Family Relations Act
Family Relations Act
[RSBC 1996] CHAPTER 128
Part 1 — Definitions and Jurisdiction
Definitions
"child" means a person who is under the age of 19 years;
"guardian" means the person who has all the powers and duties under section 25 respecting a child;
"Nisga'a child" has the same meaning as in the Nisga'a Final Agreement;
"Nisga'a Final Agreement" has the same meaning as in the Nisga'a Final Agreement Act;
"Nisga'a law" has the same meaning as in the Nisga'a Final Agreement;
"Nisga'a Lisims Government" has the same meaning as in the Nisga'a Final Agreement;
(a) a guardian or guardian of the person of a child, or
(b) a stepparent of a child if
(a) is married to another person,
(c) applies for an order under this Act within 2 years of the making of an order
(i) for dissolution of the person's marriage,
(ii) for judicial separation, or
(iii) declaring the person's marriage to be null and void, or
(d) is a former spouse for the purpose of proceedings to enforce or vary an order.
Family advocate
2 (1) The Attorney General may appoint a person who is a member in good standing of the Law Society of British Columbia to be a family advocate.
(c) custody of, maintenance for or access to a child,
(d) alleged commission by a child of a Provincial or federal offence, or
Family court counsellor
3 (1) The Attorney General may appoint a person to be a family court counsellor.
(3) Subject to the law of Canada, if
(5) Subsection (4) does not apply to
(b) information not described by paragraph (a) that has been in existence for 50 or more years, or
Legal capacity
4 (1) No woman is under a legal disability with respect to a matter under this Act merely because she is a married or unmarried woman.
Supreme Court jurisdiction
5 (1) The Supreme Court continues, subject to the Divorce Act (Canada), to have jurisdiction in all matters concerning the custody of, access to and guardianship of children, dissolution of marriage, nullity of marriage, judicial separation, alimony and maintenance.
(2) The Supreme Court has jurisdiction in all matters under this Act.
Provincial Court jurisdiction
6 (1) The Provincial Court has jurisdiction in all matters under this Act, except sections 31 and 38 (1) (c) (iv), Parts 5 and 6 and section 125, respecting
(a) guardianship of the person of a child,
(b) custody of or access to a child,
(e) occupancy of the family residence and the use of its contents, and
Concurrent proceedings
7 (1) If a proceeding may be brought in either the Provincial Court or the Supreme Court, the commencement of the proceeding in the Supreme Court is not a bar to a proceeding in the Provincial Court unless the Supreme Court makes an order granting or refusing to grant the same relief being applied for in Provincial Court.
Joining proceedings
8 (1) If, in a proceeding under this Act, it appears to the court that other matters under this Act or under any other Act or law of British Columbia or of Canada should be determined first or simultaneously with the matters at issue in the proceeding, the court may, on its own motion, or on application of a party to the proceeding,
(a) join and hear all proceedings together, in so far as this is within the court's jurisdiction, or
(b) direct that the application stand over until other proceedings are brought or determined
Interim orders
9 (1) If an application is made for an order under this Act, the court may, as it considers reasonable, make an interim order for the relief applied for and may direct that the interim order be served on the persons and in the manner it may specify in the interim order.
Consent orders
10 (1) With the written consent of the person against whom the order is made, a court may make an order under this Act against the person without a hearing, the completion of a hearing or the giving of evidence.
(2) An order made by consent must not exceed the terms of the consent.
Incorporation of terms of agreements in court orders
11 If a court makes an order under this Act, the court may incorporate in its order all or part of a provision in a written agreement previously made by 2 or more parties to the proceeding, if the provision is relevant to the proceeding.
Enforcement of Supreme Court orders by Provincial Court
12 If a copy of an order for custody or access made by or registered for enforcement with the Supreme Court is certified by a proper officer of that court and filed with the Provincial Court, the order may be enforced by the Provincial Court in the manner in which it enforces its own orders under this Act.
Order need not be served to be enforced
13 If a proceeding is taken to enforce an order, it is not necessary to prove that the person against whom the order was made was served with the order.
Order under appeal remains in force
14 Despite any other enactment, if an order made under this Act is appealed, unless the court that made it otherwise orders, the order remains in full force and effect until the determination of the appeal.
Expert witnesses in family matters
15 (1) In a proceeding under this Act, the court may, on application, including an application made without notice to any other person, direct an investigation into a family matter by a person who
(b) is a family counsellor, social worker or other person approved by the court for the purpose.
