA s. 37(1); new DA s. 16(1)]. The legislation and case
70
The trend is toward more neutral terminology—the amended Divorce Act replaces “custody” and “access” with
“parenting orders” and “contact orders.”
25
law, however, expands on the factors that may be relevant to this determination.71 In the Divorce
Act, these currently include the “condition, means, needs and other circumstances of the child”
[s. 16(8)] and the maximum contact principle [s. 16(10)], according to which each parent should
get maximal contact with the child as is consistent with the child’s best interests. Mere conflict
between the parents is not a basis for finding that an arrangement won’t serve the child’s
interests [Young v. Young].
The FLA has a longer list of factors that judges must consider [s. 37(2)]. The list is very close to
those proposed under Bill C-78, which also preserves the maximum contact principle [new DA,
s. 16(6)72]:
Family Law Act, s. 37(2) New Divorce Act, s. 16(3)

a) child’s health and emotional well-being a) child’s needs at stage of development, esp. stability
b) child’s views unless inappropriate to consider them b) child’s relationships w/ significant people
c) nature & strength of child’s relationships w/ c) spouses’ willingness to support child’s relationship
significant people with the other spouse
d) history of child’s care d) history of care of the child
e) child’s “need for stability” given their age & e) child’s views and preferences
development
f) ability of applicants to exercise their responsibilities f) child’s cultural/linguistic/religious/spiritual
upbringing and heritage
g) impact of family violence on child’s safety, security g) plans for the child’s care
or well-being73
h) whether family violence indicates an inability to h) ability & willingness of affected people to care for
serve child’s interests and meet child’s needs
i) appropriateness of cooperation by guardians i) ability & willingness of affected people to cooperate
and communicate
j) any civil/criminal proceedings affecting child’s j) any family violence
safety, security or well-being
k) any civil/criminal proceedings affecting child’s
safety, security or well-being
Bill C-78 makes the child’s safety, security and well-being “primary” considerations [new DA, s.
16(2)]. Similarly, the FLA states that an agreement or order is not in the child’s best interests
unless is protects the child’s “physical, psychological and emotional safety, security and well-
being” to the greatest extent possible [FLA, s. 37(3)], but the FLA has no “maximum contact”
provision akin to s. 16(10) of the Divorce Act. None of the Acts permit a court to consider past
conduct except as relevant to the person’s ability to parent the child [DA, s. 16(9); FLA s. 37(4);
new DA s. 16(5)]. A poly setting is not in itself reason to prefer any particular arrangement [BCG
v. CMB].
71
See, e.g., the factors listed in Gordon v. Goertz related to applications to vary on the basis of a parent’s relocation.
See “Relocation” below.
72
The amended s. 16(6) removes the requirement that the court consider “the willingness of the person for whom
custody is sought to facilitate such contact.” However, it seems to come back under the best interests factors.
73
Section 38 of the FLA lists factors relevant to assessing family violence for the purpose of ss. 37(2)(g-h). These
include its “nature and seriousness”; its frequently; recency; systemic nature; target; exposure to the child; and harm
it caused the child; among other factors.
26
Custody does not confer a right upon the custodial parent to forbid certain types of contact by the
other parent [Young v. Young].
The weight a court will give to the child’s views will depend on their “demeanour, testimony and
circumstances,” but if their views are formed in a “reasonable and independent manner” they
should be accorded significant weight [LCT v. RK]. Children’s views can be expressed in several
ways:
• FLA s. 211 report

• “voice of the child” report
• Appointing their own counsel (in rare cases)
• Judicial interviews
• Court-ordered interviews with a third party
• Testimony of the parties (assuming the testimony is necessary
and reliable)
[LCT v. RK].
An order can be modified where there has been a “change in the needs or circumstances of the
child” [DA, s. 17(5); FLA, s. 47]. The case law has expanded on this standard:
Ø Test (modifying an order): whether there has been a “material

change in the circumstances affecting the child” with reference
to their “condition, means, needs or circumstances…and/or the
ability of the parents to meet the needs of the chid,” that was
not foreseen or couldn’t have been reasonably contemplated at
the time of the original order
[Gordon v. Goertz]
If this test is met, the judge will make a fresh inquiry into what’s in the child’s best interests,
based on prior findings and whatever new evidence is available [Gordon v. Goertz]. The party
seeking variation bears the onus of proof, which is increased where the parties have recently
executed a consent order [Gordon v. Goertz].
Parenting Coordinators
Parenting coordinators are available to assist parties in implementing an agreement or order

respecting parenting arrangements [FLA, s. 15(2)(b)] with the power to make binding
determinations [s. 17(b)]. There are three preconditions to their jurisdiction:
• An agreement or order respecting parenting arrangements [s.

