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Difference between revisions of "Family Law Act Basics"
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{{JP Boyd on Family Law TOC}} | {{JP Boyd on Family Law TOC}} | ||
The provincial ''[[Family Law Act]]'' is the primary legislation on family law issues in British Columbia. It applies to married spouses, unmarried spouses, and people in other unmarried relationships. It also applies to people who have an interest in children, like a family member. The ''Family Law Act'' talks about the care of children after separation and about how guardians are appointed. It also deals with financial issues like child support, spousal support | The provincial ''[[Family Law Act]]'' is the primary legislation on family law issues in British Columbia. It applies to married spouses, unmarried spouses, and people in other unmarried relationships. It also applies to people who have an interest in someone else's children, like a family member or friend. The ''Family Law Act'' talks about the care of children after separation and about how guardians are appointed. It also deals with financial issues like child support, spousal support and the division of property and debt, as well as with family violence, court processes, and ways of resolving family law problems without going to court. | ||
This section provides a | This section provides a top to bottom overview of the ''[[Family Law Act]]'' in an easy-to-read question and answer format. It is written primarily for justice system workers and legal advocates, but anyone can use it. All of the information provided in this section is discussed in more detail elsewhere in ''JP Boyd on Family Law''. Use the search tool at the top of the page to find more information about specific topics. | ||
==Introduction== | ==Introduction== | ||
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===Who does the ''Family Law Act'' apply to?=== | ===Who does the ''Family Law Act'' apply to?=== | ||
The ''[[Family Law Act]]'' is the main law on family breakdown in British Columbia. Although there is also the federal ''[[Divorce Act]]'', the ''[[Divorce Act]]'' only applies to married spouses. | The ''[[Family Law Act]]'' is the main law on family breakdown in British Columbia. (Although there is also the federal ''[[Divorce Act]]'', the ''[[Divorce Act]]'' only applies to married spouses.) The ''[[Family Law Act]]'' applies to everyone in a family relationship in British Columbia, including people who: | ||
The ''[[Family Law Act]]'' applies to everyone in a family relationship in British Columbia, including people who: | |||
*are married spouses, | *are married spouses, | ||
*are | *are unmarried spouses, | ||
*are | *are parents of a child together, | ||
*want guardianship of | *want guardianship of a child, | ||
*want contact with someone else’s child, | *want contact with someone else’s child, | ||
*are at risk of family violence, | *are at risk of family violence, | ||
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*want to manage a child’s property. | *want to manage a child’s property. | ||
The ''[[Family Law Act]]'' doesn’t change the ''[[Divorce Act]]''. The ''[[Divorce Act]]'' still applies to married | The ''[[Family Law Act]]'' doesn’t change the ''[[Divorce Act]]''. The ''[[Divorce Act]]'' still applies to people who are married, along with the ''[[Family Law Act]]''. | ||
===How are family law problems resolved under the ''Family Law Act''?=== | ===How are family law problems resolved under the ''Family Law Act''?=== | ||
The ''[[Family Law Act]]'' tries to change how people solve family law problems. The law: | The ''[[Family Law Act]]'' tries to change how people solve family law problems. The law: encourages people to find solutions outside of court; makes financial disclosure mandatory, even when you're dealing with a family law problem outside of court; makes family law agreements more difficult to change, as long as they were fairly negotiated; and, promotes the use of parenting coordinators, when there is a final agreement or order about the care of children. | ||
When people have to go to court, however, the ''[[Family Law Act]]'' gives the court new ways to: | When people have to go to court, however, the ''[[Family Law Act]]'' gives the court new ways to: | ||
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===What does the ''Family Law Act'' cover?=== | ===What does the ''Family Law Act'' cover?=== | ||
The ''[[Family Law Act]]'' talks about | The ''[[Family Law Act]]'' talks about: | ||
*family violence and protecting adults and children from violence, | *family violence, and protecting adults and children from violence, | ||
*determining who is a child’s parent, | *determining who is a child’s parent, | ||
*having children through assisted reproduction, | *having children through assisted reproduction, | ||