(4) If satisfied that circumstances warrant, the court may grant an exemption from subsection (3).
Appeals and commencement of other proceedings
16 (1) Subject to this Act, a proceeding under this Act, other than an appeal, may be commenced at any time.
(4) An appeal is brought by doing the following:
(a) filing a notice of appeal in a registry of the Supreme Court;
(6) After hearing the appeal, the Supreme Court may do one or more of the following:
(a) confirm the order of the Provincial Court;
(b) set aside the order of the Provincial Court;
(c) make any order that the Provincial Court could have made;
(d) direct the Provincial Court to conduct a new hearing.
(7) On application, the Supreme Court may extend the time limit for bringing an appeal.
Order for relief on behalf of child
17 If a court is satisfied that an application made to it by or on behalf of a spouse or parent for relief under this Act should also have been made on behalf of a child, the court may make an order for relief on behalf of the child.
Intervention by Attorney General or other person
18 (1) The Attorney General may intervene in a proceeding and contest or argue a question or matter arising in the proceeding that affects the public interest.
Spouse compellable as witness
19 In proceedings under this Act, spouses are competent and compellable witnesses for or against each other.
Variation or rescission of order
20 Subject to this Act, if a court has made an order under this Act, except an order under Part 5 or 6, the court may, on application, vary or rescind the order if circumstances have changed since the order was made or last varied.
Part 2 — Child Custody, Access and Guardianship
Who is entitled to notice of proceeding
22 (1) If an application is made to a court under this Part or Part 3, each parent of the child affected by the application and each adult person with whom the child usually resides must be served with notice of the proceeding.
(a) exempt the applicant from the requirement to serve notice on a parent or adult person, or
(3) Subsection (1) does not apply to a parent of a child affected by an application if
Guardianship or custody of Nisga'a child
22.1 (1) If an application is made to a court under this Part or Part 3 in respect of the guardianship or custody of a Nisga'a child
(a) the Nisga'a Lisims Government must be served with notice of the proceeding, and
Guardianship or custody of treaty first nation child
22.2 (1) If an application is made to a court under this Part or Part 3 in respect of the guardianship or custody of a treaty first nation child and the final agreement of the treaty first nation of which the child is a treaty first nation child so provides, the treaty first nation
(a) must be served with notice of the proceeding, and
Roles of Public Guardian and Trustee and director as guardians
23 (1) Subject to subsection (2), if a person other than the father or mother of a child is granted custody of the child by a court, the court in its order may direct that the director under the Child, Family and Community Service Act is guardian of the person of the child or that the Public Guardian and Trustee is guardian of the estate of the child.
Best interests of child are paramount
24 (1) When making, varying or rescinding an order under this Part, a court must give paramount consideration to the best interests of the child and, in assessing those interests, must consider the following factors and give emphasis to each factor according to the child's needs and circumstances:
(b) if appropriate, the views of the child;
(c) the love, affection and similar ties that exist between the child and other persons;
Authority of guardian
25 (1) A guardian is both guardian of the person of the child and guardian of the estate of the child.
Extended references
26 References to a guardian in this section and sections 27 to 33, except in section 31, apply equally to a guardian of a person of a child or a guardian of the estate of a child.
Parental guardianship
27 (1) Subject to section 28, whether or not married to each other and for so long as they live together, the mother and father of a child are joint guardians unless a tribunal of competent jurisdiction otherwise orders.
(a) they are joint guardians of the estate of the child, and
(3) If the father and mother of a child
(a) have not married each other,
(b) are living separate and apart, and
subsection (2) applies to the father, mother and child as though the father and mother were married.
(4) If a tribunal of competent jurisdiction
(a) makes absolute a decree of divorce,
(c) makes an order for judicial separation, or
(d) declares a marriage to be null and void,
(5) Subject to section 28, if the father and mother of a child
(b) are living separate and apart, and
the mother is sole guardian unless a tribunal of competent jurisdiction otherwise orders.
Guardianship agreement
28 (1) The father and mother described in section 27 (2) or (5) may, by a written agreement between them, provide that, during the term of the agreement,
(a) they are joint guardians of their child, or
Loss of guardian
29 (1) Subject to subsection (2), if a joint guardian dies, the survivors or sole survivor continue as joint or sole guardians respectively.
(b) the Public Guardian and Trustee is guardian of the estate of the child, or
(c) paragraphs (a) and (b) both apply,
as circumstances require, unless a tribunal of competent jurisdiction otherwise orders.