15(2)(b); DEE v. WLE];
• An agreement or order appointing a parenting coordinator
[FLA, s. 15(1)]; and
27
• A written agreement between the parenting coordinator and the
parties, if not done above [Family Law Act Regulation, s.
6(2)(a)]
Once appointed, they cannot make determinations over the following:
• Changes to guardianship;
• Changes to the allocation of parental responsibilities;
• Giving parenting time or contact to a person who does not have
it already;
• Making a “substantial change” to parenting time or contact; or
• Relocation
[Family Law Act Regulation, s. 6(4)]
A coordinator’s determinations may be set aside by a court for a lack of jurisdiction, an error of
law or an error of mixed law and fact [FLA, s. 19]. Courts may be reluctant to order the
appointment of a coordinator without party consent given the way it can impact the parties’
liberty interests [LCT v. RK].
Relocation
Relocation of a child or parent forms a separate topic in light of the magnitude of change it can
bring to an existing parenting arrangement. Divorce Act provisions dealing with the topic have
recently been amended, leaving three regimes at the moment: the FLA, the current Divorce Act
and the amended Divorce Act.
The relocation of a child is dealt with in two separate parts of the FLA. Where there is no order74
or agreement respecting parenting arrangements, changes to a child’s residence are determined
under s. 46. The court must consider the reasons for changing the child’s residence75 in addition
to the child’s best interests [s.46(2)(a)]. They may not, however, consider whether the guardian
would move without the child [s. 46(2)(b)].
If there is an order or agreement, then Part 4, Division 6 applies and the party seeking relocation
must make a separate application [s. 66]. “Relocation” in the division means a change in the
residence of the child or a guardian that “can reasonably be expected to have a significant impact
on the child’s relationship” with a guardian or other significant person [s. 65(1)]. In addition to
the child’s best interests, a court must consider whether the proposal is made in good faith, and
whether it will involve reasonable arrangements to preserve the child’s relationship with other
guardians and significant people [s. 69(4)].
74
This includes initial proceedings where an interim order is made: KW v. LH, 2018 BCCA 204 at para. 92.
75
This is not currently a factor under the Divorce Act analysis: KW v. LH, 2018 BCCA 204 at para. 104.
28
Changes to parenting arrangements, including relocation, are dealt with under s. 17 of the current
Divorce Act. While the Divorce Act does not currently list factors relevant to the child’s best
interests inquiry, the case law has listed several factors that may be relevant to relocation
applications. These include:
• The existing custody arrangement and relationship between the

custodial parent and the child;
• The relationship between the access parent and the child;
• The desirability of maximizing contact with the parents;
• The views of the child;
• The custodial parent’s reasons for moving (but only if it’s
relevant to the child’s needs);
• The possible disruption to the family; and
• Possibility disruption to the child from a change in community
[Gordon v. Goertz]
The amended Divorce Act distinguishes between a “change in the place of residence” [s. 16.8]
and a “relocation” [s. 16.9]. The latter is defined as a change in the child’s or guardian’s
residence that is likely to have a “significant impact on the child’s relationship” with a guardian
or other significant person [s. 2(1) “relocation”]. Notice is required in both cases, but only
relocation requires the application to include a proposal for exercising parenting arrangements [s.
16.9(2)]. If the other party fails to reply to the notice, or if the court so orders, the party seeking
relocation can go ahead [s. 16.91(1)].
Factors relevant to the child’s best interests inquiry in relocations will include:
• The reasons for the relocation;

• The impact of relocation on the child;
• Amount to time spent with the child by each person with
parenting time and their involvement in the child’s life;
• Applicant’s compliance with notice and other
orders/agreements;
• Existence of an order/agreement setting child’s residence;
• Reasonableness of proposal for parenting arrangements;
• Compliance by anyone with parenting time with the law
[new DA, s. 16.92(1)]
The court cannot, however, consider whether the applicant would or would not relocate without
the child [s. 16.92(2)]. The burden of proof in relocation cases will lie with the applicant except
where the applicant has the “vast majority” of the parenting time, in which case the burden is on
the respondent to show that relocation would not be in the child’s best interests [s. 16.93].
29
Note that a child’s relocation is deemed to be a change in the circumstances of the child for the
purposes of varying a parenting or contact order [s. 17(5.2)]76, thus crossing the first hurdle of
the test in Gordon v. Goertz for modifying a parenting order.
Spousal Support (Agreement)
As in other areas of Family Law, spouses may reach a private agreement on spousal support.77
Such agreements must be written, signed by both spouses and witnessed [FLA, s. 164(1)], though
the Court has discretion to uphold an unwitnessed agreement where it deems appropriate [s.
164(6)].
The tests for setting aside an agreement are very similar under the Divorce Act and FLA:
FLA Divorce Act

