Family Law Act Basics

From Clicklaw Wikibooks

The provincial Family Law Act is the primary legislationAn act; a statute; a written law made by a government. See "regulations." 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 supportMoney paid by one parent or guardian to another parent or guardian as a contribution to the cost of a child's living expenses., 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., and the division of propertySomething which can be owned. See "chattels" and "real 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., as well as with family violence, court processes, and ways of resolving family law problems without going to court.

This section provides a stem-to-stern overview of the Family Law Act. 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.

Contents

Introduction

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 applies to everyone in a family relationship in British Columbia, including people who:

  • are married spouses,
  • are in unmarried spousal relationships,
  • are dating, or maybe didn’t date at all, but have a child together,
  • want guardianship of someone else’s childA person who is younger than the legal age of majority, 19 in British Columbia. See "age of majority.",
  • want 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 someone else’s child,
  • are at risk of family violence,
  • are having a child with assisted reproduction, and
  • want to manage a child’s property.

The Family Law Act doesn’t change the Divorce Act. The Divorce Act still applies to married spouses along with 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:

  • encourages people to find solutions outside of court,
  • promotes negotiationIn family law, the process by which an agreement is formed between the parties to a legal dispute, usually consisting of mutual compromise from the parties' original positions to the extent tolerable by each party. See "alternative dispute resolution" and "family law agreements.", mediationA dispute resolution process in which a mediator facilitates discussions between the parties to a legal dispute and helps them reach a compromise settling the dispute. See "alternative dispute resolution" and "family law mediator.", collaborative settlement processesA dispute resolution process in which the parties to a legal dispute and their lawyers agree that they will make every effort to resolve the dispute through cooperative, transparent negotiations, with the assistance of counsellors and neutral experts in financial issues and children's issues as necessary, without going to court. See "alternative dispute resolution.", and arbitrationA dispute resolution process in which an arbitrator hears the evidence and arguments presented by the parties to a legal dispute and makes an award which resolves the dispute and which is binding on the parties. See "alternative dispute resolution" and "family law arbitrator.",
  • makes financial disclosureA step in a court proceeding in which each party advises the other of the documents in his or her possession which relate to the issues in the court proceeding and produces copies of any requested documents before trial. This process is regulated by the rules of court, which put each party under an ongoing obligation to continue to advise the other of new documents coming into their possession or control. The purpose of this step is to encourage the settlement of court proceedings and to prevent a party from springing new evidence on the other party at trial. mandatory, even outside of court,
  • makes family law agreements more difficult to change, and
  • promotes the use of parenting coordinators, when there is a final agreement or 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." about the care of children.

When people have to go to court, however, the Family Law Act gives the court new ways to:

  • protect people who are at risk of family violence,
  • enforce court orders and agreements, and
  • manage court processes and manage the behaviour of people in court.

What does the Family Law Act cover?

The Family Law Act talks about all of the things covered by the old Family Relations Act as well as a lot of new things. The Family Law Act deals with:

  • family violence and protecting adults and children from violence,
  • determining who is a child’s 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.",
  • having children through assisted reproduction,
  • determining who is the guardian of a child, and how guardians are appointed and removed,
  • how guardians share responsibility for the care of children,
  • the time someone has with a child who isn’t the child’s 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.",
  • what happens when a guardian wants to move, including with a child,
  • enforcing time with a child provided under an order or an agreement,
  • paying child support and how child support is calculated,
  • paying spousal support,
  • preserving property so that it can be divided,
  • dividing property and dividing responsibility for debt, and
  • managing children’s property.

The law about children

How are decisions about children made?

The Family Law Act says that parents, judges, and other decisionIn law, a judge's conclusions after hearing argument and considering the evidence presented at a trial or an application; a judgment; 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," and "findings of fact."-makers must make decisions about children considering only the children’s best interests and nothing else.

Determining the best interests of children

To decide what is in a child’s best interest, parents and judges must consider all of the needs and circumstances of the child, as well as number of factors that are listed at s. 37. These factors include:

  • the child’s health and emotional well-being,
  • the views of the child, unless it wouldn’t be appropriate to consider them,
  • the history of the child’s care and the child’s need for stability,
  • the child’s relationships with other important people,
  • any court proceedings that are relevant to the child’s safety and well-being, and
  • the impact of any 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 assessTo determine the value or amount of something. A lawyer's bill may be ''assessed'' by a registrar to determine the actual amount the client should pay. See "appraisal." the impact of the family violence on the child and on a person’s capacity to care for the child.

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.

How are children’s views heard?

Under s. 211 of the Family Law Act, the court can order that a family justice counsellor, a social worker, or another person like a clinical counsellor or a psychologist, assess one or more of:

  • the needs of a child,
  • the views of a child, and
  • the ability of a person to meet the child’s needs.

These assessments replace reports made under s. 15 of the Family Relations Act.

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?

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.

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. They can say that a donorA person giving something as a gift or as a bequest, and does so freely and without expectation of payment in return. of eggs or sperm is a parent, or that a surrogate mother isn’t a parent.

Under the Family Law Act, a child can have more than two parents. The courts will have to figure out how child support will work in situations like this.

Guardianship

The Family Law Act describes the people who are responsible for caring for a child as guardians. A child can have one guardian, two guardians, or more than two guardians.

Who is a guardian?

