Legislation in Family Matters
The most important statutes in family law and divorceThe legal termination of a valid marriage by an order of a judge; the ending of a marital relationship and the conjugal obligations of each spouse to the other. See "conjugal rights," "marriage," and "marriage, validity of." law are the provincial Family Law Act and the federal Divorce Act. There is also a very important federal regulation, the Child Support Guidelines, and an important academic paper, the Spousal Support Advisory Guidelines.
This section describes the basic legislationAn act; a statute; a written law made by a government. See "regulations." on family and divorce law, and briefly reviews some of the important secondary legislation touching on family law issues.
Two important statutes, one important regulation and one influential paper
The Divorce Act, the Family Law Act and the Child Support Guidelines are central to family law in British Columbia. While some of the subjects covered by the Divorce Act and the Family Law Act overlap, there are significant distinctions between the two laws that you need to be aware of.
The section The Law for Family Matters within the chapter Introduction to the Legal System for Family Matters has a detailed discussion of the federal and provincial authority to make laws.
Only the Divorce Act deals with divorce. Only the Family Law Act deals with the guardianship of children and the division of propertySomething which can be owned. See "chattels" and "real property." and debts. Both acts deal with the care of children, children's parenting schedules, child supportMoney paid by one parent or guardian to another parent or guardian as a contribution to the cost of a child's living expenses., and spousal supportMoney paid by one spouse to another spouse either as a contribution toward the spouse's living expenses or to compensate the spouse for the economic consequences of decisions made by the spouses during their relationship..
One of the most important distinctions between these two laws, as will be seen below, lies in how they define key words like spouseUnder the ''Divorce Act'', either of two people who are married to one another, whether of the same or opposite genders. Under the ''Family Law Act'', married spouses, unmarried parties who have lived together in a marriage-like relationship for at least two years, and, for all purposes of the act other than the division of property or debt, unmarried parties who have lived together for less than two years but have had a child together. See "marriage" and "marriage-like relationship.", parentIn family law, the natural or adoptive father or mother of a child; may also include stepparents, depending on the circumstances and the applicable legislation; may include the donors of eggs or sperm and surrogate mothers, depending on the circumstances and the terms of any assisted reproduction agreement. See "adoptive parent," "natural parent" and "stepparent." and childA person who is younger than the legal age of majority, 19 in British Columbia. See "age of majority.". Depending on the particular law you're dealing with, you may fall inside these definitions or outside of them.
The Divorce Act
The Divorce Act, RSC 1985, c 3 (2nd Supp) is a federal law that you can find, along with other federal laws, at the website of the federal Department of Justice, or on CanLII, a free website for searching Canadian court decisions and legislation. Because of a constitutional rule called the doctrine of paramountcy, the Divorce Act is considered to be superior to the provincial Family Law Act. As a result, if you are entitled to ask for an orderA mandatory direction of the court, binding and enforceable upon the parties to a court proceeding. An "interim order" is a temporary order made following the hearing of an interim application. A "final order" is a permanent order, made following the trial of the court proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to appeal. See "appeal," "consent order," "decision" and "declaration." under the Divorce Act about child support or spousal support, you probably should.
The Divorce Act only applies to married spouses, people who are or were married to each other by a marriage commissioner or a religious official licensed to perform marriages. If you are not legally married, the Family Law Act is the only game in town. Although the court may allow someone who isn't a spouse to apply under the Divorce Act for an order relating to custodyIn family law, an antiquated term used by the ''Divorce Act'' to describe the right to possess a child and make parenting decisions concerning the child's health, welfare and upbringing. See "access." of or accessUnder the ''Divorce Act'', the schedule of a parent's time with his or her children under an order or agreement. Access usually refers to the schedule of the parent with the least time with the child. See "custody." to a child, that person must get the court's permission first, and the spouses must have already started a court proceedingA legal proceeding in which one party sues another for a specific remedy or relief, also called an "action," a "lawsuit" or a "case." A court proceeding for divorce, for example, is a proceeding in which the claimant sues the respondent for the relief of a divorce order. between each other.