(4) If a guardian and a person who is not a guardian of a child marry, the marriage in no way
(a) diminishes the powers, rights or duties of the guardian, or
(b) vests in the other person the powers, rights or duties of a guardian.
Jurisdiction of courts to make or give effect to guardianship
30 (1) Subject to this Act, a court may, on application,
(a) the child consents in writing to the appointment, or
(a) the parent who could give or withhold consent is not reasonably available, or
Guardian under a Child, Family and Community Service Act order
30.1 (1) Despite section 30 (3), a person who has custody of a child under section 54.1 of the Child, Family and Community Service Act is for the purposes of this Act, a guardian appointed under section 30 (1).
Security
31 (1) The Supreme Court may order a guardian or guardian of the estate of a child to give the security the court considers necessary for the proper discharge of the guardianship powers, rights and duties and may order the guardian or guardian of the estate, as the case may be, or the personal representative of that person to
(a) render a true and just account of all property of the child administered by him or her, and
Referral of questions to court
32 A guardian may apply to a court for directions concerning a question affecting the child and the court may make the order in that regard it considers proper.
Resignation of guardian
33 A guardian whose appointment is made by order of a court under sections 25 to 32 may, by leave of the court, resign his or her office on the terms and conditions the court may impose.
Persons who may exercise custody
34 (1) Subject to subsection (2), the persons who may exercise custody over a child are as follows:
(a) if the father and mother live together, the father and mother jointly;
(c) if custody rights exist under a court order, the person who has those rights;
(d) if custody rights exist under a written agreement, the person to whom those rights are given.
(a) the person who has custody rights under a court order;
(b) if paragraph (a) does not apply, the person granted custody by an agreement;
Jurisdiction to make custody or access orders
35 (1) Subject to Part 3, a court may, on application, order that one or more persons may exercise custody over a child or have access to the child.
(2) An order for access may be made whether or not a custody order is made.
Civil enforcement of custody rights
36 (1) If custody of a child is awarded to a person by an order made or enforceable under this Act and the person is denied the exercise of custody, a court may, on an application made without notice to any other person, order that the child be apprehended by a peace officer and taken to the person awarded custody.
Order restraining harassment
37 On application, a court may
(b) require a person named in an order under paragraph (a)
(i) to enter into a recognizance, with or without sureties, or to post a bond, and
Order prohibiting interference with child
38 (1) If a court makes a custody order or a custody order or separation agreement is enforceable by a court, the court may
(2) The Provincial Court must not make an order under subsection (1) (c) (iv).
Access to information
39 (1) An enforcement officer designated under section 98 may, for the purpose of assisting a person
(2) Subsection (1) does not apply in respect of the following:
(b) information in the possession or control of
(i) a solicitor of the person respecting whom the information is sought, or
(ii) a family court counsellor;
(c) information the disclosure of which is forbidden by section 9 (1) (b) of the Statistics Act.
Order of court for access to information
40 (1) If, on application, the court is satisfied that
Confidentiality
41 (1) A person must not disclose information provided under section 39 or 40 except
(a) to the extent necessary for the purpose of
(i) bringing an application referred to in section 39 (1) (a), or
(ii) enforcing an order referred to in section 39 (1) (b), or
(b) as provided in section 39 (4).
(3) Subsections (1) and (2) do not apply to
(b) information not described by paragraph (a) that has been in existence for 50 or more years, or
Part 3 — Extraprovincial Custody and Access Orders
Jurisdiction
44 (1) A court must exercise its jurisdiction to make an order for custody of or access to a child only if
(b) although the child is not habitually resident in British Columbia, the court is satisfied that
(v) the child has a real and substantial connection with British Columbia, and
(2) A child is habitually resident in the place where the child resided
(c) with a person other than a parent on a permanent basis for a significant period of time,
Jurisdiction — serious harm
45 Despite sections 44 and 48, a court may exercise its jurisdiction to make or to vary an order in respect of the custody of or access to a child if
(a) the child is physically present in British Columbia, and
(i) remains in the custody of the person legally entitled to custody of the child,
(ii) is returned to the custody of the person legally entitled to custody of the child, or
Declining jurisdiction
46 A court that has jurisdiction in respect of custody or access may decline to exercise its jurisdiction if the court is of the opinion that it is more appropriate for jurisdiction to be exercised outside British Columbia.
