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| This archived statute consolidation is current to November 10, 1992 and includes changes enacted and in force by that date. |
Part 1 — Interpretation and Jurisdiction
1. In this Act
"child" means a person under the age of 19 years;
"court" means the Provincial Court exercising the jurisdiction referred to in section 6, or the Supreme Court;
"guardian" means the person having all the powers and duties under section 25 respecting a child;
"guardian of the estate of a child" means the person having all the powers and duties under section 25 respecting the estate of a child;
"guardian of the person of a child" means the person having all the powers and duties under section 25 respecting the person of a child;
"parent" includes
(a) a guardian or guardian of the person of a child; or
(b) where this person contributes to the support and maintenance of a child for not less than one year,
(i) the stepmother or stepfather of the child, where a stepparent relationship is established
(A) by marriage between the stepparent and the mother or father of the child; or
(B) by the stepparent and the mother or father of the child living together as man and wife for not less than 2 years although not married to each other
and the proceeding by or against the stepparent is commenced within one year after the date the stepparent last contributed to the maintenance and support of the child;
(ii) [Repealed 1985-68-36, effective April 17, 1985 (B.C. Reg. 392/85).]
"spouse" means a wife or husband and includes,
(a) a former spouse for the purpose of proceedings to enforce or vary an order;
(b) where an order for dissolution of marriage, judicial separation, or declaring the marriage to be null and void was made respecting a marriage of a person not more than 2 years before the person applies for an order under this Act, the person making application; or
(c) except under Part 3, a man or woman not married to each other, who lived together as husband and wife for a period of not less than 2 years, where an application under this Act is made by one of them against the other not more than one year after the date they ceased living together as husband and wife.
Historical Note(s): 1978-20-1; 1985-68-36, effective April 17, 1985 (B.C. Reg. 392/85).
[Editorial Note(s): re section 1: see also draft uniform Child Status Act to be found as stated in the Users Guide to Statutes in the beginning of this volume.]
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.
(2) A family advocate may, notwithstanding any other Act and subject to the law of Canada, attend a proceeding under this Act or respecting the
(a) adoption of a child;
(b) guardianship of a child, guardianship of the person of a child or guardianship of the estate of a child;
(c) custody of, maintenance for or access to a child;
(d) alleged commission by a child of a Provincial or federal offence; or
(e) Family and Child Service Act
and intervene at any stage in the proceeding to act as counsel for the interests and welfare of the child.
Historical Note(s): 1978-20-2; 1984-30-45, effective June 11, 1984 (B.C. Reg. 165/84).
3. (1) The Attorney General may appoint a person to be a family court counsellor.
(2) A family court counsellor
(a) where he has knowledge of a dispute that has given or may give rise to a proceeding described in section 2 or respecting a similar family matter, may offer the parties to the dispute any advice and guidance which, in his opinion, will assist in resolving the dispute; and
(b) may offer to refer parties involved in those disputes to a public or private family counselling service or agency where, in the opinion of the family court counsellor, the service or agency is qualified to assist in resolving the dispute.
(3) Subject to the law of Canada, where
(a) a family court counsellor receives under subsection (2) evidence, information or a communication in confidence from a person who is a party to the proceeding, or from a child; and
(b) the person who gave the evidence, information or communication to the family court counsellor under subsection (2) does not consent to the family court counsellor disclosing the evidence, information or communication,
the family court counsellor shall not disclose the evidence, information or communication in a proceeding in a court or tribunal, and no person shall examine him for the purpose of compelling him to disclose that evidence, information or communication.
Historical Note(s): 1978-20-3.
3.1 On the request of a parent concerning any matter connected with the birth of his or her child, the Superintendent of Family and Child Service designated under the Family and Child Service Act shall take action that seems advisable to the superintendent to advise and assist the parent.
Historical Note(s): 1988-36-1.
4. (1) No woman is under a legal disability in respect to a matter under this Act by reason only that she is a married or unmarried woman.
(2) A child who is or has been married has capacity to make, conduct or defend an application under this Act without the intervention of a next friend or guardian ad litem.
Historical Note(s): 1978-20-4.
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.
(3) Nothing in this Act shall be construed as limiting or restricting the inherent jurisdiction of the Supreme Court to act in a parens patriae capacity respecting a child before the court.
Historical Note(s): 1978-20-5.
6. (1) The Provincial Court has jurisdiction in all matters under this Act, except sections 31 and 37 (1) (c) (iv), Part 3 and sections 65.1, 68.1 and 78, respecting
(a) guardianship of the person of a child;
(b) custody of or access to a child;
(b.1) the parentage of a child;
(c) maintenance;
(d) occupancy of the family residence and the use of its contents; and
(e) the making of orders that a person shall not enter premises while they are occupied by a spouse, parent or child.
(2) Nothing in this Act gives the Provincial Court the inherent jurisdiction described in section 5 (3).
Historical Note(s): 1978-20-6; 1979-2-22; 1985-72-5, effective June 2, 1986 (B.C. Reg. 119/86); 1988-3-53; 1988-36-2.
7. (1) Where 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.
(2) Where the Supreme Court and Provincial Court may each make an order for the same relief, the making of a Supreme Court order is not a bar to an application for a Provincial Court order in respect of relief that has neither been granted nor refused by the Supreme Court order.
Historical Note(s): 1978-20-7.
8. (1) Where, 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 the Province 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
as the court, in its discretion, considers appropriate.
(2) The Supreme Court may, on application by a party to a proceeding under Part 2 or 3, join and hear an application under section 20 to vary or rescind an order made by the Provincial Court under section 61 (1), 62 or 74 (4) (b), notwithstanding that an application has not been made to the Provincial Court.
(3) An order of the Provincial Court that is varied by the Supreme Court shall, for the purposes of any subsequent application to vary, rescind or enforce the order, be deemed to have been varied by the Provincial Court.
Historical Note(s): 1978-20-8; 1985-72-6, effective June 2, 1986 (B.C. Reg. 119/86).
9. (1) Where 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.
(2) In its discretion, the court may make an interim order under subsection (1) ex parte.
Historical Note(s): 1978-20-9.
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 shall not exceed the terms of the consent.
(3) Unless the ground is specifically admitted in the consent, the giving of a written consent under this section shall not be deemed to be an admission of a ground alleged in the proceeding.
Historical Note(s): 1978-20-10.
11. Where 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, providing the provision is relevant to the proceeding.
Historical Note(s): 1978-20-11.
12. Where 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.
Historical Note(s): 1978-20-12; 1988-3-54.
13. Where 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.
Historical Note(s): 1978-20-13; 1985-72-7, effective June 2, 1986 (B.C. Reg. 119/86); 1988-3-55.
14. Notwithstanding any other enactment, where an order made under this Act is appealed, the order shall, unless the court that made it otherwise orders, remain in full force and effect pending the determination of the appeal.
Historical Note(s): 1978-20-14; 1985-72-8, effective June 2, 1986 (B.C. Reg. 119/86).
15. (1) In a proceeding under this Act, the court may, on application, including ex parte application, direct an investigation into a family matter by a person who
(a) has had no previous connection with the parties to the proceeding or to whom each party consents; and
(b) is a family counsellor, social worker, probation officer or other person approved by the court for the purpose.
(2) A person directed to carry out an investigation under subsection (1) shall report, in the manner which the court may direct, the results of the investigation.
(3) No person shall report to a court the result of an investigation under subsection (1) unless, not less than 30 days before the report is to be given to the court, he serves a copy of the report on every party to the proceeding.
(4) Where satisfied that circumstances warrant, the court may grant an exemption from subsection (3).
Historical Note(s): 1978-20-15; 1989-30-16.
16. (1) Subject to this Act, a proceeding under this Act, except for an appeal, may be commenced at any time.
(2) The Offence Act provisions respecting
(a) the Attorney General apply to the person on whose behalf the order in Provincial Court was made or refused; and
(b) the defendant apply to the person against whom the order in Provincial Court was made or refused
in an appeal, other than an appeal against a conviction for an offence, from the Provincial Court under this Act.
(3) Notwithstanding this section, the court to which an appeal is made may, on application, extend the period during which the appeal may be brought.
Historical Note(s): 1978-20-16.
17. Where 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.
Historical Note(s): 1978-20-17.
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.
(2) Any person may apply to the court for leave to intervene in a proceeding and the court may make an order entitling that person to intervene.
(3) An order under subsection (2) shall be subject to the terms and conditions the court, in its discretion, considers appropriate.
(4) Where the Attorney General or a person intervenes under this section in a proceeding, he becomes a party to the proceedings.
Historical Note(s): 1978-20-18.
19. In proceedings under this Act, spouses are competent and compellable witnesses for or against each other.
Historical Note(s): 1978-20-19.
20. Subject to this Act, where a court has made an order under this Act, except an order under Part 3, the court may, on application, vary or rescind the order where circumstances have changed since the order was made or last varied.
Historical Note(s): 1978-20-20.
Part 2 — Child Custody, Access and Guardianship
21. In this Part
"access" includes visitation;
"child" includes a child not yet born on the death of the child's father or mother but subsequently born alive;
"Public Trustee" means the Public Trustee appointed under the Public Trustee Act;
"superintendent" means the Superintendent of Family and Child Service designated under the Family and Child Service Act.
Historical Note(s): 1978-20-21; 1980-11-30, proclaimed effective June 1, 1981; 1985-72-9, effective June 2, 1986 (B.C. Reg. 119/86).
22. (1) Where application is made to a court under this Part or Part 2.1, 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.
(2) Notwithstanding subsection (1), on ex parte application, the court may, by order,
(a) exempt that person from the requirement to serve notice on a parent or adult person; or
(b) direct the persons to be served with notice and the manner of service, including substituted service.
Historical Note(s): 1978-20-22; 1985-72-10, effective June 2, 1986 (B.C. Reg. 119/86).
23. (1) Subject to subsection (2), where 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 superintendent is guardian of the person of the child or that the Public Trustee is guardian of the estate of the child.
(2) An order shall not be made under subsection (1) unless the superintendent or Public Trustee named in the order has been given a prior opportunity to be represented in the proceeding.
Historical Note(s): 1978-20-23.
24. (1) Where making, varying or rescinding an order under this Part, a court shall give paramount consideration to the best interests of the child and, in assessing these interests, shall consider these factors:
(a) the health and emotional well being of the child including any special needs for care and treatment;
(b) where appropriate, the views of the child;
(c) the love, affection and similar ties that exist between the child and other persons;
(d) education and training for the child; and
(e) the capacity of each person to whom guardianship, custody or access rights and duties may be granted to exercise these rights and duties adequately;
and give emphasis to each factor according to the child's needs and circumstances.
(2) Where the guardianship of the estate of a child is at issue, a court shall consider as an additional factor the material well being of the child.
(3) Where the conduct of a person does not substantially affect a factor set out in subsection (1) or (2), the court shall not consider that conduct in a proceeding respecting an order under this Part.
(4) Where under subsection (3) the conduct of a person may be considered by a court, the court shall consider the conduct only to the extent that the conduct affects a factor set out in subsection (1) or (2).
Historical Note(s): 1978-20-24.
25. (1) A guardian is both guardian of the person of the child and guardian of the estate of the child.
(2) Subject to this Act, a guardian of the estate of a child has all powers over the estate of the child as a guardian appointed by will or otherwise had on May 19, 1917 in England under Acts 12, Charles the Second, chapter 24, and 49 and 50 Victoria, chapter 27, section 4.
(3) Subject to this Act, a guardian of the person of a child has all powers over the person of the child as a guardian appointed by will or otherwise had on May 19, 1917 in England under Acts 12, Charles the Second, chapter 24, and 49 and 50 Victoria, chapter 27, section 4.
Historical Note(s): 1978-20-25.
26. References to a guardian in sections 26 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.
Historical Note(s): 1978-20-26.
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.
(2) Subject to subsection (4), section 28 and section 30, where the father and mother of a child are or have been married to each other and are living separate and apart,
(a) they are joint guardians of the estate of the child; and
(b) the one of them who usually has care and control of the child is sole guardian of the person of the child unless a tribunal of competent jurisdiction otherwise orders.