You must also be ordinarily resident in your province for at least one year before you can ask for an order under the Divorce Act. This means that you might have to delay filing for a divorce if you've moved to a new province within the last year.
The Divorce Act refers to children as children of the marriageA legal relationship between two persons, whether of the same or opposite genders, that is solemnized by a marriage commissioner or licenced religious official and gives rise to certain mutual rights, benefits and obligations. See also "conjugal rights," "consortium" and "marriage, validity of.". A child of the marriage is defined in s. 2(1) as:
A child of two spouses or former spouses who, at the materialIn law, something that is relevant, important. A material fact is a fact relevant to a claim or a defence to a claim. See "claim," "evidence," and "fact." time,
(a) is under the age of majorityThe age at which a child becomes a legal adult with the full capacity to act on their own, including the capacity to sue and be sued. In British Columbia, the age of majority is 19. The age of majority has nothing to do with being entitled to vote or buy alcohol, although federal and provincial laws sometimes link those privileges with the age at which one attains majority. See "disability" and "infant." and who has not withdrawn from their charge, or
(b) is the age of majority or over and under their charge but unable, by reason of illness, disabilityIn law, a legal incapacity to do certain things, like enter into a contract or start a court proceeding. Legal disabilities include insanity and being under the age of majority. See "age of majority." or other cause, to withdraw from their charge or to obtain the necessaries of life.
In other words, a child of the marriage is someone who is less than 19 years old, the age of majority in British Columbia, or who is 19 and older if the child cannot support him- or herself. Since only people qualifying as spouses are obliged to pay child support, the definition of child of the marriage is expanded in s. 2(2) to include stepparents:
For the purposes of the definition “child of the marriage” in subsection (1), a child of two spouses or former spouses includes
(a) any child for whom they both stand in the place of parents; and
(b) any child of whom one is the parent and for whom the other stands in the place of a parent
The Divorce Act covers these basic subjects:
- custody of and access to children,
- child support, and
- spousal support.
The Family Law Act
The Family Law Act, SBC 2011, c 25 is a law created by the government of British Columbia that you can find, along with other provincial laws, at the website of the Queen's Printer or on CanLII, a free website that lets you search Canadian laws and court decisions. Both married and unmarried couples may apply for orders under this actIntentionally doing a thing; a law passed by a government, also called "legislation" or a "statute." See "regulations.", as well as other people who might have an interest in a child, such as a family member of the child.
Section 1 of the Family Law Act defines a child as someone who is under 19 years of age. Section 146 gives a bigger definition for child support, and defines child as including:
a person who is 19 years of age or older and unable, because of illness, disability or another reason, to obtain the necessaries of life or withdraw from the charge of his or her parents or guardians
Under Part 3 of the act, a parent is presumed to be the biological father and the birth mother of a child. However, if assisted reproduction is used, parent can include:
- up to two people who intend to have the child,
- a donorA person giving something as a gift or as a bequest, and does so freely and without expectation of payment in return. of sperm and a donor of an egg, and
- a surrogate mother.
When child support is an issue, parent can include a stepparentThe spouse of a person who has children from a previous relationship. A stepparent may qualify as a "parent" for the purposes of issues relating to child support and the care and control of a child under both the ''Divorce Act'' and the ''Family Law Act''. See "parent" and "spouse.". Section 146 defines a stepparent as:
a person who is a spouse of the child's parent and lived with the child's parent and the child during the child's life
Under s. 3, spouse includes:
- someone who is married to someone else,
- someone who has lived with someone else in a marriage-like relationshipIn family law, the quality of an unmarried couple's relationship that demonstrates their commitment to each other, their perception of themselves as a couple and their willingness to sacrifice individual advantages for the advantage of themselves as a couple; a legal requirement for a couple to be considered spouses without marrying. See "cohabitation," "marriage" and "spouse." for at least two years,
- except for the parts of the act about dividing property and debtA sum of money or an obligation owed by one person to another. A "debtor" is a person responsible for paying a debt; a "creditor" is the person to whom the debt is owed., someone who has lived with someone else in a marriage-like relationship for less than two years if they have had a child together, and
- former spouses.