Most of the time, a child’s parents will be the child’s guardians, as long as the parents have lived with the child. A parent who never lived with a child isn’t a guardian unless:

  • the court makes an order that the parent is a guardian,
  • the parent and the child’s other guardians make an agreement that the parent is a guardian,
  • the parent "regularly cares" for the child, or
  • the parent is a parent because of an assisted reproduction agreement.

The courts will have to figure out what regularly cares for a child means.

The court can make an order that someone who isn’t a parent is the guardian of a child. The court can also make an order that someone who is a guardian is no longer a guardian. Both the Provincial CourtA court established and staffed by the provincial government, which includes Small Claims Court, Youth Court and Family Court. The Provincial Court is the lowest level of court in British Columbia and is restricted in the sorts of matters it can deal with. Small Claims Court, for example, cannot deal with claims larger than $25,000, and Family Court cannot deal with the division of family property or matters under the ''Divorce Act''. See "judge" and "jurisdiction." and the Supreme Court can make orders about guardianship.

The new partner or 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." of a guardian doesn’t become a guardian just because of his or her relationship with the child’s guardian.

Parental responsibilities

The different ways that guardians care for a child and the decisions guardians have to make are called 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.". Parental responsibilities are listed at s. 41 of the Family Law Act and include:

  • making decisions about the day-to-day care of the child,
  • deciding where the child will live,
  • making decisions about the child’s schooling and extracurricular activities,
  • making decisions about the child’s health care, and
  • deciding how the child will be raised, including making decisions about things like religion, language, and culture.

When a child has more than one guardian, the guardians must usually make these decisions together. The guardians can agree or the court can order that only one guardian should have a particular parental responsibility. Both the Provincial Court and the Supreme Court can make orders about parental responsibilities.

If the child’s guardians can’t agree on a particular decision, they can go to see a family justice counsellor, a mental health professional, or a mediator to help them make the decision, or they can go to court.

Remember that only guardians have parental responsibilities and the right to make decisions for a child.

What happens if a guardian can’t exercise parental responsibilities?

If a guardian is temporarily unable to exercise parental responsibilities, the guardian can authorize someone else to manage certain responsibilities. This person doesn’t become a guardian but can:

  • make decisions about the day-to-day care of the child,
  • make decisions about the child’s schooling and extracurricular activities,
  • make decisions about the child’s health care, and
  • give or withhold permission on behalf of a child, like about going on a school field trip or having a medical treatment.

This is useful when a guardian is going to be sick or will be out of town for a period of time and someone else needs to care for the child, or if a child from outside British Columbia will be going to school here, and an adult is needed to care for the child.

What happens if a guardian has a terminal illness or dies?

Under the Family Law Act, a guardian can appoint someone to take over and act as the child’s guardian if:

  • the guardian has a terminal illness,
  • the guardian is going to be permanently unable to care for the child because of a mental illness, or
  • the guardian dies.

The new person takes over as guardian when the first guardian dies or becomes unable to exercise parental responsibilities.

A parent who is not a guardian does not automatically become the child’s guardian when a guardian dies. If that parent wants to become the child’s guardian, he or she will have to get a court order.

Parenting time and contact

The time a guardian has with a child is called 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.". During a guardian’s parenting time, the guardian is responsible for the care of the child and has the right to make day-to-day decisions for the child.

The time that someone who isn’t a guardian has with a child is called contact. Parents who aren’t guardians, other relatives of a child, and people who aren’t a child’s relative can have contact with the child.

Agreements about parenting time and contact can be made by the child’s guardians. The court can make orders about parenting time and contact. Both the Provincial Court and the Supreme Court can make orders about parenting time and contact.

A guardian’s parenting time and a person’s contact with a child can be on conditions, like that the parenting time or contact must be supervised.

Remember that only guardians have parenting time. Everyone else has contact with a child.

How are parenting time and contact enforced?

The Family Law Act gives the court the power to enforce parenting time and contact when:

  • parenting time or contact has been "wrongfully withheld" from a person entitled to parenting time or contact, or
  • a person with parenting time or contact fails to use his or her parenting time or contact.

In certain situations, it isn’t "wrongful" to withhold a child from a person entitled to parenting time or contact. Under s. 62, it isn’t wrongful to withhold a child if:

  • the guardian with the child believes there is a risk of family violence, or that the other person is impaired by alcohol or drugs,
  • the child is sick, and the guardian with the child has a doctor’s note,
  • the other person has frequently failed to use his or her parenting time or contact in the past, or
  • the other person told the guardian ahead of time that the parenting time or contact wasn’t going to be used.

The court can make a number of orders to enforce parenting time and contact, including requiring:

  • make-up time, when parenting time or contact was wrongfully withheld,
  • a person or a child to attending counselling,
  • the parties to try to resolve their dispute outside of court,
  • payment of a partyIn law, a person named as an applicant, claimant, respondent or third party in a court proceeding; someone asserting a claim in a court proceeding or against whom a claim has been brought. See "action" and "litigant."’s expenses, or
  • payment of up to $5,000 to a person or as a fine.

Applications about the wrongful withholding of parenting time or contact must be brought within a year of when the parenting time or contact was withheld.

What happens if a guardian wants to move?

If a guardian wants to move, with or without a child, and the move will have an impact on the child’s relationship with another guardian or someone who has contact with the child, the guardian must usually give 60 days’ notice of the move, in writing. The notice must say where the guardian plans on moving to and when the guardian plans on moving. See the discussion on relocation in the page on Changing Family Law Orders and Agreements Involving Children for more information.