(3) Where the father and mother of a child
(a) have not married each other;
(b) are living separate and apart; and
(c) have been joint guardians under subsection (1) or under the order of a tribunal of competent jurisdiction,
subsection (2) applies to the father, mother and child as though the father and mother were married.
(4) Where a tribunal of competent jurisdiction 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, 1985 (Canada) stating that the marriage was dissolved, or makes an order for judicial separation or declares a marriage to be null and void, a person granted custody by order in the proceeding is sole guardian unless a tribunal of competent jurisdiction transfers custody or guardianship to another person.
(5) Subject to section 28, where the father and mother of a child
(a) have not been married to each other during the life of the child or 10 months prior to its birth;
(b) are living separate and apart; and
(c) do not share joint guardianship under this section or an order of a tribunal of competent jurisdiction,
the mother is sole guardian unless a tribunal of competent jurisdiction otherwise orders.
Historical Note(s): 1978-20-27; 1979-2-23; 1987-42-23.
28. (1) The father and mother described by section 27 (2) or (5) may, by a written agreement between them, provide that
(a) they are joint guardians; or
(b) one of them is sole guardian
of their child during the term of the agreement.
(2) The making of an agreement under subsection (1) does not bar the jurisdiction of a court to make an order respecting guardianship.
Historical Note(s): 1978-20-28.
29. (1) Subject to subsection (2), where a joint guardian dies, the survivors or sole survivor continue as joint or sole guardians respectively.
(2) Where a guardian dies, a surviving mother or father of the child who is not a guardian at the time of the deceased's death shall not become a guardian unless the surviving mother or father has been appointed under section 40 of the Infants Act or is, by order, appointed under section 30 of this Act.
(3) If a child otherwise has no guardian or if the guardian appointed is dead, refuses or is incompetent at law to act,
(a) the superintendent is guardian of the person of the child;
(b) the Public 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) Where 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 powers, rights or duties of a guardian.
Historical Note(s): 1978-20-29; 1985-72-11, effective June 2, 1986 (B.C. Reg. 119/86).
30. (1) Subject to this Act, a court may, on application,
(a) appoint a guardian; or
(b) remove from office a guardian appointed or acting by virtue of this Part or a deed or testamentary appointment.
(2) Where a child is over 12 years of age, a court shall not make or give effect under subsection (1) to an appointment unless
(a) the child consents in writing to the appointment; or
(b) where the child withholds consent to the appointment, the court is satisfied that the appointment is necessary in the best interests of the child.
(3) No person other than the father or mother of a child shall, under subsection (1) (a), be appointed guardian unless the court is satisfied that each parent of the child consents in writing to the appointment or, where a necessary consent has not been given, that
(a) the parent who could give or withhold consent is not reasonably available; or
(b) the consent is being unreasonably withheld.
(4) No order shall be made under subsection (1) unless the present and prospective guardians have been given notice and an opportunity to be heard in the proceeding.
(5) Where satisfied that circumstances warrant, the court may grant an exemption from subsection (4) respecting a present guardian.
Historical Note(s): 1978-20-30.
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 this person to
(a) render a true and just account of all property of the child administered by him; and
(b) deliver and pay over the property to the person entitled after deducting only such reasonable amount for his expenses and charges as the court may approve
on the termination of the guardianship.
(2) Where the giving of security is ordered under subsection (1), the Public Trustee is guardian of the estate of the child until the security is given.
(3) Notwithstanding subsection (1), the court shall not order the Public Trustee to give security under this section.
Historical Note(s): 1978-20-31.
32. A guardian may apply to a court for directions concerning a question affecting the child and the court may make the order in this regard it considers proper.
Historical Note(s): 1978-20-32.
33. A guardian whose appointment is made by order of a court under sections 25 to 33 may, by leave of the court, resign his office on the terms and conditions the court may impose.
Historical Note(s): 1978-20-33.
34. (1) Subject to subsection (2), the persons who may exercise custody over a child are, where
(a) the father and mother live together, the father and mother jointly;
(b) the father and mother live separate and apart, the parent with whom the child usually resides;
(c) custody rights exist under a court order, the person having those rights; and
(d) custody rights exist under a written agreement, the person to whom those rights are given.
(2) Where persons have conflicting claims to custody under subsection (1)
(a) the person having custody rights under a court order;
(b) where paragraph (a) does not apply, the person granted custody by an agreement;
(c) where paragraphs (a) and (b) do not apply, the person claiming custody with whom the child usually resides; or
(d) where paragraph (c) applies and 2 persons are equally entitled under it, the person who usually has day to day personal care of the child
may exercise custody to the exclusion of the other persons unless a court otherwise orders.
Historical Note(s): 1978-20-34.
35. (1) Subject to Part 2.1, 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.
(3) Where a person has not received notice of a proceeding or has not been given opportunity to be heard in the proceeding, custody shall not be granted to that person.
(4) An order for custody or access may include terms and conditions the court considers necessary and reasonable in the best interests of the child.
Historical Note(s): 1978-20-35; 1985-72-12, effective June 2, 1986 (B.C. Reg. 119/86).
36. (1) Where 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 ex parte application, order that the child be apprehended by a peace officer and taken to that person.
(2) For the purposes of locating and apprehending a child in accordance with an order under subsection (1), a peace officer may enter and search any place where he has reasonable and probable grounds for believing the child may be.
Historical Note(s): 1978-20-36; 1985-72-13, effective June 2, 1986 (B.C. Reg. 119/86).
36.1 On application, a court may
(a) make an order restraining any person from molesting, annoying, harassing, communicating or attempting to molest, annoy, harass or communicate with the applicant or a child in the lawful custody of the applicant or both the applicant and a child, and
(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
(ii) to report to the court or a person designated by the court, at the times and places and for the period of time the court directs.
Historical Note(s): 1985-72-14, effective June 2, 1986 (B.C. Reg. 119/86).
37. (1) Where a court makes a custody order or a custody order or separation agreement is enforceable by a court, the court may order that a person
(a) shall not enter premises, including premises the person owns or has a right to possession of, where the child resides from time to time;
(b) shall not make contact or endeavour to make contact with or otherwise interfere with either the child or any person having custody of or access to the child; or
(c) where a court concludes that the person named in its custody order may not comply with an order under paragraph (a) or (b), the court may further order that the person
(i) enter into a recognizance, with or without sureties, in such reasonable amount as the court thinks necessary;
(ii) report to the court or person designated for the period of time, and at the times and places, as the court considers necessary and reasonable;
(iii) deliver up to the court, or a person designated by the court, such documents as the court thinks fit; or
(iv) transfer specific property to a trustee named by the court to be held subject to the terms and conditions specified in the order
or any combination of these.
(2) The Provincial Court shall not make an order under subsection (1) (c) (iv).
(3) In an order under subsection (1) (c) (iv), the court may specify terms and conditions for the return or the disposition of the property as the court considers appropriate.
(4) A court, or a person designated by the court in an order under subsection (1) (c) (iii), shall hold documents delivered in accordance with the order in safekeeping in accordance with any directions set out in the order.
(5) In an order under subsection (1), a court may give any directions it considers appropriate in respect of the safekeeping of the documents or property.
Historical Note(s): 1978-20-37; 1985-72-15, effective June 2, 1986 (B.C. Reg. 119/86).
37.1 (1) An enforcement officer designated under section 63.1 may, for the purpose of assisting a person
(a) to bring an application respecting custody of or access to a child or respecting guardianship of a child or of the person of a child, or
(b) to enforce an order respecting custody of or access to a child or respecting guardianship of a child or of the person of a child,
demand from any person or public body, including the Crown, information that is in a record in the possession or control of that person or public body and that concerns the address or location of the proposed respondent to the application referred to in paragraph (a) or of the person having actual custody of the child in respect of whom the order referred to in paragraph (b) is made.
(2) Subsection (1) does not apply in respect of
(a) personal correspondence between the person respecting whom the information is sought and a parent, child, spouse, brother or sister of that person,
(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, or
(c) information the disclosure of which is forbidden by section 9 (1) (b) of the Statistics Act.
(3) Notwithstanding any other enactment or any common law rule of privilege or confidentiality, any person or public body, including the Crown, that receives a demand under subsection (1) shall provide any of the demanded information that is in any record in the possession or control of the person or public body.
(4) The enforcement officer may disclose information provided under subsection (3) to a person performing in a reciprocating state functions similar to those of the enforcement officer.
Historical Note(s): 1987-60-5.
37.2 (1) Where, on application, the court is satisfied that
(a) an enforcement officer has been refused information after making a demand under section 37.1 (1), or
(b) a person needs an order under this section to bring an application referred to in section 37.1 (1) (a) or to enforce an order referred to in section 37.1 (1) (b),
the court may, notwithstanding any other enactment or any common law rule of privilege or confidentiality, order any person or public body, including the Crown, to provide to the applicant or to an individual named by the court, any information that is in the possession or control of that person or public body and that concerns the address or location of the proposed respondent to the application referred to in section 37.1 (1) (a) or of the person having actual custody of the child in respect of whom the order referred to in section 37.1 (1) (b) is made.
(2) The court shall not make an order under subsection (1)
(a) against a solicitor of the person respecting whom the information is sought or against a family court counsellor, or
(b) where it appears to the court that the purpose of the application under this section is to enable the applicant to identify or to obtain information as to the identity of a person who has custody of a child, rather than to learn or confirm the whereabouts of the proposed respondent to an application referred to in section 37.1 (1) (a) or to facilitate the enforcement of an order referred to in section 37.1 (1) (b).
Historical Note(s): 1987-60-5.
37.3 No person shall disclose information provided under section 37.1 or 37.2 except
(a) to the extent necessary for the purpose of
(i) bringing an application referred to in section 37.1 (1) (a), or
(ii) enforcing an order referred to in section 37.1 (1) (b), or
(b) as provided in section 37.1 (4).
Historical Note(s): 1987-60-5.
Part 2.1 — Extraprovincial Custody and Access Orders
[Note re Part 2.1: see also draft uniform Custody Jurisdiction and Enforcement Act to be found as stated in the Users Guide to Statutes in the beginning of this volume.]
38. In this Part
"child" includes a child not yet born on the death of the child's father or mother but subsequently born alive;
"extraprovincial order" means an order, or that part of an order, of an extraprovincial tribunal that grants to a person custody of or access to a child;
"extraprovincial tribunal" means a court or tribunal outside the Province that has jurisdiction to grant to a person custody of or access to a child.
Historical Note(s): 1985-72-18, effective June 2, 1986 (B.C. Reg. 119/86).
39. The purposes of this Part are
(a) to ensure that applications to the courts in respect of custody of, access to and guardianship of children will be determined on the basis of the best interests of the children,
(b) to recognize that the concurrent exercise of jurisdiction by judicial tribunals of more than one province, territory or state in respect of the custody of or access to the same child ought to be avoided, and to make provision so that the courts of the Province will, unless there are exceptional circumstances, refrain from exercising or decline jurisdiction in cases where it is more appropriate for the matter to be determined by a tribunal having jurisdiction in another place with which the child has a closer connection,
(c) to discourage the abduction of children as an alternative to the determination of custody rights by due process, and
(d) to provide for the more effective enforcement of custody and access orders and for the recognition and enforcement of custody and access orders made outside the Province.
Historical Note(s): 1985-72-18, effective June 2, 1986 (B.C. Reg. 119/86).
40. (1) A court shall exercise its jurisdiction to make an order for custody of or access to a child only where
(a) the child is habitually resident in the Province at the commencement of the application for the order, or
(b) although the child is not habitually resident in the Province, the court is satisfied that
(i) the child is physically present in the Province at the commencement of the application for the order,
(ii) substantial evidence concerning the best interests of the child is available in the Province,
(iii) no application for custody of or access to the child is pending before an extraprovincial tribunal in another place where the child is habitually resident,
(iv) no extraprovincial order in respect of custody of or access to the child has been recognized by a court in the Province,
(v) the child has a real and substantial connection with the Province, and
(vi) on the balance of convenience, it is appropriate for jurisdiction to be exercised in the Province.
(2) A child is habitually resident in the place where the child resided
(a) with both parents,
(b) where the parents are living separate and apart, with one parent under a separation agreement or with the implied consent of the other parent or under a court order, or
(c) with a person other than a parent on a permanent basis for a significant period of time,
whichever last occurred.