Test (setting aside an agreement): whether Test (setting aside an agreement): whether “the
Procedures: agreement fails to be in substantial compliance with the
a) a spouse failed to make full financial disclosure; overall objectives of the Act” including the objectives
b) a spouse took “improper advantage of the other and factors [Miglin v. Miglin], considering:
spouse’s vulnerability, including the other party’s
ignorance, need or distress”; Procedures: whether there were “circumstances of
c) a spouse didn’t understand the nature and oppression, pressure or other vulnerabilities”
consequences of the agreement; or considering all the circumstances, including s.
d) there were other circumstances that would render a 15.2(4)(a-b) and circumstances of negotiation (duration
contract voidable at common law and advice key), including a failure to make full and
[s. 164(3)] honest disclosure [Rick v. Brandesma];
Substance: whether the agreement is “substantially Substance: whether the agreement reflects “an
different “from what the court would order equitable sharing of the economic consequences of
[s. 164(4)] marriage and its breakdown,” considering the
Change of circumstances: whether the agreement is objectives and factors (intervention only if agreement’s
“significantly unfair” considering: a “significant departure” from the Act’s objectives);
a) length of time since the agreement was made; Change of circumstances: whether “enforcement of the
b) changes to the “condition, means, needs or other agreement still reflects the original intention of the
circumstances of a spouse”; parties and the extent to which it is still in substantial
c) intent of spouses to achieve certainty; compliance with the objectives of the Act.” Change
d) degree of reliance on the agreement; must be reasonably unforeseeable and must have “let to
e) degree that agreement meets objectives under s. 161 a situation that cannot be condoned.”
[s. 164(5)]
[Miglin v. Miglin]
Courts recognize that a certain degree of change is typically foreseeable (especially regarding the
job market, parenting responsibilities, health, the relative value of assets etc.) [Miglin v. Miglin].
The result of both standards is to create a kind of sliding scale where agreements reflecting a
76
This modifies the common law position that a child’s relocation would always be a “change” but not necessarily a
“material change”: Gordon v. Goertz, [1996] 2 SCR 27 (S.C.C.) at para. 14.
77
Note, however, that because maintenance issues are a shared jurisdiction when it comes to married spouses, the
principles developed in this context do not necessarily apply straightforwardly to agreements respecting property
division, which is an exclusive provincial jurisdiction.
30
more significant variance with the guidelines will require greater procedural safeguards and vice
versa.
Agreement Upheld Agreement Set Aside

Miglin v. Miglin: 14-year relationship, wife got a 5- Rick v. Brandesma: 29-year relationship, agreement
year renewable contract of employment at husband’s reached after 2 unrepresented mediation sessions gave
business rather than spousal support. Stopped working equal division, some child support and no spousal
but continued receiving payment. Agreement support. Lawyer reviewed deal for wife but only to
negotiated over 15 months with lots of expert support. ensure it was implemented. Husband hid $250k in
assets. Trial judge found she was vulnerable at time.
[wife given FRA entitlement]
Spousal Support (Default)
A court may, on application by either spouse, make an interim [DA, s. 15.2(2); FLA, s. 170] or
final order to have a spouse secure and/or pay to the other a lump or periodic sum of money that
the court deems reasonable as spousal support [DA, s. 15.2(1); FLA, s. 165(1)], so long as the
parties don’t have an agreement in place [FLA, s. 165(3)]. This can be done with or without
conditions [DA, s. 15.2(3), FLA, s. 170].
The first question in spousal support is entitlement. Procedurally, courts must first consider four
objectives, none of which is a priori more important than any other [Moge v. Moge]. These
objectives are supposed to cover the dual bases for awarding support: compensatory [Moge v.
Moge] and non-compensatory support [Bracklow v. Bracklow].
(a) Economic (dis)advantages resulting from the marriage or its

breakdown
(b) Financial consequences arising from care of a child (above
those recognized in child support)
(c) Economic hardship arising from marriage breakdown
(d) Promoting economic self-sufficiency of each within a
“reasonable period of time”
[DA, s. 15.2(6), (DA, variation) 17(7); FLA, s. 161]
The court must then consider the “condition, means, needs and other circumstances of each
spouse”, including the following factors:
(a) the length of cohabitation

