1997 Legislative Session: 2nd Session, 36th Parliament
FIRST READING


The following electronic version is for informational purposes only.
The printed version remains the official version.


HONOURABLE UJJAL DOSANJH
ATTORNEY GENERAL AND
MINISTER RESPONSIBLE FOR
MULTICULTURALISM,
HUMAN RIGHTS AND
IMMIGRATION

BILL 31 -- 1997

FAMILY RELATIONS AMENDMENT ACT, 1997

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:

1 Section 1 of the Family Relations Act, R.S.B.C. 1996, c. 128, is amended

(a) by adding the following definition:

"child support guidelines" means the child support guidelines established by regulation under section 129 for the calculation of maintenance awards; ,

(b) by repealing paragraph (b) in the definition of "parent" and substituting the following:

(b) a stepparent of a child if

(i) the stepparent contributed to the support and maintenance of the child for at least one year, and

(ii) the proceeding under this Act by or against the stepparent is commenced within one year after the date the stepparent last contributed to the support and maintenance of the child; ,

(c) by repealing the definition of "spouse" and substituting the following:

"spouse" means a person who

(a) is married to another person,

(b) except under Parts 5 and 6, lived with another person in a marriage-like relationship for a period of at least 2 years if the application under this Act is made within one year after they ceased to live together and, for the purposes of this Act, the marriage-like relationship may be between persons of the same gender,

(c) applies for an order under this Act within 2 years of the making of an order

(i) for dissolution of the person's marriage,

(ii) for judicial separation, or

(iii) declaring the person's marriage to be null and void, or

(d) is a former spouse for the purpose of proceedings to enforce or vary an order. , and

(d) by renumbering the section as section 1 (1) and by adding the following subsection:

(2) For the purpose of paragraph (b) of the definition of "parent" in subsection (1), a person is the stepparent of a child if the person and a parent of the child

(a) are or were married, or

(b) lived together in a marriage-like relationship for a period of at least 2 years and, for the purposes of this Act, the marriage-like relationship may be between persons of the same gender.

2 Section 3 (5) is repealed and the following substituted:

(5) Subsection (4) does not apply to

(a) personal information, as defined in the Freedom of Information and Protection of Privacy Act, that has been in existence for 100 or more years,

(b) information not described by paragraph (a) that has been in existence for 50 or more years, or

(c) information for research purposes disclosed in accordance with section 35 of the Freedom of Information and Protection of Privacy Act.

3 Section 9 is amended by adding the following subsection:

(3) If the application referred to in subsection (1) is for an order under section 93 (1) (a), any interim order made must be in accord with the child support guidelines and section 93.2 to the extent that this is practicable given the need for interim maintenance and the records and other information available at the time of the hearing.

4 Section 10 is amended by adding the following subsection:

(4) This section is subject to section 93.1.

5 Section 39 is amended

(a) in subsection (1) by striking out "address or location" and substituting "location, address or place of employment", and

(b) in subsection (3) by striking out "must provide" and substituting "must within 10 days provide".

6 Section 41 (3) is repealed and the following substituted:

(3) Subsections (1) and (2) do not apply to

(a) personal information, as defined in the Freedom of Information and Protection of Privacy Act, that has been in existence for 100 or more years,

(b) information not described by paragraph (a) that has been in existence for 50 or more years, or

(c) information for research purposes disclosed in accordance with section 35 of the Freedom of Information and Protection of Privacy Act.

7 Section 70 is amended

(a) in subsection (1) by repealing the definition of "extraprovincial plan" and substituting the following definition:

"extraprovincial plan" means a plan that is not a local plan and includes

(a) a supplemental pension plan to a local plan or extraprovincial plan, or

(b) a plan whose only members are "specified individuals" as defined in the regulations under the Income Tax Act (Canada); , and

(b) by repealing subsection (2) (a) and substituting the following:

(a) "administrator", "benefit", "defined contribution plan", "former member", "member" and "supplemental pension plan" have the same meaning as they have in section 1 (1) of the Pension Benefits Standards Act, .

8 Section 71 is amended in subsection (3) by striking out "for the purposes of subsection (2) (a)," and substituting "for the purposes of this Part,".

9 Section 74 (a) is repealed and the following substituted:

(a) is entitled to have, before the member retires, a proportionate share of the commuted value of the pension transferred from the plan to the credit of the spouse when the member

(i) is eligible to retire, or

(ii) terminates his or her membership in the pension plan, or .