(3) The removal or withholding of a child without the consent of the person having custody of the child does not alter the habitual residence of the child unless there has been acquiescence or undue delay in commencing due process by the person from whom the child is removed or withheld.
Historical Note(s): 1985-72-18, effective June 2, 1986 (B.C. Reg. 119/86).
40.1 Notwithstanding sections 40 and 40.4, a court may exercise its jurisdiction to make or to vary an order in respect of the custody of or access to a child where
(a) the child is physically present in the Province, and
(b) the court is satisfied that the child would, on the balance of probability, suffer serious harm if the child
(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
(iii) is removed from the Province.
Historical Note(s): 1985-72-18, effective June 2, 1986 (B.C. Reg. 119/86).
40.2 A court having jurisdiction in respect of custody or access may decline to exercise its jurisdiction where it is of the opinion that it is more appropriate for jurisdiction to be exercised outside the Province.
Historical Note(s): 1985-72-18, effective June 2, 1986 (B.C. Reg. 119/86).
40.3 On application for custody of or access to a child, a court
(a) that is satisfied that the child has been wrongfully removed to or is being wrongfully retained in the Province, or
(b) that may not exercise jurisdiction under section 40 or that has declined jurisdiction under section 40.2 or 40.5 (2),
may do any one or more of the following:
(c) make any interim order in respect of the custody or access that the court considers is in the best interests of the child;
(d) stay the application subject to
(i) the condition that a party to the application promptly commence a similar proceeding before an extraprovincial tribunal, or
(ii) any other conditions the court considers appropriate;
(e) order a party to return the child to a place the court considers appropriate and, in the discretion of the court, order payment of the cost of the reasonable travel and other expenses of the child and any parties to or witnesses at the hearing of the application.
Historical Note(s): 1985-72-18, effective June 2, 1986 (B.C. Reg. 119/86).
40.4 (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 shall recognize the order unless the court is satisfied that
(a) the respondent was not given reasonable notice of the commencement of the proceeding in which the order was made,
(b) the respondent was not given an opportunity to be heard by the extraprovincial tribunal before the order was made,
(c) the law of the place in which the order was made did not require the extraprovincial tribunal to have regard for the best interests of the child,
(d) the order of the extraprovincial tribunal is contrary to public policy in the Province, or
(e) the extraprovincial tribunal would not have jurisdiction under section 40 if it were a court in the Province.
(2) An order that is made by an extraprovincial tribunal and that is recognized by a court shall be deemed to be an order of the court and enforceable as such.
(3) A court presented with conflicting orders made by extraprovincial tribunals for the custody of or access to a child that, but for the conflict, would be recognized and enforced by the court under subsections (1) and (2), shall recognize and enforce the order that appears to the court to be most in accord with the best interests of the child.
(4) A court that has recognized an extraprovincial order may make any further orders under this Act that the court considers necessary to give effect to the order.
Historical Note(s): 1985-72-18, effective June 2, 1986 (B.C. Reg. 119/86).
40.5 (1) On application, a court may by order supersede an extraprovincial order in respect of custody of or access to a child where 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 where
(a) the child is habitually resident in the Province at the commencement of the application for the order, or
(b) although the child is not habitually resident in the Province, the court is satisfied that
(i) the child is physically present in the Province at the commencement of the application for the order,
(ii) the child no longer has a real and substantial connection with the place where the extraprovincial order was made,
(iii) substantial evidence concerning the best interests of the child is available in the Province,
(iv) the child has a real and substantial connection with the Province, and
(v) on the balance of convenience, it is appropriate for jurisdiction to be exercised in the Province.
(2) A court may decline to exercise its jurisdiction under this section where it is of the opinion that it is more appropriate for jurisdiction to be exercised outside the Province.
Historical Note(s): 1985-72-18, effective June 2, 1986 (B.C. Reg. 119/86).
40.6 On application, a court may by order supersede an extraprovincial order in respect of custody of or access to a child where 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
(c) is removed from the Province.
Historical Note(s): 1985-72-18, effective June 2, 1986 (B.C. Reg. 119/86).
40.7 (1) Where a court is of the opinion that it is necessary to receive further evidence from a place outside the Province 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 the Province any supporting material that may be necessary together with a request that
(a) the Attorney General, Minister of Justice or similar officer take any action that may be necessary in order to require a named person to attend before the proper tribunal in that place and produce or give evidence in respect of the subject matter of the application, and
(b) the Attorney General, Minister of Justice or similar officer or the tribunal send to the court a certified copy of the evidence produced or given before the tribunal.
(2) A court that acts under subsection (1) may assess the cost of so acting against one or more of the parties to the application or may deal with the cost as costs in the cause.
Historical Note(s): 1985-72-18, effective June 2, 1986 (B.C. Reg. 119/86).
40.8 (1) Where the Attorney General receives from an extraprovincial tribunal a request similar to that referred to in section 40.7 (1) and any supporting material that may be necessary, the Attorney General shall refer the request and the material to the proper court.
(2) A court to which a request is referred by the Attorney General under subsection (1) shall require the person named in the request to attend before the court and produce or give evidence in accordance with the request.
Historical Note(s): 1985-72-18, effective June 2, 1986 (B.C. Reg. 119/86).
41. 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
(a) the making of the order,
(b) the content of the order, and
(c) the appointment and signature of the judge, presiding officer, registrar or other person.
Historical Note(s): 1985-72-18, effective June 2, 1986 (B.C. Reg. 119/86).
42. 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 the Province and of a decision of an extraprovincial tribunal.
Historical Note(s): 1985-72-18, effective June 2, 1986 (B.C. Reg. 119/86).
Part 2.2 — International Child Abduction
[Note re Part 2.2: For convenience, a copy of the convention is printed following this Act. See also draft uniform Child Abduction (Hague Convention) Act to be found as stated in the Users Guide to Statutes in the beginning of this volume.]
42.1 (1) In this section "convention" means the Convention on the Civil Aspects of International Child Abduction signed at The Hague on October 25, 1980.
(2) Subject to subsection (4), the provisions of the convention have the force of law in the Province.
(3) The Attorney General is the Central Authority for the Province for the purpose of the convention.
(4) The Crown is not bound to assume any costs resulting from the participation of legal counsel or advisers or from court proceedings in relation to applications submitted under the convention, except to the extent that the costs are covered under the Province's system of legal aid and advice.
(5) Subsections (1) to (4) and the convention apply in respect of a child who, immediately before a breach of custody or access rights, was habitually resident in a contracting state but do not apply in respect of a child described in subsection (6).
(6) Part 2.1 applies in respect of
(a) a child who is in Canada and who, immediately before a breach of custody or access rights, was habitually resident in Canada,
(b) a child who, immediately before a breach of custody or access rights, was habitually resident in a state other than a contracting state,
(c) a child who, immediately before a breach of custody or access rights, was resident, but not habitually resident, in a contracting state, and
(d) any other child affected by an extraprovincial order, other than a child in respect of whom subsections (1) to (4) and the convention apply.
(7) The Attorney General shall publish, in Part II of the Gazette, a copy of the convention and the day on which the convention extends to the Province.
Historical Note(s): 1982-8-1, effective December 1, 1983 (day convention extends to Province, see 1982-8-12 and Part II Gazette Vol. 27, p. 5); 1985-72-20, effective June 2, 1986 (B.C. Reg. 119/86).
43. (1) Subject to this Part, each spouse is entitled to an interest in each family asset on or after March 31, 1979 when
(a) a separation agreement;
(b) a declaratory judgment under section 44;
(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.
(2) The interest under subsection (1) is an undivided half interest in the family asset as a tenant in common.
(3) An interest under subsection (1) is subject to
(a) an order under this Part; or
(b) a marriage agreement or a separation agreement.
(4) This section applies to a marriage entered into before or after this section comes into force.
Historical Note(s): 1978-20-43; 1979-2-24.
44. 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.
Historical Note(s): 1978-20-44.
45. (1) Subject to section 46, this section defines family asset for the purposes of this Act.
(2) Property owned by one or both spouses and ordinarily used by a spouse or a minor child of either spouse for a family purpose is a family asset.
(3) Without restricting the generality of subsection (2), the definition of family asset includes
(a) where a corporation or trust owns property that would be a family asset if owned by a spouse,
(i) a share in the corporation; or
(ii) an interest in the trust
owned by the spouse;
(b) where property would be a family asset if owned by a spouse, property
(i) over which the spouse has, either alone or with another person, a power of appointment exercisable in favour of himself; or
(ii) disposed of by the spouse but over which the spouse has, either alone or with another person a power to revoke the disposition or a power to use or dispose of the property;
(c) money of a spouse in an account with a savings institution where that account is ordinarily used for a family purpose;
(d) a right of a spouse under an annuity or a pension, home ownership or retirement savings plan; or
(e) a right, share or an interest of a spouse in a venture to which money or money's worth was, directly or indirectly, contributed by or on behalf of the other spouse.
(4) The definition of family asset applies to marriages entered into and property acquired before or after March 31, 1979.
Historical Note(s): 1978-20-45.
46. (1) Where property is owned by one spouse to the exclusion of the other and is used primarily for business purposes and where 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.
(2) In section 45 (3) (e) or subsection (1), an indirect contribution includes savings through effective management of household or child rearing responsibilities by the spouse who holds no interest in the property.
Historical Note(s): 1978-20-46.
47. The onus is on the spouse opposing a claim under section 43 to prove that the property in question is not ordinarily used for a family purpose.
Historical Note(s): 1978-20-47; 1979-2-25.
48. (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 this section comes into force.
(2) A marriage agreement is an agreement entered into by a man and a woman prior to or during their marriage to each other to take effect on the date of their marriage or on the execution of the agreement, whichever is later, for
(a) management of family assets or other property during marriage; or
(b) ownership in, or division of, family assets or other property during marriage, or on the making of an order for dissolution of marriage, judicial separation or a declaration of nullity of marriage.
(3) A marriage agreement, or an amendment or rescission of a marriage agreement, must be in writing, signed by both spouses, and witnessed by one or more other persons.
(4) Except as provided in this Part, where a marriage agreement is made in compliance with subsection (3), the terms described by subsection (2) (a) and (b) are binding between the spouses whether or not there is valuable consideration for the marriage agreement.
(5) A minor who has capacity to marry has, with the prior consent of the Supreme Court, capacity to enter into a valid marriage agreement.
(6) Where a minor who has capacity to marry has purported to enter into a marriage agreement without the consent required under subsection (5), the Supreme Court may at any time order that the marriage agreement is binding on and is for the benefit of the minor.
(7) In a marriage agreement, a dum casta provision applicable where the spouses are living separate and apart is null and void.
(8) A provision of a marriage agreement that is void or voidable is severable from the other provisions of the marriage agreement.
(9) Where a marriage agreement provides that specific gifts made to one or both spouses are not disposable without the consent of the donor, the donor shall be deemed to be a party to the marriage agreement for the purpose of enforcement or amendment of the provision.
Historical Note(s): 1978-20-48; 1989-40-90.
49. (1) A spouse who is a party to a marriage agreement or separation agreement may sign and file a notice in prescribed form setting out
(a) the full name and last known address of each spouse who is a party to the marriage agreement or separation agreement;
(b) a description of land to which the marriage agreement or separation agreement relates; and
(c) the provisions of the marriage agreement or separation agreement that relate to the land described in the notice
in the land title office of the land title district in which land described in the notice is situated.
(2) On the filing of a notice under subsection (1), accompanied by payment of the prescribed fee, the registrar may register the notice, in the same manner as a charge is registered, against the land described in the notice.
(3) Where a notice is registered under subsection (2), the registrar shall not allow registration of a transfer, mortgage, agreement for sale or conveyance of the fee simple in the land, or lease of the land, unless each spouse or former spouse who is a party to the marriage agreement or marriage separation signs and files in the land title office a cancellation or postponement notice in prescribed form.
(4) Where a spouse or former spouse
(a) cannot, after a reasonable search is made, be located,
(b) unreasonably refuses to sign or file a cancellation notice under subsection (3) or register a financing change statement, as defined in the Personal Property Security Act, under subsection (7), or
(c) is a mentally incompetent person,
the Supreme Court may, on application, order the appropriate registrar to cancel or postpone the notice of marriage agreement or separation agreement or discharge the registration under subsection (6), as the case may be.