Interim powers of court
47 On application for custody of or access to a child, a court
may do any one or more of the following:
(d) stay the application subject to
Enforcement of extraprovincial orders
48 (1) On application by any person in whose favour an order for the custody of or access to a child has been made by an extraprovincial tribunal, a court must recognize the order unless the court is satisfied that
(d) the order of the extraprovincial tribunal is contrary to public policy in British Columbia, or
Superseding order — material change in circumstances
49 (1) On application, a court may by order supersede an extraprovincial order in respect of custody of or access to a child if the court is satisfied that there has been a material change in circumstances that affects, or is likely to affect, the best interests of the child and if
(b) although the child is not habitually resident in British Columbia, the court is satisfied that
(iv) the child has a real and substantial connection with British Columbia, and
Superseding order — serious harm
50 On application, a court may by order supersede an extraprovincial order in respect of custody of or access to a child if the court is satisfied that the child would, on the balance of probability, suffer serious harm if the child
(a) remains in the custody of the person legally entitled to custody of the child,
(b) is returned to the custody of the person legally entitled to custody of the child, or
Further evidence
51 (1) If a court is of the opinion that it is necessary to receive further evidence from a place outside British Columbia before making a decision respecting an application for custody of or access to a child, the court may send to the Attorney General, Minister of Justice or similar officer of the place outside British Columbia any supporting material that may be necessary together with a request that
Referral to court
52 (1) If the Attorney General receives from an extraprovincial tribunal a request similar to that referred to in section 51 (1) and any supporting material that may be necessary, the Attorney General must refer the request and the material to the proper court.
True copy of extraprovincial order
53 A copy of an extraprovincial order certified as a true copy by a judge, other presiding officer or registrar of the tribunal that made the order, or by a person charged with keeping the orders of the tribunal, is evidence of
(b) the content of the order, and
(c) the appointment and signature of the judge, presiding officer, registrar or other person.
Court may take notice of foreign law
54 For the purpose of an application under this Part, a court may take notice, without requiring formal proof, of the law of a jurisdiction outside British Columbia and of a decision of an extraprovincial tribunal.
Part 4 — International Child Abduction
International Child Abduction
55 (1) In this section, "convention" means the Convention on the Civil Aspects of International Child Abduction signed at The Hague on October 25, 1980.
Equality of entitlement to family assets on marriage breakup
56 (1) Subject to this Part and Part 6, each spouse is entitled to an interest in each family asset on or after March 31, 1979 when
(b) a declaratory judgment under section 57,
(c) an order for dissolution of marriage or judicial separation, or
(d) an order declaring the marriage null and void
respecting the marriage is first made.
(3) An interest under subsection (1) is subject to
(a) an order under this Part or Part 6, or
(b) a marriage agreement or a separation agreement.
(4) This section applies to a marriage entered into before or after March 31, 1979.
Declaratory judgment
57 On application by 2 spouses married to each other or by one of the spouses, the Supreme Court may make a declaratory judgment that the spouses have no reasonable prospect of reconciliation with each other.
Family asset defined
58 (1) Subject to section 59, this section defines family asset for the purposes of this Act.
(3) Without restricting subsection (2), the definition of family asset includes the following:
(a) if a corporation or trust owns property that would be a family asset if owned by a spouse,
(i) a share in the corporation, or
(b) if property would be a family asset if owned by a spouse, property
(d) a right of a spouse under an annuity or a pension, home ownership or retirement savings plan;
Excluded business assets
59 (1) If property is owned by one spouse to the exclusion of the other and is used primarily for business purposes and if the spouse who does not own the property made no direct or indirect contribution to the acquisition of the property by the other spouse or to the operation of the business, the property is not a family asset.
Onus of proof
60 The onus is on the spouse opposing a claim under section 56 to prove that the property in question is not ordinarily used for a family purpose.
Marriage agreements
61 (1) This section defines marriage agreement for the purposes of this Part and this definition applies to marriages entered into, marriage agreements made and to property of a spouse acquired before or after March 31, 1979.
(a) management of family assets or other property during marriage, or
Canada Pension Plan
62 A marriage agreement or other written agreement between spouses entered into on or after June 4, 1986 may provide that, despite the Canada Pension Plan, there be no division of unadjusted pensionable earnings under that Act.
Filing in land title office
63 (1) A spouse who is a party to a marriage agreement or separation agreement may sign and file a notice in the prescribed form setting out
(b) a description of land to which the marriage agreement or separation agreement relates, and
(4) If a spouse or former spouse
(a) cannot, after a reasonable search is made, be located,
(c) is a mentally incompetent person,
(7) If a financing statement is registered in the personal property registry under subsection (6),
Enforceability of interest in property
64 (1) In this section, "interest of a spouse" means the interest of a spouse arising under section 56, a marriage agreement or a separation agreement.