Under s. 39(1) of the act, a child's guardians are usually the child's parents, as long as they have lived together during the child's life. Under s. 39(3), guardians include:
- people who are parents because of an assisted reproduction agreement, and
- parents who never lived with child and other parent, as long as the parent "regularly cares" for the child.
Under the act, someone who is a parent or guardian can be required to pay child support. Someone who is a guardian has “parental responsibilitiesA term under the ''Family Law Act'' which describes the various responsibilities exercised by guardians in the care, upbringing and management of the children in their care, including determining the child's education, diet, religious instruction or lack thereof, medical care, linguistic and cultural instruction, and so forth. See "guardian."” for the child and has “parenting timeA term under the ''Family Law Act'' which describes the time a guardian has with a child and during which is responsible for the day to day care of the child. See "guardian."” with the child. Someone who is not a guardianA person charged with the legal care of someone under a legal disability. A term under the ''Family Law Act'' referring to a person, including a parent, who is responsible for the care and upbringing of a child through the exercise of parental responsibilities. See "disability," "parental responsibilities" and "parenting time.", has “contactA term under the ''Family Law Act'' that describes the visitation rights of a person who is not a guardian with a child. Contact may be provided by court order or by the agreement among the child's guardians who have parental responsibility for determining contact. See "guardian" and "parental responsibilities."” with the child.
A spouse can be entitled to get spousal support from another spouse. Only spouses who are married or who have lived in a marriage-like relationship for at least two years are entitled to share family propertyA term under the ''Family Law Act'' referring to property acquired by either or both spouses during their relationship and after separation, if bought with family property. Both spouses are presumed to be equally entitled to share in family property. See "excluded property." and are responsible for family debtA term under the ''Family Law Act'' referring to debt owed by either or both spouses that accumulated during the spouses' relationship and after separation, if used to maintain family property. Both spouses are presumed to be equally liable for family debt..
The Family Law Act covers these subjects:
- parentage of children and assisted reproduction,
- guardianship of children,
- parental responsibilities and parenting time,
- contact with a child,
- child support and spousal support,
- dividing property and debt,
- orders to protect people, and
- orders to protect property.
The Child Support Guidelines
The Child Support Guidelines, often referred to as just the GuidelinesShort for the Child Support Guidelines, a regulation to the federal ''Divorce Act'', adopted by each province and territory except Quebec, that sets the amount of child support a parent or guardian must pay based on the person's income and the number of children involved., is a federal regulation that standardizes child support orders throughout Canada except Quebec. The Guidelines talk about how income is calculated and special expenses are shared between parents, and provide a series of tables, one for each province and territory, which set out how much child support should be paid based on the payor's income and the number of children support is being paid for.
The Child Support Guidelines apply to child support orders made under both the Divorce Act and the provincial Family Law Act. Because they are mandatory whenever child support is being paid, the Child Support Guidelines also apply to agreements about child support.
The Guidelines, and the exceptions to the Guidelines tables, are discussed in a lot more detail in the chapter Child Support.
The Spousal Support Advisory Guidelines
The Spousal Support Advisory Guidelines, often called the Advisory GuidelinesShort for the Spousal Support Advisory Guidelines, an academic paper released by the Department of Justice that describes a variety of mathematical formulas that can be applied to determine how much spousal support should be paid and how long spousal support should be paid for, once a spouse is found to be entitled to receive support. The Advisory Guidelines is not a law., is not a law. It is an academic paper that describes a number of mathematical formulas that can be used to calculate how much spousal support should be paid and how long spousal support should be paid, once a person's entitlement to receive spousal support has been proven.
Although the Advisory Guidelines is not a law, the courts of British Columbia and many other provinces routinely rely on the Advisory Guidelines formulas when making decisions about spousal support. The Advisory Guidelines cannot be ignored if you have a problem involving the payment of spousal support.
The Advisory Guidelines formulas, and the way the courts have dealt with the Advisory Guidelines, are discussed in more detail in the chapter Spousal Support within the section The Spousal Support Advisory Guidelines.