Only other guardians can object when a guardian plans on moving. If a guardian objects, he or she has 30 days to go to court to get an order preventing the move. Remember that only a guardian can object to a proposed move! Someone who has contact can't prevent a guardian from moving.

When a guardian objects, the guardian who wants to move must show the court that:

  • he or she wants to move in "good faithActing in an honest, truthful, open and fair manner, without the intent to deceive or defraud. Also known by the Latin phrase ''bona fide''. See "bad faith."," and
  • he or she has proposed reasonable plans to preserve the child’s relationship with the child’s other guardians, with people who have contact with the child, and with others who have an important role in the child’s life.

The guardian who objects to the move must show that the move is not in the best interests of the child or the move will be allowed.

When a guardian objects and the moving guardian and the objecting guardian share the child’s time equally or almost equally, the guardian who wants to move must show the court that:

  • he or she wants to move in good faith,
  • he or she has proposed reasonable plans to preserve the child’s relationship with the child’s other guardians, with people who have contact with the child, and with others who have an important role in the child’s life, and
  • the move is in the child’s best interests.

Good faith means that the guardian who wants to move isn’t planning on moving just to take the child away from another guardian, and that the move will likely improve the child’s quality of life or the guardian’s quality of life.

The courts will have to figure out what "reasonable plans" to preserve the child’s relations with other people means, and what it means to say that a proposed move is or is not in a child’s best interests.

The law about child support

Who is entitled to get child support?

Child support is usually paid to support children who are under the age of 19, or who are 19 or older but are unable to support themselves, including because they are going to college or university.

Under the Family Law Act, children who are younger than age 19 can stop being entitled to child support if:

  • they become a spouse, or
  • they withdraw from the care of their parents or guardians, as long as they aren't withdrawing because of family violence or because of poor living conditions.

Child support is usually paid to the person whom the child mostly lives with. Child support can sometimes be paid directly to the child, usually if the child is 19 or older and living away from home and going to college or university.

Who is required to pay child support?

All of a child’s parents and guardians are required to support the child. The person who pays child support is either a parent who is not a guardian or the guardian who the child lives with the least.

Stepparents can also be required to pay child support. 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." is the married or unmarried spouseSomeone who is a spouse by the operation of a statute. Under the ''Family Law Act'', unmarried spouses are people who have lived together in a marriage-like relationship for at least two years, or, for all purposes of the act other than the division of property or debt, who have lived together for less than two years but have had a child together. See "marriage-like relationship," "marriage" and "married spouse." of a parent, as long as:

  • the spouse has contributed to the child’s costs for at least one year, and
  • the claimThe assertion of a legal right to an order or to a thing; the remedy or relief sought by a party to a court proceeding. for child support is made within one year of the spouse’s last contribution to the child’s costs.

Remember that under the Divorce Act, a stepparent is someone who is married to a parent and "stands in the place of a parent." This is a different legal test.

How is the amount of child support calculated?

Child support is determined by the Child Support GuidelinesA regulation to the federal ''Divorce Act'', adopted by every province and territory except Quebec, that sets the amount of child support a parent or guardian must pay, usually based on the person's income and the number of children involved.. Most of the time, child support is simple to figure out by looking up the amount payable in 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. tables based on the payor’s income and the number of children support is being paid for. Child support can get more complicated when:

  • a child is 19 or older,
  • the payor has an income of more than $150,000 per year,
  • one or more children live mostly with each guardian, called split custodyA term used by the Child Support Guidelines to describe circumstances when one or more children live most of the time with each parent or guardian, resulting in an amount of support that is different than the table amount. See "child support," "Child Support Guidelines" and "table amount.",
  • the guardians share the children’s time equally or almost equally, called shared custodyA term used by the Child Support Guidelines to describe circumstances when a child's time is shared equally or almost-equally between his or her parents or guardians, often resulting in an amount of support that is different than the table amount. See "child support," "Child Support Guidelines" and "table amount.", or
  • the payment of the tables amount would cause "undue hardshipA term used by the Child Support Guidelines to describe circumstances when payment of the table amount of child support would cause financial difficulty for the payor or the recipient, potentially justifying an award of support in an amount different than the table amount. See "child support," "Child Support Guidelines" and "table amount."" to either the recipient or the payor.

The Family Law Act doesn’t change how any of these problems are handled. What the Family Law Act does change is the calculation of child support for guardians who are not parents and for stepparents.

Under the Family Law Act, the child support obligations of guardians who are not parents come second to the obligations of parents. The child support obligations of stepparents come second to both parents and guardians, and the amount of support a stepparent should pay is based on:

  • the child’s standard of living when he or she lived with the stepparent, and
  • the length of time the child lived with the stepparent.

More information about how child support is calculated is available in the Child Support chapter, particularly in the sections on the Guidelines and the Exceptions to the Guidelines.

How is child support paid?

People can make agreements and the court can make orders about who should pay child support and about how much support should be paid. Both the Provincial Court and the Supreme Court can make orders about child support.

Most of the time, child support is paid every month, usually on the first day of the month. It is possible for child support to be paid in a single lump sum, but this is very rare. Payors can be required to pay by giving the recipient a series of post-dated cheques.

What about if the payor dies?