(2) Section 29 of the Land Title Act applies to an interest of a spouse in land.
Judicial reapportionment on basis of fairness
65 (1) If the provisions for division of property between spouses under section 56, Part 6 or their marriage agreement, as the case may be, would be unfair having regard to
(a) the duration of the marriage,
(b) the duration of the period during which the spouses have lived separate and apart,
(c) the date when property was acquired or disposed of,
(d) the extent to which property was acquired by one spouse through inheritance or gift,
(e) the needs of each spouse to become or remain economically independent and self sufficient, or
Determination of ownership, possession or division
66 (1) In proceedings under this Part or Part 6 or on application, the Supreme Court may determine any matter respecting the ownership, right of possession or division of property under this Part, including the vesting of property under section 65, or under Part 6 and may make orders that are necessary, reasonable or ancillary to give effect to the determination.
(a) declare the ownership of or right of possession to property;
(g) if property is owned by spouses as joint tenants, sever the joint tenancy.
Proceedings involving treaty lands
66.1 (1) If the final agreement of a treaty first nation so provides, in proceedings under this Part in which
(b) at least one spouse is a treaty first nation member of the treaty first nation,
Interim orders
67 (1) On application by a party to a proceeding under this Part or Part 6, the court must make an order restraining another party to the proceeding from disposing of a family asset or any other property at issue under this Part or Part 6 until or unless the other party establishes that a claim made by the applicant under this Part or Part 6 will not be defeated or substantially impaired by the disposal of that family asset or other property.
Variation of marriage settlements
68 (1) This section applies to an ante nuptial or post nuptial settlement that is not a marriage agreement under this Part.
Application of this Part
69 (1) If there is a conflict between this Part and the Partition of Property Act, or the Married Woman's Property Act, R.S.B.C. 1979, c. 252, this Part prevails.
Part 6 — Division of Pension Entitlement
Definitions for Part
"defined benefit plan" means a plan that is not a defined contribution plan or a hybrid plan;
"extraprovincial plan" means a plan that is not a local plan and includes
(a) a supplemental pension plan to a local plan or extraprovincial plan, or
"hybrid plan" means a plan under which
(b) some benefits, but not all of the benefits, are determined by a defined benefit formula;
"limited member" means a person designated as a limited member of a local plan under section 72 (1);
"local plan" means one of the following:
(a) a plan that is established by the government;
(b) a plan that must be registered under the Pension Benefits Standards Act;
(c) a plan that is subject to this Part
(ii) by the operation of legislation that regulates the plan, or
(iii) by reason of a reciprocal agreement under the Pension Benefits Standards Act;
"member" includes a former member;
Application of Part
71 (1) Subject to subsection (2), if a spouse is entitled under Part 5 to an interest in a pension,
(a) the spouse's share of the pension, and
(b) the manner in which the spouse's entitlement in the pension is to be satisfied
must be determined in accordance with this Part.
(2) This Part applies only if a spouse
(b) becomes entitled under Part 5 to an interest in a pension after June 30, 1995.
Local plans: limited members
72 (1) If a pension to be divided is
(a) an unmatured pension in a local plan that is a defined benefit plan, or
(b) a matured pension in a local plan,
(2) A limited member has the following rights:
Local plans: division of an unmatured defined contribution plan
73 If a pension to be divided is in a local plan and has not matured and the plan is a defined contribution plan, a spouse, by delivering a notice in the prescribed form to the administrator, is entitled to have a prescribed portion of the member's account balance transferred from the plan in accordance with the regulations.
Local plans: division of an unmatured defined benefit plan
74 If a pension to be divided is in a local plan and has not matured and the plan is a defined benefit plan, a spouse, by delivering a notice in the prescribed form to the administrator,
(ii) terminates his or her membership in the pension plan, or
Local plans: division of an unmatured hybrid plan
75 (1) If a pension to be divided is in a local plan and has not matured and the plan is a hybrid plan,
Supreme Court retains a discretion
75.1 (1) If, in the circumstances, the method of division required under this Part and the regulations is inappropriate because of the terms of the plan, the Supreme Court, despite the Pension Benefits Standards Act or any other Act purporting to limit the jurisdiction of a court to make an appropriate order respecting pension entitlement of the member and the spouse on marriage breakdown, may direct an appropriate method of division of the pension and the order of the court is binding on the plan.