This segment discusses some of the secondary legislation relating to marriage, children, child protection, the enforcement of orders and agreements relating to support payments, real propertyA parcel of land and the buildings on that land. See "chattel," "ownership" and "possession.", wills and estates, and name changes.
The federal Marriage (Prohibited Degrees) Act sets out the degrees of consanguinityBeing related to another person by blood. For a marriage to be valid, the parties must not be within the prohibited degrees of consanguinity or adoption. See "marriage," "''Marriage (Prohibited Degrees) Act''" and "marriage, validity of." — relatedness by blood — a couple cannot have if they are to marry each other. The federal Civil Marriage Act defines marriage as the "union of two persons" rather than "the union of a man and a woman," allowing same-sex couples to marry, and makes related changes to other federal legislation like the Divorce Act, allowing same-sex couples to divorce, and the Income Tax Act.
The provincial Marriage Act deals with the formalities of marriage, and covers such things as who is entitled to marry people, marriage licences, and the age at which a couple can legally marry.
The provincial Age of Majority Act sets the age of majority at 19. The provincial Infants Act describes the legal capacity of children, such as their ability to enter into legally bindingIn law, a requirement or obligation to honour and abide by something, such as a contract or order of the court. A judge's order is "binding" in the sense that it must be obeyed or a certain punishment will be imposed. Also refers to the principle that a higher court's decision on a point of law must be adopted by a lower court. See "contempt of court" and "precedent." contracts or marriage settlements.
The provincial Adoption Act deals with such things as who can give a child up for adoptionIn family law, the act or process of taking another person's natural child as one's own. The child becomes the adopting parent's legal child as if the child were the adopting parent's natural child, while the natural parent loses all rights and obligations with respect to the child. See "natural parent.", who may adopt a child, and the general ins and outs of the adoption process. The process for adoption is described in more detail in the section on Adoption within the chapter Other Family Law Issues.
The provincial Parental Responsibility Act says that parents whose children have been convicted of causing damage or loss of property may be held responsible for loss caused by their children's offences, up to a maximum of $10,000.
On 1 October 2002, the Children's Commissioner, which investigated serious injuries or deaths suffered by children, and the Office of the Child, Youth and Family Advocate, which investigated issues involving children in the care of or involved with governmental and private agencies, were replaced by the Office for Children and Youth. On 18 May 2006, this was in turn replaced by the Representative for Children and Youth, operating under the Representative for Children and Youth Act. The goals of the representative, who has significant oversight powers, are to:
- foster respect for the fundamental rights of all children and youthIn law, in British Columbia a person under the age of 19. in British Columbia,
- support and promote the rights of children and youth in the care of the state,
- promote awareness and understanding of key principles in the United Nations Convention on the Rights of the Child,
- monitor the effectiveness and responsiveness of services and programs in British Columbia,
- work collaboratively with public bodies, including the Chief Coroner and the Public Guardian and Trustee, to build an integrated, responsive process for the review and investigation of critical injuries and death, and
- draw on lessons learned to support and promote prevention initiatives and best practices with respect to intervention.
The provincial Child, Family and Community Service Act gives the government, specifically the Ministry for Children and Family Development, the power to apprehendIn law, to take or to seize. In family law, this term usually refers to the taking of a child out of the care of his or her parents by the police or child welfare authorities. children believed to be suffering from child abuse or neglect, or who are at risk of child abuse or neglect. The act regulates the conditions under which children can be seized, the conditions in which they may be placed in the care of the government, and the authority and powers of child protection workers.
Enforcement of child support and spousal support
The provincial Family Maintenance Enforcement Act establishes the Family Maintenance Enforcement Program, a government agency with the authority to enforce support orders, and sets the extent of that authority. The provincial Court Order Enforcement Act sets out the ways in which money awarded under a judgmentA judge's conclusions after hearing argument and considering the evidence presented at a trial or an application; a decision, the judge's reasons. A judge's written or oral decision will include the judge's conclusions about the relief or remedies claimed as well as his or her findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusions of law," "findings of fact," and "final judgment." can be collected, such as by liens against property, the garnishment of wages, and so forth.
