Re: “Child” and “Child of the Marriage”
I think that, in the February 1998 edition of BarTalk, I may have helped sow the seeds of confusion respecting the definitions of “child of the marriage” and “child” in the Divorce Act, 1985 and the Family Relations Act, R.S.B.C. 1996 Ch. 128. The genesis of the problem was the then-recent amendment to the Divorce Act, amending the definition of “child of the marriage”, increasing the “base age” (my phrase) from 16 years to 19 years. The question had been asked if the two statutory definitions were therefore equivalent. The reply had been “yes”.

My letter in your February 1998 edition pointed out that no, there still remained a distinction: “child” in the Family Relations Act terminated at the age of majority, being 19 years, whereas the Divorce Act provided for circumstances extending the definition beyond 19 years (primarily referring to individuals unable to remove themselves from the “charge” of a parent). Hah! Little did we know that work was afoot in Victoria to narrow the gap. Possibly anticipating the 1998 Provincial adoption, for child maintenance purposes, of the Federal Child Support Guidelines, the government defined (S.B.C. 1997 Ch. 20 S. 16), for maintenance purposes only, “child” in terms practically identical to the terms defining “child of the marriage” in the Divorce Act. That change to Section 87 of the Family Relations Act was proclaimed February 4, 1998, although the up-dated statutes have not been distributed. The distinction that concerned the Supreme Court of Canada in Jackson v. Jackson (1972) 6 W.W.R. 419 no longer exists.

What amazes me in all of this is that “child” under the terms of the Family Relations Act is now defined for two different purposes in two different sections. One would be forgiven for stopping after reading the definition in Section 1 (“Definitions”). The definition for “spouse” in Section 1 contemplates limitations in the definition (“...except under Part 5 or 6”). Could not the definition of “child” be similarly expressed? It’s all so inelegant now.

Master Douglas Baker

This letter was published in the April 1999 issue of BarTalk.