If the payor has a life insurance policy, the parties can agree and the court can order that the payor keep the policy up to date and name a person, usually the recipient, as the beneficiaryA person for whom a trustee holds a trust; the recipient or intended recipient of property given in a will. See "heir," and "trust." of the policy. This way, the child will still be supported if the payor dies.

The parties can agree and the court can order that the payor’s obligationA duty, whether contractual, moral or legal in origin, to do or not do something. See "duty." to pay child support will continue after the payor’s death and be paid from his or her 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.. Court orders about this can be made at the time the child support order is made or after the payor’s death.

The law about spousal support

Who is entitled to ask for spousal support?

Only spouses can ask for spousal support. Under the Family Law Act, spouse includes people who:

  • are married to each other,
  • have lived together 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, and
  • have lived together in a marriage-like relationship for less than two years and have had a child together.

A spouse’s entitlement to spousal support is determined based on factors taken from the Divorce Act, set out at s. 161 of the Family Law Act.

Remember that no one is automatically entitled to get spousal support the way a child is automatically entitled to benefit from child support. Anyone who is a spouse can ask for spousal support, but being able to ask doesn’t mean they’ll get it. They must also show that they are entitled to spousal support.

When do claims for spousal support have to be made?

Under the Family Law Act:

  • married spouses have to start 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. for spousal support within two years of the date of their 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." or the annulmentA declaration by a judge that a marriage is invalid. The effect of such a declaration is to make it as if the marriage never occurred. See "ab initio," "declaration" and "marriage, validity of." of their marriage, and
  • unmarried spouses have to start a 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." for spousal support within two years of the date they separated.

Remember that there are no limits to when married spouses can ask for spousal support under the Divorce Act.

The two-year countdown from the date of divorce or separation stops while the spouses are trying to resolve their dispute outside of court with the help of a family justice counsellor, a mediator, a lawyerA person licensed to practice law in a particular jurisdiction. See "barrister and solicitor.", or an arbitrator.

How are the amount and duration of spousal support calculated?

When a spouse is entitled to receive spousal support, the amount to be paid and the length of time support should be paid for, called duration, is determined based on factors taken from the Divorce Act, set out at s. 162 of the Family Law Act.

The amount of spousal support to be paid and the duration that it should be paid for is often determined using the Spousal Support Advisory Guidelines. 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 like the Child Support Guidelines and is not mandatory. The Family Law Act does not mention the Advisory Guidelines.

More information about spousal support is available in the Spousal Support chapter and the section on the Advisory Guidelines.

Is a spouse’s conduct taken into accountIn law, a lawyer's bill to his or her client or a statement; one person's recollection of events.?

Under the Divorce Act, the court is not allowed to consider a spouse’s behaviour when making an order about spousal support. The same thing is generally true under the Family Law Act, except that under this actIntentionally doing a thing; a law passed by a government, also called "legislation" or a "statute." See "regulations." the court to take into account misconduct that:

  • unreasonably prolongs a spouse’s need for support, or
  • unreasonably undermines a spouse’s ability to pay support.

In other words, the court can look at whether a spouse is being unreasonable in not becoming financially self-sufficient and whether a spouse has reduced work hours, quit a job, or refused to take a job in order to avoid paying support.

How is spousal support paid?

People can make agreements and the court can make orders about who should pay spousal support and about how much support should be paid. Both the Provincial Court and the Supreme Court can make orders about spousal support.

Most of the time, spousal support is paid every month, usually on the first day of the month. It is possible for spousal support to be paid in a single lump sum. Payors can be required to pay by giving the recipient a series of post-dated cheques.

Are there tax consequences?

There are tax consequences when spousal support is paid on a regular basis. Spousal support is tax neutral when it is paid as a single lump sum.

The recipient of regular payments of spousal support must declare the support received in his or her income tax return and pay tax on it, just as if the support payments were employment income. The payor can deduct the spousal support paid from his or her taxable income, like how RRSP contributions can be deducted from taxable income. This usually means that the recipient has to pay tax at the end of the year while the payor gets a tax refund.

Remember that taxes should be taken into account when figuring out spousal support. At a minimum, recipients should be reminded to put some money aside to pay their taxes.

Reviews

It can sometimes be very difficult to figure out when spousal support should end. The person getting support usually wants support to continue for as long as possible. The person paying support wants support to end as soon as possible. It is hard to settle on an end date if, for example, it’s not known when a spouse will finish job training, become self-sufficient, or recover from an illness.

People often try to avoid this problem by agreeing that spousal support will be paid for now, but that the support will be reconsidered in a reviewIn law, the re-examination of a term of an order or agreement, usually to determine whether the term remains fair and appropriate in light of the circumstances prevailing at the time of the review. In family law, particularly the review of an order or agreement provided for the payment of spousal support. See "de novo," "family law agreements," "order" and "spousal support.", after a certain amount of time has passed or when a certain event has happened.

The Family Law Act says that agreements and orders for spousal support can be reviewable. Agreements and orders for reviewable spousal support can specify:

  • what will trigger the review,
  • the dispute resolutionA phrase referring to a family of processes used for resolving legal disputes including negotiation, collaborative settlement processes, mediation, arbitration and litigation. process that will be used at the review, and
  • the factors that will be considered at the review.

The Family Law Act says that a review can also be triggered when someone begins to receive a pension, even if the agreement or order for spousal support doesn’t call for the review.

What about if the payor dies?