The provincial Interjurisdictional Support Orders Act allows support orders made outside of British Columbia to be registered in this province for enforcement. It also allows someone affected by that order to start a process here that may result in the variation of that order in the court that originally made the order. The act does not apply to all support orders, only to the orders of the countries, provinces and states that have a reciprocal agreement with British Columbia.
The provincial Land (Spouse Protection) Act protects the rights of married spouses and unmarried spouses to their interest in the family homeIn family law, the dwelling occupied by a family as their primary residence. See "family property" and "real property." by allowing them to file an entry on the titleIn law, a document demonstrating ownership of a thing. See "ownership." of the property, but the protection ends once the spousal relationship ends.
The provincial Land Title Act deals with all aspects of real property in British Columbia, including the conditions of holding valid title to a piece of landReal property; a parcel of real property and the buildings upon it. See also "chattel," "ownership" and "possession.", placing and removing encumbrances (like liens and mortgages) on the title of a property, and the conditions under which a Certificate of Pending LitigationA document filed in the office of the Land Title and Survey Authority against the title of real property, stating that the property is the subject of a court proceeding and that ownership of the property may change as a result; formerly called a ''lis pendens''. In family law, a CPL is used to protect the interest of a party in a piece of property by notifying potential purchasers or mortgagees about the court proceeding. See "clear title," "encumbrance," and "real property." can be placed on the title. The Partition of Property Act gives someone who owns property jointly with someone else the right to force the saleAn agreement to transfer the ownership of property from one person to another in exchange for the reciprocal transfer of something else, usually money. See "agreement." of that property over the objections of the other owner.
Wills and estates
Marriage, divorce, and living in an unmarried relationship for at least two years can affect how property is distributed through a will and how property is distributed when someone dies without a will, called dying intestateDying without a will. In such circumstances, the distribution of the dead person’s estate is governed by the ''Estate Administration Act''. See also "estate," "inheritance" and "will.". Two pieces of provincial legislation are important here, the Wills Act and the Estate Administration Act. The Wills Act says that:
15 A will is revoked by the marriage of the testatorIn estate law, a person who has made a will. The feminine form of this word is "testatrix." See "estate" and "will.", unless
(a) there is a declarationIn law, a pronouncement of the court about a fact or a state of affairs, such as a declaration that a marriage is void or that a person is the guardian of a child. Not to be confused with an order, which is a mandatory direction of the court requiring a party to do or not do something. See "order." in the will that it is made in contemplation of the marriage, or
(b) the will is made in exercise of a power of appointment of property which would not in default of the appointment pass to the heir, executorThe person responsible for carrying out the instructions in a will and wrapping up a deceased person's estate and debts. The lovely feminine form of the word is "executrix," though the masculine form is commonly applied to executrices. See "estate," "testator," and "will." or administrator of the testator or to the persons entitled to the estateThe personal property and real property that a person owns or in which he or she has an interest, usually in connection with the prospect or event of the person's death. of the testator if the person died intestate.
16 (1) In this section, "spouse" includes a person considered by a testator to be the testator's spouse.
(2) If in a will a testator
(a) gives an interest in property to his or her spouse,
(b) appoints his or her spouse executor or trusteeA person who holds property in trust for the benefit of another person. See "trust.", or
(c) confers a general or special power of appointment on his or her spouse,
and after the making of the will and before the testator's death
(d) a judicial separation has been ordered in respect of the marriage,
(e) the marriage is terminated by a decree absolute of divorce, or a judgment granting a divorce under the Divorce Act (Canada) for which a certificate was or could have been issued under that Act, or
(f) the marriage is found to be void or declared a nullity by a court
then, unless a contrary intention appears in the will, the giftA voluntary transfer of property from one person to another, without expectation of payment or reward. Gifts to one spouse do not usually qualify as family property, and are excluded from the pool of property to be divided. See "donee," "donor," "excluded property," and "family property.", appointment or power is revoked and the will takes effect as if the spouse had predeceased the testator.
A testator is a person who makes a will.