(5) Where a cancellation or postponement notice is filed under subsection (3) or an order is made under subsection (4), the registrar shall cancel or postpone the registration of the notice of marriage agreement or separation agreement in the same manner as the registration of a charge is cancelled or postponed.
(6) Where a provision of a marriage agreement or separation agreement relates to a manufactured home, a financing statement, as defined in the Personal Property Security Act, may be registered in the personal property registry established under the Personal Property Security Act in the form and manner prescribed under that Act.
(7) Where a financing statement is registered in the personal property registry under subsection (6)
(a) sections 43 (1) to (3), (6) to (8), (12) to (15), 46 to 48, 52 and 54 of the Personal Property Security Act apply, and
(b) any security interest created after that in a manufactured home is subordinate to an interest in the manufactured home created by the marriage agreement or separation agreement unless the parties to the marriage agreement or separation agreement register a financing change statement in the personal property registry discharging or postponing the registration referred to in subsection (6) in the form and manner prescribed under the Personal Property Security Act.
(8) Where a financing statement is registered under subsection (6), the registrar of manufactured homes shall not register a transfer of a manufactured home unless each spouse or former spouse who is a party to the marriage agreement or separation agreement registers a financing change statement in the personal property registry discharging or subordinating the registration referred to in subsection (6) in the form and manner prescribed under the Personal Property Security Act.
(9) Where, immediately before the coming into force of this subsection, a notice was registered or filed under this section in the manufactured home registry office,
(a) this section, as it was immediately before the coming into force of this subsection, continues to apply to the notice before and after reregistration under paragraph (c),
(b) a security interest created under the Personal Property Security Act in the manufactured home is subordinate to an interest in the manufactured home created by the marriage agreement or separation agreement unless
(i) before the notice is reregistered under paragraph (c) the parties to the marriage agreement or separation agreement file in the manufactured home registry office a cancellation or subordination notice in the form and manner prescribed under the Manufactured Home Act, or
(ii) after the notice is reregistered under paragraph (c) the parties to the marriage agreement or separation agreement register a financing change statement in the personal property registry, discharging or subordinating the interest registered, in the form and manner prescribed under the Personal Property Security Act, and
(c) the notice shall be reregistered by the registrar of the personal property registry in the personal property registry on a date to be prescribed and after reregistration subsections (7) (a) and (8) apply.
Historical Note(s): 1978-20-49; 1978-25-333,334; 1979-2-26; 1990-11-59; 1990-53-12.
50. (1) In this section "interest of a spouse" means the interest of a spouse arising under section 43, a marriage agreement or a separation agreement.
(2) Section 29 of the Land Title Act applies to an interest of a spouse in land.
(3) Where, on the acquisition of property other than land, a person does not have actual notice of the interest of a spouse in the property the interest is not enforceable against that person.
(4) Notwithstanding subsections (2) and (3), the interest of a spouse is enforceable against the other spouse from the date the interest comes into being.
Historical Note(s): 1979-2-27.
51. Where the provisions for division of property between spouses under section 43 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
(f) any other circumstances relating to the acquisition, preservation, maintenance, improvement or use of property or the capacity or liabilities of a spouse,
the Supreme Court, on application, may order that the property covered by section 43 or the marriage agreement, as the case may be, be divided into shares fixed by the court. Additionally or alternatively the court may order that other property not covered by section 43 or the marriage agreement, as the case may be, of one spouse be vested in the other spouse.
Historical Note(s): 1978-20-51.
52. (1) In proceedings under this Part 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 51, and may make orders which are necessary, reasonable or ancillary to give effect to the determination.
(2) In an order under this section, the court may, without limiting the generality of subsection (1), do one or more of the following:
(a) declare the ownership of or right of possession to property;
(b) order that, on a division of property, title to a specified property granted to a spouse be transferred to, or held in trust for, or vested in the spouse either absolutely, for life or for a term of years;
(c) order a spouse to pay compensation to the other spouse where property has been disposed of, or for the purpose of adjusting the division;
(d) order partition or sale of property and payment to be made out of the proceeds of sale to one or both spouses in specified proportions or amounts;
(e) order that property forming all or a part of the share of either or both spouses be transferred to, or in trust for, or vested in a child;
(f) order that a spouse give security for the performance of an obligation imposed by order under this section, including a charge on property and may order that the spouse waive or release in writing any right, benefit or protection given by section 23 of the Chattel Mortgage Act or section 19 of the Sale of Goods on Condition Act; or
(g) where property is owned by spouses as joint tenants, sever the joint tenancy.
(3) Where the Supreme Court, on application, is satisfied that a spouse has made or intends to make a gift of property to a third person, or has transferred or intends to transfer property to a third person who is not a purchaser in good faith for value, for the purpose of defeating a claim to an interest in the property the other spouse may then or in the future have under this Part, the Supreme Court may make an order under this section to restrain the making of the gift or transfer, or vest all or a portion of the property in, or in trust for, the other spouse.
Historical Note(s): 1978-20-52; 1987-42-24, effective November 1, 1987 (B.C. Reg. 370/87).
53. (1) On application by a party to a proceeding under this Part, the court shall make an order restraining another party to the proceeding from disposing of a family asset or any other property at issue under this Part until or unless the other party establishes that a claim made by the applicant under this Part will not be defeated or substantially impaired by the disposal of that family asset or other property.
(2) On application by a party to a proceeding under this Part, the court may make an order for the possession, delivery, safekeeping and preservation of a family asset or other property at issue under this Part.
(3) The court may make an order under this section before notice of the application is served on the other party or may order that notice of the application be served on the other party.
(4) On application by a party to a proceeding under this Part, the court may vary or rescind an order made under this section on terms it considers appropriate.
Historical Note(s): 1989-30-17.
54. (1) This section applies to an ante nuptial or post nuptial settlement that is not a marriage agreement under this Part.
(2) The Supreme Court may, on application, not more than 2 years after an order for dissolution of marriage, for judicial separation or declaring a marriage null and void, inquire into an ante nuptial or post nuptial settlement affecting either spouse and, whether or not there are children, make any order that, in its opinion, should be made to provide for the application of all or part of the settled property for the benefit of either or both spouses or a child of a spouse or of the marriage.
(3) The Supreme Court may, on application, where circumstances warrant, extend the period during which an application may be made or power exercised under this section.
Historical Note(s): 1978-20-54.
55. (1) Where there is a conflict between this Part and the Partition of Property Act, or the Married Woman's Property Act, this Part prevails.
(2) The rights under this Part are in addition to and not in substitution for rights under equity or any other law.
Historical Note(s): 1978-20-55.
Part 4 — Maintenance and Support Obligations
55.1 In this Part
"enforcement officer" means an enforcement officer designated under section 63.1;
"maintenance order" means an order made under sections 56 to 62.
Historical Note(s): 1985-72-21, effective June 2, 1986 (B.C. Reg. 119/86).
56. (1) Each parent of a child is responsible and liable for the reasonable and necessary support and maintenance of the child, taking into account the
(a) cost of reasonable residential accommodation, housekeeping, food, clothing, education, recreation and supervision for the child;
(b) child's need for a stable and supportive environment; and
(c) financial circumstances and obligations of each person liable for the support and maintenance of the child.
(2) The making of an order against one parent for the maintenance and support of a child does not affect the liability of another parent for the maintenance and support of the child or bar the making of an order against the other parent.
Historical Note(s): 1978-20-56.
57. (1) A spouse is responsible and liable for the support and maintenance of the other spouse having regard to
(a) the role of each spouse in their family;
(b) an express or implied agreement between the spouses that one has the responsibility to support and maintain the other;
(c) custodial obligations respecting a child;
(d) the ability and capacity of, and the reasonable efforts made by, either or both spouses to support themselves; or
(e) economic circumstances.
(2) Except as provided in subsection (1), a spouse or former spouse is required to be self sufficient in relation to the other spouse or former spouse.
Historical Note(s): 1978-20-57.
58. (1) In this section "child" means an adult child of a parent and "parent" means a father or mother dependent on a child by reason of age, illness, infirmity or economic circumstances.
(2) A child is liable to maintain and support a parent having regard to the other responsibilities and liabilities and the reasonable needs of the child.
Historical Note(s): 1978-20-58.
59. (1) A person may apply for an order under this Part on his own behalf.
(2) The Attorney General may designate in writing those persons who may make applications for orders under this Part on behalf of a parent described in section 58 or on behalf of a spouse.
(3) Any person may apply for an order under this Part on behalf of a child.
(4) A spouse or parent affected by an order under this Part or a person described in subsection (1), (2) or (3) may apply for an order altering, varying or rescinding the order or cancelling or reducing arrears under it.
(5) For the purposes of section 19.2 (a) of the Guaranteed Available Income for Need Act, the Crown may apply, in its own name or in the name of an individual, for an order under this Part.
Historical Note(s): 1978-20-59; 1988-3-56.
60. (1) Where 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.
Historical Note(s): 1990-33-3.
61. (1) Subject to the Divorce Act (Canada), a court may make an order on application, or where 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 liability under section 56, 57 or 58, as the case may be, by paying to the person designated in the order the amount the court considers reasonable.
(2) Where a spouse or child will be living separate and apart from the spouse or parent against whom the application is made, the court may, as it considers appropriate adjust the amount of its order under subsection (1) to take into account the needs, means, capacities and economic circumstances of each spouse, parent or child, including
(a) the effect on the earning capacity of each spouse arising from responsibilities assumed by each spouse during cohabitation;
(b) any other source of support and maintenance for the applicant spouse or children;
(c) the desirability of the applicant spouse or child having special assistance to achieve financial independence from the spouse or parent against whom the application is made;
(d) the obligation of the spouse or parent against whom application is made to support another person; and
(e) the capacity and reasonable prospects of a spouse or child obtaining an education or training.
(3) An order under this section may also include one or more of the following:
(a) payment of an amount periodically, annually or otherwise, and either for an indefinite or limited period or until the happening of a specified event;
(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 and maintenance from the date the application in the proceeding was served on the respondent; or
(e) payment for expenses arising from and incidental to
(i) the prenatal care of the mother or child, or
(ii) the birth of a child.
(4) Where the order benefits more than one person, the court shall specify the amount payable for each.
(5) [Repealed 1988-3-57.]
Historical Note(s): 1978-20-61; 1979-2-28; 1982-8-3; 1988-3-57; 1988-36-3.
61.1 Where parentage of a child is denied in a proceeding for an order under this Part, the court may determine the parentage issue under section 61.2, on the balance of probabilities, as part of the proceeding for that order.
Historical Note(s): 1988-36-4.
61.2 (1) Where a male person denies responsibility under section 56 (1) on the basis that he is not the father of the child, the court shall, 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
(ii) by divorce where the decree nisi was granted or the divorce took effect within 300 days before the birth of the child;
(c) the person marries the mother of the child after the birth of the child and acknowledges that he is the natural father;
(d) the person was cohabiting with the mother of the child in a relationship of some permanence at the time of the birth of the child, or the child is born within 300 days after the person and the mother ceased to cohabit;
(e) the person has been found or recognized in his lifetime by a court of competent jurisdiction in Canada to be the father of the child;
(f) the person has acknowledged paternity of the child by having signed a statement under section 3 of the Vital Statistics Act;
(g) the person has acknowledged paternity of the child by having signed an agreement under section 20 of the Child Paternity and Support Act, R.S.B.C. 1979, c. 49.
(2) For the purposes of this section, where
(a) a man and woman go through a form of marriage to each other in good faith and cohabit during the marriage, and
(b) the marriage is void,
they shall be deemed to have been married during the period of cohabitation, and the marriage shall be deemed to have terminated when the period of cohabitation ended.
(3) Where circumstances give rise to a presumption or presumptions of paternity by more than one male person under this section, no presumption shall be made as to paternity.
Historical Note(s): 1988-36-4.
62. (1) Where application is made to vary or rescind a maintenance order, the court shall consider changes in the needs, means, capacities and economic circumstances of each person affected by the order and make the appropriate change, if any.