(a) the value the pension would have had, or
(b) the periodic benefits that would have been paid under the pension on retirement
had there been no division of the pension between the member and the spouse.
Local plans: benefit split of a matured pension
76 (1) If a pension to be divided is in a local plan and has matured, a spouse, by delivering a notice in the prescribed form under section 72 (1), is entitled to receive from the plan a proportionate share of benefits paid under the pension until
(a) the death of the spouse, or
Division of an extraprovincial plan
77 (1) If a pension to be divided is in an extraprovincial plan, a spouse is entitled to receive from the plan a proportionate share of benefits paid under the pension until
(a) the death of the spouse, or
Death of a member or limited member
78 (1) If a member dies before the limited member receives a share of the pension under section 74, and the limited member is not entitled to the whole of any preretirement survivor benefit payable under the member's pension, then the limited member is entitled to a proportionate share of that preretirement survivor benefit in the form of
Transfer of the commuted value of a separate pension or a share of a pension
79 If a limited member is entitled to a separate pension or a proportionate share of benefits paid under the pension, a plan may require the limited member to accept a transfer of the commuted value of the separate pension or of the proportionate share of the benefits, as the case may be, in the same manner that a plan can require a member to do so under section 33 (5) or 40 (1) of the Pension Benefits Standards Act.
Agreements
80 (1) A spouse may enter into a written agreement with a member respecting one or more of the following:
(i) the value the pension would have had, or
(ii) the periodic benefits that would have been paid under the pension on retirement
had there been no division of the pension between the member and spouse;
(2) Despite section 71 (2), if
(a) a spouse became entitled under Part 5 to an interest in family assets before July 1, 1995,
(c) the member has not yet retired or the spouse is not yet receiving benefits,
(i) provide for a different method of pension division, or
Administrative costs
81 (1) The spouse and member are responsible for paying to the plan a prescribed amount to offset administrative costs incurred by the plan in satisfying the share of the spouse under this Part.
Information from plan
82 (1) A limited member, or a spouse claiming an interest in a pension who has delivered to the plan a notice in the prescribed form, is entitled to receive from the administrator
(a) at the time of marriage breakdown, and
Trust of survivor benefits
83 If a spouse is entitled to a share of preretirement survivor benefits or postretirement survivor benefits paid to another person, the recipient holds them in trust for the spouse.
Adjustment of member's pension
84 If under this Act a spouse or the spouse's estate receives a share of a member's pension directly from a plan, the interest in the pension of the member, or of any person claiming an interest through the member, must be adjusted in accordance with the regulations.
Plan and administrator not liable
85 No plan or administrator of a plan is liable for loss or damage suffered by any person because of anything done or omitted to be done by an administrator who relies and acts in good faith on
(a) a notice or waiver given under this Part, or
(b) a court order or separation agreement attached to a notice given under this Part.
Power to make regulations
86 The Lieutenant Governor in Council may make regulations for the following purposes and respecting the following matters:
(d) the form, content and manner of giving any notice or waiver under this Part;
(f) the method of calculating the proportionate share of benefits under a plan;
(h) the prescribing of any age requirement under this Part;
(i) the prescribing of the amount of any administrative cost.
Part 7 — Maintenance and Support Obligations
Definitions for Part
"enforcement officer" means an enforcement officer designated under section 98;
"maintenance order" means an order made under sections 88 to 96.
Obligation to support child
88 (1) Each parent of a child is responsible and liable for the reasonable and necessary support and maintenance of the child.
Obligation to support spouse
89 (1) A spouse is responsible and liable for the support and maintenance of the other spouse having regard to the following:
(a) the role of each spouse in their family;
Application for an order
91 (1) A person may apply for an order under this Part on his or her own behalf.
(3) Any person may apply for an order under this Part on behalf of a child.
Failing to comply with rules respecting disclosure of information
92 (1) If a person fails to comply with rules respecting disclosure information in proceedings under this Act that are made under the authority of the Court Rules Act, the court may order an amount not exceeding $5 000 for the benefit of the spouse, parent or child on whose behalf the request was made.
(2) The award under subsection (1) is additional to and not in place of any other remedy.
Order for support and maintenance
93 (1) Subject to the Divorce Act (Canada), a court may make an order on application, or if the court makes or refuses an order for judicial separation or dissolution of marriage or a declaration that a marriage is null and void, requiring a party to the proceeding to discharge his or her liability
(3) If the court makes an order under subsection (2), it must record its reasons for having done so.