The Estate Administration Act deals with the distribution of the estate of someone who dies intestate, that is, without a will. This is a critical piece of legislation because a certain amount of the dead person's estate is automatically allotted to his or her spouse, regardless of whether they are together or have been separated for two years or 20 years. Section 85 says that:
(2) This section applies if an intestate dies leaving a spouse and issue.
(3) If the net value of the person's estate is not greater than $65 000, the estate goes to the spouse.
(4) If the net value of the person's estate is greater than $65 000, the spouse is entitled to $65 000, and has a charge on the estate for that sum.
(5) After payment of the sum of $65 000, the residue of the estate goes as follows:
(a) if the intestate dies leaving a spouse and one child, 1/2 goes to the spouse;
(b) if the intestate dies leaving a spouse and children, 1/3 goes to the spouse.
(6) If a child has died leaving issue and the issue is alive at the date of the intestate's death, the spouse takes the same share of the estate as if the child had been living at the date.
The provincial Wills Variation Act allows close relatives, including unmarried spouses, who have been left out of someone's will to apply to court for an order giving them some of the dead person's estate.
Names and change of name
The provincial Name Act is the law that deals with changes of name, both for a married spouseA person who is legally married to another person as a result of a ceremony presided over by someone with the authority to conduct marriages. See "marriage" and "unmarried spouse." following divorce and for anyone who hankers to be called something different. (The process is fairly simple for a spouse following divorce.) The Vital Statistics Act talks about the registration of new births and about the naming of infants, and should be read if you're thinking of calling your child something different like Moon Unit or Blue Ivy.
Canada is a signatory to many multilateral international agreements, from agreements about the treatment of prisoners in wartime to agreements about money laundering. In family law, the two most important treaties concern the wrongful removal of children and the rights of children.
The Hague Convention on the abduction of children
The Hague Convention on the Civil Aspects of International Child Abduction says what signatory countries must do when someone has wrongfully taken a child into that country. The convention explains how someone from the departure country can make an application for an order in the destination country for the return of the child. It outlines the defences that can be made to an applicationA request to the court that it make an order for a specific remedy or relief usually on an interim or temporary basis, also called a "chambers application" or a "motion." See also "interim application" and "relief.", the different orders the court in the destination country can make, and the factors that court must consider in making those orders.
More information about the Hague Convention, including a list of signatory countries, can be found in the chapter Resolving Family Law Problems in Court within the section Enforcing Orders in Family Matters.
The UN Convention on the rights of children
The UN Convention on the Rights of the Child (PDF) is an agreement about the human rights and legal rights of children in signatory countries. Among other things, Article 12 of the convention says that the views of children must be heard in any legal proceedingIn law, the whole of the conduct of a court proceeding, from beginning to end, and the steps in between; may also be used to refer to a specific hearing or trial. See "action." that affects their interests:
1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
You can get a copy of the complete text of the Convention from the website of the UN Office of the High Commissioner for Human Rights by searching for "convention rights child."
You can find more information about how the views of children are heard in family law disputes in the chapter Children in Family Law Matters.
Canada and British Columbia have made a number of important agreements with other countries for the mutual enforcement of court orders.
The Interjurisdictional Support Orders Act talks about getting and changing orders for child support and spousal support where the parties are living in different provinces or different countries. The Interjurisdictional Support Orders Regulation has a table showing which countries have signed up.
The Court Order Enforcement Act is about enforcing court orders for the payment of money or transferIn law, the act of an owner of a thing giving ownership of that thing to another person, in exchange for money or other property in the case of a sale or in exchange for other rights in the case of a family law agreement. See "family law agreements," "ownership" and "sale." of goods or property. The countries that have signed up can be found in the Notice of Reciprocating Jurisdictions.
You can find more information about the Interjurisdictional Support Orders Act in the chapter Child Support, in the section Making Changes to Child Support. You can find more information about enforcement of orders in the chapter Resolving Problems in Court, in the section Enforcing Orders in Family Matters.
|The above was last reviewed for legal accuracy by JP Boyd, May 12, 2013.|
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