(b) the functions of each spouse during cohabitation; and
(c) any order/agreement relating to spousal support
[DA, s. 15.2(4), FLA, s. 162]
Courts cannot consider misconduct in relation to the marriage [DA, s. 15.2(5); FLA, s. 166],
unless its consequences are relevant to the need or ability to provide spousal support [Leksun v.
Leksun; FLA, s. 166].
31
Need and the objective of self-sufficiency should be assessed against the “marital standard of
living” and the other spouse’s post-separation standard of living, such that even wealthy spouses
may be entitled to support [Chutter v. Chutter]. Employment outside the marriage or maintaining
the same position throughout the relationship will not necessarily preclude a spouse from
obtaining support [Chutter v. Chutter]. Support should be viewed in the context of property
division or reapportionment orders to avoid “double recovery” and to avoid leaving a spouse
inadequately compensated from property division alone, though a favourable division alone will
not preclude support [Chutter v. Chutter]. There is no obligation to become self-sufficient upon
the breakdown of the relationship [Leksun v. Leksun].78
Situations where a spouse would not be entitled to spousal support post-separation could include:
• Short relationship or period of financial interdependence;

• No financial interdependence;
• Spouses have similar standards of living;
• Recipient’s (actual or potential) income is higher than stated;
• Payor’s income is limited, although above the $20,000 floor;
• Recipient’s claim is non-compensatory and of lesser priority
than needs of the custodial household;
• Recipient hasn’t experienced significant economic hardship;
• Recipient didn’t contribute to the relationship;
• Income disparity is due to post-separation events or choices
[Spousal Support Advisory Guidelines: The Revised User’s Guide]
Once entitlement to spousal support has been established, a Court must consider the quantum
and duration of support, which in theory is determined in light of the objectives and factors
related to entitlement [Bracklow v. Bracklow]. Though it is not legally binding per se, the Federal
Spousal Support Advisory Guidelines have been endorsed in the jurisprudence as a “useful tool”
consistent with the law in BC that should not be “substantially” derogated from absent
“exceptional circumstances” [Chutter v. Chutter].79 The guideline sets out a “with child” formula
and a “without child” formula, based on the principle of income sharing:
Ø Test (with child formula): use a computer
Ø Test (without child formula):

(a) Amount: 1.5-2% of difference between gross incomes80 x
years of marriage81 (to a maximum of 37.5-50% for marriages
of 25 years+)
78
Cases where the spouse’s need arises after separation may be more difficult.
79
These could include illnesses or disability; other support obligations; and other factors listed as relevant to
entitlement above. 6
80
This could include income from assets acquired after a division of property: Leksun v. Leksun.
81
“Marriage” means cohabitation in this context: Spousal Support Advisory Guidelines at 3.3.5.
32
(b) Duration: 0.5-1 years x years of marriage (indefinite if
marriage is 20+ years, or, 5+ years where years of marriage +
recipient’s age > 65)
Factors that influence a court’s decision between the ranges include:
• Existence of a strong compensatory claim;