(1.1) Where application is made to reduce or cancel arrears under a maintenance order, the court may reduce or cancel the arrears but only if it is satisfied that it would be grossly unfair not to do so.
(1.2) For the purpose of subsection (1.1), the court may take into consideration
(a) the efforts the applicant has made to comply with the maintenance order,
(b) the applicant's explanation for any delay in applying for variation of the maintenance order, and
(c) any special circumstances that the court considers relevant.
(2) A spouse or former spouse receiving maintenance under an order shall make reasonable efforts to become self sufficient as required by section 57 (2) without prejudice to the continuing application, if any, of section 57 (1).
(3) Where the court finds that a spouse or former spouse is not making reasonable efforts under subsection (2), the court may reduce the amount of maintenance payable on behalf of the spouse or former spouse under a maintenance order.
Historical Note(s): 1978-20-62; 1985-72-23, effective June 2, 1986 (B.C. Reg. 119/86); 1989-30-18.
63. (1) The Provincial Court and the Supreme Court each have the powers set out in Part 4.1.
(2) The powers of the Supreme Court to enforce an order for support and maintenance are not limited to the powers set out in Part 4.1.
Historical Note(s): 1978-20-63; 1982-8-4, effective March 31, 1979; 1985-72-24, effective June 2, 1986 (B.C. Reg. 119/86); 1988-3-58.
63.1 The Lieutenant Governor in Council may designate public service employees as enforcement officers for the purposes of this Part.
Historical Note(s): 1985-72-25, effective June 2, 1986 (B.C. Reg. 119/86).
63.2 (1) On the written request of any person, an enforcement officer may, where he considers it appropriate, assist that person to obtain a maintenance order or a variation of a maintenance order or to enforce a maintenance order.
(2) A request under subsection (1) may be revoked by a written notice signed by the person who made the request.
(3) An enforcement officer may, for the purpose of assisting a person to obtain a maintenance order or a variation of a maintenance order or to enforce a maintenance order, demand from any person or public body, including the Crown, information that is in a record in the possession or control of that person or public body and that concerns
(a) the location, address or place of employment, or
(b) the location of the assets or the source of income
of the proposed respondent or person against whom the maintenance order is made.
(4) Subsection (3) does not apply in respect of
(a) personal correspondence between the person against whom assistance is requested under subsection (1) and a parent, child, spouse, brother or sister of that person,
(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.
(5) [Repealed 1988-3-59.]
(6) Notwithstanding any other enactment or any common law rule of privilege or confidentiality, any person or public body, including the Crown, that receives a demand under subsection (3) shall provide any of the demanded information that is in any record in the possession or control of the person or public body.
(7) An enforcement officer may disclose information provided under subsection (6) to a person in another jurisdiction performing functions similar to those of the enforcement officer.
Historical Note(s): 1985-72-25, effective June 2, 1986 (B.C. Reg. 119/86); 1988-3-59.
63.3 (1) Where, on application, the court is satisfied that
(a) an enforcement officer has been refused information after making a demand under section 63.2 (3), or
(b) a person needs an order under this section in order to obtain a maintenance order or a variation of a maintenance order,
the court may, notwithstanding any other enactment or any common law rule of privilege or confidentiality but subject to subsection (2), order any person or public body, including the Crown, to provide to the applicant or to an individual named by the court any information that is in any record in the possession or control of that person or public body and that concerns
(c) the location, address or place of employment, 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.
(2) The court shall not make an order under subsection (1) in respect of information described in section 63.2 (4) (b) or (c).
(3) Where the court makes an order under subsection (1) or under a similar provision in an enactment of Canada, it may make any order it considers appropriate with respect to the confidentiality to be maintained in connection with the information provided.
(4) No person shall disclose information provided under section 63.2 (6) or this section except
(a) to the extent necessary for the purpose of obtaining, varying or enforcing a maintenance order, or
(b) as provided in section 63.2 (7).
Historical Note(s): 1988-3-60.
Part 4.1 — Reciprocal Enforcement of Maintenance Orders
[Note re Part 4.1: For convenience, a list of the jurisdictions declared to be reciprocating states for the purposes of this Act is printed following this Act. See also draft uniform Reciprocal Enforcement of Maintenance Orders Act to be found as stated in the Users Guide to Statutes in the beginning of this volume.]
70. In this Part
"Attorney General" includes a person authorized in writing by the Attorney General to act for him in the performance of a power or duty under this Part;
"certified copy" means, in relation to a document of a court, the original or a copy of the document certified by the original or facsimile signature of a proper officer of the court to be a true copy;
"claimant" means a person who has or is alleged to have a right to maintenance;
"confirmation order" means a confirmation order made under this Part or under the corresponding enactment of a reciprocating state;
"court" means an authority having jurisdiction to make an order;
"final order" means an order made in a proceeding of which the claimant and respondent had proper notice and in which they had an opportunity to be present or represented and includes
(a) the maintenance provisions in a written agreement between a claimant and a respondent where those provisions are enforceable in the state in which the agreement was made as if contained in an order of a court of that state,
(b) a confirmation order made in a reciprocating state, and
(c) a document deemed under section 70.6 to be a final order;
"maintenance" includes support or alimony;
"order" means an order or determination of a court providing for the payment of money as maintenance by the respondent named in the order for the benefit of the claimant named in the order, and includes the maintenance provisions of a parentage order;
"provisional order" means
(a) an order of a court in the Province that has no effect in the Province until confirmed by a court in a reciprocating state or a corresponding order made in a reciprocating state for confirmation in the Province, and
(b) a document deemed under section 70.6 to be a provisional order;
"reciprocating state" means a state declared, under section 70.91 or under an enactment replaced by this Part or repealed by this Act, to be a reciprocating state and includes a province of Canada;
"registered order" means
(a) a final order made in a reciprocating state and filed, under this Part or under an enactment replaced by this Part or repealed by this Act, with a court in the Province,
(b) a final order deemed, under section 70.1 (3) or under an enactment replaced by this Part or repealed by this Act, to be a registered order, or
(c) a confirmation order that is filed under section 70.21 (8) (b);
"registration court" means the court in the Province
(a) in which a registered order is filed under this Part, or
(b) that deemed a final order to be a registered order under this Part or under an enactment replaced by this Part or repealed by this Act;
"respondent" means a person in the Province or in a reciprocating state
(a) who has or is alleged to have an obligation to pay maintenance for the benefit of a claimant, or
(b) against whom a proceeding under this Part, or a corresponding enactment of a reciprocating state, is commenced by or on behalf of a claimant;
"state" includes a political subdivision of a state and an official agency of a state.
Historical Note(s): 1985-72-35, effective August 1, 1986 (B.C. Reg. 119/86); 1988-36-5.
70.1 (1) Where the Attorney General receives a certified copy of a final order made in a reciprocating state before or after this Part comes into force with information that the respondent is in the Province, the Attorney General shall designate a court in the Province for the purposes of the registration of the final order under this Act and its enforcement under the Family Maintenance Enforcement Act.
(2) On receipt of a final order transmitted to a court under subsection (1) or under a provision in a reciprocating state corresponding to section 70.21 (8) (a), the proper officer of the court shall file the final order with the court and give notice of the registration of the final order to the respondent.
(3) Where a final order is made in a court in the Province before or after this Part comes into force and the claimant subsequently leaves the Province and is apparently resident in a reciprocating state, the court that made the order shall, on the written request of the claimant, the respondent or the Attorney General, deem the order to be a registered order.
(4) A registered order varied in a manner consistent with this Part continues to be a registered order.
(5) A respondent may, within one month after receiving notice of the registration of a registered order, apply to the registration court to set the registration aside.
(6) On application under subsection (5), the registration court shall set aside the registration if it determines that the order was obtained by fraud or error or was not a final order.
(7) An order determined not to be a final order and set aside under subsection (6) may be dealt with by the registration court under section 70.21 as a provisional order.
(8) Where an order purporting to be a final order is made by a court in a reciprocating state and the order is not enforceable in the Province under the conflict of laws rules of the Province, the court in the Province may, in its discretion, deem the order to be a provisional order and deal with it under section 70.21.
Historical Note(s): 1985-72-35, effective August 1, 1986 (B.C. Reg. 119/86); 1988-3-62.
70.11 (1) On application by a claimant before or after this Part comes into force, a court may, without notice to and in the absence of a respondent, make a provisional order against the respondent.
(2) An order under subsection (1) may include only the maintenance provisions the court could have included in a final order in a proceeding in the Province of which the respondent had notice but in which he failed to appear.
(3) Where a provisional order is made, a proper officer of the court shall send to the Attorney General for transmission to a reciprocating state
(a) 3 certified copies of the provisional order,
(b) a certified transcript of the evidence given in the proceeding or a sworn document setting out or summarizing the evidence given in the proceeding,
(c) a copy of the enactments under which the respondent is alleged to have an obligation to maintain the claimant, and
(d) a statement giving available information respecting identification, location, income and assets of the respondent.
(4) Where, during a proceeding for a confirmation order, a court in a reciprocating state remits the matter back for further evidence to the court in the Province that made the provisional order, the court in the Province shall, after giving notice to the claimant, receive further evidence.
(5) Where evidence is received under subsection (4), a proper officer of the court shall forward to the court in the reciprocating state a certified transcript of the evidence or a sworn document setting out or summarizing the evidence with any recommendations the court in the Province considers appropriate.
(6) Where a provisional order made under this section comes before a court in a reciprocating state and confirmation is denied in respect of one or more claimants, the court in the Province that made the provisional order may, on application within 6 months from the denial of confirmation, reopen the matter and receive further evidence and make a new provisional order for a claimant in respect of whom confirmation was denied.
Historical Note(s): 1985-72-35, effective August 1, 1986 (B.C. Reg. 119/86).
70.2 (1) Where the parentage of a child is in issue and has not previously been determined by a court of competent jurisdiction, the parentage may be determined as part of a maintenance proceeding under this Part, and section 61.2 applies.
(2) Where the respondent disputes parentage in the course of a proceeding to confirm a provisional order for maintenance, the matter of parentage may be determined even though the provisional order makes no reference to parentage.
(3) A determination of parentage under this section has effect only for the purpose of maintenance proceedings under this Part.
Historical Note(s): 1985-72-35, effective August 1, 1986 (B.C. Reg. 119/86); 1988-36-6.
70.21 (1) Where the Attorney General receives from a reciprocating state documents corresponding to those described in section 70.11 (3) with information that the respondent is in the Province, the Attorney General shall designate a court in the Province for the purpose of proceedings under this section and forward the documents to that court.
(2) On receipt of the documents referred to in subsection (1), the court shall, whether the provisional order was made before or after this Part came into force, issue a summons or warrant requiring the respondent to appear and show cause why the provisional order should not be confirmed and shall proceed with the hearing, whether or not the respondent is present, taking into consideration a certified copy of the evidence given in the proceeding in the reciprocating state or a sworn document setting out or summarizing that evidence.
(3) Where the respondent apparently is outside the territorial jurisdiction of the court and will not return, a proper officer of the court, on receipt of documents under subsection (1), shall return the documents to the Attorney General with available information respecting the whereabouts and circumstances of the respondent.
(4) At the conclusion of a proceeding under this section, the court may make a confirmation order in the amount it considers appropriate or make an order refusing maintenance to any claimant.
(5) Where the court makes a confirmation order for periodic maintenance payments, the court may direct that the payments begin from a date not earlier than the date of the provisional order.
(6) The court, before making a confirmation order in a reduced amount or before refusing maintenance, shall decide whether to remit the matter back for further evidence to the court that made the provisional order.
(7) Where a court remits a matter under subsection (6), it may make an interim order for maintenance against the respondent.
(8) At the conclusion of a proceeding under this section, the court, or a proper officer of the court, shall
(a) forward a certified copy of the order to the court that made the provisional order and to the Attorney General,
(b) file the confirmation order, where one is made, and
(c) where an order refusing maintenance or a confirmation order reducing maintenance is made under subsection (4), give written reasons to the court that made the provisional order and to the Attorney General.
Historical Note(s): 1985-72-35, effective August 1, 1986 (B.C. Reg. 119/86).