If the payor has a life insurance policy, the parties can agree and the court can order that the payor keep the policy up to date and name a person, usually the recipient, as the beneficiary of the policy. This way, the spouse will still be supported if the payor dies.

The parties can agree and the court can order that the payor’s obligation to pay spousal support will continue after the payor’s death and be paid from his or her estate. Court orders about this can be made at the time the spousal support order is made or after the payor’s death.

Note that the rules about life insurance and support when the payor dies are the same for spousal support as they are for child support.

The law about dividing property and debt

Who is entitled to ask to divide property and debt?

Only spouses can ask to divide property and debt. Under the Family Law Act, spouse includes people who:

  • are married to each other, and
  • have lived together in a "marriage-like relationship" for at least two years.

Note that the people who are spouses for the division of property and debt are different than the people who are spouses for child support and spousal support.

When do claims for the division of property and debt have to be made?

Under the Family Law Act:

  • married spouses have to start a court proceeding to divide property and debt within two years of the date of their divorce or the annulment of their marriage, and
  • unmarried spouses have to start a proceeding to divide property and debt within two years of the date they separated.

The two-year countdown from the date of divorce or separation stops while the spouses are trying to resolve their dispute outside of court with the help of a family justice counsellor, a mediator, a lawyer, or an arbitrator.

Excluded property

Excluded property is the property each spouse has on the date they began to live together or got married, whichever was first. Excluded property includes certain property received by each spouse during the spouses’ relationship, such as:

  • gifts and inheritances,
  • court awards for injury or loss, except for awards relating to both spouses or for lost income,
  • insurance payments, except for payments relating to both spouses or for lost income,
  • certain kinds of trustIn law, a form of possession of property in which a "trustee" keeps and manages property for the benefit of another person, the "beneficiary." The trustee holds the property ''in trust'' for the beneficiary. See "constructive trust," "ownership," "possession" and "resulting trust." interests, and
  • property bought with excluded propertyA term under the ''Family Law Act'' referring to property acquired by a spouse prior to the commencement of the spouses' relationship and certain property acquired by a spouse during the relationship, including gifts, inheritances, court awards and insurance proceedings. A spouse is presumed to be entitled to keep his or her excluded property without having to share it with the other spouse. See "family property," "gift," and "inheritance.".

Family property

Family property is the property either or both spouses got after the date they began to live together or got married, whichever was first. "Ordinary use for a family purpose," the test under the old Family Relations Act, doesn’t matter under the Family Law Act.

Family property includes:

  • real estate,
  • bank accounts,
  • interests in companies and businesses,
  • debts owed to a spouse,
  • pensions and RRSPs, and
  • other personal propertyChattels, goods, money; property other than real property. See "chattel" and "real property.".

Most importantly, the increase in value of excluded property over the course of the spouses’ relationship is also 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.".

Remember that excluded property includes property bought during the relationship with excluded property.

Family debt

Family debt is all debt incurred by either spouse after the date the spouses began to live together or got married, whichever was first, up to the date of separationIn family law, the decision of one or both parties to terminate a married or unmarried relationship; the act of one person leaving the family home to live somewhere else with the intention of terminating the relationship. There is no such thing as a "legal separation." In general, one separates by simply moving out, however it is possible to be separated but still live under the same roof. See "divorce, grounds of.".

Family debt also includes debt incurred after the date of separation if the debt was incurred to maintain family property, like repairing the family homeIn family law, the dwelling occupied by a family as their primary residence. See "family property" and "real property." or paying the mortgageThe conditional transfer of the title to real property by an owner to another person in return for money given as a loan, while retaining possession of the property. The party to whom title is given, the "mortgagee," usually a bank, is allowed to register the title of the property in his or her name if the person taking the loan, the "mortgagor," fails to make the required payments. See "encumbrance" and "real property.".

How are property and debt divided?

Spouses can make agreements and the court can make orders about how property and debt should be divided. Only the Supreme Court can make orders about the division of property and debt.

Note that agreements and orders about debt made under the Family Law Act are only 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." between spouses, and don’t affect the rights of creditors or the steps they can take to collect on a debt.

Family property and 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.

Under the Family Law Act, spouses are presumed to:

  • each be entitled to one-half of family property, regardless of how they contributed to or used the property, and
  • each be responsible for one-half of family debt.

When spouses separate, they each become one-half owners of all family property as tenants in common and one-half responsible for all family debt. Under the Family Relations Act, spouses didn’t become owners of family assets as tenants in common until they made a separation agreementA contract intended to resolve all or some of the issues outstanding following the breakdown of a relationship and intended to guide the parties in their dealings with one another thereafter. A typical separation agreement is signed following a settlement reached through negotiations and deals with issues including guardianship, parenting arrangements, contact, support, the division of property and the division of debt. See "family law agreements.", got divorced, or the court made 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." under s. 57. Now all it takes is separation.

The court can divide family property and family debt unequally if an equal division would be "significantly unfair." The court can take into account a number of reasons why an equal division could be significantly unfair including:

  • length of the spouses’ relationship,
  • a spouse’s contribution to the other spouse’s career,
  • whether the amount of family debt is more than the value of family property,
  • whether a spouse reduced the value of family property or got rid of family property to avoid sharing the property, or the full value of the property, with the other spouse, and
  • any taxes owing from dividing the property.

The courts will have to figure out what "significantly unfair" means. The old law doesn’t use this term.

Excluded property

Each spouse’s excluded property is presumed to remain his or her separate property and to not be shared with the other spouse.