(b) any other source of support and maintenance for the applicant spouse;
(d) the obligation of the spouse against whom application is made to support another person;
(e) the capacity and reasonable prospects of a spouse obtaining education or training.
(5) An order under this section may also provide for one or more of the following:
(b) payment of a lump sum directly or in trust on terms provided;
(c) charging of property with payment under the order;
(d) payment of support in respect of any period before the order is made;
(e) payment for expenses arising from and incidental to
Consent orders
93.1 (1) In proceedings under section 93 or 96 a court may award an amount that is different from the amount calculated under the child support guidelines, on the consent of the parties to the proceedings, if the court is satisfied that reasonable arrangements have been made for the support of the children to whom the order relates.
Priority
93.2 (1) If a court is considering making an order under section 93, or in proceedings under section 96, the court must give priority to maintenance under section 88.
(a) the court must record its reasons for having done so, and
(i) an order under section 93 (1) (b), if one was not made previously, or
Child support service
93.3 (1) In this section and in section 129 (4):
"child support service" means a child support service established under subsection (2);
"payee" means a person to whom child support is to be paid;
"payor" means a person who is obliged to pay child support;
"prescribed registry" means a court registry prescribed under section 129 (4) (a);
(2) The minister may establish a child support service for the purposes set out in this section.
(3) A child support service may do the following:
(a) assist courts in the determination of child support;
(b) subject to subsection (4), recalculate child support
(i) on the basis of updated income information, and
(ii) in accordance with this Act, the regulations and the child support guidelines;
(c) perform additional duties and functions as may be required by the minister.
(a) the child support was determined under the child support guidelines, and
(b) the child support was established by
(a) the recalculated child support, or
(a) a clerical or typographical error;
(b) an arithmetical error made in the computation of the recalculated amount;
(c) an accidental or inadvertent error, omission or other similar mistake.
(10) If the payor or payee of child support does not agree with
(a) the recalculated amount, or
(a) the application is determined;
(b) the application is dismissed;
Parentage
94 If parentage of a child is denied in a proceeding for an order under this Part, the court may determine the parentage issue under section 95, on the balance of probabilities, as part of the proceeding for that order.
Presumptions of paternity
95 (1) If a male person denies responsibility under section 88 (1) on the basis that he is not the father of the child, the court must, unless the contrary is proved on a balance of probabilities, presume that the male person is the father of the child in any one of the following circumstances:
(a) the person is married to the mother of the child at the time of the birth of the child;
(b) the person was married to the mother of the child and the marriage was terminated
(i) by death of the person or judgment of nullity within 300 days before the birth of the child, or
Paternity tests
95.1 (1) In this section, "paternity tests" include human leukocyte antigen tissue tests and tests of the deoxyribonucleic acid (DNA) in tissue or blood to identify the inheritable characteristics of the tissue or blood.
Variation proceedings
96 (1) If an application is made to vary or rescind a maintenance order not described in subsection (1.1), the court must consider changes in the needs, means, capacities and economic circumstances of each person affected by the order and make the appropriate change, if any.
(1.3) If the court makes an order under subsection (1.2), it must record its reasons for doing so.
(3) For the purpose of subsection (2), the court may take into consideration
(a) the efforts the applicant has made to comply with the maintenance order,
(c) any special circumstances that the court considers relevant.
Enforcement officers
98 The Lieutenant Governor in Council may designate public service employees as enforcement officers for the purposes of this Part.
Maintenance orders in sections 99 and 100
98.1 In sections 99 and 100, "maintenance order" includes a support order made under the Interjurisdictional Support Orders Act.
Powers of enforcement officer
99 (1) On the written request of any person, an enforcement officer may, if he or she considers it appropriate, do any one or more of the following:
(a) assist the person to obtain a maintenance order or a variation of a maintenance order;
(b) assist the person to enforce a maintenance order;
(i) a party to a proceeding in which a child support order has been made, or
(ii) a party to a child support agreement.
(i) the location, address or place of employment,
(ii) the particulars of the assets or income, or
(iii) the location of the assets or the source of income
of the proposed respondent or person against whom the maintenance order is made;
(i) a party to a proceeding in which a child support order has been made, or
(ii) a party to a child support agreement.
(a) is in a record in the possession or control of that person or public body, and
(4) Subsections (3) and (3.1) do not apply in respect of
(b) information in the possession or control of
(i) a solicitor of the person against whom assistance is requested under subsection (1), or
(ii) a family court counsellor, or
(c) information the disclosure of which is forbidden by section 9 (1) (b) of the Statistics Act.