70.3 (1) Where the law of the reciprocating state is pleaded to establish the obligation of the respondent to maintain a claimant resident in that state, the court in the Province shall take judicial notice of that law and apply it.
(2) An enactment of a reciprocating state may be pleaded and proved for the purposes of this section by producing a copy of the enactment received from the reciprocating state.
(3) Where the law of the reciprocating state is not pleaded under subsection (1), the court in the Province shall
(a) make an interim order for maintenance against the respondent where appropriate,
(b) adjourn the proceeding for a period not exceeding 90 days, and
(c) request the Attorney General to notify the appropriate officer of the reciprocating state of the requirement to plead and prove the applicable law of that state if that law is to be applied.
(4) Where the law of the reciprocating state is not pleaded after an adjournment under subsection (3), the court shall apply the law of the Province.
(5) Where the law of a reciprocating state requires the court in the Province to provide the court in the reciprocating state with a statement of the grounds on which the making of the confirmation order might have been opposed if the respondent were served with a summons or warrant and had appeared at the hearing of the court in the Province, the Attorney General shall be deemed to be the proper officer of the court for the purposes of making and providing the statement of the grounds.
Historical Note(s): 1985-72-35, effective August 1, 1986 (B.C. Reg. 119/86).
70.31 (1) The provisions of this Part respecting provisional orders and confirmation orders apply to proceedings, except under subsection (5), for the variation or rescission of registered orders.
(2) This section does not
(a) authorize a Provincially appointed judge to vary or rescind a registered order made in Canada by a federally appointed judge, or
(b) allow a registered order originally made under a federal enactment to be varied or rescinded except as authorized by federal enactment.
(3) Notwithstanding subsection (2), a Provincially appointed judge may make a provisional order to vary or rescind a registered order made in Canada under a Provincial enactment by a federally appointed judge.
(4) Subject to subsections (2) and (3), a registration court has jurisdiction to vary or rescind a registered order where both claimant and respondent accept its jurisdiction.
(5) Where the respondent is ordinarily resident in the Province, a registration court may, on application by the claimant, vary or rescind a registered order.
(6) Where a claimant who is ordinarily resident in the Province applies for a variation or rescission of a final order and the respondent is apparently ordinarily resident in a reciprocating state, the court may make a provisional order of variation or rescission and section 70.11 applies to the proceeding.
(7) A registration court may make a confirmation order for the variation or rescission of a registered order where
(a) the respondent is ordinarily resident in the Province,
(b) the claimant who initiated the application for variation or rescission in a reciprocating state is ordinarily resident in the reciprocating state,
(c) a certified copy of a provisional order of variation or rescission made by a court in a reciprocating state is received by the registration court through the Attorney General, and
(d) the respondent is given notice of the proceeding and an opportunity to appear.
(8) A registration court may, on application by the respondent, make a provisional order varying or rescinding a registered order where
(a) the respondent is ordinarily resident in the Province, and
(b) the claimant is ordinarily resident in a reciprocating state in which the order was first made,
and section 70.11 applies to the proceeding.
(9) A registration court may make a confirmation order for the variation or rescission of a registered order where
(a) the respondent who initiated the application for variation or rescission in a reciprocating state is ordinarily resident in the reciprocating state,
(b) the claimant is ordinarily resident in the Province,
(c) a certified copy of a provisional order of variation or rescission made by a court in the reciprocating state is received by the registration court through the Attorney General, and
(d) the claimant is given notice of the proceeding and an opportunity to appear.
(10) A registration court may, on application by the respondent, vary or rescind a registered order where
(a) the respondent is ordinarily resident in the Province,
(b) the claimant is ordinarily resident in a reciprocating state other than the state in which the order was first made, and
(c) the registration court, in the course of the proceeding, remits the matter to the court nearest to the place where the claimant lives or works for the purpose of obtaining evidence on behalf of the claimant,
or where
(d) the respondent is ordinarily resident in the Province,
(e) the claimant is not ordinarily resident in a reciprocating state, and
(f) the claimant is given notice of the proceeding.
Historical Note(s): 1985-72-35, effective August 1, 1986 (B.C. Reg. 119/86).
70.4 Where an order originally made in the Province is varied or rescinded in a reciprocating state under the law in that state corresponding to section 70.31, the order shall be deemed to be so varied or rescinded in the Province.
Historical Note(s): 1985-72-35, effective August 1, 1986 (B.C. Reg. 119/86).
70.41 (1) The registration court has jurisdiction to enforce a registered order under the Family Maintenance Enforcement Act notwithstanding that the order
(a) was made in a proceeding in respect of which the registration court would not have had jurisdiction, or
(b) is of a kind that the registration court has no jurisdiction to make.
(2) For the purposes of section 63.2 a request shall be deemed to have been made in respect of registered orders and interim orders under this Part.
(3) A registered order has, from the date it is filed or deemed to be registered, the same effect as if it had been a final order originally made by the registration court and may, both with respect to arrears accrued before registration, and with respect to obligations accruing after registration, be enforced, varied or rescinded as provided in the Family Maintenance Enforcement Act or this Part, whether the order is made before or after this Part or that Act comes into force.
(4) Where a registered order is registered with the Supreme Court, it may be enforced as if it were an order of that court.
(5) Where a proceeding is brought under the Family Maintenance Enforcement Act to enforce a registered order, it is not necessary to prove that the respondent was served with the order.
(6) Where a proceeding is brought under the Family Maintenance Enforcement Act to enforce a registered order, the registration court may, before making an order, remit the matter back for further evidence to the court that made the order.
(7) Where a registered order is being enforced under the Family Maintenance Enforcement Act and the registration court finds that the order has been varied by a court subsequent to the date of registration, the registration court shall record the fact of the variation and enforce the order as varied.
Historical Note(s): 1985-72-35, effective August 1, 1986 (B.C. Reg. 119/86); 1988-3-63.
70.5 Where the Province, another province of Canada, a state or a political subdivision or official agency of the Province, another province of Canada or a state is providing or has provided support to a claimant, it has, for the purpose of obtaining reimbursement or for the purpose of obtaining maintenance for the claimant, the same right as the claimant to bring proceedings under this Part.
Historical Note(s): 1985-72-35, effective August 1, 1986 (B.C. Reg. 119/86).
70.51 (1) The Attorney General shall, on request in writing by a claimant or an officer or court of a reciprocating state, take all reasonable measures to enforce an order made or registered under this Part.
(2) On receipt of a document for transmission under this Part to a reciprocating state, the Attorney General shall transmit the document to the proper officer of the reciprocating state.
(3) The Attorney General may, in writing, authorize a person to exercise or perform a power or duty given to the Attorney General under this Part.
Historical Note(s): 1985-72-35, effective August 1, 1986 (B.C. Reg. 119/86).
70.6 (1) Where a document signed by a presiding officer of the court in a reciprocating state or a certified copy of the document is received by a court in the Province through the Attorney General, the court in the Province may deem the document to be a provisional order or a final order, according to the tenor of the document, and proceed accordingly.
(2) Where in a proceeding under this Part or the Family Maintenance Enforcement Act a document from a court in the reciprocating state contains terminology different from the terminology of this Part or customarily in use in the court in the Province, the court in the Province shall give a broad and liberal interpretation to the terminology so as to give effect to the document.
(3) For the purposes of this Part or the Family Maintenance Enforcement Act, it shall be presumed, unless the contrary is established, that procedures taken in a reciprocating state have been regular and complete, that the court making an order in a reciprocating state had jurisdiction to do so and that the jurisdiction is recognized under the conflict of laws rules of the Province.
Historical Note(s): 1985-72-35, effective August 1, 1986 (B.C. Reg. 119/86); 1988-3-64.
70.61 (1) Where confirmation of a provisional order or registration of a final order is sought and the documents received by a court refer to amounts of maintenance or arrears not expressed in Canadian currency, a proper officer of the court shall
(a) obtain from a bank a quotation for the equivalent amounts in Canadian currency at a rate of exchange applicable on the day the order was made or last varied, and
(b) certify on the order the amounts in Canadian currency.
(2) The amounts in Canadian currency certified on the order by the proper officer of the court under subsection (1) shall be deemed to be the amounts of maintenance or arrears referred to in the order.
Historical Note(s): 1985-72-35, effective August 1, 1986 (B.C. Reg. 119/86).
70.7 Where an order or other document received by a court is not in English, the order or other document shall have attached to it from the other jurisdiction a translation in English approved by the court, and the order or other document shall be deemed to be in English for the purposes of this Part and the Family Maintenance Enforcement Act.
Historical Note(s): 1985-72-35, effective August 1, 1986 (B.C. Reg. 119/86); 1988-3-65.
70.71 (1) Subject to subsections (2) and (3), a claimant, respondent or the Attorney General may appeal any ruling, decision or order of a court in the Province under this Part, and section 16 applies in respect of the appeal.
(2) A person resident in the reciprocating state and entitled to appear in the court in the reciprocating state in the proceeding from which the appeal is made, or the Attorney General on that person's behalf, may appeal within 75 days after the making of the ruling, decision or order of the court in the Province from which the appeal is made.
(3) A person responding to an appeal under subsection (2) may appeal a ruling, decision or order in the same proceeding within 15 days after receipt of notice of the appeal.
(4) The Attorney General may
(a) respond to an appeal under subsection (2),
(b) appeal a ruling, decision or order in the same proceeding within 15 days after receipt of the notice of appeal, and
(c) act on behalf of a person resident in a reciprocating state who is responding to an appeal under subsection (3).
Historical Note(s): 1985-72-35, effective August 1, 1986 (B.C. Reg. 119/86).
70.8 (1) In a proceeding under this Part or the Family Maintenance Enforcement Act, a document purporting to be signed by a judge, officer of a court or public officer in a reciprocating state shall, unless the contrary is proved, be proof of the appointment, signature and authority of the person who signed it.
(2) Statements in writing sworn by the maker, depositions or transcripts of evidence taken in a reciprocating state may be received in evidence by a court in the Province under this Part or the Family Maintenance Enforcement Act.
Historical Note(s): 1985-72-35, effective August 1, 1986 (B.C. Reg. 119/86); 1988-3-66.
70.9 Where a proper officer of a court in the Province believes that a respondent under a final order or registered order has ceased to reside in the Province and is resident in or proceeding to another province of Canada or a state, the officer shall inform the Attorney General and the court that made the order of any information he has respecting the whereabouts and circumstances of the respondent and, on request by the Attorney General, a proper officer of the court that made the order or the claimant, shall send to the court or person indicated in the request
(a) 3 certified copies of the final order or registered order as made in or filed with the court in the Province, and
(b) a sworn certificate of arrears.
Historical Note(s): 1985-72-35, effective August 1, 1986 (B.C. Reg. 119/86).
70.91 The Lieutenant Governor in Council may, where satisfied that laws are or will be in effect in a state for the reciprocal enforcement of orders made in the Province on a basis substantially similar to this Part, by regulation, declare that state to be a reciprocating state.
Historical Note(s): 1985-72-35, effective August 1, 1986 (B.C. Reg. 119/86).
70.92 This Part does not impair any other remedy available to a claimant or another person, the Province, another province of Canada, a state or a political subdivision or official agency of the Province, another province of Canada or a state.
Historical Note(s): 1985-72-35, effective August 1, 1986 (B.C. Reg. 119/86).
70.93 An order made under an enactment replaced by this Part or repealed by this Act continues, insofar as it is not inconsistent with this Part, to be valid and enforceable, and may be rescinded, varied, enforced or otherwise dealt with under this Part or the Family Maintenance Enforcement Act.
Historical Note(s): 1985-72-35, effective August 1, 1986 (B.C. Reg. 119/86); 1988-3-68.
Part 5 — Procedure and Agreements
72. Subject to this Act and the regulations, an application under this Act to the Provincial Court shall be heard summarily or in the manner the court may direct.
Historical Note(s): 1978-20-72.
74. (1) In this section
"child" means a person under the age of 19 years who is acknowledged in a written agreement filed under this section to be the responsibility of a party to the agreement;
"parent" means a person who acknowledges in a written agreement filed under this section a responsibility for a child;
"spouse" means a husband or a wife and includes a person who acknowledges in a written agreement filed under this section that he is or was a spouse of another person, whether or not they are or were married.