10 Section 75 is amended by repealing subsection (2) and substituting the following:

(2) Despite subsection (1), a spouse may elect, with the consent of the administrator, to have the pension divided as if it were in a defined benefit plan.

11 The following section is added:

Supreme Court retains a discretion

75.1 (1) If, in the circumstances, the method of division required under this Part and the regulations is inappropriate because of the terms of the plan, the Supreme Court, despite the Pension Benefits Standards Act or any other Act purporting to limit the jurisdiction of a court to make an appropriate order respecting pension entitlement of the member and the spouse on marriage breakdown, may direct an appropriate method of division of the pension and the order of the court is binding on the plan.

(2) Unless the application of section 65 requires the share to the spouse to be larger, an order under subsection (1) must leave the member with at least half of

(a) the value the pension would have had, or

(b) the periodic benefits that would have been paid under the pension on retirement

had there been no division of the pension between the member and the spouse.

12 Section 76 (2) is repealed and the following substituted:

(2) Despite subsection (1), if no other spouse is entitled to receive a proportionate share of benefits paid under the pension, the spouse who is the designated beneficiary of a postretirement survivor benefit under the pension is entitled to the whole of the postretirement survivor benefit.

13 Section 78 (1) is repealed and the following substituted:

(1) If a member dies before the limited member receives a share of the pension under section 74, and the limited member is not entitled to the whole of any preretirement survivor benefit payable under the member's pension, then the limited member is entitled to a proportionate share of that preretirement survivor benefit in the form of

(a) a separate benefit, or

(b) if the preretirement survivor benefit is in the form of an annuity, a separate pension determined in accordance with the regulations.

14 Section 79 is amended by striking out "section 40 (1)" and substituting "section 33 (5) or 40 (1)".

15 Section 80 is amended

(a) by repealing subsection (1) (a) and substituting the following:

(a) an arrangement for sharing the pension that departs from the shares required under this Act so long as the share to the spouse leaves the member with at least half of

(i) the value the pension would have had, or

(ii) the periodic benefits that would have been paid under the pension on retirement

had there been no division of the pension between the member and spouse; ,

(b) in subsection (2) by striking out "section 72 (1)" and substituting "section 72 (1) or 73", and

(c) by adding the following subsections:

(2.1) If the spouse and member agree under subsection (2) to divide the pension in accordance with this Part, then, unless the spouse and member otherwise agree, for the purposes of this Part

(a) the original agreement or order dividing the pension applies as if it were made as of the date of the agreement under subsection (2),

(b) despite paragraph (c), subsection (1) or section 75.1, the spouse's proportionate share of the pension is determined by the share or formula set out in the original agreement or order,

(c) the original agreement or order dividing the pension is of no further effect to the extent that it contains provisions that are inconsistent with division under this Part because they

(i) provide for a different method of pension division, or

(ii) are inapplicable because of changed circumstances, and

(d) to the extent that the original agreement or order dividing the pension contains provisions that clarify, supplement or are collateral to division under this Part, those provisions continue in effect.

(2.2) A term in an order or agreement, whenever made, that requires the member to sever, or to assist the spouse in severing, the spouse's share from the member's pension as soon as it becomes possible to do so is conclusively deemed to be an agreement referred to in subsection (2), unless the parties otherwise agree or the court otherwise orders, made as of the date the plan receives notice in the prescribed form under subsection (2).

16 Section 87 is amended by adding the following definition:

"child" includes a person who is 19 years of age or older and, in relation to the parents of the person, is unable, because of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life; .

17 Section 88 (1) is repealed and the following substituted:

(1) Each parent of a child is responsible and liable for the reasonable and necessary support and maintenance of the child.

18 Section 93 is repealed and the following substituted:

Order for support and maintenance

93 (1) Subject to the Divorce Act (Canada), a court may make an order on application, or if the court makes or refuses an order for judicial separation or dissolution of marriage or a declaration that a marriage is null and void, requiring a party to the proceeding to discharge his or her liability

(a) under section 88 by paying to the person designated in the order the amount the court ascertains, using the child support guidelines, and

(b) under section 89 or 90, as the case may be, by paying to the person designated in the order the amount the court considers reasonable.