The court can divide a spouse’s excluded property if:

  • it can’t divide family property or family debt that is located outside British Columbia, or
  • it would be "significantly unfair" not to share the excluded property because of the length of the spouses’ relationship or because of the contributions made by the spouse who doesn’t own the property.

Value of property

The value of property is what a reasonable stranger would pay to buy the property in its current state. This is called the property’s fair market value.

The date property is valued is the date of the agreement or court hearingIn law, any proceeding before a judicial official to determine questions of law and questions of fact, including the hearing of an application and the hearing of a trial. See "decision" and "evidence." dividing the property.

How are pensions divided?

Spouses can make agreements and the court can make orders about how pensions and assets that are like pensions are divided. Only the Supreme Court can make orders about the division of pensions.

Equalizing RRSPs

RRSPs are family property. If RRSPs are divided, the Income Tax Act allows them to be equalized without any taxes being paid.

Workplace pensions

In general, the part of the pension that accumulated between the date the spouses began living together or got married and the date of separation is family property and is divided equally between the spouses. This is true whether the pension is being paid out or not.

Agreements and orders about dividing pensions are carried out by the people who administer the pension plans, not by the spouse who owns the pension.

Note that the division of pensions can be very, very complicated. It is always best to speak to a lawyer about issues with pensions.

Canada Pension Plan credits

Spouses are entitled to equalize the CPP credits they each accumulated between the date they began living together or got married and the date of their separation or divorce.

Agreements and orders about the equalization of CPP credits are carried out by the people who administer the Canada Pension Plan in Ottawa.

Foreign property

Under the Family Law Act, the court can make orders about family property that is located outside of British Columbia, including about the:

  • safekeeping of the property,
  • right to use the property, and
  • right to own the property.

The court can decide to divide property or family debt inside British Columbia to compensate for property outside of British Columbia, instead of trying to divide it.

Remember that the court can also divide excluded property between spouses if it can’t divide property outside of British Columbia.  

Children’s property

Children sometimes get large amounts of money or property from inheritances, insurance policies, or court awards. Under the Family Law Act, a child’s guardians are not automatically the trustees of the child’s property, except for property with a value of less than $10,000.

A guardian may apply to court to be appointed as trusteeA person who holds property in trust for the benefit of another person. See "trust." for the child’s property. Only the Supreme Court can make orders about children’s property.

Family violence and protection orders

What is family violence?

Family violence is defined in very broad terms in s. 1 of the Family Law Act, and includes obvious things like physical abuse as well as:

  • sexual abuse,
  • attempts to physically or sexually abuse someone,
  • psychological and emotional abuse, including by harassing, stalking or intimidating someone, or by restricting their liberty, and
  • in the case of children, being exposed to family violence.

Family violence does not include a person’s use of force to protect him- or herself, or someone else, from family violence.

Duties of professionals

Family justice counsellors, mediators, lawyers, arbitrators, and parenting coordinators are required to assess for family violence and the extent to which it affects someone’s safety or ability to negotiate, and to discuss how different family dispute resolution processes may or may not be appropriate.

Determining children’s best interests

To decide what is in a child’s best interests, parents and judges must consider all of the needs and circumstances of the child and a number of factors that are listed at s. 37 of the Family Law Act. The best interests factors include the impact of any family violence on the child.

When family violence is an issue, parents and judges must consider an additional list of factors to assess the impact of the family violence on the child and on a person’s capacity to care for the child. The family violence factors are set out at s. 38 and include:

  • the nature and severity of the family violence,
  • the recency and frequency of the family violence,
  • whether the family violence is situational or part of a pattern of controlling behaviour,
  • whether the family violence was directed to the child and the extent to which the child was exposed to the family violence, and
  • the harm caused to the child’s safety and well-being.

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.

Protection orders

What are protection orders?

The court can make an order against one family member to protect another family member. Protection orders can include orders:

  • restricting contact and communications,
  • requiring a person to stay away from someone else’s home, school, place of employment or place of business,
  • prohibiting stalking,
  • prohibiting a person from possessing weapons, and
  • requiring the police to remove a person from the family home.

Protection orders remain in force for one year, unless the protection orderAn order available under the ''Family Law Act'' for the protection of a person at risk of family violence. Protection orders include orders restraining someone from harassing, contacting or stalking a person, restraining someone from going to a person's home, place of employment or school. See "application," "ex parte" and "restraining order." says otherwise. Protection orders can be renewed.

Who can ask for a protection order?

A person at risk of family violence, or someone on that person’s behalf, can ask the court for a protection order as long as the at-risk person and the person from whom the protection order is sought are family members as defined by s. 1. In general, a "family member" is someone who lives with the other person, someone who is a spouse of the other person and someone who is a parent with the other person. People who don't live together and are just dating will not quality as "family members."

Applications for protection orders can be made without notice to anyone else, and may be made whether there is an existing family law court proceeding or not.

What happens when a protection order conflicts with another order?

If a protection order conflicts with another order made under the Family Law Act, like an order for parenting time or contact with a child, the parts of the earlier order that are in conflict with the protection order are suspended until either the order is changed to remove the conflict or the protection order expires.

This rule applies to orders that are like protection orders and are made under the Criminal Code or under the laws of another jurisdictionWith respect to judges, the authority of the court to hear an action and make orders; the limits of the authority of a particular judicial official; the geographic location of a court; the territorial limits of a court's authority. With respect to governments, the authority of a government to make legislation as determined by the constitution; the limits of authority of a particular government agents. See “constitution.".