Order of court for access to information
100 (1) If, on application, the court is satisfied that
(c) the location, address or place of employment,
(c.1) the particulars of the assets or income, or
(d) the location of the assets or of the source of income
of the proposed respondent or of the person against whom the maintenance order is made.
(4) A person must not disclose information provided under section 99 (5) or this section except
(b) as provided in section 99 (6).
(6) Subsections (4) and (5) do not apply to
(b) information not described by paragraph (a) that has been in existence for 50 or more years, or
Part 9 — Procedure and Agreements
Proceedings to be heard summarily
120 Subject to this Act and the Provincial Court (Family) Rules, an application under this Act to the Provincial Court must be heard summarily or in the manner the court may direct.
Property agreements
120.1 (1) If spouses who are not married to each other make an agreement, Parts 5 and 6 apply to
(b) if covered by the agreement,
(ii) a pension or an interest in a pension plan,
(iii) a home ownership savings plan, or
(iv) property not described in subparagraphs (i) to (iii).
"agreement" means an agreement that would be
(a) a marriage agreement for the purposes of Part 5 if the spouses were married to each other, or
(b) a separation agreement if the spouses were married to each other or separated after marriage;
Enforcement of agreement as court order
(a) under the age of 19 years, or
(2) If a signed copy of a written agreement containing a provision respecting
(a) the custody of or access to a child by a parent, or
(b) the maintenance of a child by a parent or of a person by the person's spouse
(3) Subsection (2) applies in respect of
(a) a written agreement made after June 30, 1995, and
(b) by the Provincial Court, on application and subject to sections 20 and 96.
(5) The filing of a written agreement under this section does not
(b) prevent the agreement from being filed or enforced in the Supreme Court under section 122.
Enforcement of agreements filed in Supreme Court
122 (1) If a signed copy of a written agreement containing a provision respecting
(a) the custody of or access to a child by a parent, or
(b) the maintenance of a child by a parent or of a person by the person's spouse
(2) Subsection (1) applies in respect of
(a) a written agreement made after June 30, 1995, and
(5) The definitions in section 121 (1) apply in this section.
Remedies
123 (1) An action must not be maintained for restitution of conjugal rights, loss of consortium, criminal conversation or jactitation of marriage.
(2) An action must not be maintained for
(b) harbouring of a spouse, or
Temporary property relief
124 (1) An order under this section is for temporary relief pending determination of the rights to the property of the spouses by agreement or by a court that has jurisdiction in those matters.
(a) occupied by the spouses as their family residence, or
(b) personal property used or stored at the family residence.
(3) On application, the court may order that one spouse for a stated period
(a) be given exclusive occupancy of the family residence, or
(5) A spouse does not acquire a proprietary interest on the making of an order under this section.
(7) Nothing in this section prevents the filing of an entry under the Land (Spouse Protection) Act.
Postponement of sale
125 If an order for exclusive occupancy or use has been made under section 124, the Supreme Court, on application, may order that the rights of a spouse to apply for partition and sale or to sell or otherwise dispose of or encumber the property be postponed and be subject to the right of exclusive occupancy or use and may, in its order, vary the order made under section 124.
Restriction of contact
126 (1) A court may, on application, order that, while the spouses continue to live separate and apart, one spouse must not enter premises while the premises are occupied by the other spouse or a child in the custody of the other spouse.
Responsibility for debts of former spouse
127 (1) After a court makes absolute a decree of divorce, or renders judgment granting a divorce and a certificate has been or could be issued under the Divorce Act (Canada) stating that the marriage was dissolved, or makes an order for judicial separation, or declares a marriage to be null and void, each former husband or wife, subject to this Act
Offences
128 (1) A person commits an offence by refusing or neglecting, without reasonable excuse, to comply with an order made against the person under section 37, 38, 124 or 126.
(2) A person commits an offence if the person
(a) contravenes section 39 (3) or 99 (5), or
(4) A person commits an offence if the person
(a) withholds information demanded under section 99 (3),
Power to make regulations
129 (1) The Lieutenant Governor in Council may make regulations referred to in section 41 of the Interpretation Act.
(a) respecting the way in which an award for maintenance for children is to be calculated;
(b) respecting the particulars that must be included in a maintenance order;
(a) prescribing court registries as prescribed registries for the purposes of section 93.3;
(g) prescribing an amount for the purposes of section 93.3 (9);
(g.1) respecting the manner and form of request and time period referred to in section 93.3 (9.2);
(h) respecting the period referred to in section 93.3 (11) (d);