(2) Despite subsection (1) (a), a court may make an order to discharge a liability under section 88 by paying to the person designated in the order an amount that differs from the amount the court ascertains, using the child support guidelines, if the court is satisfied that

(a) provisions in an order, a judgment or a written agreement respecting the financial obligations of the parents, or the division or transfer of their property, directly or indirectly benefit the child, or that special provisions have otherwise been made for the benefit of the child, and

(b) the application of the child support guidelines would be inequitable in the circumstances of the provisions to which paragraph (a) refers.

(3) If the court makes an order under subsection (2), it must record its reasons for having done so.

(4) If a spouse will be living separate and apart from the spouse against whom the application is made, the court may, as it considers appropriate, adjust the amount of its order under subsection (1) (b) to take into account the needs, means, capacities and economic circumstances of each spouse, including the following:

(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;

(c) the desirability of the applicant spouse having special assistance to achieve financial independence from the spouse against whom the application is made;

(d) the obligation of the spouse against whom application is made to support another person;

(e) the capacity and reasonable prospects of a spouse obtaining education or training.

(5) An order under this section may also provide for one or more of the following:

(a) payment 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 beginning on the date the application in the proceeding was served on the respondent;

(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.

(6) If an order under this section benefits more than one person, the court must specify the amount payable, as the case may be, for a spouse, a parent or the children.

Consent orders

93.1 (1) In proceedings under section 93 or 96 a court may award an amount that is different from the amount calculated under the child support guidelines, on the consent of the parties to the proceedings, if the court is satisfied that reasonable arrangements have been made for the support of the children to whom the order relates.

(2) For the purposes of subsection (1) the court must consider the child support guidelines in determining whether reasonable arrangements have been made for the support of the children to whom the order relates but must not consider the arrangements to be unreasonable solely because the amount calculated under the child support guidelines differs from the amount to which the parties consent.

Priority

93.2 (1) If a court is considering making an order under section 93, or in proceedings under section 96, the court must give priority to maintenance under section 88.

(2) If, as a result of subsection (1), the court is unable to make an order under section 93 (1) (b) or makes an order under section 93 (1) (b) in an amount that is less than it would have otherwise been,

(a) the court must record its reasons for having done so, and

(b) any subsequent reduction or termination of the obligation to pay under the order made under section 93 (1) (a) constitutes a change described in section 96 (1) for the purposes of applying for

(i) an order under section 93 (1) (b), if one was not made previously, or

(ii) a variation of the order under section 93 (1) (b), if one was made in an amount that is less than it would have been otherwise.

19 Section 96 is amended

(a) in subsection (1) by striking out "maintenance order," and substituting "maintenance order not described in subsection (1.1),", and

(b) by adding the following subsections:

(1.1) To vary or rescind a maintenance order as defined in section 87 respecting the obligation under section 88 to support and maintain children, a court must

(a) be satisfied that a change in circumstances as provided for under the child support guidelines has occurred since the making or last variation of the maintenance order, and

(b) if satisfied that a change in circumstances as provided for under the child support guidelines has occurred, apply only the child support guidelines to determine the change of the amount of the maintenance obligation under the order.

(1.2) Despite subsection (1.1) (b), a court may vary a maintenance order, as defined in section 87 respecting the obligation under section 88 to support and maintain children, to an amount that differs from the amount the court ascertains using the child support guidelines, if the court is satisfied that

(a) provisions in an order, a judgment or a written agreement respecting the financial obligations of the parents, or the division or transfer of their property, directly or indirectly benefit the child, or that special provisions have otherwise been made for the benefit of the child, and

(b) the application of the child support guidelines would be inequitable in the circumstances of the provisions to which paragraph (a) refers.

(1.3) If the court makes an order under subsection (1.2), it must record its reasons for doing so.

20 Section 99 is amended

(a) in subsection (3) by striking out "or" at the end of paragraph (a) and by adding the following paragraph:

(a.1) the particulars of the assets or income, or , and

(b) in subsection (5) by striking out "must provide" and substituting "must within 10 days provide".

21 Section 100 is amended

(a) in subsection (1) by striking out "or" at the end of paragraph (c) and by adding the following paragraph:

(c.1) the particulars of the assets or income, or , and

(b) by repealing subsection (6) and substituting the following:

(6) Subsections (4) and (5) do not apply to

(a) personal information, as defined in the Freedom of Information and Protection of Privacy Act, that has been in existence for 100 or more years,

(b) information not described by paragraph (a) that has been in existence for 50 or more years, or

(c) information for research purposes disclosed in accordance with section 35 of the Freedom of Information and Protection of Privacy Act.