(2) A provision respecting the
(a) custody of or access to a child by a parent, or
(b) maintenance of a child by a parent or of a person by his spouse,
contained in a written agreement made by a parent or by a spouse before or after March 31, 1979 is enforceable, subject to subsection (3), under this Act or the Family Maintenance Enforcement Act, as the case may be, as if the provision were contained in an order made under this Act.
(3) No provision referred to in subsection (2) shall be enforced unless
(a) every person, except a child, against whom the provision is being enforced is a party to the written agreement;
(b) every person, except a child, against whom the provision is being enforced completes, before a commissioner for taking affidavits under section 63, 67 or 68 of the Evidence Act, a consent in prescribed form; and
(c) a signed copy of the written agreement, and a signed copy of every consent under paragraph (b), are filed, before the application to enforce the provision is made, with the Provincial Court.
(4) A provision that is referred to in subsection (2) and is enforceable under this Act or the Family Maintenance Enforcement Act may at any time be altered, varied or rescinded by
(a) a new agreement entered into by the parties and filed in accordance with subsections (2) and (3); or
(b) the Provincial Court, on application, in the same manner under this Act as an application for an alteration, variation or rescission of a like provision in an order of that court.
(5) The filing of a written agreement under this section does not restrict or prohibit a court from making an order for the same relief as is provided for in the agreement.
(6) [Repealed 1988-3-72.]
(7) A written agreement filed under section 2 of the Unified Family Court Act before March 31, 1979 is a written agreement under this section.
Historical Note(s): 1978-20-74; 1988-3-69 to 72; 1989-30-21.
74.1 (1) Where 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,
is filed in the Supreme Court in accordance with the Supreme Court Rules together with any consents or other documents required by those rules, the provision is enforceable under this Act or the Family Maintenance Enforcement Act as if it were contained in an order made under this Act.
(2) This section applies in respect of an agreement made before or after this section comes into force.
(3) The definitions in section 74 (1) apply in this section.
Historical Note(s): 1989-30-22.
Part 6 — Miscellaneous and Transitional
75. (1) No action shall be maintained for restitution of conjugal rights, loss of consortium, criminal conversation or jactitation of marriage.
(2) No action shall be maintained for
(a) enticement of a spouse,
(b) harbouring of a spouse, or
(c) breach of promise of marriage.
(3) Subsection (2) applies whether or not the cause of action arose before that subsection came into force, but an action commenced before it came into force may be continued notwithstanding that subsection.
(4) Where in a proceeding for judicial separation or dissolution of marriage on grounds of adultery, the person with whom the adultery is alleged to have been committed is served with notice of the proceedings and adultery is proved, the court may order that person to pay all or a part of the cost of the proceeding.
Historical Note(s): 1978-20-75; 1985-72-36, effective June 2, 1986 (B.C. Reg. 119/86).
76. [Repealed 1985-72-37, effective June 2, 1986 (B.C. Reg. 119/86), see transitional provision, 1985-72-40, effective June 2, 1986 (B.C. Reg. 119/86). Note: "after section 36" of 1985-72-40 should read "after section 37".]
77. (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 having jurisdiction in those matters.
(2) A court may make an order under this section respecting property that is owned or leased by one or both spouses and is or has been
(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
(b) to the exclusion of the other spouse may use all or part of the personal property at the family residence.
(4) An order under subsection (3) does not authorize the spouse to materially alter the substance of the family residence or personal property. A spouse does not acquire a proprietary interest on the making of an order under this section.
(5) Subject to section 78, a right of a spouse to exclusive occupancy or use ordered under this section shall not continue after the rights of the other spouse, or of both spouses, as owner or lessee are terminated.
(6) Nothing in this section prevents the filing of an entry under the Land (Spouse Protection) Act.
Historical Note(s): 1978-20-77; 1979-2-30; 1987-42-25.
78. Where an order for exclusive occupancy or use has been made under section 77, 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 77.
Historical Note(s): 1978-20-78; 1979-2-31.
79. (1) A court may, on application, order that, while the spouses continue to live separate and apart, one spouse shall not enter premises while the premises are occupied by the other spouse or a child in the custody of the other spouse.
(2) Subsection (1) applies whether or not the spouse against whom the order is made owns or has a right to possession of the premises.
Historical Note(s): 1978-20-79; 1979-2-32.
80. (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, 1985 (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
(a) shall be considered an unmarried person in respect of property, the right to contract, and rights and obligations in civil proceedings; and
(b) is not, except where the liability arose during marriage, liable for a contract the other enters into, or for a wrongful act or omission by the other, or for costs incurred by the other in a proceeding.
(2) Notwithstanding subsection (1), where a person is in arrears under an order for alimony or support and maintenance, the person is also liable to a third person for necessaries supplied by the third person to a child or former husband or wife who is the beneficiary under the order.
Historical Note(s): 1978-20-80; 1987-42-23.
81. (1) A person commits an offence by refusing or neglecting, without reasonable excuse, to comply with an order made against him under sections 36.1, 37, 77 or 79.
(1.1) Any person who
(a) contravenes section 37.1 (3) or 63.2 (6), or
(b) without reasonable excuse, refuses or neglects to comply with an order made under section 37.2 (1) or 63.3 (1)
commits an offence.
(2) A person who, without lawful excuse, interferes with the custody of, or access to, a child in respect of whom an order for custody or access was made or is enforceable under this Act commits an offence.
(2.1) A person commits an offence if he
(a) withholds information demanded under section 63.2 (3),
(b) contravenes section 37.3 or 63.3 (4), or
(c) knowingly provides to an enforcement officer false information pertaining to default or arrears under a maintenance order.
(3) An order, certified by a proper officer of the court that made the order, is proof of the order in a prosecution under this section.
Historical Note(s): 1978-20-81; 1982-8-7; 1985-72-38, effective June 2, 1986 (B.C. Reg. 119/86); 1987-60-6; 1988-3-73.
82. The Lieutenant Governor in Council may make regulations.
Historical Note(s): 1978-20-82.
83. (1) An order or agreement made or filed under an enactment repealed by this Act continues, in so far as it is not inconsistent with this Act, to be valid and enforceable, and may be rescinded, varied, enforced or otherwise dealt with under this Act.
(2) Where an enactment, regulation, order or other document mentions or refers to an enactment repealed by this Act, the mention or reference shall be deemed to be to this Act.
(3) Where an order for dissolution of marriage or judicial separation, or declaring a marriage to be null and void, is made on or before March 31, 1979, section 8 of the Family Relations Act, S.B.C. 1972, c. 20, applies to the spouses and their property notwithstanding the repeal of that section.
(4) Any proceeding taken or order, declaration or designation made or any other thing done under or for the purpose of Part 2 of the Family Relations Act Rules and Regulations, published as B.C. Reg. 141/79, shall be conclusively deemed to have been taken, made or done under Part 4.1 of this Act.
(5) An order made under the Child Paternity and Support Act, R.S.B.C. 1979, c. 49, continues to be valid and is enforceable as an order under this Act, and may be rescinded, varied or otherwise dealt with under this Act.
(6) An order made under section 8 (1) of the Child Paternity and Support Act in favour of the Superintendent of Family and Child Service designated under the Family and Child Service Act shall be deemed to have been made in favour of the mother of the child, and proceedings may be brought in the mother's name in place of the superintendent.
(7) A provision contained in a written agreement made under section 20 (a) or (b) of the Child Paternity and Support Act may, subject to subsection (10) and without compliance with section 74 (3) (b) or (c), be enforced, altered, varied, rescinded or otherwise dealt with as if it were contained in a written agreement that is enforceable under section 74.
(8) A provision contained in a written agreement made under section 20 (c) of the Child Paternity and Support Act may, subject to subsection (10) and without compliance with section 74 (3) (b) or (c), be enforced as if it were contained in a written agreement that is enforceable under section 74.
(9) The provisions of an agreement referred to in subsection (7) or (8) that favour the Superintendent of Family and Child Service designated under the Family and Child Service Act shall be deemed to have been made in favour of the mother of the child, and proceedings may be brought in the mother's name in place of the superintendent.
(10) A written agreement made under section 20 (c) of the Child Paternity and Support Act is a bar to an application for an order under this Act for the maintenance of the child named in the agreement.
(11) Subject to subsection (10), a provision contained in a written agreement made under section 20 of the Child Paternity and Support Act does not restrict or prohibit a court from making an order for the same relief as provided for in the agreement.
Historical Note(s): 1978-20-83; 1982-8-8, effective March 31, 1979; 1988-36-7; 1989-30-23.
84. This Act is retroactive to the extent necessary to give effect to its provisions.
Historical Note(s): 1978-20-84.
Convention on the Civil Aspects of International Child Abduction
Printed for convenience; see Family Relations Act, s. 42.1, enacted 1982-8-1, effective December 1, 1983]
The States signatory to the present Convention.
Firmly convinced that the interests of children are of paramount importance in matters relating to their custody.
Desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection or rights of access.
Have resolved to conclude a Convention to this effect, and have agreed upon the following provisions —
Chapter I — Scope of the Convention
Article 1
The objects of the present Convention are —
(a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
(b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.
Article 2
Contracting States shall take all appropriate measures to secure within their territories the implementation of the objects of the Convention. For this purpose they shall use the most expeditious procedures available.
Article 3
The removal or the retention of a child is to be considered wrongful where -
(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
(b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
The rights of custody mentioned in sub-paragraph (a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.
Article 4
The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years.
Article 5
For the purposes of this Convention —
(a) "rights of custody" shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence;
(b) "rights of access" shall include the right to take a child for a limited period of time to a place other than the child's habitual residence.
Chapter II — Central Authorities
Article 6
A Contracting State shall designate a Central Authority to discharge the duties which are imposed by the Convention upon such authorities.
Federal States, States with more than one system of law or States having autonomous territorial organizations shall be free to appoint more than one Central Authority and to specify the territorial extent of their powers. Where a State has appointed more than one Central Authority, it shall designate the Central Authority to which applications may be addressed for transmission to the appropriate Central Authority within that State.
Article 7
Central Authorities shall co-operate with each other and promote co-operation amongst the competent authorities in their respective States to secure the prompt return of children and to achieve the other objects of this Convention.
In particular, either directly or through any intermediary, they shall take all appropriate measures —
(a) to discover the whereabouts of a child who has been wrongfully removed or retained;
(b) to prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures;
(c) to secure the voluntary return of the child or to bring about an amicable resolution of the issues;
(d) to exchange, where desirable, information relating to the social background of the child;
(e) to provide information of a general character as to the law of their State in connection with the application of the Convention;
(f) to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organizing or securing the effective exercise of rights of access;
(g) where the circumstances so require, to provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisers;
(h) to provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child;
(i) to keep each other informed with respect to the operation of this Convention and, as far as possible, to eliminate any obstacles to its application.
Chapter III — Return of Children
Article 8
Any person, institution or other body claiming that a child has been removed or retained in breach of custody rights may apply either to the Central Authority of the child's habitual residence or to the Central Authority of any other Contracting State for assistance in securing the return of the child.
The application shall contain —
(a) information concerning the identity of the applicant, of the child and of the person alleged to have removed or retained the child;
(b) where available, the date of birth of the child;
(c) the grounds on which the applicant's claim for return of the child is based;
(d) all available information relating to the whereabouts of the child and the identity of the person with whom the child is presumed to be.
The application may be accompanied or supplemented by -
(e) an authenticated copy of any relevant decision or agreement;
(f) a certificate or an affidavit emanating from a Central Authority, or other competent authority of the State of the child's habitual residence, or from a qualified person, concerning the relevant law of that State;
(g) any other relevant document.
Article 9
If the Central Authority which receives an application referred to in Article 8 has reason to believe that the child is in another Contracting State, it shall directly and without delay transmit the application to the Central Authority of that Contracting State and inform the requesting Central Authority, or the applicant, as the case may be.
Article 10
The Central Authority of the State where the child is shall take or cause to be taken all appropriate measures in order to obtain the voluntary return of the child.
Article 11
The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of the children.