How are protection orders enforced?

Protection orders cannot be enforced under the Family Law Act or the provincial Offence Act. They can only be enforced under s.127 of the Criminal Code, which makes breach of a court order a criminal offence.

The Family Law Act directs police officers to take action to enforce a protection order, and to use reasonable force if necessary.

Out-of-court processes

What are the alternatives to going to court?

Under the Family Law Act, processes that help people resolve family law problems outside of court are called family dispute resolution processes. Family dispute resolution processes include:

  • assistance from family justice counsellors,
  • mediation, collaborative processes, and arbitration, and
  • parenting coordinationA child-focused dispute resolution process used to resolve disputes about parenting arrangements and the implementation of a parenting plan set out in a final order or agreement. See "alternative dispute resolution" and "parenting coordinator.".

People can make an agreement that they will resolve a family law problem, or a family law problem that might arise in the future, using a family dispute resolution process.

How are family dispute resolution processes supported?

Duties of professionals

Family justice counsellors, mediators, lawyers, and arbitrators are required to tell people about the different ways that family law disputes can be resolved outside of court.

Lawyers are also required to certify that they have told their client about family dispute resolutions processes when they start a court proceeding.

Duties of parties making agreements

People who are trying to resolve family law problems outside of court are required to provide each other with "full and true information." Agreements about spousal support and the division of property and debt can be set aside for a number of reasons, including if:

  • a spouse did not make full disclosure of financial information, or
  • a spouse took advantage of the other spouse’s lack of knowledge or emotional upset.

However, when full disclosure is made, agreements about spousal support and the division of property and debt that were fairly negotiated are harder to set aside under the Family Law Act than they were under the old law.

Suspended time limits

Court proceedings about spousal support or the division of property and debt must normally be started within two years of the date of divorce, for married spouses, or within two years of the date of separation, for unmarried spouses. Under s. 198 of the Family Law Act, the countdown for the two-year limit stops while the spouses are involved in a family dispute resolution process with a family justice counsellor, mediator, lawyer, or arbitrator.

Mediation

Family justice counsellors, mediators, and lawyers who have special additional training can help people resolve a family law dispute through mediation.

In mediation, the mediator helps people reach their own settlementA resolution of one or more matters at issue in a court proceeding or legal dispute with the agreement of the parties to the proceeding or dispute, usually recorded in a written agreement or in an order that all parties agree the court should make. A court proceeding can be settled at any time before the trial. See "action," "consent order," "family law agreements" and "offer.". Although some mediators also give information about the law and may offer an opinion about a person’s position, mediators do not make decisions for people and do not have the power to impose a settlement.

When mediation is successful, the parties will usually sign a separation agreement to document their settlement. Separation agreements can be filed in court and be enforced like court orders.

More information about mediation is available in the Resolving Family Law Problems out of Court chapter in the section on Family Law Mediation.

Collaborative processes

Lawyers who have special additional training can help people resolve a family law dispute through collaborative settlement processes. When people agree to use a collaborative process, they and their lawyers sign an agreement that they will use their best efforts to resolve the dispute outside of court, and that if the parties do have to go to court they will hire new lawyers.

Collaborative processes work like negotiation but involve other professionals when their participation will help the parties to reach a settlement:

  • clinical counsellors or psychologists can be involved as divorce coaches, helping the parties work through their emotions,
  • clinical counsellors or psychologists can be involved as child specialists, giving advice about parenting schedules and how the children are experiencing the parties’ separation, and
  • accountants, appraisers, and tax specialists can be involved to help figure out complicated financial problems.

When a collaborative process is successful, the parties will usually sign a separation agreement to document their settlement. Separation agreements can be filed in court and be enforced like court orders.

More information about collaborative settlement processes is available in the Resolving Family Law Problems out of Court chapter in the section on Collaborative Processes.

Arbitration

In arbitration, a person with special training, often a lawyer, resolves a family law dispute by making a decision, called an award, that is binding on the parties like a court order.

Although arbitration can be a lot like going to court, it has a lot of advantages over court processes:

  • the arbitration hearing can be scheduled whenever everybody is available without having to wait on trialThe testing of the claims at issue in a court proceeding at a formal hearing before a judge with the jurisdiction to hear the proceeding. The parties present their evidence and arguments to the judge, who then makes a determination of the parties' claims against one another that is final and binding the parties unless appealed. See "action," "appeal," "argument," "claim," "evidence" and "jurisdiction." scheduling,
  • arbitration hearings happen in private, often in the arbitrator’s office boardroom,
  • the parties can choose the rules of the arbitration process, and
  • the parties can choose to have the arbitrator decide a dispute not by hearing from witnesses but by hearing the parties’ arguments, reading the parties’ documents, or reading the parties’ affidavits.

The result of an arbitration process is the arbitrator’s written award. The arbitrator’s award is private, but can be filed in court and be enforced like a court order.

Arbitration in British Columbia is governed by the Arbitration Act. The Family Law Act makes a number of changes to this law to improve how it deals with family law problems.

More information about arbitration is available in the Resolving Family Law Problems out of Court chapter in the section on Family Law Arbitration.