*determining who is the guardian of a child, and how guardians are appointed and removed, | *determining who is the guardian of a child, and how guardians are appointed and removed, | ||
*how guardians share responsibility for | *how guardians share responsibility for decision-making and caring for children, | ||
*the time someone has with a child who isn’t the child’s guardian, | *the time someone has with a child who isn’t the child’s guardian, | ||
*what happens when a guardian wants to move, including with a child, | *what happens when a guardian wants to move, including with a child, | ||
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*paying spousal support, | *paying spousal support, | ||
*preserving property so that it can be divided, | *preserving property so that it can be divided, | ||
*dividing property and dividing responsibility for debt, and | *dividing property and dividing responsibility for debt, | ||
*dividing property located outside the province, and | |||
*managing children’s property. | *managing children’s property. | ||
The act, in other words, covers everything except adoption, child protection and wills issues! | |||
==The law about children== | ==The law about children== | ||
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====The best interests of children and family violence==== | ====The best interests of children and family violence==== | ||
When family violence is an issue, parents and judges must consider an additional list of factors, set out at s. 38, to help assess the impact of the family violence on the child and on a person’s capacity to care for the child. | When family violence is an issue, parents and judges must consider an additional list of factors, set out at s. 38, to help assess the impact of the family violence on the child and on a person’s capacity to care for the child. These include | ||
*the severity of the family violence, | |||
*the frequency of the family violence, | |||
*whether the violence was directed toward the child, and | |||
*the "harm to the child's physical, psychological and emotional safety, security and well-being as a result of the family violence." | |||
The ''[[Family Law Act]]'' also says that an agreement or order is presumed not to be in the best interests of a child unless it protects the child’s safety and well-being to the greatest extent possible. | The ''[[Family Law Act]]'' also says that an agreement or order is presumed not to be in the best interests of a child unless it protects the child’s safety and well-being to the greatest extent possible. | ||
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*the ability of a person to meet the child’s needs. | *the ability of a person to meet the child’s needs. | ||
Views of the child reports can also be ordered under s. 37(2)(b). These reports usually just describe the child’s views without making an assessment or recommendations, and are usually cheaper and faster to get. | |||
Views of the child reports can be ordered under s. 37(2)(b). These reports usually just describe the child’s views without making an assessment or recommendations, and are usually cheaper and faster to get. | |||
===Who is a parent?=== | ===Who is a parent?=== | ||
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Under the ''[[Family Law Act]]'', a child’s parents are the child’s birth mother and biological father. If the court is not sure who the child’s father is, the court can order medical tests to determine who the father is under s. 33. | Under the ''[[Family Law Act]]'', a child’s parents are the child’s birth mother and biological father. If the court is not sure who the child’s father is, the court can order medical tests to determine who the father is under s. 33. | ||
When people have a child through assisted reproduction, a person who donates eggs or sperm is not presumed to be a parent. However, a woman who is a surrogate mother is presumed to be a parent. | When people have a child through assisted reproduction, a person who donates eggs or sperm is not presumed to be a parent. However, a woman who is a surrogate mother is presumed to be a parent. The ''[[Family Law Act]]'' lets people make agreements when they have a child through assisted reproduction. These agreements can say who is a parent and who isn’t. The people who can be a parent under an assisted reproduction agreement are: | ||
*up to two people who want to have the child, | |||
*a donor of sperm, | |||
*a donor of eggs, and | |||
*a surrogate mother and the spouse of the surrogate mother. | |||
Under the ''[[Family Law Act]]'', a child can have more than two parents. The courts | Under the ''[[Family Law Act]]'', a child can have more than two parents. The courts have yet to figure out how child support <span class="noglossary">will</span> work in situations like this. | ||
===Guardianship=== | ===Guardianship=== | ||