22 The following section is added:

Property agreements

120.1 (1) If spouses who are not married to each other make an agreement, Parts 5 and 6 apply to

(a) the agreement, and

(b) if covered by the agreement,

(i) an annuity,

(ii) a pension or an interest in a pension plan,

(iii) a home ownership savings plan, or

(iv) property not described in subparagraphs (i) to (iii).

(2) In this section:

"agreement" means an agreement that would be

(a) a marriage agreement for the purposes of Part 5 if the spouses were married to each other, or

(b) a separation agreement if the spouses were married to each other or separated after marriage;

"property" means property of a spouse that would be a family asset under Part 5 if the spouses were married to each other.

23 Section 121 (1) is amended by repealing the definitions of "child" and "spouse" and substituting the following definitions:

"child" means a person who is acknowledged in a written agreement filed under this section to be the responsibility of a party to the agreement and who is

(a) under the age of 19 years, or

(b) 19 years of age or older and, in relation to the party to the agreement, is unable, because of illness, disability or other cause, to withdraw from that party's charge or to obtain the necessaries of life;

"spouse" means a spouse as described in paragraph (a), (b) or (c) of the definition of "spouse" in section 1 (1) and includes a person who acknowledges in a written agreement filed under this section that he or she is or was a spouse of another person, whether or not they are or were married.

24 Section 129 is repealed and the following substituted:

Power to make regulations

129 (1) The Lieutenant Governor in Council may make regulations referred to in section 41 of the Interpretation Act.

(2) Without limiting subsection (1), the Lieutenant Governor in Council may make regulations establishing child support guidelines for the making or variation of maintenance orders as defined in section 87 respecting the obligation under section 88 to support and maintain children, including interim orders to support and maintain children, and these may include regulations as follows:

(a) respecting the way in which an award for maintenance for children is to be calculated;

(b) respecting the particulars that must be included in a maintenance order;

(c) respecting the circumstances in which discretion may be exercised in the making or variation of maintenance orders;

(d) respecting the circumstances that may justify the variation or rescission of a maintenance order;

(e) respecting the determination of income for the purposes of the application of the child support guidelines;

(f) authorizing a court to impute income for the purposes of the application of the child support guidelines;

(g) respecting the production of income information and providing for sanctions if that information is not provided.

(3) A regulation under this section may incorporate by reference, with any changes the Lieutenant Governor in Council considers appropriate, all or any part of a code, rule or standard as published by a provincial, national or international body as amended from time to time before or after the making of the regulation and relating to the subject matter of this Act.

Commencement

25 This Act comes into force by regulation of the Lieutenant Governor in Council.

 
Explanatory Notes

[This Bill amends the Revised Statutes of British Columbia, 1996. The Revised Statutes of British Columbia, 1996 came into force on April 21, 1997.]

SECTION 1: [Family Relations Act, amends section 1] adds the definition of "child support guidelines" for use principally in Part 7 of the Act and amends the definitions of "spouse" and "parent" to more clearly include same gender relationships.

SECTION 2: [Family Relations Act, repeals and replaces section 3 (5)] provides that information disclosed to a family court counsellor may be provided to a valid research project in a form that does not personally identify persons referred to in the information.

SECTION 3: [Family Relations Act, adds section 9 (3)] provides that in making an interim maintenance order for children the court will adhere to the child support guidelines but do so only to the extent that is practicable given the immediate need of the children for maintenance and possible deficiencies in the records and other verifiable information available to the court for purposes of applying the guidelines.

SECTION 4: [Family Relations Act, adds section 10 (4)] ensures that the child maintenance provisions in an order made by a court by consent of the parties to the proceedings are made in a manner consistent with the requirements of section 93.1 of the Act.

SECTION 5: [Family Relations Act, amends section 39] ensures that an enforcement officer under the Act will be able to seek information respecting the place of employment of the proposed respondent in a child custody proceeding and that any available information sought under section 39 of the Act will be provided to an enforcement officer within 10 days.

SECTION 6: [Family Relations Act, repeals and replaces section 41 (3)] provides that information disclosed under section 39 or 40 of the Act may be provided to a valid research project in a form that does not personally identify persons referred to in the information.