Parenting coordination

Social workers, counsellors, psychologists, mediators, and lawyers who have special additional training can help people resolve disputes about the care of children through parenting coordination. Parenting coordinators are appointed by the parties’ agreement or by a court order, and are appointed for terms ranging from six months to two years. A parenting coordinatorA lawyer or mental health professional with special training in the mediation and arbitration of family law disputes, family dynamics and child developmental psychology who meets the training and experience requirements set out in the provincial Family Law Act Regulation.’s appointment can be renewed.

Parenting coordination is only used where the parties have an agreement or a final court order about parental responsibilities, parenting time and contact, and is meant to help with:

  • implementing the parts of the agreement or order about children,
  • improving how the parties deal with conflict about their children, and
  • improving how the parties communicate with each other.

Parenting coordinators cannot help with child support, spousal support, or the division of property and debt.

Parenting coordinators try to resolve disputes about children by helping the parties find a settlement, like a mediator. However, when a settlement cannot be reached or the dispute is urgent, the parenting coordinator may make a decision resolving the dispute, like an arbitrator. A parenting coordinator’s decision is called a determination. Determinations can be filed in court and be enforced like court orders.

More information about parenting coordination is available in the Resolving Family Law Problems out of Court chapter in the section on Parenting Coordination.

Court processes

Which court deals with which family law problem?

The powers of the Provincial Court are pretty much the same under the Family Law Act as they were under the old Family Relations Act. The Supreme Court can deal with all family law problems, but the Provincial Court can only deal with problems about the care of children, child support, and spousal support.

As a result, the Provincial Court can make declarations about the parentage of a child, but only if it is necessary to handle a claim within its jurisdiction. The Provincial Court can also enforce agreements and orders, but only the parts of agreements or orders that are within its jurisdiction.

What happens when there’s a proceeding in each court?

Starting a court proceeding in one court doesn’t stop an proceeding being started in the other court, unless the claims made in the second proceeding have already been dealt with by the first court. Section 194 of the Family Law Act talks about what happens when there is a proceeding in each court:

  • the making of an order by one court doesn’t stop an application in the other court, unless the application is about the same thing as the order made by the first court,
  • a court can refuse to deal with a claim until the claim has been dealt with by the other court, and
  • the Supreme Court can consolidate a Provincial Court proceeding with its own proceeding so that both are handled as a single proceeding in the Supreme CourtNormally referred to as the "Supreme Court of British Columbia," this court hears most court proceedings in this province. The Supreme Court is a court of inherent jurisdiction and is subject to no limits on the sorts of claims it can hear or on the sorts of orders it can make. Decisions of the Provincial Court are appealed to the Supreme Court; decisions of the Supreme Court are appealed to the Court of Appeal. See "Court of Appeal," "jurisdiction," "Provincial Court" and "Supreme Court of Canada.".

The Supreme Court can change a Provincial Court order to accommodate an order it is making. The Supreme Court cannot otherwise change Provincial Court orders except as the result of an appealAn application to a higher court for a review of the correctness of a decision of a lower court. A decision of a judge of the Provincial Court of British Columbia can be appealed to the Supreme Court of British Columbia. A decision of a judge of the Supreme Court can be appealed to the Court of Appeal for British Columbia..  

Managing people in court and court processes

Guiding principles

The Family Law Act says that court proceedings should be run with as little delay and formality as possible, and in a way that promotes cooperation between parties and protects adults and children from family violence.

The court is required to encourage parties to focus on the best interests of their children and minimize the effect of their conflict on their children.

Preventing misuse of court processes

If a party is frustrating or misusing the court process, the court can make an order prohibiting the party from making further applications without permission. When making such orders, the court can also:

  1. make the order last for a specific period of time, or until the party has complied with another order,
  2. require the party to pay another person’s expenses, and,
  3. make the party pay up to $5,000 to a person or as a fine.

Conduct orders

Under s. 222 of the Family Law Act, the court may make a conduct order to:

  1. encourage settlement,
  2. manage a party’s behaviour that is frustrating settlement, and,
  3. prevent misuse of the court process.

Conduct orders include orders:

  1. that the parties participate in a family dispute resolution process,
  2. that one or more of the parties, or a child, attend counselling,
  3. restricting communication between the parties, and,
  4. that a party continue to pay for debts and services related to the family home, like paying the mortgage or paying the gas bill.

Note that conduct orders restricting communication can also be made as protection orders.  

Case management orders

Conduct orders include case management orders. Case management orders include orders:

  1. striking out all or part of a claim or 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.",
  2. delaying a court proceeding while the parties participate in a family dispute resolution process, and,
  3. requiring that all other applications be heard by the same judgeA person appointed by the federal or provincial governments to manage and decide court proceedings in an impartial manner, independent of influence by the parties, the government or agents of the government. The decisions of a judge are binding upon the parties to the proceeding, and are subject to appeal..

How are orders enforced?

Some orders, like orders about parenting time and contact, have their own enforcement procedures. Where an order under the Family Law Act doesn't have a specific enforcement procedure, the general enforcement provisions of the Family Law Act are used. Under s. 230, the court may enforce an order by requiring a party to:

  1. post security in court to guarantee his or her future good behaviour,
  2. cover the expenses of the other party resulting from his or her conduct, or,
  3. pay up to $5,000 to another person or as a fine.

Where nothing else will get a party to obey a court order, the court may order that the party be imprisoned for up to 30 days.

Both the Provincial Court and the Supreme Court can enforce orders.

Resources and links

Legislation

Resources

Links


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