If the judicial or administratrive authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. If a reply is received by the Central Authority of the requested State, that Authority shall transmit the reply to the Central Authority of the requesting State, or to the applicant, as the case may be.
Article 12
Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.
The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.
Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.
Article 13
Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that —
(a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or
(b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.
In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence.
Article 14
In ascertaining whether there has been a wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested State may take notice directly of the law of, and of judicial or administrative decisions, formally recognized or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable.
Article 15
The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. The Central Authorities of the Contracting States shall so far as practicable assist applicants to obtain such a decision or determination.
Article 16
After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice.
Article 17
The sole fact that a decision relating to custody has been given in or is entitled to recognition in the requested State shall not be a ground for refusing to return a child under this Convention, but the judicial or administrative authorities of the requested State may take account of the reasons for that decision in applying this Convention.
Article 18
The provisions of this Chapter do not limit the power of a judicial or administrative authority to order the return of the child at any time.
Article 19
A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.
Article 20
The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.
Chapter IV — Rights of Access
Article 21
An application to make arrangements for organizing or securing the effective exercise of rights of access may be presented to the Central Authorities of the Contracting States in the same way as an application for the return of a child.
The Central Authorities are bound by the obligations of co-operation which are set forth in Article 7 to promote the peaceful enjoyment of access rights and the fulfilment of any conditions to which the exercise of those rights may be subject. The Central Authorities shall take steps to remove, as far as possible, all obstacles to the exercise of such rights.
The Central Authorities, either directly or through intermediaries, may initiate or assist in the institution of proceedings with a view to organizing or protecting these rights and securing respect for the conditions to which the exercise of these rights may be subject.
Chapter V — General Provisions
Article 22
No security, bond or deposit, however described, shall be required to guarantee the payment of costs and expenses in the judicial or administrative proceedings falling within the scope of this Convention.
Article 23
No legalization or similar formality may be required in the context of this Convention.
Article 24
Any application, communication or other document sent to the Central Authority of the requested State shall be in the original language, and shall be accompanied by a translation into the official language or one of the official languages of the requested State or, where that is not feasible, a translation into French or English.
However, a Contracting State may, by making a reservation in accordance with Article 42, object to the use of either French or English, but not both, in any application, communication or other document sent to its Central Authority.
Article 25
Nationals of the Contracting States and persons who are habitually resident within those States shall be entitled in matters concerned with the application of this Convention to legal aid and advice in any other Contracting State on the same conditions as if they themselves were nationals of and habitually resident in that State.
Article 26
Each Central Authority shall bear its own costs in applying this Convention.
Central Authorities and other public services of Contracting States shall not impose any charges in relation to applications submitted under this Convention. In particular, they may not require any payment from the applicant towards the costs and expenses of the proceedings or, where applicable, those arising from the participation of legal counsel or advisers. However, they may require the payment of the expenses incurred or to be incurred in implementing the return of the child.
However, a Contracting State may, by making a reservation in accordance with Article 42, declare that it shall not be bound to assume any costs referred to in the preceding paragraph resulting from the participation of legal counsel or advisers or from court proceedings, except insofar as those costs may be covered by its system of legal aid and advice.
Upon ordering the return of a child or issuing an order concerning rights of access under this Convention, the judicial or administrative authorities may, where appropriate, direct the person who removed or retained the child, or who prevented the exercise or rights of access, to pay necessary expenses incurred by or on behalf of the applicant, including travel expenses, any costs incurred or payments made for locating the child, the costs of legal representation of the applicant, and those of returning the child.
Article 27
When it is manifest that the requirements of this Convention are not fulfilled or that the application is otherwise not well founded, a Central Authority is not bound to accept the application. In that case, the Central Authority shall forthwith inform the applicant or the Central Authority through which the application was submitted, as the case may be, of its reasons.
Article 28
A Central Authority may require that the application be accompanied by a written authorization empowering it to act on behalf of the applicant, or to designate a representative so to act.
Article 29
This Convention shall not preclude any person, institution or body who claims that there has been a breach of custody or access rights within the meaning of Article 3 or 21 days from applying directly to the judicial or administrative authorities of a Contracting State, whether or not under the provisions of this Convention.
Article 30
Any application submitted to the Central Authorities or directly to the judicial or administrative authorities of a Contracting State in accordance with the terms of this Convention, together with documents and any other information appended thereto or provided by a Central Authority, shall be admissible in the courts or administrative authorities of the Contracting States.
Article 31
In relation to a State which in matters of custody of children has two or more systems of law applicable in different territorial units —
(a) any reference to habitual residence in that State shall be construed as referring to habitual residence in a territorial unit of that State;
(b) any reference to the law of the State of habitual residence shall be construed as referring to the law of the territorial unit of that State where the child habitually resides.
Article 32
In relation to a State which in matters of custody of children has two or more systems of law applicable to different categories of persons, any reference to the law of that State shall be construed as referring to the legal system specified by the law of that State.
Article 33
A State within which different territorial units have their own rules of law in respect of custody of children shall not be bound to apply this Convention where a State with a unified system of law would not be bound to do so.
Article 34
This Convention shall take priority in matters within its scope over the Convention of 5 October 1961 concerning the powers of authorities and the law applicable in respect of the protection of minors, as between Parties to both Conventions. Otherwise the present Convention shall not restrict the application of an international instrument in force between the State of origin and the State addressed or other law of the State addressed for the purposes of obtaining the return of a child who has been wrongfully removed or retained or of organizing access rights.
Article 35
This Convention shall apply as between Contracting States only to wrongful removals or retentions occurring after its entry into force in those States.
Where a declaration has been made under Article 39 or 40, the reference in the preceding paragraph to a Contracting State shall be taken to refer to the territorial unit or units in relation to which this Convention applies.
Article 36
Nothing in this Convention shall prevent two or more Contracting States, in order to limit the restrictions to which the return of the child may be subject, from agreeing among themselves to derogate from any provisions of this Convention which may imply such a restriction.
Chapter V — Final Clauses
Article 37
The Convention shall be open for signature by the States which were Members of the Hague Conference on Private International Law at the time of its Fourteenth Session.
It shall be ratified, accepted or approved and the instruments of ratification, acceptance or approval shall be deposited with the Ministry of Foreign Affairs of the Kingdom of the Netherlands.
Article 38
Any other State may accede to the Convention.
The instrument of accession shall be deposited with the Ministry of Foreign Affairs of the Kingdom of the Netherlands.
The Convention shall enter into force for a State acceding to it on the first day of the third calendar month after the deposit of its instrument of accession.
The accession will have effect only as regards the relations between the acceding State and such Contracting States as will have declared their acceptance of the accession. Such a declaration will also have to be made by any Member State ratifying, accepting or approving the Convention after an accession. Such declaration shall be deposited at the Ministry of Foreign Affairs of the Kingdom of the Netherlands; this Ministry shall forward, through diplomatic channels, a certified copy to each of the Contracting States.
The Convention will enter into force as between the acceding State and the State that has declared its acceptance of the accession on the first day of the third calendar month after the deposit of the declaration of acceptance.
Article 39
Any State may, at the time of signature, ratification, acceptance, approval or accession, declare that the Convention shall extend to all the territories for the international relations of which it is responsible, or to one or more of them. Such a declaration shall take effect at the time the Convention enters into force for that State.
Such declaration, as well as any subsequent extension, shall be notified to the Ministry of Foreign Affairs of the Kingdom of the Netherlands.
Article 40
If a Contracting State has two or more territorial units in which different systems of law are applicable in relation to matters dealt with in this Convention, it may at the time of signature, ratification, acceptance, approval or accession declare that this Convention shall exend to all its territorial units or only to one or more of them and may modify this declaration by submitting another declaration at any time.
Any such declaration shall be notified to the Ministry of Foreign Affairs of the Kingdom of the Netherlands and shall state expressly the territorial units to which the Convention applies.
Article 41
Where a Contracting State has a system of government under which executive, judicial and legislative powers are distributed between central and other authorities within that State, its signature or ratification, acceptance or approval of, or accession to this Convention, or its making of any declaration in terms of Article 40 shall carry no implication as to the internal distribution of powers within that State.
Article 42
Any State may, not later than the time of ratification, acceptance, approval or accession, or at the time of making a declaration in terms of Article 39 or 40, make one or both of the reservations provided for in Article 24 and Article 26, third paragraph. No other reservation shall be permitted.
Any State may at any time withdraw a reservation it has made. The withdrawal shall be notified to the Ministry of Foreign Affairs of the Kingdom of the Netherlands.
The reservation shall cease to have effect on the first day of the third calendar month after the notification referred to in the preceding paragraph.
Article 43
The Convention shall enter into force on the first day of the third calendar month after the deposit of the third instrument of ratification, acceptance, approval or accession referred to in Articles 37 and 38.
Thereafter the Convention shall enter into force —
1. for each State ratifying, accepting, approving or acceding to it subsequently, on the first day of the third calendar month after the deposit of its instrument of ratification, acceptance, approval or accession;
2. for any territory or territorial unit to which the Convention has been extended in conformity with Article 39 or 40, on the first day of the third calendar month after the notification referred to in that Article.
Article 44
The Convention shall remain in force for five years from the date of its entry into force in accordance with the first paragraph of Article 43 even for States which subsequently have ratified, accepted, approved it or acceded to it. If there has been no denunciation, it shall be renewed tacitly every five years.
Any denunciation shall be notified to the Ministry of Foreign Affairs of the Kingdom of the Netherlands at least six months before the expiry of the five year period. It may be limited to certain of the territories or territorial units to which the Convention applies.
The denunciation shall have effect only as regards the State which has notified it. The Convention shall remain in force for the other Contracting States.
Article 45
The Ministry of Foreign Affairs of the Kingdom of the Netherlands shall notify the States Members of the Conference, and the States which have acceded in accordance with Article 38, of the following —
1. the signatures and ratifications, acceptances and approvals referred to in Article 37;
2. the accessions referred to in Article 38;
3. the date on which the Convention enters into force in accordance with Article 43;
4. the extensions referred to in Article 39;
5. the declarations referred to in Articles 38 and 40;
6. the reservations referred to in Article 24 and Article 26, third paragraph, and the withdrawals referred to in Article 42;
7. the denunciations referred to in Article 44.
In witness whereof the undersigned, being duly authorized thereto, have signed this Convention.
Done at The Hague, on the 25th day of October 1980 in the English and French languages, both texts being equally authentic, in a single copy which shall be deposited in the archives of the Government of the Kingdom of the Netherlands, and of which a certified copy shall be sent, through diplomatic channels, to each of the States Members of the Hague Conference on Private International Law at the date of its Fourteenth Session.
[Signatories omitted. For ratification, accession and coming into force see Articles 37, 38 and 43.]
Jurisdictions Declared to be Reciprocating States For the Purposes of this Act
[Printed for convenience: see Family Relations Act, (Part 4.1) (section 70.91)]
| North America: | |
| in Canada: | |
| Alberta | Nova Scotia |
| Manitoba | Ontario |
| New Brunswick | Prince Edward Island |
| Newfoundland | Quebec |
| Northwest Territories | Saskatchewan |
| Yukon Territory | Yukon Territory |
| in the United States: | |
| California | New Hampshire |
| Colorado | New Mexico |
| Connecticut | New York State |
| Idaho | North Dakota |
| Kansas | Ohio |
| Maine | Oregon |
| Michigan | Pennsylvania, Commonwealth of |
| Minnesota | Vermont |
| Montana | Virginia |
| Nebraska | Washington |
| Nevada | Wisconsin |
| in the Caribbean: | |
| Island of Barbados and its dependencies | |
| Africa: | |
| Republic of South Africa | Southern Rhodesia |
| Europe: | |
| Isle of Man | Kingdom of Norway |
| States of Jersey | Bailiwick of Guernsey |
| United Kingdom | Gibraltar |
| Federal Republic of Germany (including Land Berlin) | |
| Austria | |
| South Pacific: | |
| in Australia: | |
| Australian Capital Territory | South Australia |
| New South Wales | Tasmania |
| Northern Territory of Australia | Victoria |
| Queensland | Western Australia |
| Territory of Papua and New Guinea | |
| New Zealand (including Cook Islands) | |
| Fiji | |
| Asia: | |
| Hong Kong | Singapore |
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