SECTION 7: [Family Relations Act, amends section 70] clarifies the meaning of a number of terms used in Part 6 of the Act.

SECTION 8: [Family Relations Act, amends section 71 (3)] confirms that an order or agreement that is silent about pension division will not trigger the operation of Part 6.

SECTION 9: [Family Relations Act, repeals and replaces section 74 (a)] confirms that a limited member of a local plan is also entitled to receive a share of the pension if the member terminates employment before retiring.

SECTION 10: [Family Relations Act, repeals and replaces section 75 (2)] repeals the portion of section 75 (2) of the Act which this Bill re-enacts as part of section 75.1 of the Act. The amendments made by this section also allows a spouse and the plan administrator greater flexibility in dealing with the spouse's share of a pension in a hybrid plan.

SECTION 11: [Family Relations Act, enacts section 75.1] re-enacts part of section 75 (2) of the Act as section 75.1 (1) and enacts section 75.1 (2) which extends to court orders the rule that a member must ordinarily be left with 50% of the pension.

SECTION 12: [Family Relations Act, repeals and replaces section 76 (2)] ensures that a spouse who is a designated beneficiary of a postretirement survivor benefit will receive the entire benefit unless another spouse is entitled to receive a proportionate share of it.

SECTION 13: [Family Relations Act, repeals and replaces section 78 (1)] confirms the rules that apply for sharing a preretirement survivor benefit among 2 or more former spouses of the deceased.

SECTION 14: [Family Relations Act, amends section 79] ensures that a plan administrator may require a limited member to accept a transfer of the commuted value of benefits in both situations in which the administrator may require a member to do so.

SECTION 15: [Family Relations Act, amends section 80] amends the threshold under section 80 (1) (a) of the Act which applies to a written agreement between a member and spouse for pension sharing. The agreement must leave the member with at least half the value the pension would have had or half the periodic benefits that would have been paid if the agreement had not been made. Section 80 (2) of the Act is amended to confirm that a spouse and member with an order or agreement made before July 1, 1995 can opt in to Part 6 of the Act. The new section 80 (2.1) and (2.2) set out general rules for applying Part 6 of the Act to an order or agreement made before Part 6 was enacted.

SECTION 16: [Family Relations Act, amends section 87] makes the definition of "child" for the purposes of Part 7 of the Act consistent with the corresponding definition in the Divorce Act (Canada).

SECTION 17: [Family Relations Act, repeals and replaces section 88 (1)] simplifies section 88 (1) of the Act so that the general obligation of all parents to support their children is not open to confusion with the criteria under child support guidelines applicable if a child maintenance order is to be made.

SECTION 18: [Family Relations Act, re-enacts section 93 and enacts sections 93.1 and 93.2] rewrites section 93 of the Act to better reflect the fact that different criteria are applicable in the making of child maintenance orders and maintenance orders for spouses or dependent parents. The new sections 93.1 and 93.2 preserve flexibility in the making of child maintenance orders by consent provided the interests of the children are protected and make adequate provision for child support a priority in the making of a package of maintenance orders covering adults as well as children.

SECTION 19: [Family Relations Act, amends section 96] rewrites section 96 of the Act in an analogous way to the rewriting of section 93 of the Act by this Bill.

SECTION 20: [Family Relations Act, amends section 99] entitles an enforcement officer to receive information in a timely fashion, including information about the assets or income of a person against whom a maintenance order may be sought.

SECTION 21: [Family Relations Act, amends section 100] allows the court to require a person having information about the assets or income of a proposed respondent in a maintenance proceeding to disclose that information to the applicant in that proceeding. The amendment to section 100 (6) of the Act provides that information disclosed under section 100 of the Act may be provided to a valid research project in a form that does not personally identify persons referred to in the information.

SECTION 22: [Family Relations Act, enacts section 120.1] allows persons described by paragraph (b) of the definition of "spouse" in section 1 of the Act as amended by section 1 (c) of this Bill to opt into the application of Parts 5 and 6 of the Act by making the equivalent of a marriage or separation agreement.

SECTION 23: [Family Relations Act, amends section 121 (1)] restates definitions of "child" and "spouse" in a manner that is consistent with the use of those terms elsewhere in the Act.

SECTION 24: [Family Relations Act, re-enacts section 129] adds the capacity to make regulations to establish child support guidelines to be followed in making and varying court orders, and consent orders or agreements that may be filed and enforced as court orders, for child maintenance.


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