• The recipient’s need;
• An absence of property to be divided or an unequal division;
• The need and ability to pay of the payor;
• Self-sufficiency incentives; and
• Low work incentives for the payor
[Chutter v. Chutter, citing Guidelines]
Such orders can be varied, rescinded or suspended, either prospectively or retroactively [DA, s.
17(1); FLA, s. 167(1)] where the applicant can demonstrate a material change in “condition,
means, needs or other circumstances” [DA, s. 17(4.1), FLA, s. 167(2)(a)]; new material evidence
that wasn’t previously available [FLA, s. 167(2)(b)]; or evidence that a spouse didn’t make full
disclosure initially [FLA, s. 167(2)(c)].82 In other cases, an initial order may provide for “review”
[DA, s. 15.2; FLA, s. 168], which does not require meeting this onus [Leksun v. Leksun]. Courts
can’t consider any conduct upon variation hearing that they couldn’t have heard initially [DA, s.
17(6)].
Unjust Enrichment
If the statutory regime of property division and support does not apply, the parties may
nevertheless have recourse to unjust enrichment. This may serve as a means of working around
limitations under statute, for example limitations periods or adverse findings about the nature or
duration of a relationship.
Ø Test (liability):
(a) Enrichment (“straightforward economic approach”,
a tangible benefit restorable in money)
(b) Corresponding deprivation
(c) Lack of a juristic reason
(i) Existing categories (donative intent,
contract, disposition of law)
(ii) Reasonable expectations and public policy
[Kerr v. Baranow]
82
A spouse can also apply for further support after the term of an order expires, both only if it’s necessary to relieve
economic hardship related to a material change in circumstances or other aspects of the spouses’ relationship, and
the circumstances are so significant that they would have led to a different initial order: FLA, s. 167(3).
33
Ø Test (remedy):
(a) Monetary remedy (consider first)
(i) Value survived (relative to proportionate
contribution of claimant)
(1) Was there a joint family venture?
(mutual effort, economic integration,
actual intent & priority of the family); or
(2) Link between contributions and
assets/wealth
(ii) Value received
(b) Constructive Trust (causal link between
contributions and the disputed property)
(c) Defences (mutual conferral of benefits etc.)
[Kerr v. Baranow]
Unlike the regime under the FLA, a successful unjust enrichment claim will not automatically
result in equal division of property, even in the case of a joint family venture—monetary and
proprietary awards will always be proportionate to the spouse’s relative contributions [Kerr v.
Baranow].
34

Family Law - Law 359 (Winter 2019) : Alternative Dispute Resolution

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Family Law - Law 359 (Winter 2019) : Alternative Dispute Resolution

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Family Law — Law 359 [Winter 2019]

Alternative Dispute Resolution

Ø Test (status of a “child” past age of 19): whether the person

Factors relevant to assessing an adult child’s dependency include:

FLA Divorce Act

Division of Property & Debt (Agreement)

o Failure to disclose “significant property or debts” or

o The length of time since the agreement;

Division of Property & Debt (Default)

BC is an “opt-out” jurisdiction: by default, spouses are entitled to an undivided half interest in

(a) Property acquired before the relationship began

Ø Test (division of excluded property): whether the

Source Excluded Property Not Divided

Ø Test (fair market value): “the price at which a transaction

Ø Test (unequal division): “something objectively unjust,

The FLA provides a non-exhaustive list of relevant factors:

(a) Duration of the relationship [more likely unequal

Source Unequal Division

Ø Test (intent to separate): whether “either party regards it as

o Living arrangements [“frequently accorded significant

Separate and Apart Not Separate and Apart

• They are an intended parent pursuant to s. 30 [s. 39(3)(a)];

v Federal Jurisdiction (indigenous affairs and reserves)

Ø Test (MFHD removing a child without court order):

Federal Shared Provincial

BCPC or BCSC BCSC only

(a) it’s a counterclaim to a claim brought in BC;

Courts presume there is a “real and substantial connection” if [s. 106(3)]:

(a) the property at issue is in BC

Marriage (Essential Validity)

Ø Test (fraud, misrepresentation or mistake): whether the

Ø Test (inability to consummate): “invincible aversion” or

Other doctrines flow from a contractual understanding of marriage. One is duress:

The limited case law on duress was surveyed in RH v. RT:

Ø Test (mental capacity): whether the person “has the capacity

Similarly, intoxication may render a marriage voidable:

Ø Test (intoxication): whether the applicant was “so intoxicated

Marriage (Formal Validity)

• Shelter: living and sleeping arrangements; the presence of

Parentage (Assisted Reproduction)

v Provincial Jurisdiction; Federal Criminal Jurisdiction

• Detailed case management and conduct orders

Family Law Act, s. 37(2) New Divorce Act, s. 16(3)

• FLA s. 211 report

Ø Test (modifying an order): whether there has been a “material

Parenting coordinators are available to assist parties in implementing an agreement or order

• An agreement or order respecting parenting arrangements [s.

Once appointed, they cannot make determinations over the following:

• The existing custody arrangement and relationship between the

• The reasons for the relocation;

Spousal Support (Agreement)

FLA Divorce Act

Agreement Upheld Agreement Set Aside

Spousal Support (Default)

(a) Economic (dis)advantages resulting from the marriage or its

(a) the length of cohabitation

• Short relationship or period of financial interdependence;

Ø Test (with child formula): use a computer

Ø Test (without child formula):

Factors that influence a court’s decision between the ranges include:

• Existence of a strong compensatory claim;

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